EXHIBIT 9(A)
XXXXXXXX SERIES TRUST II
ADMINISTRATION AGREEMENT
Agreement, dated and effective as of the 9th day of December, 1997,
between Xxxxxxxx Series Trust II (the "Trust"), a Delaware business trust with
its principal place of business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000,
and Xxxxxxxx Fund Advisors Inc. ("Xxxxxxxx Advisors"), a Maryland corporation
with its principal place of business at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and is authorized to issue shares of beneficial interest in separate series and
classes;
WHEREAS, the Trust has entered into an Investment Advisory Agreement
with Xxxxxxxx Capital Management International Inc. (the "Adviser"), pursuant to
which the Adviser provides investment advisory services for the Trust's series;
WHEREAS, the Trust desires that Xxxxxxxx Advisors perform certain
administrative services for each series of the Trust as listed in Appendix A
hereto (each, a "Fund") and each class of shares of each Fund, if any, and
Xxxxxxxx Advisors is willing to provide these services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises contained herein, the Trust and Xxxxxxxx Advisors agree as follows:
SECTION 1. APPOINTMENT. The Trust hereby appoints Xxxxxxxx Advisors as
administrator of the Trust and of each Fund and any class of shares thereof, and
Xxxxxxxx Advisors hereby accepts such appointment, all in accordance with the
terms and conditions of this Agreement. In connection therewith, the Trust has
delivered to Xxxxxxxx Advisors copies of its Trust Instrument and the Trust's
registration statement on Form N-1A, and all amendments thereto, filed pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), or the 1940
Act (the "Registration Statement"), and the current prospectus and statement of
additional information of each Fund and any class thereof (collectively, as
currently in effect and as amended or supplemented, the "Prospectus"), all in
such manner and to such extent as may from time to time be authorized by the
Trust's Board of Trustees (the "Board"), and shall promptly furnish Xxxxxxxx
Advisors with all amendments of or supplements to the foregoing.
SECTION 2. FURNISHING OF EXISTING ACCOUNTS AND RECORDS. The Trust shall
promptly turn over to Xxxxxxxx Advisors such of the accounts and records
previously maintained by or for it as are necessary for Xxxxxxxx Advisors to
perform its functions under this Agreement. The Trust authorizes Xxxxxxxx
Advisors to rely on such accounts and records turned over to it and hereby
indemnifies and will hold Xxxxxxxx Advisors, its successors and assigns,
harmless of and from any and all expenses, damages, claims, suits, liabilities,
actions, demands and losses whatsoever arising out of or in connection with any
error, omission, inaccuracy or other deficiency of such accounts and records or
in the failure of the Trust to provide any portion of such or to provide any
information needed by Xxxxxxxx Advisors to knowledgeably perform its functions.
SECTION 3. ADMINISTRATIVE DUTIES
(a) Subject to the direction and control of the Board and in
cooperation with the Adviser, Xxxxxxxx Advisors shall provide, or oversee, as
applicable, administrative services necessary for the Trust's operations with
respect to each Fund except those services that are the responsibility of the
Adviser or the Trust's custodian or transfer agent, all in such manner and to
such extent as may be authorized by the Board.
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(b) With respect to the Trust, each Fund and any class thereof, as
applicable, Xxxxxxxx Advisors shall:
(i) oversee: (A) the preparation and maintenance by the
Adviser and the Trust's subadministrator, custodian, transfer
agent, dividend disbursing agent and fund accountant in such
form, for such periods and in such locations as may be
required by applicable law, of all documents and records
relating to the operation of the Trust or a Fund required to
be prepared or maintained by the Trust or its agents pursuant
to applicable law; (B) the reconciliation of account
information and balances among the Adviser and the Trust's
custodian, transfer agent, dividend disbursing agent and fund
accountant; (C) the transmission of purchase and redemption
orders for shares; (D) the notification to the Adviser of
available funds for investment; and (E) the performance of
fund accounting, including the calculation of the net asset
value of the shares;
(ii) oversee the performance of administrative and
professional services rendered to the Trust by others,
including its subadministrator, custodian, transfer agent and
dividend disbursing agent as well as legal, auditing and
shareholder servicing and other services performed for each
Fund or class thereof;
(iii) oversee the preparation and the printing of the
periodic updating of the Registration Statement and
Prospectus, tax returns, and reports to shareholders, the
Securities and Exchange Commission and state securities
commissions;
(iv) oversee the preparation of proxy and
information statements and any other communications to
shareholders;
(v) at the request of the Board, provide the Trust
with adequate general office space and facilities and provide
persons suitable to the Board to serve as officers of the
Trust;
(vi) provide the Trust, at the Trust's request, with
the services of persons who are competent to perform such
supervisory or administrative functions as are necessary for
effective operation of the Trust;
(vii) oversee the preparation, filing and maintenance
of the Trust's governing documents, including the Trust
Instrument and minutes of meetings of Trustees and
shareholders;
(viii) oversee with the cooperation of the Trust's
counsel, the Adviser, and other relevant parties, preparation
and dissemination of materials for Board meetings;
(ix) monitor sales of shares and ensure that such
shares are properly and duly registered with the Securities
and Exchange Commission and applicable state securities
commissions;
(x) oversee the calculation of performance data for
dissemination to information services covering the investment
company industry, for sales literature of the Trust and other
appropriate purposes;
(xi) oversee the determination of the amount of, and
supervise the payment of, dividends and other distributions to
shareholders as necessary to, among other things, maintain the
qualification of each Fund as a regulated investment company
under the Internal Revenue Code of 1986, as amended, and
prepare and distribute to appropriate parties notices
announcing the declaration of dividends and other
distributions to shareholders; and
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(xii) advise the Trust and its Board on matters
concerning the affairs of the Trust or a Fund.
