EXHIBIT (9)(B)
XXXXXXXX CAPITAL FUNDS II
SUB-ADMINISTRATION AGREEMENT
AGREEMENT made this 27th day of December, 1996, between Xxxxxxxx
Capital Funds II, a business trust organized under the laws of the State of
Delaware with its principal place of business at 0 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxx 00000 (the "Trust") and Forum Administrative Services, LLC ("FAS" or
"Sub-Administrator"), a corporation organized under the laws of the State of
Delaware with its principal place of business at 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
WHEREAS, the Trust is registered under the Investment Company Act of
1940 (the "Act") as an open-end management investment company and is authorized
to issue interests in separate series ("Interests");
WHEREAS, the Trust desires that Xxxxxxxx perform sub-administrative
services for the portfolio of the Trust as listed in Appendix A hereto (each a
"Portfolio", and collectively the "Portfolios") and Xxxxxxxx is willing to
provide those services on the terms and conditions set forth in this Agreement;
WHEREAS, the Trust has entered into an Administration Agreement
("Administration Agreement") with Administrator, pursuant to which Administrator
provides certain management and administrative services for the Trust and any
series thereof;
WHEREAS, the Trust and Administrator desire that FAS perform certain
administrative services for the Trust, and each of its series that now exist or
may in the future be created, and FAS is willing to provide those services on
the terms and conditions set forth in this Agreement; and
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, Trust and FAS agree as follows:
SECTION 1. APPOINTMENT. The Trust hereby appoints FAS as
Sub-Administrator of the Trust and FAS hereby accepts such appointment, all in
accordance with the terms and conditions of this Agreement. In connection
therewith, the Trust has delivered to the Sub-Administrator copies of its Trust
Instrument, the Trust's Registration Statement and all amendments thereto filed
pursuant to the Act (the "Registration Statement") and the current Parts A and C
of the Registration Statement covering each Series of the Trust and, shall
promptly furnish the Sub-Administrator with all amendments of or supplements to
the foregoing.
SECTION 2. DEFINITIONS. Whenever used in this Agreement, the following
terms shall have the meanings specified, insofar as the context will allow:
a) ACT: The term Act shall mean the Investment Company Act of 1940, as
amended from time to time.
b) ADMINISTRATOR. The term Administrator shall mean Xxxxxxxx Fund Advisors
Inc., or any successor thereto who acts as the administrator of the Trust
or any series thereof.
c) ADVISER. The term Adviser shall mean Xxxxxxxx Capital Management
International Inc., or any successor thereto who acts as the investment
adviser of the Trust or any series thereof;
d) BOARD: The term Board shall mean the Board of Trustees of the Trust.
e) CUSTODIAN: The term Custodian shall mean Chase Manhattan Bank, NA, or
any successor or other custodian acting as such for any current or future
Series of the Trust.
f) DIVIDEND DISBURSING AGENT: The term Dividend Disbursing Agent shall mean
Forum Financial Corp., or any successor thereto that is responsible for
determining the amount of, and declaring, dividends and other distributions
to Interestholders, subject to approval by the Board;
g) FUND ACCOUNTANT: The term Fund Accountant shall mean Forum Financial
Corp., or any successor thereto that is responsible for calculating the net
asset value of each series of the Trust and maintaining its accounting
books and records.
h) FUND BUSINESS DAY: The term Fund Business Day shall mean each day that
the New York Stock Exchange is open for trading (which excludes the
following national business holidays: New Year's Day, President's Day, Good
Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and
Christmas Day).
i) INTERESTHOLDERS: The term Interestholders shall mean the registered
owners from time to time of the Interests, as reflected on the registry
records of the Trust.
j) INTERESTS: The term Interests shall mean the issued and outstanding
interests of the Trust, or any series of the Trust, including any fractions
thereof.
k) PROSPECTUS: The term Prospectus shall mean the then-current Part A of an
effective Registration Statement of the Trust under the Act covering any
Series of the Trust, as the same may be amended or supplemented from time
to time.
l) SERIES: The term Series shall mean each series listed in Schedule A or
any series that the Trust shall subsequently establish;
m) SUB-ADMINISTRATOR: The term Sub-Administrator shall mean Forum
Administrative Services, LLC or any successor thereto who provides
administrative services to the Trust.
n) TRANSFER AGENT. The term Transfer Agent shall mean Forum Financial
Corp., or any successor thereto who provides transfer agent services to the
Trust.
o) TRUST: The term Trust shall mean Xxxxxxxx Capital Funds II.
