SUB-ADMINISTRATION AGREEMENT
Agreement dated as of June 1, 1999, among Xxxxxxxx Fund
Advisors Inc. (the "Administrator"), Xxxxxxxx Capital Funds, Xxxxxxxx Capital
Funds (Delaware) and Xxxxxxxx Series Trust II (hereinafter "The Xxxxxxxx Capital
Funds Family" or the "Trusts") and State Street Bank and Trust Company, a
Massachusetts trust company (the "Bank").
WHEREAS, the Trusts are registered as open-end, management
investment companies under the Investment Company Act of 1940, as amended (the
"1940 Act");
WHEREAS, the Administrator acts as administrator to the
Trusts;
WHEREAS, the Administrator and the Trusts desire to retain the
Bank to furnish certain administrative services to the Trusts, and the Bank is
willing to furnish such services, on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. APPOINTMENT OF BANK
The Administrator and the Trusts hereby appoint the Bank to
act as sub-administrator with respect to the Trusts for purposes of providing
certain administrative services for the period and on the terms set forth in
this Agreement. The Bank accepts such appointment and agrees to render the
services stated herein.
The Trusts will initially consist of the portfolio(s) and/or
class(es) of shares (each an "Investment Fund") listed in Schedule A to this
Agreement. In the event that any Trust establishes one or more additional
Investment Funds with respect to which the Administrator and the Trust wish to
retain the Bank to act as administrator hereunder, the Administrator and such
Trust shall notify the Bank in writing. Upon written acceptance by the Bank,
such Investment Fund shall become subject to the provisions of this Agreement to
the same extent as the existing Investment Funds, except to the extent that such
provisions (including those relating to the compensation and expenses payable by
the Trusts and their Investment Funds) may be modified with respect to each
additional Investment Fund in writing by the Administrator, the Trusts and the
Bank at the time of the addition of the Investment Fund.
2. DELIVERY OF DOCUMENTS
The Trusts will promptly deliver to the Bank copies of each of
the following documents and all future amendments and supplements, if any:
a. Each Trust's Declaration of Trust or comparable
document;
b. Each Trust's currently effective registration
statement under the Securities Act of 1933, as
amended (the "1933 Act"), where applicable, and the
1940 Act and each Trust's Prospectus(es) and
Statement(s) of Additional Information relating to
all
Investment Funds and all amendments and supplements
thereto as in effect from time to time;
c. Certified copies of the resolutions of the Board of
Trustees of each Trust (the "Board") authorizing (1)
the Trust to enter into this Agreement and (2)
certain individuals on behalf of the Trust to (a)
give instructions to the Bank pursuant to this
Agreement and (b) sign checks and pay expenses on
behalf of the Trust;
d. A copy of the investment advisory agreement between
each Trust and its investment adviser, including any
sub-advisory agreement between the Trust and its
investment sub-adviser, if any; and
e. Such other certificates, documents or opinions which
the Bank may, in its reasonable discretion, deem
necessary or appropriate in the proper performance of
its duties.
3. REPRESENTATIONS AND WARRANTIES OF THE BANK
The Bank represents and warrants to the Trusts that:
a. It is a Massachusetts trust company, duly organized
and existing under the laws of The Commonwealth of
Massachusetts;
b. It has the corporate power and authority to carry on
its business in The Commonwealth of Massachusetts;
c. All requisite corporate proceedings have been taken
to authorize it to enter into and perform this
Agreement;
d. No legal or administrative proceedings have been
instituted or threatened which would impair the
Bank's ability to perform its duties and obligations
under this Agreement; and
e. Its entrance into this Agreement shall not cause a
material breach or be in material conflict with any
other agreement or obligation of the Bank or any law
or regulation applicable to it.
