EXHIBIT (9) (a)
XXXXXXXX CAPITAL FUNDS
ADMINISTRATION AGREEMENT
AGREEMENT made this 26th day of November, 1996, between Xxxxxxxx Capital
Funds (the "Trust"), a business trust organized under the laws of the State of
Delaware with its principal place of business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxx 00000, and Schroder Fund Advisors Inc. ("Schroder"), a corporation
organized under the laws of the State of Maryland.
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended, (the "1940 Act") as an open-end management investment company and is
authorized to issue shares of beneficial interest ("Shares") in separate series;
WHEREAS, the Trust has entered into various Investment Advisory Agreements
with Xxxxxxxx Capital Management International Inc. (the "Adviser"), pursuant to
which the Adviser provides investment advisory services for the Trust;
WHEREAS, the Trust desires that Schroder perform certain administrative
services for each of the series of the Trust as listed in Appendix A hereto
(each a "Series," and collectively the "Portfolios") other than any
administrative services required to be performed by the Adviser, and Schroder is
willing to provide those services on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Schroder agree as follows:
SECTION 1. APPOINTMENT. The Trust hereby appoints Schroder as
administrator of the Trust and of each Series and Schroder hereby accepts such
appointment, all in accordance with the terms and conditions of this Agreement.
In connection therewith, the Trust has delivered to Schroder copies of its Trust
Instrument, the Trust's Registration Statement and all amendments thereto filed
pursuant to the 1940 Act (the "Registration Statement"), and the current Parts A
and B of each Series (collectively, as currently in effect and as amended or
supplemented, the "Prospectus"), all in such manner and to such extent as may
from time to time be authorized by the Trust's Board of Trustees (the "Board"),
and shall promptly furnish Schroder with all amendments of or supplements to the
foregoing.
SECTION 2. FURNISHING OF EXISTING ACCOUNTS AND RECORDS. The Trust shall
promptly turn over to Schroder such of the accounts and records previously
maintained by or for it as are necessary for Schroder to perform its functions
under this Agreement. The Trust authorizes Schroder to rely on such accounts
and records turned over to it and hereby indemnifies and will hold Schroder, its
successors and assigns, harmless of and from any and all expenses, damages,
claims, suits, liabilities, actions, demands and losses whatsoever arising out
of or in connection with any error, omission, inaccuracy or other deficiency of
such
accounts and records or in the failure of the Trust to provide any portion of
such or to provide any information needed by Schroder to knowledgeably perform
its functions.
SECTION 3. ADMINISTRATIVE DUTIES
(a) Subject to the direction and control of the Board and in cooperation
with the Adviser, Schroder shall provide, or oversee, as applicable,
administrative services necessary for the Trust's operations with respect to
each Series except those services that are the responsibility of the Adviser or
the Series' custodian or transfer agent, all in such manner and to such extent
as may be authorized by the Board.
(b) With respect to the Trust and each Series, as applicable, Schroder
shall:
(i) oversee (A) the preparation and maintenance by the Adviser and the
Trust's sub-administrator, custodian, interestholder record keeper and
fund accountant (or if appropriate, prepare and maintain) in such
form, for such periods and in such locations as may be required by
applicable law, of all documents and records relating to the operation
of the Trust required to be prepared or maintained by the Trust or its
agents pursuant to applicable law; (B) the reconciliation of account
information and balances among the Adviser and the Trust's custodian,
interestholder record keeper and fund accountant; (C) the transmission
of purchase and redemption orders for Shares; (D) the notification to
the Adviser of available funds for investment; and (E) the performance
of fund accounting, including the calculation of the net asset value
of the Shares;
(ii) oversee the performance of administrative and professional services
rendered to the Trust by others, including its sub-administrator,
custodian, interestholder record keeper and fund accountant as well as
legal, auditing and shareholder servicing and other services performed
for each Series;
(iii) oversee the preparation and the printing of the periodic updating of
the Registration Statement and Prospectus, tax returns, and reports to
interestholders, the Securities and Exchange Commission and state
securities commissions;
(iv) oversee the preparation of proxy and information statements and any
other communications to interestholders;
(v) at the request of the Board, provide the Trust with adequate general
office space and facilities and provide persons suitable to the Board
to serve as officers of the Trust;
(vi) provide the Trust, at the Trust's request, with the services of
persons who are competent to perform such supervisory or
administrative functions as are necessary for effective operation of
the Trust;
(vii) oversee the preparation, filing and maintenance the Trust's governing
documents, including the Trust Instrument and minutes of meetings of
Trustees and interestholders;
(viii) oversee with the cooperation of the Trust's counsel, the Adviser and
other relevant parties, preparation and dissemination of materials for
meetings of the Board;
(ix) oversee, and if required, monitor sales of Shares and ensure that such
Shares are properly and duly registered with the Securities and
Exchange Commission and applicable state securities commissions;
(x) oversee the calculation of performance data for dissemination to
information services covering the investment company industry, for
sales literature of the Trust and other appropriate purposes;
(xi) oversee the determination of the amount of, and supervise
distributions to interestholders; and
(xii) advise the Trust and its Board on matters concerning the Trust and its
affairs.
