SECOND FIDUCIARY EXCHANGE FUND, INC.
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made this 1st day of July, 1996, between Second Fiduciary
Exchange Fund, Inc., a Massachusetts corporation (the "Fund") and Xxxxx Xxxxx
Management, a Massachusetts business Trust, (the "Administrator").
1. DUTIES OF THE ADMINISTRATOR. The Fund hereby employs the Administrator
to act as administrator of the Fund and to administer its affairs, subject to
the supervision of the Directors of the Fund, for the period and on the terms
set forth in this Agreement.
The Administrator hereby accepts such employment, and undertakes to afford
to the Fund the advice and assistance of the Administrator's organization in the
administration of the Fund and to furnish for the use of the Fund office space
and all necessary office facilities, equipment and personnel for administering
the affairs of the Fund and to pay the salaries and fees of all officers and
Directors of the Fund who are members of the Administrator's organization and
all personnel of the Administrator performing services relating to
administrative activities. The Administrator shall for all purposes herein be
deemed to be an independent contractor and shall, except as otherwise expressly
provided or authorized, have no authority to act for or represent the Fund in
any way or otherwise be deemed an agent of the Fund.
Notwithstanding the foregoing, the Administrator shall not be deemed to
have assumed any duties with respect to, and shall not be responsible for, the
management of the Fund's assets or the rendering of investment advice and
supervision with respect thereto or the distribution of shares of the Fund, nor
shall the Administrator be deemed to have assumed or have any responsibility
with respect to functions specifically assumed by any transfer agent, custodian
or shareholder servicing agent of the Fund. It is intended that the assets of
the Fund will be invested in an interest in Tax-Managed Growth Portfolio (the
"Portfolio"), a registered open-end investment company having substantially the
same investment objective, policies and restrictions as the Fund. Boston
Management and Research ("BMR"), an affiliate of the Administrator, currently
acts as investment adviser to the Portfolio under the Investment Advisory
Agreement dated October 23, 1995 between the Portfolio and BMR.
2. ALLOCATION OF CHARGES AND EXPENSES. The Administrator shall pay the
entire salaries and fees of all of the Fund's Directors and officers who devote
part or all of their time to the affairs of the Administrator, and the salaries
and fees of such persons shall not be deemed to be expenses incurred by the Fund
for purposes of this Section 2. Except as provided in the foregoing sentence,
the Administrator shall not pay any expenses relating to the Fund including,
without implied limitation, (i) expenses of maintaining the Fund and continuing
its existence, (ii) registration of the Fund under the Investment Company Act of
1940, (iii) commissions, fees and other expenses connected with the acquisition,
disposition and valuation of securities and other investments, (iv) auditing,
accounting and legal expenses, (v) taxes and interest, (vi) governmental fees,
(vii) expenses of issue, sale, repurchase and redemption of shares, (viii)
expenses of registering and qualifying the Fund and its shares under federal and
state securities laws and of preparing and printing prospectuses for such
purposes and for distributing the same to shareholders and investors, (ix)
expenses of reports and notices to shareholders and of meetings of shareholders
and proxy solicitations therefor, (x) expenses of reports to governmental
officers and commissions, (xi) insurance expenses, (xii) association membership
dues (xiii) fees, expenses and disbursements of custodians and subcustodians for
all services to the Fund (including without limitation safekeeping of funds,
securities and other investments, keeping of books and accounts and
determination of net asset values), (xiv) fees, expenses and disbursements of
transfer agents, dividend disbursing agents, shareholder servicing agents and
registrars for all services to the Fund, (xv) expenses for servicing
shareholder accounts, (xvi) any direct charges to shareholders approved by the
Directors of the Fund, (xvii) compensation and expenses of Directors of the Fund
who are not members of the Adviser's organization, and (xviii) such
non-recurring items as may arise, including expenses incurred in connection with
litigation, proceedings and claims and the obligation of the Fund to indemnify
its Directors and officers with respect thereto.
