ADMINISTRATIVE SERVICES,
FUND ACCOUNTING AGREEMENT AND
TRANSFER AGENCY AGREEMENT
THIS AGREEMENT is made as of the 31st day of August, 1994 between
GLOBAL MANAGERS TRUST, a New York common law trust whose registered office is at
Elizabethan Square, X.X. Xxx 0000, Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
(hereinafter called the "Trust") of the first part and STATE STREET CAYMAN TRUST
COMPANY LTD. a company incorporated in and under the laws of the Cayman Islands
whose principal office is at Elizabethan Square, P O. Box 1984, Xxxxxx Town,
Grand Cayman, Cayman Islands (hereinafter called the "Administrator") of the
second part.
WHEREAS, the Trust is registered under the Investment Company Act of
1940 (the "1940 Act"), as an open-end, diversified management investment company
and has established a series known as International Portfolio and has the
authority to establish additional series in the future (each a "Series"); and
WHEREAS, the Trust desires to retain the Administrator to furnish
administrative, fund accounting and transfer agency services to each Series
listed in Schedule A attached hereto, and to such other Series of the Trust
hereinafter established as agreed to from time to time by the parties, and the
Administrator is willing to furnish such services,
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
--------------
(1) In this Agreement and in all amendments hereto the following words
and expressions shall, where not inconsistent with the context, have the
following meanings respectively:
"Trust Documents" shall mean the Declaration of Trust and By-Laws of the Trust
for the time being in force.
"Custodian" shall mean State Bank and Trust Company or such other person as may
from time to time be appointed Custodian by the Company.
"Offering Memorandum" shall mean each Offering Memorandum relating to Interests
in the Trust for the time being in force.
"Interests" shall mean beneficial interest of a Holder of Interest in the
assets of any Series of the Trust.
"Interestholders" shall mean the holders of the Interest of the Trust.
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"Inspector" shall mean the Inspector of Financial Services in the Cayman
Islands.
"Funds Law" shall mean The Mutual Funds Law of the Cayman Islands.
"Trustees" shall mean the Board of Trustees of the Trust.
"Committees" shall mean the Committees of the Trust.
"Subscriptions" shall mean each Subscription Agreement with the Trust by which
any institution subscribes to purchase an Interest.
(2) Unless the context otherwise requires words importing the singular
number shall include the plural and vice versa, words importing the masculine
gender shall include the feminine and words importing persons shall include
firms and companies and vice versa.
(3) The division of this Agreement into sections, clauses and
sub-clauses and the insertion of headings are for convenience of reference only
and shall not affect the construction or interpretation hereof.
2. APPOINTMENT OF ADMINISTRATOR
----------------------------
The Trust hereby appoints the Administrator to be and the Administrator
hereby agrees to act for the Trust and its Series in accordance with the terms
hereof from the end of the business day on August 31, 1994, and the
Administrator agrees to provide the administrative, fund accounting and transfer
agency services hereinafter referred to, all upon the terms and conditions
hereinafter contained and under the supervision of the Trust.
3. GENERAL SERVICES OF ADMINISTRATOR
---------------------------------
The Administrator shall provide and pay an adequate staff and shall
maintain the principal office of the Trust and provide suitable office
accommodation therefor and other facilities at Elizabethan Square aforesaid or
elsewhere in the Cayman Islands as determined by the Administrator and as
approved by the Trust for efficiently performing its functions, but the Trust
shall not be entitled to the exclusive use of any such accommodation or to the
exclusive services of any member of such staff. The Trust hereby consents to the
provision in Toronto, Canada, by an affiliate and agent of the Administrator of
accounting services, processing of increases and decreases in the Interests of
Holders and payment of distributions and expenses of the Trust; provided,
however, that such affiliate shall not have the legal authority to approve or
reject subscriptions and redemptions of Interests. The Administrator shall
perform all services under this Agreement in accordance with the 1940 Act, the
Securities Exchange Act of 1934 (the "1934 Act"), the Funds Law, and any
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applicable laws of the Cayman IsIands and Toronto, Canada and shall not take any
action to cause the Trust to be subject to Canadian or U.S. income tax.
