EXHIBIT (9)(b)
XXXXXXXX CAPITAL FUNDS (DELAWARE)
SUBADMINISTRATION AGREEMENT
AGREEMENT made this 1st day of February, 1997, between Xxxxxxxx Capital
Funds (Delaware) ("Fund"), 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 Fund 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
and classes;
WHEREAS, the Fund 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 Fund.
WHEREAS, the Fund desires that the Subadministrator perform certain
administrative services for each of the series of the Fund as listed in Appendix
A hereto (each a "Series") and each class of shares of each Series (each a
"Class") 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 Fund and the Subadministrator agree as follows:
SECTION 1. APPOINTMENT. The Fund hereby appoints the Subadministrator
as subadministrator of the Fund and of each Series and any class of Shares
thereof and the Subadministrator hereby accepts such appointment, all in
accordance with the terms and conditions of this Agreement. In connection
therewith, the Fund has delivered to the Subadministrator copies of its Trust
Instrument and Bylaws, the Fund's Registration Statement and all amendments
thereto filed pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"), and the
current prospectus and statement of additional information of each Class 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 Fund'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 Fund 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 functions under this Agreement. The Fund 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 Fund
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 Fund'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 Fund, each Series and each Class thereof, as
applicable, the Subadministrator shall:
(i) oversee (A) the preparation and maintenance by the Adviser
and the Fund's custodian, transfer agent, 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 Fund
required to be prepared or maintained by the Fund or its
agents pursuant to applicable law; (B) the reconciliation of
account information and balances among the Adviser and the
Fund's custodian, transfer agent, dividend disbursing agent
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 Fund by others, including its
custodian, transfer agent and dividend disbursing agent as
well as legal, auditing and shareholder servicing and other
services performed for each Series or class thereof;
(iii)be responsible for the preparation and the printing of the
periodic updating of the Registration Statement and
Prospectus, tax returns, and reports to shareholders, 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 shareholders;
(v) at the request of the Board, provide the Fund with adequate
general office space and facilities and provide persons
suitable to the Board to serve as officers of the Fund;
(vi) provide the Fund, at the Fund'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 Fund;
(vii)prepare, file and maintain the Fund's governing documents,
including the Trust Instrument and minutes of meetings of
Trustees and shareholders;
(viii) with the cooperation of the Fund's counsel, the
Administrator, the Adviser, and other relevant parties,
prepare and disseminate materials for meetings of the Board;
(ix) 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
Fund and other appropriate purposes;
(xi) oversee the determination of the amount of, and supervise
the declaration of, dividends and other distributions to
shareholders as necessary to, among other things, maintain
the qualification of each Series as a regulated investment
company under the Internal Revenue Code of 1986, as amended,
and prepare and distribute to appropriate parties notices
announcing the declaration of dividends and other
distributions to shareholders; and
(xii)advise the Fund and its Board on matters concerning
the Fund 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 Fund 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 Fund. The
accounts and records pertaining to the Fund which are in possession of the
Subadministrator shall be the property of the Fund. The Fund, or the Fund'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 Fund, copies of any such accounts and records shall be
provided promptly by the Subadministrator to the Fund or the Fund's authorized
representatives. In the event the Fund designates a successor to any of the
Subadministrator's obligations under this agreement, the Subadministrator shall,
at the expense and direction of the Fund, transfer to
such successor all relevant books, records and other data established or
maintained by the Subadministrator under this Agreement.
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 Fund 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 Fund
notice and reasonable opportunity to defend against any such loss, claim,
damage, liability or expense in the name of the Fund or the Subadministrator, or
both. The Fund 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 Fund and approved by the Subadministrator, which approval shall not be
withheld unreasonably. In the event the Fund 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
Fund does not elect to assume the defense of any such suit, or in case the
Subadministrator does not approve of counsel chosen by the Fund 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 Fund, the Fund
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 Fund or of
counsel, who may be counsel for the Fund 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 Fund 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 Fund, 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.
