Exhibit (h)(3)
ADMINISTRATION AGREEMENT
CLASS S SHARES
This Agreement is made as of November 3, 2003, between Xxxxxxxxx Xxxxxx
Advisers Management Trust, a Delaware business trust ("Trust"), and Xxxxxxxxx
Xxxxxx Management Inc., a New York corporation ("Administrator").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end, management investment company and
has established several separate series of shares ("Portfolios"), with each
Portfolio having its own assets and investment policies;
WHEREAS, each Portfolio has one or more classes of shares of beneficial
interest, and one such Class has been designated as Class S ("Class S Shares");
and
WHEREAS, the Trust desires to retain the Administrator to furnish
administrative services to the Class S Shares of each Portfolio listed in
Schedule A attached hereto, and to the Class S Shares of such other Portfolios
of the Trust hereinafter established as agreed to from time to time by the
parties, evidenced by an addendum to Schedule A (hereinafter "Portfolio" shall
refer to each Portfolio which is subject to this Agreement and all agreements
and actions described herein to be made or taken by a Portfolio shall be made or
taken by the Trust on behalf of the Portfolio), and the Administrator is willing
to furnish such services,
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. Services of the Administrator.
1.1. Administrative Services. The Administrator shall
supervise the business and affairs of each Portfolio and its Class S Shares and
shall provide such services required for effective administration of such
Portfolio and its Class S Shares as are not provided by employees or other
agents engaged by such Portfolio; provided, that the Administrator shall not
have any obligation to provide under this Agreement any direct or indirect
services to a Portfolio's shareholders, any services related to the distribution
of a Portfolio's shares, or any other services that are the subject of a
separate agreement or arrangement between a Portfolio and the Administrator. The
Administrator can use any of the officers and employees of Xxxxxxxxx Xxxxxx, LLC
to provide any of the services or reports required under this agreement. Subject
to the foregoing, in providing administrative services hereunder, the
Administrator shall:
1.1.1. Office Space, Equipment and Facilities. Furnish
without cost to each Portfolio and its Class S Shares, or pay the cost of, such
office space, office equipment and office facilities as are adequate for the
needs of the Portfolio and its Class S Shares;
1.1.2. Personnel. Provide, without remuneration from or
other cost to each Portfolio, the services of individuals competent to perform
all of the Portfolio's
executive, administrative and clerical functions of each Portfolio and its Class
S Shares that are not performed by employees or other agents engaged by the
Portfolios or by the Administrator acting in some other capacity pursuant to a
separate agreement or arrangement with the Portfolio;
1.1.3. Agents. Assist each Portfolio in selecting and
coordinating the activities of the other agents engaged by the Portfolio,
including the Portfolio's custodian, independent auditors and legal counsel,
1.1.4. Trustees and Officers. Authorize and permit the
Administrator's directors, officers or employees who may be elected or appointed
as trustees or officers of the Trust to serve in such capacities, without
remuneration from or other cost to the Trust or any Portfolio;
1.1.5. Books and Records. Ensure that all financial,
accounting and other records required to be maintained and preserved by each
Portfolio are maintained and preserved by it or on its behalf in accordance with
applicable laws and regulations; and
1.1.6. Reports and Filings. Assist in the preparation
of (but not pay for) all periodic reports by each Portfolio or its Class S
Shares to shareholders of such Portfolio or Class and all reports and filings
required to maintain the registration and qualification of the Portfolio and the
Class S Shares, or to meet other regulatory or tax requirements applicable to
the Portfolio or its Class S Shares, under federal and state securities and tax
laws.
2. Expenses of each Portfolio.
2.1. Expenses to be Paid by the Administrator. The
Administrator shall pay all salaries, expenses and fees of the officers,
trustees, or employees of the Trust who are officers, directors or employees of
the Administrator. If the Administrator pays or assumes any expenses of the
Trust, Portfolio or Class not required to be paid or assumed by the
Administrator under this Agreement, the Administrator shall not be obligated
hereby to pay or assume the same or any similar expense in the future; provided,
that nothing herein contained shall be deemed to relieve the Administrator of
any obligation to the Trust or to a Portfolio or Class under any separate
agreement or arrangement between the parties.