4. DUTIES OF THE ADMINISTRATOR
---------------------------
(1) The Administrator shall perform the following services from an
office in the Cayman Islands, except where stated otherwise:
(a) oversee the execution and filing of all registration
statements, annual and semi-annual reports, and amendments
thereto;
(b) make all filings on behalf of the Trust with the Inspector on
a timely basis, including the filing of the Trust's
registration statements, Offering Memoranda, annual reports
and semi-annual reports;
(c) provide copies of all financial records of the Trust to its
agent in Toronto, Canada;
(d) maintain (i) logs and records of all communication to or from
the Trust and its Trustees, Holders, prospective Holders,
service providers and regulators and (ii) copies of all
materials sent by the Trust to any of the foregoing;
(e) respond to all correspondence from or on behalf of (i)
prospective Interestholders concerning the Offering
Memorandum, Subscriptions and the Trust or any Series and (ii)
Interestholders relating to their Interests and the functions
of the Administrator under this Agreement; and
(f) assist the Trust in the sale of Interests
(g) be responsible for keeping the register of Interestholders of
the Trust (the "Register") in accordance with the Trust
Documents and all other duties incidental thereto;
(h) send to prospective Holders Offering Memoranda and
Subscriptions for Interests and arrange for the issue,
allotment, redemption and/or purchase of Interests in
accordance with the Offering Memorandum, Subscriptions and
Trust Documents and under the supervision of, and in
accordance with the instructions of the Trust and enter on the
Register all issues, allotments, redemptions and/or purchases
of Interests; provided, the Administrator shall not have the
authority to approve or execute Subscriptions or redemptions
or increases or decreases of an Interest on behalf of the
Trust;
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(i) take or procure that there are taken reasonable and proper
precautions for the safe custody of the Register;
(j) receive, record and deal with powers of attorney, dividend
mandates, vesting orders, documents affecting the title to
Interests or any amounts payable thereon affecting the
Register in accordance with the normal practice of a
professional administrator and transfer agent or in accordance
with the written instructions of the Trust;
(k) make the Register available for inspection as required by law
or the Trust Documents;
(l) procure that Interests shall be purchased or sold only in
accordance with the provisions of the Trust Documents and in
the case of the purchases of Interests only after satisfying
itself that the Trust or the Custodian on its behalf has
received all payment in respect thereof;
(m) provided that funds have been authorized and are available to
meet the same, prepare and issue cheques for distribution, if
any or payment of moneys on a decrease in an Interest or
arrange for payment of such moneys to or in accordance with
the instructions of the Interestholders and notify the
Custodian of the amounts and payees of all cheques for
payments so made;
(n) at any time during the Administrator's business hours in the
Cayman Islands or in Toronto, Canada, permit the Auditor of
the Trust and any duly appointed agent or representative of
the Trust at the expense of the Trust to audit or inspect the
Register, books, records and financial statements of the Trust
and each Series and any other documents or records kept by and
still in the possession of the Administrator hereunder and
make available all such documents and records in its
possession to such Auditor, agent or representative during
business hours whenever reasonably required so to do and
afford all such information, explanations and assistance as
such Auditor, agent or representative may require;
(o) maintain mailing lists and dispatch all such circulars,
notices of meetings, agenda, minutes, consents, proxy
materials, proxies, reports, financial statements, tax return
information and other written material to all persons entitled
to receive the same under the Trust Documents as the Trust may
require;
(p) act as may be required by the Trust from time to time as
proxy agent in connection with the holding of meetings
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of Interestholders, receive and tabulate votes cast by proxy
and communicate to the Trust the results of such tabulation
accompanied by appropriate certificates;
(q) deal with and answer all correspondence from or on behalf of
the Interestholders relating to the functions of the
Administrator under this Agreement;
(r) have the power to pay out of the assets of the Trust or any
Series such amounts as may be required from time to time by it
in order to enable it to perform its duties hereunder for the
account of the Trust or any Series and in this connection and
for these purposes to draw on such bank accounts of the Trust
or any Series as may be approved for the purpose by the
Trustees or officers of the Trust;
(s) generally perform all duties usually performed by registrars
of companies including the keeping of all records required to
be kept and made under regulations in the Cayman Islands for
the time being in force;
(t) prepare and maintain the books and records of the Trust in
accordance with the Trust Documents and applicable law, and
maintain originals of the Trust Documents, written consents of
Trustees, Interestholders and Committees, minutes of meetings,
contracts to which the Trust is a party, registration
statements of the Trust, and books and records of account
(including journals, general and auxiliary ledgers and
securities ledgers);
(u) maintain all documents of the Trust relating to the aforesaid
(including all canceled cheques and similar documents) in safe
custody and not destroy the same except as agreed with the
Trust;
(v) provide in Toronto, Canada accounting services to the Trust,
which shall include, when applicable, (i) subject to the
supervision of the investment adviser of the Series, computing
the Net Asset Value of the Trust daily in the manner provided
in the Trust Documents and procedures adopted by the Trustee;
(ii) calculating the management, maintenance and other fees
payable to the Series' investment adviser and administrators;
and (iii) at the request of the Trustees, preparing reports
containing statements of net assets, operations and subsidiary
or detailed reports as may be reasonably requested by the
Trust;
(x) subject to the approval of the Trustees, suspend the
determination of the Net Asset Value of the Trust in
accordance with the Trust Documents; and
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(y) perform and provide such other services as may be reasonably
requested by the Trustees and appropriate to the business of
the Trust.
