EXHIBIT 9(c)
ADMINISTRATION AGREEMENT
Agreement dated as of __________, 1998 by and between State Street Bank and
Trust Company, a Massachusetts tust company (the "Administrator"), and Security
Capital Real Estate Mutual Funds (the "Company").
WHEREAS, the Company is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Company desires to retain the Administrator to furnish certain
administrative services to the Company, 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 Company hereby appoints the Administrator to act as administrator with
respect to the Company 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 Company will initially consist of the portfolio(s) and/or class(es) of
shares (each an "Investment Fund") listed in Schedule A to this Agreement. In
the event that the Company establishes one or more additional Investment Funds
with respect to which it wishes to retain the Administrator to act as
administrator hereunder, the Company shall notify the Administrator in writing.
Upon written acceptance by the Administrator, such Investment Fund shall become
subject to the provisions of this Agreement to the same extent as the existing
Investment Funds, except to the extent that such provisions (including those
relating to the compensation and expenses payable by the Company and its
Investment Funds) may be modified with respect to each additional Investment
Fund in writing by the Company and the Administrator at the time of the addition
of the Investment Fund.
2. DELIVERY OF DOCUMENTS
The Company will promptly deliver to the Administrator copies of each of
the following documents and all future amendments and supplements, if any:
a. The Company's Articles of Incorporation and by-laws;
b. The Company's currently effective registration statement under the
Securities Act of 1933, as amended (the "1933 Act"), and the 1940 Act,
and the Company's Prospectus(es) and Statement(s) of Additional
Information relating to all Investment Funds and all amendments and
supplements thereto as in effect from time to time;
c. Certified copies of the resolutions of the Board of Directors of the
Company (the "Board") authorizing (1) the Company to enter into this
Agreement and (2) certain individuals on behalf of the Company to (a)
give instructions to the Administrator pursuant to this Agreement and
(b) sign checks and pay expenses;
d. A copy of the investment advisory agreement between the Company and
its investment adviser; and
e. 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.
3. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR
The Administrator represents and warrants to the Company that:
a. It is a Massachusetts trust company, duly organized and existing 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 COMPANY
The Company represents and warrants to the Administrator that:
a. It is a corporation, duly organized, existing and in good standing
under the laws of the State of Maryland;
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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 Company also warrants to the Administrator that
as of the effective date of this Agreement, all necessary filings
under the securities laws of the states in which the Company offers or
sells its shares have been made;
f. No legal or administrative proceedings have been instituted or
threatened which would impair the Company's ability to perform its
duties and obligations under this Agreement;
g. Its entrance into this Agreement will not cause a material breach or
be in material conflict with any other agreement or obligation of the
Company or any law or regulation applicable to it; and
h. As of the close of business on the date of this Agreement, the Company
is authorized to issue shares of capital stock, and it will initially
offer shares, in the authorized amounts as set forth in Schedule A to
this Agreement.
5. ADMINISTRATION SERVICES
The Administrator shall provide the following services, in each case,
subject to the control, supervision and direction of the Company and the review
and comment by the Company's auditors and legal counsel and in accordance with
procedures which may be established from time to time between the Company and
the Administrator:
a. Oversee the determination and publication of the Company's net asset
value in accordance with the Company's policy as adopted from time to
time by the Board;
b. Oversee the maintenance by the Company's custodian of certain books
and records of the Company as required under Rule 3la-l(b) of the 1940
Act;
c. Prepare the Company's federal, state and local income tax returns for
review by the Company's independent accountants and filing by the
Company's treasurer;
d. Review calculation, submit for approval by officers of the Company and
arrange for payment of the Company's expenses;
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e. Prepare for review and approval by officers of the Company financial
information for the Company's semi-annual and annual reports and other
communications required or otherwise to be sent to Company
shareholders, and arrange for the printing and dissemination of such
reports and communications to shareholders;
f. Prepare for review by an officer of and legal counsel for the Company
the Company's periodic financial reports required to be filed with the
Securities and Exchange Commission ("SEC") on Form N-SAR and financial
information required by Form N-1A and such other reports, forms or
filings as may be mutually agreed upon;
g. Prepare reports relating to the business and affairs of the Company as
may be mutually agreed upon and not otherwise prepared by the
Company's investment adviser, custodian, legal counsel or independent
accountants;
h. Make such reports and recommendations to the Board concerning the
performance of the independent accountants as the Board may reasonably
request;
i. Make such reports and recommendations to the Board concerning the
performance and fees of the Company's custodian and transfer and
dividend disbursing agent ("Transfer Agent") as the Board may
reasonably request or deems appropriate;
j. Oversee and review calculations of fees paid to the Company's
investment adviser, custodian and Transfer Agent;
k. Consult with the Company's officers, independent accountants, legal
counsel, custodian and Transfer Agent in establishing the accounting
policies of the Company;
l. Respond to, or refer to the Company's officers or Transfer Agent,
shareholder inquiries relating to the Company;
m. Provide periodic testing of portfolios to assist the Company's
investment adviser in complying with Internal Revenue Code mandatory
qualification requirements, the requirements of the 1940 Act and
Company prospectus limitations as may be mutually agreed upon;
n. Review and provide assistance on shareholder communications;
o. Maintain copies of the Company's charter and by-laws;
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p. File annual and semi-annual shareholder reports with the appropriate
regulatory agencies; review text of "President's letters" to
shareholders and "Management's Discussion of Company Performance"
(which shall also be subject to review by the Company's legal
counsel):
q. Prepare Rule 24F-2 notices.
r. Perform Blue Sky services pursuant to the specific instructions of the
Company and as detailed in Schedule B to this Agreement.
