XXXXXXXX CAPITAL FUNDS (DELAWARE)
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
AGREEMENT made this 26th day of November, 1996, as amended and restated
as of this 1st day of June, 1999, between Xxxxxxxx Capital Funds (Delaware) (the
"Trust"), a business Trust organized under the laws of the State of Delaware
with its principal place of business at 000 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and Schroder Fund Advisors Inc. ("Schroder"), a corporation
organized under the laws of the State of Maryland.
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 various Investment Advisory
Agreements with Xxxxxxxx Investment Management North America Inc. (the
"Adviser"), pursuant to which the Adviser provides investment advisory services
to the Trust;
WHEREAS, the Trust desires that Schroder perform certain administrative
services for each series of the Trust as listed in APPENDIX A hereto (each a
"Series") and each class of shares of each Series (each a "Class") and Schroder
is willing to provide those services on the terms and conditions set forth in
this Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Schroder agree as follows:
SECTION 1. APPOINTMENT.
The Trust hereby appoints Schroder as administrator of the Trust and of
each Series and any Class thereof and Schroder hereby accepts such appointment,
all in accordance with the terms and conditions of this Agreement. In connection
therewith, the Trust has delivered to Schroder copies of its Trust Instrument
and Bylaws, the Trust's Registration Statement 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 Class of each Series (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 Schroder
with all amendments of or supplements to the foregoing.
SECTION 2. FURNISHING OF EXISTING ACCOUNTS AND RECORDS.
The Trust shall promptly turn over to Schroder such of the accounts and
records previously maintained by or for it as are necessary for Schroder to
perform its functions under this Agreement. The Trust authorizes Schroder to
rely on such accounts and records turned over to it and hereby indemnifies and
will hold Schroder, 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 Schroder
to knowledgeably perform its functions.
SECTION 3. ADMINISTRATIVE DUTIES
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(a) Subject to the direction and control of the Board and in
cooperation with the Adviser, Schroder shall provide, or oversee, as applicable,
administrative services necessary for the Trust's operations with respect to
each Series except those services that are the responsibility of the Adviser or
the Series' custodian or transfer agent, all in such manner and to such extent
as may be authorized by the Board.
(b) With respect to the Trust, each Series and each Class thereof, as
applicable, Schroder shall:
(i) oversee (A) the preparation and maintenance by the
Adviser and the Trust's subadministrator, custodian, transfer
agent, shareholder recordkeeper, 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 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, shareholder recordkeeper, 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 sub-administrator, custodian, transfer agent and dividend
disbursing agent as well as legal, auditing and shareholder
servicing and other services performed for each Series or Class;
(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 (the "SEC") 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 meetings of the Board;
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(ix) monitor sales of shares and ensure that such shares are
properly and duly registered with the SEC 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 declaration of, dividends and oilier distributions to
shareholders as necessary to, among other things, maintain the
qualification of each Series 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
(xii) advise the Trust and its Board on matters concerning the
Trust and its affairs.
(c) Schroder 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 SEC, 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 which are in possession of Schroder, or an
entity subcontracted by Schroder, 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 Schroder's, 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 Schroder to the Trust or the
Trust's authorized representatives. In the event the Trust designates a
successor to any of Schroder's obligations under this agreement, Schroder shall,
at the expense and direction of the Trust, transfer to such successor all
relevant books, records and other data established or maintained by Schroder, or
its subcontractor, under this Agreement.
