EXHIBIT (9) (b)
▇▇▇▇▇▇▇▇ CAPITAL FUNDS
SUBADMINISTRATION AGREEMENT
AGREEMENT made this 1st day of February, 1997, between ▇▇▇▇▇▇▇▇ Capital
Funds ("Trust"), a business trust organized under the laws of the State of
Delaware with its principal place of business at Two ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, and Forum Administrative Services, Limited Liability Company
("Subadministrator"), a limited liability company organized under the laws of
the State of Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of 1940
as amended ("1940 Act") as an open-end management investment company and is
authorized to issue shares of beneficial interest ("Shares") in separate series;
WHEREAS, the Trust has entered into various Investment Advisory Agreements
with ▇▇▇▇▇▇▇▇ Capital Management International Inc. (the "Adviser") and
Administrative Services Agreement with ▇▇▇▇▇▇▇▇ Fund Advisers Inc. (the
"Administrator"), pursuant to which the Adviser and Administrator provide
certain management and administrative services for the Trust.
WHEREAS, the Trust desires that the Subadministrator perform certain
administrative services for each of the series of the Trust as listed in
Appendix A hereto (each a "Series") other than any administrative services
required to be performed by the Adviser or the Administrator, and the
Subadministrator is willing to provide those services on the terms and
conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and the Subadministrator agree as
follows:
SECTION 1. APPOINTMENT. The Trust hereby appoints the Subadministrator as
subadministrator of the Trust and of each Series and the Subadministrator hereby
accepts such appointment, all in accordance with the terms and conditions of
this Agreement. In connection therewith, the Trust has delivered to the
Subadministrator copies of its Trust Instrument, the Trust's Registration
Statement and all amendments thereto filed pursuant to the 1940 Act (the
"Registration Statement"), and the current Parts A and B of each Series
(collectively, as currently in effect and as amended or supplemented, the
"Prospectus"), all in such manner and to such extent as may from time to time be
authorized by the Trust's Board of Trustees (the "Board"), and shall promptly
furnish the Subadministrator with all amendments of or supplements to the
foregoing.
SECTION 2. FURNISHING OF EXISTING ACCOUNTS AND RECORDS. The Trust shall
promptly turn over to the Subadministrator such of the accounts and records
previously maintained by or for it as are necessary for the Subadministrator to
perform its functions under this Agreement. The Trust authorizes the
Subadministrator to rely on such accounts and records turned over to it and
hereby indemnifies and will hold the
Subadministrator, its successors and assigns, harmless of and from any and all
expenses, damages, claims, suits, liabilities, actions, demands and losses
whatsoever arising out of or in connection with any error, omission, inaccuracy
or other deficiency of such accounts and records or in the failure of the Trust
to provide any portion of such or to provide any information needed by the
Subadministrator to knowledgeably perform its functions.
SECTION 3. ADMINISTRATIVE DUTIES
(a) Subject to the direction and control of the Board and in cooperation
with the Adviser and the Administrator, the Subadministrator shall provide
administrative services necessary for the Trust's operations with respect to
each Series except those services that are the responsibility of the Adviser,
the Administrator or the Series' custodian or transfer agent, all in such manner
and to such extent as may be authorized by the Board and requested by the
Administrator.
(b) With respect to the Trust and each Series, as applicable, the
Subadministrator shall:
(i) oversee (A) the preparation and maintenance by the Adviser and the
Trust's custodian, interestholder record keeper 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,
interestholder record keeper and fund accountant; (C) the transmission
of purchase and redemption orders for Shares; (D) the notification to
the Adviser of available funds for investment; and (E) the performance
of fund accounting, including the calculation of the net asset value
of the Shares;
(ii) oversee the performance of administrative and professional services
rendered to the Trust by others, including its custodian and
interestholder record keeper as well as legal, auditing and
shareholder servicing and other services performed for each Series;
(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
shareholders;
(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;
(ix) if required, monitor sales of Shares and ensure that such Shares are
properly and duly registered with the Securities and Exchange
Commission and applicable state securities commissions;
(x) oversee the calculation of performance data for dissemination to
information services covering the investment company industry, for
sales literature of the Trust and other appropriate purposes;
(xi) oversee the determination of the amount of, and prepare and distribute
to appropriate parties notices announcing the distributions to
interestholders; and
(xii) advise the Trust and its Board on matters concerning the Trust and its
affairs.
