AMENDED AND RESTATED ADMINISTRATION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, executed as of December 18, 1997,
amends, restates and supersedes, in their entirety the Administration Agreement
dated December 4, 1995, the Addendum thereto dated December 4, 1995, the Second
Addendum thereto dated October 10, 1996 and the Agreement dated December 3,
1996, each by and between Princeton Administrators, L.P., a Delaware limited
partnership (hereinafter called the "Administrator"), and Xxxxx Funds, Inc., a
Minnesota corporation (hereinafter called the "Company"), for and on behalf of
each series of the Company for which this Agreement has been duly adopted (each,
a "Fund") -- including, as of the date hereof, Xxxxx U.S. Emerging Growth Fund
(represented by the Company's Series A Common Shares), Xxxxx Opportunity Fund
(represented by the Company's Series B Common Shares) and Xxxxx Twenty-Five Fund
(represented by the Company's Series C Common Shares).
WITNESSETH
WHEREAS, the Company and Xxxxx Associates, Inc. (the "Investment Adviser")
have entered into an Investment Advisory Agreement (the "Investment Agreement")
pursuant to which the Investment Adviser has agreed to act as investment adviser
for, and to manage the affairs, business and investment of the assets of each
Fund; and
WHEREAS, the Company desires to retain the Administrator to render certain
administrative services for the Company and each Fund in the manner and on the
terms and conditions hereafter set forth; and
WHEREAS, the Administrator desires to be retained to perform such services
on said terms and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, the Company and the Administrator agree as follows:
1. DUTIES OF THE ADMINISTRATOR. The Company hereby retains the
Administrator to act as administrator of the Company and each Fund, subject to
the supervision and direction of the Board of Directors of the Company, as
hereinafter set forth. The Administrator shall perform or arrange for the
performance of the following administrative and clerical services: (i) maintain
and keep certain books and records of the Company and each Fund; (ii) prepare or
review and, subject to approval by the Company, file certain reports and other
documents required by U.S. Federal, state (subject to and contingent upon the
Company's transfer agent providing sales and redemption data to the
Administrator via an automated data electronic feed system compatible with the
Administrator's system and acceptable to the Administrator) and other applicable
U.S. laws and regulations to maintain the Company's and each Fund's registration
as an open-end investment company and the registration of the Company's and each
Fund's shares; (iii) coordinate tax-related matters; (iv) respond to inquiries
from Fund shareholders; (v) calculate and publish, or arrange for the
calculation and publication of, the net asset value of each Fund's
shares; (vi) oversee, and, as the Board may reasonably request or deem
appropriate, make reports and recommendations to the Board on, the performance
of administrative and professional services rendered to the Company and each
Fund by others, including its custodian and any subcustodian, registrar,
transfer agent, dividend disbursing agent and dividend reinvestment plan agent,
as well as accounting, auditing and other services; (vii) provide the Company
with the services of persons competent to perform the foregoing administrative
and clerical functions; (viii) provide the Company with administrative offices
and data processing facilities; (ix) arrange for payment of the Company's and
each Fund's expenses; (x) consult with the Company's officers, independent
accountants, legal counsel, custodian and any sub-custodian, registrar, transfer
agent, and dividend disbursing agent and dividend reinvestment plan agent in
establishing the accounting policies of the Company; (xi) prepare such financial
information and reports as may be required by any banks from which the Company
borrows funds; and (xii) provide such assistance to the Investment Adviser, the
custodian and any sub-custodian, and the Company's counsel and auditors as
generally may be required to carry on properly the business and operations of
the Company and each Fund. The Company agrees to cause its transfer agent,
custodian and the Investment Adviser to deliver, on a timely basis, such
information to the Administrator as may be necessary or appropriate for the
Administrator's performance of its duties and responsibilities hereunder,
including but not limited to, daily records of transactions, daily valuation of
investments in local currency (which may be based on information provided by a
pricing service) as well as the daily conversion factor in order for the
Administrator to price each Fund in United States dollars, reports of expenses
borne by the Company and each Fund, the Company's management letter to
stockholders and such other information necessary for the Administrator to
prepare the above referenced reports and filings, and the Administrator shall be
entitled to rely on the accuracy and completeness of such information in
performing its duties hereunder.
