AMENDED
ADMINISTRATION AGREEMENT
AGREEMENT made this day of , 199_ by and between
The Xxxxx Growth Fund, Inc., a Minnesota corporation (hereinafter called the
"Fund"), and Princeton Administrators, L.P., a Delaware limited partnership
(hereinafter called the "Administrator");
WITNESSETH
WHEREAS, The Fund intends to convert into an open-end management investment
company and to be registered as such under the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, The Fund and Xxxxx Associates, Inc. (the "Investment Adviser") are
entering into an Amended Investment Advisory Agreement (the "Investment
Agreement") pursuant to which the Investment Adviser will agree to act as
investment adviser for, and to manage the affairs, business and investment of
the assets of the Fund;and
WHEREAS, The Fund desires to continue to retain the Administrator to render
certain administrative services in the manner and on the terms and conditions
hereafter set forth; and
WHEREAS, The Administrator desires to be retained to perform such services
on said terms and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafer contained, the Fund and the Administrator agree as follows:
1. DUTIES OF THE ADMINISTRATOR. The Fund hereby retains the
Administrator to act as administrator of the Fund, subject to the supervision
and direction of the Board of Directors of the Fund, as hereinafter set forth.
The Administrator shall perform or arrange for the performance of the following
administrative and clerical services: (i) maintain and keep certain books and
records of the Fund; (ii) prepare or review and, subject to approval by the
Fund, file certain reports and other documents required by U.S. Federal, state
(subject to and contingent upon the Fund's transfer agent providing sales and
redemption data to the Administrator via an automated data electronic feed
system compatible with the Administrator's system and acceptable to the
Administrator) and other applicable U.S. laws and regulations to maintain the
Fund's registration as an open-end investment company; (iii) coordinate tax
related matters; (iv) respond to inquiries from Fund shareholders; (v) calculate
and publish, or arrange for the calculation and publication of, the net asset
value of the Fund's shares; (vi) oversee, and, as the Board may reasonably
request or deem appropriate, make reports and recommendations to the Board on,
the performance of administrative and professional services rendered to the Fund
by others, including its custodian and any subcustodian, registrar, transfer
agent, dividend disbursing agent and dividend reinvestment plan agent, as well
as accounting, auditing and other services; (vii) provide the Fund with the
services of persons competent to perform the foregoing administrative and
clerical functions; (viii) provide the, Fund with administrative offices and
data processing facilities; (ix) arrange for payment of the Fund's expenses; (x)
consult with the Fund's officers, independent accountants, legal counsel,
custodian and any sub-custodian, registrar, transfer agent, and dividend
disbursing agent and dividend reinvestment plan agent in establishing the
accounting policies of the Fund; (xi) prepare such financial information and
reports as may be required by any banks from which the Fund borrows funds; and
(xii) provide such assistance to the Investment Adviser, the custodian and any
sub-custodian, and the Fund's counsel and auditors as generally may be required
to carry on properly the business and operations of the Fund. The Fund agrees
to cause the transfer agent, the custodian and the Investment Adviser to
deliver, on a timely basis, such information to the Administrator
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as may be necessary or appropriate for the Administrator's performance of its
duties and responsibilities hereunder, including but not limited to, daily
records of transactions, daily valuation of investments in local currency (which
may be based on information provided by a pricing service) as well as the daily
conversion factor in order for the Administrator to price the Fund in United
States dollars, reports of expenses borne by the Fund, the Fund management
letter to stockholders and such other information necessary for the
Administrator to prepare the above referenced reports and filings, and the
Administrator shall be entitled to rely on the accuracy and completeness of such
information in performing its duties hereunder.
2. EXPENSES OF THE ADMINISTRATOR. The Administrator assumes and shall
pay for maintaining the staff and personnel necessary to perform its obligations
under this Agreement, and shall at its own expense, provide office space,
facilities, equipment and necessary personnel which it is obligated to provide
under paragraph 1 hereof, except that the Fund shall pay reasonable travel
expenses of persons who perform administrative, clerical and bookkeeping
functions on behalf of the Fund. The Fund and the Investment Adviser assume and
shall pay or cause to be paid all other expenses of the Fund as set forth in the
Investment Agreement. The expenses of legal counsel and accounting experts
retained by the Administrator, after consulting with the Fund counsel and
independent auditors, as may be necessary or appropriate for the Administrator's
performance of its duties and responsibilities under this Agreement are deemed
expenses of, and shall be paid by, the Fund.
