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Exhibit 23(h)(1)
Form of Fund Administration Agreement
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FUND ADMINISTRATION AGREEMENT
This Fund Administration Agreement is made as of this 1st day of April, 2003, by
and among The Xxxxxxxxxx Funds, a Massachusetts business trust ("TMF"), The
Xxxxxxxxxx Funds II, a Delaware statutory trust ("TMF II"), The Xxxxxxxxxx Funds
III, a Delaware statutory trust ("TMF III") (collectively, the "Trusts"), and
Gartmore SA Capital Trust, a Delaware statutory trust (the "Administrator").
WHEREAS, each Trust operates as an open-end management investment company and is
registered under the Investment Company Act of 1940, as amended (the "Investment
Company Act"); and
WHEREAS, the Trusts desire to retain the Administrator to provide certain
administrative and fund accounting services described below with respect to
certain of the series of the Trusts (the "Funds"), each of which as are now, or
may hereafter be, listed on Exhibit A to this Agreement, and the Administrator
is willing to render such services;
NOW, THEREFORE, in consideration of the promises and mutual covenants set forth
herein, the parties hereto agree as follows:
1. Appointment of Administrator. Each Trust hereby appoints the
Administrator as administrator of the Funds on the terms and conditions
set forth in this Agreement; and the Administrator hereby accepts such
appointment and agrees to perform the services and duties set forth in
Section 2 of this Agreement in consideration of the compensation
provided for in Section 4 hereof.
2. Services and Duties. As Administrator, and subject to the supervision
and control of each Trust's Board of Trustees, the Administrator will
provide facilities, equipment, and personnel to carry out the following
administrative and fund accounting services for operation of the
business and affairs of each Trust and each of the Funds covered by this
Agreement:
a. prepare, file, and maintain each Trust's governing documents,
including their respective Agreement and Declaration of Trust and
Bylaws;
b. at the request of each Trust, assist in the preparation of all
agendas, notices and minutes for meetings of each Trust's Board
of Trustees or shareholders, all resolutions to be voted upon by
each Board of Trustees, assist in the preparation of supporting
information for such meetings with regard to the duties of the
Administrator under this Agreement, and collection and
distribution of supporting information for such meetings with
respect to the duties performed by other persons who provide
services to the Trusts;
c. prepare and file on a timely basis with the Securities and
Exchange Commission and the appropriate state securities
authorities the registration statements for each Trust, relating
to the Funds and the Funds' shares, and all amendments thereto,
each Trust's
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reports pursuant to Investment Company Act Rule 24f-2, reports to
shareholders and regulatory authorities, including Form N-SAR and
Form N-CSR, and prospectuses, proxy statements, and such other
documents as may be necessary or convenient to enable the Trust
to make continuous offering of the Funds' shares and to conduct
its affairs;
d. supervise each Trust's custodian;
e. calculate performance data of the Funds;
f. prepare and file on a timely basis the Federal and State income
and other tax returns for the Funds;
g. examine and review the operations of each Trust's custodian and
investment adviser and the Funds' subadvisers, if any, to promote
compliance with applicable state and federal law;
h. coordinate the layout and printing of publicly disseminated
prospectuses and reports;
i. perform internal audit examinations in accordance with procedures
to be adopted by the Administrator and the Trusts;
j. assist with the design, development, and operation of the Funds;
k. provide individuals reasonably acceptable to each Trust's Board
of Trustees for nomination, appointment, or election as officers
of the Trust, who will be responsible for the management of
certain of each Trust's affairs as determined by each Trust's
Board of Trustees;
l. monitor each Trust's compliance with Section 817 and Sections 851
through 855 of the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder, so as to enable the
Trusts and each Fund to comply with the diversification
requirements applicable to investments of variable contracts and
for each to maintain its status as a "regulated investment
company";
m. advise each Trust and its Board of Trustees on matters concerning
the Funds and their affairs;
n. provide the Trusts with office space and personnel; and
o. provide the Trusts and each Fund with fund accounting services,
including but not limited to the following services:
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1) keeping and maintaining the following books and records of
the Trusts and each of the Funds pursuant to Rule 31a-1
under the Investment Company Act, including:
a) journals containing an itemized daily record of all
purchase and sales of securities, all receipts and
disbursements of cash and all other debit and
credits, as required by Rule 31a-1(b)(1);
b) general and auxiliary ledgers reflecting all asset,
liability, reserve, capital, income and expense
accounts, including interest accrued and interest
received, as required by Rule 31a-1(b)(2)(i);
c) separate ledger accounts required by Rule
31a-1(b)(2)(ii) and (iii); and
d) a monthly trial balance of all ledger accounts
(except shareholder accounts) as required by Rule
31a-1(b)(8).
