ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of the 16th day of May, 2000 by and between Xxxxxx Xxxxxx
& Company, L.P. and Xxxxxx Xxxxxx Investment Trust ( the "Trust").
WITNESSETH:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust desires to engage Xxxxxx to provide certain
administrative services to the Trust in the manner and on the terms set forth in
this Agreement, and Xxxxxx wishes to perform such services;
NOW, THEREFORE, in consideration of the premises and covenants hereinafter
contained, the parties hereby agree as follows:
1. APPOINTMENT AND ACCEPTANCE. The Trust hereby engages Xxxxxx to act as
Administrator of the Trust on the terms set forth in this agreement. Xxxxxx
hereby accepts such engagement and agrees to furnish the services and to assume
the obligations herein set forth for the compensation herein provided. The Trust
will initially consist of the series and/or classes of shares (each a "Fund" and
collectively, the "Funds") listed on Schedule A to this Agreement. In the event
that the Trust establishes one or more additional Funds with respect to which
the Trust wishes to employ Xxxxxx to act as Administrator hereunder, the Trust
shall notify Xxxxxx in writing. Upon written acceptance by Xxxxxx, such Fund
shall become subject to the provisions of this Agreement to the same extent as
the existing Funds, except to the extent that such provisions (including those
relating to the compensation and expenses payable by the Trust and its Funds)
may be modified with respect to each additional Fund in writing by the Trust and
Xxxxxx at the time of the addition of the Fund.
2. SERVICES PROVIDED BY XXXXXX.
(a) Xxxxxx shall perform or arrange for the performance of the various
accounting, administrative, compliance and legal services listed in Schedule B
hereto. The services provided hereunder shall be subject to the control,
supervision and direction of the Trust and to review and comment by the Trust's
auditors and legal counsel and shall be performed in accordance with procedures
which may be established from time to time between the Trust and Xxxxxx. Xxxxxx
shall provide the office space, facilities, equipment and the personnel required
by it to perform the services contemplated herein.
(b) In providing any or all of the services listed in Schedule B hereto,
and in satisfaction of its obligations to provide such services, Xxxxxx may
enter into agreements with one or more other third parties to provide such
services to the Trust; provided, however, that
Xxxxxx shall be as fully responsible to the Trust for the acts and omissions of
any such third party service providers as it would be for its own acts or
omissions hereunder.
3. COMPENSATION AND EXPENSES.
(a) For the services provided by Xxxxxx hereunder, the Trust shall
reimburse Xxxxxx, except as Xxxxxx may otherwise agree, for its expenses
incurred in performing the services listed in Schedule B hereto, including,
without limitation, personnel, overhead and out-of-pocket expenses incurred in
performing such services.
(b) The foregoing reimbursement will be accrued daily and billed monthly in
arrears by Xxxxxx. The Trust shall reimburse such expenses promptly upon receipt
of an invoice therefor.
(c) The Trust will bear all expenses that are incurred in its operation and
not specifically assumed by Xxxxxx. Except as otherwise agreed by Xxxxxx,
expenses to be borne by the Trust include, but are not limited to:
organizational expenses; cost of services of independent accountants and outside
legal and tax counsel (including such counsel's review of the Trust's
registration statement, proxy materials, federal and state tax qualification as
a regulated investment company and other reports and materials prepared by
Xxxxxx under this Agreement); cost of any services contracted for by the Trust
directly from parties other than Xxxxxx; cost of trading operations and
brokerage fees, commissions and transfer taxes in connection with the purchase
and sale of securities for the Funds; investment advisory fees; taxes, insurance
premiums and other fees and expenses applicable to its operation; costs
incidental to any meetings of shareholders including, but not limited to, legal
and accounting fees, proxy filing fees and the costs of preparation, printing
and mailing of any proxy materials; costs incidental to Board meetings,
including fees and expenses of Board members; the salary and expenses of any
non-affiliated officer or director/trustee or any employee of the Trust; costs
incidental to the preparation, printing and distribution of the Trust's
registration statement and any amendments thereto and shareholder reports; cost
of typesetting and printing of prospectuses; cost of preparation and filing of
each of the Funds tax returns, Form N-1A and Form N-SAR, and all notices,
registrations and amendments associated with applicable federal and state tax
and securities laws; all applicable registration fees and filing fees required
under federal and state securities laws; fidelity bond and directors' and
officers' liability insurance; and cost of independent pricing services used in
computing each Fund's net asset value.
