Exhibit (h)(3)
SUB-ADMINISTRATIVE AND TRUST ACCOUNTING AGENCY AGREEMENT
THIS AGREEMENT is made as of May 5, 2005 by and among XXXXX BROTHERS
XXXXXXXX & CO., a limited partnership organized under the laws of the State of
New York (the "SUB-ADMINISTRATOR"), XXXXXXX ASSET MANAGEMENT CORP. (the
"ADMINISTRATOR") and XXXXXXX INVESTOR TRUST, a Delaware statutory trust (the
"TRUST"), on behalf of each of its series listed on APPENDIX A hereto, as it may
be amended from time to time (each series, a "FUND"). This Agreement shall be
effective as of June 1, 2005.
WITNESSETH:
WHEREAS, the Trust desires to retain the Sub-Administrator to render
certain services to the Funds, and the Sub-Administrator is willing to render
such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF SUB-ADMINISTRATOR. The Trust and the Administrator hereby
employ and appoint the Sub-Administrator to act as the Funds' sub-administrative
and fund accounting agent on the terms set forth in this Agreement, and the
Sub-Administrator accepts such appointment.
2. DELIVERY OF DOCUMENTS. The Trust will:
2.1 Furnish the Sub-Administrator with properly certified or
authenticated copies of resolutions of the Trust's Board of Trustees
authorizing the appointment of the Sub-Administrator as
sub-administrator and fund accounting agent of each Fund and approving
this Agreement;
2.2 Provide the Sub-Administrator with any other documents or
resolutions (including but not limited to directions or resolutions of
the Trust's Board of Trustees) which relate to or affect the
Sub-Administrator's performance of its duties hereunder or which the
Sub-Administrator may at any time reasonably request; and
2.3 Notify the Sub-Administrator promptly of any matter affecting the
performance by the Sub-Administrator of its services under this
Agreement.
3. DUTIES AS SUB-ADMINISTRATOR. Subject to the supervision and direction of the
Trust's Board of Trustees, the Sub-Administrator will perform the following
administrative services:
3.1 Maintain office facilities for each Fund, which may be in the offices
of the Sub-Administrator or a corporate affiliate of the Sub-Administrator;
3.2 Perform all functions ordinarily performed by the office of a corporate
treasurer, and furnish the services and facilities ordinarily incident
thereto as described in APPENDIX B to this Agreement under the headings
entitled "Treasurer Support Services" and "Tax Services";
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3.3 Perform the functions ordinarily performed by a mutual fund group's
internal legal department as described in APPENDIX B to this Agreement
under the headings entitled "Corporate Secretarial Services", "Regulatory
Services" and "Consultative Services", furnishing data processing services,
clerical services and executive and administrative services and standard
stationery and office supplies in connection with the foregoing;
3.4 Assist the Trust's investment adviser (the "ADVISER"), at the Adviser's
request, in developing parameters and monitoring compliance for the Trust,
which will include, among other matters, assisting the Adviser in
monitoring compliance with the Funds' investment objectives, policies and
restrictions and tax matters as applicable to registered investment
companies and applicable laws and regulations and performing certain
monthly compliance tests, to the extent relevant information is available
to the Sub-Administrator in the performance of its functions as the Funds'
net asset value calculation agent as further described in APPENDIX B to
this Agreement under the heading "Compliance Services";
3.5 Assist the Trust's Treasurer in preparing the Funds' performance
analysis reports (including yield and total return information) calculated
in accordance with applicable U.S. securities laws and in reporting to
external databases such information as may reasonably be requested;
3.6 Select and monitor an independent service supplier to provide for
reasonable and necessary monitoring of compliance with the securities
regulations of the fifty states and other jurisdictions of the United
States on such terms as the Trust may direct, or in the absence of such
direction, as the Sub-Administrator shall reasonably deem appropriate,
PROVIDED, HOWEVER, that such arrangement shall require that such service
supplier act with reasonable care in the discharge of its duties. The
Sub-Administrator shall deliver to the Trust, or cause to be delivered to
the Trust, regular reports and notices with respect to blue sky compliance
and shall be responsible to use reasonable efforts to enforce the terms of
the agreement with the service supplier on the Trust's behalf. The Trust
shall be responsible to provide copies of its prospectus and other relevant
documents and information relating to the Funds as may be reasonably
required for the performance of state securities law compliance; and
3.7 Assist the Trust's officers and Adviser in such other matters as the
Trust and the Sub-Administrator shall from time to time agree.
