Exhibit 9(b)
FUND ACCOUNTING AND ADMINISTRATION AGREEMENT
Amended and Restated as of June 30, 1999
THIS AGREEMENT made as of June 30, 1999 by and between Security Capital
Real Estate Mutual Funds Incorporated, a Maryland corporation (the "Fund"), and
Security Capital Global Capital Management Group Incorporated, a Delaware
corporation (the "Administrator").
W I T N E S S E T H:
WHEREAS, the Fund is an open-end, management investment company that issues
two series of shares ("Series"), Security Capital U.S. Real Estate Shares and
Security Capital European Real Estate Shares, each with two classes, which may
be purchased by retail investors and institutional investors and which may offer
different services to shareholders and incur different expenses; and
WHEREAS, the Fund wishes to retain the Administrator to provide certain
fund accounting and administration services with respect to the Series and the
Administrator is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints the Administrator to provide
fund accounting and administration services to the Series, subject to the
supervision of the Board of Directors of the Fund (the "Board of Directors"),
for the period and on the terms set forth in this Agreement. The Administrator
accepts such appointment and agrees to furnish the services herein set forth in
return for the compensation as provided in Paragraph 4 of this Agreement. In the
event that the Fund establishes one or more additional Series with respect to
which it decides to retain the Administrator to act as administrator hereunder,
the Fund shall notify the Administrator in writing. If the Administrator is
willing to render such services to a new Series, the Administrator shall so
notify the Fund in writing whereupon such Series shall be subject to the
provisions of this Agreement to the same extent as all other Series, except to
the extent that
said provisions (including those relating to the compensation payable by the
Fund) may be modified with respect to such Series in writing by the Fund and the
Administrator at the time of the addition of such new Series.
2. Delivery of Documents. The Fund has furnished the Administrator with
copies, properly certified or authenticated, of each of the following:
(a) Resolutions of the Fund's Board of Directors authorizing the
appointment of the Administrator to provide certain fund accounting and
administration services to the Fund and approving this Agreement;
(b) The Fund's Articles of Incorporation ("Charter");
(c) The Fund's By-Laws ("By-Laws");
(d) The most recent draft of the Fund's Registration Statement on
Form N-1A and when completed, the Fund will provide its most recent Prospectus
and Statement of Additional Information and all amendments and supplements
thereto (such Prospectus and Statement of Additional Information and supplements
thereto, as presently in effect and as from time to time hereafter amended and
supplemented, herein called the "Prospectus").
The Fund will timely furnish the Administrator from time to time with
copies, properly certified or authenticated, of all amendments of or supplements
to the foregoing, if any.
3. Services and Duties. Subject to the supervision and control of the
Fund's Board of Directors, the Administrator agrees to assist in supervising
aspects of the Fund's administrative operations, including but notlimited to the
performance of the following specific services for the Fund:
(a) Provide office facilities (which may be in the offices of the
Administrator or a corporate affiliate of them, but shall be in such location as
the Fund shall reasonably approve) and the services of a principal financial
officer to be appointed by the Fund;
(b) Furnish statistical and research data, clerical services, and
stationery and office supplies;
(c) Keep and maintain all financial accounts and records (other
than those required to be maintained by the Fund's Custodian and Transfer Agent)
including without
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limit those required under Section 31 (a) and Rule 31a-1 under the Investment
Company Act of 1940 (the "1940 Act");
(d) Compute, and transmit to the NASD service for the publication
of fund prices, the Fund's net asset value, net income and net capital gain
(loss) in accordance with the Fund's Prospectus and resolutions of its Board of
Directors;
(e) Compile data for, and prepare required reports and notices to
shareholders of record including, without limitation, proxy statements,
Semiannual and Annual Reports to shareholders;
(f) Compile data for, prepare for execution and file all reports
or other documents, including tax returns, required by Federal, state and other
applicable laws and regulations, including those required by applicable Federal
and state tax laws (other than those required to be filed by the Fund's
Custodian or Transfer Agent);
(g) Assist in developing and monitoring compliance procedures for
the Fund and any class or series thereof, including, without limitation,
procedures to monitor compliance with applicable law and regulations, the Fund's
investment objectives, policies and restrictions, its continued qualification as
a regulated investment company under Subchapter M of the Internal Revenue Code
of 1986, as amended (the "Code");
(h) Determine, together with the Fund's Board of Directors, the
jurisdictions in which the Fund's shares shall be registered or qualified for
sale and, in connection therewith, the Administrator shall be responsible for
the registration for sale and maintenance of the registrations of shares for
sale under the securities laws of any state. Payment of share registration fees
for qualifying or continuing the qualification of Fund shares or the Fund as a
dealer or broker, if applicable, shall be made by the Fund;
(i) Provide financial data requested by the Fund and its outside
counsel;
(j) Perform such other duties related to the administration of the
Fund's operations as reasonably requested by the Board of Directors, from time
to time;
(k) Assist in the monitoring of regulatory and legislative
developments which may affect the Fund and, in response to such developments,
counsel and assist the Fund in
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routine regulatory examinations or investigations of the Fund, and work with
outside counsel to the Fund in connection with regulatory matters or litigation.
