XXXXXXX SECURITIES TRUST
XXXXXX SQUARE MANAGEMENT CORPORATION
AMENDED AND RESTATED ADMINISTRATION AGREEMENT Exhibit 9(b)
THIS AMENDED AND RESTATED ADMINISTRATION AGREEMENT is made as of the
14th day of November, 1996, by and between Heitman Securities Trust, a
Massachusetts business trust (the "Trust"), having its principal place of
business in Chicago, Illinois, and Xxxxxx Square Management Corporation, a
corporation organized under the laws of the State of Delaware ("RSMC"),
having its principal place of business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company
and offers for public sale distinct series of shares of beneficial interest
("Series"), par value $0.001 per share;
WHEREAS, each share of a Series represents an undivided interest in the
assets, subject to the liabilities, allocated to that Series and each
Series has a separate investment objective and policies;
WHEREAS, at the present time, the Trust has one Series, the Xxxxxxx Real
Estate Fund (the "Fund"), which consists of two classes of shares, the
Xxxxxxx/PRA Institutional Class shares and the Advisor Class shares;
WHEREAS, the Trust currently employs the services of RSMC with respect
to the Fund pursuant to an Administration Agreement dated as of December 3,
1993 (the "Original Agreement"); and
WHEREAS, the Trust and RSMC desire to amend and restate the Original
Agreement in its entirety by adopting this Amended and Restated
Administration Agreement, which shall supersede the Original Agreement from
and after the date hereof;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Trust and RSMC agree as follows:
1. APPOINTMENT. The Trust hereby appoints and employs RSMC as agent to
perform the fund administration services described in this Agreement
for the period and upon the terms and conditions set forth in this
Agreement. RSMC accepts such appointment and agrees to perform the
obligations thereof upon the terms and conditions hereinafter set forth
and in accordance with the principles of principal and agent as
enunciated by applicable common law.
2. DOCUMENTS. The Trust has furnished RSMC copies of the Trust's First
Amended and Restated Master Trust Agreement (the "Master Trust
Agreement"), Bylaws, Investment Management Agreement, Distribution
Agreement between the Trust and Xxxxxx Square Distributors, Inc., with
respect to the Xxxxxxx/PRA Institutional Class shares, the Distribution
Agreement between the Trust and ACG Capital Corporation with respect to
the Advisor Class shares, Accounting Services Agreement, Custody
Agreement, Transfer Agency Agreement, and all amendments thereto and
restatements thereof, the Trust's current Prospectus(s) and Statement
of Additional Information (the "SAI") and all forms relating to any
plan, program or service offered by the Trust. The Trust shall furnish
promptly to RSMC a copy of any amendment or supplement to the above-
mentioned documents. The Trust shall furnish promptly to RSMC any
additional documents necessary for it to perform its functions
hereunder or such other documents as RSMC shall request.
3. FUND ADMINISTRATION. Subject to the direction and control of the Board
of Trustees (the "Trustees") of the Trust and to the extent not
otherwise the responsibility of, or provided by, the Trust or other
supply agents of the Trust, RSMC shall provide the following
administrative services for the Trust:
(a) Supply:
(i) office facilities (which may be in RSMC's or its affiliates'
own offices);
(ii) non-investment related statistical and research data;
(iii) executive and administrative services;
(iv) stationery and office supplies;
(v) corporate secretarial services, such as the preparation and
distribution of materials at the Trust's expense for meetings
of the Trustees or shareholders; and
(vi) Directors' and Officers' questionnaires.