(c) The Subadministrator shall prepare and maintain or cause to be
prepared and maintained records in such form for such periods and in such
locations as may be required by applicable regulations, all documents and
records relating to the services provided to the Trust pursuant to this
Agreement required to be maintained pursuant to the 1940 Act, rules and
regulations of the Securities and Exchange Commission, the Internal Revenue
Service and any other national, state or local government entity with
jurisdiction over the Trust. The accounts and records pertaining to the Trust
which are in possession of the Subadministrator 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 Subadministrator's normal
business hours. Upon the reasonable request of the Trust, copies of any such
accounts and records shall be provided promptly by the Subadministrator to the
Trust or the Trust's authorized representatives. In the event the Trust
designates a successor to any of the Subadministrator's obligations under this
agreement, the Subadministrator 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 Subadministrator under this Agreement.
SECTION 4. STANDARD OF CARE.
(a) The Subadministrator, in performing under the terms and conditions of
this Agreement, shall use its best judgment and efforts in rendering the
services described herein, and
shall incur no liability for its status under this agreement or for any
reasonable actions taken or omitted in good faith. As an inducement to the
Subadministrator's undertaking to render these services, the Trust hereby agrees
to indemnify and hold harmless the Subadministrator, its employees, agents,
officers and directors, from any and all loss, liability and expense, including
any legal expenses, arising out of the Subadministrator's performance under this
Agreement, or status, or any act or omission of the Subadministrator, its
employees, agents, officers and directors; provided that this indemnification
shall not apply to the Subadministrator's actions taken or failures to act in
cases of the Subadministrator's own bad faith, willful misconduct or gross
negligence in the performance of its duties under this Agreement; and further
provided, that the Subadministrator shall give the Trust notice and reasonable
opportunity to defend against any such loss, claim, damage, liability or expense
in the name of the Trust or the Subadministrator, 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 the Subadministrator, 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 the Subadministrator, the defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by any of them; but in case the Trust does not elect to assume
the defense of any such suit, or in case the Subadministrator does not approve
of counsel chosen by the Trust or the Subadministrator has been advised that it
may have available defenses or claims which are not available or conflict with
those available to the Trust, the Trust will reimburse the Subadministrator, its
employees, agents, officers and directors for the fees and expenses of any one
law firm retained as counsel by the Subadministrator or them. The
Subadministrator may, at any time, waive its right to indemnification under this
agreement and assume its own defense. The provisions of paragraphs (b) through
(d) of this Section 4 should not in any way limit the foregoing:
(a) The Subadministrator may rely upon the advice of the Trust or of
counsel, who may be counsel for the Trust or counsel for the Subadministrator,
and upon statements of accountants, brokers and other persons believed by it in
good faith to be expert in the matters upon which they are consulted, and the
Subadministrator shall not be liable to anyone for any actions taken in good
faith upon such statements.
(b) The Subadministrator may act upon any oral instruction which it
receives and which it believes in good faith was transmitted by the person or
persons authorized by the Board of the Trust to give such oral instruction. The
Subadministrator shall have no duty or obligation to make any inquiry or effort
of certification of such oral instruction.
(c) The Subadministrator shall not be liable for any action taken in good
faith reliance upon any written instruction or certified copy of any resolution
of the Board of the Trust, and the Subadministrator may rely upon the
genuineness of any such document or copy thereof reasonably believed in good
faith by the Subadministrator to have been validly executed.
(d) The Subadministrator may rely and shall be protected in acting upon
any signature, instruction, request, letter of transmittal, certificate, opinion
of counsel, statement,
instrument, report, notice, consent, order, or other paper document believed by
it to be genuine and to have been signed or presented by the purchaser, Trust or
other proper party or parties.