(2) The Administrator shall be deemed to have received proper
instructions or authorization from the Trust upon receipt of written, cabled,
telexed or telecopied instructions signed by such one or more persons as the
Trustees shall from time to time authorize to give such instructions. A
certified copy of the resolution of the Trustees shall be conclusive evidence of
the authority of any such person to act until the Administrator is in receipt of
written notice to the contrary.
(3) Upon instruction from the Treasurer of the Trust, the Administrator
shall open and maintain separate bank account or accounts in the name of the
Trust, subject only to draft or order by the Administrator acting pursuant to
the terms of this Agreement, and shall hold in such account or accounts, subject
to the provisions hereof, all cash received by it from or for the account of the
Trust. Funds held by the Administrator for the Trust may be deposited by it to
its credit as Administrator in the banking department of the Administrator or in
such other banks or trust companies as it may in its discretion deem necessary
or desirable; PROVIDED, however, that each such bank or trust company and the
funds to be deposited with each such bank or trust company shall be approved by
the Trust. Such funds shall be deposited by the Administrator in its capacity as
Administrator and shall be withdrawable by the Administrator only in that
capacity.
5. CONTROL BY TRUSTEES
-------------------
In the performance of its duties hereunder the Administrator shall at
all times be subject to the control of and review by the Trustees and shall in
all respects observe and comply with the Trust Documents and the Offering
Memorandum and shall comply and conform to all reasonable and proper orders and
directions of the Trustees and shall well and faithfully serve the Trust and use
all reasonable endeavors to promote the interests thereof.
6. DATA ACCESS AND PROPRIETARY INFORMATION
---------------------------------------
The Trust acknowledges that the data bases, computer programs, screen
formats, report formats, interactive design techniques and documentation manuals
utilized by the Administrator in the performance of its duties hereunder
constitute copyrighted, trade secret, or other proprietary information
(collectively, "Proprietary Information") of substantial value to the
Administrator. In the event that the Trust is granted or otherwise
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gains access to any Proprietary Information or it is contemplated by the
parties hereto that access to such information will be provided to the Trust,
the Trust shall, at the request of the Administrator, promptly enter into an
amendment to this Agreement in form and substance satisfactory to the
Administrator whereby it shall agree to be bound by such restrictions with
respect to its access to and use of Proprietary Information as the Trust and the
Administrator shall mutually agree.
7. REMUNERATION OF THE ADMINISTRATOR
---------------------------------
(1) The Administrator shall be paid by way of remuneration for its
services pursuant to this Agreement an annual fee as agreed upon from time to
time by the Trust and the Administrator.
(2) In addition to the fees set out herein, the Trust shall be
responsible for all governmental or similar fees, charges, taxes, duties and
imposts whatsoever levied in or by the Cayman Islands on or in respect of the
Trust or its business and shall reimburse the Administrator for any of the
foregoing as it may properly pay on behalf of the Trust, and for all reasonable
out-of-pocket expenses such as telex, telephone, postage and stationery and
expenses of a similar nature as it may incur in the execution of its duties
hereunder.
(3) Amounts payable by the Trust to the Administrator pursuant to this
Clause 7 shall be paid in United States dollars at such times to be agreed in
writing from time to time between the Trust and the Administrator.
8. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR
---------------------------------------------------
(a) Administrator is a trust company duly organized and existing in
good standing under the laws of the Cayman Islands;
(b) Administrator is a licensed administrator under the Funds Law;
(c) Administrator and its agents are duly qualified to carry on their
business and have obtained all licenses and approvals necessary to operate and
perform the services contemplated by this Agreement;
(d) Administrator has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement; and
(e) For the performance of the services hereunder, the Administrator
and its agents are not required to be registered as transfer agents pursuant to
Section 17A(c)(1) of the 1934 Act.
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9. DUTIES OF THE TRUST
-------------------
The Trust shall deliver or cause to be delivered from time to time to the
Administrator the Trust's Registration Statement, Offering Memorandum and other
Subscription materials used in the sale of Interests properly certified or
authenticated copies of its Trust Documents and all amendments thereto and of
such resolutions, votes and other proceedings as may be necessary for the
Administrator in the performance of its duties hereunder.
