EXHIBIT h(i)
FUND ADMINISTRATION AND ACCOUNTING AGREEMENT
AGREEMENT made as of September 29, 2000, by and between each entity
listed on Exhibit A hereto (each, a "Fund"; collectively, the "Funds"), and
The Bank of New York, a New York banking organization ("BNY").
W I T N E S S E T H:
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WHEREAS, each Fund is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, each Fund desires to retain BNY to provide for the portfolios
identified on Exhibit A hereto (each, a "Series") the services described herein,
and BNY is willing to provide such services, all as more fully set forth below;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. APPOINTMENT.
Each Fund hereby appoints BNY as its agent for the term of this
Agreement to perform the services described herein. BNY hereby accepts such
appointment and agrees to perform the duties hereinafter set forth.
2. REPRESENTATIONS AND WARRANTIES.
Each Fund hereby represents and warrants to BNY, which representations
and warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and delivered
by the Fund in accordance with all requisite action and constitutes a valid
and legally binding obligation
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of the Fund, enforceable in accordance with its terms;
(c) It is conducting its business in compliance with all applicable
laws and regulations, both state and federal, and has obtained all regulatory
licenses, approvals and consents necessary to carry on its business as now
conducted; there is no statute, regulation, rule, order or judgment binding
on it and no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or affecting its
property which would prohibit its execution or performance of this Agreement;
and
(d) To the extent the performance of any services described in
Schedule II attached hereto by BNY in accordance with the then effective
Prospectus (as hereinafter defined) for the Fund would violate any laws or
regulations applicable to the Fund, the Fund shall immediately so notify BNY
in writing and thereafter shall either furnish BNY with the appropriate
values of securities, net asset value or other computation, as the case may
be, or, subject to the prior approval of BNY, instruct BNY in writing to
value securities and/or compute net asset value or other computations in a
manner the Fund specifies in writing, and either the furnishing of such
values or the giving of such instructions shall constitute a representation
by the Fund that the same is consistent with all applicable laws and
regulations and with its Prospectus.
3. DELIVERY OF DOCUMENTS.
(a) Each Fund will promptly deliver to BNY true and correct copies of
each of the following documents as currently in effect and will promptly
deliver to it all future amendments and supplements thereto, if any:
(i) The Fund's articles of incorporation or other organizational
document and all amendments thereto (the "Charter");
(ii) The Fund's bylaws (the "Bylaws");
(iii) Resolutions of the Fund's board of directors or other
governing body (the "Board") authorizing the execution, delivery and
performance of this Agreement by the Fund;
(iv) The Fund's registration statement most recently filed
with the Securities and Exchange Commission (the "SEC") relating to the
shares of the Fund (the "Registration
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Statement");
(v) The Fund's Notification of Registration under the 1940
Act on Form N-8A filed with the SEC; and
(vi) The Fund's Private Placement Memorandum and Statement of
Additional Information pertaining to the Series (the "Prospectus").
(b) Each copy of the Charter shall be certified by the
Secretary of State (or other appropriate official) of the state of
organization, and if the Charter is required by law also to be filed with a
county or other officer or official body, a date-stamped copy of such filing
shall be submitted to BNY. Each copy of the Bylaws, Registration Statement
and Prospectus, and all amendments thereto, and copies of Board resolutions,
shall be certified by the Secretary or an Assistant Secretary of the
appropriate Fund.
(c) It shall be the sole responsibility of each Fund to
deliver to BNY its currently effective Prospectus and BNY shall not be deemed
to have notice of any information contained in such Prospectus until it is
actually received by BNY.
4. DUTIES AND OBLIGATIONS OF BNY.
(a) Subject to the direction and control of each Fund's Board
and the provisions of this Agreement, BNY shall provide to each Fund (i) the
administrative services set forth on Schedule I attached hereto and (ii) the
valuation and computation services listed on Schedule II attached hereto.
(b) In performing hereunder, BNY shall provide, at its expense,
office space, facilities, equipment and personnel.
(c) BNY shall not provide any services relating to the management,
investment advisory or sub-advisory functions of any Fund, distribution of
shares of any Fund, maintenance of any Fund's financial records or other
services normally performed by the Funds' respective counsel or independent
auditors.
(d) Upon receipt of a Fund's prior written consent (which shall
not be unreasonably withheld), BNY may delegate any of its duties and
obligations hereunder to any delegee or agent whenever and on such terms and
conditions as it deems necessary or
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appropriate. Notwithstanding the foregoing, no Fund consent shall be required
for any such delegation to any other subsidiary of The Bank of New York
Company, Inc. BNY shall not be liable to any Fund for any loss or damage
arising out of, or in connection with, the actions or omissions to act of any
delegee or agent utilized hereunder so long as BNY acts in good faith and
without negligence or wilful misconduct in the selection of such delegee or
agent.