(b) Prepare and file, if necessary, reports to shareholders of the
Trust and reports with the Securities and Exchange Commission (the
"SEC"), state securities commissions and Blue Sky authorities,
including preliminary and definitive proxy materials, post-
effective amendments to the Trust's registration statement, Rule
24f-2 Notices, Form N-SAR filings and prospectus supplements;
(c) Monitor the Trust's compliance with the investment restrictions and
limitations imposed by the 1940 Act, and state Blue Sky laws and
applicable regulations thereunder, the fundamental and non-
fundamental investment policies and limitations set forth in the
Trust's Prospectus(s) and SAI, and the investment restrictions and
limitations necessary for each Fund of the Trust to qualify as a
regulated investment company under Subchapter M of the Internal
Revenue Code of 1986, as amended (the "Code") or any successor
statute;
(d) Monitor sales of the Trust's shares and ensure that such shares are
properly registered with the SEC and applicable state authorities;
(e) Prepare and distribute to appropriate parties notices announcing
the declaration of dividends and other distributions to
shareholders;
(f) Prepare financial statements and footnotes and other financial
information with such frequency and in such format as required to
be included in reports to shareholders and the SEC;
(g) Review sales literature and file such with regulatory authorities,
as necessary;
(h) Maintain the Trust's membership in Fund/Serv;
(i) Provide information regarding material developments in state
securities regulation; and
(j) Provide personnel to serve as officers of the Trust if so elected
by the Board of Trustees.
4. EXPENSES OF THE TRUST. The Trust agrees that it will pay all its
expenses other than those expressly stated to be payable by RSMC
hereunder, which expenses payable by the Trust shall include, without
limitation:
(a)Fees payable for investment advisory services provided by the
Trust's investment Advisor;
(b)Fees payable for services provided by the Trust's independent
public accountants;
(c)Fees payable for accounting, transfer agency and custodial
services;
(d)The cost of obtaining quotations for calculating the value of the
assets of the Fund;
(e)Taxes levied against the Trust or the Fund;
(f)Brokerage fees, xxxx-ups and commissions in connection with the
purchase and sale of portfolio securities;
(g)Costs, including the interest expense, of borrowing money;
(h)Costs and/or fees incident to holding meetings of the Trustees and
shareholders, preparation (including typesetting, XXXXX conversion,
filing and printing charges) and mailing of prospectuses, reports
and proxy materials to the existing shareholders of the Trust,
filing of reports with regulatory bodies, maintenance of the
Trust's corporate existence, and registration of shares with
federal and state securities authorities;
(i)Legal fees and expenses;
(j)Costs of printing share certificates representing shares of the
Trust;
(k)Fees payable to, and expenses of, members of the Trustees who are
not "interested persons" of the Trust;
(l)Out-of-pocket expenses incurred by RSMC, its agents or affiliates
in connection with the provision of fund administration,
accounting, custodial and transfer agency services;
(m)Premiums payable on the fidelity bond required by Section 17(g) of
the 1940 Act, and any other premiums payable on insurance policies
related to the Trust's business and the investment activities of
its Funds;
(n)Distribution fees, if any;
(o)Service fees, if any, payable by the Fund for providing personal
services to the shareholders of the Fund and for maintaining
shareholder accounts for those shareholders;
(p)Fees, voluntary assessments and other expenses incurred in
connection with the Trust's membership in investment company
organizations; and
(q)Such non-recurring expenses as may arise, including actions, suits
or proceedings to which the Trust is a party and the legal
obligation which the Trust may have to indemnify its Trustees and
officers with respect thereto.
Except as otherwise agreed by RSMC, RSMC will not reimburse the Trust
for (or have deducted from its fees payable under this Agreement) any
Trust expenses in excess of any expense limitations imposed by state
securities commissions having jurisdiction over the sale of Fund
shares.
5. RECORDKEEPING AND OTHER INFORMATION. RSMC shall create and maintain
all necessary records in accordance with all applicable laws, rules and
regulations, including, but not limited to, records required by Section
31(a) of the 1940 Act and the rules thereunder, as the same may be
amended from time to time, pertaining to the various functions
(described above) performed by it and not otherwise created and
maintained by another party pursuant to contract with the Trust. All
records shall be the property of the Trust at all times and shall be
available for inspection and use by the Trust. Where applicable, such
records shall be maintained by RSMC for the periods and in the places
required by Rule 31a-2 under the 1940 Act.
