Exhibit h(4)
GUARANTEE
GUARANTEE, dated as of March 29, 2002 (the "Agreement"), from XXXXX
XXXXXX TRUST II, a Massachusetts business trust (the "Trust"), on behalf of its
series XXXXX XXXXXX CAPITAL PRESERVATION FUND (the "Fund") to and for the
benefit of shareholders of the Fund (the "Shareholders").
ARTICLE I
DEFINITIONS
The terms defined in this Article I shall have the meanings provided
herein for all purposes of this Agreement, in both singular and plural form, as
appropriate.
"Business Day" means any day other than a day on which banks located in
the City of New York, New York are required or authorized by law to close or on
which the New York Stock Exchange is closed for business.
"Class of Shares" means each class of shares of beneficial interest of
the Fund designated pursuant to the Declaration of Trust.
"Covered Expenses" means, for any Class of Shares, the annual ordinary
fund operating expenses reflected in the Prospectus relating to such Class of
Shares that are covered and limited by the Expense Limitation Agreement.
"Covered Expenses" shall not include Investment-Related Costs or extraordinary
expenses such as litigation and other expenses not incurred in the ordinary
course of the Fund's business.
"Declaration of Trust" means the Trust's Amended and Restated
Declaration of Trust, dated as of September 28, 2001, as in effect from time to
time.
"Distribution Per Share" means, with respect to any Class of Shares, an
amount equal to the quotient of the amount of any distribution or payment by the
Fund in respect of, or allocated to, such Class of Shares that is not a Covered
Expense or an Investment-Related Cost, and shall include, without limitation,
any distribution of income, dividends, capital gains or principal to the
Shareholders of such Class of Shares and any payment of Income Taxes allocated
to such Class of Shares, divided by the number of shares of such Class of Shares
outstanding on the date of such distribution or payment.
"Expense Limitation Agreement" means the Expense Limitation Agreement
dated as of the date hereof, between Xxxxx Xxxxxx Fund Management LLC and the
Trust on behalf of the Fund.
"Guarantee Maturity Date" means the date that is five years after the
Inception Date, but if that date is not a Business Day, the Guarantee Maturity
Date shall be the first Business Day thereafter.
"Guarantee per Share" means, with respect to any Class of Shares, (i)
the NAV for such Class of Shares at the close of business on the Transition Date
and (ii) thereafter on any Business Day, the Guarantee per Share for such Class
of Shares on the immediately preceding Business Day divided by the sum of one
plus the quotient of (A) the amount of any Distribution Per Share with respect
to such Class of Shares effective since the immediately preceding Business Day
divided by (B) the NAV for such Class of Shares at the close of business on the
day such Distribution Per Share was effective.
"Guarantee Period" means the period commencing on and including the
Inception Date to and including the Guarantee Maturity Date.
"Inception Date" means the second Business Day after the end of the
Offering Period.
"Income Taxes" means U.S. income or excise taxes that are calculated on
the net income or undistributed net income of the Fund.
"Investment-Related Costs" means interest, taxes (other than Income
Taxes), brokerage commissions, transaction fees and other investment-related
costs.
"NAV" means, with respect to any Class of Shares of the Fund, (a) on
the Transition Date, the net asset value per share of such Class of Shares
established by the Fund for such date and (b) on any date of determination
thereafter the quotient of (i) the excess of (x) the market value of the assets
allocated to that Class of Shares determined as of the close of regular trading
on the New York Stock Exchange by the Fund in the manner described in the
Prospectus with respect to such Class of Shares over (y) the market value of any
liabilities allocated to and/or associated with such Class of Shares determined
as of the close of regular trading on the New York Stock Exchange by the Fund in
the manner described in the Prospectus with respect to such Class of Shares
divided by (ii) the number of outstanding shares of that Class of Shares at such
time. The assets, income, gain, loss, expenses and liabilities (other than those
expenses and liabilities relating specifically to a Class of Shares) of the Fund
shall be allocated to each Class of Shares of the Fund on each date of
determination on a pro rata basis based on the NAV of such Class of Shares on
the preceding date of determination.
"Offering Period" means the period during which the shares of the Fund
will be offered for sale to investors as described in the Prospectus relating to
each Class of Shares.
"Prospectus" means for any Class of Shares, the prospectus and
statement of additional information pursuant to which the shares of such Class
of Shares were offered for sale, as the same may be updated and in effect from
time to time.
"Transition Date" means the Business Day after the end of the Offering
Period.
ARTICLE II
THE GUARANTEE
The Fund hereby guarantees that on the Guarantee Maturity Date, shares
of the Fund of any Class of Shares may be redeemed for an amount no less than
the Guarantee Per Share for that Class of Shares.
ARTICLE III
MISCELLANEOUS
In the event of a default of this Agreement by the Trust, no
Shareholder shall be entitled to receive more than such Shareholder's allocable
share of any recovery pursuant to any claim hereunder as determined in
accordance with the ratio that (a) the amount owing and unpaid to such
Shareholder hereunder bears to (b) the aggregate amount owing and unpaid to all
Shareholders hereunder.
Any liability of the Trust under this Agreement or in connection with
the transactions contemplated herein shall be discharged only out of the assets
of the Fund. This Agreement has been executed by an officer of the Trust acting
under the Declaration of Trust, and the obligations of the Trust under this
Agreement are not binding upon any of the Trustees, officers or Shareholders of
the Trust personally.
This Agreement may be amended at any time or from time to time by the
Trust on behalf of the Fund.
This Agreement is subject to the applicable provisions of the
Investment Company Act of 1940, as amended, and shall be construed, and the
obligations, rights and remedies hereunder shall be determined, in accordance
with the laws of the State of New York (to the extent not inconsistent with such
Act).
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the Trust has executed this Agreement on behalf of
the Fund as of the day and year first above mentioned.
XXXXX XXXXXX TRUST II
On behalf of its series
Xxxxx Xxxxxx Capital Preservation Fund
By: /s/ Xxx Xxxxxx
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Name: Xxx Xxxxxx
Title: President
