EXHIBIT (5)(k)
FORM OF SUB-INVESTMENT ADVISORY AGREEMENT
WITH RESPECT TO GLOBAL EMERGING MARKETS
AGREEMENT made as of the ____ day of _________________, 1996 by and among
PEREGRINE ASSET MANAGEMENT (HONG KONG) LIMITED a corporation organized under the
laws of Hong Kong and having its principal place of business in Hong Kong (the
"Sub-Adviser") and XXX XXX ASSOCIATES CORPORATION, a corporation organized under
the laws of the State of Delaware and having its principal place of business in
New York, New York (the "Adviser") and VAN ECK FUNDS, a Massachusetts business
trust, having its principal place of business in New York, New York (the
"Trust").
WHEREAS, the Trust is engaged in business as an open-end investment company and
is so registered under the Investment Company Act of 1940 ("1940 Act"); and
WHEREAS, the Sub-Adviser is engaged principally in the business of rendering
investment management services and is registered under the Investment Advisers
Act of 1940 ("Advisers Act"); and
WHEREAS, the Trust is authorized to issue shares of beneficial interest in
separate series with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Trust intends to offer shares in one of such series, namely, Global
Emerging Markets Fund (the "Fund") and in order to invest the proceeds of the
Fund in securities and other assets, the Trust has retained the Adviser to
render management and advisory services; and
WHEREAS, the Adviser desires to retain the Sub-Adviser to render investment
advisory and other services hereunder to the Fund and the Sub-Adviser is willing
to do so.
NOW, THEREFORE, WITNESSETH:
That it is hereby agreed among the parties hereto as follows:
1. APPOINTMENT OF SUB-ADVISER
The Adviser hereby appoints the Sub-Adviser to act as investment advisor to the
Fund for the period and on the terms herein set forth. The Sub-Adviser accepts
such appointment and agrees to render the services herein set forth, for the
compensation herein provided. So long as the Sub-Adviser serves as investment
advisor to the Fund pursuant to this Agreement the obligation of the Adviser
under this Agreement with respect to the Fund shall be, subject in any event to
the control of the Trustees of the Trust, to determine and review with the Sub-
Adviser investment policies of the Fund, and the Sub-Adviser shall have the
obligation of furnishing continuously an investment program and making
investment decisions for the Fund, adhering to applicable investment objectives,
policies and restrictions and placing all orders for the purchase and sale of
portfolio securities for the Fund and such other services set forth in Section 2
hereof. The Adviser will compensate the Sub-Adviser of the Fund for its
services to the Fund. The Adviser or the Fund, subject to the terms of this
Agreement, may terminate the services of the Sub-Adviser at any time in its sole
discretion, and the Adviser shall at such time assume the responsibilities of
the Sub-Adviser unless and until a successor investment advisor is selected.
2. DUTIES OF SUB-ADVISER.
The Sub-Adviser, at its own expense, shall furnish the following services and
facilities to the Trust:
(a) Investment Program. The Sub-Adviser will (i) furnish continuously an
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investment program for the Fund, (ii) determine (subject to the overall
supervision and review of the Board of Trustees of the Trust and the
Adviser) what investments shall be purchased, held, sold or exchanged and
what portion, if any, of the assets of the Fund shall be held uninvested,
and (iii) make changes on behalf of the Fund in the investments. The Sub-
Adviser will provide the services hereunder in accordance with the Fund's
investment objectives, policies and restrictions as stated in the then-
current prospectus and statement of additional information which is part of
the Trust's Registration Statement filed with the Securities and Exchange
Commission, as amended from time to time, copies of which shall be sent to
the Sub-Adviser by the Adviser. The Sub-Adviser also will manage,
supervise and conduct such other affairs and business of the Trust and
matters incidental thereto as the Sub-Adviser and the Trust agree, subject
always to the control of the Board of Trustees of the Trust and to the
provisions of the Master Trust Agreement of the Trust, the Trust's By-laws
and the 1940 Act. The Sub-Adviser will manage the Fund so that it will
qualify as a regulated investment company under sub-chapter M of the
Internal Revenue Code of 1986, as amended, as it may be amended from time
to time; and, with respect to the services provided by the Sub-Adviser
under this Agreement, it shall be responsible for compliance with all
applicable laws, rules and regulations. The Sub-Adviser will adopt
procedures reasonably designed to ensure compliance.