2. EXPENSES OF THE ADMINISTRATOR. The Administrator assumes and shall
pay for maintaining the staff and personnel necessary to perform its obligations
under this Agreement, and shall at its own expense, provide office space,
facilities, equipment and necessary personnel which it is obligated to provide
under paragraph 1 hereof, except that the Company shall pay reasonable travel
expenses of persons who perform administrative, clerical and bookkeeping
functions on behalf of the Company. The Company and the Investment Adviser
assume and shall pay or cause to be paid all other expenses of the Company and
each Fund as set forth in the Investment Agreement. The expenses of legal
counsel and accounting experts retained by the Administrator, after consulting
with the Company's counsel and independent auditors, as may be necessary or
appropriate for the Administrator's performance of its duties and
responsibilities under this Agreement are deemed expenses of, and shall be paid
by, the Company.
3. COMPENSATION OF THE ADMINISTRATOR. For the services rendered to the
Company and each Fund by the Administrator pursuant to this Agreement, the
Company shall pay to the Administrator, on behalf of and with respect to each
Fund, on the first business day of each calendar month a fee for the previous
month at an annual rate equal to the greater of (i) $125,000 per annum for each
Fund ($10,416.66 per Fund per month), or (ii) 0.20% of each Fund's net assets up
to and including U.S. $600 million and 0.175% of each Fund's net assets in
excess of U.S. $600 million. For the purpose of determining fees payable to the
Administrator, the net assets of each Fund shall mean the value of the total
assets of the Fund, minus the sum of the
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accrued liabilities of the Fund exclusive of capital stock and surplus. The
value of each Fund's net assets shall be computed at the times and in the manner
specified in the Company's Registration Statement on Form N-1A, as amended from
time to time (the "Registration Statement"). Compensation by the Company of the
Administrator shall be pro-rated for any partial month of service, according to
the proportion that such period bears to the full monthly period and shall be
payable within seven (7) days after the end of the period to which such
compensation relates.
4. LIMITATION OF LIABILITY OF THE ADMINISTRATOR; INDEMNIFICATION.
(a) The Administrator shall not be liable to any person for any error
of judgment or mistake of law or for any loss arising out of any act or omission
by the Administrator in the performance of its duties hereunder; provided,
however, that nothing herein contained shall be construed to protect the
Administrator against any liability to the Company to which the Administrator
shall otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties, or by reckless disregard of its
obligations and duties hereunder.
(b) The Administrator may, with respect to questions of law, apply
for and obtain the advice or opinion of legal counsel and, with respect to the
application of generally accepted accounting principles or Federal tax
accounting principles, apply for and obtain the advice or opinion of accounting
experts. The Administrator shall be fully protected with respect to any action
taken or omitted by it in good faith in conformity with such advice or opinion.
(c) The Company agrees to indemnify and hold harmless the
Administrator from and against all charges, claims, expenses (including legal
fees) and liabilities reasonably incurred by the Administrator in connection
with the performance of its duties hereunder, except such as may arise from the
Administrator's willful misfeasance, bad faith, gross negligence in the
performance of its duties or by reckless disregard of its obligations and duties
hereunder. The Company shall make advance payments in connection with the
expenses of defending any action with respect to which indemnification might be
sought hereunder if the Company receives a written affirmation of the
Administrator's good faith belief that the standard of conduct necessary for
indemnification has been met and a written undertaking to reimburse the Company
unless it is subsequently determined that the Administrator is entitled to such
indemnification and if the Directors of the Company determine that the facts
then known to them would not preclude indemnification. In addition, at least
one of the following conditions must be met: (A) the Administrator shall
provide a security for this undertaking, (B) the Company shall be insured
against losses arising by reason of any lawful advances, or (C) a majority of a
quorum consisting of Directors of the Company who are neither "interested
persons" of the Company (as defined in Section 2(a) (19) of the 0000 Xxx) nor
parties to the proceeding ("Disinterested Non-Party Directors") or an
independent legal counsel in a written opinion, shall determine, based on a
review of readily available facts (as opposed to a full trial-type inquiry),
that there is reason to believe that the Administrator ultimately will be found
entitled to indemnification.