4. LIMITATION OF LIABILITY; INDEMNIFICATION.
(a) Xxxxxx shall not be liable to the Trust for any error of judgment or
mistake of law or for any loss arising out of any act or omission by Xxxxxx, or
any persons engaged pursuant to Section 2(b) hereof, including officers, agents,
and employees of Xxxxxx and its affiliates, in the performance of its duties
hereunder; provided, however, that nothing contained herein shall be construed
to protect Xxxxxx against any liability to the Trust, the Funds, or the
shareholders to which Xxxxxx shall otherwise be subject by reason of its willful
misfeasance, bad faith, or gross negligence in the performance of its duties or
the reckless disregard of its obligations and duties hereunder.
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(b) Xxxxxx will indemnify and hold harmless the Trust, its officers,
employees, and agents and any persons who control the Trust (collectively, the
"Trust Indemnified Parties") and hold each of them harmless from any losses,
claims, damages, liabilities, or actions in respect thereof to which the Trust
Indemnified Parties may become subject, including amounts paid in settlement
with the prior written consent of Xxxxxx, insofar as such losses, claims,
damages, liabilities, or actions in respect thereof arise out of or result from
the failure of Xxxxxx to comply with the terms of this Agreement.
Xxxxxx will reimburse the Trust for reasonable legal or other expenses
reasonably incurred by the Trust in connection with investigating or defending
against any such loss, claim, damage, liability, or action. Xxxxxx shall not be
liable to the Trust for any action taken or omitted by the Trust in bad faith or
with willful misfeasance or gross negligence or with reckless disregard by the
Trust of its obligations and duties hereunder. The indemnities herein shall,
upon the same terms and conditions, extend to and inure to the benefit of each
of the officers of the Trust and any person controlling the Trust.
(c) The obligations set forth in this Section 4 shall survive the
termination of this Agreement.
5. ACTIVITIES OF XXXXXX NOT EXCLUSIVE; DUAL INTERESTS.
(a) The services of Xxxxxx under this Agreement are not to be deemed
exclusive, and Xxxxxx and any person controlled by or under common control with
Xxxxxx shall be free to render similar services to others.
(b) It is understood that any of the officers, employees, and agents of the
Trust may be a shareholder, director, officer, employee, or agent of, or be
otherwise interested in, Xxxxxx, any affiliated person of Xxxxxx, any
organization in which Xxxxxx may have an interest, or any organization that may
have an interest in the Trust. Except as otherwise provided by specific
provisions of applicable law, the existence of any such dual interest shall not
affect the validity of this Agreement or any of the transactions hereunder.
6. REPRESENTATIONS AND WARRANTIES.
(a) The Trust represents and warrants to Xxxxxx that this Agreement has
been duly authorized by each of them and, when executed and delivered, will
constitute a legal, valid, and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting the rights and remedies of creditors and secured parties.
(b) Xxxxxx represents and warrants to the Trust that this Agreement has
been duly authorized by Xxxxxx and, when executed and delivered by Xxxxxx, will
constitute a legal, valid, and binding obligation of Xxxxxx, enforceable against
Xxxxxx in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting the
rights and remedies of creditors and secured parties.
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7. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) This Agreement shall become effective as of the date first above
written and, may be terminated at any time without the payment of any penalty by
either party on not less than sixty (60) days' written notice to the other
party.
(b) This Agreement shall automatically terminate for any Fund in the
attached Schedule A upon the termination of that Fund's Advisory Agreement.
(c) Unless otherwise terminated, this Agreement shall continue in effect
for one year from the date of execution, and from year to year thereafter so
long as such continuance is specifically approved at least annually by the Board
of Trustees of the Trust.
(d) Xxxxxx hereby agrees that any books and records prepared hereunder with
respect to the Trust are the property of the Trust and shall be readily
accessible to the Trust and their respective trustees, officers and agents
during normal business hours. Xxxxxx further agrees that, upon the termination
of this Agreement or otherwise upon request, Xxxxxx will surrender promptly to
the Trust copies of all such books and records.
8. AMENDMENTS AND WAIVERS. This Agreement may be amended by the parties hereto
only if such amendment is specifically approved by the Trust's Board of
Trustees, and such amendment is set forth in a written instrument executed by
each of the parties hereto. At any time, any of the provisions hereof may be
waived by the written mutual consent of the parties hereto.
9. NOTICES. All notices or other communications hereunder to either party 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. Notices shall be sent to the addresses set
forth below or to such other address as either party may designate by written
notice to the other.