SECTION 5. EXPENSES. Subject to any agreement by the Subadministrator or
other person to reimburse any expenses of the Trust that relate to any Series,
the Trust shall be responsible for and assume the obligation for payment of all
of its expenses, including: (a) the fee payable under Section 6 hereof; (b) any
fees payable to the Adviser; (c) any fees payable to the Administrator; (d)
expenses of issue, repurchase and redemption of Shares; (e) interest charges,
taxes and brokerage fees and commissions; (f) premiums of insurance for the
Trust, its Trustees and officers and fidelity bond premiums; (g) fees, interest
charges and expenses of third parties, including the Trust's custodian,
interestholder and record keeper and fund accountant; (h) fees of pricing,
interest, dividend, credit and other reporting services; (i) costs of membership
in trade associations; (j) telecommunications expenses; (l) funds transmission
expenses; (m) auditing, legal and compliance expenses; (n) costs of forming the
Trust and maintaining its existence; (o) to the extent permitted by the 1940
Act, costs of preparing and printing the Series' Prospectuses, subscription
application forms and shareholder reports and delivering them to existing
shareholders; (p) expenses of meetings of interestholders and proxy
solicitations therefore; (q) costs of maintaining books of original entry for
portfolio and fund accounting and other required books and accounts, of
calculating the net asset value of shares of the Trust and of preparing tax
returns; (r) costs of reproduction, stationery and supplies; (s) fees and
expenses of the Trust's Trustees; (t) compensation of the Trust's officers and
employees who are not employees of the Adviser or Subadministrator or their
respective affiliated persons and costs of other personnel (who may be employees
of the Adviser, the Administrator, the Subadministrator or their respective
affiliated persons) performing services for the Trust; (u) costs of Trustee
meetings; (v) Securities and Exchange Commission registration fees and related
expenses; (w) state or foreign securities laws registration fees and related
expenses; and (x) all fees and expenses paid by the Trust in accordance with any
distribution plan adopted pursuant to Rule 12b-1 under the 1940 Act or under any
shareholder service plan or agreement.
SECTION 6. COMPENSATION.
(a) In consideration of the services performed by the Subadministrator
under this Agreement, the Trust will pay the Subadministrator, with respect to
each Series, a fee at the annual rate, as listed in Appendix B 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 under this agreement
during the prior calendar month. If the fees payable pursuant to this provision
begin to accrue before the end of any month or if this Agreement terminates
before the end of any month, the fees for the period from that date to the end
of that month or from the beginning of that month to the date of termination, as
the case may be, shall be prorated according to the proportion that the period
bears to the full month in which the effectiveness or termination occurs. Upon
the termination of this Agreement, the Trust shall pay to the Subadministrator
such compensation as shall be payable prior to the effective date of such
termination.
(b) In the event that this agreement is terminated, the Subadministrator
shall be reimbursed for reasonable charges and disbursements associated with
promptly transferring to its successor as designated by the Trust or the
Administrator the original or copies of all accounts and records maintained by
the Subadministrator under this agreement, and cooperating with, and providing
reasonable assistance to its successor in the establishment of the accounts and
records necessary to carry out the successor's or other person's
responsibilities.
(c) Notwithstanding anything in this Agreement to the contrary, the
Subadministrator and its affiliated persons may receive compensation or
reimbursement from the 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 1940 Act or (ii) the provision of
shareholder support or other services, including fund accounting services.
SECTION 7. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the date first above written
with respect to each Series of the Trust then existing and shall relate to every
other Series as of the later of the date on which the Trust's Registration
Statement relating to the shares of such Series becomes effective and the Series
commences operations.
(b) This Agreement shall continue in effect for twelve months and,
thereafter, shall be automatically renewed each year for an additional term of
one year.
(c) This Agreement may be terminated with respect to a Series at any time,
without the payment of any penalty, (i) by the Board on 60 days' written notice
to the Subadministrator or (ii) by the Subadministrator on 60 days' written
notice to the Trust. Upon receiving notice of termination by the
Subadministrator, the Trust shall use its best efforts to obtain a successor
subadministrator. Upon receipt of written notice from the Trust of the
appointment of a successor, and upon payment to the Subadministrator of all fees
owed through the effective termination date, and reimbursement for reasonable
charges and disbursements, the Subadministrator shall promptly transfer to the
successor subadministrator the original or copies of all accounts and records
maintained by the Subadministrator under this agreement including, in the case
of records maintained on computer systems, copies of such records in machine-
readable form, and shall cooperate with, and provide reasonable assistance to,
the successor sub-administrator in the establishment of the accounts and records
necessary to carry out the successor sub-administrator's responsibilities. For
so long as the Subadministrator continues to perform any of the services
contemplated by this Agreement after termination of this Agreement as agreed to
by the Trust and the Subadministrator, the provisions of Sections 4 and 6 hereof
shall continue in full force and effect.