(e) Each Fund shall cause its officers, advisors, sponsor,
distributor, legal counsel, independent accountants, and transfer agent to
cooperate with BNY and to provide BNY, upon written request, with such
information, documents and advice relating to such Fund as is within the
possession or knowledge of such persons, in order to enable BNY to perform
its duties hereunder. In connection with its duties hereunder, BNY shall be
entitled to rely, and shall be held harmless by each Fund when acting in
reliance, upon the instructions, advice or any documents relating to such
Fund provided to BNY by any of the aforementioned persons, provided that
BNY's actions in reliance on the foregoing are performed without violating
BNY's standard of care. BNY shall not be liable for any loss, damage or
expense resulting from or arising out of the failure of the Fund to cause any
information, documents or advice to be provided to BNY as provided herein.
All fees or costs charged by such persons shall be borne by the appropriate
Fund.
(f) Nothing in this Agreement shall limit or restrict BNY, any
affiliate of BNY or any officer or employee thereof from acting for or with
any third parties, and providing services similar or identical to same or all
of the services provided hereunder.
(g) Each Fund shall furnish BNY with any and all instructions,
explanations, information, specifications and documentation reasonably deemed
necessary by BNY in the performance of its duties hereunder, including,
without limitation, the amounts or written formula for calculating the
amounts and times of accrual of Fund liabilities and expenses. BNY shall not
be required to include as Fund liabilities and expenses, nor as a reduction
of net asset value, any accrual for any federal, state, or foreign income
taxes unless the Fund shall have specified to BNY the precise amount of the
same to be included in liabilities and expenses or used to reduce net asset
value. Each Fund shall also furnish BNY with market values (or fair values
calculated pursuant to procedures adopted by the Fund) of Securities if BNY
notifies such
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Fund that same are not available to BNY from a security pricing
or similar service utilized, or subscribed to, by BNY which BNY in its
judgment deems reliable at the time such information is required for
calculations hereunder. At any time and from time to time, the Fund also may
furnish BNY with bid, offer, or market values (or fair values calculated
pursuant to procedures adopted by the Fund) of Securities and instruct BNY to
use such information in its calculations hereunder. BNY shall at no time be
required or obligated to commence or maintain any utilization of, or
subscriptions to, any securities pricing or similar service.
(h) BNY may apply to an officer of any Fund for written
instructions with respect to any matter arising in connection with BNY's
performance hereunder for such Fund, and BNY shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with
such instructions. Such application for instructions may, at the option of
BNY, set forth in writing any action proposed to be taken or omitted to be
taken by BNY with respect to its duties or obligations under this Agreement
and the date on and/or after which such action shall be taken, but BNY shall
not take or omit to take any such action until it receives instructions,
unless BNY reasonably believes the failure to act prior to such date could
expose BNY to liability, and BNY shall not be liable for any action taken or
omitted to be taken in accordance with a proposal included in any such
application on or after the date on which it reasonably believes it could be
exposed to liability unless, prior to taking or omitting to take any such
action, BNY has received written instructions in response to such application
specifying the action to be taken or omitted.
(i) BNY may consult with counsel to the appropriate Fund, at
the Fund's expense, or its own counsel, at its own expense, and shall be
fully protected with respect to anything done or omitted by it in good faith
in accordance with the advice or opinion of such counsel, provided that if
BNY seeks advice of counsel and intends to rely thereon, it will where
circumstances permit notify the Fund of such reliance. BNY may, with respect
to questions of law specifically regarding an Account, obtain the advice of
counsel and shall be fully protected with respect to anything done or omitted
by it in good faith in conformity with such advice, provided that BNY shall
not be so protected unless the Fund shall have received prior notice from BNY
of the substance of the advice of counsel and BNY's intent to rely thereon,
such notice to be provided to the Fund as far in advance of such reliance as
is reasonably possible. In the
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event BNY does not provide such prior notice, BNY shall not be liable unless
acting in accordance with such advice constitutes the BNY's own gross
negligence or willful misconduct.
(j) Notwithstanding any other provision contained in this
Agreement or Schedule I or II attached hereto, BNY shall have no duty or
obligation to determine, or advise or notify any Fund of: (i) the taxable
nature of any distribution or amount received or deemed received by, or
payable to, a Fund, (ii) the taxable nature or effect on a Fund or its
shareholders of any corporate actions, class actions, tax reclaims, tax
refunds or similar events, (iii) the taxable nature or taxable amount of any
distribution or dividend paid, payable or deemed paid, by a Fund to it
shareholders; or (iv) the effect under any federal, state, or foreign income
tax laws of a Fund making or not making any distribution or dividend payment,
or any election with respect thereto.