4. REPRESENTATIONS AND WARRANTIES OF THE TRUSTS
Each Trust represents and warrants to the Bank that:
a. With respect to Xxxxxxxx Capital Funds, Xxxxxxxx
Capital Funds (Delaware) and Xxxxxxxx Series Trust
II, each is a business trust, duly organized,
existing and in good standing under the laws of the
State of Delaware;
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b. It has the corporate power and authority under
applicable laws and under its Declaration of Trust
and by-laws or comparable documents to enter into and
perform this Agreement;
c. All requisite proceedings have been taken to
authorize it to enter into and perform this
Agreement;
d. It is an investment company properly registered under
the 1940 Act;
e. A registration statement under the 1933 Act, where
applicable, and the 1940 Act has been filed and will
be effective and remain effective during the term of
this Agreement. Each Trust also warrants to the Bank
that as of the effective date of this Agreement, all
necessary filings under the securities laws of the
states in which the Trust offers or sells its shares
have been made;
f. No legal or administrative proceedings have been
instituted or threatened which would impair the
Trust's ability to perform its duties and obligations
under this Agreement;
g. Its entrance into this Agreement will not cause a
material breach or be in material conflict with any
other agreement or obligation of the Trust or any law
or regulation applicable to it; and
h. As of the close of business on the date of this
Agreement, the Trust is authorized to issue shares of
beneficial interest in the authorized amounts as set
forth in Schedule A to this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF THE ADMINISTRATOR
The Administrator represents and warrants to the Bank that:
a. It is a corporation, duly organized, existing and in
good standing under the laws of The State of New
York;
b. It has the power and authority under New York law and
by its charter and by-laws to enter into and perform
this Agreement;
c. All requisite corporate proceedings have been taken
to authorize it to enter into and perform this
Agreement;
d. No legal or administrative proceedings have been
instituted or threatened which would impair the
Administrator's ability to perform its duties and
obligations under this Agreement; and
e. Its entrance into this Agreement shall not cause a
material breach or be in material conflict with any
other agreement or obligation of the Administrator
or any law or regulation applicable to it.
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6. ADMINISTRATION SERVICES
The Bank shall provide the following services, in each case,
subject to the control, supervision and direction of the Trusts and the
Administrator and the review and comment by each Trust's and the Administrator's
auditors and legal counsel and in accordance with procedures which may be
established from time to time among a Trust, the Administrator and the Bank:
a. Oversee the determination of each Investment Fund's
net asset value in accordance with each Investment
Fund's policy as adopted from time to time by the
Board;
b. Prepare on a timely basis each Investment Fund's
federal, state and local income tax returns for
review by the Investment Fund's independent
accountants and filing by each Investment Fund's
treasurer;
c. Review the calculation of, submit for approval by
officers of each Investment Fund and arrange for
payment of each Investment Fund's expenses;
d. Prepare on a timely basis for review and approval by
officers of each Investment Fund financial
information for each Investment Fund's semi-annual
and annual reports, proxy statements and other
communications with shareholders required or
otherwise to be sent to Investment Fund shareholders,
and arrange for the printing and dissemination of
such reports and communications to shareholders;
e. Prepare on a timely basis reports relating to the
business and affairs of each Investment Fund as may
be mutually agreed upon and not otherwise prepared by
each Investment Fund's investment advisor, custodian,
legal counsel or independent accountants;
f. Make such reports and recommendations to the Board
concerning the performance of the independent
accountants as the Board may reasonably request;
g. Make such reports and recommendations to the Board
concerning the performance and fees of each
Investment Fund's custodian and transfer and dividend
disbursing agent ("Transfer Agent") as the Board may
reasonably request or deem appropriate;
h. Oversee and review calculations of fees paid to each
Investment Fund's investment advisor, custodian and
Transfer Agent;
i. Consult with each Investment Fund's officers,
independent accountants, legal counsel, custodian and
Transfer Agent in establishing the accounting
policies of the Investment Fund;
j. Respond to, or refer to each Investment Fund's
officers or Transfer Agent, shareholder inquiries
relating to the Investment Fund;
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k. Provide periodic testing of portfolios to assist each
Investment Fund's investment advisor in complying
with Investment Fund investment limitations as may be
mutually agreed upon;
l. Blue Sky notice filing and reporting;
m. Oversee the maintenance of certain books and records
of each Trust as required under Rule 31a-1(b)(4) of
the 1940 Act;
n. Prepare on a timely basis for review by an officer or
