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Exhibit 23 (h)(i)
Form of Administrative Services Agreement
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ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made as of
July 31, 1997, by and among Xxxxxxxxxx Asset Management, LLC, a Delaware limited
liability company (the "Administrator"), and The Xxxxxxxxxx Funds, a
Massachusetts business trust, and the Xxxxxxxxxx Funds II, a Delaware business
trust (together, the "Trusts").
W I T N E S E T H:
WHEREAS, the Trusts wish to retain the Administrator to provide certain
administrative services with respect to each investment company portfolio
managed by the Administrator (collectively, the "Series"), and the Administrator
is willing to furnish those services;
WHEREAS, this Agreement is entered into by the parties in connection
with the transaction that closed on July 31, 1997 by which substantially all of
the assets of Xxxxxxxxxx Asset Management, L.P. ("MAM, LP") were assigned to the
Administrator, including that certain Administration Agreement dated September
1, 1993 by and among MAM, LP and the Trusts (the "Assignment");
WHEREAS, the Trustees of the Trusts approved the Assignment at a
regular meeting of the Boards of Trustees on May 29, 1997 and, for convenience,
rather than executing a separate consent with respect to the assignment of that
Administration Agreement with MAM, LP, the Trusts have entered into this new
Agreement with the Administrator on substantially the same terms;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trusts hereby appoint the Administrator to provide
certain administrative services required by the Trusts for each Series for the
period and on the terms set forth in this Agreement; provided that this
Agreement shall not be effective until approved by the Board of Trustees of each
Trust. The Administrator accepts such appointment and agrees to furnish the
services herein set forth in return for the compensation as provided in
Paragraph 3 of this Agreement. If a Trust decides to modify the Administrator's
duties hereunder with respect to one or more Series, the Trust shall notify the
Administrator in writing.
2. Services and Duties. Subject to the control of each respective Trust
and the oversight of each Trust's Board of Trustees, the Administrator
undertakes to perform the following types of services:
(a) Performance measurement and analysis, including furnishing
performance data, statistical data and research data;
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(b) Tax and treasury services, including preparing and filing
various reports (including tax returns) or other documents required by federal,
state and other applicable laws and regulations other than those required to be
filed by each Trust's custodian, investment manager or transfer agent;
(c) Management of printing, including assisting in the
preparation and printing of all documents, prospectuses and reports sent to
shareholders;
(d) Financial reporting and assisting in the preparation of
financial statements;
(e) At the request of each Trust, assisting in the preparation
of all agendas, notices and minutes for meetings of each Trust's Board of
Trustees or shareholders; assisting in the preparation of all resolutions to be
voted upon by each Board of Trustees; assisting in the preparation of supporting
information for such meetings with regard to the duties of the Administrator
under this Agreement, and collection and distribution of supporting information
for such meetings with respect to the duties performed by other persons who
provide services to the Trusts;
(f) At the request of each Trust, developing and monitoring
compliance procedures for each Series concerning, among other matters, adherence
of each series to its investment objectives, policies, restrictions, tax matters
and applicable laws and regulations;
(g) Blue sky monitoring; and
(h) Management of legal services.
The Administrator's duties shall not include acting as Trust
accountant, pricing any Series' portfolio, acting as transfer agent or
shareholder servicing agent, or performing blue sky registration services. To
the extent any of these services are performed by the Administrator, the
Administrator shall be entitled to separate compensation therefor.
In performing its duties under this Agreement, the Administrator will
(i) act in accordance with each Trust's Agreement and Declaration of Trust and
all amendments thereto (the "Declaration of Trust"), each Trust's By-Laws, the
effective prospectuses and statements of additional information of the Series
and with the instructions and directions of each Trust, (ii) conform to and
comply with the requirements of the Investment Company Act of 1940, as amended
(the "Investment Company Act"), and all other applicable federal or state laws
and regulations, and (iii) consult with legal counsel to and the independent
public accountants for each Trust, as necessary and appropriate, on whose advice
the Administrator shall be entitled to rely. Each Trust will furnish the
Administrator from time to time with copies of any documents that the
Administrator may reasonably request and that are necessary for it to perform
its obligations and duties under this Agreement and will notify the
Administrator as soon as possible of any matter materially affecting the
performance by the Administrator of its services under this
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Agreement.
3. Compensation and Allocation of Expenses.
(a) Each Trust shall compensate the Administrator for its
services rendered pursuant to this Agreement in accordance with the fees set
forth in Schedule A hereto. Such fees do not include out-of-pocket disbursements
of the Administrator, for which the Administrator shall be entitled to xxxx
separately. Out-of-pocket disbursements shall include, but shall not be limited
to, the items specified in Schedule A hereto. Fees shall be payable monthly in
arrears on the first business day of each month.
(b) The Administrator shall not be required to pay any Trust
or Series expenses except those that it has agreed to pay in connection with
performing the duties described herein or which it has agreed to pay in another
written agreement between the parties hereto.
