EXHIBIT 99.9
TRUST FOR CREDIT UNIONS
REVISED AND RESTATED ADMINISTRATION AGREEMENT
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ADMINISTRATION AGREEMENT made this 29th day of March, 1993 between TRUST
FOR CREDIT UNIONS, a Massachusetts business trust (the "Fund"), and XXXXXXXX
CREDIT UNION FINANCIAL SERVICES LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Administrator").
W I T N E S S E T H
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WHEREAS, the Fund is an open-end, diversified management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Fund has retained Xxxxxxx, Sachs & Co. as the investment
adviser/transfer agent of the Fund (the "Adviser/Transfer Agent"); and
WHEREAS, the Fund has retained Xxxxxxxx Financial Services, Inc. and
Xxxxxxx, Sachs & Co., as distributors of the Fund (the "Distributors"); and
WHEREAS, the Fund presently offers units of beneficial interest ("Units")
in the Money Market Portfolio, Government Securities Portfolio and Mortgage
Securities Portfolio (such Portfolios (the "Current Portfolios") together with
all other portfolios subsequently established by the Fund being herein
collectively referred to as the "Portfolios"); and
WHEREAS, the Fund desires to retain the Administrator to render certain
administrative services to the Fund and the Administrator is willing to render
such services;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. Appointment of Administrator. The Fund hereby appoints the
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Administrator as administrator to provide certain administrative services to the
Fund for the periods and on the terms herein set forth. The Administrator
accepts such appointment and agrees to render the services herein set forth, for
the compensation herein provided.
2. Delivery of Documents. The Fund has delivered to the Administrator
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copies of each of the following documents:
(a) Agreement and Declaration of Trust of the Fund dated September
24, 1987, as amended and restated through December 1, 1987,
together with Amendment No. 1 thereto (such Agreement and
Declaration of Trust, as presently in effect and as amended from
time to time, is herein called the "Trust Agreement"), copies of
which are also on file with the Secretary of The Commonwealth of
Massachusetts;
(b) By-Laws of the Fund (such By-Laws as presently in effect and as
amended from time to time, are herein called the "By-Laws");
(c) Certified resolutions of the Trustees of the Fund approving the
terms of this Agreement;
(d) Amended and Restated Advisory Agreement dated June 20, 1991
between the Fund and Xxxxxxx, Xxxxx & Co. (such Agreement, as
presently in effect and
as amended and/or superseded from time to time, is herein called
the "Advisory Agreement");
(e) Distribution Agreement dated May 10, 1988, as amended by
Amendment No. 1 dated February 28, 1989, between the Fund and
Xxxxxxxx Financial Services, Inc., and Distribution Agreement
dated February 28, 1989 between the Fund and Xxxxxxx, Xxxxx & Co.
(the "Goldman Distribution Agreement") (such Agreements, as
presently in effect and as amended and/or superseded from time to
time, are herein called the "Distribution Agreements");
(f) Custodian Agreement (including related fee schedule) dated May
10, 1988 between the Fund and State Street Bank and Trust Company
(the "Custodian") (such Agreement, as presently in effect and as
amended and/or superseded from time to time, is herein called the
"Custodian Agreement");
(g) Transfer Agency Agreement dated May 10, 1988 between the Fund and
the Transfer Agent (such Agreement, as presently in effect and as
amended and/or superseded from time to time, is herein called the
"Transfer Agency Agreement");
(h) Prospectus and Statement of Additional Information of the Fund,
each dated December 29, 1992 (such Prospectus and Statement of
Additional Information, as presently in effect and as amended,
supplemented and/or superseded from time to time, are herein
called the "Prospectus" and "Additional Statement,"
respectively); and
(i) Registration Statement, as amended, of the Fund under the
Securities Act of 1933, as amended (the "1933 Act"), and the 1940
Act on Form N-1A as filed with the Securities and Exchange
Commission (the "Commission") on December 1, 1987 (such
Registration Statement, as presently in effect and as amended
from time to time, is herein called the "Registration
Statement").
The Fund agrees to promptly furnish the Administrator from time
to time with copies of all amendments of or supplements to or
otherwise current versions of any of the foregoing documents not
heretofore furnished.
3. Duties of Administrator.
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(a) The Administrator shall, subject to the general supervision of
the Trustees of the Fund, provide certain administrative services
to the Fund. In this regard, the Administrator shall
(i) review the preparation of reports and proxy statements to
Unitholders, the periodic updating of the Prospectus, the
Additional Statement and the Registration Statement and the
preparation of all other reports and documents required to
be filed by the Fund with the Commission;
(ii) periodically review the services performed by the Adviser,
the Custodian, the Distributors and the Transfer Agent, and
make such reports and recommendations to the Trustees of the
Fund concerning the performance of such services as the
Trustees reasonably request or as the Administrator deems
appropriate;
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(iii) to the extent requested by the Trustees or officers of the
Fund, negotiate changes to the terms and provisions of the
Advisory Agreement, the Custodian Agreement, the Transfer
Agency Agreement and the Goldman Distribution Agreement;
(iv) provide the Fund with personnel to perform such executive,
administrative and clerical services as may be reasonably
requested by the Trustees or officers of the Fund;
(v) provide facilities, equipment and personnel to serve the
needs of investors, including communications systems and
personnel to handle Unitholder inquiries;
(vi) develop and monitor investor programs for credit unions;
(vii) provide assistance in connection with the processing of Unit
purchase and redemption orders as reasonably requested by
the Transfer Agent or the Trustees or officers of the Fund;
(viii) inform the Adviser in connection with the portfolio
management of the Fund as to anticipated purchases and
redemptions by Unitholders and new investors;
(ix) provide information and assistance as requested by the
Adviser/Transfer Agent in connection with the registration
of the Fund's Units in accordance with state securities
requirements;
(x) make available and distribute to Unitholders information
prepared by the Fund as requested by the Trustees or
officers of the Fund;
(xi) handle Unitholder problems and calls relating to
administrative matters;
(xii) provide advice and assistance concerning the regulatory
requirements applicable to credit unions that invest in the
Fund;
(xiii) provide assistance in connection with the preparation of the
Fund's periodic financial statements and annual audit as
reasonably requested by the Trustees or officers of the Fund
or the Fund's independent accountants;
(xiv) furnish stationery and office supplies; and
(xv) generally assist in the Fund's operations.