SECTION 4. STANDARD OF CARE
(a) Schroder, 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 Schroder's undertaking to render these services, the Trust hereby
agrees to indemnify and hold harmless Schroder, its employees, agents, officers
and directors, from any and all loss, liability and expense, including any legal
expenses, arising out of Schroder's performance under this Agreement, or status,
or any act or omission of Schroder, its employees, agents, officers and
directors; provided that this indemnification shall not apply to Schroder's
actions taken or failures to act in cases of Schroder's own bad faith, willful
misconduct or gross negligence in the performance of its duties under this
Agreement; and further provided, that Schroder 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 Schroder, 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 Schroder, which approval
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shall not 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
Schroder, 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 Schroder
does not approve of counsel chosen by the Trust or Schroder has been advised
that it may have available defenses or claims which are not available or
conflict with those available to the Trust, the Trust will reimburse Schroder,
its employees, agents, officers and directors for the fees and expenses of any
one law firm retained as counsel by Schroder or them. Schroder 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:
(b) Schroder may rely upon the advice of the Trust or of
counsel, who may be counsel for the Trust or counsel for Schroder, 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 Schroder
shall not be liable to anyone for any actions taken in good faith upon such
statements.
(c) Schroder may act upon any oral instruction which it receives and
which it believes in good faith was transmitted by the person or persons
authorized by the Board of the Trust to give such oral instruction. Schroder
shall have no duty or obligation to make any inquiry or effort of certification
of such oral instruction.
(d) Xxxxxxxx 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 of the Trust, and Schroder may rely upon the genuineness of any such
document or copy thereof reasonably believed in good faith by Schroder to have
been validly executed.
(e) Schroder 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 Schroder or other person to reimburse
any expenses of the Trust that relate to any Series, 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 Schroder; (d) expenses of issue, repurchase
and redemption of Shares; (e) interest charges, taxes and brokerage fees and
commissions; (f) premiums of insurance for the Trust, its Trustees and officers
and fidelity bond premiums; (g) fees, interest charges and expenses of third
parties, including the Trust's custodian, transfer agent, dividend disbursing
agent and fund accountant; (h) fees of pricing, interest, dividend, credit and
other reporting services; (i) costs of membership in trade associations; (j)
telecommunications expenses; (k) funds transmission expenses; (l) auditing,
legal and compliance expenses; (m) costs of forming the Trust and maintaining
its existence; (n) to the extent permitted by the 1940 Act, costs of preparing
and printing the Prospectuses, subscription application forms and shareholder
reports and delivering them to existing shareholders; (o) expenses of meetings
of shareholders and proxy solicitations therefore; (p) costs of maintaining
books of original entry for portfolio and fund
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accounting and other required books and accounts, of calculating the net asset
value of shares of the Trust and of preparing tax returns; (q) costs of
reproduction, stationery and supplies; (r) fees and expenses of the Trust's
Trustees; (s) compensation of the Trust's officers and employees who are not
employees of the Adviser or Schroder or their respective affiliated persons and
costs of other personnel (who may be employees of the Adviser, Schroder or their
respective affiliated persons) performing services for the Trust; (t) costs of
Trustee meetings; (u) SEC registration fees and related expenses; (v) state or
foreign securities laws registration fees and related expenses; and (w) all fees
and expenses paid by the Trust in accordance with any distribution plan adopted
pursuant to Rule 12b-l 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 Series in any fiscal year, other than interest, taxes, brokerage
commissions and other portfolio transaction expenses, other expenditures which
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 Advisory Agreement with respect to a Series ("includable expenses"),
shall exceed the expense limitations applicable to that Series imposed by state
securities law or regulations thereunder, as these limitations may be raised or
lowered from time to time, Schroder shall pay that Series an amount equal to a
percentage of that excess ("Schroder's reimbursement"), such Schroder's
reimbursement to be in an amount set forth with respect to the Series in
APPENDIX A to this Agreement. 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, Schroder
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 Schroder
under this contract 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 Schroder's reimbursement) of a pro rata portion
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 Series shall be computed in the
manner specified in Section 6, and any payments required to be made by Schroder
shall be made once a year promptly after the end of the Trust's fiscal year.
SECTION 6. COMPENSATION
(a) In consideration of the services performed by Schroder under this
Agreement, the Trust will pay Schroder, with respect to each Series, a fee at
the annual rate, as 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. If 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 Schroder such compensation as shall be
payable prior to the effective date of such termination.