(c) Upon any termination of this Agreement before the end of
any month, the fee for such period shall be prorated according to the proportion
that such period bears to the full month period. For purposes of determining
fees payable to the Administrator, the value of the net assets of each Series
shall be computed at the time and in the manner specified in the then- current
prospectus and statement of additional information for the Series.
(d) The Administrator will, from time to time, employ or
associate itself with such person or persons as the Administrator may believe to
be particularly suited to assist it in performing services under this Agreement.
Such person or persons may be officers and employees who are employed by both
the Administrator and a Trust. The compensation of such person or persons shall
be paid by the Administrator, and no obligation shall be incurred on behalf of
either Trust in such respect.
4. Administrator's Liability.
(a) In the absence of willful misfeasance, bad faith, reckless
disregard or negligence of the obligations or duties hereunder on the part of
the Administrator, the Administrator shall not be subject to liability to either
Trust or any Series or to any shareholder of any Series for any act or omission
in the course of, or connected with, rendering services hereunder or for any
losses that may be sustained in the purchase, holding or sale of any security by
a Series.
(b) Each Trust shall indemnify and hold harmless the
Administrator, its partners and the shareholders, partners, directors, officers
and employees of each of them (any such person, an "Indemnified Party") against
any loss, liability, claim, damage or expense (including the reasonable cost of
investigating and defending any alleged loss, liability, claim, damage or
expenses and reasonable counsel fees incurred in connection therewith) arising
out of the Indemnified Party's performance or non-performance of any duties
under this Agreement;
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provided, however, that nothing herein shall be deemed to protect any
Indemnified Party against any liability to which such Indemnified Party would
otherwise be subject by reason of willful misfeasance, bad faith or negligence
in the performance of duties hereunder or by reason of reckless disregard of
obligations and duties under this Agreement.
(c) No provision of this Agreement shall be construed to
protect any Trustee or officer of either Trust, or partner or officer of the
Administrator, from liability in violation of Sections 17(h) and (i) of the
Investment Company Act.
5. Termination of Agreement.
(a) This Agreement shall become effective on the date first
set forth above and shall remain in force unless terminated pursuant to the
provisions of subparagraph (b) of this Paragraph.
(b) This Agreement may be terminated at any time without
payment of any penalty, upon thirty (30) days' written notice by the Trust or by
the Administrator.
6. Amendment to this Agreement. No provision of this Agreement may be
changed, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, discharge or
termination is sought.
7. Assignment. This Agreement shall extend to, and shall be binding
upon, the parties hereto and their respective successors and assigns. This
Agreement may be assigned by the Administrator; provided, however, that each
Trust has consented in writing to such assignment. The Administrator may
delegate any duty hereunder, and no consent by either Trust shall be needed
therefore; provided, however, that any such delegation does not effect a release
of the Administrator from guaranty of the fulfillment of any duty delegated by
the Administrator.
8. Notice. Any notice or other instrument authorized or required by
this Agreement to be given in writing to each Trust or the Administrator shall
be sufficiently given if addressed to that party and received by it at its
office set forth below or at such other place as it may from time to time
designate in writing.
To the Trusts:
The Xxxxxxxxxx Funds
The Xxxxxxxxxx Funds II
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: President
To the Administrator:
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Xxxxxxxxxx Asset Management, LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: President
9. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without giving effect to
the conflict of laws principles thereof; provided that nothing herein shall be
construed to preempt, or to be inconsistent with, any federal law, regulation or
rule, including the Investment Company Act and the Investment Advisers Act of
1940, as amended, and any rules and regulations promulgated thereunder.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and which
collectively shall be deemed to constitute only one instrument.
11. Captions. The captions of this Agreement are included for
convenience only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
12. Non-Exclusivity. The Trusts' employment of the Administrator is not
an exclusive arrangement, and the Trust may, from time to time, employ other
individuals or entities to furnish it with the services provided for herein. If
this Agreement is terminated or modified with respect to any Series, this
Agreement shall remain in full force and effect with respect to all other
Series.
13. Independent Contractor. The Administrator shall, for all purposes
herein, be deemed to be an independent contractor, and shall, unless otherwise
expressly provided and authorized to do so, have no authority to act for or
represent the Trusts or the Series in any way, or in any way be deemed an agent
for the Trusts or for the Series. It is expressly understood and agreed that the
services to be rendered by the Administrator to the Series under the provisions
of this Agreement are not to be deemed exclusive, and the Administrator shall be
free to render similar or different services to others so long as its ability to
render the services provided for in this Agreement shall not be impaired
thereby.
14. Administrator's Office Facilities and Personnel. The Administrator
shall, at its own expense, maintain adequate office facilities and staff and
employ or retain such personnel and consult with such other persons as it shall
from time to time determine to be necessary to the performance of its
obligations under this Agreement. Without limiting the generality of the
foregoing, the staff and personnel of the Administrator shall be deemed to
include persons employed or retained by the Administrator to furnish statistical
information, research, and other factual information, advice regarding economic
factors and trends, information with respect to technical and scientific
developments, and such other information, advice and assistance as the
Administrator or either Trust's Board of Trustees may desire and reasonably
request.