the counsel for each Trust the Trust's periodic
financial report required to be filed with the
Securities and Exchange Commission (the "SEC") on
Form N-SAR and Form N-1A and such other reports,
forms or filings, as may be mutually agreed upon;
o. Provide periodic testing of the Investment Funds to
assist the Administrator in complying with Internal
Revenue Code mandatory qualification requirements,
the requirements of the Investment Company Act and
Trust prospectus limitations as may be mutually
agreed upon and provide on a timely basis quarterly
reports to the Trustees as to such compliance;
p. Prepare on a timely basis recommendations of
distributions to be made by each of the Investment
Funds in order to comply with the requirements
outlined in paragraph (o) above, for review by the
Investment Funds' auditors and officers;
q. Utilize the Aggregate Portfolio Allocation System to
provide partnership tax allocations;
LIMITED LEGAL SUPPORT:
r. Consult on Blue Sky matters;
s. Provide assistance with developing and maintaining
an SEC filing calendar; and
t. Process insurance renewals.
The Bank may provide additional legal services to the
Administrator and the Trusts for an additional fee as described in the Fee
Schedule. The Bank shall provide the office facilities and the personnel
required by it to perform the services contemplated herein.
The Bank will take reasonable steps to ensure that its
products (and those of its third-party suppliers) reflect the available state of
the art technology to offer products that are Year 2000 compliant, including,
but not limited to, century recognition of dates, calculations that correctly
compute same century and multi-century formulas and date values, and interface
values that reflect the date issues arising between now and the next one hundred
years. If any changes are required, the Bank will make the changes to its
products at no cost to the Administrator or the Trusts and in a commercially
reasonable time frame and will require third-party suppliers to do likewise.
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6. FEES; EXPENSES; EXPENSE REIMBURSEMENT
The Bank shall receive from each Trust such compensation for
the Bank's services provided pursuant to this Agreement as may be agreed to from
time to time in a written fee schedule approved by the parties and initially set
forth in the Fee Schedule to this Agreement. The fees are accrued daily and
billed monthly and shall be due and payable upon receipt of the invoice. Upon
the termination of this Agreement before the end of any month, the fee for the
part of the month before such termination shall be prorated according to the
proportion which such part bears to the full monthly period and shall be payable
upon the date of termination of this Agreement. In addition, each Trust shall
reimburse the Bank for its reasonable out-of-pocket costs incurred in connection
with its performance of this Agreement in respect of that Trust.
The Trusts agree promptly to reimburse the Bank for any
equipment and supplies specially ordered by or for the Trusts, or the
Administrator, through the Bank and for any other expenses not contemplated by
this Agreement that the Bank may incur on any Trust's or the Administrator's
behalf, at the Trust's or the Administrator's request or with any Trust's or the
Administrator's consent.
Each Trust will bear all expenses that are incurred in its
operation and not specifically assumed by the Bank. Expenses to be borne by the
Trusts, include, but are not limited to: organizational expenses; cost of
services of independent accountants and outside legal and tax counsel (including
such counsel's review of each Trust's registration statement, proxy materials,
federal and state tax qualification as a regulated investment company and other
reports and materials prepared by the Bank under this Agreement); cost of any
services contracted for by the Trusts directly from parties other than the Bank;
cost of trading operations and brokerage fees, commissions and transfer taxes in
connection with the purchase and sale of securities for the Trusts; investment
advisory fees; taxes, insurance premiums and other fees and expenses applicable
to each Trust's operation; costs incidental to any meetings of shareholders
including, but not limited to, legal and accounting fees, proxy filing fees and
the costs of preparation, filing (including edgarization), printing and mailing
of any proxy materials; costs incidental to Board meetings, including fees and
expenses of Board members; the salary and expenses of any officer,
director/trustee or employee of the Trusts; costs incidental to the preparation,
filing (including edgarization), printing and distribution of each Trust's
registration statements and any amendments thereto, and shareholder reports;
cost of typesetting and printing of prospectuses; cost (other than internal
costs of the Bank in its performance of its obligations under this Agreement) of
preparation and filing of each Trust's tax returns, Form N-1A and Form N-SAR,
and all notices, registrations and amendments associated with applicable federal
and state tax and securities laws; all applicable registration fees and filing
fees required under federal and state securities laws; fidelity bond and
directors' and officers' liability insurance; and cost of independent pricing
services used in computing each Trust's net asset value.
