EXHIBIT 9(B)
XXXXXXXX CAPITAL FUNDS
SUBADMINISTRATION AGREEMENT
AGREEMENT made this 1st day of February, 1997, between Xxxxxxxx Capital
Funds ("Trust"), a business trust organized under the laws of the State of
Delaware with its principal place of business at Two Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxx 00000, and Forum Administrative Services, Limited Liability Company
("Subadministrator"), a limited liability company organized under the laws of
the State of Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940 as amended ("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 Xxxxxxxx Capital Management International Inc. (the "Adviser")
and Administrative Services Agreement with Xxxxxxxx Fund Advisers Inc. (the
"Administrator"), pursuant to which the Adviser and Administrator provide
certain management and administrative services for the Trust.
WHEREAS, the Trust desires that the Subadministrator 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 or the Administrator, and the
Subadministrator 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 the Subadministrator agree as
follows:
SECTION 1. APPOINTMENT. The Trust hereby appoints the Subadministrator
as subadministrator of the Trust and of each Series and the Subadministrator
hereby accepts such appointment, all in accordance with the terms and conditions
of this Agreement. In connection therewith, the Trust has delivered to the
Subadministrator 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 the Subadministrator with all amendments of or supplements to the
foregoing.
SECTION 2. FURNISHING OF EXISTING ACCOUNTS AND RECORDS. The Trust shall
promptly turn over to the Subadministrator such of the accounts and records
previously maintained by or for it as are necessary for the Subadministrator to
perform its
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functions under this Agreement. The Trust authorizes the Subadministrator to
rely on such accounts and records turned over to it and hereby indemnifies and
will hold the Subadministrator, 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
the Subadministrator to knowledgeably perform its functions.
SECTION 3. ADMINISTRATIVE DUTIES
(a) Subject to the direction and control of the Board and in
cooperation with the Adviser and the Administrator, the Subadministrator shall
provide administrative services necessary for the Trust's operations with
respect to each Series except those services that are the responsibility of the
Adviser, the Administrator or the Series' custodian or transfer agent, all in
such manner and to such extent as may be authorized by the Board and requested
by the Administrator.
(b) With respect to the Trust and each Series, as applicable, the
Subadministrator shall:
(i) oversee (A) the preparation and maintenance by the Adviser
and the Trust's custodian, interestholder record keeper 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, interestholder record keeper and fund accountant;
(C) the transmission of purchase and redemption orders for
Shares; (D) the notification to the Adviser of available
funds 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
custodian and interestholder record keeper as well as legal,
auditing and shareholder servicing and other services
performed for each Series;
(iii) be responsible for 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 and state securities
commissions;
(iv) be responsible for the preparation of proxy and information
statements and any other communications to interestholders;
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(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) prepare, file and maintain the Trust's governing documents,
including the Trust Instrument and minutes of meetings of
Trustees and shareholders;
(viii) with the cooperation of the Trust's counsel, the
Administrator, the Adviser, and other relevant parties,
prepare and disseminate materials for meetings of the Board;
(ix) if required, monitor sales of Shares and ensure that such
Shares are properly and duly registered with the Securities
and Exchange Commission 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 prepare and
distribute to appropriate parties notices announcing the
distributions to interestholders; and
(xii) advise the Trust and its Board on matters concerning the Trust
and its affairs.
(c) The Subadministrator shall prepare and maintain 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 Securities and Exchange Commission, 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 the Subadministrator 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 the Subadministrator's normal
business hours. Upon the reasonable request of the Trust, copies of any such
accounts and records shall be provided promptly by the Subadministrator to the
Trust or the Trust's authorized representatives. In the event the Trust
designates a successor to any of the Subadministrator's obligations under this
agreement, the Subadministrator shall, at the expense and direction of the
Trust, transfer to such successor all relevant books, records and other data
established or maintained by the Subadministrator under this Agreement.
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SECTION 4. STANDARD OF CARE.
(a) The Subadministrator, 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 the Subadministrator's undertaking to render these services,
the Trust hereby agrees to indemnify and hold harmless the Subadministrator, its
employees, agents, officers and directors, from any and all loss, liability and
expense, including any legal expenses, arising out of the Subadministrator's
performance under this Agreement, or status, or any act or omission of the
Subadministrator, its employees, agents, officers and directors; provided that
this indemnification shall not apply to the Subadministrator's actions taken or
failures to act in cases of the Subadministrator's own bad faith, willful
misconduct or gross negligence in the performance of its duties under this
Agreement; and further provided, that the Subadministrator 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 the Subadministrator,
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 and approved by the Subadministrator, 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 the
Subadministrator, 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 the
Subadministrator does not approve of counsel chosen by the Trust or the
Subadministrator 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 the Subadministrator, its employees, agents, officers and
directors for the fees and expenses of any one law firm retained as counsel by
the Subadministrator or them. The Subadministrator 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:
(a) The Subadministrator may rely upon the advice of the Trust or of
counsel, who may be counsel for the Trust or counsel for the Subadministrator,
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 the
Subadministrator shall not be liable to anyone for any actions taken in good
faith upon such statements.
(b) The Subadministrator 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. The
Subadministrator shall have no duty or obligation to make any inquiry or effort
of certification of such oral instruction.
(c) The Subadministrator 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 the Subadministrator may rely upon the
genuineness of any such document or copy thereof reasonably believed in good
faith by the Subadministrator to have been validly executed.