2.2. Expenses to be Paid by the Portfolios. Each Portfolio
shall bear all expenses of its operation, except those specifically allocated to
the Administrator under this Agreement or under any separate agreement between
such Portfolio and the Administrator. Expenses to be borne by such Portfolio
shall include both expenses directly attributable to the operation of that
Portfolio and the offering of its shares, as well as the portion of any expenses
of the Trust that is properly allocable to such Portfolio in a manner approved
by the trustees of the Trust ("Trustees"). (The allocation of such expenses
among the classes of a Series, on either a class specific or pro rata basis,
shall be made in accordance with the Trust's 18f-3 Plan.) Subject to any
separate agreement or arrangement between the Trust or a Portfolio and the
Administrator, the expenses hereby allocated to each Portfolio, and not to the
Administrator, include, but are not limited to:
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2.2.1. Custody. All charges of depositories,
custodians, and other agents for the transfer, receipt, safekeeping, and
servicing of its cash, securities, and other property;
2.2.2. Shareholder Servicing. All expenses of
maintaining and servicing shareholder accounts, including, but not limited to,
the charges of any shareholder servicing agent, dividend disbursing agent or
other agent (other than the Administrator hereunder) engaged by a Portfolio to
service shareholder accounts;
2.2.3. Shareholder Reports. All expenses of preparing,
setting in type, printing and distributing reports and other communications to
shareholders of a Portfolio;
2.2.4. Prospectuses. All expenses of preparing, setting
in type, printing and mailing annual or more frequent revisions of a Portfolio's
Prospectus and SAI and any supplements thereto and of supplying them to
shareholders of the Portfolio and Account holders;
2.2.5. Pricing and Portfolio Valuation. All expenses of
computing a Portfolio's net asset value ("NAV") per share, including any
equipment or services obtained for the purpose of pricing shares or valuing the
Portfolio's investment portfolio;
2.2.6. Communications. All charges for equipment or
services used for communications between the Administrator or the Portfolio and
any custodian, shareholder servicing agent, portfolio accounting services agent,
or other agent engaged by a Portfolio;
2.2.7. Legal and Accounting Fees. All charges for
services and expenses of a Portfolio's legal counsel and independent auditors;
2.2.8. Trustees' Fees and Expenses. All compensation of
Trustees other than those affiliated with the Administrator, all expenses
incurred in connection with such unaffiliated Trustees' services as Trustees,
and all other expenses of meetings of the Trustees or committees thereof;
2.2.9. Shareholder Meetings. All expenses incidental to
holding meetings of shareholders, including the printing of notices and proxy
materials, and proxy solicitation therefor;
2.2.10. Federal Registration Fees. All fees and expenses
of registering and maintaining the registration of the Trust and each Portfolio
under the 1940 Act and the registration of each Portfolio's shares under the
Securities Act of 1933 (the "1933 Act"), including all fees and expenses
incurred in connection with the preparation, setting in type, printing, and
filing of any Registration Statement, Prospectus and SAI under the 1933 Act or
the 1940 Act, and any amendments or supplements that may be made from time to
time;
2.2.11. State Registration Fees. All fees and expenses
of qualifying and maintaining the qualification of the Trust and each Portfolio
and of each Portfolio's shares for sale under securities laws of various states
or jurisdictions, and of
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registration and qualification of each Portfolio under all other laws applicable
to a Portfolio or its business activities (including registering the Portfolio
as a broker-dealer, or any officer of the Portfolio or any person as agent or
salesman of the Portfolio in any state);
2.2.12. Share Certificates. All expenses of preparing
and transmitting a Portfolio's share certificates, if any;
2.2.13. Confirmations. All expenses incurred in
connection with the issue and transfer of a Portfolio's shares, including the
expenses of confirming all share transactions;
2.2.14. Bonding and Insurance. All expenses of bond,
liability, and other insurance coverage required by law or regulation or deemed
advisable by the Trustees, including, without limitation, such bond, liability
and other insurance expense that may from time to time be allocated to the
Portfolio in a manner approved by the Trustees;
2.2.15. Brokerage Commissions. All brokers' commissions
and other charges incident to the purchase, sale or lending of a Portfolio's
securities;
2.2.16. Taxes. All taxes or governmental fees payable by
or with respect to a Portfolio to federal, state or other governmental agencies,
domestic or foreign, including stamp or other transfer taxes;
2.2.17. Trade Association Fees. Its proportionate share
of all fees, dues and other expenses incurred in connection with the Trust's
membership in any trade association or other investment organization;
2.2.18. Nonrecurring and Extraordinary Expenses. Such
nonrecurring and extraordinary expenses as may arise, including the costs of
actions, suits, or proceedings to which the Portfolio is a party and the
expenses a Portfolio may incur as a result of its legal obligation to provide
indemnification to the Trust's officers, Trustees and agents;
2.2.19. Organizational Expenses. All organizational
expenses of each Portfolio paid or assessed by the Administrator, which such
Portfolio shall reimburse to the Administrator at such time or times and subject
to such condition or conditions as shall be specified in the Prospectus and SAI
pursuant to which such Portfolio makes the initial public offering of its
shares; and
2.2.20. Investment Advisory Services. Any fees and
expenses for investment advisory services that may be incurred or contracted for
by a Portfolio.