The Bank is authorized to and may employ or associate with such person
or persons as the Bank may deem desirable to assist it in performing its duties
under this Agreement; provided, however, that the compensation of such person or
persons shall be paid by the Bank and that the Bank shall be as fully
responsible to the Trusts for the acts and omissions of any such person or
persons as it is for its own acts and omissions.
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7. INSTRUCTIONS AND ADVICE
At any time, the Bank may apply to any officer of the Trusts
or the Administrator for instructions and may consult with its own outside legal
counsel or outside counsel for the Trusts or the independent accountants for the
Trusts at the expense of the Trusts, with respect to any matter arising in
connection with the services to be performed by the Bank under this Agreement.
The Bank shall not be liable, and shall be indemnified by the Trusts, for any
action taken or omitted by it in good faith in reliance upon any such
instructions or advice or upon any paper or document reasonably believed by it
to be genuine and to have been signed by the proper person or persons. The Bank
shall not be held to have notice of any change of authority of any person until
receipt of written notice thereof from the Trusts. Nothing in this paragraph
shall be construed as imposing upon the Bank any obligation to seek such
instructions or advice of counsel or independents accountants, or to act in
accordance with such advice or the Administrator when received.
8. LIMITATION OF LIABILITY AND INDEMNIFICATION
The Bank shall be responsible for the performance of only such
duties as are set forth in this Agreement and, except as otherwise provided
under Section 6, shall have no responsibility for the actions or activities of
any other party, including other service providers. The Bank shall have no
liability for any error of judgment or mistake of law or for any loss or damage
resulting from the performance or nonperformance of its duties hereunder except
to the extent caused by or resulting from the negligence or willful misconduct
of the Bank, its officers or employees. Neither party shall be liable for any
special, indirect, incidental, or consequential damages of any kind whatsoever
(including, without limitation, attorneys' fees) under any provision of this
Agreement (including this Section 8) or for any such damages arising out of any
act or failure to act hereunder. In any event, the Bank's liability under this
Agreement shall be limited to two and one half (2 1/2) times its total annual
compensation earned and fees paid hereunder during the preceding twelve months
for any liability or loss suffered by the Administrator, the Trusts or the
Investment Funds, including, but not limited to, any liability relating to
qualification of any Trust as a regulated investment company or any liability
relating to any Trust's compliance with any federal or state tax or securities
statute, regulation or ruling. If this Agreement has been in effect for less
than twelve months, all fees paid during the period that the Agreement has been
in effect plus all fees payable for the remainder of the initial twelve month
period shall be used to calculate the limitation of liability hereunder.
The Bank shall not be responsible or liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its control, including
without limitation, work stoppage, power or other mechanical failure, computer
virus, natural disaster, governmental action or communication disruption.
The Administrator and the Trusts shall indemnify and hold the
Bank harmless from all loss, cost, damage and expense, including reasonable fees
and expenses for counsel, incurred by the Bank resulting from any claim, demand,
action or suit in connection with the Bank's acceptance of this Agreement, any
action or omission by it in the performance of its duties hereunder, or as a
result of acting upon any instructions reasonably believed by it to have been
duly authorized by the Administrator and the Trusts, provided that this
indemnification shall not apply to actions or omissions of the Bank, its
officers or employees in cases of its or their own negligence or willful
misconduct.