2) performing the following accounting services on a regular
basis for each Fund, as may be reasonably requested by the
Trusts:
a) calculate the net asset value per share;
b) calculate the dividend and capital gain
distribution, if any;
c) calculate a Fund's yield;
d) reconcile cash movements with the Trusts'
custodian;
e) affirm to the Trusts' custodian all portfolio
trades and cash movements;
f) verify and reconcile with the Trusts' custodian all
daily trade activity;
g) provide such reports as may be required by the
Trusts;
h) preparation of the Trusts' financial statements,
including oversight of expense accruals and
payments; and
i) such other similar services with respect to a Fund
as may be reasonably requested by the Trusts; and
p. assist in all aspects of the Funds' operations other than those
provided under other specific contracts.
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The foregoing, along with any additional services that the Administrator
shall agree in writing to perform for the Trusts hereunder, shall
hereafter be referred to as "Administrative Services." In compliance
with the requirements of Rule 31a-3 under the Investment Company Act,
the Administrator hereby agrees that all records that it maintains for
the Trusts are the property of the respective Trust and further agrees
to surrender promptly to such Trust any of such records upon the Trust's
request. The Administrator further agrees to preserve for the periods
prescribed by Investment Company Act Rule 31a-2 the records required to
be maintained by Investment Company Act Rule 31a-1. Administrative
Services shall not include any duties, functions, or services to be
performed for the Trusts by a Fund's investment adviser, custodian, or
transfer agent pursuant to their agreements with the Trust or a Fund.
When performing Administrative Services to the Trusts and for the Funds,
the Administrator will comply with the provisions of the Agreement and
Declaration of Trust and Bylaws of each Trust, will safeguard and
promote the welfare of the Trusts and the Funds, and will comply with
the policies that the Trustees may from time to time reasonably
determine, provided that such policies are not in conflict with this
Agreement, the Trusts' governing documents, or any applicable statutes
or regulations.
3. Expenses. The Administrator shall be responsible for expenses incurred
in providing all the Administrative Services to the Trusts, including
the compensation of the Administrator's employees who serve as officers
of the Trusts, except that each Trust shall reimburse the Administrator
for the cost of the pricing services that the Administer utilizes. The
Trusts (or a Fund's investment adviser) shall be responsible for all
other expenses of the respective Trust, including without limitation:
(i) investment advisory and subadvisory fees; (ii) interest and taxes;
(iii) brokerage commissions and other costs in connection with the
purchase or sale of securities and other investment instruments; (iv)
fees and expenses of each Trust's trustees, other than those who are
"interested persons" of the Administrator or investment adviser of the
Trusts; (v) legal and audit expenses; (vi) custodian and transfer and
dividend disbursing agent fees and expenses; (vii) fees and expenses
related to the registration and qualification of the Trusts and the
Trusts' shares for distribution under state and federal securities laws;
(viii) expenses of printing and mailing reports and notices and proxy
material to beneficial shareholders of the Funds; (ix) all other
expenses incidental to holding meetings of the Funds' shareholders,
including proxy solicitations therefor; (x) insurance premiums for
fidelity and other coverage; (xi) association membership dues; (xii)
such nonrecurring or extraordinary expenses as may arise, including
those relating to actions, suits or proceedings to which a Trust or a
Fund is a party and the legal obligation which such Trust may have to
indemnify the Trust's trustees and officers with respect thereto.
