Exhibit 99.H4
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DRAFT
FORM OF ADMINISTRATION AGREEMENT
Agreement dated as of __________, 2005 by and between State
Street Bank and Trust Company, a Massachusetts trust company (the
"Administrator"), and Xxxxxxxxxx Institutional Series (the "Trust").
WHEREAS, the Trust is registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Trust desires to retain the Administrator to
furnish certain administrative services to the Trust, and the Administrator is
willing to furnish such services, on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. Appointment of Administrator
The Trust hereby appoints the Administrator to act as
administrator with respect to the Trust for purposes of providing certain
administrative services for the period and on the terms set forth in this
Agreement. The Administrator accepts such appointment and agrees to render the
services stated herein.
The Trust will initially consist of the portfolio(s) and/or
class(es) of shares (each a "Fund") listed in Schedule A to this Agreement. In
the event that the Trust establishes one or more additional Funds with respect
to which it wishes to retain the Administrator to act as administrator
hereunder, the Trust shall notify the Administrator in writing. Upon written
acceptance by the Administrator, such Fund shall become subject to the
provisions of this Agreement to the same extent as the existing Funds, except to
the extent that such provisions (including those relating to the compensation
and expenses payable by the Trust and its Funds) may be modified with respect to
each additional Fund in writing by the Trust and the Administrator at the time
of the addition of the Fund.
2. Delivery of Documents
The Trust will promptly deliver to the Administrator copies of
each of the following documents and all future amendments and supplements, if
any:
a. The Trust's charter document and by-laws;
b. The Trust's currently effective registration statement
under the Securities Act of 1933, as amended (the "1933
Act"), and the 1940 Act and the Trust's Prospectus(es)
and Statement(s) of Additional Information relating to
all Funds and all amendments and supplements thereto as
in effect from time to time; and
c. Such other certificates, documents or opinions which the
Administrator may, in its reasonable discretion, deem
necessary or appropriate in the proper performance of
its duties.
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3. Representation and Warranties of the Administrator
The Administrator represents and warrants to the Trust that:
a. It is a Massachusetts trust company, duly organized,
existing and in good standing under the laws of The
Commonwealth of Massachusetts;
b. It has the corporate power and authority to carry on its
business in The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement;
d. No legal or administrative proceedings have been
instituted or threatened which would impair the
Administrator's ability to perform its duties and
obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a
material breach or be in material conflict with any
other agreement or obligation of the Administrator or
any law or regulation applicable to it.
4. Representations and Warranties of the Trust
The Trust represents and warrants to the Administrator that:
a. It is a business trust, duly organized and existing and
in good standing under the laws of The Commonwealth of
Massachusetts;
b. It has the corporate power and authority under
applicable laws and by its charter and by-laws to enter
into and perform this Agreement;
c. All requisite proceedings have been taken to authorize
it to enter into and perform this Agreement;
d. It is an investment company properly registered under
the 1940 Act;
e. A registration statement under the 1933 Act and the 1940
Act has been filed and will be effective and remain
effective during the term of this Agreement. The Trust
also warrants to the Administrator that all necessary
filings under the securities laws of the states in which
the Trust offers or sells its shares will have been made
and will be current during the term of this Agreement;
f. No legal or administrative proceedings have been
instituted or threatened which would impair the Trust's
ability to perform its duties and obligations under this
Agreement;
g. Its entrance into this Agreement shall not cause a
material breach or be in material conflict with any
other agreement or obligation of the Trust or any law or
regulation applicable to it; and
h. As of the close of business on the date of this
Agreement, the Trust is authorized to issue an unlimited
amount of shares of beneficial interest.
