▇▇▇▇▇▇▇▇ CAPITAL FUNDS
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
AGREEMENT made this 26th day of November, 1996, as amended and
restated as of this 1st day of June, 1999, between ▇▇▇▇▇▇▇▇ Capital Funds (the
"Trust"), a business trust organized under the laws of the State of Delaware
with its principal place of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and Schroder Fund Advisors Inc. ("Schroder"), a corporation
organized under the laws of the State of Maryland.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended, (the "1940 Act") as an open-end management investment
company and is authorized to issue shares of beneficial interest ("Shares") in
separate series;
WHEREAS, the Trust has entered into various Investment Advisory
Agreements with ▇▇▇▇▇▇▇▇ Investment Management North America Inc. (the
"Adviser"), pursuant to which the Adviser provides investment advisory
services for the Trust;
WHEREAS, the Trust desires that Schroder perform certain
administrative services for each of the series of the Trust as listed in
APPENDIX A hereto (each a "Series"),other than any administrative services
required to be performed by the Adviser, and Schroder is willing to provide
those services on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Schroder agree as follows:
SECTION 1. APPOINTMENT.
The Trust hereby appoints Schroder as administrator of the Trust and
of each Series and Schroder hereby accepts such appointment, all in accordance
with the terms and conditions of this Agreement. In connection therewith, the
Trust has delivered to Schroder copies of its Trust Instrument, the Trust's
Registration Statement and all amendments thereto filed pursuant to the 1940 Act
(the "Registration Statement"), and the current Parts A and B of each Series
(collectively, as currently in effect and as amended or supplemented, the
"Prospectus"), all in such manner and to such extent as may from time to time be
authorized by the Trust's Board of Trustees (the "Board"), and shall promptly
furnish Schroder with all amendments of or supplements to the foregoing.
SECTION 2. FURNISHING OF EXISTING ACCOUNTS AND RECORDS.
The Trust shall promptly turn over to Schroder such of the accounts
and records previously maintained by or for it as are necessary for Schroder to
perform its functions under this Agreement. The Trust authorizes Schroder to
rely on such accounts and records turned over to it and hereby indemnifies and
will hold Schroder, its successors and assigns, harmless of and from any and all
expenses, damages, claims, suits, liabilities, actions, demands and losses
whatsoever arising out of or in connection with any error, omission, inaccuracy
or other deficiency of such accounts and records or in the failure of the Trust
to provide any portion of such or to provide any information needed by Schroder
to knowledgeably perform its functions.
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SECTION 3. ADMINISTRATIVE DUTIES
(a) Subject to the direction and control of the Board and in
cooperation with the Adviser, Schroder shall provide, or oversee, as applicable,
administrative services necessary for the Trust's operations with respect to
each Series except those services that are the responsibility of the Adviser or
the Series' custodian or transfer agent, all in such manner and to such extent
as may be authorized by the Board.
(b) With respect to the Trust and each Series, as applicable,
Schroder shall:
(i) oversee (A) the preparation and maintenance by the
Adviser and the Trust's subadministrator, custodian,
interestholder record keeper, dividend disbursing agent and fund
accountant (or if appropriate, prepare and maintain) in such
form, for such periods and in such locations as may be required
by applicable law, of all documents and records relating to the
operation of the Trust required to be prepared or maintained by
the Trust or its agents pursuant to applicable law; (B) the
reconciliation of account information and balances among the
Adviser and the Trust's custodian, transfer agent, dividend
disbursing agent, interestholder record keeper and fund
accountant; (C) the transmission of purchase and redemption
orders for Shares; (D) the notification to the Adviser of
available finds for investment; and (E) the performance of fund
accounting, including the calculation of the net asset value of
the Shares;
(ii) oversee the performance of administrative and
professional services rendered to the Trust by others, including
its subadministrator, custodian, transfer agent, interestholder
record keeper, dividend disbursing agent and fund accountant as
well as legal, auditing and shareholder servicing and other
services performed for each Series;
(iii) oversee the preparation and the printing of the periodic
updating of the Registration Statement and Prospectus, tax
returns, and reports to interestholders, the Securities and
Exchange Commission (the "SEC") and state securities commissions;
(iv) oversee the preparation of proxy and information
statements and any other communications to interestholders;
(v) at the request of the Board, provide the Trust with
adequate general office space and facilities and provide persons
suitable to the Board to serve as officers of the Trust;
(vi) provide the Trust, at the Trust's request, with the
services of persons who are competent to perform such supervisory
or administrative functions as are necessary for effective
operation of the Trust;
(vii) oversee the preparation, filing and maintenance the
Trust's governing documents, including the Trust Instrument and
minutes of meetings of Trustees and interestholders;
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(viii) oversee with the cooperation of the Trust's counsel, the
Adviser and other relevant parties, preparation and dissemination
of materials for meetings of the Board;
(ix) oversee, and if required, monitor sales of Shares and
ensure that such Shares are properly and duly registered with the
SEC and applicable state securities commissions;
(x) oversee the calculation of performance data for
dissemination to information services covering the investment
company industry, for sales literature of the Trust and other
appropriate purposes;
(xi) oversee the determination of the amount of, and supervise
distributions to interestholders; and
(xii) advise the Trust and its Board on matters concerning the
Trust and its affairs.