10. RIGHTS OF THE ADMINISTRATOR
---------------------------
The Administrator may:
(a) at its own expense employ servants or agents in performance of
its duties and the exercise of its rights hereunder provided
that such employment shall not reduce the obligations or
liabilities of the Administrator under this Agreement;
(b) delegate its functions, powers, discretions, privileges and
duties hereunder or any of them to such person, firm or
corporation on such terms and conditions as are agreed between
the Administrator and the Trust and without prejudice to
Clause 3;
(c) use the name of the Trust and sign any necessary letters or
other documents on behalf of the Trust as registrar of the
Trust in the performance of its duties hereunder; and
(d) act as registrar or administrator for any other company,
corporation or body of persons on such terms as may be
arranged with such company, corporation or body of persons and
shall not be deemed to be affected with notice of or to be
under any duty to disclose to the Trust any fact or thing
which may come to the knowledge of the Administrator or any
servant, agent or delegate of the Administrator in the course
of so doing or in any manner whatever otherwise than in the
course of carrying out the duties of registrar hereunder;
(e) acquire, hold or deal with for its own account or for the
account of any customer or other person and in its own name or
in the name of such customer or person or of a nominee any
investment in which the Trust is authorized to invest and
shall not be required to account to the Trust for any profit
arising therefrom.
11. RECORDKEEPING
-------------
To the extent required by Section 31 of the 1940 Act, as amended, and
the Rules thereunder, the Administrator agrees that all such records prepared or
maintained by the Administrator relating to the services to be performed by the
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Administrator hereunder are the property of the Trust and will be preserved,
maintained and made available in accordance with such Section and Rules, and
will be surrendered promptly to the Trust on and in accordance with its request.
12. RESPONSIBILITY AND INDEMNITY OF ADMINISTRATOR AND TRUST
-------------------------------------------------------
(1) The Administrator agrees to indemnify and hold harmless the Trust,
its respective Trustees, officers and employees and each of them against any
liability, actions, proceedings, claims, demands, costs or expenses whatsoever
which they or any of them may incur or be subject to in consequence of this
Agreement or as a result of the performance of the functions and services
provided for hereunder except such as result from the negligence, wilful default
or bad faith of the Trust or any of its respective Trustees, officers, employees
or agents as the case may be and this indemnity shall expressly inure to the
benefit of any Trustee, officer or employee of the Trust existing or future and
to the benefit of any successor of the Trust hereunder. Notwithstanding anything
contained herein to the contrary, the Administrator shall not be responsible for
the compliance with any rule, regulation, law, or statute governing the sale,
transfer, and/or distribution of the Interests by the Trust in any jurisdiction,
nor for the acts of any party conducting or associated with said sale and/or
distribution of Interests.
(2) The Trust agrees to indemnify and hold harmless the Administrator,
its respective directors, officers and employees and each of them against any
liability, actions, proceedings, claims, demands, costs or expenses whatsoever
which they or any of them may incur or be subject to in consequence of this
Agreement or as a result of the performance of the functions and services
provided for hereunder except such as result from the negligence, wilful default
or bad faith of the Administrator or any of its respective directors, officers,
employees or agents as the case may be and this indemnity shall expressly inure
to the benefit of any director, officer or employee of the Administrator
existing or future and to the benefit of any successor of the Administrator
hereunder. Notwithstanding anything contained herein to the contrary, the Trust
assumes full responsibility for compliance with all applicable requirements of
the 1940 Act, the Securities Act of 1933, the 1934 Act and the Internal Revenue
Code of 1986, all as amended from time to time, and any laws, rules and
regulations issued thereunder.
(3) The Administrator shall at all times maintain in effect appropriate
insurance coverage at levels commensurate with industry standards including,
without limitation, errors and omissions, fidelity bond and electronic data
processing coverage.
(4) The Administrator shall have no liability for incorrect data
provided by price sources authorized by the Trustees, incorrect price
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quotations from back-up sources supplied by the investment adviser, or incorrect
information regarding Interestholders supplied by the Trust including orders for
Subscriptions or reductions in Interest.
13. LIMITATION OF LIABILITY
-----------------------
The Administrator shall look only to the assets of each Series for
performance of this Agreement by the Trust, and neither the Trustees nor any of
the Trust's officers, employees or agents, whether past, present or future shall
be personally liable therefor.