In performing its duties and obligations hereunder, the Sub-Administrator
will act in accordance with the Trust's Certificate of Trust, Declaration of
Trust, By-laws and Prospectus and Proper Instructions (as defined in Section 9).
It is agreed and understood, however, that the Sub-Administrator shall not be
responsible for compliance of a Fund's investments with any applicable
documents, laws or regulations, or for losses, costs or expenses arising out of
the Fund's failure to comply with said documents, laws or regulations or the
Fund's failure or inability to correct any non-compliance therewith.
4. DUTIES AS FUND ACCOUNTING AGENT. Subject to the supervision and direction of
the Trust's Board of Trustees, the Sub-Administrator will perform the following
fund accounting services:
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4.1 Compute and determine the net asset value per share of the Fund as of
the close of business on the New York Stock Exchange on each day on which
such Exchange is open, unless otherwise directed by Proper Instruction.
Such computation and determination shall be made in accordance with the
provisions of the Trust's Declaration of Trust and By-Laws, as they may
from time to time be amended and delivered to the Sub-Administrator, the
votes of the Trust's Board of Trustees at the time in force and applicable,
as they may from time to time be delivered to the Sub-Administrator, the
Fund's current prospectus and statement of additional information and
Proper Instructions (as defined below), including without limitation any
information:
4.1.1 as to accrual of liabilities of the Fund and as to liabilities
of the Fund not appearing on the books of account kept by the
Sub-Administrator;
4.1.2 as to the existence, status and proper treatment of reserves, if
any, authorized by the Trust;
4.1.3 as to the sources of quotations to be used in computing the net
asset value, including those listed in APPENDIX C hereto;
4.1.4 as to the fair value to be assigned to any securities or other
property for which price quotations are not readily available;
4.1.5 as to the sources of information with respect to "corporate
actions" affecting portfolio securities of a Fund, including those
listed in APPENDIX C. (Information as to "corporate actions" shall
include information as to dividends, distributions, stock splits,
stock dividends, rights offerings, conversions, exchanges,
recapitalizations, mergers, redemptions, calls, maturity dates and
similar transactions, including the ex- and record dates and the
amounts or other terms thereof); and
4.1.6 as to the use a particular source for the valuation of a
specific security or other property of the Fund.
4.2 Compute and determine the net asset value as of such other times as the
Trust's Board of Trustees from time to time may reasonably request; and
4.3 Provide the Adviser with written reports which the Adviser will use to
verify that portfolio transactions have been recorded in accordance with
the Trust's instructions and reconcile with the Fund's trading records on
each day that the Sub-Administrator shall compute the net asset value per
share of the Fund.
Notwithstanding anything in this Agreement to the contrary, the
Sub-Administrator shall not be responsible for the failure of the Trust or its
Adviser to provide the Sub-Administrator with Proper Instructions regarding
liabilities which ought to be included in the calculation of the Fund's net
asset value.
5. BOOKS AND RECORDS. The Sub-Administrator shall create, maintain and retain
the records created by the Sub-Administrator relating to its obligations under
this Agreement as are required to be created, maintained and retained by
applicable law, including without limitation, the Investment Company Act of
1940, as amended, and the rules and regulations thereunder; PROVIDED, HOWEVER,
that all obligations of the Trust to retain such other records under the
Investment Company Act of 1940, as amended, shall remain the obligation of the
Trust and such obligation is not hereby delegated in anyway to the
Sub-Administrator. All such records shall be property of the Trust. The
Sub-Administrator shall make available to the Trust, its auditors, counsel,
agents and employees, upon reasonable request and during normal business hours,
all such records.
