Exhibit (h)(6)
AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT
AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT, dated this
15th day of May, 2002, between XXXXXXX HIGH YIELD SERIES (the "Fund"), a
Massachusetts business trust and Deutsche Investment Management Americas Inc.
("DeIM" or "Administrator"), a Delaware corporation.
WHEREAS, the Fund is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund is authorized to issue shares of beneficial interest
("Shares") in separate series, with each such series representing interests in
a separate portfolio of securities and other assets; and
WHEREAS, the Fund has established a single series designated as
Xxxxxxx High Yield Fund (the "Series"), which offers four classes of shares,
namely the Class A, Class B, Class C ,Class I and Institutional Class Shares
(collectively, the "Classes"); and
WHEREAS, DeIM provides investment management services pursuant to a
separate Investment Management Agreement; and
WHEREAS, the Fund wishes to retain DeIM to provide administrative and
other services to the Fund with respect to the Series and Classes in the manner
and on the terms hereinafter set forth; and
WHEREAS, DeIM is willing to furnish such services in the manner and on
the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
I. APPOINTMENT. The Fund hereby appoints DeIM as Administrator
to provide the administrative and other services with respect to the Series for
the period and on the terms set forth in this Agreement. The Administrator
accepts such appointment and agrees during such period to render the services
herein set forth for the compensation herein provided. In the event the Fund
establishes and designates additional series with respect to which it desires
to retain the Administrator to render administrative and other services
hereunder and the Administrator is willing to render those services, Schedule A
hereto shall be amended to reflect the compensation payable to the
Administrator on behalf of that series and that series shall become a Series
hereunder.
II. DUTIES. Subject to the general supervision of the Board of
Trustees of the Fund (the "Board"), the Administrator shall provide or procure
all organizational, administrative and other services reasonably necessary for
the operation of the Series and certain other services, all as more
particularly described and except as provided below.
A. ADMINISTRATIVE SERVICES. Subject to the approval or consent of the
Board, the Administrator shall provide or procure, at the Administrator's
expense, services to each Series ("Serieswide Administrative Services") to
include the following: (i) coordinating matters relating to the operation of the
Series, including any necessary coordination among DeIM or other advisers to the
Series, the custodian(s), transfer agent(s), shareholder servicing and dividend
disbursing agent(s), subaccounting and recordkeeping agent(s), pricing agent(s),
independent public accountants, attorneys, and other parties performing services
or operational functions for the Series; (ii) providing the Series with the
services of a sufficient number of persons competent to perform such
administrative and clerical functions as are necessary to ensure compliance with
federal securities laws, as well as other applicable laws, and to provide
effective administration of the Series; (iii) maintaining, or supervising the
maintenance by third parties, of such books and records of the Fund and the
Series as may be required by applicable federal or state law other than the
records and ledgers maintained under the Investment Management Agreement; (iv)
preparing and arranging for the distribution of proxy materials to shareholders
of the Series as required by applicable law; (v) arranging for and paying for
services of the Series' custodian; (vi) arranging for and paying for preparation
of the Series' tax returns; and (vii) taking such other action with respect to
the Series as may be required by applicable law, including, without limitation,
the rules and regulations of the SEC and of state securities commissions and
other regulatory agencies.
Subject to the approval or consent of the Board, the
Administrator shall provide or procure, at the Administrator's expense,
services to each Class of the Series ("Class Administrative Services") to
include the following: (i) transfer agency, shareholder servicing and dividend
disbursing services, and, to the extent allocable to a particular Class,
subaccounting and recordkeeping services; (ii) internal fund accounting
services performed on behalf of each Series; and (iii) preparing and arranging
for the printing and distribution of prospectuses, periodic reports and notices
to shareholders of the Series as required by applicable law. To the extent
that any Serieswide Administrative Services described above are provided to a
particular Class, they may be deemed to be Class Administrative Services.
B. EXPENSES. During the term of this Agreement, the Administrator will
pay all expenses incurred by it in connection with its obligations under this
Agreement, except such expenses as are those of the Series under this Agreement.