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5. Administration Services
The Administrator shall provide the following services, in each
case, subject to the control, supervision and direction of the Trust and the
review and comment by the Trust's auditors and legal counsel and in accordance
with procedures which may be established from time to time between the Trust and
the Administrator:
Fund Administration Services
a. Prepare and review calculation, submit for approval by
officers of the Trust and arrange for payment of the
Funds' expenses (including fees paid to the Trust's
investment adviser, custodian, transfer agent and
dividend disbursing agent and Rule 12b-1 fees), any
applicable multi-class expense differentials, annual
expense budgets, coordinate with Administrator for
booking of expense accruals and adjustments and monitor
such expenses;
b. Prepare for review and approval by officers of the Trust
financial information for the Trust's semi-annual and
annual reports, proxy statements and other
communications required or otherwise to be sent to Trust
shareholders;
c. Prepare for review by an officer of and legal counsel
for the Trust the Trust's periodic financial reports
required to be filed with the Securities and Exchange
Commission ("SEC") on Form N-SAR, Form N-CSR and
financial information required by Form N-1A and such
other reports, forms or filings, as may be mutually
agreed upon;
d. Prepare and file with the SEC (subject to review by an
officer of and legal counsel for the Trust) Form 24f-2
and Form N-SAR filings;
e. Prepare reports relating to the business and affairs of
the Trust, such as but not limited to compliance
reports, as may be mutually agreed upon and not
otherwise prepared by the Trust's investment adviser,
custodian, legal counsel or independent accountants;
f. Prepare and assist with reports for the Board of
Trustees of the Trust ("Board") as may be mutually
agreed upon by the parties;
g. Provide periodic testing of portfolios to assist the
Trust's investment adviser in complying with Internal
Revenue Code mandatory qualification requirements, the
requirements of the 1940 Act and Fund prospectus
limitations as may be mutually agreed upon and provide
the Trust reports of such compliance testing;
h. Assist the Trust with responses to major industry
questionnaires as may be mutually agreed upon by the
parties;
i. Calculate and review the Funds' periodic dividend
distribution amounts for reasonableness based upon a
conventional multiple class allocation method selected
by the Trust;
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Tax Services
j. Prepare the Trust's federal, state and local income tax
returns for review by the Trust's independent
accountants and filing by the Trust; including but not
limited to, Form 1120-RIC, Form 8613, Form 1099-MISC,
"disinterested director" 1099-MISC and other filings as
may be required from time to time;
k. Calculate the distribution of capital gains, income and
spill back requirements and provide estimates of capital
gains;
l. Compute tax basis provisions for both excise and income
tax purposes;
m. Prepare information for Section 852 filings;
n. Provide shareholder reporting, including but not limited
to preparation of Form 1099-DIV inserts, treasury income
percentages, dividend received deduction information,
qualified dividend income information, state-by-state
income breakdowns, foreign tax credit information,
alternative minimum tax percentages, Florida intangible
tax information and various state specific gain
information;
Legal Services
o. Prepare agenda and background materials for Board and
Committee meetings, make presentations at Board and
Committee meetings where appropriate, prepare minutes
and follow-up on matters raised at Board and Committee
meetings and attend shareholder meetings and prepare
minutes;
p. Prepare and mail quarterly and annual Code of Ethics
forms for disinterested Board members, including a
review of returned forms against portfolio holdings and
reporting to the Board;
q. Prepare for filing with the SEC Form N-CSR and
amendments to the Trust's registration statement,
including updating the Prospectus and Statement of
Additional Information;
r. Prepare for filing with the SEC proxy statements and
provide consultation on proxy solicitation matters;
s. File with the SEC Form N-PX;
t. Maintain general Board calendars and regulatory filings
calendars;
u. Maintain copies of the Trust's charter and by-laws;
v. Act as liaison to legal counsel to the Trust if desired
and, where applicable, to legal counsel to the Trust's
independent Board members;
w. Assist in developing guidelines and procedures to
improve overall compliance by the Trust;
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x. Assist the Trust in the handling of routine regulatory
examinations and work closely with the Trust's legal
counsel in response to any non-routine regulatory
matters;
y. Maintain continuing awareness of significant emerging
regulatory and legislative developments which may affect
the Trust, update the Board and the investment adviser
on those developments and provide related planning
assistance where requested or appropriate; and
z. Coordinate with insurance providers, including
soliciting bids for Directors & Officers/Errors &
Omissions insurance and fidelity bond coverage, file
fidelity bonds with the SEC and make related Board
presentations.
