Exhibit (h)(4)
ADMINISTRATION AGREEMENT
AGREEMENT made as of the 1st day of June, 1999 by and between Xxxxxxx,
Xxxxxxx Funds, Inc., a corporation organized under the laws of Maryland (the
"Fund"), and INVESTORS BANK & TRUST COMPANY, a Massachusetts trust company (the
"Bank");
WHEREAS, the Fund is a registered investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), consisting of the separate
portfolios listed on Appendix A hereto (as such Appendix A may be amended from
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time to time) (each a "Portfolio" and collectively, the "Portfolios"); and
WHEREAS, the Fund desires to retain the Bank to render certain
administrative services to the Fund and the Bank is willing to render such
services;
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints the Bank to act as
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Administrator of the Fund on the terms set forth in this Agreement. The Bank
accepts such appointment and agrees to render the services herein set forth for
the compensation herein provided.
2. Delivery of Documents. The Fund has furnished the Bank with copies
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properly certified or authenticated of each of the following:
(a) Resolutions of the Fund's Board of Directors authorizing the
appointment of the Bank to provide certain administrative services to the Fund
and approving this Agreement;
(b) The Fund's incorporating documents filed with the State of
Maryland on July 31, 1996 and all amendments thereto (the "Articles");
(c) The Fund's by-laws and all amendments thereto (the "By-Laws");
(d) The Fund's material agreements with all service providers which
include any investment advisory agreements, sub-investment advisory agreements,
custody agreements, distribution agreements and transfer agency agreements
(collectively, the "Agreements");
(e) The Fund's most recent Registration Statement on Form N-1A (the
"Registration Statement") under the Securities Act of 1933 and under the 1940
Act and all amendments thereto;
(f) The Fund's most recent prospectus and statement of additional
information (the "Prospectus"); and
(g) Such other certificates, documents or opinions as may mutually be
deemed necessary or appropriate for the Bank in the proper performance of its
duties hereunder.
The Fund will immediately furnish the Bank with copies of all
amendments of or supplements to the foregoing. Furthermore, the Fund will notify
the Bank as soon as possible of any matter which the Fund is aware would
materially affect the performance by the Bank of its services under this
Agreement.
3. Duties of Administrator.
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(a) Subject to the supervision and direction of the Board of
Directors of the Fund, the Bank, as Administrator, will assist in conducting
various aspects of the Fund's administrative operations and undertakes to
perform the services described in Appendix B hereto. The Bank may, from time to
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time, perform additional and/or modified duties and functions which shall be set
forth in an amendment to such Appendix B executed by both parties. At such
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time, the fee schedule included in Appendix C hereto shall be appropriately
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amended, if necessary.
(b) In performing all services under this Agreement, the Bank shall
act in conformity with the Fund's Articles and By-Laws and the 1940 Act, as the
same may be amended from time to time, and the investment objectives, investment
policies and other practices and policies set forth in the Fund's Registration
Statement, as the same may be amended from time to time. Notwithstanding any
item discussed herein, the Bank has no discretion under this Agreement over the
Fund's assets or choice of investments. Not in limitation of the foregoing, the
Bank will perform all of its obligations under this Agreement in accordance with
applicable law.
4. Duties of the Fund.
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(a) The Fund is solely responsible (through its transfer agent or
otherwise) for (i) providing timely and accurate reports ("Daily Sales Reports")
which will enable the Bank as Administrator to monitor the total number of
shares sold in each state on a daily basis and (ii) identifying any exempt
transactions ("Exempt Transactions") which are to be excluded from the Daily
Sales Reports.
(b) The Fund agrees to make its legal counsel reasonably available to
the Bank for such counsel's legal opinion with respect to any matter of law
arising in connection with the Bank's duties hereunder, and the Fund further
agrees that the Bank shall be entitled to rely on such legal opinion without
further investigation on the part of the Bank.
5. Fees and Expenses.
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(a) For the services to be rendered and the facilities to be
furnished by the Bank, as provided for in this Agreement, the Fund will
compensate the Bank in accordance with the fee schedule attached as Appendix C
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hereto. Such fees do not include out-of-pocket disbursements (as delineated on
such attached fee schedule, or such other expenses as may be specifically
approved for reimbursement by the Fund in writing ) of the Bank, for which the
Bank shall be entitled to xxxx the Fund separately and for which the Fund shall
reimburse the Bank.