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6. EXPENSES AND COMPENSATION. For the services to be rendered and the facilities
to be furnished by the Sub-Administrator as provided for in this Agreement, the
Fund or the Administrator, as the case may be, shall pay the Sub-Administrator
for its services rendered pursuant to this Agreement a fee based on such fee
schedule in effect on the date hereof and attached hereto as Appendix D and as
may from time to time be amended in writing by the Trust, the Administrator and
the Sub-Administrator. In addition to such fee, the Sub-Administrator shall xxxx
the Fund or the Administrator, as the case may be, separately for any
out-of-pocket disbursements of the Sub-Administrator based on an out-of-pocket
schedule in effect on the date hereof and attached hereto as APPENDIX D and as
may from time to time be amended in writing by the Trust, the Administrator and
the Sub-Administrator. The foregoing fees and disbursements shall be billed to
the Fund or the Administrator, as the case may be, by the Sub-Administrator and
shall be paid promptly by wire transfer or other appropriate means to the
Sub-Administrator. The Administrator shall have no liability for the fees and
expenses to be borne by the Fund and the Fund shall have no liability for the
fees and expenses to be borne by the Administrator, each as set forth in the fee
schedule.
7. STANDARD OF CARE. The Sub-Administrator shall be held only to the exercise of
reasonable care, prudence and diligence in carrying out the provisions of this
Agreement, provided that the Sub-Administrator shall not thereby be required to
take any action which is in contravention of any applicable law, rule or
regulation or any order or judgment of any court of competent jurisdiction.
8. LIMITATION OF LIABILITY. The Sub-Administrator shall incur no liability with
respect to any telecommunications, equipment or power failures, or any failures
to perform or delays in performance by postal or courier services or third-party
information providers (including without limitation those listed on APPENDIX C),
to the extent that such failures or delays are beyond the reasonable control of
the Sub-Administrator. The Sub-Administrator shall also incur no liability under
this Agreement if the Sub-Administrator or any agent or entity utilized by the
Sub-Administrator shall be prevented, forbidden or delayed from performing, or
omits to perform, any act or thing which this Agreement provides shall be
performed or omitted to be performed, by reason of causes or events beyond its
reasonable control, including but not limited to:
8.1 any Sovereign Event. A "SOVEREIGN EVENT" shall mean any
nationalization; expropriation; devaluation; revaluation; confiscation;
seizure; cancellation; destruction; strike; act of war, terrorism,
insurrection or revolution; or any other act or event beyond the
Sub-Administrator's control; or
8.2 any provision of any present or future law, regulation or order of the
United States or any state thereof, or of any foreign country or political
subdivision thereof, or of any securities depository or clearing agency; or
8.3 any provision of any order or judgment of any court of competent
jurisdiction.
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8.4 Notwithstanding any other provision of this Agreement, the
Sub-Administrator shall not be held accountable or liable for any losses,
damages or expenses the Fund or any shareholder or former shareholder of the
Fund or any other person may suffer or incur arising from acts, omissions,
errors or delays of the Sub-Administrator in the performance of its obligations
and duties hereunder, including without limitation any good faith error of
judgment, except a damage, loss or expense resulting from (i) the
Sub-Administrator's willful malfeasance, bad faith or negligence or violation of
law in the performance of such obligations and duties, or (ii) the
Sub-Administrator's failure to act in accordance with its standard of care set
forth in Section 7 or any material breach by the Sub-Administrator or its
representations or warranties hereunder. The parties hereto acknowledge,
however, that the Sub-Administrator's causing an error or delay in the
determination of net asset value may, but does not necessarily in and of itself,
constitute negligence or reckless or willful misconduct. The Sub-Administrator
shall in no event be required to take any action, which is in contravention of
any applicable law, rule or regulation or any order or judgment of any court of
competent jurisdiction.
8.5 Without limiting the foregoing, the Sub-Administrator shall not be held
accountable or liable to the Fund, any shareholder or former shareholder thereof
or any other person for any delays or losses, damages or expenses any of them
may suffer or incur resulting from (i) the Sub-Administrator's failure to
receive timely and suitable notification concerning quotations or corporate
actions relating to or affecting portfolio securities of a Fund or (ii) any
errors in the computation of the net asset value based upon or arising out of
quotations or information as to corporate actions if in either case received by
the Sub-Administrator either (a) from a source which the Sub-Administrator was
authorized to rely upon (including those sources listed on APPENDIX C), (b) from
a source which in the Sub-Administrator's reasonable judgment was as reliable a
source for such quotations or information as such authorized sources, or (c)
relevant information known to the Trust or the Adviser which would impact the
calculation of net asset value but which is not communicated by the Trust or the
Adviser to the Sub-Administrator.