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 Company 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 and
initially set forth in the Fee Schedule to this Agreement. The fees are accrued
daily and billed monthly and shall be due and payable upon receipt of the
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 addition,
the Company shall reimburse the Administrator for its out-of-pocket costs
incurred in connection with this Agreement.
The Company agrees promptly to reimburse the Administrator for any
equipment and supplies specially ordered by or for the Company through the
Administrator and for any other expenses not contemplated by this Agreement that
the Administrator may incur on the Company's behalf at the Company's request or
with the Company's consent.
The Company will bear all expenses that are incurred in its operation and
not specifically assumed by the Administrator. Expenses to be borne by the
Company, 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 Company'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 Company 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 Company; investment advisory fees; taxes, insurance premiums and other fees
and expenses applicable to its operation; cost 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 Company; costs incidental to the preparation, printing and
distribution of the Company's registration statements and
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any amendments thereto and shareholder reports; cost of typesetting and printing
of prospectuses; cost of preparation of filing of the Company's tax returns,
Form N-1A or N-2 and form N-SAR, and all notices, registrations 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 Company's 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 Company 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 Company for
instructions and may consult with its own legal counsel or outside counsel for
the Company or the independent accountants for the Company at the expense of the
Company, 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 Company, 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 Company. 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 thereunder
unless solely caused by or resulting from the gross 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, the Administrator's liability
under this Agreement shall be limited to its total annual compensation earned
and fees paid hereunder during the preceding twelve months for any liability or
loss suffered by the Company including, but not limited to, any liability
relating to qualification of the Company as a regulated investment company or
any liability relating to the Company's compliance with any federal or state tax
or securities statute, regulation or ruling.
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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.
The Company 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 Company, 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 gross negligence or willful misconduct.
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, it will keep confidential all records and information in its
possession relating to the Company 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 Company.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
The Company assumes full responsibility for complying with all securities,
tax, commodities and other laws, rules and regulations applicable to it.
In compliance with the requirements of Rule 31a-3 under the 1940 Act, the
Administrator agrees that all records which it maintains for the Company shall
at all times remain the property of the Company, 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 Company 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 Company are not to be deemed
exclusive, and the Administrator shall be free to render similar services to
others. The Administrators shall be deemed
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to be an independent contractor and shall, unless otherwise expressly provided
herein or authorized by the Company from time to time, have no authority to act
or represent the Company in any way or otherwise be deemed an agent of the
Company.
12. TERM, TERMINATION AND AMENDMENT
This Agreement shall become effective on the date of its execution and
shall remain in full force and effect from the effective date and shall
automatically continue in full force and effect after such initial term unless
either party terminates this Agreement by written notice to the other party at
least sixty (60) days prior to the expiration of the initial term. Either party
may terminate this Agreement at any time after the initial term upon at least
sixty (60) days' prior written notice to the other party. Termination of this
Agreement with respect to any given Investment Fund shall in no way affect the
continued validity of this Agreement with respect to any other Investment Fund.
Upon termination of this Agreement, the Company 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 Company: Security
Capital Real Estate Mutual Funds, 00 Xxxxx XxXxxxx Xx., Xxxxxxx, Xxxxxxxx 00000
Attn: ___________, fax:___________; if to the Administrator: State Street Bank
and Trust Company, 0000 Xxxxxxxx Xxxxx, XXX-0, Xxxxx Xxxxxx, Xxxxxxxxxxxxx
00000, 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
Company and the Administrator and their respective successors and permitted
assigns.
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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.
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
all/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.
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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.
SECURITY CAPITAL REAL ESTATE MUTUAL FUNDS
By:
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Name:
----------------------------------------
Title:
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STATE STREET BANK AND TRUST COMPANY
By:
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Name: Xxxxxxxx Xxxxxxx
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Title: Senior Vice President
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SECURITY CAPITAL REAL ESTATE MUTUAL FUNDS
ADMINISTRATION AGREEMENT
SCHEDULE A
Listing of Investment Funds and Authorized Shares
Investment Fund Authorized Shares
Security Capital U.S. Real Estate Shares (Class I and R)
Security Capital European Real Estate Shares (Class I and R)
Security Capital Asia/Pacific Real Estate Shares (Class I and R)
Security Capital Real Estate Arbitrage Shares (Class I)
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