(b) The Bank shall not be required to pay any expenses incurred by
the Fund.
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6. Representations and Warranties of the Bank. The Bank represents and
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warrants to the Fund that:
(a) The Bank is a trust company duly organized and existing and in
good standing under the laws of the Commonwealth of Massachusetts.
(b) The Bank is empowered under applicable laws and by its charter
and by-laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize
the Bank to enter into and perform this Agreement.
(d) The Bank has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
7. Representations and Warranties of the Fund. The Fund represents and
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warrants to the Bank that:
(a) The Fund is a corporation duly organized and existing and in good
standing under the laws of the State of its incorporation as set forth in the
preamble hereto.
(b) The Fund is empowered under applicable laws and by its Articles
and By-Laws to enter into and perform this Agreement.
(c) All requisite corporate proceedings have been taken to authorize
the Fund to enter into and perform this Agreement.
(d) The Fund is a open-end investment company registered under the
1940 Act.
8. Records. The Bank acknowledges that all records maintained by the
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Bank on behalf of the Fund remain the property of the Fund and shall be
surrendered by the Bank upon any termination of this Agreement. The Bank shall
preserve, for the periods prescribed in Rule 31a-2 under the 1940 Act and as
otherwise may be required by law, the records required to be maintained by Rule
31a-1 under the 1940 Act.
9. Indemnification by the Bank. The Bank shall indemnify and hold the
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Fund harmless from and against any and all losses, damages, costs, charges,
legal fees, payments, expenses and liability arising out of or attributed to any
action or failure or omission to act by the Bank as a result of the Bank's lack
of good faith, gross negligence, willful misconduct, knowing violation of law or
fraud.
10. Limitation of Liability.
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(a) The Bank and its directors, officers, employees and agents
(collectively, the "Indemnified Parties") shall not be liable to the Fund or any
third party for, and the Fund shall indemnify the Indemnified Parties against
and hold them harmless from, any and all losses, claims, damages, liabilities or
expenses (including reasonable legal fees and expenses) (collectively, "Losses")
arising in connection with the performance of the Bank's obligations and
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duties under this Agreement, except Losses resulting from willful misfeasance,
bad faith or negligence in the Bank's performance of such obligations and
duties, or by reason of the Bank's reckless disregard thereof. Without limiting
the foregoing, neither the Bank nor the Indemnified Parties shall be liable to
the Fund for, and the Bank and the Indemnified Parties shall be indemnified by
the Fund against, any and all Losses resulting from any of the following:
(i) Any act or omission of the Fund, including, but not limited to,
inaccurate Daily Sales Reports and misidentification of Exempt Transactions;
(ii) Any act or omission by the Bank or any Indemnified Party in good
faith reliance upon the terms of this Agreement, any officer's certificate
signed by any two officers of the Fund, or any resolution of the Board of the
Fund; or
(iii) The offer or sale of Shares by the Fund in violation of (x) any
requirement under the federal securities laws or regulations; (y) any
requirement under the securities laws or regulations of any state; or (z) any
stop order or other determination or ruling by any federal or state agency with
respect to the offer or sale of such Shares;
provided, however, that this sentence shall not apply to any Losses resulting
from the willful misfeasance, bad faith or negligence of the Bank or any
Indemnified Party in the performance of such obligations and duties or by reason
of its or their reckless disregard thereof.
(b) The Bank may apply to the Fund at any time for instructions and
may consult counsel for the Fund, or its own counsel, and with accountants and
other experts with respect to any matter arising in connection with its duties
hereunder, and the Bank shall not be liable or accountable for any action taken
or omitted by it in good faith in accordance with such instruction, or with the
opinion of such counsel, accountants, or other experts. The Bank shall not be
liable for any act or omission taken or not taken in reliance upon any document,
certificate or instrument which it reasonably believes to be genuine and to be
signed or presented by the proper person or persons. The Bank shall not be held
to have notice of any change of authority of any officers, employees, or agents
of the Fund until receipt of written notice thereof has been received by the
Bank from the Fund.