(c) Xxxxxxxx Advisors shall oversee the preparation and maintenance, or
cause to be prepared and maintained, records in such form for such periods and
in such locations as may be required by applicable regulations, all documents
and records relating to the services provided to the Trust pursuant to this
Agreement required to be maintained pursuant to the 1940 Act, rules and
regulations of the Securities and Exchange Commission, the Internal Revenue
Service and any other national, state or local government entity with
jurisdiction over the Trust. The accounts and records pertaining to the Trust
that are in possession of Xxxxxxxx Advisors, or an entity subcontracted by
Xxxxxxxx Advisors, shall be the property of the Trust. The Trust, or the Trust's
authorized representatives, shall have access to such accounts and records at
all times during Xxxxxxxx Advisors', or its subcontractor's, normal business
hours. Upon the reasonable request of the Trust, copies of any such accounts and
records shall be provided promptly by Xxxxxxxx Advisors to the Trust or the
Trust's authorized representatives. In the event the Trust designates a
successor to any of Xxxxxxxx Advisors' obligations under this agreement,
Xxxxxxxx Advisors shall, at the expense and direction of the Trust, transfer to
such successor all relevant books, records and other data established or
maintained by Xxxxxxxx Advisors, or its subcontractor, under this Agreement.
SECTION 4. STANDARD OF CARE
(a) Xxxxxxxx Advisors, in performing under the terms and conditions of
this Agreement, shall use its best judgment and efforts in rendering the
services described herein, and shall incur no liability for its status under
this Agreement or for any reasonable actions taken or omitted in good faith. As
an inducement to Xxxxxxxx Advisors' undertaking to render these services, the
Trust hereby agrees to indemnify and hold harmless Xxxxxxxx Advisors, its
employees, agents, officers and directors, from any and all loss, liability and
expense, including any legal expenses, arising out of Xxxxxxxx Advisors'
performance under this Agreement, or status, or any act or omission of Xxxxxxxx
Advisors, its employees, agents, officers and directors; provided that this
indemnification shall not apply to Xxxxxxxx Advisors' actions taken or failures
to act in cases of Xxxxxxxx Advisors' own bad faith, willful misconduct or gross
negligence in the performance of its duties under this Agreement; and further
provided, that Xxxxxxxx Advisors shall give the Trust notice and reasonable
opportunity to defend against any such loss, claim, damage, liability or expense
in the name of the Trust or Xxxxxxxx Advisors, or both. The Trust will be
entitled to assume the defense of any suit brought to enforce any such claim or
demand, and to retain counsel of good standing chosen by the Trust and approved
by Xxxxxxxx Advisors,such approval not to which approval shall be unreasonably
withheldnot be withheld unreasonably. In the event the Trust does elect to
assume the defense of any such suit and retain counsel of good standing approved
by Xxxxxxxx Advisors, the defendant or defendants in such suit shall bear the
fees and expenses of any additional counsel retained by any of them; but in case
the Trust does not elect to assume the defense of any such suit, or in case
Xxxxxxxx Advisors does not approve of counsel chosen by the Trust or Xxxxxxxx
Advisors has been advised that it may have available defenses or claims that are
not available or conflict with those available to the Trust, the Trust will
reimburse Xxxxxxxx Advisors, its employees, agents, officers and directors for
the fees and expenses of any one counsellaw firm retained as counsel by Xxxxxxxx
Advisors or them. Xxxxxxxx Advisors may, at any time, waive its right to
indemnification under this agreement and assume its own defense. The provisions
of paragraphs (b) through (d) of this Section 4 should not in any way limit the
foregoing:
(a) Xxxxxxxx Advisors may rely upon the advice of the Trust or of
counsel, who may be counsel for the Trust or counsel for Xxxxxxxx Advisors, and
upon statements of accountants, brokers and other persons believed by it in good
faith to be expert in the matters upon which they are consulted, and Xxxxxxxx
Advisors shall not be liable to anyone for any actions taken in good faith upon
such statements.