The Administrator shall provide the office facilities and the personnel required
by it to perform the services contemplated herein.
6. Fees; Expenses; Expense Reimbursement
The Administrator shall receive from the Trust such compensation
for the Administrator's services provided pursuant to this Agreement as may be
agreed to from time to time in a written fee schedule approved by the parties
(the "Fee Schedule"). The fees are calculated daily by the Administrator in
accordance with the Fee Schedule and billed monthly and shall be due and payable
by the Trust upon receipt of the Administrator's invoice. Upon the termination
of this Agreement before the end of any month, the fee for the part of the month
before such termination shall be prorated according to the proportion which such
part bears to the full monthly period and shall be payable upon the date of
termination of this Agreement. In the event that a Fund is liquidated or is
merged out of existence prior to the end of a month, the fee payable with
respect to such Fund shall be prorated based on the number of days elapsed in
the month during which the Fund was still in existence. In addition, upon
receipt of the Administrator's invoice, the Trust shall reimburse the
Administrator for its out-of-pocket costs incurred in connection with this
Agreement.
The Trust agrees promptly to reimburse the Administrator for any
equipment and supplies specially ordered by or for the Trust through the
Administrator and for any other expenses not contemplated by this Agreement that
the Administrator may incur on the Trust's behalf at the Trust's request or with
the Trust's consent.
The Trust will bear all expenses that are incurred in its
operation and not specifically assumed by the Administrator. Expenses to be
borne by the Trust, include, but are not limited to: organizational expenses;
cost of services of independent accountants and outside legal and tax counsel
(including such counsel's review of the Trust's registration statement, proxy
materials, federal and state tax qualification as a regulated investment company
and other reports and materials prepared by the Administrator under this
Agreement); cost of any services contracted for by the Trust directly from
parties other than the Administrator; cost of trading operations and brokerage
fees, commissions and transfer taxes in connection with the purchase and sale of
securities for the Trust; investment advisory fees; taxes, insurance premiums
and other fees and expenses applicable to its operation; costs incidental to any
meetings of shareholders including, but not limited to, legal and accounting
fees, proxy filing fees and the costs of preparation, printing and mailing of
any proxy materials; costs incidental to Board meetings, including fees and
expenses of Board members; the salary and expenses of any officer,
director\trustee or employee of the Trust; costs incidental to the preparation,
printing and distribution of the Trust's registration statements and any
amendments thereto and shareholder reports; cost of typesetting and printing of
prospectuses; cost of preparation and filing of the Trust's tax returns, Form
N-1A and Form N-SAR, and all notices, registrations
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and amendments associated with applicable federal and state tax and securities
laws; all applicable registration fees and filing fees required under federal
and state securities laws; fidelity bond and directors' and officers' liability
insurance; and cost of independent pricing services used in computing the Funds'
net asset value.
The Administrator is authorized to and may employ or associate
with such person or persons as the Administrator may deem desirable to assist it
in performing its duties under this Agreement; provided, however, that the
compensation of such person or persons shall be paid by the Administrator and
that the Administrator shall be as fully responsible to the Trust for the acts
and omissions of any such person or persons as it is for its own acts and
omissions.
7. Instructions and Advice
At any time, the Administrator may apply to any officer of the
Trust for instructions and may consult with its own legal counsel or outside
counsel for the Trust or the independent accountants for the Trust at the
expense of the Trust, with respect to any matter arising in connection with the
services to be performed by the Administrator under this Agreement. The
Administrator shall not be liable, and shall be indemnified by the Trust, for
any action taken or omitted by it in good faith in reliance upon any such
instructions or advice or upon any paper or document believed by it to be
genuine and to have been signed by the proper person or persons. The
Administrator shall not be held to have notice of any change of authority of any
person until receipt of written notice thereof from the Trust. Nothing in this
paragraph shall be construed as imposing upon the Administrator any obligation
to seek such instructions or advice, or to act in accordance with such advice
when received.