(c) In the event the Bank is unable to perform, or is delayed in
performing, its obligations under the terms of this Agreement because of causes
reasonably beyond its control, including acts of God, strikes, legal constraint,
government actions, war, emergency conditions, interruption of electrical power
or other utilities, equipment or transmission failure or damage, the Bank shall
not be liable to the Fund for any damages resulting from such failure to perform
or delay in performance, from such causes; provided, however, that the Bank
shall be liable for any Losses resulting from the failure of the Bank's
proprietary software systems to be Y2K compliant.
(d) Notwithstanding anything to the contrary in this Agreement, in
no event shall the Bank be liable to the Fund for special, incidental or
consequential damages, even if advised of the possibility of such damages, under
any provision of this Agreement or for any act or failure to act hereunder as
contemplated by this Agreement, except as a result of willful misfeasance, bad
faith or gross negligence.
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(e) Notwithstanding anything to the contrary in this Agreement, in no
event shall the Fund be liable to the Bank for special, incidental or
consequential damages, even if advised of the possibility of such damages, under
any provision of this Agreement or for any act or failure to act hereunder as
contemplated by this Agreement, except as a result of willful misfeasance, bad
faith or gross negligence.
(f) Promptly after the receipt by any party hereto entitled to
indemnification hereunder ("Indemnified Person") of notice of any claim or the
commencement of any action or proceeding by a third party, such Indemnified
Person will, if a claim with respect thereto is to be made against one or more
other parties hereto (the "Indemnifying Persons") pursuant to Section 10(a),
give each of them (if they are then in existence) written notice of such claim
or the commencement of such action or proceeding, provided that failure of the
Indemnified Person to give reasonably prompt notice of any claim or claims shall
not release, waive or otherwise affect the obligations under this Section 10 of
the Indemnifying Persons with respect thereto except to the extent that they can
demonstrate actual loss or prejudice as a result of such failure. Unless the
Indemnified Persons reasonably believe that the Indemnifying Persons will be
unable or not required to fully indemnify the Indemnified Persons for any such
claim, action or proceeding, the Indemnifying Persons or any of them may elect
to defend against such claim or defend such action or proceeding, at their sole
cost and expense, and in such event the Indemnified Persons shall, at their sole
expense, have the right to participate in (but not control) the defense through
counsel chosen by the Indemnified Persons. So long as the Indemnifying Persons
(i) are in good faith so defending, or (ii) are not given the opportunity to so
defend pursuant to the preceding sentence, as the case may be, the Indemnified
Persons shall not compromise or settle any such claim without the prior written
consent of each of the Indemnifying Persons, which consent shall not be
unreasonably withheld or delayed. If the Indemnifying Persons cannot or do not
so elect to defend or do not continue to do so in good faith in accordance with
the terms of this Section 10(f), the Indemnified Persons may defend such claim
or defend such action or proceeding in such manner as the Indemnified Persons
may deem appropriate, including, but not limited to, settling such claim or
action or proceeding (after giving notice of the same to each of the
Indemnifying Persons) on such terms as the Indemnified Persons may deem
appropriate, and the Indemnifying Persons will promptly indemnify the
Indemnified Persons in accordance with the provisions of Section 10(a). Each
party hereto shall cooperate in the defense of any third party claim, action or
proceeding that is subject to indemnification under this Section 10. Should any
expense be involved (other than a nominal expense) in giving such cooperation,
the Indemnifying Persons shall defray such expense.
11. Termination of Agreement.
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(a) The term of this Agreement shall be three years commencing upon
the date hereof (the "Initial Term"), unless earlier terminated as provided
herein. After the expiration of the Initial Term, the term of this Agreement
shall automatically renew for successive one-year terms (each a "Renewal Term")
unless notice of non-renewal is delivered by the non-renewing party to the other
party no later than one hundred and twenty days prior to the expiration of the
Initial Term or any Renewal Term, as the case may be.
Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term or any Renewal Term in the event the other party
violated any material provision of this Agreement, provided that the violating
party has not cured such violation within sixty (60) days after written notice
from the non-violating party of such violation.
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(b) At any time after the termination of this Agreement, the Fund
may, upon written request, have reasonable access to the records of the Bank
relating to its performance of its duties under this Agreement.