(c) Schroder shall oversee the preparation and maintenance, or cause
to be prepared and maintained, records in such form for such periods and in such
locations as may be required by applicable regulations, all documents and
records relating to the services provided to the Trust pursuant to this
Agreement required to be maintained pursuant to the 1940 Act, rules and
regulations of the SEC, the Internal Revenue Service and any other national,
state or local government entity with jurisdiction over the Trust. The accounts
and records pertaining to the Trust which are in possession of Schroder, or an
entity subcontracted by Schroder, shall be the property of the Trust. The Trust,
or the Trust's authorized representatives, shall have access to such accounts
and records at all times during Schroder's, or its subcontractor's, normal
business hours. Upon the reasonable request of the Trust, copies of any such
accounts and records shall be provided promptly by Schroder to the Trust or the
Trust's authorized representatives. In the event the Trust designates a
successor to any of Schroder's obligations under this agreement, Schroder shall,
at the expense and direction of the Trust, transfer to such successor all
relevant books, records and other data established or maintained by Schroder, or
its subcontractor, under this Agreement.
SECTION 4. STANDARD OF CARE
(a) Schroder, in performing under the terms and conditions of this
Agreement, shall use its best judgment and efforts in rendering the services
described herein, and shall incur no liability for its status under this
agreement or for any reasonable actions taken or omitted in good faith. As an
inducement to ▇▇▇▇▇▇▇▇' s undertaking to render these services, the Trust hereby
agrees to indemnifies and hold harmless Schroder, its employees, agents,
officers and directors, from any and all loss, liability and expense, including
any legal expenses, arising out of Schroder's performance under this Agreement,
or status, or any act or omission of Schroder, its employees, agents, officers
and directors; provided that this indemnification shall not apply to Schroder's
actions taken or failures to act in cases of Schroder's own bad faith, willful
misconduct or gross negligence in the performance of its duties under this
Agreement, and further provided, that Schroder shall give the Trust notice and
reasonable opportunity to defend against any such loss, claim, damage, liability
or expense in the name of the Trust or Schroder, or both. The Trust will be
entitled to assume the defense of any suit brought to enforce any such claim or
demand, and to retain counsel of good standing chosen by the Trust
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and approved by Schroder, which approval shall not be withheld unreasonably. In
the event the Trust does elect to assume the defense of any such suit and retain
counsel of good standing approved by Schroder, the defendant or defendants in
such suit shall bear the fees and expenses of any additional counsel retained by
any of them; but in case the Trust does not elect to assume the defense of any
such suit, or in case Schroder does not approve of counsel chosen by the Trust
or Schroder has been advised that it may have available defenses or claims which
are not available or conflict with those available to the Trust, the Trust will
reimburse Schroder, its employees, agents, officers and directors for the fees
and expenses of any one law firm retained as counsel by Schroder or them.
Schroder may, at any time, waive its right to indemnification under this
agreement and assume its own defense. The provisions of paragraphs (b) through
(d) of this Section 4 should not in any way limit the foregoing:
(b) Schroder may rely upon the advice of the Trust or of counsel, who
may be counsel for the Trust or counsel for Schroder, and upon statements of
accountants, brokers and other persons believed by it in good faith to be expert
in the matters upon which they are consulted, and Schroder shall not be liable
to anyone for any actions taken in good faith upon such statements.
(c) Schroder may act upon any oral instruction which it receives and
which it believes in good faith was transmitted by the person or persons
authorized by the Board of the Trust to give such oral instruction. Schroder
shall have no duty or obligation to make any inquiry or effort of certification
of such oral instruction.