In performing its duties as administrator of the Fund, the Administrator
(a) will act in accordance with the Fund's Charter, By-Laws, Prospectus,
Statement of Additional Information and the instructions and directions of the
Fund's Board of Directors and will conform to, and comply with, the requirements
of the 1940 Act and all other applicable Federal or state laws and regulations,
and (b) will consult with outside legal counsel to the Fund, as necessary or
appropriate.
The Administrator will preserve for the periods prescribed by Rule 31a-2
under the 1940 Act the records required to be maintained by Rule 31a-1 under
said Act in connection with the services required to be performed hereunder. The
Administrator further agrees that all such records which it maintains for the
Fund are the property of the Fund and further agrees to surrender promptly to
the Fund any of such records upon the Fund's request.
4. Fees; Expenses; Expense Reimbursement. For the services rendered
pursuant to this Agreement for the Fund, the Administrator shall be entitled to
a fee based on the average net assets of each class of shares issued by the Fund
determined at the annual rate set forth in Exhibit A hereto and applied to the
average daily net assets of each class of the Fund's shares. Such fees are to be
computed daily and paid monthly on the first business day of the following
month. Upon any termination of this Agreement before the end of any month, the
fee for such part of the month shall be prorated according to the proportion
which such period bears to the full monthly period and shall be payable upon the
date of termination of this Agreement.
For the purpose of determining fees payable to the Administrator, the value
of the Fund's net assets shall be computed as required by its Prospectus,
generally accepted accounting principles and resolutions of the Fund's Board of
Directors.
The Administrator will from time to time employ or associate with
themselves such sub-administrator or such person or persons as they may believe
to be fitted to assist them in the performance of this Agreement. Such person or
persons may be officers and employees who are employed by both the Administrator
and the Fund. The compensation of such person or persons
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for such employment shall be paid by the Administrator, if such person is
retained solely by the Administrator, and no obligation may be incurred on
behalf of the Fund in such respect.
The Administrator or the Fund may retain a sub-administrator to assist the
Administrator in the execution of its duties hereunder. The retention of a
sub-administrator by the Administrator or the Fund shall in no way affect the
responsibilities of the Administrator hereunder. The compensation of a
sub-administrator retained by the Administrator or the Fund may be paid either
by the Administrator or by the Fund.
The Administrator will bear all expenses in connection with the performance
of its services under this Agreement except as otherwise expressly provided
herein. Other expenses to be incurred in the operation of the Fund, including
taxes, interest, brokerage fees and commissions, if any, salaries and fees of
officers and directors who are not officers, directors shareholders or employees
of the Administrator, or the Fund's investment advisor or distributor for the
Fund, Securities and Exchange Commission fees and state Blue Sky qualification
fees, advisory and administration fees, charges of custodians, transfer and
divided disbursing agents' fees, certain insurance premiums including fidelity
bond premiums, outside auditing and legal expenses, costs of maintenance of
corporate existence, typesetting and printing of prospectuses for regulatory
purposes and for distribution to current shareholders of the Fund, costs of
shareholders' reports and corporate meetings and any extraordinary expenses,
will be borne by the Fund, provided, however, that, except as provided in any
distribution plan adopted by the Fund, the Fund will not bear, directly or
indirectly, the cost of any activity which is primarily intended to result in
the distribution of shares of the Fund, and further provided that the
Administrator may utilize one or more independent pricing services, approved
from time to time by the Board of Directors of the Fund, to obtain securities
prices in connection with determining the net asset value of each class of the
Fund's shares and the Fund will reimburse the Administrator for its share of the
cost of such services based upon its actual use of the services.