(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, Fund 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 Fund that relate to any Series,
the Fund 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
Fund, its Trustees and officers and fidelity bond premiums; (g) fees, interest
charges and expenses of third parties, including the Fund's custodian, transfer
agent, dividend disbursing agent 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
Fund 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 shareholders 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 Fund and of preparing tax returns; (r) costs of
reproduction, stationery and supplies; (s) fees and expenses of the Fund's
Trustees; (t) compensation of the Fund'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 Fund; (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 Fund 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 Fund will pay the Subadministrator, with respect to
each Fund, a fee at the annual rate, as listed in Appendix B hereto. Such fee
shall be accrued by the Fund 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 Fund shall pay to the Subadministrator such compensation as shall
be payable prior to the effective date of such termination.
(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 Fund
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 Fund with respect to (i) the provision of services on
behalf of the Series in accordance with any distribution plan adopted by the
Fund 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 Fund then existing and shall relate
to every other Series as of the later of the date on which the Fund'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 Fund. Upon receiving notice of termination by the
Subadministrator, the Fund shall use its best efforts to obtain a successor
subadministrator. Upon receipt of written notice from the Fund 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 Fund 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 Fund) 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 Fund'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 Fund or of a Series. Functions or duties normally scheduled to be
performed on any day which is not a business day of the Fund 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
Fund 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 (Delaware)
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 Fund and the shareholders of each Series shall not
be liable for any obligations of the Fund 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 Fund 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 Fund or the
shareholder 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 fund without the written
consent of the Subadministrator, or by the Subadministrator, without the written
consent of the Fund 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 (DELAWARE)
By: /S/ XXXXXXXXX XXX
-----------------------
Secretary and Vice President
FORUM ADMINISTRATIVE SERVICES,
LIMITED LIABILITY COMPANY
By: Forum Advisors, Inc. as Manager
By: /S/ XXXX X. XXXXXX
------------------------
President
XXXXXXXX CAPITAL FUNDS (DELAWARE)
SUBADMINISTRATION AGREEMENT
APPENDIX A
SERIES OF THE FUND
Xxxxxxxx International Fund
Xxxxxxxx U.S. Equity Fund
Xxxxxxxx U.S. Smaller Companies Fund
Xxxxxxxx Latin American Fund
Xxxxxxxx Emerging Markets Fund Institutional Portfolio
Xxxxxxxx International Smaller Companies Fund
Xxxxxxxx Micro Cap Fund
Xxxxxxxx Emerging Markets Fund
Xxxxxxxx International Bond Fund
XXXXXXXX CAPITAL FUNDS (DELAWARE)
SUBADMINISTRATION AGREEMENT
APPENDIX B
SUBADMINISTRATION FEES
Fee As % of the Average Annual
SERIES OF THE FUND DAILY NET ASSETS OF THE SERIES
Xxxxxxxx International Fund 0.05%
Xxxxxxxx U.S. Equity Fund,
Xxxxxxxx U.S. Smaller Companies Fund,
Xxxxxxxx Latin American Fund,
Xxxxxxxx Emerging Markets Fund
Institutional Portfolio and
Xxxxxxxx Micro Cap Fund 0.10%
Xxxxxxxx International Smaller Companies Fund,
Xxxxxxxx International Bond Fund, and
Xxxxxxxx Emerging Markets Fund 0.075%
(a) The minimum administration fee per Series, except Xxxxxxxx
International Fund, Xxxxxxxx U.S. Equity Fund, Xxxxxxxx U.S. Smaller Companies
Fund, Xxxxxxxx Latin American Fund and Xxxxxxxx Emerging Markets Fund
Institutional Portfolio, is $25,000 plus $12,000 per Class for each Class of the
Series above one.
(b) During any period in which Xxxxxxxx Emerging Markets Fund
Institutional Portfolio invests all (or substantially all) of its investable
assets in a registered, open-end management investment company, or separate
Series thereof ("Core Portfolio"), the above listed fee for this Series shall be
0.05%. The Subadministrator agrees to waive this fee only after the full waiver
of fees payable by the Series or the Core Portfolio to the Adviser and the
Administrator, and then only to the extent necessary to keep the total expense
ratio for this Series (including its pro rata share of the expenses of the Core
Portfolio) at or below 1.60% of average annual daily net assets in the Series.
(c) During any period in which Xxxxxxxx U.S. Smaller Companies Fund
invests all (or substantially all) of its investable assets in a Core Portfolio,
the above listed fee for this Series shall be 0.075%.
