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Exhibit 23(h)-5a
ADMINISTRATIVE SERVICES AGREEMENT
(XXXXXX LLC/XXXXXX INSTITUTIONAL PRODUCTS TRUST)
WITH RESPECT TO THE
XXXXXX IPT - NEW GENERATION FUND
This ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is
entered into effective as of the 1st day of May, 2000, by and between XXXXXX
LLC, a Nevada limited liability company ("Xxxxxx"), and XXXXXX INSTITUTIONAL
PRODUCTS TRUST, a Delaware business trust (the "Trust"), with respect to the
XXXXXX IPT - NEW GENERATION FUND, a series of the Trust (the "Fund").
RECITALS
A. The Trust is a Delaware business trust and an open-end,
management investment company registered under the Investment Company Act of
1940, as amended (the "1940 Act").
B. The Fund is a series of the Trust for which Xxxxxx acts as
investment advisor.
C. The parties desire that in addition to its duties as
investment advisor, Xxxxxx provide certain administrative services to the Trust
with respect to the Fund, on the terms and conditions set forth herein.
AGREEMENT
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Appointment. The Trust hereby appoints Xxxxxx as the
administrator of the Fund, to provide to the Fund, at Xxxxxx'x expense except as
specifically set forth below, all services specified herein, for the period and
on the terms set forth in this Agreement. Xxxxxx hereby accepts such appointment
and agrees to render the services and assume the responsibilities herein set
forth. In performing its services under this Agreement, Xxxxxx shall comply with
all relevant provisions of the 1940 Act and all other applicable federal and
state laws and regulations.
2. Services to be Provided. Xxxxxx shall provide the following
services to the Fund at Xxxxxx'x own expense:
(a) coordinating all matters relating to the operations of the
Fund, including any necessary coordination among the investment advisor,
transfer agent,
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dividend disbursing agent, fund accounting agent, accountants, attorneys and
other parties performing services or operational functions for the Fund;
(b) providing personnel and assistance necessary to maintain
the qualification and/or registration to sell shares under the federal
securities laws and in each state where Xxxxxx has determined such qualification
and/or registration to be advisable;
(c) monitoring the Fund's compliance with (i) the Trust's
trust instrument, as amended from time to time (the "Trust Instrument"), bylaws
and currently effective registration statement under the Securities Act of 1933,
as amended (the "1933 Act") and the 1940 Act and any amendments or supplements
thereto ("Registration Statement"); (ii) the written policies, procedures and
guidelines of the Fund, and the written instructions from the Trustees of the
Trust; (iii) the requirements of the 1933 Act, the 1940 Act, the rules
thereunder, and all other applicable federal and state laws and regulations; and
(iv) the provisions of the Internal Revenue Code applicable to the Fund as a
regulated investment company under Subchapter M or as required to maintain
compliance with any diversification provisions applicable to insurance company
separate accounts or qualified plans investing in the Fund;
(d) supervising the preparation of any or all registration
statements (including prospectuses and statements of additional information),
tax returns, proxy materials, financial statements, notices and reports for
filings with regulatory authorities and distribution to shareholders of the
Fund;
(e) issuing certain correspondence to shareholders;
(f) maintaining or supervising the maintenance of certain
books and records;
(g) providing the Trust with adequate personnel, office space,
communications facilities and other facilities necessary for operation of the
Fund as contemplated by this Agreement; and
(h) preparing and rendering to the Trustees of the Trust such
periodic and special reports as the Trustees may reasonably request.
3. Expenses and Excluded Expenses. Xxxxxx shall pay all its
own costs and expenses incurred in rendering the services required under this
Agreement. Notwithstanding any other provision hereof, it is expressly agreed
that Xxxxxx shall not be responsible to pay, except as the parties may otherwise
agree, directly or on behalf of the Fund, any of the Fund's expenses which shall
remain the Trust's own obligation and responsibility to pay.
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4. Compensation. For its services under this Agreement, Xxxxxx
shall not be compensated or paid a fee.
5. Books and Records. Xxxxxx hereby agrees that all records
which it maintains for the Fund or the Trust hereunder are the property of the
Trust, agrees to permit the reasonable inspection thereof by the Trust or its
designees and agrees to preserve for the periods prescribed under the 1940 Act
any records which it maintains for the Fund or the Trust and which are required
to be maintained under the 1940 Act. Xxxxxx further agrees to surrender promptly
to the Trust or its designees any records which it maintains for the Fund or the
Trust upon request by the Trust.
6. Term and Termination. This Agreement shall become effective
as of the date first set forth above and shall continue until terminated by
either party on 60 days' written notice to the other party. This Agreement may
also be terminated by the Trustees of the Trust at any time if Xxxxxx becomes
unable to discharge its duties and obligations under this Agreement.
7. Assignment and Amendments. This Agreement shall not be
assigned by either party without the prior written consent of the other party to
the Agreement. This Agreement may be amended in writing by the parties, provided
that all such amendments shall be subject to the approval of the Trustees of the
Trust.
8. Limitation of Liability of Xxxxxx. Xxxxxx shall not be
liable for any error of judgment or mistake of law or for any act or omission
taken with respect to the Fund, except for willful misfeasance, bad faith or
gross negligence in the performance of its duties, or by reason of reckless
disregard of its obligations and duties hereunder and except to the extent
otherwise provided by law. As used in this section, "Xxxxxx" shall include
managers, officers and employees of Xxxxxx.
9. Activities of Xxxxxx. The services of Xxxxxx hereunder are
not to be deemed to be exclusive, and Xxxxxx is free to render services to other
parties, so long as its services under this Agreement are not materially
adversely affected or otherwise impaired thereby. Nothing in this Agreement
shall limit or restrict the right of any manager, officer or employee of Xxxxxx
to engage in any other business or to devote his or her time and attention in
part to the management or other aspects of any other business, whether of a
similar nature or a dissimilar nature.
10. Limitation on Personal Liability. NOTICE IS HEREBY GIVEN
that the Trust is a business trust organized under the Delaware Business Trust
Act pursuant to a Certificate of Trust filed in the office of the Secretary of
State of the State of Delaware. All parties to this Agreement acknowledge and
agree that the Trust is a series trust and all debts, liabilities, obligations
and expenses incurred, contracted for or otherwise existing with respect to a
particular series shall be enforceable against the assets held with respect to
such series only, and not against the assets of the Trust generally or against
the assets held with respect to any other series and further that no
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Trustee, officer or holder of shares of beneficial interest of the Trust shall
be personally liable for any of the foregoing.
11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Colorado (without giving effect to the
conflicts of laws principles thereof) and the 1940 Act. To the extent that the
applicable laws of the State of Colorado conflict with the applicable provisions
of the 1940 Act, the latter shall control.
12. Miscellaneous. The headings in this Agreement are included
for convenience of reference only and in no way define or limit any of the
provisions thereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Agreement shall not be
affected thereby. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement effective as of the date first above written.
XXXXXX LLC
By:
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Xxxx X. Xxxxxxxx
President
XXXXXX INSTITUTIONAL PRODUCTS TRUST,
with respect to the series known as the Xxxxxx IPT -
New Generation Fund
By:
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Xxxx X. Xxxxxxxx
President
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