3. Administration Fee.
3.1. Fee. As compensation for all services rendered,
facilities provided and expenses paid or assumed by the Administrator to or for
each Portfolio or its Class S Shares under this Agreement, the Class S Shares of
such Portfolio shall pay the Administrator an annual fee as set out in Schedule
B to this Agreement.
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3.2. Computation and Payment of Fee. The administration fee
shall accrue on each calendar day, and shall be payable monthly on the first
business day of the next succeeding calendar month. The daily fee accruals for
each Portfolio shall be computed by multiplying the fraction of one divided by
the number of days in the calendar year by the applicable annual administration
fee rate (as set forth in Schedule B hereto), and multiplying this product by
the NAV of the Class S Shares of such Portfolio, determined in the manner set
forth in such Portfolio's then-current Class S Shares Prospectus, as of the
close of business on the last preceding business day on which such Portfolio's
Class S Shares NAV was determined.
4. Ownership of Records. All records required to be maintained and
preserved by each Portfolio pursuant to the provisions or rules or regulations
of the Securities and Exchange Commission ("SEC") under section 31(a) of the
1940 Act and maintained and preserved by the Administrator on behalf of such
Portfolio are the property of such Portfolio and shall be surrendered by the
Administrator promptly on request by the Portfolio; provided, that the
Administrator may at its own expense make and retain copies of any such records.
5. Reports to Administrator. Each Portfolio shall furnish or
otherwise make available to the Administrator such copies of that Portfolio's
Class S Shares Prospectus, SAI, financial statements, proxy statements, reports,
and other information relating to its business and affairs as the Administrator
may, at any time or from time to time, reasonably require in order to discharge
its obligations under this Agreement.
6. Reports to each Portfolio. The Administrator shall prepare and
furnish to each Portfolio such reports, statistical data and other information
in such form and at such intervals as such Portfolio may reasonably request.
7. Ownership of Software and Related Materials. All computer
programs, written procedures and similar items developed or acquired and used by
the Administrator in performing its obligations under this Agreement shall be
the property of the Administrator, and no Portfolio will acquire any ownership
interest therein or property rights with respect thereto.
8. Confidentiality. The Administrator agrees, on its own behalf and
on behalf of its employees, agents and contractors, to keep confidential any and
all records maintained and other information obtained hereunder which relate to
any Portfolio or to any of a Portfolio's former, current or prospective
shareholders, except that the Administrator may deliver records or divulge
information (a) when requested to do so by duly constituted authorities after
prior notification to and approval in writing by such Portfolio (which approval
will not be unreasonably withheld and may not be withheld by such Portfolio
where the Administrator advises such Portfolio that it may be exposed to civil
or criminal contempt proceedings or other penalties for failure to comply with
such request) or (b) whenever requested in writing to do so by such Portfolio.
9. The Administrator's Actions in Reliance on Portfolios'
Instructions, Legal Opinions, Etc.; Portfolios' Compliance with Laws.
9.1. The Administrator may at any time apply to an officer of
the Trust for instructions, and may consult with legal counsel for a Portfolio
or with the Administrator's
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own legal counsel, in respect of any matter arising in connection with this
Agreement; and the Administrator shall not be liable for any action taken or
omitted to be taken in good faith and with due care in accordance with such
instructions or with the advice or opinion of such legal counsel. The
Administrator shall be protected in acting upon any such instructions, advice or
opinion and upon any other paper or document delivered by a Portfolio or such
legal counsel which the Administrator believes to be genuine and to have been
signed by the proper person or persons, and the Administrator shall not be held
to have notice of any change of status or authority of any officer or
representative of the Trust, until receipt of written notice thereof from the
Portfolio.
9.2. Except as otherwise provided in this Agreement or in any
separate agreement between the parties and except for the accuracy of
information furnished to each Portfolio by the Administrator, each Portfolio
assumes full responsibility for the preparation, contents, filing and
distribution of its Class S Shares Prospectus and SAI, and full responsibility
for other documents or actions required for compliance with all applicable
requirements of the 1940 Act, the Securities Exchange Act of 1934, the 1933 Act,
and any other applicable laws, rules and regulations of governmental authorities
having jurisdiction over such Portfolio.