If to Xxxxxx:
Xxxxxx, Xxxxxx & Company, L.P..
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention:
If to the Trust:
Xxxxxx Xxxxxx Investment Trust
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention:
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Notice shall also be deemed sufficient if given electronically or by telex,
telecopier, telegram, or other similar means of same day delivery (with a
confirming copy by mail as provided herein).
10. ADDITIONAL PROVISIONS
(a) Notice. A copy of the Agreement and Declaration of Trust establishing
the Trust is on file with the Secretary of State of The Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed with
respect to each Fund on behalf of the Trust by officers of the Trust as officers
and not individually and that the obligations of or arising out of this
Agreement are not binding upon any of the Trustees, officers or shareholders
individually but are binding only upon the assets and property belonging to the
Fund.
(b) Separate Portfolios. This Agreement shall be construed to be made by
the Trust as a separate agreement with respect to each Fund, and under no
circumstances shall the rights, obligations, or remedies with respect to a
particular Fund be deemed to constitute a right, obligation, or remedy
applicable to any other Fund.
(c) Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes any prior
arrangements, agreements, or understandings.
(d) Severability. If any term or provision of this Agreement or the
application thereof to any person or circumstance is held to be invalid or
unenforceable to any extent, the remainder of this Agreement or the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the fullest extent permitted by law.
(e) Governing Law. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of The Commonwealth of Massachusetts as
then in effect.
(f) Counterparts. This Agreement may be executed by the parties hereto in
one or more counterparts, and, if so executed, the separate instruments shall
constitute one agreement.
(g) Headings. Headings used in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
Xxxxxx, Xxxxxx & Company, L.P.
By:
-------------------------------------
Name:
Title:
Xxxxxx Xxxxxx Investment Trust
By:
-------------------------------------
Name:
Title:
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SCHEDULE A
TRUST PORTFOLIOS
Xxxxxx Xxxxxx California Tax-Free Income Fund
Xxxxxx Xxxxxx Core Fixed Income Fund
Xxxxxx Xxxxxx Fixed Income Fund
Xxxxxx Xxxxxx High Yield Fixed Income Fund
Xxxxxx Xxxxxx Intermediate Duration Fixed Income Fund
Xxxxxx Xxxxxx Investment Grade Fixed Income Fund
Xxxxxx Xxxxxx Provident Fund
Xxxxxx Xxxxxx Small Company Growth Fund
Xxxxxx Xxxxxx Small Company Value Fund
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SCHEDULE B
DESCRIPTION OF SERVICES PROVIDED
Xxxxxx shall perform or arrange for the performance of the following
accounting, administrative, compliance and legal services:
CORPORATE SECRETARIAL SERVICES
1. maintain general corporate calendar, tracking all legal and regulatory
compliance through annual cycles;
2. prepare Board materials for quarterly Board meetings and Board committee
meetings, including agenda and background materials for annual review of
advisory fees, presentation of issues to the Board, prepare minutes and
follow-up on matters raised at meetings;
3. maintain charter documents for the Trust;
4. prepare organizational Board meeting materials for new Funds;
5. draft contracts, assisting in negotiation and planning, as appropriate,
for example advisory, transfer agency, and custodian agreements, shareholder
servicing plans and related agreements, and various other agreements and
amendments;
6. prepare and file proxy solicitation materials, oversee solicitation and
tabulation efforts, conduct shareholder meetings and provide legal presence at
meetings;
REGISTRATION AND DISCLOSURE ASSISTANCE SERVICES
7. prepare and file amendments to the Trust's registration statement,
including updating prospectuses and SAIs;
8. prepare and file prospectus and SAI supplements, as needed;
9. prepare and file other regulatory documents, including N-SARs, and Rule
24f-2 Notices;
10. negotiate, obtain and file fidelity bonds and monitor compliance with
Rule 17g-1 and Rule 17d-1(7) under the 1940 Act;
11. negotiate, obtain and monitor directors' and officers' errors and
omissions policies;
12. prepare and file shareholder meeting materials and assist with all
shareholder communications;
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13. coordinate and monitor state Blue Sky qualification through an
experienced vendor partner;
LEGAL AND COMPLIANCE SERVICES
14. provide general legal advice on matters relating to portfolio
management, Fund operations, mutual fund sales, development of advertising
materials, changing or improving prospectus disclosure, and any potential
changes in each Fund's investment policies, operations, or structure;
15. communicate significant emerging regulatory and legislative
developments to the Board and provide related planning assistance;
16. develop or assist in developing guidelines and procedures to improve
overall compliance by the Trust and Funds;
17. provide advice with regard to litigation matters, routine fund
examinations and investigations by regulatory agencies;