8. Limitation of Liability and Indemnification
The Administrator shall be responsible for the performance of
only such duties as are set forth in this Agreement and, except as otherwise
provided under Section 6, shall have no responsibility for the actions or
activities of any other party, including other service providers. The
Administrator shall have no liability for any error of judgment or mistake of
law or for any loss or damage resulting from the performance or nonperformance
of its duties hereunder unless caused by or resulting from the negligence or
willful misconduct of the Administrator, its officers or employees. The
Administrator shall not be liable for any special, indirect, incidental, or
consequential damages of any kind whatsoever (including, without limitation,
attorneys' fees) under any provision of this Agreement or for any such damages
arising out of any act or failure to act hereunder. In any event, for any
liability or loss suffered by the Trust including, but not limited to, any
liability relating to qualification of the Trust as a regulated investment
company or any liability relating to the Trust's compliance with any federal or
state tax or securities statute, regulation or ruling, the Administrator's
cumulative liability for each calendar year (a "Liability Period") with respect
to the Trust under this Agreement regardless of the form of action or legal
theory shall be limited to its total annual compensation earned with respect to
the Trust and fees payable hereunder during the preceding Compensation Period,
as defined herein, for any liability or loss suffered by the Trust including,
but not limited to, any liability relating to qualification of the Trust as a
regulated investment company or any liability relating to the Trust's compliance
with any federal or state tax or securities statute, regulation or ruling during
such Liability Period. "Compensation Period" shall mean the calendar year ending
immediately prior to each Liability Period in which the event(s) giving rise to
the Administrator's liability for that period have occurred. Notwithstanding the
foregoing, the Compensation Period for purposes of calculating the annual
cumulative liability of the Administrator for the Liability Period commencing on
the date of this Agreement and terminating on December 31, 2005 shall be the
date of this Agreement through December 31, 2005, calculated on an annualized
basis, and the Compensation Period for the Liability Period commencing January
1, 2006 and terminating on December 31, 2006 shall be the date of this Agreement
through December 31, 2005, calculated on an annualized basis.
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The Administrator shall not be responsible or liable for any
failure or delay in performance of its obligations under this Agreement arising
out of or caused, directly or indirectly, by circumstances beyond its control,
including without limitation, work stoppage, power or other mechanical failure,
computer virus, natural disaster, governmental action or communication
disruption. In the event that any of the aforementioned events or circumstances
actually causes loss, damage or expense to the Trust, the Administrator shall
use commercially reasonable efforts under the circumstances to mitigate the
negative effect of such event on the Trust. Notwithstanding the foregoing,
nothing in this paragraph shall relieve the Administrator from its
responsibility to provide and maintain appropriate backup and disaster recovery
facilities.
The Trust shall indemnify and hold the Administrator harmless
from all loss, cost, damage and expense, including reasonable fees and expenses
for counsel, incurred by the Administrator resulting from any claim, demand,
action or suit in connection with the Administrator's acceptance of this
Agreement, any action or omission by it in the performance of its duties
hereunder, or as a result of acting upon any instructions reasonably believed by
it to have been duly authorized by the Trust, provided that this indemnification
shall not apply to actions or omissions of the Administrator, its officers or
employees in cases of its or their own negligence or willful misconduct.
The Trust will be entitled to participate at its own expense in
the defense, or, if it so elects, to assume the defense of any suit brought to
enforce any liability subject to the indemnification provided above. In the
event the Trust elects to assume the defense of any such suit and retain
counsel, the Administrator or any of its affiliated persons, named as defendant
or defendants in the suit, may retain additional counsel but shall bear the fees
and expenses of such counsel unless (i) the Trust shall have specifically
authorized the retaining of such counsel or (ii) the Administrator shall have
determined in good faith that the retention of such counsel is required as a
result of a conflict of interest.
The indemnification contained herein shall survive the
termination of this Agreement.
9. Confidentiality
The Administrator agrees that, except as otherwise required by
law or in connection with any required disclosure to a banking or other
regulatory authority, including Regulation S-P, it will keep confidential all
records and information in its possession relating to the Trust or its
shareholders or shareholder accounts and will not disclose the same to any
person except at the request or with the written consent of the Trust.