SECTION 3. FURNISHING OF EXISTING ACCOUNTS AND RECORDS. The Trust shall
promptly turn over to FAS such of the Accounts and Records previously maintained
by or for it as are necessary for FAS to perform its functions under this
Agreement. The Trust authorizes FAS to rely on such Accounts and Records turned
over to it and hereby indemnifies and will hold FAS, 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 Trust to provide any portion of such or to provide any
information needed by FAS to knowledgeably perform its functions.
SECTION 4. ADMINISTRATIVE DUTIES
(a) Subject to the direction and control of the Board and the
Administrator, the Sub-Administrator shall manage certain aspects of operations
of the Trust, and any existing or future series thereof, except those functions
which are the responsibility of the Adviser, the Administrator, Custodian,
Transfer Agent, Dividend Disbursing Agent, or Fund Accountant, all in such
manner and to such extent as may be authorized by the Board or the
Administrator;
(b) With respect to the Trust and each series thereof, as applicable,
the Sub-Administrator shall:
(i) oversee (A) the preparation and maintenance by the Adviser and
the Trust'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 Trust required to be prepared or
maintained by the Trust or its agents pursuant to applicable law;
(B) the reconciliation of account information
and balances among the Adviser and the Trust's Custodian,
Transfer Agent, Dividend Disbursing Agent and Fund Accountant;
(C) the transmission of purchase and redemption orders for
Interests; (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
Interests;
(ii) oversee the performance of administrative and professional
services rendered to the Trust by others, including its
Custodian, Transfer Agent, Dividend Disbursing Agent, and Fund
Accountant, as well as legal, auditing and shareholder servicing
and other services performed for each existing or future Series
of the Trust;
(iii)be responsible for the preparation and the printing of the
periodic updating of the Registration Statement and Prospectus,
tax returns, and reports to Interestholders, 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 Interestholders;
(v) at the request of the Board, provide the Trust with adequate
general office space and facilities and provide persons suitable
to the Board to serve as officers of the Trust;
(vi) provide the Trust, at the Trust'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 Trust;
(vii) prepare, file and maintain the Trust's governing documents,
including the Trust Instrument and minutes of meetings of
Trustees and Interestholders;
(viii) with the cooperation of the Trust's counsel, the
Administrator, the Adviser, and other relevant parties,
prepare and disseminate materials for meetings of the Board of
Trustees;
(ix) monitor sales of Interests and ensure that such Interests 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 Trust and other
appropriate purposes;
(xi) oversee the determination of the amount of, and supervise the
declaration of, dividends and other distributions to
Interestholders 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 Interestholders; and
(xii)advise the Trust and its Board of Trustees on matters concerning
the Trust and its affairs.
(c) FAS 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 Trust pursuant to this Agreement required to be
maintained pursuant to the 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 Trust. The accounts and
records pertaining to the Trust which are in possession of the Sub-Administrator
shall be the property of the Trust. The Trust, or the Trust's authorized
representatives, shall have access to such accounts and records at all times
during the Sub-Administrator's normal business hours. Upon the reasonable
request of the Trust, copies of any such accounts and records shall be provided
promptly by the Sub-Administrator to the Trust or the Trust's authorized
representatives. In the event the Trust designates a successor to any of the
Sub-Administrator's obligations hereunder, the
Sub-Administrator shall, at the expense and direction of the Trust, transfer to
such successor all relevant books, records and other data established or
maintained by the Sub-Administrator under this Agreement.
SECTION 5. STANDARD OF CARE. FAS, 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 hereunder or for any reasonable actions taken or omitted in good faith.