(b) Office Space and Facilities. The Sub-Adviser will arrange to furnish office
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space, all necessary office facilities, simple business equipment,
supplies, utilities, and telephone service required for managing the
investments of the Fund.
(c) Personnel. The Sub-Adviser shall provide executive and clerical personnel
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for managing the investments of the Fund, and shall compensate officers and
Trustees of the Fund or Trust if such persons are also employees of the
Sub-Advisor or its affiliates, except as otherwise provided herein.
(d) Portfolio Transactions. The Sub-Adviser shall place all orders for the
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purchase and sale of portfolio securities for the account of the Fund with
brokers or dealers selected by the Sub-Adviser, although the Fund will pay
the actual transaction costs, including without limitation brokerage
commissions on portfolio transactions in accordance with this Paragraph
2(d). The Fund shall provide the Sub-Adviser with a list of broker/dealers
which are affiliated persons of the Trust and its other Sub-Advisers. An
affiliated broker may transmit, clear and settle transactions for the Fund
that are executed on a securities exchange provided that the affiliated
broker arranges for unaffiliated brokers to execute the transactions. In
executing portfolio transactions and selecting brokers or dealers, the Sub-
Adviser will use its best efforts to seek on behalf of the Fund the best
overall terms available. In assessing the best overall terms available for
any transaction, the Sub-Adviser shall consider all factors it deems
relevant, including, without limitation, the breadth of the market in the
security, the price of the security, the financial condition and execution
capability of the broker or dealer, and the reasonableness of the
commission, if any (for the specific transaction and on a continuing
basis). In evaluating the best overall terms available, and in selecting
the broker or dealer to execute a particular transaction, the Sub-Adviser
may also consider the brokerage and research services (as those terms are
defined in Section 28(e) of the Securities Exchange Act of 1934) provided
to Sub-Adviser or an affiliate of the Sub-Adviser in respect of accounts
over which it exercises investment discretion. The Sub-Adviser is
authorized to pay to a broker or dealer who provides such brokerage and
research services a commission for executing a portfolio transaction which
is in excess of the amount of commission another broker or dealer would
have charged for effecting that transaction if the Sub-Adviser determines
in good faith that such commission was reasonable in relation to the value
of the brokerage and research services provided by such broker or dealer,
viewed in terms of that particular transaction or in terms of all of the
accounts over which investment discretion is so exercised by the Sub-
Adviser or its affiliates. Nothing in this Agreement shall preclude the
combining of orders for the sale or purchase of securities or other
investments with other accounts managed by the Sub-Adviser or its
affiliates provided that the Sub-Adviser does not favor any account over
any other account and provided that any purchase or sale orders executed
contemporaneously shall be allocated in an equitable manner among the
accounts involved in accordance with procedures adopted by the Sub-Adviser.
(e) In connection with the purchase and sale of securities for the Fund, the
Sub-Adviser will arrange for the transmission to the custodian and
recordkeeping agent for the Trust on a daily basis, such confirmation,
trade tickets, and other documents and information, including, but not
limited to, Cusip, Sedol, or other numbers that identify securities to be
purchased or sold on behalf of the Fund, as may be reasonably necessary to
enable the custodian and recordkeeping agent to perform its administrative
and recordkeeping responsibilities with respect to the Fund. With respect
to portfolio securities to be purchased or sold through the Depository
Trust Company, the Sub-Adviser will arrange for the automatic transmission
of the confirmation of such trades to the Fund's custodian and
recordkeeping agent.
(f) The Sub-Adviser will monitor on a daily basis the determination by the
custodian and recordkeeping agent for the Fund of the valuation of
portfolio securities and other investments of the Fund. The Sub-Adviser
will assist the custodian and recordkeeping agent for the Fund in
determining or confirming, consistent with the procedures and policies
stated in the Registration Statement for the Trust, the value of any
portfolio securities or other assets of the Fund for which the custodian
and recordkeeping agent seeks assistance from, or identifies for review by,
the Sub-Adviser. The Sub-Adviser shall assist the Board in determining
fair value of such securities or assets for which market quotations are not
readily available.
(g) The Sub-Adviser will provide the Trust or the Adviser with copies (or, if
required for regulatory purposes) of all of the Fund's investment records
and ledgers maintained by the Sub-Adviser (which shall not include the
records and ledgers maintained by the custodian and recordkeeping agent for
the Trust) as are necessary to assist the Trust and the Adviser to comply
with requirements of the 1940 Act and the Advisers Act as well as other
applicable laws. The Sub-Adviser will furnish to regulatory authorities
having the requisite authority any information, reports or investment
records and ledgers maintained by the Sub-Adviser in connection with such
services which may be requested in order to ascertain whether the
operations of the Trust are being conducted in a manner consistent with
applicable laws and regulations.