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The Administrator and the Trusts will be entitled to
participate at their own expense in the defense, or, if it so elects, to assume
the defense of any suit which might be the subject of the indemnification
provided above. In the event the Administrator and/or the Trusts elect to assume
the defense of any suit and retain such counsel, the Bank or any other person
entitled to such indemnification, named as defendant or defendants in the suit,
may retain additional counsel but shall bear the fees and expenses of such
counsel unless the Administrator or the Trusts have specifically authorized the
retaining of such counsel.
The indemnification contained herein shall survive the
termination of this Agreement.
9. CONFIDENTIALITY
The Bank agrees that, except as otherwise required by law or
in connection with any required disclosure to a banking or other regulatory
authority, it will keep confidential the terms of this Agreement and all records
and information in its possession relating to the Trusts or their shareholders
or shareholder accounts and will not disclose the same to any person except at
the request or with the written consent of the Trusts.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS; RECORDS
The Trusts assumes full responsibility for complying with all
securities, tax, commodities and other laws, rules and regulations applicable to
it.
In compliance with the requirements of Rule 31a-3 under the
1940 Act, the Bank agrees that all records which it maintains for the Trusts
shall at all times remain the property of the Trusts, shall be readily
accessible during normal business hours, and shall be promptly surrendered upon
the termination of the Agreement or otherwise on written request. The Bank
further agrees that all records which it maintains for the Trusts pursuant to
Rule 31a-1 under the 1940 Act will be preserved for the periods prescribed by
Rule 31a-2 under the 1940 Act unless any such records are earlier surrendered as
provided above. Records shall be surrendered in usable machine-readable form.
11. SERVICES NOT EXCLUSIVE
The services of the Bank to the Trusts are not to be deemed
exclusive, and the Bank shall be free to render similar services to others. The
Bank shall be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Trusts from time to time, have no
authority to act or represent the Trusts in any way or otherwise be deemed an
agent of the Trusts.
12. TERM, TERMINATION AND AMENDMENT
This Agreement shall become effective on the date of its
execution and shall remain in full force and effect from the effective date for
an initial term of three years from the effective date and shall automatically
continue in full force and effect after such initial term unless any party
terminates this Agreement by written notice to the other parties at least sixty
(60) days prior to the expiration of the initial term. Any party may terminate
this Agreement at any time after the initial term upon at least sixty (60) days'
prior written notice to the other parties. In addition, a Trust may terminate
this Agreement without penalty as to any Investment Fund during the initial term
upon at least sixty (60) days' prior written notice to
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the other parties; provided, however, that, in the event of any such termination
(other than following material breach by the Bank of this Agreement not remedied
within 30 days or following any assignment of this Agreement by the Bank which
is not reasonably acceptable to a Trust) the Trust, on behalf of such Investment
Fund, will pay to the Bank an amount equal to the difference between (i) the
fees that would have been payable by such Investment Fund for the period prior
to such termination if the fee schedule for the third year of the initial term
had been in effect during such period and (ii) the fees actually paid by that
Investment Fund for the period. Termination of this Agreement with respect to
any given Investment Fund shall in no way affect the continued validity of this
Agreement with respect to any other Investment Fund. Upon termination of this
Agreement, the Trusts shall pay to the Bank such compensation and any
reimbursable expenses as may be due under the terms hereof as of the date of
such termination, including reasonable out-of-pocket expenses associated with
such termination. This Agreement may be modified or amended from time to time by
mutual written agreement of the parties hereto.
