ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of the 30th of September, 1995, by and between McGLADREY
& XXXXXX, INC., a limited liability partnership with its principal office at
000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 ("Service Provider" or "Plan
Agent"), and each of those registered investment companies listed on Schedule A
hereto (the "Xxxxxxx Funds"; if a Xxxxxxx Fund offers two or more series of
Shares at any time, each such series shall be deemed at such time to be a
Xxxxxxx Fund, unless otherwise indicated herein).
WHEREAS Service Provider, as Plan Agent, has been selected by certain
employee benefit plans, profit-sharing plans and retirement plans, which
include or propose to include as investment alternatives certain Xxxxxxx Funds,
to provide certain administrative and recordkeeping services as agent for such
plans; and
WHEREAS the services to be provided by Service Provider hereunder will
benefit the Xxxxxxx Funds by relieving them of the expense they would incur if
such services were to be provided by Xxxxxxx Service Corporation or any other
entity from time to time duly appointed and serving as transfer agent for any
of the Xxxxxxx Funds ("Transfer Agent");
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF THE PARTIES
1.01. ADMINISTRATIVE SERVICES. Service Provider shall perform the
administrative and recordkeeping services (the "Administrative Services")
described in Schedule B hereto, as such Schedule B may be amended from time to
time with the mutual consent of the parties hereto, with respect to shares of
beneficial interest or common stock, as the case may be, of a Xxxxxxx Fund
("Shares") purchased, held or redeemed by a Plan. Service Provider shall
perform the Administrative Services as an independent contractor and not as an
employee or agent of any Xxxxxxx Fund or the Transfer Agent. Service Provider
shall perform the Administrative Services in accordance with procedures
established from time to time by agreement of Service Provider and the
Transfer Agent (or other person designated from time to time by the applicable
Xxxxxxx Fund), and subject to terms and conditions set forth in such Xxxxxxx
Fund's current prospectus.
1.02. EQUIPMENT. Service Provider shall maintain adequate offices,
personnel and computer and other equipment to perform the services contemplated
by this Agreement. Service Provider shall notify the Transfer Agent (or other
person designated from time to time by the applicable Xxxxxxx Fund) promptly
in the event that it becomes unable for any reason to perform the services
contemplated by, or any other of its obligations under, this Agreement.
1.03. INSURANCE. Service Provider shall maintain at all times general
liability and other insurance coverage that is reasonable and customary in
light of its duties hereunder. Notwithstanding any provision to the contrary
herein, no provision of this Agreement shall relieve an insurer of any
obligation to pay to any Xxxxxxx Fund, the Transfer Agent or any affiliate of
the
Transfer Agent, Service Provider, or any other insured party any claim that
would be a covered claim in the absence of any provision hereof.
1.04. DISCLOSURE TO PLANS. Service Provider shall take all steps necessary
to ensure that the arrangements provided for in this Agreement are properly
disclosed to the Plans.
1.05. REPRESENTATIONS REGARDING SHARES. Any representation made by Plan
Agent regarding any Shares or Xxxxxxx Fund shall be in its capacity as Plan
Agent and not in its capacity as Service Provider. Plan Agent shall make no
representation in any capacity regarding any Shares or Xxxxxxx Fund except as
set forth in such Xxxxxxx Fund's current prospectus or current sales literature
furnished by such Xxxxxxx Fund or by the Transfer Agent.
1.06. CONFIDENTIALITY OF INFORMATION. The parties hereto agree that all
books, records, information and data pertaining to the business of any other
party which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall be kept confidential and shall not be
voluntarily disclosed to any other person, except as may be required by law.
This provision shall survive the termination of this Agreement.
1.07. REDUNDANCY. Service Provider shall maintain or provide for redundant
facilities and shall maintain or provide for backup files of its records
maintained hereunder and shall store such back-up files in a secure off-
premises location, so that, in the event of a power failure or other
interruption of whatever cause at the location of its records, Service
Provider's records are maintained intact and transactions can be processed at
another location.
1.08. COMPLIANCE WITH LAW. Service Provider shall comply with all federal
and state securities laws and regulations thereunder in connection with its
responsibilities under this Agreement.
1.09. NO IMPAIRMENT OF XXXXXXX'X AUTHORITY. No provision of this Agreement
shall limit in any way the authority of any Xxxxxxx Fund or of the distributor
of any Xxxxxxx Fund to take such action as it deems appropriate in connection
with matters relating to the operation of such Xxxxxxx Fund and the sale of its
shares.