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(d) The Subadministrator 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 the Subadministrator
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 the Administrator;
(d) expenses of 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,
interestholder and record keeper and fund accountant; (h) fees of pricing,
interest, dividend, credit and other reporting services; (i) costs of membership
in trade associations; (j) telecommunications expenses; (l) funds transmission
expenses; (m) auditing, legal and compliance expenses; (n) costs of forming the
Trust and maintaining its existence; (o) to the extent permitted by the 1940
Act, costs of preparing and printing the Series' Prospectuses, subscription
application forms and shareholder reports and delivering them to existing
shareholders; (p) expenses of meetings of interestholders and proxy
solicitations therefore; (q) 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; (r) costs of reproduction, stationery and supplies; (s) fees and
expenses of the Trust's Trustees; (t) compensation of the Trust's officers and
employees who are not employees of the Adviser or Subadministrator or their
respective affiliated persons and costs of other personnel (who may be employees
of the Adviser, the Administrator, the Subadministrator or their respective
affiliated persons) performing services for the Trust; (u) costs of Trustee
meetings; (v) Securities and Exchange Commission registration fees and related
expenses; (w) state or foreign securities laws registration fees and related
expenses; and (x) all fees and expenses paid by the Trust in accordance with any
distribution plan adopted pursuant to Rule 12b-1 under the 1940 Act or under any
shareholder service plan or agreement.
SECTION 6. COMPENSATION.
(a) In consideration of the services performed by the Subadministrator
under this Agreement, the Trust will pay the Subadministrator, 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 the Subadministrator
such compensation as shall be payable prior to the effective date of such
termination.
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(b) In the event that this agreement is terminated, the
Subadministrator shall be reimbursed for reasonable charges and disbursements
associated with promptly transferring to its successor as designated by the
Trust or the Administrator the original or copies of all accounts and records
maintained by the Subadministrator 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, the
Subadministrator 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
and 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 the Subadministrator or (ii) by the Subadministrator on 60 days'
written notice to the Trust. Upon receiving notice of termination by the
Subadministrator, the Trust shall use its best efforts to obtain a successor
subadministrator. Upon receipt of written notice from the Trust of the
appointment of a successor, and upon payment to the Subadministrator of all fees
owed through the effective termination date, and reimbursement for reasonable
charges and disbursements, the Subadministrator shall promptly transfer to the
successor subadministrator the original or copies of all accounts and records
maintained by the Subadministrator under this agreement including, in the case
of records maintained on computer systems, copies of such records in
machine-readable form, and shall cooperate with, and provide reasonable
assistance to, the successor sub-administrator in the establishment of the
accounts and records necessary to carry out the successor sub-administrator's
responsibilities. For so long as the Subadministrator continues to perform any
of the services contemplated by this Agreement after termination of this
Agreement as agreed to by the Trust and the Subadministrator, the provisions of
Sections 4 and 6 hereof shall continue in full force and effect.
SECTION 8. ACTIVITIES OF SUB-ADMINISTRATOR. Except to the extent
necessary to perform its obligations under this Agreement, nothing herein shall
be deemed to limit or restrict the Subadministrator's right, or the right of any
of its officers, directors or employees (whether or not they are a Trustee,
officer, employee or other affiliated person of the
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Trust) 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, trust,
fund, firm, individual or association.
SECTION 9. COOPERATION WITH INDEPENDENT ACCOUNTANTS. The
Subadministrator shall cooperate 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 the Subadministrator, 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 a party may have
designated in writing, shall be deemed to have been properly given:
Xxxxxxxx Capital Funds
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Notice to the Subadministrator shall be given as follows or at such
other address as a party may have designated in writing, shall be deemed to have
been properly given:
Forum Administrative Services, Limited Liability Company
Two Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Notices and other communications received by the parties at the
addresses listed above.
SECTION 12. LIMITATION OF SHAREHOLDER 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 the Subadministrator 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 the Subadminstrator's rights or claims relate
in settlement of such rights or claims, and not to the Trustees of the Trust or
the shareholder of the Series.
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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 fund without the written
consent of the Subadministrator, or by the Subadministrator, 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.
XXXXXXXX CAPITAL FUNDS
/s/ Xxxxxxxxx Xxx
-------------------------
Xxxxxxxxx Xxx, Vice President
FORUM ADMINISTRATIVE SERVICES,
LIMITED LIABILITY COMPANY
/s/ Xxxx X.Xxxxxx
-------------------------
Xxxx X. Xxxxxx, President
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XXXXXXXX CAPITAL FUNDS
SUBADMINISTRATION AGREEMENT
APPENDIX A
SERIES OF THE FUND
International Equity Fund
Xxxxxxxx U.S. Smaller Companies Portfolio
Xxxxxxxx Emerging Markets Fund Institutional Portfolio
Xxxxxxxx International Smaller Companies Portfolio
Xxxxxxxx XX Core Portfolio
Xxxxxxxx Global Growth Portfolio
Xxxxxxxx Asian Growth Fund Portfolio
Xxxxxxxx Japan Portfolio
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XXXXXXXX CAPITAL FUNDS
SUBADMINISTRATION AGREEMENT
APPENDIX B
SUBADMINISTRATION FEES
Fee As % of the Average Annual
Series of the Trust Daily Net Assets of the Series
------------------- ------------------------------
International Equity Fund
Xxxxxxxx International Smaller Companies Portfolio
Xxxxxxxx U.S. Smaller Companies Portfolio
Xxxxxxxx XX Core Portfolio
Xxxxxxxx Global Growth Portfolio 0.075%
Xxxxxxxx Emerging Markets Fund
Institutional Portfolio 0.10%
Xxxxxxxx Asian Growth Fund Portfolio
Xxxxxxxx Japan Portfolio 0.05%
The minimum administration fee per Series is $25,000.
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