14. FRAUD
-----
In the absence of negligence and provided that the Administrator has
complied with the procedures agreed between the Trust and the Administrator and
provided that the directors, officers, employees or agents of the Administrator
are not parties to any fraud, the Administrator shall not be responsible to the
Trust for registering or issuing Interests in accordance with forged or
fraudulent documents or for the consequences of any action taken by the
Administrator upon the faith of any forged or fraudulent document in any case
where, had the document not been forged or fraudulent, the action taken by the
Administrator would have been reasonable.
15. CONFIDENTIALITY
---------------
Neither party hereto shall unless compelled so to do by any court of
competent jurisdiction or a regulator having jurisdiction over such party
disclose to any person not authorized by the relevant party to receive the same
any information relating to such party or to the affairs of such party of which
the party disclosing the same shall have become possessed during the period of
this Agreement and each party shall use its best endeavors to prevent any such
disclosure as aforesaid.
16. TERMINATION
-----------
This Agreement and the appointment of the Administrator hereunder shall
continue in force for an initial term of one year, shall be automatically
renewed each year for an additional one-year term, and may be terminated by
either the Trust or the Administrator giving to the other not less than sixty
(60) days' notice in writing; provided that this Agreement may be terminated
forthwith by the Trust or the Administrator by notice taking immediate or
subsequent effect if:
(a) the Administrator or the Trust respectively has
broken or is in breach of any of the terms of this
Agreement and shall not have remedied such breach
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within thirty days after service of notice requiring
the same to be remedied; or
(b) the Administrator or the Trust respectively shall go
into liquidation (except a voluntary liquidation for
the purposes of reconstruction or amalgamation on
terms previously approved in writing by the other
party).
17. DELIVERY OF DOCUMENTS
---------------------
Upon the termination of this Agreement the Administrator shall hand
over to the Trust or to another entity designated by the Trust, all documents in
the possession of the Administrator in its capacity as Administrator.
18. NOTICES
-------
Any notice, instruction or other instrument required or permitted to be
given hereunder may be delivered in person to the offices of the parties as set
forth herein during normal business hours, or delivered prepaid registered mail
or by telex, cable or telecopy to the parties at the following addresses or such
other address as may be notified by either party from time to time.
TO THE TRUST:
GLOBAL MANAGERS TRUST
P.O. Box 1984
Grand Cayman, Cayman Islands
British West Indies
cc: Xxxxxxx Xxxxx
c/o Neuberger & Xxxxxx Management, Inc.
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
TO THE ADMINISTRATOR:
STATE STREET CAYMAN TRUST COMPANY, LTD.
X.X. Xxx 0000
Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
Xxxxxxx Xxxx Indies
Attention: Xxxxxxxxxx Xxxxxxx
cc: State Street Canada, Inc.
00 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0, Xxxxxx
Attention: Xxxxxxx Xxxxxx
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
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posting, in the case of cable twenty-four hours after despatch and, in the case
of telex of telecopy, immediately on despatch and if delivered outside normal
business hours it shall be deemed to have been received at the next time after
delivery when normal business hours commence and in the case of cable, telex or
telecopy on the business day after the receipt thereof. Evidence that the
notice, instruction or other instrument was properly addressed, stamped and put
into the post shall be conclusive evidence of posting.
19. ASSIGNMENT
----------
Except as expressly permitted pursuant to Clauses 3 and 10, neither the
benefit nor the burden of this Agreement shall be assigned by either the
Administrator or the Trust save with the consent of the other party hereto,
provided, however, that the Agreement may be assigned by the Trust to any
investment company managed by Xxxxxxxxx & Xxxxxx Management, Inc. ("NBMI")
that acquires all or substantially all of the Trust's assets or any investment
company managed by NBMI into which the Trust is merged or otherwise
consolidated.
20. PROPER LAW
----------
This Agreement shall be governed by and construed in accordance with
the laws of the Cayman Islands.
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SIGNATURE PAGE
AS WITNESS the hands of the duly authorized signatories of the parties
hereto as of the day and year first above written.
SIGNED BY )
for and on behalf of )
GLOBAL MANAGERS TRUST ) /s/ Xxxxxxx Xxxxxx
) __________________________
in the presence of: ) CEO
/s/ Xxxx Xxxxx
SIGNED BY X. Xxxxxxx )
for and on behalf of )
STATE STREET CAYMAN ) /s/ X. Xxxxxxx
TRUST COMPANY LTD. ) __________________________
in the presence of: ) Attorney-in-Fact
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ADMINISTRATIVE SERVICES,
FUND ACCOUNTING AGREEMENT AND
TRANSFER AGENCY AGREEMENT
SCHEDULE A
The Series of Global Managers Trust currently subject to this Agreement
are as follows:
INITIAL SERIES
--------------
International Portfolio
DATED: August 31, 1994