1.10. AUTHORITY OF SERVICE PROVIDER. Service Provider acknowledges that it
is not authorized by any Xxxxxxx Fund to register the transfer of any Xxxxxxx
Fund's Shares or to transfer record ownership of any Xxxxxxx Fund's Shares, and
that only the Transfer Agent is authorized to perform such activities.
2. COMPENSATION
2.01. SERVICE PROVIDER'S EXPENSES. Service Provider shall bear all expenses
arising out of the performance of the Administrative Services and of the
performance of functions on behalf of the Plans as Plan Agent. Service Provider
shall not receive from any Xxxxxxx Fund (or any affiliate thereof) any monetary
compensation or reimbursement for such expenses.
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2.02. FUND EXPENSES. Each Xxxxxxx Fund shall bear all expenses of its own
hereunder, including without limitation the cost of registration of its shares
and the cost of preparing its prospectus, proxy materials, periodic reports
to shareholders, and other materials prepared by such Xxxxxxx Fund, and shall
not receive from Service Provider any monetary compensation or reimbursement
for such expenses.
2.03. ADMINISTRATIVE FEES. In consideration of Service Provider's
performance of the Administrative Services, each Xxxxxxx Fund shall pay to
Service Provider the fees (the "Administrative Fees") described in Schedule C
hereto, as such Schedule C may be amended from time to time with the mutual
consent of Service Provider and the applicable Xxxxxxx Fund.
2.04. CALCULATION AND PAYMENT OF FEES. The Administrative Fees shall be due
each calendar month from each Xxxxxxx Fund for which the Service Provider
performs Administrative Services pursuant to this Agreement. Each Xxxxxxx Fund
making a payment for such Administrative Fees for such calendar month shall
make payment within thirty (30) days after the last day of such month. Service
Provider shall have sixty (60) days following receipt of the payment to verify
the amount of the payment and after such time the amount will be considered
final.
3. REPRESENTATIONS AND WARRANTIES
3.01 SERVICE PROVIDER'S REPRESENTATIONS. Service Provider represents and
warrants to each Xxxxxxx Fund that:
(a) It is a limited liability partnership duly organized and validly
existing under the laws of the State of Illinois;
(b) It has full power and authority under applicable law to carry on
its business, and is registered or licensed as required, in each jurisdiction
where it conducts its business;
(c) It has full power and authority under applicable law, and has
taken all actions necessary, to enter into and to perform this Agreement;
(d) It maintains and knows of no reason why it cannot or will not
during the term hereof maintain adequate offices, personnel and computer and
other equipment to perform the services contemplated by this Agreement;
(e) It will not be a "fiduciary" of any Plan as such term is defined
in section 3 (21) of the Employment Retirement Income Security Act of 1974, as
amended ("ERISA"), and section 4975 of the Internal Revenue Code of 1986, as
amended (the "Code"); and
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(f) The receipt for the Administrative Fees by Service Provider will
not constitute a "prohibited transaction" as such term is defined in section
406 of ERISA and section 4975 of the Code.
3.02. FUND REPRESENTATIONS. Each Xxxxxxx Fund represents and warrants to
Service Provider that:
(a) It has full power and authority under applicable law, and has
taken all actions necessary, to enter into and to perform this Agreement; and
(b) It is duly registered as an investment company under the 1940 Act.
4. INDEMNIFICATION
4.01. BY FUNDS. Each Xxxxxxx Fund shall indemnify and hold Service Provider
and its directors, officers and employees harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments, expenses and
liabilities arising out of or attributable to:
(a) such Xxxxxxx Fund's refusal or failure to comply with the
provisions of this Agreement, or
(b) the lack of good faith, negligence or willful misconduct of such
Xxxxxxx Fund, or
(c) the breach of any representation or warranty of such Xxxxxxx Fund
hereunder.
4.02. BY SERVICE PROVIDER. Service Provider shall indemnify and hold each
Xxxxxxx Fund, its affiliates, and their directors, trustees, officers and
employees harmless from and against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liabilities arising out of or
attributable to:
(a) Service Provider's refusal or failure to comply with the
provisions of this Agreement or with instructions properly given hereunder
(whether as a result of the acts or omissions of Service Provider or of its
agents or subcontractors), whether it is performing functions on behalf of the
Plans, as Plan Agent, or providing Administrative Services as Service Provider,
or
(b) Service Provider's performance of the Administrative Services, or
(c) the lack of good faith, negligence or willful misconduct of
Service Provider (or its agents or subcontractors), whether it is performing
functions on behalf of the Plans, as Plan Agent, or providing Administrative
Services as Service Provider, or
(d) the breach of any representation or warranty of Service Provider
hereunder.