3. COMPENSATION OF THE ADMINISTRATOR. For the services rendered to the
Fund by the Administrator pursuant to this Agreement, the Fund shall pay to the
Administrator on the first business day of each calendar month a fee for the
previous month at an annual rate equal to the greater of (i) $125,000 per annum
($10,416.66 per month), or (ii) at an annual rate equal to 0.20% of the Fund's
net assets up to and including U.S. $600 million and 0.175% of the Fund's net
assets in excess of U.S. $600 million. For the purpose of determining fees
payable to the Administrator, the
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net assets of the Fund shall mean the value of the total assets of the Fund,
minus the sum of the accrued liabilities of the Fund exclusive of capital stock
and surplus. The value of the Fund's net assets shall be computed at the times
and in the manner specified in the Fund's registration statement on Form N-1A,
as amended from time to time (the "Registration Statement"). Compensation by
the Fund of the Administrator shall commence on the date of the conversion of
the Fund from a closed-end investment company to an open-end investment company
and the fee for the period from the date the Fund converts to an open-end Fund
as aforesaid to the end of the month during which such proceeds are so received,
shall be pro-rated according to the proportion that such period bears to the
full monthly period. Upon termination of this Agreement before the end of a
month, the fee for such part of that month shall be prorated according to the
proportion that such period bears to the full monthly period and shall be
payable within seven (7) days after the date of termination of this Agreement.
4. LIMITATION OF LIABILITY OF THE ADMINISTRATOR; INDEMNIFICATION.
(a) The Administrator shall not be liable to any person for any error of
judgment or mistake of law or for any loss arising out of any act or omission by
the Administrator in the performance of its duties hereunder; provided, however,
that nothing herein contained shall be construed to protect the Administrator
against any liability to the Fund to which the Administrator shall otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties, or by reckless disregard of its obligations and
duties hereunder.
(b) The Administrator may, with respect to questions of law, apply for and
obtain the advice or opinion of legal counsel and, with respect to the
application of generally accepted accounting principles or Federal tax
accounting principles, apply for and obtain the advice or opinion of accounting
experts. The Administrator shall be fully protected with respect to any action
taken or omitted by it in good faith in conformity with such advice or opinion.
(c) The Fund agrees to indemnify and hold harmless the Administrator from
and against all charges, claims, expenses (including legal fees) and liabilities
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reasonably incurred by the Administrator in connection with the performance of
its duties hereunder, except such as may arise from the Administrator's willful
misfeasance, bad faith, gross negligence in the performance of its duties or by
reckless disregard of its obligations and duties hereunder. The Fund shall make
advance payments in connection with the expenses of defending any action with
respect to which indemnification might be sought hereunder if the Fund receives
a written affirmation of the Administrator's good faith belief that the standard
of conduct necessary for indemnification has been met and a written undertaking
to reimburse the Fund unless it is subsequently determined that the
Administrator is entitled to such indemnification and if the Directors of the
Fund determine that the facts then known to them would not preclude
indemnification. In addition, at least one of the following conditions must be
met: (A) the Administrator shall provide a security for this undertaking, (B)
the Fund shall be insured against losses arising by reason of any lawful
advances, or (C) a majority of a quorum consisting of Directors of the Fund who
are neither "interested persons" of the Fund (as defined in Section 2(a) (19) of
the 0000 Xxx) nor parties to the proceeding ("Disinterested Non-Party
Directors") or an independent legal counsel in a written opinion, shall
determine, based on a review of readily available facts (as opposed to a full
trial-type inquiry), that there is reason to believe that the Administrator
ultimately will be found entitled to indemnification.
(d) As used in this Paragraph 4, the term "Administrator" shall include
any affiliates of the Administrator performing services for the Fund
contemplated hereby and directors, partners, officers, agents and employees of
the Administrator and such affiliates.
5. ACTIVITIES OF THE ADMINISTRATOR. The services of the Administrator
under this Agreement are not to be deemed exclusive, and the Administrator and
any person controlled by or under common control with the Administrator shall be
free to render similar services to others.
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6. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall
become effective as of the date first above written and shall remain in force
until terminated as provided herein. This Agreement may be terminated at any
time, without the payment of any penalty, by the Fund on sixty days' written
notice to the Administrator and by the Administrator on ninety days' written
notice to the Fund. This Agreement shall automatically terminate in the event
of its assignment.
7. AMENDMENTS OF THIS AGREEMENT. This Agreement may be amended by the
parties hereto only if such amendment is specifically approved by the Board of
Directors of the Fund and such amendment is set forth in a written instrument
executed by each of the parties hereto.
8. GOVERNING LAW. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of New York as at the
time in effect and the applicable provisions of the 1940 Act. To the extent
that the applicable law of the State of New York, or any of the provisions
herein, conflict with the applicable provisions of the 1940 Act, the latter
shall control.
9. COUNTERPARTS. This Agreement may be executed by the parties hereto in
counterparts and if executed in more than one counterpart, the separate
instruments shall constitute one agreement.
10. Notices. Any notice under this Agreement, shall be in writing
and shall be deemed to be received on the earlier of the date actually received
or on the fourth day after the postmark if such notice is mailed first class
postage prepaid. Notice shall be addressed: (a) if to the Administrator, to:
President, Princeton Administrators, L.P., X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxxxx
00000-0000; or (b) if to the Fund, to: Chairman, The Xxxxx Growth Fund, Inc.,
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE XXXXX GROWTH FUND, INC.
By:
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Title:
PRINCETON ADMINISTRATORS, L.P.
By: Princeton Services, Inc., General
Partner
By:
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Title:
Revised 9/95
sbb/agreements/Xxxxx-GF:
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