18. provide advice regarding long-term planning for the Funds, including
creation of new funds or portfolios, corporate structural changes, mergers,
acquisitions, and other asset gathering plans including new distribution
methods;
19. maintain effective communications with Fund counsel and counsel to the
independent Trustees, if any;
20. create and implement timing and responsibility system for outside legal
counsel when necessary to implement major projects and the legal management of
such projects;
21. monitor activities and billing practices of counsel performing services
for the Funds or in connection with related Fund activities;
22. provide consultation and advice for resolving compliance questions
along with the Trust and Fund counsel;
23. provide active involvement with the management of SEC and other
regulatory examinations;
24. maintain the Trust's Code of Ethics and monitor compliance of
personnel;
25. perform IRS sub-Chapter M testing for 25% diversification, 50%
diversification and 90% good income;
26. monitor SEC diversification with 75% diversification test and Section
12 tests;
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27. perform daily review to ensure investment manager compliance with
policies and limitations contained in the Funds' prospectuses and Statements of
Additional Information and applicable 1940 Act restrictions;
28. review daily designated collateral on all Fund derivative and
delayed-delivery positions;
29. prepare and submit quarterly Board reporting;
30. review securities lending activity, if any;
TRANSFER AGENT MONITORING SERVICES
31. ensure that the content of confirmations, statements, annual and
semi-annual reports, disclosure statements and shareholder administrative
communications conform to regulatory requirements and are distributed within the
mandated time frames;
32. monitor and review transfer agent activity in order to evaluate the
status of regulatory compliance, protect the integrity of the funds and
shareholders, search for systemic weaknesses, and examine for potential
liability and fraud;
33. investigate and research customer and other complaints to determine
liability, facilitate resolution and promote equitable treatment of all parties;
34. consult with transfer agent and other staff regarding prospectus and
SAI provisions and requirements, distribution issues including payment programs,
sub-transfer agent arrangements and other regulatory issues;
TREASURY FINANCIAL SERVICES
35. generate portfolio schedules utilizing State Street Xxxxxx system;
36. create financial statements and financial highlight tables;
37. maintain and update the notes to the financials;
38. supply State Street Bank with a listing of audit reports and schedules;
39. coordinate with external auditors for annual audit;
40. review financial statements for completeness accuracy and full
disclosure;
41. coordinate ROCSOP adjustments with auditors;
42. determine and monitor expense accrual for each Fund;
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43. verify management fees calculated by State Street Bank;
44. review Fund waivers and deferrals;
45. monitor calculations of total returns for each Fund and respective
classes by State Street Bank;
46. oversee and review custodial bank services including maintenance of
books and records;
47. provide service bureaus with the Funds' statistical information;
48. oversee the determination and publication of the Funds' net asset
values;
49. review the calculation, submit for approval by an officer of the Funds,
and arrange for the payment of the Funds' expenses;
50. oversee and review the calculation of fees paid to the Funds' custodian
and transfer agent and submit to an officer of the Funds' for approval;
TREASURY REGULATORY SERVICES
51. prepare and file annual and semi-annual N-SAR forms with the SEC;
52. provide Trustees with condensed portfolio information;
53. review pricing errors;
54. review fair value pricing;
55. review stale pricing;
56. provide quarterly summaries of pricing overrides to management;
57. provide a review of expense caps and management fee waivers to
management;
58. review short sales;
59. review derivatives positions;
60. review brokerage commissions;
61. review dividends and capital gain distributions;
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TREASURY TAX SERVICES
62. provide annual tax information (Form 1099) for each Fund or class of
shares to shareholders and transfer agent;
63. calculate distribution of capital gains, income and spill back
requirements;
64. provide estimates of capital gains;
65. provide 1099 information to vendors;
66. provide service bureaus, brokers and various parties with tax
information noticed;
67. monitor preparation of excise tax returns;
68. monitor preparation of income tax returns;
69. prepare tax identification number filings;
TREASURY SPECIAL SERVICES
70. monitor line of credit arrangement and payment of commitment fees if
applicable;
71. maintain Trustee payments;
72. provide Trustees with Form 1099 information;
73. generate expense proformas for new products;
74. negotiate with vendors to ensure new products are brought in at the
lowest costs;
75. ensure all aspects of new products are operationally ready.
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