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4.03. ACTS OF GOD. In the event that any party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable to
any other party for any damages resulting from such failure to perform or
otherwise from such causes.
4.04. NO CONSEQUENTIAL DAMAGES. No party to this Agreement shall be liable
to any other party for consequential damages under any provision of this
Agreement.
4.05. CLAIM PROCEDURE. In order that the indemnification provisions
contained herein shall apply, upon the assertion of a claim or loss for which
any party (the "Indemnitor") may be required to indemnify another party (the
"Indemnitee"), the Indemnitee shall promptly notify the Indemnitor of such
assertion or loss, and shall keep the Indemnitor advised with respect to all
developments concerning any such claim. The Indemnitor shall have the option to
participate at its expense with the Indemnitee in the defense of any such
claim. In the event that there is more than one Indemnitor with respect to any
such claim, the Indemnitors shall agree as to their exercise of this option.
The Indemnitee shall in no case confess any claim or make any compromise in any
case in which the Indemnitor may be required to indemnify it except with the
Indemnitor's prior written consent. The obligations of the Xxxxxxx Funds and
Service Provider under this Section 4 shall survive the termination of this
Agreement.
5. ACKNOWLEDGEMENTS
5.01. FEES SOLELY FOR ADMINISTRATIVE SERVICES. The parties hereto
acknowledge that the Administrative Fees are for administrative and
recordkeeping services only and do not constitute payment in any manner for
investment advisory or distribution services. The parties acknowledge that
Service Provider also is Plan Agent and as such has been providing and will
continue to provide certain services to the Plans as agent of the Plans, which
may involve, among other things, preparing informational or promotional
materials that may refer to the Xxxxxxx Funds and responding to telephone
inquires from Plan participants. The parties acknowledge that the provision of
such services and any other actions of Plan Agent related to the Xxxxxxx Funds
and not specifically authorized herein are outside the scope of this Agreement
and will be taken in the capacity of Plan Agent.
5.02. SERVICE PROVIDER ACTING AS PLAN AGENT. The parties acknowledge that
Plan Agent has been selected as Plan Agent and as a provider of administrative
and recordkeeping services by the Plans, and not by any Xxxxxxx Fund or the
Transfer Agent, and that Service Provider will perform the Administrative
Services hereunder as an independent contractor and not as an employee or agent
of the Transfer Agent or any Xxxxxxx Fund. The parties acknowledge, further,
that neither the Transfer Agent nor any Xxxxxxx Fund undertakes to supervise
Service Provider in the performance of the Administrative Services; that
neither the Transfer Agent nor any Xxxxxxx Fund shall be responsible for
Service Provider's performance of the Administrative Services; that neither
the Transfer Agent nor any Xxxxxxx Fund shall be responsible for the
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accuracy of the records maintained by Service Provider for the Plans; and that
neither the Transfer Agent nor any Xxxxxxx Fund shall be responsible for
Service Provider's performance of other functions for the Plans.
5.03. LAWS APPLICABLE TO FUNDS. Service Provider acknowledges that each
Xxxxxxx Fund, as a registered investment company under the 1940 Act, is subject
to the provisions of the 1940 Act and regulations thereunder, and that the
offer and sale of its shares are subject to the provisions of federal and state
laws and regulations applicable to the offer and sale of securities. Each
Xxxxxxx Fund acknowledges that Service Provider is not responsible for such
Xxxxxxx Fund's compliance with such laws and regulations. If the Transfer Agent
or any Xxxxxxx Fund advises Service Provider that a procedure of Service
Provider related to the discharge of its obligations hereunder has or may have
the effect of causing the Transfer Agent or any Xxxxxxx Fund to violate any of
such laws or regulations, Service Provider shall develop a mutually agreeable
alternative procedure which does not have such effect.
6. TERMINATION OF AGREEMENT
6.01. BY WRITTEN NOTICE. This Agreement may be terminated by any party upon
ninety (90) days written notice to each other party.