(b) Xxxxxxxx Advisors may act upon any oral instruction that it
receives and that it believes in good faith was transmitted by the person or
persons authorized by the Board to give such oral instruction. Xxxxxxxx Advisors
shall have no duty or obligation to make any inquiry or effort of certification
of such oral instruction.
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(c) Xxxxxxxx Advisors shall not be liable for any action taken in good
faith reliance upon any written instruction or certified copy of any resolution
of the Board, and Xxxxxxxx Advisors may rely upon the genuineness of any such
document or copy thereof reasonably believed in good faith by Xxxxxxxx Advisors
to have been validly executed.
(d) Xxxxxxxx Advisors may rely and shall be protected in acting upon
any signature, instruction, request, letter of transmittal, certificate, opinion
of counsel, statement, instrument, report, notice, consent, order, or other
paper document believed by it to be genuine and to have been signed or presented
by the purchaser, Trust or other proper party or parties.
SECTION 5. EXPENSES
(a) Subject to any agreement by Xxxxxxxx Advisors or other person to
reimburse any expenses of the Trust that relate to any Fund, the Trust shall be
responsible for and assume the obligation for payment of all of its expenses,
including: (a) the fee payable under Section 6 hereof; (b) any fees payable to
the Adviser; (c) any fees payable to Xxxxxxxx Advisors; (d) expenses of issue,
repurchase and redemption of shares; (e) interest charges, taxes and brokerage
fees and commissions; (f) the cost (or appropriate share thereof) of reasonable
premiums for errors and omissions and other liability insurance policy of FFSI;
(g) premiums of insurance for the Trust, its Trustees and officers and fidelity
bond premiums; (hg) fees, interest charges and expenses of third parties,
including the Trust's custodian, transfer agent, dividend disbursing agent and
fund accountant; (ih) fees of pricing, interest, dividend, credit and other
reporting services; (ij) costs of membership in trade associations; (kj)
telecommunications expenses; (l) funds transmission expenses; (m) auditing,
legal and compliance expenses; (n) costs of forming the Trust and maintaining
its existence; (o) to the extent permitted by the 1940 Act, costs of preparing
and printing the Funds' Prospectuses, application forms and shareholder reports
and delivering them to existing shareholders; (p) expenses of meetings of
shareholders and proxy solicitations therefor; (q) costs of maintaining books of
original entry for portfolio and fund accounting and other required books and
accounts, of calculating the net asset value of shares of a Fund of the Trust
and of preparing tax returns; (r) costs of reproduction, stationery and
supplies; (s) fees and expenses of the Trust's Trustees; (t) compensation of the
Trust's officers and employees who are not employees of the Adviser or Sub-
Xxxxxxxx Advisors or their respective affiliated persons, and costs of other
personnel (who may be employees of the Adviser, Xxxxxxxx Advisors or their
respective affiliated persons) performing services for the Trust; (u) costs of
Trustee meetings; (v) Securities and Exchange Commission registration fees and
related expenses; (w) state or foreign securities laws registration fees and
related expenses; and (x) all fees and expenses paid by the Trust in accordance
with any distribution plan adopted pursuant to Rule 12b-1 under the 1940 Act or
under any shareholder service plan or agreement.
