Xxxxxx Xxxx Global Income Fund
Co-Administration Agreement
Gentlemen or Madams:
Xxxxxx Xxxx Investment Funds, a business trust organized under the law
of The Commonwealth of Massachusetts ("we" or the "Trust") hereby invite Bank
Xxxxxx Xxxx & Co., Ltd., New York branch ("you"), on behalf of Xxxxxx Xxxx
Global Income Fund (the "Fund") and subject to the terms and conditions set
forth below, to enter into this Co-Administration Agreement (the "Agreement") to
serve as the administrative and shareholder servicing agent of the shareholders
of the Fund ("Shareholders") for purposes of performing certain administrative
and shareholder servicing functions in connection with purchases and redemptions
of Class A shares of beneficial interest of the Fund ("Shares"), from time to
time upon the order and for the account of Shareholders, and to provide related
services to Shareholders in connection with their investments in the Fund.
1. Appointment. You hereby agree to perform certain services for
Shareholders as hereinafter set forth. Your appointment hereunder is
non-exclusive, and the parties recognize and agree that, from time to time, the
Fund may enter into other shareholder servicing agreements with other parties.
2. Services to be Performed as Administrative Agent for Class A Shares.
Subject to the supervision and direction of the Board of Trustees of the Trust,
you undertake to perform the following administrative and shareholder services
to the extent that no other party is obligated to perform them on behalf of the
Fund and shareholders: (i) maintain shareholder accounts which shall include
name, address, taxpayer identification number, and number of shares; (ii)
prepare shareholder statements; (iii) prepare confirmations; (iv) prepare
shareholder lists when reasonably requested by us; (v) mail shareholder
communications, including, but not limited to, shareholder statements,
confirmations, prospectuses, statements of additional information, annual and
semi-annual reports and proxy statements (collectively, "Shareholder
Communications"); (iv) tabulate proxies; (vii) disburse dividends and other
distributions; (viii) withhold taxes on U.S. resident and non-resident accounts
where aplicable; (ix) prepare and file U.S. Treasury Department Forms 1099 and
other appropriate forms required by applicable statutes, rules and regulations
resulting from your role hereunder; (x) furnish to the Board of Trustees
quarterly written reports which set out the amounts expended under the
Distribution and Shareholder Services Plans and the purposes for which those
expenditures were made; and (xi) provide such other similar services directly to
accounts as we may reasonably request to the extent you are permitted to do so
under applicable statutes, rules and regulations. You shall provide all
personnel and facilities necessary in order for you to perform one or more of
the functions described in this paragraph with respect to your Shareholders.
In performing all services under this Agreement, you shall act in
conformity with applicable law, the Trust's Master Trust Agreement and By-Laws,
and all amendments thereto, and the Trust's Registration Statement, as amended
from time to time.
3. Fees.
3.1. Fees from the Fund. In consideration for the services
described in section 2 hereof and the incurring of expenses in connection
therewith, the Fund shall pay you a fee at an annual rate of up to 0.15% of the
average daily net asset value of all Shares owned by or for all Shareholders
with whom you maintain a servicing relationship, such fee to be paid in arrears
at the end of each calendar quarter.
3.2. Fees from Shareholders. It is agreed that you may impose
certain conditions on Shareholders, in addition to or different from those
imposed by the Fund, such as requiring a minimum initial investment or charging
Shareholders direct fees for the same or similar services as are provided
hereunder by you. These fees may either relate specifically to your services
with respect to the Fund or generally cover services not limited to those with
respect to the Fund. You shall xxxx Shareholders directly for such fees. In the
event you charge Shareholders such fees, you shall make appropriate prior
written disclosure, in accordance with all applicable laws, to Shareholders both
of any direct fees charged to the Shareholder and of the fees received or to be
received by you from the Fund pursuant to section 3.1 of this Agreement. It is
understood, however, that in no event shall you have recourse or access to the
account of any shareholder of the Fund except to the extent expressly authorized
by law or by the Fund or by such shareholder for payment of any direct fees
referred to in this section 3.2.
4. Capacity and Authority to Act. You and your officers, employees and
agents are not authorized to make any representations concerning the Fund or the
Shares to Shareholders or prospective Shareholders, excepting only accurate
communication of factual information contained in the then-current prospectus
and statement of additional information or such other communications as may be
expressly authorized by the Fund. In performing your services under this
Agreement, you shall act as agent for the Shareholder and shall have no
authority to act as agent for the Fund. Upon request by the Fund, you shall
provide the Fund with copies of any materials which are generally circulated by
you to your Shareholders or prospective Shareholders.
5. Use of the Agent's Name. The Fund shall not use your name in any
prospectus, sales literature or other material relating to the Fund in a manner
not approved by you prior thereto in writing; provided, however, that your
approval shall not be required for any use of its name which merely refers
accurately to your appointment hereunder or which is required by any appropriate
regulatory, governmental or judicial authority; and provided, further, that in
no event shall such approval be unreasonably withheld or delayed.