8.6 In the event of any error or delay in the determination of such net
asset value for which the Sub-Administrator may be liable, the Trust and the
Sub-Administrator will consult and make good faith efforts to reach agreement on
what actions should reasonably be taken in order to mitigate any loss suffered
by the Fund or its present or former shareholders, in order that the
Sub-Administrator's exposure to liability shall be reduced to the extent
possible after taking into account all relevant factors and alternatives.
8.7 The Fund hereby agrees to indemnify the Sub-Administrator against and
hold it harmless from any and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) resulting from any
act, omission, error or delay or any claim, demand, action or suit, in
connection with or arising out of performance of its obligations and duties
under this Agreement, except as may arise from the Sub-Administrator's breach of
its standard of care hereunder or as a result of the willful malfeasance, bad
faith or negligence of the Sub-Administrator in the performance of such
obligations and duties or violation of applicable law.
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8.8 Notwithstanding anything else in this Agreement to the contrary, the
Sub-Administrator's entire liability to the Fund for any loss or damage arising
or resulting from its performance hereunder or for any other cause hereunder
whatsoever, and regardless of the form of action, shall be limited to the Fund's
actual and direct out-of-pocket expenses and losses which are reasonably
incurred by the Fund. In no event and under no circumstances shall the
Sub-Administrator, the Administrator or the Fund be held liable for
consequential or indirect damages, loss of profits, damage to reputation or
business or any other special damages arising under or by reason of any
provision of this Agreement or for any act or omission hereunder. It is
understood that the Fund is a mutual fund, which specifically includes, among
other things, its buying and selling of securities and its offering of shares
for purchase and redemption by investors. As such and for avoidance of doubt,
the foregoing limitations (and any other similar limitations herein against
indirect or consequential damages (or, stated in the opposite, to actual or
direct damages)) do not apply to, and shall not relieve the Sub-Administrator or
the Administrator of, any liabilities that the Sub-Administrator or the
Administrator may otherwise have to the Fund pursuant to the terms of this
Agreement resulting from the Fund's "buying in" (or other similar action) with
respect to a failed trade or expenses or losses in connection with the
recalculation of the Fund's net asset value or in the event of an incorrect
calculation of the Fund's net asset value, both of which are examples of direct
and actual damages of the Fund and the reprocessing of shareholder transactions.
8.9 The Fund hereby agrees to indemnify the Sub-Administrator against and
hold it harmless from any and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) resulting from any
act, omission, error or delay or any claim, demand, action or suit, in
connection with or arising out of performance of its obligations and duties
under this Agreement, except as may arise from the Sub-Administrator's breach of
its standard of care hereunder or as a result of the willful malfeasance, bad
faith or negligence of the Sub-Administrator in the performance of such
obligations and duties or violation of applicable law.
9. RELIANCE BY THE SUB-ADMINISTRATOR ON PROPER INSTRUCTIONS AND OPINIONS OF
COUNSEL AND OPINIONS OF CERTIFIED PUBLIC ACCOUNTANTS. The Sub-Administrator
shall not be liable for, and shall be indemnified by the Fund against any and
all losses, costs, damages or expenses arising from or as a result of, any
action taken or omitted in accurately following Proper Instructions or upon any
other written notice, request, direction, instruction, certificate or other
instrument reasonably believed by it to be genuine and signed or authorized by
the proper party or parties.
"PROPER INSTRUCTIONS" shall include a written request, direction,
instruction or certification signed or initialed on behalf of the Fund by one or
more persons as the Board of Trustees of the Trust shall have from time to time
authorized. Those persons authorized to give Proper Instructions may be
identified by the Board of Trustees by name, title or position and will include
at least one officer empowered by the Board to name other individuals who are
authorized to give Proper Instructions on behalf of the Fund.