(k) BNY shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement and Schedules I and II attached hereto, and no covenant or
obligation shall be implied against BNY in connection with this Agreement.
(l) The Bank, in performing the services required of it under
the terms of this Agreement, shall be entitled to rely fully on the accuracy
and validity of any and all instructions, explanations, information,
specifications and documentation furnished to it in writing by a Fund and
shall have no duty or obligation to review the accuracy, validity or
propriety of such instructions, explanations, information, specifications or
documentation, including, without limitation, evaluations of securities; the
amounts or formula for calculating the amounts and times of accrual of
Series' liabilities and expenses; the amounts receivable and the amounts
payable on the sale or purchase of Securities; and amounts receivable or
amounts payable for the sale or redemption of Fund shares effected by or on
behalf of a Fund. In the event BNY's computations hereunder rely, in whole or
in part, upon information, including, without limitation, bid, offer or
market values of securities or other assets, or accruals of interest or
earnings thereon, from a pricing or similar service utilized, or subscribed
to, by BNY which BNY in its reasonable judgment deems reliable, BNY shall not
be responsible for, under any duty to inquire into, or deemed to make any
assurances with respect to, the accuracy or completeness of such information.
Without limiting the generality of the foregoing, BNY shall not be required to
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inquire into any valuation of securities or other assets by a Fund or any
third party described in this (l) even though BNY in performing services
similar to the services provided pursuant to this Agreement for others may
receive different valuations of the same or different securities of the same
issuers.
(m) BNY, in performing the services required of it under the
terms of this Agreement, shall not be responsible for determining whether any
interest accruable to a Fund is or will be actually paid, but will accrue
such interest until otherwise instructed by such Fund.
(n) BNY shall not be responsible for delays or errors which
occur by reason of circumstances beyond its control in the performance of its
duties under this Agreement, including, without limitation, labor
difficulties outside the Bank, mechanical breakdowns, flood or catastrophe,
acts of God, failures of transportation, interruptions, loss, or malfunctions
of utilities, communications or computer (hardware or software) services
beyond BNY's reasonable control. Nor shall BNY be responsible for delays or
failures to supply the information or services specified in this Agreement
where such delays or failures are caused by the failure of any person(s)
other than BNY to supply any instructions, explanations, information,
specifications or documentation deemed necessary by BNY in the performance of
its duties under this Agreement.
5. ALLOCATION OF EXPENSES.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the appropriate Fund, including but not limited to, organizational costs and
costs of maintaining corporate existence, taxes, interest, brokerage fees and
commissions, insurance premiums, compensation and expenses of such Fund's
trustees, directors, officers or employees, legal, accounting and audit
expenses, management, advisory, sub-advisory, administration and shareholder
servicing fees, charges of custodians, transfer and dividend disbursing agents,
expenses (including clerical expenses) incident to the issuance, redemption or
repurchase of Fund shares, fees and expenses incident to the registration or
qualification under federal or state securities laws of the Fund or its shares,
costs (including printing and mailing costs) of preparing and distributing
Prospectuses, reports, notices and proxy material to such Fund's shareholders,
all expenses incidental to
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holding meetings of such Fund's trustees, directors and shareholders, and
extraordinary expenses as may arise, including litigation affecting such Fund
and legal obligations relating thereto for which the Fund may have to
indemnify its trustees, directors and officers.
6. STANDARD OF CARE; INDEMNIFICATION.
(a) Except as otherwise provided herein, BNY shall not be
liable for any costs, expenses, damages, liabilities or claims (including
attorneys' and accountants' fees) incurred by a Fund, except those costs,
expenses, damages, liabilities or claims arising out of BNY's own gross
negligence or wilful misconduct. In no event shall BNY be liable to any Fund
or any third party for special, indirect or consequential damages, or lost
profits or loss of business, arising under or in connection with this
Agreement, even if previously informed of the possibility of such damages and
regardless of the form of action. BNY shall not be liable for any loss,
damage or expense, including counsel fees and other costs and expenses of a
defense against any claim or liability, resulting from, arising out of, or in
connection with its performance hereunder, including its actions or
omissions, the incompleteness or inaccuracy of any specifications or other
information furnished by the Fund, or for delays caused by circumstances
beyond the Bank's control, unless such loss, damage or expense arises out of
the gross negligence or willful misconduct of the Bank.