(c) Schroder shall oversee the preparation and maintenance, or cause to be
prepared and maintained, records in such form for such periods and in such
locations as may be required by applicable regulations, all documents and
records relating to the services provided to the Trust pursuant to this
Agreement required to be maintained pursuant to the 1940 Act, rules and
regulations of the Securities and Exchange Commission, the Internal Revenue
Service and any other national, state or local government entity with
jurisdiction over the Trust. The accounts and records pertaining to the Trust
which are in possession of Schroder, or an entity subcontracted by Schroder,
shall be the property of the Trust. The Trust, or the Trust's authorized
representatives, shall have access to such accounts and records at all times
during Schroder's, or its subcontractor's, normal business hours. Upon the
reasonable request of the Trust, copies of any such accounts and records shall
be provided promptly by Schroder to the Trust or the Trust's authorized
representatives. In the event the Trust designates a successor to any of
Schroder's obligations under this agreement, Schroder shall, at the expense and
direction of the Trust, transfer to such successor all relevant books, records
and other data established or maintained by Schroder, or its subcontractor,
under this Agreement.
SECTION 4. STANDARD OF CARE
(a) Schroder, in performing under the terms and conditions of this
Agreement, shall use its best judgment and efforts in rendering the services
described herein, and shall incur no liability for its status under this
agreement or for any reasonable actions taken or omitted in good faith. As an
inducement to Schroder's undertaking to render these services, the Trust hereby
agrees to indemnify and hold harmless Schroder, its employees, agents, officers
and directors, from any and all loss, liability and expense, including any legal
expenses, arising out of
Schroder's performance under this Agreement, or status, or any act or omission
of Schroder, its employees, agents, officers and directors; provided that this
indemnification shall not apply to Schroder's actions taken or failures to act
in cases of Schroder's own bad faith, willful misconduct or gross negligence in
the performance of its duties under this Agreement; and further provided, that
Schroder shall give the Trust notice and reasonable opportunity to defend
against any such loss, claim, damage, liability or expense in the name of the
Trust or Schroder, or both. The Trust will be entitled to assume the defense of
any suit brought to enforce any such claim or demand, and to retain counsel of
good standing chosen by the Trust and approved by Schroder, which approval shall
not be withheld unreasonably. In the event the Trust does elect to assume the
defense of any such suit and retain counsel of good standing approved by
Schroder, the defendant or defendants in such suit shall bear the fees and
expenses of any additional counsel retained by any of them; but in case the
Trust does not elect to assume the defense of any such suit, or in case Schroder
does not approve of counsel chosen by the Trust or Schroder has been advised
that it may have available defenses or claims which are not available or
conflict with those available to the Trust, the Trust will reimburse Schroder,
its employees, agents, officers and directors for the fees and expenses of any
one law firm retained as counsel by Schroder or them. Schroder may, at any
time, waive its right to indemnification under this agreement and assume its own
defense. The provisions of paragraphs (b) through (d) of this Section 4 should
not in any way limit the foregoing:
(a) Schroder may rely upon the advice of the Trust or of counsel, who may
be counsel for the Trust or counsel for Schroder, and upon statements of
accountants, brokers and other persons believed by it in good faith to be expert
in the matters upon which they are consulted, and Schroder shall not be liable
to anyone for any actions taken in good faith upon such statements.
(b) Schroder may act upon any oral instruction which it receives and which
it believes in good faith was transmitted by the person or persons authorized by
the Board of the Trust to give such oral instruction. Schroder shall have no
duty or obligation to make any inquiry or effort of certification of such oral
instruction.
