Exhibit (h)(2)
ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT is made as of March 5, 1991, by and
between Xxxxxxxxxx & Co. Inc., a New York corporation ("Xxxxxxxxxx"), and The
Xxxxxxxxxx Funds, a business trust created under the laws of the Commonwealth of
Massachusetts ("Trust").
WHEREAS, Xxxxxxxxxx is the distributor of shares of Trust, an open-
end, diversified management investment company registered under the Investment
Company Act of 1940, as amended; and
WHEREAS, Trust desires to retain Xxxxxxxxxx as administrator to
perform certain administrative services for Trust in addition to its services as
distributor of Trust's shares and Xxxxxxxxxx is willing to render such services
on the terms and conditions hereinafter set forth:
NOW, THEREFORE, the parties agree as follows:
1. Trust hereby appoints Xxxxxxxxxx as administrator of Trust with
respect to the Xxxxxx Capital Appreciation Fund series of shares of beneficial
interest (the Fund") and all other series of shares of beneficial interest of
Trust which may subsequently be created for the period and on the terms set
forth below. Xxxxxxxxxx hereby accepts such appointment and agrees to render the
services described herein for the compensation herein provided, subject to the
overall supervision of the Board of Trustees of Trust.
2. Xxxxxxxxxx shall provide (a) facilities for meetings of the Board
of Trustees and shareholders of Trust (to the extent reasonably requested by
Trust); (b) office facilities (which may be Xxxxxxxxxx'x own offices) and
personnel to assist Trust's officers and Xxxxxx Capital Management, Inc.
("Xxxxxx"), its investment adviser, in the performance of Xxxxxx'x duties under
the Investment Management Agreement between Trust and Xxxxxx; and (c) with
respect to operations of Trust and the Fund other than those relating to
Xxxxxx'x management of the investments of the Fund, statistical and research
data; data processing services; clerical services; internal auditing and legal
services; internal executive and administrative services; stationery and office
supplies; preparation of reports to shareholders of the Fund; assistance in
preparation of tax returns; reports to and filings with the Securities and
Exchange Commission and state Blue Sky authorities; and general assistance in
all aspects of Trust's and the Fund's operations.
All services to be furnished by Xxxxxxxxxx under this Agreement may be
furnished through the medium of any employees of
Xxxxxxxxxx. Xxxxxxxxxx is expressly authorized to delegate any of its duties
hereunder to a sub-administrator for such period of time as Xxxxxxxxxx, in its
sole discretion, deems to be appropriate, having at all times the best interest
of Trust as its standard.
3. Trust will pay Xxxxxxxxxx a fee, computed at the rate of 0.1% per
annum of the average net assets of each series of shares of beneficial interest
of Trust, plus out of pocket expenses, as may be agreed upon in advance,
incurred by Xxxxxxxxxx in the performance of services hereunder. Except as
hereinafter set forth, compensation under this Agreement shall be calculated and
accrued daily and the amounts of the daily accruals shall be paid monthly on the
first business day of each calendar month for services performed hereunder
during the preceding month. The minimum fee to be paid to Xxxxxxxxxx shall be
$2,500.00 per calendar month for each series. If a series of shares of
beneficial interest of Trust is not in operation for a full calendar month, the
monthly minimum fee shall be prorated accordingly. For the purpose of
determining fees payable to Xxxxxxxxxx, the value of the net assets of a series
of shares of beneficial interest of Trust shall be computed at the times and in
the manner specified in the current Prospectus and Statement of Additional
Information for that series of shares of beneficial interest of Trust.
4. Xxxxxxxxxx assumes no responsibility under this Agreement other
than to render the services called for hereunder and specifically assumes no
responsibilities for investment advice, the investment or reinvestment of the
assets of Trust or the determination of the net asset value or net asset value
per share of any series of shares of beneficial interest of Trust.
5. Nothing in this Agreement shall prevent Xxxxxxxxxx or any officer
or employee thereof from acting as administrator for or with any other person,
firm or corporation. While the administrative services supplied to Trust may be
different from those supplied to other persons, firms or corporations,
Xxxxxxxxxx shall give Trust equitable treatment in supplying services.
6. If in any fiscal year the aggregate expenses of the Fund
(including fees pursuant to this Agreement and the investment management
agreement with Xxxxxx, but excluding interest, taxes, brokerage expenses, an
applicable portion of distribution expenses and, with the prior written consent
of the appropriate state securities commissions, extraordinary expenses) exceed
the applicable expense limitation of any state having jurisdiction over the
Fund, Xxxxxxxxxx will reimburse the excess expense to the extent that Xxxxxx
does not do so. Xxxxxxxxxx'x expense reimbursement obligation will be limited
to the amount of its fees received pursuant to this Agreement; however,
Xxxxxxxxxx shall reimburse the Fund for such excess expenses regardless of the
amount of fees paid to it during such fiscal year to the extent that the
securities regulations of any state in which Fund shares are registered and
qualified for sale so require. This expense
reimbursement, if any, will be estimated, reconciled and paid on a quarterly
basis. From time to time Xxxxxxxxxx, in its sole discretion and as it deems
appropriate, may assume certain expenses of the Fund and/or other of Trust's
series of the shares of beneficial interest while retaining the ability to be
reimbursed by the Fund or such other series of the shares of beneficial interest
of Trust for such amounts prior to the end of the fiscal year. Xxxxxxxxxx will
not be reimbursed for such amounts if such action would violate the provisions
of any applicable state securities laws relating to the limitation expenses of
the applicable series of shares of beneficial interest of Trust.