If in any fiscal year the Fund's aggregate expenses (as defined under the
securities regulations of any state having jurisdiction over the Fund) exceed
the expense limitations of any such state, the Administrator agrees to reimburse
the Fund for a portion of any such excess expense in an amount equal to the
proportion that the fee otherwise payable to the Administrator
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bear to the total amount of investment advisory and administration fees
otherwise payable by the Fund. The expense reimbursement obligation of the
Administrator is limited to the amount of its fees hereunder for such fiscal
year, provided, however, that notwithstanding the foregoing, the Administrator
shall reimburse the Fund for a portion of any such excess expenses in an amount
equal to the proportion that the fees otherwise payable to the Administrator
bear to the total amount of investment advisory and administration fees
otherwise payable by the Fund regardless of the amount of fees paid to the
Administrator during such fiscal year to the extent that the securities
regulations of any state having jurisdiction over the Fund so require. Such
expense reimbursement, if any, will be estimated on a daily basis, reconciled
and paid on a monthly basis.
5. Proprietary and Confidential Information. The Administrator agrees on
behalf of itself and its employees to treat confidentially and as proprietary
information of the Fund all records and other information relative to the Fund's
prior, present or potential shareholders, and not to use such records and
information for any purpose other than performance of their responsibilities and
duties hereunder, except after prior notification to and approval in writing by
the Fund, which approval shall not be unreasonably withheld and may not be
withheld where the Administrator may be exposed to Civil or Criminal contempt
proceedings for failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the Fund.
6. Limitation of Liability. The Administrator shall not be liable for any
error of judgement or mistake of law or for any loss or expense suffered by the
Fund, in connection with the matters to which this Agreement relates, except for
a loss or expense resulting from willful misfeasance, bad faith or gross
negligence on its part in the performance of its duties or from reckless
disregard by it of its obligations and duties under this Agreement. Any person,
even though also an officer, director, partner, employee or agent of the
Administrator, who may be or become an officer, director, employee or agent of
the Fund, shall be deemed when rendering services to the Fund or acting on any
business of the Fund (other than services or business in connection with the
Administrator's duties hereunder) to be rendering such services to or acting
solely for the Fund and not as an officer, director, partner, employee or agent
or one under the control or direction of the Administrator even though paid by
them.
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7. Terms. This Agreement shall become effective on the date first
hereinabove written and, unless sooner terminated as provided herein, shall
continue in effect until it is terminated by either party hereto. This Agreement
is terminable, without penalty, by the Fund's Board of Directors, by vote of a
majority (as defined in the ▇▇▇▇ ▇▇▇) of the outstanding voting securities of
such Fund, or by the Administrator, on not less than sixty days' notice. This
Agreement shall automatically terminate upon its assignment by the Administrator
without the prior written consent of the Fund, provided, however, that no such
assignment shall release the Administrator from its obligations under this
Agreement.
8. Governing Law. This Agreement shall be governed by Illinois law.
9. Amendments. 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.
10. Miscellaneous. The parties to this Agreement acknowledge and agree
that all liabilities arising, directly or indirectly, under this Agreement, of
any and every nature whatsoever, including without limitation, liabilities
arising in connection with any agreement of the Fund set forth herein to
indemnify any party to this Agreement or any other person, shall be satisfied
out of the assets of the Fund and that no director, officer or shareholder of
the Fund shall be personally liable for any of the foregoing liabilities.
If a change or discharge is sought against the Fund, the instrument must be
signed by the Administrator.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date indicated below.
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SECURITY CAPITAL REAL ESTATE MUTUAL FUNDS
INCORPORATED
ATTEST: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
SECURITY CAPITAL GLOBAL CAPITAL MANAGEMENT
GROUP INCORPORATED
ATTEST: /s/ ▇▇▇▇▇▇ ▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇., Managing Director
EFFECTIVE AS OF:
__________________
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SCHEDULE 1
SECURITY CAPITAL REAL ESTATE MUTUAL FUNDS INCORPORATED
The following Series of Security Capital Real Estate Mutual Funds Incorporated
are subject to this Agreement:
Security Capital U.S. Real Estate Shares - Class I Shares
Security Capital U.S. Real Estate Shares - Class R Shares
Security Capital European Real Estate Shares - Class I Shares
Security Capital European Real Estate Shares - Class R Shares
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EXHIBIT A
FUND ACCOUNTING AND FUND ADMINISTRATION
FEE SCHEDULE
FOR
SECURITY CAPITAL REAL ESTATE MUTUAL FUNDS INCORPORATED
Annual Rate: .02% (2 basis points) of the average daily net assets of each
Series of Security Capital Real Estate Mutual Funds
Incorporated billed monthly.
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