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6. Use of the Fund's Name. You shall not use the name of the Fund
(other than for internal use in connection with performing its duties under this
agreement) in a manner not approved by the Fund prior thereto in writing;
provided, however, that the approval of the Fund shall not be required for the
use of the Fund's name in connection with communications permitted by section 4
hereof or for any use of the Fund's name which merely refers accurately to your
role hereunder or which is required by any appropriate regulatory, governmental
or judicial authority; and provided, further, that in no event shall such
approval be unreasonably withheld or delayed.
7. Security. You represent and warrant that, to the best of your
knowledge, the various procedures and systems which you have implemented
(including provision for twenty-four hours a day restricted access) with regard
to safeguarding from loss or damage attributable to fire, theft or any other
cause the Fund's records and other data and your records, data, equipment,
facilities and other property used in the performance of your obligations
hereunder are adequate and that you will make such changes therein from time to
time as in its judgment are required for the secure performance of your
obligations hereunder. The parties shall review such systems and procedures on a
periodic basis, and the Fund may from time to time specify the types of records
and other data of the Fund to be safeguarded in accordance with this section 7.
8. Compliance with Laws; Etc. You shall comply with all applicable
federal and state laws and regulations, including securities laws. You hereby
agree to maintain all records required by law relating to transactions on the
Shares, and upon our request, or of the Fund, promptly make such of these
records available to us or the Fund's administrator as are requested. In
addition, you hereby agree to establish appropriate procedures and reporting
forms and/or mechanisms and schedules in conjunction with us and the Fund's
administrator, to enable the Fund to identify the location, type of, and sales
to all accounts opened and maintained by your Shareholders or by you on behalf
of your Shareholders. You represent and warrant to the Fund that the performance
of all its obligations hereunder will comply with all applicable laws and
regulations, the provisions of your charter documents and by-laws and all
material contractual obligations binding upon you. You furthermore undertakes
that you will promptly inform the Fund of any change in applicable laws or
regulations (or interpretations thereof) or in your charter or by-laws or
material contracts which would prevent or impair full performance of any of your
obligations hereunder.
9. Reports. To the extent requested by the Fund from time to time, you
agree that you will provide the Fund with a written report of the amounts
expended by you pursuant to this Agreement and the purposes for which such
expenditures were made. Such written reports shall be in a form satisfactory to
the Fund and shall supply all information necessary for the Fund to discharge
its responsibilities under applicable laws and regulations.
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10. Record Keeping.
10.1. Section 31(a), Etc. You shall maintain records in a form
acceptable to the Fund and in compliance with applicable laws. Such records
shall be deemed to be the property of the Fund and will be made available, at
the Fund's reasonable request, for inspection and use by the Fund,
representatives of the Fund and governmental authorities.
10.2. Transfer of Shareholder Data. In the event this
Agreement is terminated or a successor to you are appointed, you shall, at the
expense of the Fund, transfer to such designee as the Fund may direct a
certified list of the shareholders of the Fund serviced by you (with name,
address and Social Security number), a complete record of the account of each
such shareholder and the status thereof, and all other relevant books, records,
correspondence and other data established or maintained by you under this
Agreement. In the event this Agreement is terminated, you will use your best
efforts to cooperate in the orderly transfer of such duties and
responsibilities, including assistance in the establishment of books, records
and other data by the successor.
10.3. Survival of Record-Keeping Obligations. The
record-keeping obligations imposed in this section 10 shall survive the
termination of this Agreement.
11. Force Majeure. You shall not be liable or responsible for delays or
errors by reason of circumstances beyond its control, including, but not limited
to, acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdown, flood or catastrophe, Acts of God,
insurrection, war, riots or failure of communication or power supply.
12. Indemnification.
12.1. Indemnification of the Agent. The Fund shall indemnify
and hold you harmless from and against any and all losses, claims, damages,
liabilities and expenses incurred by you and resulting from any claim, demand,
action or suit (collectively, "Claims") brought against you and arising out of
or in connection with the performance of your obligations hereunder, other than
any Claim resulting from (i) the bad faith or negligence of you, your officers,
employees or agents, or (ii) any breach of your obligation under this Agreement
or applicable law by you, your officers, employees or agents, or (iii) any false
or misleading statement contained in any communication by you to any Shareholder
or prospective Shareholder not prepared by or expressly authorized by the Fund
for your use.
In any case in which the Fund may be asked to indemnify or hold you
harmless, the Fund shall be advised of all pertinent facts concerning the
situation in question and you shall use reasonable care to identify and notify
the Fund promptly concerning any situation which presents or appears likely to
present a claim for indemnification against the Fund. The Fund shall have the
option to defend you against any Claim which may be the subject of
indemnification hereunder. In the event that the Fund elects to defend against
such claim the defense shall be conducted by counsel chosen by the Fund and
satisfactory to you. You may
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retain additional counsel at its expense. Except with the prior written consent
of the Fund, you shall not confess any Claim or make any compromise in any case
in which the Fund will be asked to indemnify you.