(c) Schroder shall not be liable for any action taken in good faith
reliance upon any written instruction or certified copy of any resolution of the
Board of the Trust, and Schroder may rely upon the genuineness of any such
document or copy thereof reasonably believed in good faith by Schroder to have
been validly executed.
(d) Xxxxxxxx may rely and shall be protected in acting upon any signature,
instruction, request, letter of transmittal, certificate, opinion of counsel,
statement, instrument, report, notice, consent, order, or other paper document
believed by it to be genuine and to have been signed or presented by the
purchaser, Trust or other proper party or parties.
SECTION 5. EXPENSES Subject to any agreement by Schroder or other person
to reimburse any expenses of the Trust that relate to any Series, the Trust
shall be responsible for and assume the obligation for payment of all of its
expenses, including: (a) the fee payable under Section 6 hereof; (b) any fees
payable to the Adviser; (c) interest charges, taxes and brokerage
fees and commissions; (d) premiums of insurance for the Trust, its Trustees and
officers and fidelity bond premiums; (e) fees, interest charges and expenses of
third parties, including the Trust's custodian, transfer agent, dividend
disbursing agent and fund accountant; (f) telecommunications expenses; (g)
auditing, legal and compliance expenses; (h) costs of forming the Trust and
maintaining its existence; (i) to the extent permitted by the 1940 Act, costs of
preparing the Trust's registration statement, subscription application forms and
interestholder reports and delivering them to existing and prospective
interestholders; (j) costs of maintaining books of original entry for portfolio
and fund accounting and other required books and accounts, of calculating the
net asset value of shares of the Trust and of preparing tax returns; (k) costs
of reproduction, stationery and supplies; (l) fees and expenses of the Trust's
Trustees; (m) compensation of the Trust's officers and employees who are not
employees of the Adviser or Schroder or their respective affiliated persons and
costs of other personnel (who may be employees of the Adviser, Schroder or their
respective affiliated persons) performing services for the Trust; (n) costs of
Trustee meetings; (o) Securities and Exchange Commission registration fees and
related expenses; (p) state or foreign securities laws registration fees and
related expenses; and (q) fees and out-of-pocket expenses payable to each
investment adviser under any investment advisory or similar agreement.
SECTION 6. COMPENSATION
(a) In consideration of the services performed by Schroder under this
Agreement, the Trust will pay Schroder, with respect to each Series, a fee at
the annual rate, as listed in Appendix B hereto. Such fee shall be accrued by
the Trust daily and shall be payable monthly in arrears on the first day of each
calendar month for services performed under this agreement during the prior
calendar month. If the fees payable pursuant to this provision begin to accrue
before the end of any month or if this Agreement terminates before the end of
any month, the fees for the period from that date to the end of that month or
from the beginning of that month to the date of termination, as the case may be,
shall be prorated according to the proportion that the period bears to the full
month in which the effectiveness or termination occurs. Upon the termination of
this Agreement, the Trust shall pay to Schroder such compensation as shall be
payable prior to the effective date of such termination.
(b) In the event that this agreement is terminated, Schroder shall be
reimbursed for reasonable charges and disbursements associated with promptly
transferring to its successor as designated by the Trust the original or copies
of all accounts and records maintained by Schroder under this agreement, and
cooperating with, and providing reasonable assistance to its successor in the
establishment of the accounts and records necessary to carry out the successor's
or other person's responsibilities.
(c) Notwithstanding anything in this Agreement to the contrary, Schroder
and its affiliated persons may receive compensation or reimbursement from the
Trust with respect to (i) the provision of services on behalf of the Series in
accordance with any distribution plan adopted by the Trust pursuant to Rule 12b-
1 under the 1940 Act or (ii) the provision of shareholder support or other
services, including fund accounting services.
SECTION 7. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the date first above written
with respect to each Series of the Trust then existing and shall relate to every
other Series as of the later of the date on which the Trust's Registration
Statement relating to the shares of such Series becomes effective or the Series
commences operations.
(b) This Agreement shall continue in effect for twelve months and,
thereafter, shall be automatically renewed each year for an additional term of
one year.