Telephonic or other oral instructions or instructions given by telefax
transmission may be given by any one of the above persons and will also be
considered Proper Instructions if the Sub-Administrator reasonably believes them
to have been given by a person authorized to give such instructions with respect
to the transaction involved.
With respect to telefax transmissions, the Trust hereby acknowledges that
(i) receipt of legible instructions cannot be assured, (ii) the
Sub-Administrator cannot verify that authorized signatures on telefax
instructions are original, and (iii) the Sub-Administrator shall not be
responsible for losses or expenses incurred through actions taken in good faith
reliance on such telefax instructions. Subject to the foregoing, the Trust
agrees that such telefax instructions shall be conclusive evidence of the Fund's
Proper Instruction to the Sub-Administrator to act or to omit to act.
Proper Instructions given orally will be confirmed by written instructions
in the manner set forth above, including by telefax, but the lack of such
confirmation shall in no way affect any action taken by the Sub-Administrator in
good faith reliance upon such oral instructions. The Trust authorizes the
Sub-Administrator to tape record any and all telephonic or other oral
instructions given to the Sub-Administrator by or on behalf of the Fund
(including any of its officers, Trustees, employees or agents or any investment
manager or adviser or person or entity with similar responsibilities which is
authorized to give Proper Instructions on behalf of the Fund to the
Sub-Administrator.)
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The Sub-Administrator may at its own expense consult with its counsel or
the Trust's counsel in any case where so doing appears to the Sub-Administrator
to be necessary or desirable. The Sub-Administrator shall not be considered to
have engaged in any misconduct or to have acted negligently and shall be without
liability in acting reasonably and in good faith and consistent in all respects
upon the advice of its counsel (provided that such counsel is of good national
or international reputation) or of the Trust's counsel with respect to matters
of law.
The Sub-Administrator may consult with a certified public accountant in any
case where so doing appears to the Sub-Administrator to be necessary or
desirable. The Sub-Administrator shall not be considered to have engaged in any
willful malfeasance or misconduct or to have acted in bad faith or negligently
and shall be without liability in acting reasonably and in good faith and
consistent in all respects upon the advice of such certified public accountant
with respect to generally accepted accounting principles of the United States.
10. TERMINATION OF AGREEMENT. This Agreement shall have an initial term of three
(3) years from the date hereof. Thereafter, this Agreement shall automatically
renew for successive one (1) year periods unless either party terminates this
Agreement by written notice effective no sooner than seventy-five (75) days
following the date that notice to such effect shall be delivered to the other
party at its address set forth herein. Notwithstanding the foregoing provisions,
any party may terminate this Agreement at any time (a) for cause, which is a
material breach of the Agreement not cured within thirty (30) days after notice
of such breach, in which case termination shall be effective upon written
receipt of notice by the non-terminating party, (b) upon thirty (30) days
written notice to the other party in the event that any party is adjudged
bankrupt or insolvent, or there shall be commenced against such party a case
under any applicable bankruptcy, insolvency, or other similar law now or
hereafter in effect, or (c) at any time after the initial 3-year term upon sixty
(60) days written notice to the other parties. In the event a termination notice
is given by a party hereto, all reasonable expenses associated with the movement
of records and materials and the conversion thereof shall be paid by the
terminating party in the event of a termination pursuant to clause (c) of the
immediately preceding sentence and by the applicable non-terminating party in
the event of a termination pursuant to either clause (a) or (b); PROVIDED,
HOWEVER, that the Sub-Administrator shall not be liable in any event for the
conversion costs of the Trust and that the Trust shall not be liable in any
event for the conversion costs of the Custodian, and provided further, that if
the Trust terminates this Agreement during the initial three (3) year term for
any reason other than pursuant to clauses (a) and (b) of the immediately
preceding sentence, the Trust shall be liable to the Sub-Administrator for any
net profit that would have resulted to the Sub-Administrator from the fees that
otherwise would have been payable to the Sub-Administrator for the balance of
the initial three (3) year term. As fund accounting agent, the Sub-Administrator
shall be responsible for completing all actions in progress when such
termination notice is given unless otherwise agreed.
