EXHIBIT 9(B)
XXXXXXXX SERIES TRUST II
SUBADMINISTRATION AGREEMENT
THIS AGREEMENT dated as of theAgreement, dated and effective as of
December 9, 1997, between Xxxxxxxx Series Trust II, a Delaware business trust
(the "Trust") with its principal place of business at Two Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxx 00000, and Forum Administrative Services, LLC (the
"Subadministrator"), a limited liability company organized under Delaware law.
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 in separate series and
classes;
WHEREAS, the Trust has entered into an Investment Advisory Agreement with
Xxxxxxxx Capital Management International Inc. (the "Adviser")and an
Administration Agreement with Xxxxxxxx Fund Advisors Inc. (The "Administrator"),
pursuant to which the Adviser and Administrator provide certain management and
administrative services for the Trust;
WHEREAS, the Fund desires that the Subadministrator perform certain
administrative services for each series of the Trust as listed in Appendix A
hereto (each, a "Fund") and each class of shares of each Fund, if any, and the
Subadministrator is willing to provide these 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 Fund 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 Trust has delivered to the Subadministrator copies of its Trust
Instrument and the Trust's registration statement on Form N-1A, 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 Fund and any
class thereof (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 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 Administrator, the Subadministrator shall
provide, or oversee, as applicable, administrative services necessary for the
Trust's operations with respect to each Fund except those services that are the
responsibility of the Adviser,
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Administrator or the Trust's 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, each Fund and any class thereof, as
applicable, the Subadministrator shall:
(i) oversee: (A) the preparation and maintenance by the
Adviser and the Trust's custodian, transfer agent, dividend
disbursing agent and fund accountant 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 or a Fund 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 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, transfer agent and dividend
disbursing agent as well as legal, auditing and shareholder
servicing and other services performed for each Fund 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 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 Adviser, the Administrator and other relevant parties,
preparation and dissemination of materials for Board meetings;
(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 (or calculate)
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 (or determine) the
amount of, and supervise the payment of, dividends and other
distributions to shareholders as necessary to, among other
things, maintain the qualification of each Fund as a regulated
investment company under the Internal
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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 Trust and its Board on matters
concerning the affairs of the Trust or a Fund.
(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
that are in possession of the Subadministrator, or an entity subcontracted by
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, 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 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, or its subcontractor, 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 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 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,such approval not to which
approval shall be unreasonably withheldnot 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 that 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
counsellaw 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.
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(b) The Subadministrator may act upon any oral instruction that it
receives and that it believes in good faith was transmitted by the person or
persons authorized by the Board 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, 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, 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 Fund,
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) the cost (or appropriate share
thereof) of reasonable premiums for errors and omissions and other liability
insurance policy of FFSI; (g) premiums of insurance for the Trust, its Trustees
and officers and fidelity bond premiums; (hg) fees, interest charges and
expenses of third parties, including the Trust's custodian, transfer agent,
dividend disbursing agent and fund accountant; (ih) fees of pricing, interest,
dividend, credit and other reporting services; (ij) costs of membership in trade
associations; (kj) 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 Funds' Prospectuses, application forms and
shareholder reports and delivering them to existing shareholders; (p) expenses
of meetings of shareholders and proxy solicitations therefor; (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 a
Fund 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, the Administrator or Sub- the Subadministrator or their respective
affiliated persons, and costs of other personnel (who may be employees of the
Adviser, the Administrator, or 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.
In the event that this Agreement is terminated, the Subadministrator
shall be reimbursed for reasonable charges and disbursements associated with
promptly transferring to the Administrator or successor subadministrator the
original or copies of all accounts and records maintained by the
Subadministrator hereunder, and cooperating with, and providing reasonable
assistance to, the Administrator or successor subadministrator in the
establishment of the accounts and records necessary to carry out the
Administrator's or successor subadministrator's responsibilities.
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 Fund, a fee at the annual rate 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. (a) For the administrative services provided by
the Sub-Administrator pursuant to this AgreementIf the fees payable pursuant to
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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 Sub- 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
Trust 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 a Fund or a class thereof in accordance with any distribution plan
adopted by the Trust with respect to such Fund or class, pursuant to Rule 12b-1
under the 1940 Act: or (ii) the provision of shareholder support or other
services, including shareholder subaccounting services or (iii) service as a
Director or officer of the Fund.
SECTION 7. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the date first above
written with respect to each Fund of the Trust then existing and shall relate to
every other fund created as of the later of the date on which the Trust's
Registration Statement relating to the shares of such fund becomes effective or
the fund 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 Fund 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
administrator. 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
administrator 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
administrator in the establishment of the accounts and records necessary to
carry out the successor 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 XXXXXXXX ADVISORS
(a) Except to the extent necessary to perform the Subadministrator's
obligations under this Agreement, nothing herein shall be deemed to limit or
restrict the right of the Subadministrator, or any affiliate of the
Subadministrator, or any employee of the Subadministrator, 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.
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(b) The Subadministrator 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 the
Subadministrator, who agree to comply with the terms of this Agreement. The
Subadministrator may pay those persons for their services, but no such payment
will increase the Subadministrator's compensation from the Trust.
SECTION 9. COOPERATION WITH INDEPENDENT AUDITORS. The Subadministrator
shall cooperate, if applicable, with the Trust's independent auditors and shall
take reasonable action to make all necessary information available to such
auditors 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 Fund or class thereof. Functions or duties normally
scheduled to be performed on any day that is not a business day of the Trust or
of a Fund 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:
Xxxxxxxx Series Trust II
Two Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Notice to the Subadministrator shall be given as follows or at such
other address as Xxxxxxxx Advisors may designate in writing:
Forum Administrative Services, LLC
Two Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
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 SHAREHOLDER AND TRUSTEE LIABILITY
The Trustees of the Trust and the shareholders of each Fund shall not
be liable for any obligations of the Trust or of the Fund 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 Fund to which the Subadministrator'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 Fund.
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.
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(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 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 SERIES TRUST II
By: /S/ XXXXXXXXX X. XXXXX
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Xxxxxxxxx X. Xxxxx
Vice President
FORUM ADMINISTRATIVE SERVICES, LLC
By: /S/ XXXXX X. XXXXXXXXX
-------------------------------
Xxxxx X Xxxxxxxxx,
Managing Director
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XXXXXXXX SERIES TRUST II
ADMINISTRATION AGREEMENT
APPENDIX A
FUNDS OF THE TRUST
Xxxxxxxx All-Asia Fund
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XXXXXXXX SERIES TRUST II
ADMINISTRATION AGREEMENT
APPENDIX A
ADMINISTRATION FEES
Fee as % of the Average Annual
FUNDS OF THE TRUST DAILY NET ASSETS OF THE FUND
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Xxxxxxxx All-Asia Fund 0.05%
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