(h) The Sub-Adviser will provide reports to the Trust's Board of Trustees for
consideration at meetings of the Board on the investment program for the
Fund and the issues and securities represented in the Fund's portfolio, and
will furnish the Trust's Board of Trustees with respect to the Fund such
periodic and special reports as the Trustees or the Adviser may reasonably
request.
3. EXPENSES OF THE TRUST
Except as provided in sections 2(d) above, the Sub-Adviser shall assume and pay
all of its own costs and expenses related to providing an investment program for
the Fund. The Trust shall pay all of its expenses and liabilities, including
compensation of its independent Trustees; taxes and governmental fees; interest
charges; fees and expenses of the Trust's independent auditors and legal
counsel; trade association membership dues; fees and expenses of any custodian
(including safekeeping of funds and securities, maintenance of books and
accounts and calculation of the net asset value of beneficial interests of each
series of the Trust), transfer agent and registrar and dividend disbursing agent
of the Trust; expenses of preparing and mailing reports to investors nd
regulatory agencies; expenses relating to issuance, registration and
qualification of charges of each series, and the preparation, printing and
mailing of prospectuses for such purposes; insurance premiums; brokerage and
other expenses of executing portfolio transactions; expenses of investors' and
trustees' meetings; organization expenses; and extraordinary expenses.
4. SUB-ADVISORY FEE.
For the services and facilities to be provided to the Fund by the Sub-Adviser as
provided in Paragraph 2 hereof, the Adviser shall pay the Sub-Adviser a fee,
payable monthly, at the annual rate of .50 of 1% of the Fund's average daily net
assets from the Advisory fee it receives from the Fund, as set forth in the
Trust's charter documents for the computation of the value of the Fund's net
assets as determined by the Trust or its third party administrator in accordance
with procedures established, from time to time, by or under the direction of the
Board of Trustees of the Trust. The Trust shall not be liable for the
obligation of the Adviser to make payment to the Sub-Adviser.
5. REPRESENTATIONS AND COVENANTS
(a) The Adviser hereby represents and warrants as follows:
(1) That it is registered in good standing with the Securities and
Exchange Commission as an investment adviser under the Advisers Act,
and such registration is current, complete and in full compliance with
all applicable provisions of the Advisers Act and the rules and
regulations thereunder;
(2) That it has all the requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement; and
(3) Its performance of its obligations under this Agreement does not
conflict with any law, regulation or order to which it is subject.
(b) The Adviser hereby covenants and agrees that, so long as this Agreement
shall remain in effect:
(1) It shall maintain its registration in good standing as an investment
adviser under the Advisers Act, and such registration shall at all
times remain current, complete and in full compliance with all
applicable provisions of the Advisers Act and the rules and
regulations thereunder;
(2) Its performance of its obligations under this Agreement does not
conflict with any law, regulation or order to which it is subject; and
(3) It shall at all times fully comply with the Advisers Act, the 1940
Act, all applicable rules and regulations under such Acts and all
other applicable law; and
(4) It shall promptly notify the Sub-Adviser upon occurrence of any event
that might disqualify or prevent it from performing its duties under
this Agreement.
(c) The Sub-Adviser hereby represents and warrants as follows:
(1) That it is registered in good standing with the Securities and
Exchange Commission as an investment adviser under the Advisers Act,
and such registration is current, complete and in full compliance with
all applicable provisions of the Advisers Act and the rules and
regulations thereunder;
(2) That it has all the requisite authority to enter into, execute,
deliver and perform its obligations under this Agreement; and
(3) Its performance of its obligations under this Agreement does not
conflict with any law, regulation or order to which it is subject.
(d) The Sub-Adviser hereby covenants and agrees that, so long as this Agreement
shall remain in effect:
(1) It shall maintain its registration in good standing as an investment
adviser under the Advisers Act, and such registration shall at all
times remain current, complete and in full compliance with all
applicable provisions of the Advisers Act and the rules and
regulations thereunder;
(2) Its performance of its obligations under this Agreement does not
conflict with any law, regulation or order to which it is subject;
(3) It shall at all times fully comply with the Advisers Act, the 1940
Act, all applicable rules and regulations under such Acts and all
other applicable law; and
(4) It shall promptly notify the Adviser upon occurrence of any event
that might disqualify or prevent it from performing its duties under
this Agreement.