The Administrator shall pay for maintaining its staff and personnel and shall,
at its own expense provide the equipment, office space, and facilities necessary
to perform its obligations under this Agreement. In addition, the Administrator
shall, at its expense, furnish to the Fund, any Series or a particular Class
thereof, as applicable, or procure and pay for: (a) usual and customary auditing
services of each Series' independent public accountants; (b) services of each
Series' transfer agent(s), shareholder servicing and dividend disbursing
agent(s), and shareholder recordkeeping agent(s); (c) services of each Series'
custodian, including any recordkeeping services provided by the custodian; (d)
services of each Series' accounting agent(s); (e) services of obtaining
quotations for calculating the value of each Series' net assets; (f) services of
maintaining the Series' tax records; (g) services, including procurement of
legal services, incident to meetings of the Fund's shareholders, the preparation
and filing of registration statements under the Securities Act of 1933, as
amended, and the 1940 Act and any amendments thereto, and reports of the Fund to
its shareholders, the preparation and filing of reports to regulatory bodies,
the maintenance of the Fund's existence and qualification to do business, and
the registration of shares with federal and state securities authorities (except
as described in subsection (gg) below); (h) procurement of
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ordinary legal services, including the services that arise in the ordinary
course of business for a Massachusetts business trust registered as an open-end
management investment company; (i) the Fund's pro rata portion of the fidelity
bond required by Section 17(g) of the 1940 Act, or other insurance premiums; (j)
association membership dues; (k) services to organize and offer shares of the
Fund and the Series; and (l) printing and postage expenses related to the
mailing of periodic reports, prospectuses, statements of additional information
and other shareholder mailings, excluding proxy solicitations; (m) expenses that
are the obligation of a Series pursuant to a special servicing agreement with a
registered investment company that is a holder of shares of the Series and that
may be deemed to be an affiliated person, or an affiliated person of such a
person, as defined in the 1940 Act; and (n) expenses in the nature of avoided
transfer agency costs payable to a person that is a shareholder of record for an
omnibus account on the transfer agency records of the Series. The Fund shall
bear the following expenses: (aa) salaries and other compensation of any of the
Fund's executive officers and employees, if any, who are not officers,
directors, stockholders, or employees of the Administrator or its subsidiaries
or affiliates; (bb) taxes, if any, levied against the Fund or any of its Series;
(cc) brokerage fees and commissions in connection with the purchase and sale of
portfolio securities for any of the Series; (dd) costs, including the interest
expenses, of borrowing money; (ee) fees and expenses of Board members who are
not officers, employees, or stockholders of the Administrator or its
subsidiaries or affiliates, and the fees and expenses of any counsel,
accountants, or any other persons engaged by such Board members in connection
with the duties of their office with the Fund; (ff) extraordinary expenses,
including extraordinary legal expenses to the extent authorized by the Board, as
may arise, including expenses incurred in connection with litigation,
proceedings, other claims and the legal obligations of the Fund to indemnify its
Board members, officers, employees, shareholders, distributors, and agents with
respect thereto; (gg) organizational and offering expenses of the Fund and the
Series to the extent authorized by the Board, and any other expenses which are
capitalized in accordance with generally accepted accounting principles; and
(hh) any expenses allocated to a specific Series pursuant to a shareholder
services or Rule 12b-1 distribution plan.
C. ORGANIZATIONAL SERVICES. The Administrator shall provide the Fund
and the Series, at the Administrator's expense, with the services necessary to
organize any Series that commence operations on or after the date of this
Agreement so that such Series can conduct business as described in the Fund's
Registration Statement.
D. The Administrator shall also make its officers and employees
available to the Board and officers of the Fund for consultation and discussions
regarding the administration of the Series and services provided to the Series
under this agreement.
E. In performing these services, the Administrator: (i) shall conform
with the 1940 Act and all rules and regulations thereunder, all other applicable
federal and state laws and regulations, with any applicable procedures adopted
by the Board, and with the provisions of the Fund's Registration Statement filed
on Form N-1A, as supplemented or amended from time to time, (ii) will make
available to the Fund, promptly upon request, any of the Series' books and
records as are maintained under this Agreement, and will furnish to regulatory
authorities having the requisite authority any such books and records and any
information or reports in connection with the Administrator's services under
this Agreement that may be requested in order to ascertain whether the
operations of the Fund are being conducted in a manner consistent with
applicable laws and regulations, and (iii) will regularly report to the Board on
the services
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provided under this Agreement and will furnish the Board with respect to the
Series such periodic and special reports as the Board may reasonably request.
The Administrator shall keep books and records relating to
the services performed hereunder, in the form and manner, and for such period
as it may deem advisable and is agreeable to the Fund but not inconsistent with
the rules and regulations of appropriate government authorities, in particular,
Section 31 of the 1940 Act and the rules thereunder. The Administrator agrees
that all such records prepared or maintained by the Administrator relating to
the services to be performed by the Administrator pursuant to this Agreement
are the property of the Fund and will be preserved, maintained, and made
available in accordance with such section and rules of the 1940 Act and will be
promptly surrendered to the Fund on and in accordance with its request.
F. The services provided by the Administrator under this Agreement are
in addition to those required to be provided by it under the Investment
Management Agreement entered into between the Administrator and the Fund on
behalf of the Series. Notwithstanding any other provision of the Agreement, all
other services provided by the Administrator under the Investment Management
Agreement will continue to be provided by the Administrator and paid for by the
Fund pursuant to that agreement.
III. INDEPENDENT CONTRACTOR. The Administrator shall for all
purposes herein be deemed to be an independent contractor and shall, unless
otherwise expressly provided herein or authorized by the Board from time to
time, have no authority to act for or represent the Fund in any way or
otherwise be deemed its agent.
