ADMINISTRATION AGREEMENT
THIS AGREEMENT made as of ____________, 2001, by and between
X.X. XXXXXX INSTITUTIONAL FUNDS (the "Trust"), and XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK (the "Administrator").
W I T N E S S E T H :
In consideration of the mutual covenants herein contained and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
FIRST: The Trust on behalf of each of its series and any new
series to be created hereby authorizes the Administrator to provide
administrative services to the Trust in accordance with the terms and conditions
of this Agreement. The Administrator's services shall be subject to the
direction and control of the Board of Trustees of the Trust and shall be
performed under the direction of the appropriate Trust officers.
SECOND: The Administrator shall provide certain administration
services including:
(A) arranging for the preparation and filing of the Trust's tax returns
and preparing financial statements and other financial reports for review by the
Trust's independent auditors;
(B) preparing for the signature of the appropriate Trust officer (or
assisting counsel in the preparation of) all required Trust proxy statements and
updates to the Trust's Registration Statement under the Investment Company Act
of 1940 (the "Act");
(C) arranging for the printing and mailing (at the Trust's expense) of
proxy statements and other reports or other materials provided to the Trust's
shareholders;
(D) coordinating the Trust's annual audits;
(E) developing the budget and establishing the rate of expense accrual
for each series of the Trust;
(F) overseeing the preparation by the Trust's transfer agent of tax
information for shareholders;
(G) coordinating all relationships between the Trust and its
contractors, including coordinating the negotiation of agreements, the review of
performance of agreements, and the exchange of information, provided that
coordination with the distributor shall be limited to the exchange of
information necessary for the administration of the Trust and the reporting of
that information to the Board of Trustees and Trust officers;
(H) overseeing the Trust's custodian, transfer agent and other service
providers, including expense disbursement; overseeing any service provider
conversions; verifying the calculation of performance data for the Trust and its
reporting to the appropriate tracking services; arranging for the publication of
current price information in newspapers and
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publications; monitoring the pricing of portfolio securities and compliance
with amortized cost procedures, if applicable; computing the amount and
monitoring the frequency of distributing each series' dividends and capital
gains distributions and confirming that they have been properly distributed
to the shareholders of record; and monitoring calculation of net asset value
of shares by the custodian;
(I) taking responsibility for compliance with all applicable federal
securities and other regulatory requirements (other than state securities
registration and filing requirements) and reviewing from time to time
transactions with brokers and dealers; taking responsibility for monitoring the
series' compliance with their investment objectives, policies and restrictions
as disclosed in their prospectuses and statements of additional information;
(J) responding to all inquires or other communications from
shareholders of the Trust and other parties or, if the inquiry is more properly
responded to by the Trust's transfer agent or distributor, referring the
individual making the inquiry to the appropriate person;
(K) taking responsibility for monitoring each series' status as a
regulated investment company under the Internal Revenue Code of 1986, as
amended;
(L) arranging for preparation of agendas and supporting documents for
and minutes of meetings of Trustees, committees of Trustees and shareholders;
(M) preparing annual and semi-annual financial statements for
management review; assisting management with coordination of annual financial
statement audits; reviewing N-30D filings prepared by print vendor; instructing
printer to file; preparing and filing financial data for Form N-SAR filings;
preparing and filing financial data for Form 24f-2 filings; compiling financial
data (including expenses, management fees and performance data) for Form N-1A
and SAI updates for management review; preparing portfolio statistics on monthly
and quarterly basis for client reporting/marketing;
(N) reviewing fund accounting vendors' monthly cash and asset
reconciliations and report cards; monitoring expense activity, including
accuracy of basis point accrual changes and journal entries; preparing same day
analysis (in order to send out blast faxes) of money market and fixed income
fund yields and investigating unusual discrepancies between classes/feeders with
fund accounting; performing daily reasonableness test of NAV; monitoring
delivery of services by fund accountants;
(O) preparing expense authorizations for management review and
submitting for payment and maintaining expense log/database; providing
management with monthly informational analysis of expenses, including budgeted
future expenses and estimated over-/under-accruals; expense cap
analysis--waivers and reimbursements;
(P) compiling and summarizing weekly Rule 2a-7 money market funds'
analysis for Board book presentation; assisting management with the
administration of the Trustees' deferred compensation plans, if any; performing
periodic line of credit reporting to comply with the loan agreement; preparing
and mail annual 1099-MISC forms to Trustees and vendors; compiling information
for annual shareholder tax letters for management review; assisting management
with preparation of shareholder proxy materials as necessary;
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(Q) preparing, reviewing and distributing daily statistics for use by
management; completing weekly, monthly and quarterly surveys provided by
reporting agencies; assisting management with the calculation and communication
of periodic distribution information; calculating and distributing fund
performance information; performing daily calculation of 1, 3, 5 and 10 year
returns for all funds; maintaining benchmark data and calculating benchmark
performance; calculating and distributing unsubsidized SEC yields; ensuring
consistency of performance information with Lipper and Morningstar; FundStation
administration for daily distribution of NAVs, rates, total returns, yields and
performance; calculation of after-tax and tax equivalent returns;
(R) making all necessary Blue Sky filings;
(S) maintaining books and records relating to such services; and
(T) providing such other related services as the Trust may reasonably
request.
THIRD: Any activities to be performed by the Administrator
under this Agreement may be delegated or sub-contracted to a third party without
the approval of the Trust. The Administrator retains ultimate responsibility at
all times under this contract for the performance of such activities,
notwithstanding the existence of a third-party subcontract.