10. Services to Other Clients. Nothing herein contained shall limit
the freedom of the Administrator or any affiliated person of the Administrator
to render administrative or shareholder services to other investment companies,
to act as administrator to other persons, firms, or corporations, or to engage
in other business activities.
11. Limitation of Liability Regarding the Trust. The Administrator
shall look only to the assets of each Portfolio for performance of this
Agreement by the Trust on behalf of such Portfolio, and neither the Trustees of
the Trust nor any of the Trust's officers, employees or agents, whether past,
present or future shall be personally liable therefor.
12. Indemnification by Portfolio. Each Portfolio shall indemnify the
Administrator and hold it harmless from and against any and all losses, damages
and expenses, including reasonable attorneys' fees and expenses, incurred by the
Administrator that result from: (i) any claim, action, suit or proceeding in
connection with the Administrator's entry into or performance of this Agreement
with respect to such Portfolio; or (ii) any action taken or omission to act
committed by the Administrator in the performance of its obligations hereunder
with respect to such Portfolio; or (iii) any action of the Administrator upon
instructions believed in good faith by it to have been executed by a duly
authorized officer or representative of the Trust with respect to such
Portfolio; provided, that the Administrator shall not be entitled to such
indemnification in respect of actions or omissions constituting negligence or
misconduct on the part of the Administrator or its employees, agents or
contractors. Before confessing any claim against it which may be subject to
indemnification by a Portfolio hereunder, the Administrator shall give such
Portfolio reasonable opportunity to defend against such claim in its own name or
in the name of the Administrator.
13. Indemnification by the Administrator. The Administrator shall
indemnify each Portfolio and hold it harmless from and against any and all
losses, damages and expenses, including reasonable attorneys' fees and expenses,
incurred by such Portfolio which result from (i) the Administrator's failure to
comply with the terms of this Agreement with respect to such
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Portfolio; or (ii) the Administrator's lack of good faith in performing its
obligations hereunder with respect to such Portfolio; or (iii) the
Administrator's negligence or misconduct or its employees, agents or contractors
in connection herewith with respect to such Portfolio. A Portfolio shall not be
entitled to such indemnification in respect of actions or omissions constituting
negligence or misconduct on the part of that Portfolio or its employees, agents
or contractors other than the Administrator unless such negligence or misconduct
results from or is accompanied by negligence or misconduct on the part of the
Administrator, any affiliated person of the Administrator, or any affiliated
person of an affiliated person of the Administrator. Before confessing any claim
against it which may be subject to indemnification hereunder, a Portfolio shall
give the Administrator reasonable opportunity to defend against such claim in
its own name or in the name of the Trust on behalf of such Portfolio.
14. Effect of Agreement. Nothing herein contained shall be deemed to
require the Trust or any Portfolio to take any action contrary to the Trust
Instrument or By-laws of the Trust or any applicable law, regulation or order to
which it is subject or by which it is bound, or to relieve or deprive the
Trustees of their responsibility for and control of the conduct of the business
and affairs of the Portfolio or Trust.
15. Term of Agreement. The term of this Agreement shall begin on the
date indicated with respect to each Portfolio listed in Schedule A and, unless
sooner terminated as hereinafter provided, this Agreement shall remain in effect
to the date two years after such execution, unless renewed as hereinafter
provided prior to that date. Thereafter, in each case this Agreement shall
continue in effect with respect to each Portfolio from year to year, subject to
the termination provisions and all other terms and conditions hereof; provided,
such continuance with respect to a Portfolio is approved at least annually by
vote or written consent of the Trustees, including a majority of the Trustees
who are not interested persons of either party hereto ("Disinterested
Trustees"); and provided further, that the Administrator shall not have notified
a Portfolio in writing at least sixty days prior to the first expiration date
hereof or at least sixty days prior to any expiration date in any year
thereafter that it does not desire such continuation. The Administrator shall
furnish any Portfolio, promptly upon its request, such information as may
reasonably be necessary to evaluate the terms of this Agreement or any
extension, renewal or amendment thereof.
16. Amendment or Assignment of Agreement. Any amendment to this
Agreement shall be in writing signed by the parties hereto; provided, that no
such amendment shall be effective unless authorized on behalf of any Portfolio
(i) by resolution of the Trustees, including the vote or written consent of a
majority of the Disinterested Trustees, or (ii) by vote of a majority of the
outstanding voting securities of the Class S Shares of such Portfolio. This
Agreement shall terminate automatically and immediately in the event of its
assignment; provided, that with the consent of a Portfolio, the Administrator
may subcontract to another person any of its responsibilities with respect to
such Portfolio.