4. Compensation. For the Administrative Services provided, each Trust
hereby agrees to pay and the Administrator hereby agrees to accept as
full compensation for its services rendered hereunder the administrative
fee listed for each Fund on Exhibit A. Such fees will be
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computed daily and payable monthly at an annual rate based on a Fund's
average daily net assets and will be paid monthly as soon as practicable
after the last day of each month.
In case of termination of this Agreement during any month, the
administrative fee for that month shall be reduced proportionately on
the basis of the number of business days during which it is in effect,
and the fee computed upon the average net assets for the business days
it is so in effect for that month.
5. Responsibility of Administrator.
a. The Administrator shall not be liable for any error of judgment
or mistake of law or for any loss suffered by a Trust in
connection with the matters to which this Agreement relates,
except a loss resulting from willful misfeasance, bad faith or
negligence on its part in the performance of its duties or from
reckless disregard by it of its obligations and duties under this
Agreement. Any person, even though also an officer, director,
partner, employee or agent of the Administrator, who may be or
become an officer or trustee of a Trust, shall be deemed, when
rendering services to a Trust or acting on any business of a
Trust (other than services or business in connection with the
duties of the Administrator hereunder) in accordance with his
responsibilities to such Trust as an officer or trustee, to be
rendering such services to or acting solely for that Trust and
not as an officer, director, partner, employee or agent or one
under the control or direction of the Administrator even though
paid by the Administrator.
b. The Administrator shall be kept indemnified by each Trust and be
without liability for any action taken or thing done by it in
performing the Administrative Services in accordance with the
above standards; provided, however, that the Trusts will not
indemnify the Administrator for the portion of any loss or claim
caused, directly or indirectly, by the negligence, willful
malfeasance or bad faith of the Administrator or by the
Administrator's reckless disregard of its duties and obligations
hereunder. In order that the indemnification provisions contained
in this Section 5 shall apply, however, it is understood that if
in any case a Trust may be asked to indemnify or hold the
Administrator harmless, such Trust shall be fully and promptly
advised of all pertinent facts concerning the situation in
question, and it is further understood that the Administrator
will use all reasonable care to identify and notify such Trust
promptly concerning any situation which presents or appears
likely to present the probability of such a claim for
indemnification against the Trust. Each Trust shall have the
option to defend the Administrator against any claim which may be
the subject of this indemnification. In the event that a Trust so
elects it will so notify the Administrator and thereupon the
Trust shall take over complete defense of the claim, and the
Administrator shall in such situation initiate no further legal
or other expenses for which it shall seek indemnification under
this Section. The Administrator shall in no case confess any
claim or make any compromise or
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settlement in any case in which a Trust will be asked to
indemnify the Administrator except with the applicable Trust's
written consent.
6. Duration and Termination.
a. This Agreement shall become effective as of the date first
written above. The Agreement may be terminated at any time,
without payment of any penalty, by either party upon 30 days'
advance written notice to the other party. The Agreement may also
be terminated immediately upon written notice to the other party
in the event of a material breach of any provision of this
Agreement by such other party.
b. Upon the termination of this Agreement, the Trusts shall pay to
the Administrator such compensation as may be payable prior to
the effective date of such termination. In the event that a Trust
designates a successor to any of the Administrator's obligations
hereunder, the Administrator shall, at the direction of such
Trust, transfer to such successor all relevant books, records and
other data established or maintained by the Administrator under
the foregoing provisions.
7. Amendment. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing
signed by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
8. The Trusts and their Trustees. The terms "TMF," "TMF II," "TMF III" and
the "Trustees of The Xxxxxxxxxx Funds" refer, respectively, to the
Trusts created and their Trustees, as trustees but not individually or
personally, acting from time to time under their respective Agreements
and Declaration of Trust, as such agreements have been or may be amended
from time to time, and to which reference is hereby made and a copy of
which, for TMF, is on file at the office of the Secretary of State of
The Commonwealth of Massachusetts, and for TMF II and TMF III, are on
file at the office of the Secretary of State of The State of Delaware,
and elsewhere as required by law, and to any and all amendments thereto
so filed or hereafter filed. The obligations of the Trusts entered into
in the name or on behalf thereof by any of a Trust's Trustees,
representatives, or agents are not made individually, but only in their
capacities with respect to the relevant Trust. Such obligations are not
binding upon any of the Trustees, shareholders, or representatives of
the Trusts personally, but bind only the assets of the applicable Trust.