12.2. Indemnification of the Fund. You shall indemnify and
hold the Fund harmless from and against any and all losses, claims, damages,
liabilities and expenses incurred by the Fund and resulting from any Claim
brought against the Fund and resulting from (i) the bad faith or negligence of
you, your officers, employees or agents, or (ii) any breach of your obligations
under this Agreement or applicable law by you, your officers, employees or
agents, or (iii) any false or misleading statement contained in any
communication by you to any Shareholder or prospective Shareholder not prepared
by or expressly authorized by the Fund for your use.
In any case in which you may be asked to indemnify or hold the Fund
harmless, you shall be advised of all pertinent facts concerning the situation
in question and the Fund shall use reasonable care to identify and notify you
promptly concerning any situation which presents or appears likely to present a
claim for indemnification against you. You shall have the option to defend the
Fund against any Claim which may be the subject of indemnification hereunder. In
the event that you elect to defend against such Claim, the defense shall be
conducted by counsel chosen by you and satisfactory to the Fund. The Fund may
retain additional counsel at its expense. Except with the prior written consent
of the agent, the Fund shall not confess any Claim or make any compromise in any
case in which you will be asked to indemnify the Fund.
12.3. Survival of Indemnities. The indemnities granted by the
parties in this section 12 shall survive the termination of this Agreement.
13. Insurance. You shall maintain reasonable insurance coverage against
any and all liabilities which may arise in connection with the performance of
its duties hereunder. You shall provide information with respect to the extent
of such coverage upon our request.
14. Notices. All notices or other communications hereunder to either
party shall be in writing and shall be deemed sufficient if mailed to such party
at the address of such party set forth in this Agreement or at such other
address as such party may have designated by written notice to the other.
15. Further Assurances. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
16. Termination. This Agreement may be terminated by the Fund, without
the payment of any penalty, at any time upon not more than 60 days' nor less
than 30 days' notice to you, by a vote of a majority of the Board of Directors
of the Fund who have no direct or indirect financial interest in the operation
of the Fund's Shareholder Servicing Plan (the "Plan"), this Agreement or any
other agreement related to such Plan, or by a vote of a "majority" (as defined
in the Investment Company Act of 1940) of the outstanding voting
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securities of the Fund. You may terminate this Agreement upon not more than 60
days' nor less than 30 days' notice to the Fund. Notwithstanding anything herein
to the contrary, this Agreement may not be assigned and shall terminate
automatically without notice to either party upon any assignment. Upon
termination hereof, the Fund shall pay such compensation as may be due you as of
the date of such termination.
17. Changes; Amendments. This Agreement may be changed or amended only
by written instrument signed by both parties.
18. Limitation of Liability. The First Amended and Restated Master
Trust Agreement dated October 30, 1996, as amended from time to time,
establishing the Fund, which is hereby referred to and a copy of which is on
file at the offices of the Fund, provides that the name of the Fund means the
Directors from time to time serving (as Directors but not personally) under said
Master Trust Agreement. It is expressly acknowledged and agreed that the
obligations of the Fund hereunder shall not be binding upon any of the
shareholders, Directors, officers, employees or agents of the Fund, personally,
but shall bind only the trust property of the Fund, as provided in its Master
Trust Agreement. The execution and delivery of this Agreement have been
authorized by the Directors of the Fund and signed by an officer of the Fund,
acting as such, and neither such authorization by such Directors nor such
execution and delivery by such officer shall be deemed to have been made by any
of them individually or to impose any liability on any of them personally, but
shall bind only the trust property of the Fund as provided in its Master Trust
Agreement.
19. Miscellaneous. This Agreement shall be construed and enforced in
accordance with and governed by the laws of The Commonwealth of Massachusetts
without giving effect to the conflicts of laws provisions thereof. The captions
in this Agreement are included for convenience of reference only and in no way
define or limit any of the provisions hereof or otherwise affect their
construction or effect. This Agreement has been executed on behalf of the Fund
by the undersigned not individually, but in the capacity indicated. This
Agreement shall be effective when accepted by you below.
20. Entire Agreement. This Agreement constitutes the entire agreement
with respect to the services described in Section 2 between the parties hereto.
21. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the state of New York without giving
effect to the conflicts of laws principles thereof.
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Please confirm your agreement hereto by signing and returning the
enclosed counterpart of this Agreement at once to: Xxxxxx Xxxx Investment Funds,
c/o Investors Bank & Trust Company, 000 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000. Upon receipt thereof, this Agreement and such signed duplicate copy will
evidence the agreement between us.
XXXXXX XXXX GLOBAL INCOME FUND
By:
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Name:
Title: Treasurer and Chief Financial Officer
ACCEPTED:
BANK XXXXXX XXXX & CO., LTD., NEW YORK BRANCH
By:
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Name:
Title: President
Dated: , 1999
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