17. Termination of Agreement. This Agreement may be terminated at
any time by either party hereto, without the payment of any penalty, upon at
least sixty days' prior written notice to the other party; provided, that in the
case of termination by any Portfolio, such action shall have been authorized (i)
by resolution of the Trustees, including the vote or written
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consent of the Disinterested Trustees, or (ii) by vote of a majority of the
outstanding voting securities of the Class S Shares of such Portfolio.
18. Use of Name. Each Portfolio hereby agrees that if the
Administrator shall at any time for any reason cease to serve as administrator
to a Portfolio, such Portfolio shall, if and when requested by the
Administrator, thereafter refrain from using the name "Xxxxxxxxx Xxxxxx" or the
initials "NB" in connection with its business or activities, and the foregoing
agreement of each Portfolio shall survive any termination of this Agreement and
any extension or renewal thereof.
19. Interpretation and Definition of Terms. Any question of
interpretation of any term or provision of this Agreement having a counterpart
in or otherwise derived from a term or provision of the 1940 Act shall be
resolved by reference to such term or provision of the 1940 Act and to
interpretation thereof, if any, by the United States courts or, in the absence
of any controlling decision of any such court, by rules, regulations or orders
of the SEC validly issued pursuant to the 1940 Act. Specifically, the terms
"vote of a majority of the outstanding voting securities," "interested persons,"
"assignment" and "affiliated person," as used in this Agreement shall have the
meanings assigned to them by section 2(a) of the 1940 Act. In addition, when the
effect of a requirement of the 1940 Act reflected in any provision of this
Agreement is modified, interpreted or relaxed by a rule, regulation or order of
the SEC, whether of special or of general application, such provision shall be
deemed to incorporate the effect of such rule, regulation or order.
20. Choice of Law. This Agreement is made to be principally
performed in the State of New York, and except insofar as the 1940 Act or other
federal laws and regulations may be controlling, this Agreement shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of New York.
21. Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
22. Execution in Counterparts. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective officers thereunto duly authorized and their
respective seals to be hereunto affixed, as of the day and year first above
written.
Attest: XXXXXXXXX XXXXXX
ADVISERS MANAGEMENT TRUST
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
---------------------- ---------------------
Secretary By: Xxxxx X. Xxxxxxx
Title: President
Attest: XXXXXXXXX XXXXXX
MANAGEMENT INC
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx Xxxxx
---------------------- ---------------------
Secretary By: Xxxxxx Xxxxx
Title: Senior Vice President
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XXXXXXXXX XXXXXX ADVISERS MANAGEMENT TRUST
ADMINISTRATION AGREEMENT
CLASS S SHARES
SCHEDULE A
The Class S Shares of the Portfolios of Xxxxxxxxx Xxxxxx Advisers
Management Trust currently subject to this Agreement and the dates such
Portfolios were added to this Agreement are as follows:
Xxxxxxxx Portfolio November 3, 2003
Guardian Portfolio November 3, 2003
International Portfolio November 3, 2003
Mid-Cap Growth Portfolio November 3, 2003
Real Estate Portfolio November 3, 2003
Xxxxxx Brothers High Income Bond Portfolio June 10, 2004
Regency Portfolio December 15, 2004
Socially Responsive Portfolio April 28, 2006
International Large Cap Portfolio August 15, 2006
SCHEDULE B
Compensation pursuant to Paragraph 3 of the Xxxxxxxxx Xxxxxx Advisers
Management Trust Administration Agreement shall be:
(1) The following percentage per annum of the average daily net
assets attributable to the Class S Shares of each Portfolio:
Xxxxxxxx Portfolio 0.30%
Guardian Portfolio 0.30%
International Portfolio 0.30%
Mid-Cap Growth Portfolio 0.30%
Real Estate Portfolio 0.30%
Xxxxxx Brothers High Income Bond Portfolio 0.30%
Regency Portfolio 0.30%
Socially Responsive Portfolio 0.30%
International Large Cap Portfolio 0.30%
(2) Certain out-of-pocket expenses for technology used for
shareholder servicing and shareholder communications, subject to the prior
approval of an annual budget by the Trust's Board of Trustees, including a
majority of those Trustees who are not interested persons of the Trust or of
Xxxxxxxxx Xxxxxx Management Inc., and periodic reports to the Board of Trustees
on actual expenses.
DATED: May 1, 2007
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