This Section 10 shall survive any termination of this Agreement, whether
for cause or not for cause.
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11. AMENDMENT OF THIS AGREEMENT. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof. No provision of this Agreement may be amended or terminated
except by a statement in writing signed by the party against which enforcement
of the amendment or termination is sought.
In connection with the operation of this Agreement, the Trust, the
Administrator and the Sub-Administrator may agree in writing from time to time
on such provisions interpretive of or in addition to the provisions of this
Agreement as may in their joint opinion be consistent with the general tenor of
this Agreement. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
In the event any provision of this Agreement is determined to be void or
unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
The section headings and the use of defined terms in the singular or plural
tenses in this Agreement are for the convenience of the parties and in no way
alter, amend, limit or restrict the contractual obligations of the parties set
forth in this Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and construed according
to the laws of the State of New York without giving effect to conflicts of laws
principles.
13. NOTICES. Notices and other writings delivered or mailed postage prepaid to
the Trust addressed to the Trust at 1325 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxx X. Xxxxxxxx, First Vice President and
Treasurer, or to such other address as the Trust may have designated to the
Sub-Administrator in writing, or to the Administrator addressed to the
Administrator at 1325 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xx. Xxxxxxx X. Xxxxx or to such other address as the
Administrator may have designated to the Sub-Administrator in writing, or to the
Sub-Administrator at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Manager, Fund
Administration Department, or to such other address as the Sub-Administrator may
have designated to the Trust and the Administrator in writing, shall be deemed
to have been properly delivered or given hereunder to the respective addressee.
14. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Trust, the Administrator and the Sub-Administrator and their
respective successors and permitted assigns, provided that no party hereto may
assign this Agreement or any of its rights or obligations hereunder without the
written consent of the other party.
15. COUNTERPARTS. This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument. This Agreement shall become effective
when one or more counterparts have been signed and delivered by each of the
parties.
16. EXCLUSIVITY. The services furnished by the Sub-Administrator hereunder are
not to be deemed exclusive, and the Sub-Administrator shall be free to furnish
similar services to others.
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17. AUTHORIZATION. The Trust hereby represents and warrants that the Trust's
Board of Trustees has authorized the execution and delivery of this Agreement
and that an authorized officer of the Trust has signed this Agreement. The
Administrator and the Sub-Administrator each hereby represents and warrants that
this Agreement has been duly authorized and delivered and that an authorized
officer of thereof has signed this Agreement. The Sub-Administrator hereby
represents and warrants that it has a business continuity plan that is
reasonably designed to ensure the continuity of services by BBH&Co. in adverse
circumstances whose purpose and objective is to develop on an on-going basis,
document, test and maintain a strategic, comprehensive, and reasonable plan
which addresses the requirements of all offices and business units.
18. MASTER AGREEMENT. For convenience purposes, this Agreement is being entered
into as a master agreement by and among the Sub-Administrator, the Administrator
and the Trust on behalf of each series of the Trust from time to time set forth
on APPENDIX A hereto. However, this Agreement shall be interpreted as applying
solely to each Fund individually, and no Fund shall be liable for the
obligations or any other Fund. The obligations of the Trust and each Fund are
not personally binding upon, nor shall resort be had to the property of, any of
the Trustees, shareholders, officers, employees or agents of the Trust or any
Fund, but only the relevant Fund's property shall be bound.
19. The Sub-Administrator and the Trust may from time to time be parties to
agreements in addition to this Agreement. The terms of this Agreement shall not
be applicable to, or otherwise affect the relationship of the Sub-Administrator
and the Trust under, such other agreements unless specifically agreed to therein
by the Sub-Administrator and the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
The undersigned acknowledges that (I/we) have received a copy of this document.