IV. COMPENSATION. The Fund shall pay the Administrator on behalf
of the Series a Serieswide Administrative Fee as compensation for the
Serieswide Administrative Services set forth in Section II.A above. Each Class
of the Series shall pay the Administrator on its own behalf a Class
Administrative Fee as compensation for the Class Administrative Services
provided to the Class as set forth in Section II.A above. The Serieswide
Administrative Fee and the Class Administrative Fee shall be at the rates set
forth in Schedule A hereto. The amount of any credit received from the Series'
custodian for cash balances maintained at the custodian shall be subtracted
from the Serieswide Administrative Fee required to be paid by Fund under this
Agreement.
V. NON-EXCLUSIVITY. It is understood that the services of the
Administrator hereunder are not exclusive, and the Administrator shall be free
to render similar services to other investment companies and other clients.
VI. LIABILITY. The Administrator shall give the Fund the benefit
of the Administrator's best efforts in rendering services under this
Agreement. The Administrator may rely on information reasonably believed by it
to be accurate and reliable. As an inducement for the Administrator's
undertaking to render services under this Agreement, the Fund agrees that
neither the Administrator nor the stockholders, officers, directors, or
employees of the Administrator shall be subject to any liability for, or any
damages, expenses or losses incurred in connection with, any act, omission or
mistake in judgment connected with or arising out of any services rendered
under this Agreement, except by reason of willful misfeasance, bad faith, or
negligence in the performance of the Administrator's duties, or by reason of
reckless disregard of
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the Administrator's obligations and duties under this Agreement. This provision
shall govern only the liability to the Fund of the Administrator and that of the
stockholders, officers, directors, and employees of the Administrator, and shall
in no way govern the liability to the Fund or the Administrator of any other
person or provide a defense for such other person, including persons that
provide services for the Series as described in Section II.B or C of this
Agreement.
VII. TERM AND CONTINUATION. This Agreement shall take effect as
of the date hereof, and shall remain in effect, unless sooner terminated as
provided herein, until September 30, 2003, and shall continue thereafter on an
annual basis with respect to each Series, provided that such continuance is
specifically approved at least annually (a) by the vote of a majority of the
Board, or (b) by vote of a majority of the outstanding voting securities of the
Series, and provided continuance is also approved by the vote of a majority of
the Board who are not parties to this Agreement or "interested persons" (as
defined in the 0000 Xxx) of the Fund, cast in person at a meeting called for
the purpose of voting on such approval. This Agreement may be terminated at
any time, without the payment of any penalty with respect to the entire Fund or
only with respect to one or more Series thereof: (a) by the Fund at any time
with respect to the services provided by the Administrator by vote of (1) a
majority of the Board members who are not "interested persons" (as such term is
defined in the 1940 Act) of the Fund, or (2) a majority of the outstanding
voting shares of the Fund or, with respect to a particular Series, by vote of a
majority of the outstanding voting shares of such Series, on 60 days' written
notice to the Administrator; and (b) by the Administrator on or after September
30, 2003, without the payment of any penalty, upon 60 days' written notice to
the Fund.
VIII. NOTICES. Notices of any kind to be given to the
Administrator by the Fund shall be in writing and shall be duly given if mailed
or delivered to the Administrator at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, or to such other address or to such individual as shall be specified by
the Administrator. Notices of any kind to be given to the Fund by the
Administrator shall be in writing and shall be duly given if mailed or
delivered to 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, or to such other
address or to such individual as shall be specified by the Fund.
IX. FUND OBLIGATION. A copy of the Trust's Agreement and
Declaration of Trust, as amended, is on file with the Secretary of The
Commonwealth of Massachusetts, and notice is hereby given that, if this
Agreement has been executed on behalf of the Trust by a Board member, he or she
has done so in his or her capacity as Board member and not individually. The
obligations of this Agreement to pay the Administrator for services provided to
or procured for a Series shall be binding only upon the assets and property of
that Series and shall not be binding upon any Board member, officer, or
shareholder of the Fund individually.
X. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
XI. MISCELLANEOUS. This Agreement shall be governed by the laws
of Massachusetts, provided that nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or order of the SEC thereunder. If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby and, to this extent, the provisions of this Agreement shall
be deemed to be severable. To the extent that any provision of this Agreement
shall be held or made invalid by a court decision, statute, rule or otherwise
with regard to any party hereunder, such provisions
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with respect to other parties hereto shall not be affected thereby. The captions
in this Agreement are included for convenience only and in no way define any of
the provisions hereof or otherwise affect their construction or effect. This
Agreement may not be assigned by the Fund or the Administrator without the
consent of the other party.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below on the day and year first above
written.
XXXXXXX HIGH YIELD
SERIES
By: /s/Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Vice President
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS
INC.
By: /s/Xxxxxxx X. Xxxxxx, Xx.
------------------------------------------
Xxxxxxx X. Xxxxxx, Xx.
Managing Director
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