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(d) As used in this Paragraph 4, the term "Administrator" shall
include any affiliates of the Administrator performing services for the Company
contemplated hereby and directors, partners, officers, agents and employees of
the Administrator and such affiliates.
5. ACTIVITIES OF THE ADMINISTRATOR. The services of the Administrator
under this Agreement are not to be deemed exclusive, and the Administrator and
any person controlled by or under common control with the Administrator shall be
free to render similar services to others.
6. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
become effective as of the date first above written and shall remain in force
until terminated as provided herein. This Agreement may be terminated at any
time, without the payment of any penalty, by the Company on sixty days' written
notice to the Administrator and by the Administrator on ninety days' written
notice to the Company. This Agreement shall automatically terminate in the
event of its assignment.
7. AMENDMENTS OF THIS AGREEMENT. This Agreement may be amended by the
parties hereto only if such amendment is specifically approved by the Board of
Directors of the Company and such amendment is set forth in a written instrument
executed by each of the parties hereto.
8. GOVERNING LAW. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of New York as at the
time in effect and the applicable provisions of the 1940 Act. To the extent
that the applicable law of the State of New York, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control.
9. COUNTERPARTS. This Agreement may be executed by the parties hereto in
counterparts and if executed in more than one counterpart, the separate
instruments shall constitute one agreement.
10. NOTICES. Any notice under this Agreement, shall be in writing and
shall be deemed to be received on the earlier of the date actually received or
on the fourth day after the postmark if such notice is mailed first class
postage prepaid. Notice shall be addressed:
(a) if to the Administrator, to: President, Princeton
Administrators, L.P., X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000; or (b) if
to the Fund, to: Chairman, Xxxxx Funds, Inc., 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Agreement as of the day and year first above written.
XXXXX FUNDS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc., General Partner
By: /s/ Xxxxxxx X.X. Xxxxxx
------------------------------------
Name: Xxxxxxx X.X. Xxxxxx
Title: Senior Vice President
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ADDENDUM TO THE
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
This Addendum to the Amended and Restated Administration Agreement dated
as of December 28, 1998 (the "Administration Agreement") by and between
Princeton Administrators, L.P., a Delaware limited partnership (hereinafter
called the "Administrator"), and Xxxxx Funds, Inc., a Minnesota corporation
(hereinafter called the "Company"), for and on behalf of each series of the
Company for which the Agreement and this Addendum has been duly adopted
(each, a "Fund") --including, as of the date hereof, Xxxxx U.S. Emerging
Growth Fund (represented by the Company's Series A Common Shares), Xxxxx
Opportunity Fund (represented by the Company's Series B Common Shares) and
Xxxxx Twenty-Five Fund (represented by the Company's Series C Common Shares)
-- modifies Section 3 of the Administration Agreement for the period January
1, 1999 through June 30, 1999 or for such shorter period if the
Administration Agreement is earlier terminated in accordance with its terms
(the "Period"), to read in its entirety as follows:
3. COMPENSATION OF THE ADMINISTRATOR. For the services rendered to
the Company and each Fund by the Administrator pursuant to this Agreement,
the Company shall pay to the Administrator, on behalf of and with respect
to each Fund, on the first business day of each calendar month a fee for
the previous month at an annual rate equal to the greater of (i) $40,000
per annum for each Fund, or (ii) 0.20% of each Fund's net assets up to
and including U.S. $600 million and 0.175% of each Fund's net assets in
excess of U.S. $600 million. For the purpose of determining fees payable
to the Administrator, the net assets of each Fund shall mean the value
of the total assets of the Fund, minus the sum of the accrued liabilities
of the Fund exclusive of capital stock and surplus. The value of each
Fund's net assets shall be computed at the times and in the manner
specified in the Company's Registration Statement on Form N-1A, as
amended from time to time (the "Registration Statement"). Compensation
by the Company of the Administrator shall be pro-rated for any partial
month of service, according to the proportion that such period bears to the
full monthly period and shall be payable within seven (7) days after the
end of the period to which such compensation relates.
Following the termination of the Period, this Addendum shall cease to be of
force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of
the 28th day of December, 1998.
XXXXX FUNDS, INC.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc., General Partner
By: /s/ Xxxxxxx X.X. Xxxxxx
------------------------------------
Name: Xxxxxxx X.X. Xxxxxx
Title: Senior Vice President