6. TRUST TRANSACTIONS.
The Adviser and Sub-Adviser each agrees that neither it nor any of its
officers, directors, employees or agents will take any long- or short-term
position in the shares of the Trust; provided, however, that such
prohibition shall not prevent the purchase of shares of the Trust by any of
the persons above described for their account and for investment at the
price (net asset value) at which such shares are available at the time of
purchase or as part of the initial capital of the Trust.
7. RELATIONS WITH TRUST.
Subject to and in accordance with the Declaration of Trust and By-Laws of
the Trust and the Articles of Incorporation and By-Laws of the Adviser and
Sub-Adviser it is understood (i) that Trustees, officers, agents and
shareholders of the Trust are or may be interested in the Sub-Adviser (or
any successor thereof) as directors, officers, or otherwise; (ii) that
directors, officers, agents and shareholders of the Sub-Advisor are or may
be interested in the Trust as Trustees, officers, shareholders or
otherwise; and (iii) that the Sub-Advisor (or any such successor) is or may
be interested in the Trust as a shareholder or otherwise and that the
effect of any such adverse interests shall be governed by said Declaration
of Trust and By-laws.
8. LIABILITY OF ADVISER, SUB-ADVISER AND OFFICERS AND TRUSTEES OF THE TRUST.
Neither the Adviser, Sub-Adviser nor any of their officers, directors,
employees, agents or controlling persons or assigns or Trustees or officers of
the Trust shall be liable for any error of judgment or law, or for any loss
suffered by the Trust or its shareholders in connection with the matters to
which this Agreement relates, except that no provision of this Agreement shall
be deemed to protect the Adviser, Sub-Adviser or such persons against any
liability to the Trust or its shareholders to which the Adviser or Sub-Adviser
might otherwise be subject by reason of any wilful misconduct, negligence or
actions taken in bad faith in the discharge of its respective obligations and
performance of its respective duties under this Agreement.
9. INDEMNIFICATION
(a) Notwithstanding Section 8 of the Agreement, the Adviser agrees to indemnify
and hold harmless the Sub-Adviser, any affiliated person of the Sub-Adviser
(except the Trust), and each person, if any, who, within the meaning of
Section 15 of the Securities Act of 1933 ("1933 Act") controls
("controlling person") the Sub-Adviser (all of such persons being referred
to as "Sub-Adviser Indemnified Persons") against any and all losses,
claims, damages, liabilities (excluding salary charges of employees,
officers or partners of the Sub-Adviser), or litigation (including legal
and other) expenses to which a Sub-Adviser Indemnified Person may become
subject under the 1933 Act, the 1940 Act, the Advisers Act, any other
statute, common law or otherwise, arising out of the Adviser's
responsibilities to the Trust which (1) may be based upon any untrue
statement or alleged untrue statement of a material fact supplied by, or
which is
the responsibility of, the Adviser and contained in the Registration
Statement or prospectus or statement of additional information covering
shares of the Fund or any other series, or any amendment thereof or any
supplement thereto, or the omission or alleged omission or failure to state
therein a material fact known or which should have been known to the
Adviser and was required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was
made in reliance upon information furnished to the Adviser or the Trust or
to any affiliated person of the Adviser by a Sub-Adviser Indemnified Person
in writing for inclusion in the Registration Statement or prospectus or
statement of additional information; or (2) may be based upon a failure by
the Adviser to comply with, or a breach of, any provision of this Agreement
or any other agreement with the Fund; or (3) may be based upon misfeasance
or negligence by the Adviser in the discharge of its duties and performance
of its obligations under this Agreement or any other agreement with the
Fund, provided however, that in no case shall the indemnity in favor of the
Sub-Adviser Indemnified Person be deemed to protect such person against any
liability to which any such person would otherwise be subject by reason of
any misfeasance or negligence in the discharge of its obligations and the
performance of its duties under this Agreement. The Adviser shall not be
liable for any losses, liabilities or expenses that the Sub-Adviser may
incur due to errors of judgment or omissions of the Adviser.