XXXXX BROTHERS XXXXXXXX & CO. XXXXXXX INVESTOR TRUST
ON BEHALF OF EACH FUND SET FORTH ON
APPENDIX A
BY:/s/ Xxxxx X. Xxxx BY: /s/ Xxxxxxx X. Xxxxx
------------------------------------- ---------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxxxx X. Xxxxx
Title: Managing Director Title: Executive Vice President
XXXXXXX ASSET MANAGEMENT CORP.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
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APPENDIX A TO
SUB-ADMINISTRATIVE AND TRUST ACCOUNTING AGENCY AGREEMENT
Dated as of May 5, 2005
XXXXXXX FUND
XXXXXXX FINANCIAL SERVICES FUND
XXXXXXX FINANCIAL INDUSTRIES FUND
XXXXXXX MONEY MARKET FUND
XXXXXXX U.S. GOVERNMENT MONEY MARKET FUND
00
XXXXXXXX X TO
SUB-ADMINISTRATIVE AND TRUST ACCOUNTING AGENCY AGREEMENT
FINANCIAL ADMINISTRATION SERVICES
TREASURER'S SUPPORT SERVICES:
- Provide an Assistant Treasurer to the Trust
- Accumulate information for and, subject to approval by the Trust's
Treasurer, prepare required regulatory reports to the Funds'
shareholders of record as set forth in Rule 30d-1 of the 1940 Act as
agreed upon in writing from time to time between the Sub-Administrator
and the Trust or the Administrator and file such reports with the U.S.
Securities and Exchange Commission ("SEC").
Prepare and file the Rule 24f-2 Notice and Forms N-SAR, N-CSR, N-Q and
N-PX with the SEC.
- Consult with the Trust's Treasurer on financial matters relating to
the Trust, including without limitation dividend distributions,
expense pro formas, establishing expense accruals and other matters,
including payment of expenses, review of accruals and payments,
expense ratios, portfolio turnover rate, semi-annual and annual
financial statements, assist in the coordination of the annual audit,
create and control production calendar SEC filings, as shall from time
to time be agreed upon by the parties.
- Assist the Trust's Treasurer in the preparation of quarterly reporting
to the Trust's Board of Trustees as required by applicable rules under
the 1940 Act and as agreed between the Sub-Administrator and the Trust
or the Administrator from time to time.
- Report monthly to the Trust's Treasurer on compliance of the Trust's
fidelity bond coverage.
- Report monthly to Treasurer on the Trust's expense summary
- Report monthly to Treasurer on comparison of the Trust's actual shares
outstanding with its authorized shares.
CERTAIN TAX SERVICES:
- Assist the Trust's Treasurer with federal, state and applicable local
tax preparation and reporting, including the following:
- preparation of fiscal year end and excise tax distribution
calculations;
- preparation and filing of federal, state and any local income tax
returns, including tax return extension requests;
- preparation of shareholder year end reporting statements;
- provide the appropriate amounts and characterization of distributions
declared during the calendar year for Forms 1099 reporting;
- periodically review and determine of distributions to be paid to
shareholders;
- consult with the Trust's Treasurer regarding potential passive foreign
investment companies ("PFICs");
- consult with the Trust's Treasurer on various tax issues as they arise
and with the Trust's independent registered public accountants when
appropriate;
- preparation of the wash sales calculation;
- calculation of excise tax;
- provide resource for tax research informational requests;
- prepare monthly, quarterly and annual income distributions;
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- prepare capital gains distributions;
- prepare year-end 1099-DIV processing;
- preparation and review of federal, state and excise tax returns; and
- prepare and record ROCSOP entries.
CORPORATE SECRETARIAL SERVICES
- Maintain corporate documents and files either prepared by BBH or given
to BBH from the Fund or the Administrator
- Monitor good standing of the Trust in its state of organization.
- Provide Assistant Secretary's service for the Trust.
- Maintain corporate calendar for regulatory matters and Board
approvals.
- Prepare Board, committee and Shareholder meeting materials, including
scripts, agendas, resolutions, memoranda, minutes.
- Attend Board, committee and Shareholder meetings; take minutes of the
meetings; make presentations as required; follow up on matters raised
at the meetings.
- Coordinate and monitor shareholder vote solicitation and tabulation
with the Trust's transfer agent.
REGULATORY SERVICES
- Prepare and submit annual and special filings to the SEC including
without limitation updates to Trust registration statements and
routine proxy statements.
- Prepare supplements and stickers to registration statements and file
the same with the SEC.
- Prepare, review and comment on shareholder communications including
annual, semi-annual and quarterly reports, president's letters,
advertising and sales literature.