FOURTH: Any activities performed by the Administrator under
this Agreement shall at all times conform to, and be in accordance with, any
requirements imposed by: (1) the provisions of the Act and of any rules or
regulations in force thereunder; (2) any other applicable provision of law; (3)
the provisions of the Agreement and Declaration of Trust and By-Laws of the
Trust as amended from time to time; (4) any policies and determinations of the
Board of Trustees of the Trust; and (5) the fundamental policies of each series
of the Trust, as reflected in the then current Registration Statement of the
Trust. As used in this Agreement, the term "Registration Statement" shall mean
the Registration Statement most recently filed by the Trust with the Securities
and Exchange Commission and effective under the Securities Act of 1933, as
amended, as such Registration Statement is amended at such time, and the term
"Prospectus" and "Statement of Additional Information" shall mean for the
purposes of this Agreement the form of the then current prospectus and statement
of additional information for each series of the Trust.
FIFTH: Nothing in this Agreement shall prevent the
Administrator or any officer thereof from acting as administrator for any other
person, firm or corporation and shall not in any way limit or restrict the
Administrator or any of its directors, officers, employees or affiliates from
buying, selling or trading any securities for its own or their own accounts or
for the accounts of others for whom it or they may be acting, provided, however,
that the Administrator expressly represents that it will undertake no activities
which, in its judgment, will adversely affect the performance of its obligations
to the Trust under the Agreement.
SIXTH: The Administrator shall, at its own expense, provide
office space and facilities, equipment and personnel for the performance of its
functions hereunder. The Administrator shall create and maintain all records
relating to its activities and obligations under this Agreement in such manner
as will meet the obligations of the Trust under the Act, with particular
attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder. All such
records shall be the property of the Trust and shall at all times during the
regular business hours of the
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Administrator be open for inspection by duly authorized officers, employees
or agents of the Securities and Exchange Commission. In compliance with the
requirements of Rule 31a-3 under the Act, the Administrator hereby agrees
that all records which it maintains for the Trust are the property of the
Trust and further agrees to surrender promptly to the Trust any such records
upon the Trust's request.
SEVENTH: Except as otherwise set forth in Exhibit A, the Trust
shall pay the Administrator, as full compensation for all services rendered
hereunder, an annual fee on behalf of each series payable monthly and computed
on the net asset value of the series at the end of each business day at an
annual rate which shall be: (i) with respect to non-money market fund assets,
0.15% of the first $25 billion of average net assets plus 0.075% of average net
assets over $25 billion, and (ii) with respect to money market fund assets,
0.10% of the first $100 billion of average net assets plus 0.05% of average net
assets over $100 billion. For purposes of these calculations, the assets under
consideration shall be those of the Trust as well as those held by X.X. Xxxxxx
Institutional Funds and X.X. Xxxxxx Series Trust.
EIGHTH:
(A) This Agreement shall go into effect at the close of
business on the date hereof and, unless terminated as hereinafter provided,
shall continue in effect for two years thereafter and from year to year
thereafter, but only so long as such continuance is specifically approved at
least annually by the Trust's Board of Trustees, including the vote of a
majority of the Trustees who are not parties to this Agreement or "interested
persons" (as defined in the Act) of any such party cast in person at a meeting
called for the purpose of voting on such approval, or by the vote of the holders
of a "majority" (as so defined) of the outstanding voting securities of the
applicable series and by such vote of the Trustees.
(B) This Agreement may be terminated by the Administrator at
any time without penalty upon giving the Board of Trustees of the Trust sixty
(60) days' written notice (which notice may be waived by the Trust) and may be
terminated by the Board of Trustees of the Trust at any time without penalty
upon giving the Administrator sixty (60) days' written notice (which notice may
be waived by the Administrator), provided that such termination by the Board of
Trustees of the Trust shall be directed or approved by the vote of a majority of
all of its Trustees in office at the time, including a majority of the Trustees
who are not interested persons (as defined in the Act) of the Trust, or by the
vote of the holders of a majority (as defined in the Act) of the voting
securities of each series of the Trust at the time outstanding and entitled to
vote. This Agreement shall automatically terminate in the event of its
assignment, the term "assignment" for this purpose having the meaning defined in
Section 2(a)(4) of the Act.
NINTH: In the absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of the Administrator or any of its officers, directors or employees, the Trust
shall indemnify the Administrator against any and all claims, demands and
liabilities and expenses (including reasonable attorney's fees) which the
Administrator may incur based on any omission in the course of, or connected
with, rendering services to such Trust hereunder.
TENTH: A copy of the Agreement and Declaration of Trust of the
Trust is on file with the Secretary of the Commonwealth of Massachusetts, and
notice is hereby given that this
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instrument is executed on behalf of the Trustees of the Trust as Trustees and
not individually, and that the obligations of this instrument are not binding
upon any of the Trustees or shareholders individually but are binding only
upon the assets and property of the Trust.
ELEVENTH: Any notice under this Agreement shall be in writing,
addressed and delivered, or mailed, postage paid, to the other party at such
address as such other party may designate for the receipt of such notices. Until
further notice to the other party, it is agreed that the address of the Trust
shall be 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, and the address of the
Administrator shall be 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
IN WITNESS WHEREOF, the parties hereto have caused the
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
ATTEST: X.X. XXXXXX INSTITUTIONAL FUNDS
____________________________ By: ____________________________
ATTEST: XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By: ____________________________
____________________________
EXHIBIT A
The following fee schedule shall be in effect from the date of this Agreement
until August 11, 2001:
TRUST FEE
X.X. Xxxxxx Institutional Funds 0.09% of the first $7 billion of
average net assets plus 0.04% of
average net assets over $7 billion.
For purposes of this calculation, the
assets under consideration shall be
those of the Trust as well as those
held by X.X. Xxxxxx Institutional Funds
and X.X. Xxxxxx Series Trust.