(b) If the aggregate expenses of every character incurred by, or
allocated to, a Fund in any fiscal year, other than interest, taxes, brokerage
commissions and other portfolio transaction expenses, other expenditures that
are capitalized in accordance with generally accepted accounting principles, and
any extraordinary expense (including, without limitation, litigation and
indemnification expense), but including the fees provided for in Section 6 and
under an investment advisory agreement with respect to a Fund ("includable
expenses"), shall exceed the expense limitations applicable to that Fund imposed
by state securities law or regulations thereunder, as these limitations may be
raised or lowered from time to time, Xxxxxxxx Advisors shall pay that Fund an
amount equal to a percentage of that excess ("Xxxxxxxx Advisors'
reimbursement"), such Xxxxxxxx Advisors' reimbursement to be in an amount
proportionate to the total fees payable on behalf of that Fund to Xxxxxxxx
Advisors and the Adviser. With respect to portions of a fiscal year in which
this Agreement shall be in effect, the foregoing limitations shall be prorated
according to the proportion which that portion of the fiscal year bear to the
full fiscal year. At the end of each month of the Trust's fiscal year, Xxxxxxxx
Advisors will review the includable expenses accrued during that fiscal year to
the end of the period and shall estimate the contemplated includable expenses
for the balance of that fiscal year. If, as a result of that review and
estimation, it appears likely that the includable expenses will exceed the
limitations referred to in this Section 5(b) for a fiscal year, the monthly fees
payable to Xxxxxxxx Advisors under this Agreement for such month shall be
reduced, subject to a later reimbursement to reflect actual expenses, by an
amount equal to a percentage (which shall be equal to Xxxxxxxx Advisors'
reimbursement) of a pro rata portion
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(prorated on the basis of the remaining months of the fiscal year, including the
month just ended) of the amount by which the includable expenses for the fiscal
year (less an amount equal to the aggregate of actual reductions made pursuant
to this provision with respect to prior months of the fiscal year) are expected
to exceed the limitations provided in this Section 5(b). For purposes of the
foregoing, the value of the net assets of each Fund shall be computed in the
manner specified in Section 6, and any payments required to be made by Xxxxxxxx
Advisors shall be made once a year promptly after the end of the Fund's fiscal
year.
SECTION 6. COMPENSATION
(a) In consideration of the services performed by Xxxxxxxx Advisors
under this Agreement, the Trust will pay Xxxxxxxx Advisors, with respect to each
Fund, a fee at the annual rate listed in Appendix B hereto. Such fee shall be
accrued by the Trust daily and shall be payable monthly in arrears on the first
day of each calendar month for services performed under this Agreement during
the prior calendar month. (a) For the administrative services provided by the
Sub-Administrator pursuant to this AgreementIf the fees payable pursuant to this
provision begin to accrue before the end of any month or if this Agreement
terminates before the end of any month, the fees for the period from that date
to the end of that month or from the beginning of that month to the date of
termination, as the case may be, shall be prorated according to the proportion
that the period bears to the full month in which the effectiveness or
termination occurs. Upon the termination of this Agreement, the Trust shall pay
to Sub- Xxxxxxxx AdvisorsAdministrat such compensation as shall be payable prior
to the effective date of such termination.
(b) In the event that this Agreement is terminated, Xxxxxxxx Advisors
shall be reimbursed for reasonable charges and disbursements associated with
promptly transferring to its successor as designated by the Trust the original
or copies of all accounts and records maintained by Xxxxxxxx Advisors under this
Agreement, and cooperating with, and providing reasonable assistance to its
successor in the establishment of the accounts and records necessary to carry
out the successor's or other person's responsibilities.
(c) Notwithstanding anything in this Agreement to the contrary,
Xxxxxxxx Advisors and its affiliated persons may receive compensation or
reimbursement from the Trust with respect to: (i) the provision of services on
behalf of a Fund or a class thereof in accordance with any distribution plan
adopted by the Trust with respect to such Fund or class, pursuant to Rule 12b-1
under the 1940 Act: or (ii) the provision of shareholder support or other
services, including shareholder subaccounting services or (iii) service as a
Director or officer of the Fund.
SECTION 7. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the date first above
written with respect to each Fund of the Trust then existing and shall relate to
every other fund created as of the later of the date on which the Trust's
Registration Statement relating to the shares of such fund becomes effective or
the fund commences operations.
(b) This Agreement shall continue in effect for twelve months and,
thereafter, shall be automatically renewed each year for an additional term of
one year.
(c) This Agreement may be terminated with respect to a Fund at any
time, without the payment of any penalty: (i) by the Board on 60 days' written
notice to Xxxxxxxx Advisors, or (ii) by Xxxxxxxx Advisors on 60 days' written
notice to the Trust. Upon receiving notice of termination by Xxxxxxxx Advisors,
the Trust shall use its best efforts to obtain a successor administrator. Upon
receipt of written notice from the Trust of the appointment of a successor and
upon payment to Xxxxxxxx Advisors of all fees owed through the effective
termination date, and reimbursement for reasonable charges and disbursements,
Xxxxxxxx Advisors shall promptly transfer to the successor administrator the
original or copies of all accounts and records maintained by Xxxxxxxx Advisors
under this Agreement including, in the case of records maintained on computer
systems, copies of such records in machine-readable form, and shall cooperate
with, and provide reasonable assistance to, the successor administrator in the
establishment of the accounts and records necessary to carry out the successor
administrator's responsibilities.