(b) Each Fund shall indemnify and hold harmless BNY from and
against any and all costs, expenses, damages, liabilities and claims
(including claims asserted by a Fund), and reasonable attorneys' and
accountants' fees relating thereto, which are sustained or incurred or which
may be asserted against BNY, by reason of or as a result of any action taken
or omitted to be taken by BNY in good faith hereunder or in reliance upon (i)
any law, act, regulation or proper interpretation of the same even though the
same may thereafter have been altered, changed, amended or repealed, (ii)
such Fund's Registration Statement or Prospectus, (iii) any instructions of
an officer of such Fund, or (iv) any opinion of legal counsel for such Fund
or BNY, or arising out of transactions or other activities of such Fund which
occurred prior to the commencement of this Agreement; PROVIDED, that no Fund
shall indemnify BNY for costs, expenses, damages, liabilities or claims for
which BNY is liable under preceding 6(a). This indemnity shall be a
continuing obligation of each Fund, its successors and assigns,
notwithstanding the termination
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of this Agreement. Without limiting the generality of the foregoing (and
subject to the proviso at the end of the first sentence of in this Section
6(b)), each Fund shall indemnify BNY against and save BNY harmless from any
loss, damage or expense, including counsel fees and other costs and expenses
of a defense against any claim or liability, arising from any one or more of
the following:
(i) Errors in records or instructions, explanations, information,
specifications or documentation of any kind, as the case may be, supplied to
the Bank by any third party described above or by or on behalf of a Fund;
(ii) Action or inaction taken or omitted to be taken by BNY pursuant
to written or oral instructions of the Fund or otherwise without gross
negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by BNY in good faith in
accordance with the advice or opinion of counsel for a Fund or its own
counsel;
(iv) Any use in violation of applicable laws by a Fund or its agents,
distributor or investment advisor of any valuations or computations supplied by
BNY pursuant to this Agreement;
(v) The method of valuation of the securities and the method of
computing each Series' net asset value; or
(vi) Any valuations of securities or net asset value provided by a
Fund.
(c) Actions taken or omitted in reliance on oral or written
instructions, or upon any information, order, indenture, stock certificate,
power of attorney, assignment, affidavit or other instrument reasonably
believed by BNY to be genuine or bearing the signature of a person or persons
reasonably believed to be authorized to sign, countersign or execute the
same, or upon the opinion of legal counsel for a Fund or its own counsel,
shall be conclusively presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this
Agreement, BNY shall have no duty or obligation with respect to, including,
without limitation, any duty or obligation to determine, or advise or notify
the Fund of: (a) the taxable nature of any distribution
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or amount received or deemed received by, or payable to, a Fund; (b) the
taxable nature or effect on a Fund or its shareholders of any corporate
actions, class actions, tax reclaims, tax refunds, or similar events; (c) the
taxable nature or taxable amount of any distribution or dividend paid,
payable or deemed paid, by a Fund to its shareholders; or (d) the effect
under any federal, state, or foreign income tax laws of the Fund making or
not making any distribution or dividend payment, or any election with respect
thereto.
7. COMPENSATION.
For the services provided hereunder, each Fund agrees to pay BNY such
compensation as is mutually agreed from time to time and such reasonable
out-of-pocket expenses (E.G., telecommunication charges, postage and delivery
charges, record retention costs, reproduction charges and transportation and
lodging costs) as are incurred by BNY in performing its duties hereunder. Except
as hereinafter set forth, compensation shall be calculated and accrued daily and
paid monthly in arrears. Each Fund authorizes BNY to debit such Fund's custody
account for all amounts due and payable hereunder. BNY shall deliver to each
Fund invoices for services rendered promptly after debiting such Fund's custody
account with an indication that payment has been made. Upon termination of this
Agreement before the end of any month, the compensation for such part of a month
shall be prorated according to the proportion which such period bears to the
full monthly period and shall be payable upon the effective date of termination
of this Agreement. For the purpose of determining compensation payable to BNY,
each Fund's net asset value shall be computed at the times and in the manner
specified in the Fund's Prospectus.
8. TERM OF AGREEMENT.
(a) This Agreement shall continue until terminated by either BNY
giving to a Fund, or a Fund giving to BNY, a notice in writing specifying the
date of such termination, which date shall be not less than 90 days after the
date of the giving of such notice. Upon termination hereof, the affected
Fund(s) shall pay to BNY such compensation as may be due as of the date of
such termination, and shall reimburse BNY for any disbursements and expenses
made or incurred by BNY and payable or reimbursable hereunder.