(b) Notwithstanding Section 8 of this Agreement, the Sub-Adviser agrees to
indemnify and hold harmless the Adviser, any affiliated person of the
Adviser (except the Trust), and each person, if any, who, within the
meaning of Section 15 of the 1933 Act, controls ("controlling person") the
Adviser (all of such persons being referred to as "Adviser Indemnified
Persons") against any and all losses, claims, damages, liabilities
(excluding salary charges of employees, officers or partners of the
Adviser), or litigation (including legal and other) expenses to which an
Adviser Indemnified Person may become subject under the 1933 Act, the 1940
Act, the Advisers Act, any other statute, common law or otherwise, arising
out of the Sub-Adviser's responsibilities as sub-investment adviser to the
Fund which (1) may be based upon any untrue statement or alleged untrue
statement of a material fact supplied by the Sub-Adviser for inclusion in
the Registration Statement or prospectus or statement of additional
information covering shares of the Fund, or any amendment thereof or any
supplement thereto, or, with respect to a material fact supplied by the
Sub-Adviser for inclusion in the Registration Statement or prospectus or
statement of additional information, the omission or alleged omission or
failure to state therein a material fact known or which should have been
known to the Sub-Adviser and was required to be stated therein or necessary
to make the statements therein not misleading, unless such statement or
omission was made in reliance upon information furnished to the Sub-
Adviser, the Trust, or any affiliated person of the Sub-Adviser or Trust by
an Adviser Indemnified Person; or (2) may be based upon a failure by the
Sub-Adviser to comply with, or a breach of, any provision of this Agreement
or any other agreement with the Fund; or (3) may be based upon misfeasance
or negligence by the Sub-Adviser in the discharge of its duties and
performance of its obligations under this Agreement or any other agreement
with the Fund provided however, that in no case shall the indemnity in
favor of an Adviser Indemnified Person be deemed
to protect such person against any liability to which any such person would
otherwise be subject by reason of misfeasance or negligence in the
discharge of its obligations and the performance of its duties under this
Agreement.
(c) Neither the Adviser nor the Sub-Adviser shall be liable under this Section
with respect to any claim made against an Indemnified Person unless such
Indemnified Person shall have notified the indemnifying party in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon
such Indemnified Person (or such Indemnified Person shall have received
notice of such service on any designated agent), but failure to notify the
indemnifying party of any such claim shall not relieve the indemnifying
party from any liability which it may have to the Indemnified Person
against whom such action is brought otherwise than on account of this
Section. In case any such action is brought against the Indemnified
Person, the indemnifying party will be entitled to participate, at its own
expense, in the defense thereof or, after notice to the Indemnified Person,
to assume the defense thereof, with counsel satisfactory to the Indemnified
Person. If the indemnifying party assumes the defense and the selection of
counsel by the indemnifying party to represent both the Indemnified Person
and the indemnifying party would result in a conflict of interests and
would not, in the reasonable judgment of the Indemnified Person, adequately
represent the interests of the Indemnified Person, the indemnifying party
will at its own expense, assume the defense with counsel to the
indemnifying party and, also at its own expense, with separate counsel to
the Indemnified Person which counsel shall be satisfactory to the
indemnifying party and the Indemnified Person. The Indemnified Person will
bear the fees and expenses of any additional counsel retained by it, and
the indemnifying party shall not be liable to the Indemnified Person under
this Agreement for any legal or other expenses subsequently incurred by the
Indemnified Person independently in connection with the defense thereof
other than reasonable costs of investigation. The indemnifying party shall
not have the right to compromise or settle the litigation without the prior
written consent of the Indemnified Person if the compromise or settlement
results, or may result, in a finding of wrongdoing on the part of the
Indemnified Person.
10. DURATION AND TERMINATION OF THIS AGREEMENT.
(a) Duration. This Agreement shall become effective on the date hereof. Unless
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terminated as herein provided, this Agreement shall remain in full force
and effect until _____________, 1996 and shall continue in full force and
effect for periods of one year thereafter so long as such continuance is
approved at least annually (i) by either the Trustees of the Trust or by
vote of a majority of the outstanding voting shares (as defined in the 0000
Xxx) of the Trust, and (ii) in either event by the vote of a majority of
the Trustees of the Trust who are not parties to this Agreement or
"interested persons" (as defined in the 0000 Xxx) of any such party, cast
in person at a meeting called for the purpose of voting on such approval.
(b) Termination. This Agreement may be terminated at any time, without payment
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of any penalty, by vote of the Trustees of the Trust or by vote of a
majority of the outstanding shares (as defined in the 1940 Act), or by the
Adviser or Sub-Adviser, on sixty (60) days written notice to the other
parties.