6.02. BY FUND. This Agreement may be terminated by any Xxxxxxx Fund
immediately upon notice to each other party in the event that (a) Service
Provider becomes unable for any reason to perform the services contemplated by
this Agreement, (b) the performance by Service Provider of the services
contemplated by this Agreement becomes in that Xxxxxxx Fund's reasonable
judgment unlawful or ceases to satisfy that Xxxxxxx Xxxx'x reasonable standards
and so becomes unacceptable to that Xxxxxxx Fund, (c) all the Xxxxxxx Funds
cease to be investment alternatives under all the Plans, or (d) all the Xxxxxxx
Funds decline to accept any additional purchase or redemption requests for
Shares, the Securities and Exchange Commission issues any stop order suspending
the effectiveness of the registration statements or prospectuses of all the
Xxxxxxx Funds, or current prospectuses for all the Xxxxxxx Funds are not on
file with the Securities and Exchange Commission as required by section 10 of
the Securities Act of 1933, as amended. To the extent that any of the events
enumerated above occurs with respect to one or more Xxxxxxx Funds, but not
with respect to all the Xxxxxxx Funds, or that one or more Xxxxxxx Funds, but
not all the Xxxxxxx Funds, terminates this Agreement, in lieu of termination
of this Agreement Schedule A hereto shall be amended with notice to all
parties to remove the affected Xxxxxxx Funds from such Schedule A. To the
extent that any of the events enumerated above occurs with respect to one or
more Plans, but not with respect to all the Plans, in lieu of termination of
this Agreement Schedule B hereto shall be amended with notice to the all
parties to remove the affected Plans from such Schedule B.
6.03. BY SERVICE PROVIDER. This Agreement may be terminated by Service
Provider immediately upon notice to the other parties in the event that all the
Xxxxxxx Funds cease to be investment alternatives under the Plans.
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6.04. TERMINATION PROCEDURES. Upon termination of this Agreement, each
party shall return to each other party all copies of confidential or
proprietary materials or information received from such other party hereunder,
other than materials or information required to be retained by such party
under applicable laws or regulations. This provision shall survive the
termination of this Agreement.
7. ASSIGNMENT
7.01. ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder may be assigned or delegated by any party without the written consent
of the other parties.
7.02. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective permitted successors and assigns.
8. NOTICES
Notices hereunder shall be in writing, shall be delivered personally,
sent by certified mail (return receipt requested), or sent by facsimile machine
in accordance with procedures established by agreement of the Transfer Agent
(or other person designated from time to time by the applicable Xxxxxxx Fund)
and Service Provider, and shall be addressed to a party either at its address
below or at a changed address specified by it in a notice to the other parties
hereto:
Transfer Agent: XXXXXXX SERVICE CORPORATION
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Any Xxxxxxx Fund: [NAME OF XXXXXXX FUND]
c/x Xxxxxxx Service Corporation
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. XxXxxxxxx
Service Provider: McGLADREY & XXXXXX, INC.
000 Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Huffington
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9. AMENDMENT
Except as otherwise provided herein, this Agreement may be amended or
modified only by a written agreement executed by all the parties; provided that
an amendment solely to add or remove any Xxxxxxx Fund as a party to this
Agreement may be made, and shall be valid and binding, by the addition or
removal of the relevant Fund's listing on Schedule A and its signature below
without requiring the other parties' signatures and shall be effective as of
the date of execution, unless any other party objects in writing within thirty
(30) days after receiving notice of such amendment.
10. MASSACHUSETTS LAW TO APPLY
This Agreement shall be construed and the provisions thereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts,
without regard to conflicts of laws principles.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject matter hereof
whether oral or written. Nothing contained in this Agreement is intended to
convey rights to any third parties, such as Plans, Plan Trustees or Plan
participants.
12. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which
shall be an original document and all of which together shall be deemed one and
the same instrument.
13. LIMITATION OF LIABILITY OF THE XXXXXXX FUNDS, TRUSTEES AND SHAREHOLDERS
It is understood and expressly stipulated that none of the trustees,
officers, agents, or shareholders of any Xxxxxxx Fund shall be personally
liable hereunder. It is understood and acknowledged that all persons dealing
with any Xxxxxxx Fund must look solely to the property of such Xxxxxxx Fund for
the enforcement of any claims against such Xxxxxxx Fund as neither the
trustees, officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of any Xxxxxxx Fund. No Xxxxxxx Fund shall
be liable for the obligations or liabilities of any other Xxxxxxx Fund. No
series of any Xxxxxxx Fund, if any, shall be liable for the obligations of any
other series.