13. NOTICES
Any notice or other communication authorized or required by
this Agreement to be given to any party shall be in writing and deemed to have
been given when delivered in person, by overnight courier or by confirmed
facsimile, or by certified mail, return receipt requested, to the following
address (or such other address as a party may specify by written notice to the
other): If to the Administrator: Xxxxxxxx Fund Advisors Inc., 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxxxxx X. Xxxxx and Xxxxxxxxx
Xxx, fax: 000-000-0000; if to the Trusts: c/x Xxxxxxxx Capital Management
International Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attn:
Xxxxxxxxx Xxx; fax: 000-000-0000; if to the Bank: State Street Bank and Trust
Company, 0000 Xxxxxxxx Xxxxx, XXX-0, Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000, Attn:
Fund Administration Legal Department, fax: 000-000-0000.
14. NON-ASSIGNABILITY
This Agreement shall not be assigned by any party hereto
without the prior consent in writing of the other two parties, except that the
Bank may assign this Agreement to a successor of all or a substantial portion of
its business, or to a party controlling, controlled by or under common control
with the Bank.
15. SUCCESSORS
This Agreement shall be binding on and shall inure to the
benefit of the Trusts, the Administrator and the Bank and their respective
successors and permitted assigns.
16. ENTIRE AGREEMENT
This Agreement contains the entire understanding among the
parties hereto with respect to the subject matter hereof and supersedes all
previous representations, warranties or commitments regarding the services to be
performed hereunder whether oral or in writing.
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17. WAIVER
The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver nor
shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver must be in
writing signed by the waiving party.
18. LIMITATION OF LIABILITY OF TRUSTEES AND SHAREHOLDERS
Notice is hereby given that this Agreement is executed on
behalf of the Trustees of each Trust as Trustees and not individually and that
the obligations of this Agreement are not binding upon any of the Trustees or
Shareholders of any Trust individually but are binding only upon the assets and
property of the Investment Fund in question.
19. SEVERABILITY
If any provision of this Agreement is invalid or
unenforceable, the balance of the Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance it shall nevertheless
remain applicable to all other persons and circumstances.
20. GOVERNING LAW
This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
21. REPRODUCTION OF DOCUMENTS
This Agreement and all schedules, exhibits, attachments and
amendments hereto may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties hereto
all/each agree that any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding, whether or not the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
22. RIGHTS AND OBLIGATIONS OF THE FUNDS SEVERAL
The parties agree that this Agreement shall constitute a
separate and discrete agreement among the Bank, the Administrator and each
Investment Fund, as if set out in a separate writing executed by the Bank, the
Administrator and a Trust on behalf of each Investment Fund alone.
Notwithstanding any other provision of this Agreement, no Investment Fund shall
have any obligation or incur any liability (including without limitation by way
of indemnification) in respect of any action, omission or course of dealing of
or in respect of, any other Investment Fund. Any reference in this Agreement to
a "Trust," the "Trusts" or an "Investment Fund" shall be construed so as to give
effect to the foregoing.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below as of the date first written above.
XXXXXXXX CAPITAL FUNDS
XXXXXXXX CAPITAL FUNDS (DELAWARE)
XXXXXXXX SERIES TRUST II
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
XXXXXXXX FUND ADVISORS, INC.
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
STATE STREET BANK AND TRUST COMPANY
By:
----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
----------------------------------
Title: Senior Vice President
----------------------------------
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SUB-ADMINISTRATION AGREEMENT
SCHEDULE A
LISTING OF INVESTMENT FUNDS AND AUTHORIZED SHARES
INVESTMENT FUND AUTHORIZED SHARES
XXXXXXXX SERIES TRUST II Unlimited
- Xxxxxxxx All-Asia Fund
XXXXXXXX CAPITAL FUNDS Unlimited
- Xxxxxxxx Global Growth Portfolio
- Xxxxxxxx Japan Portfolio
- Xxxxxxxx Asian Growth Fund Portfolio
- Xxxxxxxx XX Core Portfolio
XXXXXXXX CAPITAL FUNDS (DELAWARE) Unlimited
- Xxxxxxxx US Smaller Companies Fund
- Xxxxxxxx International Fund
- Xxxxxxxx International Smaller Companies Fund
- Xxxxxxxx Emerging Markets Fund Institutional
Portfolio
- Xxxxxxxx Emerging Markets Fund
- Xxxxxxxx Micro Cap Fund
- Xxxxxxxx U.S. Diversified Growth Fund
- Xxxxxxxx Greater China Fund
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SUB-ADMINISTRATION AGREEMENT
XXXXXXXX CAPITAL FUNDS FAMILY
SCHEDULE B
NOTICE FILING WITH
STATE SECURITIES AUTHORITIES
AT THE SPECIFIC DIRECTION OF THE TRUSTS, THE BANK WILL PREPARE REQUIRED
DOCUMENTATION AND MAKE NOTICE FILINGS IN ACCORDANCE WITH THE SECURITIES LAWS OF
EACH JURISDICTION IN WHICH TRUST SHARES ARE TO BE OFFERED OR SOLD PURSUANT TO
INSTRUCTIONS GIVEN TO THE BANK BY THE TRUSTS.