6. AUDIT, INSPECTION AND VISITATION. RSMC shall make available during
regular business hours all records and other data created and
maintained pursuant to the foregoing provisions of this Agreement for
reasonable audit and inspection by the Trust, any person retained by
the Trust or any regulatory agency having authority over the Trust.
7. COMPENSATION. For the performance of its obligations under this
Agreement, the Trust shall pay RSMC an administrative fee with respect
to each Fund in accordance with the fee arrangements described in
Schedule A attached hereto, as such schedule may be amended from time
to time.
8. APPOINTMENT OF AGENTS. RSMC may at any time or times, in its
discretion, appoint (and may at any time remove) other parties as its
agent to carry out such of the provisions of this Agreement as RSMC may
from time to time direct; provided, however, that the appointment of
any such agent shall not relieve RSMC of any of its responsibilities or
liabilities hereunder.
9. USE OF RSMC'S NAME. The Trust shall not use the name of RSMC or any of
its agents or affiliates in any Prospectus, SAI, sales literature or
other material relating to the Trust in a manner not approved prior
thereto in writing by RSMC; provided, however, that RSMC shall approve
all uses of its, its agents' or its affiliates' names that merely refer
in accurate terms to their appointments hereunder or that are required
by the SEC or a state securities commission; and further provided, that
in no event shall such approval be unreasonably withheld.
10.USE OF TRUST'S NAME. Neither RSMC nor any of its affiliates shall use
the name of the Trust or material relating to the Trust on any forms
(including any checks, bank drafts or bank statements) for other than
internal use in a manner not approved prior thereto by the Trust;
provided, however, that the Trust shall approve all uses of its name
that merely refer in accurate terms to the appointment of RSMC
hereunder or that are required by the SEC or a state securities
commission; and further provided, that in no event shall such approval
be unreasonably withheld.
11.LIABILITY OF RSMC OR AFFILIATES. RSMC and its affiliates shall not be
liable for any error of judgment or mistake of law or for any loss
suffered by the Trust in connection with the matters to which this
Agreement relates, except to the extent of a loss resulting from
willful misfeasance, bad faith, negligence or reckless disregard of
their obligations and duties under this Agreement. Any person, even
though also an officer, director, employee or agent of RSMC or any of
its affiliates who may be or become an officer or director of the
Trust, shall be deemed, when rendering services to the Trust as such
officer or acting on any business of the Trust in such capacity (other
than services or business in connection with RSMC's duties under this
Agreement), to be rendering such services to or acting solely for the
Trust and not as an officer, director, employee or agent or one under
the control or direction of RSMC or any of its affiliates, even though
paid by one of those entities. RSMC shall not be liable or responsible
for any acts or omissions of any predecessor administrator or any other
persons having responsibility for matters to which this Agreement
relates nor shall RSMC be responsible for reviewing any such act or
omissions. RSMC shall, however, be liable for its own acts and
omissions subsequent to assuming responsibility under this Agreement as
herein provided.
12.RESPONSIBILITY OF RSMC. In the performance of its duties hereunder,
RSMC shall be obligated to exercise due care and diligence and to act
in good faith and to use its best efforts within reasonable limits.
RSMC shall be under no duty to take any action on behalf of the Trust
except as specifically set forth herein or as may be specifically
agreed to by RSMC in writing. To the extent that duties, obligations
and responsibilities assumed by RSMC are not expressly set forth in
this Agreement, RSMC shall not be liable for any act or omission which
does not constitute willful misfeasance, bad faith or negligence on the
part of RSMC or reckless disregard by RSMC of such duties, obligations
and responsibilities. Without limiting the generality of the foregoing
or of any other provision of this Agreement, RSMC, in connection with
its duties under this Agreement, shall not be under any duty or
obligation to inquire into, and shall not be liable for or in respect
of: (i) the validity or invalidity or authority or lack thereof of any
oral or written instruction, notice or other instrument which conforms
to the applicable requirements of this Agreement, and which RSMC
reasonably believes to be genuine; or (ii) delays or errors or loss of
data occurring by reason of circumstances beyond RSMC's control,
including acts of civil or military authority, national emergencies,
labor difficulties, fire, mechanical breakdown, flood or catastrophe,
acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply, in which circumstances
RSMC shall take reasonable actions to minimize loss of data resulting
therefrom.