3. COMPENSATION OF ADMINISTRATOR. The Board of Directors of the Fund have
currently determined that, based on the current level of compensation payable to
BMR by the Portfolio under the Portfolio's present Investment Advisory Agreement
with BMR, the Administrator shall receive no compensation from the Fund in
respect of the services to be rendered and the facilities to be provided by the
Administrator under this Agreement. If the Directors determine that the Fund,
should compensate the Administrator for such services and facilities, such
compensation shall be set forth in a new agreement or in an amendment to this
Agreement to be entered into by the parties hereto.
4. OTHER INTERESTS. It is understood that Directors and officers of the
Fund and shareholders of the Fund are or may be or become interested in the
Administrator as trustees, officers, employees, shareholders or otherwise and
that trustees, officers, employees and shareholders of the Administrator are or
may be or become similarly interested in the Fund, and that the Administrator
may be or become interested in the Fund as shareholder or otherwise. It is also
understood that trustees, officers, employees and shareholders of the
Administrator may be or become interested (as directors, trustees, officers,
employees, stockholders or otherwise) in other companies or entities (including,
without limitation, other investment companies) which the Administrator may
organize, sponsor or acquire, or with which it may merge or consolidate, and
which may include the words "Xxxxx Xxxxx" or "Xxxxx & Xxxxxx" or "Xxxxx Xxxxxxx"
or any combination thereof as part of their name, and that the Administrator or
its subsidiaries or affiliates may enter into advisory or management or
administration agreements or other contracts or relationships with such other
companies or entities.
5. LIMITATION OF LIABILITY OF THE ADMINISTRATOR. The services of the
Administrator to the Fund are not to be deemed to be exclusive, the
Administrator being free to render services to others and engage in other
business activities. In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of the Administrator, the Administrator shall not be subject to liability to the
Fund or to any shareholder of the Fund for any act or omission in the course of,
or connected with, rendering services hereunder or for any losses which may be
sustained in the acquisition, holding or disposition of any security or other
investment.
6. SUB-ADMINISTRATORS. The Administrator may employ one or more
sub-administrators from time to time to perform such of the acts and services of
the Administrator and upon such terms and conditions as may be agreed upon
between the Administrator and such sub-administrators and approved by the
Directors of the Fund.
7. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall become
effective upon the date of its execution, and, unless terminated as herein
provided, shall remain in full force and effect through and including February
28, 1997 and shall continue in full force and effect indefinitely thereafter,
but only so long as such continuance after February 28, 1997 is specifically
approved at least annually (i) by the Board of Directors of the Fund and (ii) by
the vote of a majority of those Directors of the Fund who are not interested
persons of the Administrator or the Fund.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this Agreement without the payment of any
penalty, by action of Directors of the Fund or the trustee of the Administrator,
as the case may be, and the Fund may, at any time upon such written notice to
the Administrator, terminate this Agreement by vote of a majority of the
outstanding voting securities of the Fund. This Agreement shall terminate
automatically in the event of its assignment.
8. AMENDMENTS OF THE AGREEMENT. This Agreement may be amended by a writing
signed by both parties hereto, provided that no amendment to this Agreement
shall be effective until approved (i) by the vote of a majority of those
Directors of the Fund who are not interested persons of the Administrator or the
Fund, and (ii) by vote of the Board of Directors of the Fund.
9. CERTAIN DEFINITIONS. The terms "assignment" and "interested persons"
when used herein shall have the respective meanings specified in the Investment
Company Act of 1940 as now in effect or as hereafter amended subject, however,
to such exemptions as may be granted by the Securities and Exchange Commission
by any rule, regulation or order. The term "vote of a majority of the
outstanding voting securities" shall mean the vote of the lesser of (a) 67 per
centum or more of the shares of the Fund present or represented by proxy at the
meeting if the holders of more than 50 per centum of the outstanding shares of
the Fund are present or represented by proxy at the meeting, or (b) more than 50
per centum of the outstanding shares of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
SECOND FIDUCIARY EXCHANGE FUND, INC. XXXXX XXXXX MANAGEMENT
By /s/ Xxxxxx X. Xxxx By /s/ H. Day Xxxxxxx, Jr.
------------------------ ---------------------------
PRESIDENT VICE PRESIDENT AND NOT INDIVIDUALLY