10. Compliance with Governmental Rules and Regulations; Records
In compliance with the requirements of Rule 31a-3 under the 1940
Act, the Administrator agrees that all records which it maintains for the Trust
shall at all times remain the property of the Trust, shall be readily accessible
during normal business hours, and shall be promptly surrendered upon the
termination of the Agreement or otherwise on written request. The Administrator
further agrees that all records which it maintains for the Trust pursuant to
Rule 31a-1 under the 1940 Act will be preserved for the periods prescribed by
Rule 31a-2 under the 1940 Act unless any such records are earlier surrendered as
provided above. Records shall be surrendered in usable machine-readable form.
11. Services Not Exclusive
The services of the Administrator to the Trust are not to be
deemed exclusive, and the Administrator shall be free to render similar services
to others. The Administrator shall be deemed to be an
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independent contractor and shall, unless otherwise expressly provided herein or
authorized by the Trust from time to time, have no authority to act or represent
the Trust in any way or otherwise be deemed an agent of the Trust.
12. Term, Termination and Amendment
This Agreement shall become effective on the date first above
written. The Agreement shall remain in effect for a period of one year from the
effective date, and shall automatically continue in effect thereafter with
respect to the Trust unless terminated at the end of such period or thereafter
on sixty (60) days' prior written notice given by either party to the other
party. Termination of this Agreement with respect to any given Fund shall in no
way affect the continued validity of this Agreement with respect to any other
Fund. Upon termination of this Agreement, the Trust shall pay to the
Administrator such compensation and any reimbursable expenses as may be due
under the terms hereof as of the date of such termination, including reasonable
out-of-pocket expenses associated with such termination. This Agreement may be
modified or amended from time to time by mutual written agreement of the parties
hereto.
13. Notices
Any notice or other communication authorized or required by this
Agreement to be given to either party shall be in writing and deemed to have
been given when delivered in person or by confirmed facsimile, or posted by
certified mail, return receipt requested, to the following address (or such
other address as a party may specify by written notice to the other): if to the
Trust: Xxxxxxxxxx Institutional Series, ___________, Attn:______, Fax: ______;
if to the Administrator: State Street Bank and Trust Company, X.X. Xxx 0000,
Xxxxxx, Xxxxxxxxxxxxx 00000-0000, Attn: Fund Administration Legal Department,
Fax: (000) 000-0000.
14. Non-Assignability
This Agreement shall not be assigned by either party hereto
without the prior consent in writing of the other party, except that the
Administrator may assign this Agreement to a successor of all or a substantial
portion of its business, or to a party controlling, controlled by or under
common control with the Administrator.
15. Successors
This Agreement shall be binding on and shall inure to the
benefit of the Trust and the Administrator and their respective successors and
permitted assigns.
16. Entire Agreement
This Agreement contains the entire understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
previous representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
17. Waiver
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
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18. Severability
If any provision of this Agreement is invalid or unenforceable,
the balance of the Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance it shall nevertheless remain
applicable to all other persons and circumstances.
19. Governing Law
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
20. Reproduction of Documents
This Agreement and all schedules, exhibits, attachments and
amendments hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
21. Limitations of Liability of the Trustees or Shareholders
A copy of the Agreement and Declaration of Trust establishing
the Trust is on file with the Secretary of State of The Commonwealth of
Massachusetts, and notice is hereby given that this Agreement is executed with
respect to the series of the Trust on behalf of the Trust by officers of the
Trust as officers and not individually and that the obligations of or arising
out of this Agreement are not binding upon any of the Trustees, officers or
shareholders individually but are binding only upon the assets and property
belonging to the series.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
XXXXXXXXXX INSTITUTIONAL SERIES
By:
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Name:
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Title:
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STATE STREET BANK AND TRUST COMPANY
By:
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Name:
Title:
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SCHEDULE A
List of Funds
(as of ______, 2005)
Xxxxxxxxxx Institutional Trust
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