7.(a) Xxxxxxxxxx will keep Trust informed of developments materially
affecting the Fund, and will, on its own initiative, furnish Trust from time to
time with whatever information Xxxxxxxxxx believes is appropriate for this
purpose.
(b) In compliance with the requirements of Rule 31a-3 under the
Investment Company Act of 1940, Xxxxxxxxxx hereby agrees that all records which
it maintains for Trust and the Fund are the property of Trust and further agrees
to surrender promptly to Trust any of such records upon Trust's request.
8. Xxxxxxxxxx and its directors, officers, employees, shareholders
and agents shall not be liable for any error of judgment or mistake of law or
for any loss suffered by Trust or its Trustees in connection with the
performance of this Agreement, except a loss resulting from willful misfeasance
or non-feasance, bad faith, or gross negligence on the part of Xxxxxxxxxx in the
performance of its obligations and duties under this Agreement. Fahenstock
agrees to indemnify Trust and its Trustees against any such loss.
9. Xxxxxxxxxx shall be deemed to be an independent contractor and
shall, unless otherwise expressly provided or authorized, have no authority to
act for or represent Trust in any way or otherwise be deemed to be an agent of
Trust.
10. This Agreement shall become effective as of the date first written
above and shall thereafter continue in effect unless terminated as herein
provided. This Agreement may be terminated by either party hereto (without
penalty) at any time upon not less than 60 days' prior written notice to the
other party hereto and shall terminate upon its assignment by either party
hereto.
11. This Agreement may be amended by mutual written consent.
12. This Agreement shall be construed in accordance with the laws of
the State of New York.
13. Any notice or other communication required to be given pursuant to
this Agreement shall be deemed to have been given if delivered or sent by
registered or certified mail, return
receipt requested, to Xxxxxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Secretary; or The Xxxxxxxxxx Funds at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Secretary.
14. This Agreement sets forth the agreement and understanding of the
parties hereto solely with respect to the relationship between Trust and
Xxxxxxxxxx and the matters covered hereby. Nothing in this Agreement shall
govern, restrict or limit in any way other business dealings between the parties
hereto other than as expressly provided herein.
This Administration Agreement is made by the Trustees, and executed on
their behalf by the undersigned officer, not individually, but as Trustees under
the Trust's declaration of trust, and the obligations of the Trust or any of its
series of shares of beneficial interest are not binding upon any of the Trustees
or Shareholders individually, but bind only the Trust property or the Trust
property of the applicable series of its shares of beneficial interest.
IN WITNESS HEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers and their seals to
be hereunto affixed, all as of the date and year first above written.
XXXXXXXXXX & CO. INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx,
Senior Vice President
THE XXXXXXXXXX FUNDS
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxxx,
President
AMENDATORY AGREEMENT
THIS AMENDATORY AGREEMENT is made as of January 1, 1993, by and between
Xxxxxxxxxx & Co. Inc., a New York corporation ("Xxxxxxxxxx"), and The Xxxxxxxxxx
Funds, a business trust created under the laws of the Commonwealth of
Massachusetts ("Trust").
WHEREAS, Xxxxxxxxxx is the distributor of shares of Trust, an open-end,
diversified management investment company registered under the Investment
Company Act of 1940, as amended; and
WHEREAS, Trust has retained Xxxxxxxxxx as administrator to perform certain
administrative services for Trust in addition to its services as distributor of
Trust's shares pursuant to an Administration Agreement dated as of March 5,
1991, a copy of which is Annex A hereto; and
WHEREAS, the parties desire to amend said Administration Agreement to
eliminate the fee payable to Xxxxxxxxxx; and
WHEREAS, at its meeting on December 1, 1992 the Board of Trustees of the
Trust was informed that Xxxxxxxxxx wished to delete any provision in this
Administration Agreement relating to compensation of Xxxxxxxxxx.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged by Xxxxxxxxxx, the parties agree as follows:
1. The Administration Agreement is amended by deleting therefrom Section 3
in its entirety.
2. Except as provided in Section 1 of this Amendatory Agreement the
Administration Agreement shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused the foregoing instrument
to be executed by their duly authorized officers and their seals to be hereunto
affixed, all as of the date and year first above written.
XXXXXXXXXX & CO. INC.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx,
Senior Vice President
THE XXXXXXXXXX FUNDS
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Xxxxxx X. Xxxxxxxxx,
President