All persons dealing with any series of shares of a Trust must look
solely to the assets of the Trust belonging to such series for the
enforcement of any claims against such Trust. Such persons may not look
to the assets of one or both of the other Trusts.
9. Notices. Notices of any kind to be given to a Trust hereunder by the
Administrator shall be in writing and shall be duly given if delivered
to such Trust at the following address:
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The Xxxxxxxxxx Funds
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
Notices of any kind to be given to the Administrator hereunder by a
Trust shall be in writing and shall be duly given if delivered to the
Administrator at the following address:
Gartmore SA Capital Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
10. Miscellaneous. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If
any provision of this Agreement shall be held or made invalid by a court
or regulatory agency decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby. Subject to the
provisions of Section 5, hereof, this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors. This Agreement shall be governed by and construed
to be in accordance with substantive laws of the State of Ohio without
reference to choice of law principles thereof and in accordance with the
Investment Company Act. In the case of any conflict, the Investment
Company Act shall control.
11. Nonpublic Personal Information. Notwithstanding any provision herein to
the contrary, the Administrator agrees on behalf of itself and its
trustees, officers, and employees (1) to treat confidentially and as
proprietary information of the Trusts (a) all records and other
information relative to the Funds and their prior, present, or potential
shareholders (and clients of said shareholders) and (b) any Nonpublic
Personal Information, as defined under Section 248.3(t) of Regulation
S-P ("Regulation S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx Act
(the "Privacy Act"), and (2) not to use such records and information for
any purpose other than the performance of its responsibilities and
duties hereunder, or as otherwise permitted by the privacy policies
adopted by the Trusts, Regulation S-P or the Privacy Act, except after
prior notification to and approval in writing by the applicable Trust.
Such written approval shall not be unreasonably withheld by a Trust and
may not be withheld where the Administrator may be exposed to civil or
criminal contempt proceedings for failure to comply after being
requested to divulge such information by duly constituted authorities,
or when so requested by a Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
GARTMORE SA CAPITAL TRUST
By:
Name:
Title:
THE XXXXXXXXXX FUNDS
By:
Name:
Title:
THE XXXXXXXXXX FUNDS II
By:
Name:
Title:
THE XXXXXXXXXX FUNDS III
By:
Name:
Title:
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EXHIBIT A
Fund Administration Agreement
(Effective April 1, 2003)
Fees
The Trusts shall pay fees to the Administrator as set forth in the schedule
directly below, for the provision of fund administration services covered by
this Agreement to certain series of the Trusts listed below in Table B (the
"Funds"). Fees will be computed daily and payable monthly at an annual rate
based on the aggregate amount of the average daily net assets of the Funds. The
Funds will also be responsible for out-of-pocket expenses reasonably incurred by
the Administrator in providing services to the Funds. All fees and expenses
shall be paid by the Funds to the Administrator.
Aggregate Fee as a Percentage of Net Assets
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0.14%
Funds of the Trusts
The Xxxxxxxxxx Funds
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Xxxxxxxxxx Global Opportunities Fund
Xxxxxxxxxx Global Focus Fund
The Xxxxxxxxxx Funds II
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Xxxxxxxxxx Partners Long-Short Equity Plus Fund
The Xxxxxxxxxx Funds III
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Xxxxxxxxxx Variable Series Emerging Markets Fund
[signature page follows]
AGREED TO AND ACCEPTED BY:
THE XXXXXXXXXX FUNDS
By:
---------------------------------
Title:
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THE XXXXXXXXXX FUNDS II
By:
---------------------------------
Title:
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THE XXXXXXXXXX FUNDS III
By:
---------------------------------
Title:
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GARTMORE SA CAPITAL TRUST
By:
---------------------------------
Title:
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