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(b) In the event that this Agreement is terminated, Schroder 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 Schroder 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,
Schroder and its affiliated persons may receive compensation or reimbursement
from the Trust with respect to (i) the provision of services on behalf of the
Series in accordance with any distribution plan adopted by the Trust pursuant to
Rule 12b-l under the 1940 Act or (ii) the provision of shareholder support or
other services, including fund accounting services.
SECTION 7. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the date first above
written with respect to each Series of the Trust then existing and shall relate
to every other Series as of the later of the date on which the Trust's
Registration Statement relating to the shares of such Series becomes effective
or the Series 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 Series at any
time, without the payment of any penalty, (i) by the Board on 60 days' written
notice to Schroder or (ii) by Schroder on 60 days' written notice to the Trust.
Upon receiving notice of termination by Schroder, 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 Schroder of all
fees owed through the effective termination date, and reimbursement for
reasonable charges and disbursements, Schroder shall promptly transfer to the
successor administrator the original or copies of all accounts and records
maintained by Schroder 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. For so long as
Schroder continues to perform any of the services contemplated by this Agreement
after termination of this Agreement as agreed to by the Trust and Schroder, the
provisions of Sections 4 and 6 hereof shall continue in full force and effect.
SECTION 8. ACTIVITIES OF SCHRODER
(a) Except to the extent necessary to perform Schroder's obligations
under this Agreement, nothing herein shall be deemed to limit or restrict the
right of Schroder, or any affiliate of Schroder, or any employee of the
Schroder, 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) Schroder may subcontract any or all of its functions or
responsibilities pursuant
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to this Agreement to one or more corporations, trusts, firms, individuals or
associations, which may be affiliates of Schroder, who agree to comply with the
terms of this Agreement. Schroder may pay those persons for their services, but
no such payment will increase Schroder's compensation from the Trust.
SECTION 9. COOPERATION WITH INDEPENDENT ACCOUNTANTS.
Schroder shall cooperate, if applicable, with the Trust's independent
public accountants and shall take reasonable action to make all necessary
information available to such accountants for the performance of their duties.
SECTION 10. SERVICE DAYS.
Nothing contained in this Agreement is intended to or shall require
Schroder, 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 Series.
Functions or duties normally scheduled to be performed on any day which is not a
business day of the Trust or of a Series 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 Capital Funds (Delaware)
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice to Schroder shall be given as follows or at such other address
as Schroder may designate in writing:
Schroder 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 Series shall not
be liable for any obligations of the Trust or of the Series under this
Agreement, and Schroder 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 Series to which Schroder's rights or claims relate in settlement of such
rights or claims, and not to the Trustees of the Trust or the shareholders of
the
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Series.
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 Schroder or by Schroder, 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 CAPITAL FUNDS (DELAWARE)
/s/ Xxxxxxxxx Xxx
----------------------------------
Name: Xxxxxxxxx Xxx
Title: President
SCHRODER FUND ADVISORS INC.
/s/ Xxxxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Executive Vice President
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APPENDIX A
Series of the Trust
Schroder International Fund
Xxxxxxxx U.S. Smaller Companies Fund
Schroder Emerging Markets Fund Institutional Portfolio
Schroder International Smaller Companies Fund
Schroder Micro Cap Fund
Schroder Emerging Markets Fund
Schroder Greater China Fund
Schroder Japan Fund
Schroder Asia Fund
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APPENDIX B
ADMINISTRATION FEES
Series of the Trust Fee As % of the Average Annual
------------------- Daily Net Assets of the Series
------------------------------
Schroder International Fund 0.225%
Schroder Asia Fund 0.05%
Schroder Japan Fund 0.05%
Xxxxxxxx U.S. Smaller Companies Fund 0.25%
Schroder Emerging Markets Fund
Institutional Portfolio 0.10%
Schroder Emerging Markets Fund 0.25%
Schroder International Smaller
Companies Fund 0.25%
Schroder Micro Cap Fund 0.25%
Schroder Greater China Fund 0.25%
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