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For so long as Xxxxxxxx Advisors continues to perform any of the services
contemplated by this Agreement after termination of this Agreement as agreed to
by the Trust and Xxxxxxxx Advisors, the provisions of Sections 4 and 6 hereof
shall continue in full force and effect.
SECTION 8. ACTIVITIES OF XXXXXXXX ADVISORS
(a) Except to the extent necessary to perform Xxxxxxxx Advisors'
obligations under this Agreement, nothing herein shall be deemed to limit or
restrict the right of Xxxxxxxx Advisors, or any affiliate of Xxxxxxxx Advisors,
or any employee of the Xxxxxxxx Advisors, to engage in any other business or to
devote time and attention to the management or other aspects of any other
business, whether of a similar or dissimilar nature, or to render services of
any kind to any other corporation, firm, individual or association.
(b) Xxxxxxxx Advisors may subcontract any or all of its functions or
responsibilities pursuant to this Agreement to one or more corporations, trusts,
firms, individuals or associations, which may be affiliates of Xxxxxxxx
Advisors, who agree to comply with the terms of this Agreement. Xxxxxxxx
Advisors may pay those persons for their services, but no such payment will
increase Xxxxxxxx Advisors' compensation from the Trust.
SECTION 9. COOPERATION WITH INDEPENDENT AUDITORS. Xxxxxxxx Advisors
shall cooperate, if applicable, with the Trust's independent auditors and shall
take reasonable action to make all necessary information available to such
auditors for the performance of their duties.
SECTION 10. SERVICE DAYS. Nothing contained in this Agreement is
intended to or shall require Xxxxxxxx Advisors, in any capacity under this
agreement, to perform any functions or duties on any day other than a business
day of the Trust or of a Fund or class thereof. Functions or duties normally
scheduled to be performed on any day that is not a business day of the Trust or
of a Fund shall be performed on, and as of, the next business day, unless
otherwise required by law.
SECTION 11. NOTICES. Any notice or other communication required by or
permitted to be given in connection with this Agreement shall be in writing and
shall be delivered in person, or by first-class mail, postage prepaid, or by
overnight or two-day private mail service to the respective party. Notice to the
Trust shall be given as follows or at such other address as the Trust may
designate in writing:
Xxxxxxxx Series Trust XX
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Notice to Xxxxxxxx Advisors shall be given as follows or at such other
address as Xxxxxxxx Advisors may designate in writing:
Xxxxxxxx Fund Advisors Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notices and other communications received by the parties at the
addresses listed above shall be deemed to have been properly given.
SECTION 12. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY. The
Trustees of the Trust and the shareholders of each Fund shall not be liable for
any obligations of the Trust or of the Fund under this Agreement, and Xxxxxxxx
Advisors agrees that, in asserting any rights or claims under this Agreement, it
shall look only to the assets and property of the Trust or the Fund to which
Xxxxxxxx Advisors' rights or claims relate in settlement of such rights or
claims, and not to the Trustees of the Trust or the shareholders of the Fund.
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SECTION 13. MISCELLANEOUS
(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(b) This Agreement may be executed in two or more counterparts, each of
which, when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
(c) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(d) Section and Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(e) This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Trust without the written
consent of Xxxxxxxx Advisors, or by Xxxxxxxx Advisors, without the written
consent of the Trust authorized or approved by a resolution of the Board.
(f) This Agreement shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
XXXXXXXX SERIES TRUST II
By: /S/ XXXXXXXXX X. XXXXX
-------------------------------
Xxxxxxxxx X. Xxxxx
Vice President
XXXXXXXX FUND ADVISORS INC.
By: /S/ XXXXXXXXX XXX
--------------------------------
Xxxxxxxxx Xxx
Senior Vice President
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XXXXXXXX SERIES TRUST II
ADMINISTRATION AGREEMENT
APPENDIX A
FUNDS OF THE TRUST
Xxxxxxxx All-Asia Fund
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XXXXXXXX SERIES TRUST II
ADMINISTRATION AGREEMENT
APPENDIX A
ADMINISTRATION FEES
Fee as % of the Average Annual
FUNDS OF THE TRUST DAILY NET ASSETS OF THE FUND
----------------- ------------------------------
Xxxxxxxx All-Asia Fund 0.05%
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