(d) ▇▇▇▇▇▇▇▇ shall not be liable for any action taken in good faith
reliance upon any written instruction or certified copy of any resolution of the
Board of the Trust, and Schroder may rely upon the genuineness of any such
document or copy thereof reasonably believed in good faith by Schroder to have
been validly executed.
(e) Schroder may rely and shall be protected in acting upon any
signature, instruction, request, letter of transmittal, certificate, opinion of
counsel, statement, instrument, report, notice, consent, order, or other paper
document believed by it to be genuine and to have been signed or presented by
the purchaser, Trust or other proper party or parties.
SECTION 5. EXPENSES
Subject to any agreement by Schroder or other person to reimburse any
expenses of the Trust that relate to any Series, the Trust shall be responsible
for and assume the obligation for payment of all of its expenses, including: (a)
the fee payable under Section 6 hereof; (b) any fees payable to the Adviser; (c)
any fees payable to Schroder; (d) expenses at issue, repurchase and redemption
of shares; (e) interest charges, taxes and brokerage fees and commissions; (f)
premiums of insurance for the Trust, its Trustees and officers and fidelity bond
premiums; (g) fees, interest charges and expenses of third parties, including
the Trust's custodian, transfer agent, dividend disbursing agent and fund
accountant; (h) telecommunications expenses; (i) auditing, legal and compliance
expenses; (j) costs of forming the Trust and maintaining its existence; (k) to
the extent permitted by the 1940 Act, costs of preparing the Trust's
registration statement, subscription application forms and interestholder
reports and delivering them to existing and prospective interestholders; (l)
costs of maintaining books of original entry for portfolio and fund accounting
and other required books and accounts, of calculating the net asset value of
shares of the Trust and of preparing tax returns; (m) costs of reproduction,
stationery and supplies; (n) fees and expenses of the Trust's Trustees; (o)
compensation of the Trust's officers and employees who are not employees of the
Adviser
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or Schroder or their respective affiliated persons and costs of other personnel
(who may be employees of the Adviser, Schroder or their respective affiliated
persons) performing services for the Trust; (p) costs of Trustee meetings; (q)
SEC registration fees and related expenses; (r) state or foreign securities laws
registration fees and related expenses; and (s) fees and out-of-pocket expenses
payable to each investment adviser under any investment advisory or similar
agreement.
SECTION 6. COMPENSATION
(a) In consideration of the services performed by Schroder under this
Agreement, the Trust will pay Schroder, with respect to each Series, a fee at
the annual rate, as listed in APPENDIX B hereto. Such fee shall be accrued by
the Trust daily and shall be payable monthly in arrears on the first day of each
calendar month for services performed under this agreement during the prior
calendar month. If the fees payable pursuant to this provision begin to accrue
before the end of any month or if this Agreement terminates before the end of
any month, the fees for the period from that date to the end of that month or
from the beginning of that month to the date of termination, as the case may be,
shall be prorated according to the proportion that the period bears to the full
month in which the effectiveness or termination occurs. Upon the termination of
this Agreement, the Trust shall pay to Schroder such compensation as shall be
payable prior to the effective date of such termination.
(b) In the event that this Agreement is terminated, Schroder shall be
reimbursed for reasonable charges and disbursements associated with promptly
transferring to its successor as designated by the Trust the original or copies
of all accounts and records maintained by Schroder under this agreement, and
cooperating with, and providing reasonable assistance to its successor in the
establishment of the accounts and records necessary to carry out the successor's
or other person's responsibilities.
(c) Notwithstanding anything in this Agreement to the contrary,
Schroder and its affiliated persons may receive compensation or reimbursement
from the Trust with respect to (i) the provision of services on behalf of the
Series in accordance with any distribution plan adopted by the Trust pursuant to
Rule 12b-1 under the 1940 Act or (ii) the provision of shareholder support or
other services, including fund accounting services.
SECTION 7. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the date first above
written with respect to each Series of the Trust then existing and shall
relate to every other Series as of the later of the date on which the Trust's
Registration Statement relating to the shares of such Series becomes effective
or the Series commences operations.
(b) This Agreement shall continue in effect for twelve months and,
thereafter, shall be automatically renewed each year for an additional term of
one year.
(c) This Agreement may be terminated with respect to a Series at any
time, without the payment of any penalty, (i) by the Board on 60 days' written
notice to Schroder or (ii) by Schroder on 60 days' written notice to the Trust.