13. RIGHT TO RECEIVE ADVICE.
a. Advice of Trust. If RSMC shall be in doubt as to any action to be
taken or omitted by it, it may request, and shall receive, from the
Trust directions or advice, including oral or written instructions
where appropriate.
b. Advice of Counsel. If RSMC shall be in doubt as to any question of
law involved in any action to be taken or omitted by RSMC, it may
request directions or advice at its own cost from counsel of its
own choosing (who may be the regularly retained counsel for the
Trust or RSMC or the in-house counsel for RSMC, at the option of
RSMC).
c. Conflicting Advice. In case of conflict between oral or written
instructions received by RSMC pursuant to (a) above, RSMC shall be
entitled to rely upon and follow written instructions alone. In
case of conflict between directions and advice pursuant to (a) and
(b) above, RSMC shall be entitled to rely upon and follow
directions and advice obtained in accordance with (b) above.
d. Protection of RSMC. RSMC shall be protected in any action or
inaction which it takes in reliance on any directions, advice or
oral or written Instructions received pursuant to subsections a. or
b. of this Section which RSMC, after receipt of any such
directions, advice or oral or written instructions, in good faith
believes to be consistent with such directions, advice or oral or
written instructions, as the case may be. However, nothing in this
Section shall be construed as imposing upon RSMC any obligation (i)
to seek such direction, advice or oral or written instructions, or
(ii) to act in accordance with such directions, advice or oral or
written instructions when received, unless, under the terms of
another provision of this Agreement, the same is a condition to
RSMC's properly taking or omitting to take such action. Nothing is
this subsection shall excuse RSMC when an action or omission on the
part of RSMC constitutes willful misfeasance, bad faith, negligence
or reckless disregard by RSMC of its duties under this Agreement.
14. INDEMNIFICATION.
a. The Trust agrees to indemnify and hold harmless RSMC and its
directors, officers, employees, agents and representatives from all
taxes, charges, expenses, assessments, claims and liabilities
including, without limitation, liabilities arising under the
Securities Act of 1933, as amended (the "1933 Act"), the Securities
Exchange Act of 1934, as amended the ("1934 Act") or the 1940 Act
and any applicable state and foreign securities laws, and
amendments thereto (the "Securities Laws"), and expenses, including
without limitation reasonable attorneys' fees and disbursements,
arising directly or indirectly from any action or omission to act
which RSMC takes or does or omits to take or to do: (i) at the
request of or on the direction of or in reliance upon the advice of
the Trust; or (ii) upon oral or written instructions received from
the Trust. Neither RSMC nor any of its directors, officers,
employees, agents and representatives shall be indemnified against
any liability (or any expenses incident to such liability) arising
out of RSMC's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties and obligations under this
Agreement.
b. RSMC agrees to indemnify and hold harmless the Trust from all
taxes, charges, expenses, assessments, claims, liabilities
(including, without limitation, liabilities arising under the
Securities Laws) and expenses (including, without limitation,
reasonable attorneys' fees and disbursements) arising directly or
indirectly from any action or omission to act which RSMC or any of
RSMC's directors, officers, employees, agents and/or
representatives take or fail to take provided such action or
omission to act constitutes willful misfeasance, bad faith,
negligence or reckless disregard of RSMC's duties and obligations
under this Agreement.
c. Upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification
shall promptly notify the other party of such assertion, and shall
keep the other party advised with respect to all developments
concerning such claim. The party who may be required to indemnify
shall have the option to participate with the party seeking
indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to
indemnify it except with the other party's prior written consent.
