Exhibit h(6)
FORM OF
GUARANTEE
GUARANTEE, dated as of ________ __, 2002 (the "Agreement"), from XXXXX
XXXXXX TRUST II, a Massachusetts business trust (the "Trust"), on behalf of its
series XXXXX XXXXXX CAPITAL PRESERVATION FUND II (the "Fund") to and for the
benefit of shareholders of the Fund (the "Shareholders").
ARTICLE I
DEFINITIONS
The terms defined in this Article I shall have the meanings provided
herein for all purposes of this Agreement, in both singular and plural form, as
appropriate.
"Business Day" means any day other than a day on which banks located in
the City of New York, New York are required or authorized by law to close or on
which the New York Stock Exchange is closed for business.
"Class of Shares" means each class of shares of beneficial interest of the
Fund designated pursuant to the Declaration of Trust.
"Covered Expenses" means, for any Class of Shares, the annual ordinary
fund operating expenses reflected in the Prospectus relating to such Class of
Shares that are covered and limited by the Expense Limitation Agreement.
"Covered Expenses" shall not include Investment-Related Costs or extraordinary
expenses such as litigation and other expenses not incurred in the ordinary
course of the Fund's business.
"Declaration of Trust" means the Trust's Amended and Restated Declaration
of Trust, dated as of September 28, 2001, as in effect from time to time.
"Distribution Per Share" means, with respect to any Class of Shares, an
amount equal to the quotient of the amount of any distribution or payment by
the Fund in respect of, or allocated to, such Class of Shares that is not a
Covered Expense or an Investment-Related Cost, and shall include, without
limitation, any distribution of income, dividends, capital gains or principal
to the Shareholders of such Class of Shares and any payment of Income Taxes
allocated to such Class of Shares, divided by the number of shares of such
Class of Shares outstanding on the date of such distribution or payment.
"Expense Limitation Agreement" means the Expense Limitation Agreement
dated as of the date hereof, between Xxxxx Xxxxxx Fund Management LLC and the
Trust on behalf of the Fund.
"Guarantee Maturity Date" means the date that is five years after the
Inception Date, but if that date is not a Business Day, the Guarantee Maturity
Date shall be the first Business Day thereafter.
"Guarantee per Share" means, with respect to any Class of Shares, (i) the
NAV for such Class of Shares at the close of business on the Transition Date
and (ii) thereafter on any Business Day, the Guarantee per Share for such Class
of Shares on the immediately preceding Business Day divided by the sum of one
plus the quotient of (A) the amount of any Distribution Per Share with respect
to such Class of Shares effective since the immediately preceding Business Day
divided by (B) the NAV for such Class of Shares at the close of business on the
day such Distribution Per Share was effective.
"Guarantee Period" means the period commencing on and including the
Inception Date to and including the Guarantee Maturity Date.
"Inception Date" means the second Business Day after the end of the
Offering Period.
"Income Taxes" means U.S. income or excise taxes that are calculated on
the net income or undistributed net income of the Fund.
"Investment-Related Costs" means interest, taxes (other than Income
Taxes), brokerage commissions, transaction fees and other investment-related
costs.
"NAV" means, with respect to any Class of Shares of the Fund, (a) on the
Transition Date, the net asset value per share of such Class of Shares
established by the Fund for such date and (b) on any date of determination
thereafter the quotient of (i) the excess of (x) the market value of the assets
allocated to that Class of Shares determined as of the close of regular trading
on the New York Stock Exchange by the Fund in the manner described in the
Prospectus with respect to such Class of Shares over (y) the market value of
any liabilities allocated to and/or associated with such Class of Shares
determined as of the close of regular trading on the New York Stock Exchange by
the Fund in the manner described in the Prospectus with respect to such Class
of Shares divided by (ii) the number of outstanding shares of that Class of
Shares at such time. The assets, income, gain, loss, expenses and liabilities
(other than those expenses and liabilities relating specifically to a Class of
Shares) of the Fund shall be allocated to each Class of Shares of the Fund on
each date of determination on a pro rata basis based on the NAV of such Class
of Shares on the preceding date of determination.
"Offering Period" means the period during which the shares of the Fund
will be offered for sale to investors as described in the Prospectus relating
to each Class of Shares.
"Prospectus" means for any Class of Shares, the prospectus and statement
of additional information pursuant to which the shares of such Class of Shares
were offered for sale, as the same may be updated and in effect from time to
time.
"Transition Date" means the Business Day after the end of the Offering
Period.
ARTICLE II
THE GUARANTEE
The Fund hereby guarantees that on the Guarantee Maturity Date, shares of
the Fund of any Class of Shares may be redeemed for an amount no less than the
Guarantee Per Share for that Class of Shares.
ARTICLE III
MISCELLANEOUS
In the event of a default of this Agreement by the Trust, no Shareholder
shall be entitled to receive more than such Shareholder's allocable share of
any recovery pursuant to any claim hereunder as determined in accordance with
the ratio that (a) the amount owing and unpaid to such Shareholder hereunder
bears to (b) the aggregate amount owing and unpaid to all Shareholders
hereunder.
Any liability of the Trust under this Agreement or in connection with the
transactions contemplated herein shall be discharged only out of the assets of
the Fund. This Agreement has been executed by an officer of the Trust acting
under the Declaration of Trust, and the obligations of the Trust under this
Agreement are not binding upon any of the Trustees, officers or Shareholders of
the Trust personally.
This Agreement may be amended at any time or from time to time by the
Trust on behalf of the Fund.
This Agreement is subject to the applicable provisions of the Investment
Company Act of 1940, as amended, and shall be construed, and the obligations,
rights and remedies hereunder shall be determined, in accordance with the laws
of the State of New York (to the extent not inconsistent with such Act).
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the Trust has executed this Agreement on behalf of the
Fund as of the day and year first above mentioned.
XXXXX XXXXXX TRUST II
On behalf of its series
Xxxxx Xxxxxx Capital Preservation Fund II
By:
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Name:
Title:
