DATED 16th February 1998
XXXXXXXXX FUNDS
and
XXXXXXXXX INVESTMENT MANAGEMENT LIMITED
AGREEMENT FOR THE SUPPLY OF
INVESTMENT MANAGEMENT AND ADMINISTRATION SERVICES
PRINCIPAL
INVESTMENT MANAGEMENT AND
ADMINISTRATION SERVICES AGREEMENT
between
XXXXXXXXX FUNDS, incorporated under the
Open-Ended Investment Companies (Investment
Companies with Variable Capital) Regulations 1996
and having its head office at Xxxxxxx Xxxxx, 00
Xxxxxx Xxxxxxx, Xxxxxxxxx XX0 0XX
(hereinafter called "the Company") of the First
Part
and
XXXXXXXXX INVESTMENT MANAGEMENT LIMITED,
incorporated under the Companies Acts and having
its registered office at Xxxxxxxx Xxxxx, Xxxxxx
XX0X 0XX (hereinafter called "the ACD") of the
Second Part
CONSIDERING THAT
(A) The Company is an open ended investment company with variable capital
registered in Scotland and incorporated under the Open-Ended Investment
Companies (Investment Companies with Variable Capital) Regulations 1996
(the "ECA Regulations") and is regulated by the Financial Services
Authority (the "FSA") pursuant to The Financial Services (Open-Ended
Investment Companies) Regulations 1997 (the "FSA Regulations").
(B) The Company is an umbrella company under the FSA Regulations and has been
established with three proposed initial sub-funds, known as Templeton
Balanced Fund ("TBF") and Xxxxxxxxx Growth Fund ("TGF"), each with four
classes of shares, Alpha Income, Alpha Accumulation, Beta Income and Beta
Accumulation Shares, and Templeton Value Fund ("TVF") with two classes of
shares, Alpha Income and Alpha Accumulation Shares, and it is intended
that the Company establish further sub-funds
(C) The ACD is a member of the Investment Management Regulatory Organisation
Limited ("IMRO") and the Personal Investment Authority ("the PIA") and is
regulated by IMRO and the PIA in carrying on its business.
(D) As the person named in the application under Regulation 7 of the ECA
Regulations as the authorised corporate director of the Company, the ACD
is deemed by Regulation 28(1) of the ECA Regulations to be appointed as a
first authorised corporate director of the Company on the coming into
effect of the authorisation order made by the PSA in respect of the
Company under Regulation 9 of the ECA Regulations.
(E) The Company wishes the ACD to act, and the ACD is willing to act, as the
authorised corporate director of the Company on the terms and conditions
hereinafter set forth.
NOW THEREFORE THE PARTIES HAVE AGREED AND HEREBY AGREE as follows:
1. DEFINITIONS
In this Agreement including the Recitals hereto, the following words and
expressions shall, where not inconsistent in the context, have the
following meanings respectively: Associate means in relation to TWI either
(i) any person or company (a) with an interest (direct or indirect) of 20
per cent or more of the ordinary share capital of TWI or (b) who is able
to exercise, or control the exercise of 20 per cent or more of the voting
rights in TWI or (ii) any person or company controlled by a person who
meets one or both of the descriptions given in (i) above or (iii) any
company (a) 20 per cent or more of whose ordinary share capital is owned
directly or indirectly by TWI or (b) 20 per cent or more of whose voting
rights can be exercised directly or indirectly by TWI or (iv) any director
or officer of TWI or of any company falling within paragraphs (i), (ii) or
(iii) above;
Assets of the Funds means the assets of TGF, TVF and TBF and those of the
assets from time to time of any other sub-funds of the Company for which
the ACD acts as an investment manager and as detailed in the Schedule and
where there is only one sub-fund for which the ACD so acts it shall mean
that sub-fund only;
the Board means the board of directors of the Company;
Commencement Date means the 9th day of February 1998;
Depositary of the Company means Chase Manhattan Trustees Limited;
Funds means any sub-funds of the Company in respect of which the ACD acts
as an investment manager, including TGF, TVF and TBF and where there is
only one sub-fund for which the ACD so acts it shall mean that sub-fund
only;
Investment Adviser means the investment adviser of any of the sub-funds
of the Company;
Schedule means the schedule annexed and executed as relative thereto;
TWI means Xxxxxxxxx Worldwide, Inc.
2. COMMENCEMENT DATE
This Agreement shall commence on the Commencement Date.
3. AUTHORISED CORPORATE DIRECTOR
(A) As sole director of the Company, in terms of Regulation 28(4)(a) of the
ECA Regulations, the business of the Company is to be managed by the ACD.
(B) The Company hereby agrees that the ACD shall act as the authorised
corporate director of the Company and the ACD agrees to act as the
authorised corporate director thereof and to manage the business of the
Company in accordance with Regulation (28)(4)(a) of the ECA Regulations
and to carry out the functions described in Regulation 6.02.2 and
6.02.3 of the FSA Regulations and to exercise and discharge all the
powers, duties, discretions and functions and provide the investment
management and other services and facilities to the Company as set out
in this Agreement.
(C) The powers, discretions and functions exerciseable and the duties to be
discharged by the ACD under this Agreement shall be exercised and
discharged in accordance with the Instrument of Incorporation of the
Company and all applicable laws and regulations for the time being in
force, including the ECA Regulations and the FSA Regulations and so as to
ensure compliance with the Financial Services Xxx 0000 from time to time.
(D) The ACD shall continue to act as the authorised corporate director of the
Company unless and until termination in accordance with the provisions
hereof.
4. INVESTMENT MANAGER
(A) As part of its functions as the authorised corporate director of the
Company, the ACD shall, on the terms of this Agreement, act as the
investment manager of the Company in respect of the Funds subject
(where the ACD is not the sole Director of the Company) to the overall
supervision of the Board and, without prejudice to the generality of
the foregoing, to carry out the investment management of the Assets of
the Funds in accordance with the investment objectives to be followed
in respect of each of the Funds including the investment, realisation
and re-investment of any Assets of the Funds and the reclaiming of, or
enabling, the Depositary of the Company to reclaim all refunds due of
tax by way of deductions from dividends or interest or otherwise in
respect of the Assets of the Funds.
(B) The ACD shall have complete discretion, without prior reference to the
Company, to make purchases and sales of investments and otherwise to
manage the Assets of the Funds in such manner as the ACD may determine
upon.
(C) The ACD shall in carrying out its investment management of the Assets of
the Funds:
(i) act in accordance with the Instrument of Incorporation of the
Company governing each of the Funds, the ECA Regulations, the FSA
Regulations and the most recently published prospectus of the
Company;
(ii) keep under surveillance and review the Assets of the Funds and the
making of decisions as to the constituents of the Assets of the
Funds in such a way as appear to the ACD likely to secure that the
objectives of each of the Funds are attained;
(iii) instruct the Depositary of the Company from time to time in writing
as to how rights attaching to the ownership of the Assets of the
Funds are to be exercised;
(iv) give instructions to agents and the Depositary of the Company, as
appropriate, as to the acquisition, holding or disposal of the
Assets of the Funds;
(v) keep under review the investment objective and policy of each of
the Funds;
(vi) supply the Company forthwith with such information concerning the
management of the Assets of the Funds as it may reasonably
request;
(vii) take all reasonable steps and exercise all due diligence to avoid
the Assets of the Funds being used or invested contrary to the ECA
Regulations and the FSA Regulations and take action forthwith to
rectify any breach of any provision in the ECA Regulations and the
FSA Regulations.
(D) The ACD hereby agrees to act as an investment manager to the Funds and to
manage the Assets of the Funds on such terms.
5. ADMINISTRATION SERVICES
As part of its functions as the authorised corporate director of the
Company, the following administration services and facilities shall be
provided by the ACD:
(A) providing at its office premises at Xxxxxxx Xxxxx, 00 Xxxxxx Xxxxxxx,
Xxxxxxxxx XX0 0XX or at such other address as may be agreed by the Company
a room suitably equipped and furnished for any meetings of the Board (or
Committees of the Board) (but so that the Company shall not be entitled to
the exclusive use thereof);
(B) accommodating the registered office of the Company at the ACD's offices
and the safekeeping of any seal of the Company on behalf of the Company,
the receiving and dealing with all applications, notices and
correspondence and arranging for the provision of all facilities for the
holding of any meetings of directors and shareholders of the Company and
the taking of minutes thereof;
(C) the marketing and promotion of each sub-fund of the Company;
(D) acting as the registrar of the Company;
(E) keeping the records, books of account of the Company as are necessary
for compliance with ECA Regulations and the FSA Regulations, and
carrying out all financial, accountancy, secretarial, clerical and
other administrative services of any kind necessary for the conduct of
the affairs of the Company including, as the registrar of the Company,
the preparation and forwarding to shareholders of the Company of all
cheques, statements, notices and other documents which the Company is
required to issue or serve;
(F) keeping a daily record of the shares in each sub-fund of the Company,
including the type of such shares, which have been acquired or disposed
of, and of the balance of any acquisitions and disposals;
(G) keeping under review the Instrument of Incorporation and prospectus of the
Company with a view to ensuring that they are in compliance with the law,
including the ECA Regulations and the FSA Regulations and from time to
time making or proposing any changes therein that are necessary or
desirable;
(H) giving all necessary instructions to the Company for the issue and
cancellation of shares in each sub-fund of the Company and carrying out on
the Company's behalf the issue and cancellation of shares in each sub-fund
of the Company and carrying out all administration in connection with
dealing in shares in each sub-fund;
(I) promptly obtaining and preparing, or procuring the obtaining and
preparation of valuations of the assets and liabilities of the Company
and of its sub-funds and carrying out or procuring the carrying out of
valuations on each normal business day on which the London Stock
Exchange Limited is open for business of each sub-fund of the Company
and computing the prices at which shares may be issued, repurchased or
cancelled on any dealing day in accordance with the FSA Regulations and
giving notice to the Company of all such valuations, pricing and yield
calculations;
(J) keeping or causing to be kept books of account and records in respect
of all transactions for the account of the Company;
(K) at the required intervals, causing to be made up and audited a statement
showing the amount or amounts of income to be allocated and distributed;
(L) liaising with and, if requested to do so, providing all information in
connection with the management of the Company to the auditors for the time
being of the Company;
(M) carrying out such bank and other reconciliations in connection with the
Company as are required from time to time;
(N) making all returns and ensuring that all reclaim procedures are dealt with
in connection with stamp duty due or refundable for transactions in shares
in each sub-fund of the Company and ensuring that any stamp duty liability
is paid;
(O) carrying out all necessary share reconciliations and debtors' and
creditors' reconciliations as are required to be carried out;
(P) making such returns and liaising generally with the Association of Unit
Trusts and Investment Funds in respect of the Company;
(Q) in connection with share dealing carried out on the Company's behalf,
performing any identification procedures and maintaining records which are
required by virtue of the statutory and other requirements relating to
money laundering;
(R) carrying out such other accounting and administrative tasks as are
ordinarily formed by the authorised corporate director of an authorised
open-ended investment company under the ECA and FSA Regulations and
performing all other duties properly to be performed by the authorised
corporate director of an authorised open-ended investment company at law
and under the Instrument of Incorporation of Company;
(S) providing all necessary equipment and personnel with a proper and adequate
standard of proficiency and experience to enable the ACD to carry out its
functions under this Agreement;
(T) maintaining (apart from the register of shareholders of the Company) all
other statutory books in accordance with the provisions of the Instrument
of Incorporation of the Company and the provisions of the ECA Regulations
and the FSA Regulations;
(U) collating the information and preparing in compliance with the ECA
Regulations and FSA Regulations the yearly, half-yearly and any other
report and accounts and statements of the Company and of each of its
sub-funds, including TBF, TGF and TVF, as required by law and arranging
for the audit and approval by the Company of the annual, half-yearly
and any other report and accounts of the Company and of each of its
sub-funds, including TBF, TGF and TVF, and the preparation of such
other reports, entries and documents as the Company or the Investment