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14. HEADINGS
The headings contained in this Agreement are for purposes of convenience
only and shall not affect the meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
McGLADREY & XXXXXX, INC. XXXXXXX CASH INVESTMENT TRUST
XXXXXXX DEVELOPMENT FUND
XXXXXXX EQUITY TRUST, on behalf of
By: /s/ Xxxxxx X. Huffington Xxxxxxx Capital Growth Fund
---------------------------- Xxxxxxx Value Fund
Name: Xxxxxx X. Huffington XXXXXXX FUNDS TRUST, on behalf of
Title: Principal Xxxxxxx Short Term Bond Fund
Xxxxxxx Zero Coupon 2000 Fund
XXXXXXX GLOBAL FUND, INC., on behalf of
Xxxxxxx Emerging Markets Income Fund
Xxxxxxx Global Fund
Xxxxxxx Global Small Company Fund
Xxxxxxx International Bond Fund
Xxxxxxx Short Term Global Income Fund
XXXXXXX GNMA FUND
XXXXXXX INTERNATIONAL FUND, on behalf of
Xxxxxxx Greater Europe Growth Fund
Xxxxxxx Pacific Opportunities Fund
Xxxxxxx International Fund
XXXXXXX INVESTMENT TRUST, on behalf of
Xxxxxxx Growth and Income Fund
Xxxxxxx Quality Growth Fund
XXXXXXX MUTUAL FUNDS, INC., on behalf of
Xxxxxxx Gold Fund
XXXXXXX PORTFOLIO TRUST, on behalf of
Xxxxxxx Balanced Fund
Xxxxxxx Income Fund
XXXXXXX U.S. TREASURY MONEY FUND
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Secretary
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SCHEDULE A
LIST OF XXXXXXX FUNDS
Money Market Funds Growth Funds
------------------ -----------
Xxxxxxx Cash Investment Trust Xxxxxxx Capital Growth Fund
Xxxxxxx U.S. Treasury Money Fund Xxxxxxx Development Fund
Xxxxxxx Global Fund
Income Funds Xxxxxxx Global Small Company Fund
------------ Xxxxxxx Gold Fund
Xxxxxxx Greater Europe Growth Fund*
Xxxxxxx Emerging Markets Income Fund Xxxxxxx International Fund
Xxxxxxx GNMA Fund Xxxxxxx Pacific Opportunities Fund
Xxxxxxx Income Fund Xxxxxxx Quality Growth Fund
Xxxxxxx International Bond Fund Xxxxxxx Value Fund
Xxxxxxx Short Term Bond Fund
Xxxxxxx Short Term Global Income Fund Growth and Income Funds
Xxxxxxx Zero Coupon 2000 Fund -----------------------
Xxxxxxx Growth and Income Fund
Xxxxxxx Balanced Fund
On behalf of the Funds
listed on Schedule A:
By: /s/ Xxxxxx X. XxXxxxxxx
---------------------------
Xxxxxx X. XxXxxxxxx
Date: 9/30/95
--------------------------
-------------------------------
* Service Provider will not receive Administrative Fees for providing
Administrative Services until further notice.
SCHEDULE B
THE ADMINISTRATIVE SERVICES
1. Maintain separate adequate records for each Plan reflecting Shares
purchased and redeemed, including dates and prices for all transactions, and
Share balances. To the extent required under the 1940 Act and rules thereunder,
such records shall be preserved, maintained and made available in accordance
with the provisions of such Act and such rules, and copies or, if required,
originals shall be surrendered promptly to the Transfer Agent on and in
accordance with its request. Records surrendered hereunder shall be in machine
readable form, except to the extent that such records have been maintained only
in paper form.
2. Maintain records of, all proceeds of Share redemptions and
distributions not reinvested in Shares.
3. Prepare and deliver to the Plans periodic account statements showing
for each Plan the total number of Shares held as of the statement closing date,
purchases and redemptions of Shares during the statement period, and dividends
and other distributions paid during the statement period (whether paid in case
or reinvested in Shares), including dates and prices for all transactions.
4. On behalf of and as instructed by each Plan, deliver to Plan
participants (or deliver to the Plans for distribution to Plan participants)
prospectuses, proxy materials, periodic reports to shareholders, and other
materials provided by the Transfer Agent or the Xxxxxxx Funds.
5. Transmit confirmations of Orders to the Plans.
6. Maintain daily and monthly purchase summaries (expressed in both
Share and dollar amounts) for each Plan.
7. Transmit to the Transfer Agent, or to any Xxxxxxx Fund designated by
the Transfer Agent, such occasional and periodic reports as the Transfer Agent
shall reasonably request from time to time to enable it or such Xxxxxxx Fund
to comply with applicable laws and regulations.
SCHEDULE C
THE ADMINISTRATIVE FEES
The Xxxxxxx Funds will pay the Service Provider a monthly fee at an
annualized rate of .15 of 1% (15 basis points) with respect to the Xxxxxxx
Funds listed on Schedule A, of the average daily account balance during the
month for each account registered with Transfer Agent for which Service
Provider performs Administrative Services. If Service Provider begins or ceases
performing Administrative Services during the month, such fee shall be prorated
according to the proportion which such portion of the month bears to the full
month.