As an inducement to FAS's undertaking to render these services, the Trust hereby
agrees to indemnify and hold harmless FAS, its employees, agents, officers and
directors, from any and all loss, liability and expense, including any legal
expenses, arising out of FAS's performance under this Agreement, or status, or
any act or omission of FAS, its employees, agents, officers and directors;
provided that this indemnification shall not apply to FAS's actions taken or
failures to act in cases of FAS's own bad faith, willful misconduct or gross
negligence in the performance of its duties under this Agreement; and provided
further that FAS shall give the Trust notice and reasonable opportunity to
defend against any such loss, claim, damage, liability or expense in the name of
the Trust or FAS, or both. The Trust 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 Trust and approved by FAS, which approval shall not
be withheld unreasonably. In the event the Trust does elect to assume the
defense of any such suit and retain counsel of good standing approved by FAS,
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 Trust does not elect
to assume the defense of any such suit, or in case FAS does not approve of
counsel chosen by the Trust or FAS has been advised that it may have available
defenses or claims which are not available or conflict with those available to
the Trust, the Trust will reimburse FAS, its officers or directors or the
controlling person or persons named as defendant or defendants in such suit, for
the fees and expenses of any one law firm retained as counsel by FAS or them.
FAS may, at any time, waive its right to indemnification hereunder and assume
its own defense. Without limitation of the foregoing:
a) FAS may rely upon the advice of the Trust or of counsel, who may be
counsel for the Trust or counsel for FAS, 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 FAS shall
not be liable to anyone for any actions taken in good faith upon such
statements.
b) FAS 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 Trust to give such oral instruction. FAS
shall have no duty or obligation to make any inquiry or effort of
certification of such Oral Instruction.
c) FAS 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 Trust, and FAS may rely upon the genuineness of any such
document or copy thereof reasonably believed in good faith by FAS to
have been validly executed.
d) FAS 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, Trust or other proper party or
parties.
SECTION 6. EXPENSES. Subject to any agreement by the Sub-Administrator
or other person to reimburse any expenses of the Trust that relate to any
Series, the Trust shall be responsible for and assumes the obligation for
payment of all of its other expenses, including: (a) the fee payable under
Section 7 hereof; (b) the fees payable to the Adviser under the Advisory
Agreement; (c) the fees payable to the Administrator under the Administration
Agreement; (d) expenses of issue, repurchase and redemption of Interests; (e)
interest charges, taxes and brokerage fees and commissions, including the fees
and commissions of introducing brokers; (f) premiums of insurance for the Trust,
its Trustees and officers and fidelity bond premiums; (g) fees, interest charges
and expenses of third parties, including the Trust'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; (k) funds transmission expenses;
(l) auditing, legal and compliance expenses; (m) costs of forming the Trust and
maintaining its existence; (n) to the extent permitted by rule 12b-1 under the
1940 Act, costs of preparing and printing the Series' Prospectuses, subscription
application forms and
shareholder reports and delivering them to existing Interestholders; (o)
expenses of meetings of Interestholders and proxy solicitations therefore; (p)
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
Interests of the Trust and of preparing tax returns; (q) costs of reproduction,
stationery and supplies; (r) fees and expenses of the Trust's Trustees; (s)
compensation of the Trust's officers and employees who are not employees of the
Adviser, Administrator or Sub-Administrator or their respective affiliated
persons and costs of other personnel (who may be employees of the Adviser,
Administrator, or Sub-Administrator or their respective affiliated persons)
performing services for the Trust; (t) costs of Trustee meetings; (u) Securities
and Exchange Commission registration fees and related expenses; (v) state or
foreign securities laws registration fees and related expenses; and (w) all fees
and expenses paid by the Trust in accordance with any distribution plan adopted
pursuant to Rule 12b-1 under the Act or under any shareholder service plan or
agreement.
In the event that this agreement is terminated, FAS shall be reimbursed
for reasonable charges and disbursements associated with promptly transferring
to the Administrator or successor sub-administrator the original or copies of
all accounts and records maintained by FAS hereunder, and cooperating with, and
providing reasonable assistance to, the Administrator or successor
sub-administrator in the establishment of the accounts and records necessary to
carry out the Administrator's or successor sub-administrators responsibilities.
SECTION 7. COMPENSATION
(a) In consideration of the administrative services performed by
Xxxxxxxx as described herein, the Trust will pay Xxxxxxxx, with respect to each
Portfolio a fee at the annual rate as listed in Appendix A hereto. Such fee
shall be accrued by the Trust daily and shall be payable monthly in arrears on
the first day of each calendar month for services performed hereunder during the
prior calendar month.
