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)
/s/ Xxxxxxxxxx X. Xxxxx
----------------------------------------
FORUM ADMINISTRATIVE SERVICES,
LIMITED LIABILITY COMPANY
/s/ Xxxx X. Xxxxxx
----------------------------------------
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 Global Asset Allocation 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 and
Xxxxxxxx Emerging Markets Fund
Institutional Portfolio 0.10%
Xxxxxxxx International Smaller Companies Fund and
Xxxxxxxx Global Asset Allocation 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 the 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 0.05%.