- Assist in filing advertising and sales literature with the NASD.
- Assist in the drafting of the Trust's prospectus, SAI updates and
supplements.
- Prepare agendas, resolutions and relevant memoranda for Board
meetings.
- Coordinate the preparation, assembly, and mailing of board books (in
hard copy or electronic format) to meeting participants.
- Attend and record minutes at Board meetings and as requested make
presentations at such meetings.
- Assist in completing fidelity bond and D&O/E&O insurance applications
and filing the fidelity bond with the SEC.
- Provide periodic updates on recent regulatory events.
- Assist the fund during SEC audits including provision of documents,
board minutes and any other items on the SEC document request letter.
- Maintain a regulatory compliance calendar listing various board
approval and SEC filing dates.
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- Prepare N-1A Updates including expense tables, performance figures,
shareholder transaction expenses, annual fund operating expenses,
expense examples, advisor fees and trustee fees
CONSULTATIVE SERVICES
- Maintain and communicate awareness of regulatory proposals and changes
to Trust management.
- Assist in developing compliance procedures to address regulatory
changes.
- Act as liaison with internal counsel, Trust counsel, and Trust
independent registered public accountants.
COMPLIANCE SERVICES
- Monitor compliance with the funds' investment objectives, policies and
restrictions, [certain] tax matters and applicable laws and
regulations under the 1940 Act and IRS diversification rules, broker
commission reporting, Prospectus and Statement of Additional
Information limitations. Through (a) automated daily compliance
testing based on trade date plus one data and (b) monthly
comprehensive compliance reporting.
- Quarterly board reporting. Perform certain periodic compliance tests
(to the extent relevant information is available to the
Sub-Administrator in the performance of its functions as the funds'
net asset value calculation agent).
- Assistance with training on compliance issues.
- Perform 90% Gross Income Test (tested monthly- annual requirement).
- Perform diversification test (tested daily- quarterly requirement).
- Provide IRC, SEC and prospectus daily testing and 2a-7 testing.
- Perform trade date compliance.
- Provide daily, monthly and quarterly reporting.
- Communicate warnings and violations to the Trust.
- Assist the Trust in the annual update of prospectus rules for the
compliance module.
PERFORMANCE MEASUREMENT SERVICES
- Calculate of total returns,
- Calculate after tax total returns.
INVESTMENT ACCOUNTING AND SECURITIES PROCESSING
- Verify trade activity from advisor/sub-advisor's.
- Maintain ledgers and tax lots far investments securities.
- Obtain security market quotes in accordance with pricing procedures
and calculate the market value of each portfolios investments transmit
daily portfolio valuation to the advisor and sub-advisors.
- Process corporate action activity.
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- Calculate investment income.
- Provide trade journals, income by security, tax lot information and
security pricing history.
- Calculate capital gains and losses.
- Journalize investment, capital stock, income, and expense activity.
- Reconcile fund share and activity to transfer agency records.
- Calculate contractual expenses.
- Record daily expense accruals.
- Calculate net income.
- Monitor aged income and reclaim receivable balances.
- Compute NAV and daily dividends in accordance with fund procedures.
- Calculate daily distributions of income and related factors (mil
rates).
- Disseminate NAV and related data to fund transfer agent, NASDAQ and to
statistical reporting agencies.
- Calculate dollar weighted average maturity.
- Provide statistical surveys.
The Sub-Administrator will provide the Trust with a detailed schedule
listing the compliance tests being run by the Sub-Administrator and will
promptly notify the Trust of any potential compliance warnings or violations
that result from the compliance testing.
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APPENDIX C TO
SUB-ADMINISTRATIVE AND TRUST ACCOUNTING AGENCY AGREEMENT
[This exhibit has been omitted and will be supplementally furnished to the
Securities and Exchange Commission upon request.]
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APPENDIX D TO
SUB-ADMINISTRATIVE AND TRUST ACCOUNTING AGENCY AGREEMENT
FEES AND OUT-OF-POCKET EXPENSES
[This exhibit has been omitted and will be supplementally furnished to the
Securities and Exchange Commission upon request.]
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