THE TRUSTS SHALL BE SOLELY RESPONSIBLE FOR THE DETERMINATION (I) OF THOSE
JURISDICTIONS IN WHICH NOTICE FILINGS ARE TO BE SUBMITTED AND (II) THE NUMBER OF
TRUST SHARES TO BE PERMITTED TO BE SOLD IN EACH SUCH JURISDICTION. IN THE EVENT
THAT THE BANK BECOMES AWARE OF (A) THE SALE OF TRUST SHARES IN A JURISDICTION IN
WHICH NO NOTICE FILING HAS BEEN MADE OR (B) THE SALE OF TRUST SHARES IN EXCESS
OF THE NUMBER OF TRUST SHARES PERMITTED TO BE SOLD IN SUCH JURISDICTION, THE
BANK SHALL REPORT SUCH INFORMATION TO THE TRUSTS, AND IT SHALL BE THE
RESPONSIBILITY OF THE TRUST IN QUESTION TO DETERMINE APPROPRIATE CORRECTIVE
ACTION AND INSTRUCT THE BANK WITH RESPECT THERETO.
The Blue Sky services provided by the Bank hereunder shall consist of the
following:
1. Filing of the Trusts' Initial Notice Filings, as directed by the Trusts;
2. Filing of the Trusts' renewals and amendments as required;
3. Filing of amendments to the Trust's registration statement where required;
4. Filing Trust sales reports where required;
5. Payment at the expense of the Trusts of all Trust Notice Filing fees;
6. Filing the Prospectuses and Statements of Additional
Information of the Trusts and any amendments or supplements
thereto where required;
7. Filing of annual reports, supplements and stickers, and proxy
statements where required; and
8. The performance of such additional services as the Bank and
the Trusts may agree upon in writing.
Unless otherwise specified in writing by the Bank, Blue Sky services by the Bank
shall not include determining the availability of exemptions under a
jurisdiction's blue sky law. Any such determination shall be made by the Trusts
or their legal counsel. In connection with the services described herein, the
Trusts shall issue in favor of the Bank a power of attorney to submit Notice
Filings on behalf of the Trust, which power of attorney shall be substantially
in the form of Exhibit I attached hereto.
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EXHIBIT I
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of , 1998 that Xxxxxxxx Capital Funds
with principal offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (the
"Trust") makes, constitutes, and appoints STATE STREET BANK AND TRUST COMPANY
(the "Bank") with principal offices at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx its lawful attorney-in-fact for it to do as if it were itself
acting, the following:
1. REGISTRATION OF TRUST SHARES. The power to register shares of the Trust
in each jurisdiction in which Trust's shares are offered or sold and in
connection therewith the power to prepare, execute, and deliver and
file any and all Trust applications, including without limitation,
applications to register shares, consents, including consents to
service of process, reports, including without limitation, all periodic
reports, claims for exemption, or other documents and instruments now
or hereafter required or appropriate in the judgment of the Bank in
connection with the registration of Trust shares.