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15. Notice of Declaration of Trust. The Administrator acknowledges that
it has received notice of and accepts the limitations of each Trust's liability
as set forth in their respective Declaration of Trust. The Administrator agrees
that each Trust's obligations under this Agreement shall be limited to its
respective Series and to their assets, and that the Administrator shall not seek
satisfaction of any such obligation from the shareholders of another Series or
Trust nor from any Trustee, officer, employee or agent of a Trust or a Series.
16. Conflicts with Trusts' Governing Documents and Applicable Laws.
Nothing herein shall be deemed to require a Trust or the Series to take any
action contrary to that Trust's Declaration of Trust, By-Laws or any applicable
statute or regulation, or to relieve or deprive the Board of Trustees of each
Trust of its responsibility for and control of the conduct of the affairs of the
Trust and its Series.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and delivered by their duly authorized officers as of the date
first written above.
XXXXXXXXXX ASSET MANAGEMENT, LLC
By: ___________________________
Name: ______________________________
Title: ___________________________
THE XXXXXXXXXX FUNDS
By: ___________________________
Name: ______________________________
Title: ___________________________
THE XXXXXXXXXX FUNDS II
By: ___________________________
Name: ______________________________
Title: ___________________________
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SCHEDULE A (December 31, 1999)
ADMINISTRATIVE SERVICES AGREEMENT
The Xxxxxxxxxx Funds
Annual
Average Daily Net Assets Rate
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Xxxxxxxxxx Growth Fund First $500 million 0.07%
Over $500 million 0.06%
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Xxxxxxxxxx Small Cap Fund First $250 million 0.07%
Over $250 million 0.06%
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Montgomery U.S. Emerging Growth Fund First $250 million 0.07%
Over $250 million 0.06%
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Xxxxxxxxxx Global Communications Fund First $250 million 0.07%
Over $250 million 0.06%
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Xxxxxxxxxx International Growth Fund First $250 million 0.07%
Over $250 million 0.06%
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Xxxxxxxxxx Emerging Markets Fund First $250 million 0.07%
Over $250 million 0.06%
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Xxxxxxxxxx Government Money Market Fund First $250 million 0.05%
Over $250 million 0.04%
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Montgomery California Tax-Free Intermediate First $500 million 0.05%
Bond Fund Over $500 million 0.04%
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Xxxxxxxxxx Total Return Bond Fund First $500 million 0.05%
Over $500 million 0.04%
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Xxxxxxxxxx Equity Income Fund First $500 million 0.07%
Over $500 million 0.06%
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Xxxxxxxxxx Global Opportunities Fund First $500 million 0.07%
Over $500 million 0.06%
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Xxxxxxxxxx Emerging Asia Fund First $500 million 0.07%
Over $500 million 0.06%
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Xxxxxxxxxx Global 20 Fund First $250 million 0.07%
Over $250 million 0.06%
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Annual
Average Daily Net Assets Rate
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Xxxxxxxxxx Short Duration Government Bond First $500 million 0.05%
Fund Over $500 million 0.04%
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Xxxxxxxxxx Federal Tax-Free Money Fund First $500 million 0.05%
Over $500 million 0.04%
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Montgomery California Tax-Free Money Fund First $500 million 0.05%
Over $500 million 0.04%
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Montgomery U.S. Select 20 Portfolio First $250 million 0.07%
Over $250 million 0.06%
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Xxxxxxxxxx International 20 Portfolio First $250 million 0.07%
Over $250 million 0.06%
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The Xxxxxxxxxx Funds II
Annual
Average Daily Net Assets Rate
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Xxxxxxxxxx Balanced Fund All amounts No fee
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Xxxxxxxxxx Institutional Series: Emerging All amounts 0.05%
Markets Portfolio
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Xxxxxxxxxx Institutional Series: International All amounts 0.05%
Growth Portfolio
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Xxxxxxxxxx Global Long-Short Fund First $250 million 0.07%
Over $250 million 0.06%
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Xxxxxxxxxx Emerging Markets Focus Fund First $250 million 0.07%
Over $250 million 0.06%
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The Xxxxxxxxxx Funds III
Annual
Average Daily Net Assets Rate
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Xxxxxxxxxx Variable Series: Emerging All amounts No fee (out
Markets Fund of pocket
expenses
only)
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Xxxxxxxxxx Variable Series: Growth Fund All amounts No fee (out
of pocket
expenses
only)
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o overnight delivery and courier services; postage
o telephone and telecommunication charges
o pricing services
o terminals, transmitting lines and expenses in connection therewith
o travel outside of San Francisco area on Fund business
o costs of preparing Board books, presentations and other materials
for the Board of Trustees
o printing and related costs
o extraordinary expenses
o fees and expenses of sub-administrators
THE XXXXXXXXXX FUNDS XXXXXXXXXX ASSET
MANAGEMENT, LLC
By: _________________________ By: _______________________
Title: _________________________ Title: _______________________
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THE XXXXXXXXXX FUNDS II THE XXXXXXXXXX FUNDS III
(as anadditional Trust party
from the original date of
the Agreement)
By: _________________________ By: _______________________
Title: _________________________ Title: _______________________
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