(c) In the event a majority of non-interested directors of the Fund
determines that the performance of the Bank under this Agreement has been
unsatisfactory when considered in light of industry standards, or has been
adverse to the interests of the Fund's shareholders, the Bank shall have sixty
(60) days after receipt of written notice to such effect to correct its
performance. If such corrective action is not taken or is not reasonably
satisfactory to such directors, this Agreement may be terminated by the Fund on
ten days prior notice.
12. Notices. All notices or other communications required or permitted to
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be given under any of the provisions of this Agreement shall be in writing and
shall be deemed to have been duly given when personally received by the intended
recipient or (i) when delivered by messenger or overnight delivery service (with
confirmation of receipt), (ii) when delivered via e-mail or telecopier (and
immediately confirmed by mail) or (iii) three (3) business days after having
been mailed by first class registered or certified mail, return receipt
requested, postage prepaid, addressed to the applicable party at its address set
forth below or such other or additional address(es) designated by the applicable
party to the other party by notice hereunder (with notice of change of address
not being valid until actually received).
If to the Fund:
Xxxxxxx, Xxxxxxx Funds, Inc.
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Fax #: 000-000-0000
Attention: Xxx Xxxxxx
With a copy to:
Xxxx Xxxxxx
Dechert Price & Xxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx X.X. 00000
Fax #: 000-000-0000
If to the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Fax #: 000-000-0000
Attention: Xxxxx Xxxx, Senior Director, Client Management
With a copy to: Xxxxxx X. Xxxxx, Assistant General Counsel
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13. Confidentiality. All books, records, information and data pertaining
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to the business of the other party which are exchanged or received pursuant to
the negotiation or the carrying out of this Agreement shall remain confidential,
and shall not be voluntarily disclosed to any other person, except as may be
required in the performance of duties hereunder or as otherwise required by law.
14. Use of Name. The Fund shall not use the name of the Bank or any of
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its affiliates in any prospectus, sales literature or other material relating to
the Fund in a manner not approved by the Bank prior thereto in writing; provided
however, that the approval of the Bank shall not be required for any use of its
name which merely refers in accurate and factual terms to its appointment
hereunder or which is required by the Securities and Exchange Commission or any
state securities authority or any other appropriate regulatory, governmental or
judicial authority; provided further, that in no event shall such approval be
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unreasonably withheld or delayed.
15. Amendments. This Agreement may not be altered or amended, except by
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an instrument in writing, executed by both parties.
16. Parties. This Agreement will be binding upon and shall inure to the
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benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement will not be assignable by the Fund
without the written consent of the Bank or by the Bank without the written
consent of the Fund, authorized and approved by its Board; and provided further
that termination proceedings pursuant to Section 11 hereof will not be deemed to
be an assignment within the meaning of this provision.
17. Captions. The captions of this Agreement are included for convenience
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of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect.
18. Governing Law. This Agreement and all performance hereunder will be
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governed by the laws of the Commonwealth of Massachusetts, without regard to
conflict of laws provisions.
19. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
20. Entire Agreement. This Agreement, together with its Appendices,
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constitutes the sole and entire agreement between the parties relating to the
subject matter herein and does not operate as an acceptance of any conflicting
terms or provisions of any other instrument and terminates and supersedes any
and all prior agreements and undertakings between the parties relating to the
subject matter herein.
21. Limitation of Liability. The Bank agrees that the obligations assumed
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by the Fund hereunder shall be limited in all cases to the assets of the Fund
and that the Bank shall not seek satisfaction of any such obligation from the
officers, agents, employees, trustees, or shareholders of the Fund.
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22. Several Obligations of the Portfolios. This Agreement is an agreement
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entered into between the Bank and the Fund with respect to each Portfolio. With
respect to any obligation of the Fund on behalf of any Portfolio arising out of
this Agreement, the Bank shall look for payment or satisfaction of such
obligation solely to the assets of the Portfolio to which such obligation
relates as though the Bank had separately contracted with the Fund by separate
written instrument with respect to each Portfolio.
[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.
XXXXXXX, LOEVNER FUNDS, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Director
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Appendices
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Appendix A........................................... Portfolios
Appendix B........................................... Services
Appendix C........................................... Fee Schedule
Appendix A
Xxxxxxx, Xxxxxxx Funds, Inc.
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International Equity Portfolio
Global Equity Portfolio
Multi-Asset Global Portfolio
Emerging Markets Portfolio