Upon receiving notice of termination by Schroder, the Trust shall use its best
efforts to obtain a successor administrator. Upon receipt of written notice from
the Trust of the appointment of a successor, and upon payment to Schroder of all
fees owed through the effective termination date, and reimbursement for
reasonable charges and disbursements, Schroder shall promptly transfer to the
successor administrator the original or copies of all accounts and records
maintained by Schroder under this agreement including, in the case of records
maintained on computer systems, copies of such records in machine-
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readable form, and shall cooperate with, and provide reasonable assistance to,
the successor administrator in the establishment of the accounts and records
necessary to carry out the successor administrator's responsibilities. For so
long as Schroder continues to perform any of the services contemplated by this
Agreement after termination of this Agreement as agreed to by the Trust and
Schroder, the provisions of Sections 4 and 6 hereof shall continue in full force
and effect.
SECTION 8. ACTIVITIES OF SCHRODER
(a) Except to the extent necessary to perform Schroder's obligations
under this Agreement, nothing herein shall be deemed to limit or restrict the
right of Schroder, or any affiliate of Schroder, or any employee of the
Schroder, to engage in any other business or to devote time and attention to the
management or other aspects of any other business, whether of a similar or
dissimilar nature, or to render services of any kind to any other corporation,
firm, individual or association.
(b) Schroder may subcontract any or all of its functions or
responsibilities pursuant to this Agreement to one or more corporations, trusts,
firms, individuals or associations, which may be affiliates of Schroder, who
agree to comply with the terms of this Agreement. Schroder may pay those persons
for their services, but no such payment will increase ▇▇▇▇▇▇▇▇' s compensation
from the Trust.
SECTION 9. COOPERATION WITH INDEPENDENT ACCOUNTANTS.
Schroder shall cooperate, if applicable, with the Trust's independent
public accountants and shall take reasonable action to make all necessary
information available to such accountants for the performance of their duties.
SECTION 10. SERVICE DAYS.
Nothing contained in this Agreement is intended to or shall require
Schroder, in any capacity under this agreement, to perform any functions or
duties on any day other than a business day of the Trust or of a Series.
Functions or duties normally scheduled to be performed on any day which is not a
business day of the Trust or of a Series shall be performed on, and as of, the
next business day, unless otherwise required by law.
SECTION 11. NOTICES.
Any notice or other communication required by or permitted to be given
in connection with this Agreement shall be in writing and shall be delivered in
person, or by first-class mail, postage prepaid, or by overnight or two-day
private mail service to the respective party. Notice to the Trust shall be given
as follows or at such other address as the Trust may designate in writing:
▇▇▇▇▇▇▇▇ Capital Funds
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Notice to Schroder shall be given as follows or at such other address
as Schroder may designate
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in writing:
Schroder Fund Advisors Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Notices and other communications received by the parties at the
addresses listed above shall be deemed to have been properly given.
SECTION 12. LIMITATION OF INTERESTHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Series shall not
be liable for any obligations of the Trust or of the Series under this
Agreement, and Schroder agrees that, in asserting any rights or claims under
this Agreement, it shall look only to the assets and property of the Trust or
the Series to which Schroder's rights or claims relate in settlement of such
rights or claims, and not to the Trustees of the Trust or the shareholders of
the Series.
SECTION 13. MISCELLANEOUS
(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(b) This Agreement may be executed in two or more counterparts, each
of which, when so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same instrument.
(c) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(d) Section and Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(e) This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Trust without the written
consent of Schroder, or by Schroder, without the written consent of the Trust
authorized or approved by a resolution of the Board.
(f) This Agreement shall be governed by the laws of the State of New
York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
▇▇▇▇▇▇▇▇ CAPITAL FUNDS
/s/▇▇▇▇▇▇▇▇▇ ▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Title: President
SCHRODER FUND ADVISORS INC.
/s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
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APPENDIX A
SERIES OF THE TRUST
Schroder Global Growth Portfolio
Schroder Asian Growth Fund Portfolio
Schroder Japan Portfolio
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APPENDIX B
ADMINISTRATION FEES
Fee As % of the Average Annual
Series of the Trust Daily Net Assets of the Series
------------------- ------------------------------
Schroder Global Growth Portfolio 0.15%
Schroder Asian Growth Fund Portfolio 0.05%
Schroder Japan Portfolio 0.05%
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