SECTION 8. ACTIVITIES OF SUB-ADMINISTRATOR. Except to the extent
necessary to perform its obligations under this Agreement, nothing herein shall
be deemed to limit or restrict the Subadministrator's right, or the right of any
of its officers, directors or employees (whether or not they are a Trustee,
officer, employee or other affiliated person of the 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 9. COOPERATION WITH INDEPENDENT ACCOUNTANTS. The Subadministrator
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 10. SERVICE DAYS. Nothing contained in this Agreement is intended
to or shall require the Subadministrator, in any capacity under this agreement,
to perform any functions or duties on any day other than a business day of the
Trust or of a Series. Functions or duties normally scheduled to be performed on
any day which is not a business day of the Trust or of a Series shall be
performed on, and as of, the next business day, unless otherwise required by
law.
SECTION 11. NOTICES. Any notice or other communication required by or
permitted to be given in connection with this Agreement shall be in writing and
shall be delivered in person, or by first-class mail, postage prepaid, or by
overnight or two-day private mail service to the respective party. Notice to
the Trust shall be given as follows or at such other address as a party may have
designated in writing, shall be deemed to have been properly given:
▇▇▇▇▇▇▇▇ Capital Funds
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Notice to the Subadministrator shall be given as follows or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given:
Forum Administrative Services, Limited Liability Company
Two ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Notices and other communications received by the parties at the addresses
listed above.
SECTION 12. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY.
The Trustees of the Trust and the shareholders of each Series shall not be
liable for any obligations of the Trust or of the Series under this Agreement,
and the Subadministrator agrees that, in asserting any rights or claims under
this Agreement, it shall look only to the assets and property of the Trust or
the Series to which the Subadministrator's rights or claims relate in settlement
of such rights or claims, and not to the Trustees of the Trust or the
shareholder of the Series.
SECTION 13. MISCELLANEOUS
(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(b) This Agreement may be executed in two or more counterparts, each of
which, when so executed shall be deemed to be an original, but such counterparts
shall together constitute but one and the same instrument.
(c) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be illegal or
invalid.
(d) Section and Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
(e) This Agreement shall extend to and shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the fund without the written consent of the
Subadministrator, or by the Subadministrator, without the written consent of the
Trust authorized or approved by a resolution of the Board.
(f) This Agreement shall be governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
▇▇▇▇▇▇▇▇ CAPITAL FUNDS
------------------------------
FORUM ADMINISTRATIVE SERVICES,
LIMITED LIABILITY COMPANY
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▇▇▇▇▇▇▇▇ CAPITAL FUNDS
SUBADMINISTRATION AGREEMENT
APPENDIX A
SERIES OF THE FUND
International Equity Fund
▇▇▇▇▇▇▇▇ U.S. Smaller Companies Portfolio
▇▇▇▇▇▇▇▇ Emerging Markets Fund Institutional Portfolio
▇▇▇▇▇▇▇▇ International Smaller Companies Portfolio
▇▇▇▇▇▇▇▇ Global Asset Allocation Portfolio
▇▇▇▇▇▇▇▇ CAPITAL FUNDS
SUBADMINISTRATION AGREEMENT
APPENDIX B
SUBADMINISTRATION FEES
Fee As % of the Average Annual
Series of the Trust Daily Net Assets of the Series
------------------- ------------------------------
International Equity Fund
▇▇▇▇▇▇▇▇ International Smaller Companies
Portfolio and ▇▇▇▇▇▇▇▇ Global Asset Allocation
Portfolio 0.075%
▇▇▇▇▇▇▇▇ U.S. Smaller Companies Portfolio and
▇▇▇▇▇▇▇▇ Emerging Markets Fund
Institutional Portfolio 0.10%
The minimum administration fee per Series is $25,000.