2. AUTHORIZED SIGNERS. Pursuant to this Limited Power of Attorney,
individuals holding the titles of Officer, Blue Sky Manager, or Senior
Blue Sky Bank at the Bank shall have authority to act on behalf of the
Trust with respect to item 1 above.
The execution of this limited power of attorney shall be deemed coupled with an
interest and shall be revocable only upon receipt by the Bank of such
termination of authority. Nothing herein shall be construed to constitute the
appointment of the Bank as or otherwise authorize the Bank to act as an officer,
director or employee of the Trust.
IN WITNESS WHEREOF, the Trust has caused this Agreement to be executed in its
name and on its behalf by and through its duly authorized officer, as of the
date first written above.
XXXXXXXX CAPITAL FUNDS
By:
-------------------
Name:
-----------------
Title:
----------------
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EXHIBIT I
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of , 1998 that Xxxxxxxx Capital Funds
(Delaware) with principal offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000 (the "Trust") makes, constitutes, and appoints STATE STREET BANK AND
TRUST COMPANY (the "Bank") with principal offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx its lawful attorney-in-fact for it to do as if it were
itself acting, the following:
1. REGISTRATION OF TRUST SHARES. The power to register shares of the Trust
in each jurisdiction in which Trust's shares are offered or sold and in
connection therewith the power to prepare, execute, and deliver and
file any and all Trust applications, including without limitation,
applications to register shares, consents, including consents to
service of process, reports, including without limitation, all periodic
reports, claims for exemption, or other documents and instruments now
or hereafter required or appropriate in the judgment of the Bank in
connection with the registration of Trust shares.
2. AUTHORIZED SIGNERS. Pursuant to this Limited Power of Attorney,
individuals holding the titles of Officer, Blue Sky Manager, or Senior
Blue Sky Bank at the Bank shall have authority to act on behalf of the
Trust with respect to item 1 above.
The execution of this limited power of attorney shall be deemed coupled with an
interest and shall be revocable only upon receipt by the Bank of such
termination of authority. Nothing herein shall be construed to constitute the
appointment of the Bank as or otherwise authorize the Bank to act as an officer,
director or employee of the Trust.
IN WITNESS WHEREOF, the Trust has caused this Agreement to be executed in its
name and on its behalf by and through its duly authorized officer, as of the
date first written above.
XXXXXXXX CAPITAL FUNDS (DELAWARE)
By:
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Name:
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Title:
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15
EXHIBIT I
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, as of , 1998 that Xxxxxxxx Series
Trust II with principal offices at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000 (the "Trust") makes, constitutes, and appoints STATE STREET BANK AND
TRUST COMPANY (the "Bank") with principal offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx its lawful attorney-in-fact for it to do as if it were
itself acting, the following:
1. REGISTRATION OF TRUST SHARES. The power to register shares of the Trust
in each jurisdiction in which Trust's shares are offered or sold and in
connection therewith the power to prepare, execute, and deliver and
file any and all Trust applications, including without limitation,
applications to register shares, consents, including consents to
service of process, reports, including without limitation, all periodic
reports, claims for exemption, or other documents and instruments now
or hereafter required or appropriate in the judgment of the Bank in
connection with the registration of Trust shares.
2. AUTHORIZED SIGNERS. Pursuant to this Limited Power of Attorney,
individuals holding the titles of Officer, Blue Sky Manager, or Senior
Blue Sky Bank at the Bank shall have authority to act on behalf of the
Trust with respect to item 1 above.
The execution of this limited power of attorney shall be deemed coupled with an
interest and shall be revocable only upon receipt by the Bank of such
termination of authority. Nothing herein shall be construed to constitute the
appointment of the Bank as or otherwise authorize the Bank to act as an officer,
director or employee of the Trust.
IN WITNESS WHEREOF, the Trust has caused this Agreement to be executed in its
name and on its behalf by and through its duly authorized officer, as of the
date first written above.
XXXXXXXX SERIES TRUST II
By:
-------------------
Name:
------------------
Title:
-----------------
16