(c) Automatic Termination. This Agreement shall automatically and immediately
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terminate in the event of its assignment.
11. PRIOR AGREEMENT SUPERSEDED.
This Agreement supersedes any prior agreement relating to the subject matter
hereof between the parties.
12. SERVICES EXCLUSIVE.
The services of the Sub-Adviser and its affiliates, taken collectively, shall be
exclusive with regards to the Trust as provided in this Section 12. So long as
this Agreement (and any continuation) is in effect, the Sub-Adviser and its
affiliates shall be prohibited from serving as investment adviser to any open-
end investment company offered for sale in the United States as part of a
variable annuity or life insurance contract meeting the requirements of Section
817(h) of the Internal Revenue Code of 1986, as amended, which has (i) the same
investment objective and policies (i.e., to provide long term capital
appreciation by investing primarily in equity securities in emerging markets
around the world) as the Fund or (ii) the word "emerge" or any derivative
thereof or the word "develop" or any derivative thereof in its name. The Sub-
Adviser and its affiliates shall be permitted to serve as investment adviser to
open-end investment companies offered for sale as part of variable annuity or
life insurance contracts which have investment objectives and policies to
provide long term capital appreciation by investing their assets primarily in
securities of developed (non-emerging market) countries and Asia, provided that
any such investment company does not have the word "emerge" or any derivative
thereof or the word "develop" or any derivative thereof in its name.
The services of the Sub-Adviser (and its affiliates) to the Trust hereunder are
not to be deemed exclusive if this Agreement is terminated by the Fund or
Adviser; and nothing in this Agreement shall preclude the Sub-Adviser or its
affiliates from serving as an investment adviser or sub-adviser with respect to
any mutual funds.
13. EXPENSE LIMITATION.
The Adviser and Sub-Adviser agree that for any fiscal year of the Fund during
which the total of all expenses of the Fund (including investment advisory fees
under the investment advisory agreement, but excluding interest, portfolio
brokerage commissions and expenses, taxes and extraordinary items) exceeds the
lowest expense limitation imposed in any state in which the Fund is then making
sales of its shares or in which its shares are then qualified for sale, the
Adviser and Sub-Adviser will bear expenses on a pro rata basis with respect to
expenses not otherwise excluded from reimbursement by this Paragraph 13 to the
extent that they exceed such expense limitation but in no event shall such
reimbursement exceed the advisory, sub-advisory and administrative fees
retained.
14. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
(b) If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby.
15. USE OF NAME
(a) It is understood that the name "Xxx Xxx" or any derivative thereof or
logo associated with that name is the valuable property of the Adviser
and its affiliates, and that the Trust and Sub-Adviser have the right
to use such name (or derivative or logo) only with the approval of the
Adviser and only so long as the Adviser is Adviser to the Fund. Upon
termination of the Investment Advisory and Management Agreement
between the Trust and the Adviser, the Trust and the Sub-Adviser shall
forthwith cease to use such name (or derivative or logo).
(b) It is understood that the name Peregrine Asset Management (Hong Kong)
Limited any derivative thereof or logo associated with that name is
the valuable property of the Sub-Adviser and its affiliates and that
the Trust and/or the Fund have the right to use such name (or
derivative or logo) in offering materials of the Trust only with the
approval of the Sub-Adviser and only for so long as the Sub-Adviser is
investment advisor to the Fund. Upon termination of this Agreement,
the Trust and Adviser shall forthwith cease to use such name (or
derivative or logo).
16. LIMITATION OF LIABILITY.
The Term "Xxx Xxx Funds" means and refers to the Trustees from time to time
serving under the Master Trust Agreement of the Trust dated April 3, 1985 as the
same may subsequently thereto have been, or subsequently hereto be amended. It
is expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any Trustees, shareholders, nominees, officers, agents or employees
of the Trust, personally, but bind only the assets and property of the Trust, as
provided in the Amended and Restated Master Trust Agreement of the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees
and the Trust, acting as such, and neither such authorization by such officer
shall be deemed to have been made by any of them personally, but shall bind only
the assets and property of the Trust as provided in its Amended and Restated
Master Trust Agreement.
In WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
Attest: XXX XXX FUNDS
__________________________ By _________________________________
Name Name
President
Attest: XXX XXX ASSOCIATES CORPORATION
__________________________ By________________________________
Name Name
President
Attest: PEREGRINE ASSET MANAGEMENT (HONG KONG)
LIMITED
___________________________ By________________________________
Name Name
President