(b) Notwithstanding the foregoing, BNY may terminate this Agreement
upon
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30 days prior written notice to a Fund if such Fund shall terminate
either its custody agreement or fund accounting agreement with The Bank of
New York, or fail to perform its obligations hereunder in a material respect.
9. AUTHORIZED PERSONS.
Attached hereto as Exhibit B is a list of persons duly authorized by
the board of each Fund to execute this Agreement and give any written or oral
instructions, or written or oral specifications, by or on behalf of such Fund.
From time to time each Fund may deliver a new Exhibit B to add or delete any
person and BNY shall be entitled to rely on the last Exhibit B actually received
by BNY.
10. AMENDMENT.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by BNY and the Fund to be bound thereby, and
authorized or approved by such Fund's Board.
11. ASSIGNMENT.
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by any Fund without the written consent
of BNY, or by BNY without the written consent of the affected Fund accompanied
by the authorization or approval of such Fund's Board.
12. GOVERNING LAW; CONSENT TO JURISDICTION.
This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflict of laws principles thereof. Each
Fund hereby consents to the jurisdiction of a state or federal court situated in
New York City, New York in connection with any dispute arising hereunder, and
waives to the fullest extent permitted by law its right to a trial by jury. To
the extent that in any jurisdiction any Fund may now or hereafter be entitled to
claim, for itself or its assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process, such Fund irrevocably agrees
not to claim, and it hereby waives, such immunity.
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13. SEVERABILITY.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
14. NO WAIVER.
Each and every right granted to BNY or the Fund hereunder or under any
other document delivered hereunder or in connection herewith, or after giving
effect to the provisions of this Agreement allowed it by law or equity, shall be
cumulative and may be exercised from time to time. No failure on the part of BNY
or the Fund to exercise, and no delay in exercising, any right will operate as a
waiver thereof, nor will any single or partial exercise by BNY or the Fund of
any right preclude any other or future exercise thereof or the exercise of any
other right.
15. NOTICES.
All notices, requests, consents and other communications pursuant to
this Agreement in writing shall be sent as follows:
if to a Fund, at
0 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx XX0 0XX
Attention: Xxxx Xxxxxxxx
if to BNY, at
The Bank of New York
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxx
Title: Vice President
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
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16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
17. SEVERAL OBLIGATIONS.
The parties acknowledge that the obligations of the Funds hereunder are
several and not joint, that no Fund shall be liable for any amount owing by
another Fund and that the Funds have executed one instrument for convenience
only.
18. TRUSTEES, OFFICERS AND SHAREHOLDERS.
A copy of the Agreement and Declaration of Trust establishing the Trust
is on file with the Secretary of State of The Commonwealth of Massachusetts, and
notice is hereby given that this Agreement is executed on behalf of the Trust by
officers of the Trust as officers and not individually and that the obligations
of or arising out of this Agreement are not binding upon any of the Trustees,
officers or shareholders of any Fund individually but are binding only upon the
assets and property belonging to the Funds.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument to
be executed by their duly authorized officers and their seals to be hereunto
affixed, all as of the day and year first above written.
By: /s/ XXXXX XXXXXXX
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on behalf of each Fund
identified on Exhibit A
attached hereto
R. Xxxxx Xxxxxxx
President
THE BANK OF NEW YORK
By: /s/ XXXXXX X. XXXXXX
_______________________
Title: Vice President
EXHIBIT A
The Emerging Markets Fund
The International Equity Fund
The EAFE Fund
EXHIBIT B
I, Xxxxx Xxxxxx, of Xxxxxxx Xxxxxxx Funds, a Massachusetts business
trust (the "Fund"), do hereby certify that:
The following individuals serve in the following positions with the
Fund, and each has been duly elected or appointed by the Board of Trustees of
the Fund to each such position and qualified therefor in conformity with the
Fund's Agreement and Declaration of Trust and By-Laws, and the signatures set
forth opposite their respective names are their true and correct signatures.
Each such person is authorized to give written or oral instructions or written
or oral specifications by or on behalf of the Fund to the Bank.
Name Position Signature
-------------- -------------- -------------------
Xxxxx Xxxxxxx President /s/ Xxxxx Xxxxxxx
Xxxx X. Xxxxx Trustee /s/ Xxxx X. Xxxxx
Xxxx X. Xxxxxx, Xx. Trustee /s/ Xxxx X. Xxxxxx, Xx.
Xxxxxx Xxxxxxxx Vice President /s/ Xxxxxx Xxxxxxxx
Xxxx Xxxxxxxx Vice President /s/ Xxxx Xxxxxxxx
Xxxxx Xxxxxxxxx Secretary /s/ Xxxxx Xxxxxxxxx