Adviser may from time to time require and arranging for the despatch of
the same;
(V) calculating the amounts of the allocation of income and of any
distributions payments to be made by the Company on the shares of each of
its sub-funds;
(W) in conjunction with the Depositary of the Company, the opening and
supervision of bank accounts for the Company and the granting of mandates
by the Company with regard to the operation of such accounts;
(X) arranging the payment of Value Added Tax and other taxes and the recovery
of Value Added Tax and other taxes and preparing all documentation
required in connection with Va1ue Added Tax returns relating to the
Company and preparing and delivering all other returns required by law
including the preparation and filing of the annual and any other tax
returns to be submitted by the Company to the Inland Revenue;
(Y) providing the Investment Adviser with such information as may be required
with regards to the part of the assets of any sub-funds for which it is
appointed an investment adviser, that consists of cash;
(Z) keeping the Investment Adviser informed either on a weekly or such
other basis as may be agreed between the ACD and the Investment Adviser
as to the amount of the cash comprised in the assets of any sub-funds
for which it is appointed an investment adviser, at that time and as to
any sun or sums of money that at that time shall be available for
investment by the Company and likewise giving the Investment Adviser
such details of the securities and other assets and liabilities of any
sub-funds for which it is appointed an investment adviser, as the
Investment Adviser shall reasonably require;
(AA) administering the procedures for the holding of investments of the Company
by the company, firm or institutions appointed by the Depositary of the
Company to act as custodian of its investments;
(BB) convening meetings of shareholders of the Company and taking minutes
thereof;
(CC) liaising with the Depositary of the Company and the custodian of the
Company with regard to the settlement and delivery of all purchases and
sales of investments and any issues, rights, entitlements and other
matters affecting such investments;
(DD) authorising and paying sundry invoices and expenses of the Company from
time to time;
(EE) performing such other duties as may be agreed between the parties.
6. EXPENSES OF THE ACD AS THE INVESTMENT MANAGER
(A) The ACD shall provide, for the duration of this Agreement, such staff
as may be necessary to carry out its duties as investment manager
pursuant to clause 4 hereof, it being understood that the Company shall
not be entitled to the exclusive use thereof. All costs and expenses
incurred by the ACD in relation to the carrying out of its duties as
investment manager including (without prejudice to the generality of
the foregoing) the costs and expenses of (i) research, (ii) the framing
and review of the Company's investment policy, (iii) management of the
Company's investment portfolio, (iv) selection of investments, (v)
monitoring of investments and all travel, accommodation and other
out-of-pocket expenses in connection therewith and (vi) the staff
provided by the ACD and all other such managerial outlays shall be
borne and paid by the ACD.
(B) All costs, expenses, outgoings and liabilities incurred by or on behalf
of the Company by the ACD pursuant to the carrying out of its duties
hereunder shall be borne by and paid by the Company, including (without
prejudice to the generality of the foregoing) all (i) stamp and other
duties, taxes, costs, commissions, charges and fees payable in
connection with the purchase, exchange and sale of investments, (ii)
costs, charges and expenses of the Depositary of the Company or
incurred in connection with the registration of or the holding of any
investment or with the safe custody or deposit of documents of title
thereto, (iii) costs, charges, disbursements, fees and expenses
incurred in the collection of income (including expenses incurred in
obtaining tax repayments), (iv) taxation payable in respect of income
arising from investments or the holding of or dealing with investments,
(v) fees, costs and expenses of the Company's auditors, registrars and
brokers in connection with the corporate existence and corporate and
financial structure of the Company and arising out of the relations of
the Company with its shareholders and third parties, (vi) bank and
other fees and charges, (vii) repayments of all principal amounts of
indebtedness and interest, costs and expenses in relation thereto,
(viii) costs and expenses incurred by the directors (other than the
ACD) of the Company in or about the Company's business, (ix) costs and
expenses of advertising and publicity, (x) expenses of and incidental
to the holding of board meetings and general meetings of the Company
and the preparation of the report and accounts of the Company and (xi)
all fees payable to the FSA and the Registrar of Companies in respect
of the Company.
7. SOLE EMPLOYMENT OF THE ACD: THE ACD FREE TO DO BUSINESS
(A) The Company shall, for the duration of this Agreement, exclusively
employ the services of the ACD to perform the duties and render the
services described in Clauses 3, 4 and 5 hereof.
(B) The ACD shall not be precluded from carrying on the business in Great
Britain and elsewhere or from acting as an investment manager or an
authorised corporate director for any other companies or persons, whether
or not such other companies or person carry on business of a nature
similar to that of the Company, nor shall any of the directors of the ACD
present or future be precluded from acting as directors of such companies.
8. MANAGEMENT CHARGE
(A) (i) The Company shall pay to the ACD monthly in arrears on the last
business day of each month or as soon as possible thereafter a
management charge in respect of each of the sub-funds of the
Company as remuneration for its services hereunder. The rates in
the case of TBF, TGF and TVF as the initial sub-funds of the
Company, shall be as set out in the Schedule. The rate for each
subsequent sub-fund shall be set out in an amendment to the
Schedule in each case in such terms as shall be agreed between
the Company and the ACD. The ACD shall submit monthly invoices
to the Company in respect of such remuneration for each sub-fund
of the Company and shall receive payment by way of electronic
bank transfer or by such other means as may be agreed from time
to time between the Company and the ACD.
(ii) The value of the property of each sub-fund of the Company for the
purpose of determining such remuneration in respect of each sub-fund
shall be determined by reference to the valuation of each sub-fund
carried out in accordance with the FSA Regulations at the valuation
point coinciding with or immediately before the beginning of the
first dealing day during the relevant month referred to above and
shall accrue daily.
(iii) The rates of the ACD's management charge for each of the sub-funds
as set out in the Schedule hereto can be increased to not more than
the maximum rate per annum of the value of the property of each
sub-fund as set out in the Schedule (plus any Value Added Tax, or
any equivalent tax thereon) PROVIDED THAT the ACD has given not less
than 90 days written notice to the shareholders of the particular
sub-fund of its intention to make such an increase and has revised
the prospectus of the Company to reflect the proposed increase in
that amount (and 90 days must have elapsed since such revised
prospectus has become available).
(B) The amounts of remuneration to be paid to the ACD for each of the
sub-funds to be set out in the Schedule shall, if the parties fail to
agree on the relevant amount within 14 days after the end of any
relevant month, be conclusively determined by the auditors from time to
time of the Company (who shall act as experts and not as arbiters and
shall report their determination to the Company) and the Company shall
communicate the auditors' determination to the ACD and pay the
remuneration accordingly forthwith
(C) In the event of the ACD receiving any commission (including
underwriting commission), share of brokerage or other remuneration from
transactions effected in the course of provision of the services to be
provided by the ACD hereunder, the ACD shall account for the same to
the Company by contributing the same to the relevant sub-fund of the
Company and accordingly the remuneration referred to in this Clause 8
shall be neither supplemented nor abated by reason of such commission,
brokerage or other remuneration. Provided that (i) the ACD may make
and shall be entitled to retain any preliminary charge upon a sale of
shares in the Company by the ACD whether acting as a principal or by
its issuing for the Company shares in the Company as may be provided
for under the FSA Regulations and (ii) notwithstanding the foregoing
the ACD shall be entitled to retain without abatement of its
remuneration under this Agreement any remuneration receivable by it as
investment managers or advisers of or adviser to any open-ended
investment company, investment trust company, unit trust, fund or other
similar scheme operated or advised by the ACD or by any Associate of
TWI.
9. TERMINATION BY COMPANY
(A) The Company shall be entitled to terminate the appointment of the ACD in
the following circumstances:
(i) by not less than three months' notice in writing to that effect
to the ACD; or
(ii) if the ACD, as result of any action by or omission of its board
of directors, shall cease to be or be capable of carrying on an
investment business in the United Kingdom for the purposes of the
Financial Services Xxx 0000 (as that Act may from time to time be
amended or re-enacted) or shall cease to be permitted under the
IMRO Rules or PIA Rules or those of any other regulatory
authority recognised under the said Financial Services Xxx 0000
of which the ACD is a member, to carry out its functions under
this Agreement, by written notice (effective immediately)
PROVIDED THAT in the event of the ACD temporarily ceasing to be
so entitled to carry on business or to act as an investment
adviser in circumstances previously approved in writing by the
Company, such cessation will not entitle the Company to terminate
the appointment of the ACD hereunder; or
(iii) by written notice (effective immediately) from the Company (a) if
the ACD persistently fails or persistently neglects to comply with
the reasonable instructions of the Board or is guilty of fraud or of
gross professional negligence or wilful material default or (b) if
the ACD is in breach of any of its material obligations hereunder
and has failed to remedy the same within 30 days after having been
given notice requiring it to do so or (c) if without the approval of
the Company which approval shall not be unreasonably withheld, the
ACD ceases to be a subsidiary of Franklin Resources, Inc.
(iv) forthwith upon it ceasing to be a director of the Company;
(v) if there is no director other than the ACD, if a notice of
termination (effective either immediately when the notice is given
or on any subsequent time for its effect as stated in the notice) of
that appointment is given by the Depositary of the Company to the
ACD and to the Company following any of the following events-
(a) the ACD going into liquidation (except a voluntary liquidation
for the purpose of reconstruction or amalgamation upon terms
previously approved in writing by the Depositary of the
Company); or
(b) a receiver is appointed of the undertaking of the ACD or
any part thereof; or
(c) an administration order is made in relation to the ACD under
section 8 of the Insolvency Xxx 0000.
(B) Any termination under this Clause shall not take effect prior to the time
at which such a termination may take effect in accordance with regulation
15 of the ECA Regulations.
(C) If the appointment of the ACD shall be determined with effect from a
date which is not the end of a month, the auditors of the Company shall
conclusively determine (on a time apportionment basis) the amount of
remuneration payable to the ACD in accordance with Clause 8(A) hereof
for the period from the commencement of the then current monthly period
to the date of termination, and the Company shall be bound to pay to
the ACD not later than 14 days after such determination being made the
amount so determined.
10. TERMINATION BY THE ACD
(A) The ACD shall be entitled to terminate its appointment hereunder in the
following circumstances:
(i) by not less than three months' notice in writing to that effect
to the Company; or
(ii) by written notice (effective immediately) from the ACD (a) if any
resolution shall be passed for the winding up of the Company or
(b) if any order shall be made by any competent court for the
winding up of the Company for the dissolution of the Company
without winding up or (c) if a receiver is appointed over the
whole or a substantial part of the assets or undertaking of the
Company or if an administrator is appointed pursuant to the
Insolvency Xxx 0000 or (d) if the Company is unable to pay its
debts within the meaning of Section 123 of the Insolvency Xxx
0000 or (e) if the Company is in breach of any of its material
obligations hereunder and has failed to remedy the same within 30
days alter having been given notice requiring it to do so.
(B) Any termination under this Clause shall not take effect prior to the time
at which such a termination may take effect in accordance with regulation
15 of the ECA Regulations.
(C) The ACD shall not voluntarily terminate its appointment as such under
sub-Clause (A) of this Clause unless the termination is coterminous with
the commencement of the appointment of a successor authorised corporate
director of the Company.
(D) The provisions of Clause 9(C) above shall apply in relation to any such
termination or resignation by the ACD.
11. EFFECT OF TERMINATION
(A) The termination of the appointment of the ACD under Clause 9 hereof or
Clause 10 hereof:
(i) shall not affect such obligations of the ACD hereunder as are
expressed to survive such termination; and
(ii) shall be without prejudice to the completion by the ACD of
transactions already initiated for the account of the Funds and in
such circumstances the parties shall use all reasonable endeavours
to complete any transactions then in progress.
(B) Upon termination hereof by either party and for whatever reason the
Company hereby agrees if requested to do so by the ACD to commence the
procedures necessary to change its name and the name of each sub-fund to a
name unconnected with the ACD or any Associate of TWI as at the date
hereof and to use its best endeavours to obtain the consent of its
shareholders to such changes of name.
12. INDEMNTY AND LIABILITY
(A) Subject to the ECA Regulations and the FSA Regulations, but without
prejudice to any indemnity to which the ACD may otherwise be entitled,
the ACD shall be held harmless and indemnified by the Company against
all costs (including without limitation, all reasonable legal,
professional and other expenses), charges, losses and liabilities
brought against, suffered or incurred by the ACD in the proper
execution or exercise, or in the purported execution or exercise
reasonably and in good faith, of its duties, powers, authorities and
discretions as the ACD, excluding:
(a) any liability for any failure by the ACD to exercise due care and
diligence in the discharge of its functions in respect of the
Company (including any liability which by virtue of any rule of law
would otherwise attach to the ACD in respect of any negligence,
default, breach of duty or breach of trust of which the ACD may be
guilty in relation to the Company); and
(b) any liability to the extent that it is recovered from another
person;
but including (without prejudice to the generality of the foregoing):
(c) any liability incurred by the ACD in defending any proceedings
(whether civil or criminal);
(i) in which judgment is given in its favour or in which it is
acquitted; or
(ii) which are otherwise disposed of without a finding or admission
of any failure to exercise due care and diligence in the
discharge of its functions in respect of the Company (or of
any liability which by virtue of any rule of law would
otherwise attach to the ACD in respect of any negligence,
default, breach of duty or breach of trust of the ACD in
relation to the Company); and
(d) in connection with any application under the ECA Regulations
pursuant to which relief is granted to it by the Court.
(B) Subject to the ECA Regulations and the FSA Regulations, the ACD shall not
be required to take any legal action in connection with the performance of
its duties under this Agreement on behalf of the Company unless fully
indemnified to its reasonable satisfaction for losses, costs and
liabilities which are incurred or suffered by the ACD.
(C) Subject to the ECA Regulations and the FSA Regulations and without
excluding or limiting any liability which by law cannot be limited or
excluded, the ACD shall not be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not
limited to, lost profits) even if the ACD has been advised of the
likelihood of such loss or damage and regardless of whether any claim
for loss or damage is made in negligence, for breach of contract or
otherwise.
(D) The indemnity in this Clause 12 shall survive termination of the
appointment of the ACD.
13. CONFIDENTIALITY
Neither of the parties hereto shall during the continuance of this
Agreement or after its termination disclose to any person, firm or fund
whatsoever (except with the authority of the other party or unless ordered
to do so by a Court of competent jurisdiction) any information relating to
the business, investments, finances or other matters of a confidential
nature of the other party of which it may in the course of its duties
hereunder or otherwise become possessed and each party shall use all
reasonable endeavours to prevent any such disclosure as aforesaid.
14. NOTICES
Any notice or other writing required by this Agreement shall be deemed to
be duly given if deposited by hand at or posted (first class post prepaid)
or sent by facsimile transmission or telex by the party giving notice to
the address of the other party as set out above or to such other address
as may from time to time have been notified in writing to it by the other
party and any notice or letter so posted shall be deemed to have been duly
received at the expiration of 48 hours (if posted in the United Kingdom)
and 120 hours (if posted outside the United Kingdom using air mail) after
it is posted and any notice given by delivery or by facsimile transmission
or telex shall be deemed given upon delivery or transmission and in
proving service it shall be sufficient to prove that the envelope
containing the notice or other writing was properly addressed and posted
as a prepaid letter or that where it was delivered otherwise than by post
that it was delivered to the correct address, or that where it was sent by
facsimile transmission or telex it was transmitted to the correct number.
15. ASSIGNATION
The rights and obligations conferred by this Agreement shall not be
assignable by either party except with the written consent of the other
party.
consent of the other party.
16. VAT
All amounts to which the ACD is entitled under the terms and provisions of
this Agreement shall be calculated without taking into account any Value
Added Tax chargeable in respect thereof. The Company shall pay to the ACD
on demand a sum equal to Value Added Tax (if any) chargeable on any such
amount.
17. AMENDMENT
This Agreement may be amended on1y by written agreement of both parties.
18. HEADINGS
The headings given to Clauses of this Agreement are for the purpose of
reference only and shall not be deemed to affect the interpretation or
construction thereof.
19. WHOLE AGREEMENT
This Agreement constitutes the whole agreement between the parties and
there is no other agreement or arrangement subsisting between them with
regard to the obligations of the ACD hereunder.
20. LAW
This Agreement shall be governed by and construed in accordance with the
laws of Scotland: IN WITNESS WHEREOF this Agreement typewritten on this
and the eighteen preceding pages together with the Schedule annexed on
pages 20 to 21 is executed in duplicate as follows:
It is subscribed for and on behalf of the said Xxxxxxxxx Funds at Edinburgh upon
the 16th day of February Nineteen hundred and ninety eight by
/s/ X. X. Xxxxx Director
------------------
Xxxxxxxxx Investment Management
Limited, the Authorised Corporate
Director of Xxxxxxxxx Funds
Xxxxxxx Xxxxxxx Xxxxx Full Name
---------------------
before this witness
Witness' Signature /s/ Xxxx XxxXxxxxx
----------------------
Full Name (in capitals) XXXX XXXXXXXXX
Address SALTIRE COURT, 00 XXXXXX XXXXXXX
XXXXXXXXX, XX0 0XX, XXXXXXXX
/s/ Xxxxx X. Xxxxxx Secretary
---------------------
Xxxxxxxxx Investment Management
Limited, the Authorised Corporate
Director of Xxxxxxxxx Funds
Xxxxx Xxxxxxxx Xxxxxxx Xxxxxx Full Name
------------------------------
before this witness:
Witness' Signature /s/ Xxxx XxxXxxxxx
-------------------
Full Name (in capitals) XXXX XXXXXXXXX
Address SALTIRE COURT, 00 XXXXXX XXXXXXX
XXXXXXXXX, XX0 0XX, XXXXXXXX
It is subscribed for and on behalf of the said Xxxxxxxxx Investment Management
Limited at Edinburgh upon the 16th day of February Nineteen hundred and ninety
eight by
/s/ X. X. Xxxxxxxx Director
-----------------------
Xxxxxxx Xxxxx Xxxxxxxx Full Name
/s/ Xxxxxxxx Xxxxx Director
--------------------
Alasdair Xxxxxx XxxXxxxxx Xxxxx Full Name
THE SCHEDULE
referred to in Clause 8 of the foregoing Investment Management and
Administration
Services Agreement
Xxxxxxxxx Ba1anced Fund
The management charge for TBF shall be payable at the rate of one and on-half
per cent per annum (plus any Value Added Tax or any equivalent tax thereon) in
respect of that part of the property of TBF as is referable to Alpha Income and
Alpha Accumulation Shares of TBF and at the rate of one per cent per annum (plus
VAT or any equivalent tax thereon) in respect of that part of the property of
TBF as is referable to Beta Income and Beta Accumulation Shares of TBF.
Xxxxxxxxx Growth Fund
The management charge for TGF shall be payable at the rate of one and on-half
per cent per annum (plus any Value Added Tax or any equivalent tax thereon) in
respect of that part of the property of TGF as is referable to Alpha Income and
Alpha Accumulation Shares of TGF and at the rate of one per cent per annum (plus
VAT or any equivalent tax thereon) in respect of that part of the property of
TGF as is referable to Beta Income and Beta Accumulation Shares of TGF.
Xxxxxxxxx Value Fund
The management charge for TVF shall be payable at the rate of one and one-half
per cent per annum (plus any Value Added Tax or any equivalent tax thereon).
The management charge for the above Funds shall be payable at the rate of
one-twelfth thereof each month and the rate for each month shall be calculated
as follows:
(i) in the case of TBF and TGF, by reference to the net assets of the parts
thereof as are referable to Alpha Income and Alpha Accumulation Shares and
to Beta Income and Beta Accumulation Shares respectively of TBF and TGF;
and
(ii) in the case of TVF, by reference to its net assets.
The above rates of the ACD's management charge for TBF, TGF and TVF can be
increased in accordance with Clause 8(A)(iii) of the foregoing Investment
Management and Administration Services Agreement as follows:
(i) in the case of TBF and TGF, to not more than two per cent per annum (plus
any Value Added Tax or any equivalent tax thereon) of the value of the
parts of the property of TBF and TGF respectively as are referable to
Alpha Income and Alpha Accumulation Shares.
(ii) in the case of TBF and TGF, to not more than one and one-half per cent per
annum (plus Value Added Tax or any equivalent tax thereon) of the value of
the parts of the property of TBF and TGF as are referable to Beta Income
and Beta Accumulation Shares; and
(iii) in the case of TVF, to not more than two per cent per annum (plus Value
Added Tax or any equivalent tax thereon) of the value of the property of
TVF.
/s/ X. X. Xxxxx Director
---------------------
/s/ Xxxxx X. Xxxxxx Secretary
---------------------
/s/ X. X. Xxxxxxxx Director
---------------------
/s/ Xxxxxxxx Xxxxx Director
---------------------