(c) This Agreement may be terminated with respect to a Series at any time,
without the payment of any penalty, (i) by the Board on 60 days' written notice
to Schroder or (ii) by Schroder on 60 days' written notice to the Trust. Upon
receiving notice of termination by Schroder, the Trust shall use its best
efforts to obtain a successor administrator. Upon receipt of written notice
from the Trust of the appointment of a successor, and upon payment to Schroder
of all fees owed through the effective termination date, and reimbursement for
reasonable charges and disbursements, Schroder shall promptly transfer to the
successor administrator the original or copies of all accounts and records
maintained by Schroder under this agreement including, in the case of records
maintained on computer systems, copies of such records in machine-readable form,
and shall cooperate with, and provide reasonable assistance to, the successor
administrator in the establishment of the accounts and records necessary to
carry out the successor administrator's responsibilities. For so long as
Schroder continues to perform any of the services contemplated by this Agreement
after termination of this Agreement as agreed to by the Trust and Schroder, the
provisions of Sections 4 and 6 hereof shall continue in full force and effect.
SECTION 8. ACTIVITIES OF SCHRODER
(a) Except to the extent necessary to perform Schroder's obligations under
this Agreement, nothing herein shall be deemed to limit or restrict the right of
Schroder, or any affiliate of Schroder, or any employee of the Schroder, to
engage in any other business or to devote time and attention to the management
or other aspects of any other business, whether of a similar or dissimilar
nature, or to render services of any kind to any other corporation, firm,
individual or association.
(b) Schroder may subcontract any or all of its functions or
responsibilities pursuant to this Agreement to one or more corporations, trusts,
firms, individuals or associations, which may be affiliates of Schroder, who
agree to comply with the terms of this Agreement. Schroder may pay those
persons for their services, but no such payment will increase Schroder's
compensation from the Trust.
SECTION 9. COOPERATION WITH INDEPENDENT ACCOUNTANTS.
Schroder shall cooperate, if applicable, with the Trust's independent public
accountants and shall take reasonable action to make all necessary information
available to such accountants for the performance of their duties.
SECTION 10. SERVICE DAYS. Nothing contained in this Agreement is intended
to or shall require Schroder, in any capacity under this agreement, to perform
any functions or duties on any day other than a business day of the Trust or of
a Series. Functions or duties normally scheduled to be performed on any day
which is not a business day of the Trust or of a Series shall be performed on,
and as of, the next business day, unless otherwise required by law.
SECTION 11. NOTICES. Any notice or other communication required by or
permitted to be given in connection with this Agreement shall be in writing and
shall be delivered in person, or by first-class mail, postage prepaid, or by
overnight or two-day private mail service to the respective party. Notice to
the Trust shall be given as follows or at such other address as the Trust may
designate in writing:
Xxxxxxxx Capital Funds
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice to Schroder shall be given as follows or at such other address as
Schroder may designate in writing:
Schroder Fund Advisors Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notices and other communications received by the parties at the addresses
listed above shall be deemed to have been properly given.
SECTION 12. LIMITATION OF INTERESTHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Series shall not be
liable for any obligations of the Trust or of the Series under this Agreement,
and Schroder agrees that, in asserting any rights or claims under this
Agreement, it shall look only to the assets and property of the Trust or the
Series to which Schroder's rights or claims relate in settlement of such rights
or claims, and not to the Trustees of the Trust or the shareholders of the
Series.
SECTION 13. MISCELLANEOUS
(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(b) This Agreement may be executed in two or more counterparts, each of
which, when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
(c) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(d) Section and Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(e) 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 the Trust without the written consent of
Schroder, or by Schroder, without the written consent of the Trust authorized or
approved by a resolution of the Board.
(f) This Agreement shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
XXXXXXXX CAPITAL FUNDS
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SCHRODER FUND ADVISORS INC.
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XXXXXXXX CAPITAL FUNDS
ADMINISTRATION AGREEMENT
APPENDIX A
SERIES OF THE TRUST
International Equity Fund
Schroder U.S. Smaller Companies Portfolio
Schroder Emerging Markets Fund Institutional Portfolio
Schroder International Smaller Companies Portfolio
Schroder Global Asset Allocation Portfolio
XXXXXXXX CAPITAL FUNDS
ADMINISTRATION AGREEMENT
APPENDIX B
ADMINISTRATION FEES
Fee As % of the Average Annual
Series of the Trust Daily Net Assets of the Series
------------------- ------------------------------
International Equity Fund 0.075%
Xxxxxxxx U.S. Smaller Companies Portfolio 0.00%
Schroder Emerging Markets Fund Institutional
Portfolio 0.05%
Schroder International Smaller Companies
Portfolio 0.15%
Schroder Global Asset Allocation Portfolio 0.075%