15.AMENDMENTS. RSMC and the Trust shall regularly consult with each other
regarding RSMC's performance of its obligations and its compensation
under the foregoing provisions. In connection therewith, the Trust
shall submit to RSMC at a reasonable time in advance of filing with the
SEC copies of any amended or supplemented registration statement of the
Trust (including exhibits) under the 1933 Act and the 1940 Act, and, a
reasonable time in advance of their proposed use, copies of any amended
or supplemented forms relating to any plan, program or service offered
by the Trust. Any change in such materials that would require any
change in RSMC's obligations under the foregoing provisions shall be
subject to the burdened party's approval, which shall not be
unreasonably withheld. In the event that a change in such documents or
in the procedures contained therein increases the cost to RSMC of
performing its obligations hereunder by more than an insubstantial
amount, RSMC shall be entitled to receive reasonable compensation
therefor.
16.DURATION, TERMINATION, ETC. The provisions of this Agreement may not
be changed, waived, discharged or terminated orally, but only by
written instrument that shall make specific reference to this Agreement
and that shall be signed by the party against which enforcement of such
change, waiver, discharge or termination is sought.
This Agreement shall become effective as of the close of business on
the date first above written and shall continue in force unless
terminated as herein provided. This Agreement may at any time be
terminated by the Trust on sixty (60) days' written notice given to
RSMC or by RSMC on six (6) months' written notice given to the Trust;
provided, however, that this Agreement may be terminated by the Trust
immediately at any time for cause either by the Trust or by RSMC in the
event that such cause shall have remained unremedied for sixty (60)
days or more after receipt of written specification of such cause. Any
such termination shall not affect the rights and obligations of the
parties under Sections 11 and 14 hereof.
Upon the termination of this Agreement, the Trust shall pay to RSMC
such compensation as may be payable for the period prior to the
effective date of such termination, including reimbursement for any out-
of-pocket expenses reasonably incurred by RSMC to such date. In the
event that the Trust designates a successor to any of RSMC's
obligations hereunder, RSMC shall, at the expense and direction of the
Trust, transfer to such successor all relevant books, records and other
data established or maintained by RSMC under the foregoing provisions.
17.NOTICE. Any notice under this Agreement shall be given in writing
addressed and delivered or mailed, postage prepaid, to the other party
to this Agreement at its principal place of business.
18.SEVERABILITY. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
19.GOVERNING LAW. To the extent that state law has not been preempted by
the provisions of any law of the United States heretofore or hereafter
enacted, as the same may be amended from time to time, this Agreement
shall be administered, construed and enforced according to the laws
(without regard, however, to laws as to conflicts of law) of the State
of Delaware.
20.LIMITATION OF LIABILITY. RSMC acknowledges that it has received notice
of and accepts the limitations of liability set forth in the Trust's
Master Trust Agreement. RSMC agrees that the Trust's obligations
hereunder shall be limited to the Trust, and that RSMC shall have
recourse solely against the assets of the portfolio with respect to
which the Trust's obligations hereunder relate and shall have no
recourse against the assets of any other portfolio or against any
shareholder, Trustee, officer, employee, or agent of the Trust.
21.MISCELLANEOUS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or effect.
This Agreement may be executed in two counterparts, each of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
XXXXXXX SECURITIES TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxx, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------
Xxxxxx X. Xxxxxxxx, President
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
SCHEDULE A
XXXXXXX SECURITIES TRUST
FEE SCHEDULE
For the services RSMC provides under the Administration Agreement
attached hereto, the Trust agrees to pay RSMC an administrative fee
with respect to each class of the Fund listed below at an annual rate
of .10% based on the average of the daily net assets of each such
class as determined at the close of business on each day throughout
the month:
Xxxxxxx/PRA Institutional Class--Xxxxxxx Real Estate Fund
Advisor Class--Xxxxxxx Real Estate Fund
The Advisor Class and any subsequent classes of the Xxxxxxx Real
Estate Fund shall be subject to a minimum annual fee of $25,000 per
class.
The administrative fee shall be payable monthly in arrears as soon as
practicable after the last day of each month.