The Trust shall pay the sub-Administrator a fee at the annual rate as listed in
Appendix A hereto. upon authorization by the Administrator and the deduction of
an equivalent amount from the fees paid to the Administrator. Such fees shall be
accrued 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 to the Sub-Administrator pursuant to this
paragraph 7 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. For purposes of calculating the monthly fees, the value of
the net assets of each Series shall be computed in the manner specified in its
Prospectus for the computation of net asset value. Upon the termination of this
Agreement, the Trust shall pay to the Sub-Administrator such compensation as
shall be payable prior to the effective date of such termination.
(b) Notwithstanding anything in this Agreement to the contrary, the
Sub-Administrator and its affiliated persons may receive compensation or
reimbursement from the Trust with respect to (i) the provision of services on
behalf of the Series in accordance with any distribution plan adopted by the
Trust pursuant to Rule 12b-1 under the Act, or (ii) the provision of shareholder
support or other services, including fund accounting services.
SECTION 8. EFFECTIVENESS, DURATION AND TERMINATION
(a) EFFECTIVENESS. This Agreement shall become effective on the date
first above written with respect to existing series of the Trust and shall
relate to every other Series as of the date on which the Trust's Registration
Statement relating to such Series becomes effective.
(b) DURATION: 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) TERMINATION. This Agreement may be terminated with respect to a
Series at any time, without the payment of any penalty, (i) by the Board and the
Administrator on 60 days' written notice to the Sub-Administrator or (ii) by the
Sub-Administrator on 60 days' written notice to the Trust and the Administrator.
Upon
receiving notice of termination by FAS, the Trust shall use its best efforts to
obtain a successor sub-administrator. Upon receipt of written notice from the
Trust of the appointment of the successor sub-administrator, and upon payment to
FAS of all fees owed through the effective termination date, and reimbursement
for reasonable charges and disbursements (as described in Section 6), FAS shall
promptly transfer to the successor sub-administrator the original or copies of
all accounts and records maintained by FAS hereunder 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 FAS continues to perform any of the services
contemplated by this Agreement after termination of this Agreement (as agreed to
by the Trust and FAS), the provisions of Sections 5 and 7 hereof shall continue
in full force and effect.
SECTION 9. 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 Sub-Administrator'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 Trust) 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 10. COOPERATION WITH INDEPENDENT ACCOUNTANTS. FAS shall
cooperate with the Trust'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 11. SERVICE DAYS. Nothing contained in this Agreement is
intended to or shall require FAS, in any capacity hereunder, to perform any
functions or duties on any day other than a Fund Business Day. Functions or
duties normally scheduled to be performed on any day which is not a Fund
Business Day shall be performed on, and as of, the next Fund Business Day,
unless otherwise required by law.
SECTION 12. 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
Trust shall be given as follows until further notice:
Xxxxxxxx Capital Funds II
0 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Notice to FAS shall be given as follows until further notice:
Forum Administrative Services, LLC
0 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
SECTION 13. MISCELLANEOUS
(a) MODIFICATIONS AND AMENDMENTS. 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) COUNTERPARTS. 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) CONSTRUCTION IF PROVISION DEEMED ILLEGAL OR INVALID. 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. 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) NOTICES. Notices, requests, instructions and communications received by
the parties at their respective principal addresses, or at such other address as
a party may have designated in writing, shall be deemed to have been properly
given.
(f) SUCCESSORS AND ASSIGNS. 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 Trust
without the written consent of FAS, or by FAS, without the written consent of
the Trust authorized or approved by a resolution of the Board.
(g) GOVERNING LAW. 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 II XXXXXXXX FUND ADVISORS INC.
/S/ Xxxxxxxxx Xxx /S/ Xxxxxxxxx X. Xxxxx
------------------------- ---------------------------
Xxxxxxxxx Xxx, Vice President Xxxxxxxxx X. Xxxxx,
Senior Vice President
FORUM ADMINISTRATIVE SERVICES, LLC
/S/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx, President
XXXXXXXX CAPITAL FUNDS II
SUB-ADMINISTRATION AGREEMENT
SCHEDULE A
SERIES OF THE TRUST
Xxxxxxxx International Bond Portfolio
SCHEDULE B
SUB-ADMINISTRATION FEES
SERIES FEE AS % OF THE AVERAGE ANNUAL
DAILY NET ASSETS
Xxxxxxxx International Bond Portfolio 0.075%
The minimum administration fee per series is $25,000.