(b) In addition, the Administrator shall be responsible generally for
providing such office space and equipment and telephone
facilities and personnel as may be necessary or desirable for
performance of all of its services hereunder.
(c) The Administrator, in the performance of its duties hereunder,
shall act in conformity with the Trust Agreement, By-Laws,
Prospectus, Additional Statement and Registration Statement and
with the instructions and directions of the Trustees and officers
of the Fund, and will use its best efforts to comply with
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and conform to the requirements of the 1940 Act and all other
applicable federal and state laws, regulations and rulings.
(d) The Administrator shall render to the Fund and the
Adviser/Transfer Agent such periodic and special reports as
either of them may reasonably request.
(e) The services of the Administrator hereunder are not deemed
exclusive and the Administrator shall be free to render similar
services to others so long as its services under this Agreement
are not impaired thereby.
4. Expenses. During the term of this Agreement, the Administrator will
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pay all costs incurred by it in connection with the performance of its duties
under this Agreement. Without limiting the foregoing, the Administrator will
pay the compensation and expenses of all of its personnel and will make
available, without expense to the Fund, the services of such of its partners,
officers and employees as may be duly elected officers or Trustees of the Fund,
subject to their individual consent to serve and to any limitations imposed by
law. The Administrator will not be required to pay any expense of the Fund
other than those specifically allocated to it in this paragraph 4. The
Administrator agrees, however, that if in any fiscal year the aggregate expenses
of any Portfolio (as defined under the securities regulations of any state
having jurisdiction over such Portfolio) exceed the expense limitations of any
such state, the Fund may deduct from the fees to be paid hereunder, or the
Administrator will bear, that portion of such excess which bears the same
relation to the total of such excess as the Administrator's fee hereunder bears
to the total fees otherwise payable for the fiscal year by the Fund pursuant to
this Agreement and the Advisory Agreement between the Fund and the Adviser with
respect to the same Portfolio. Such deduction or payment, if any, will be
estimated and accrued daily and paid on a monthly basis.
5. Compensation.
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(a) For all services provided and expenses assumed by the
Administrator pursuant to this Agreement with respect to the
Money Market Portfolio, the Fund will pay to the Administrator as
full compensation therefor a monthly fee at the annual rate of
.10% of the average daily net assets of the Money Market
Portfolio.
(b) For all services provided and expenses assumed by the
Administrator pursuant to this Agreement with respect to the
Government Securities Portfolio, the Fund will pay to the
Administrator as full compensation therefor a monthly fee at the
annual rate of .10% of the average daily net assets of the
Government Securities Portfolio;
(c) For all services provided and expenses assumed by the
Administrator pursuant to this Agreement with respect to the
Mortgage Securities Portfolio, the Fund will pay to the
Administrator as full compensation therefor a monthly fee at the
annual rate of .05% of the average daily net assets of the
Government Securities Portfolio;
(d) For all services provided and expenses assumed by the
Administrator pursuant to this Agreement with respect to the
Portfolios other than the Current Portfolios, the Fund will pay
to the Administrator as full compensation therefor a monthly fee
at an annual rate or rates mutually agreed upon by the
Administrator and the Fund of the average daily net assets of
such Portfolio.
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(e) The foregoing fees shall be computed on the average net assets on
each day and will be paid to the Administrator monthly.
6. Books and Records. The Administrator shall maintain all of the Fund's
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records relating to or arising out of the services provided by the Administrator
hereunder. The Administrator agrees that all records which it maintains for the
Fund are the property of the Fund and it will surrender promptly to the Fund any
of such records upon the Fund's request. The Administrator further agrees to
preserve for the periods prescribed by Rule 31a-2 of the Commission under the
1940 Act any such records as are required to be maintained by Rule 31a-1 of the
Commission under the 1940 Act.
7. Indemnification.
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(a) The Administrator shall not be liable for any error in judgment
or mistake of law or for any loss suffered by the Fund in
connection with the matters to which this Agreement relates,
except a loss resulting from willful misfeasance, bad faith or
gross negligence in the performance of its obligations and duties
under this Agreement, or by reason of its reckless disregard of
its obligations and duties under this Agreement.
(b) The Fund hereby agrees to indemnify and hold harmless the
Administrator, its officers, partners and employees and each
person who controls the Administrator (collectively, the
"Indemnified Parties") against any and all losses, claims,
damages or liabilities, joint or several, to which any such
Indemnified Party may become subject under the 1933 Act, the
Securities Exchange Act of 1934 (as amended), the 1940 Act or
other federal or state statutory law or regulation, at common law
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are
based upon:
(i) any untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission to state a
material fact required to be stated or necessary to make the
statements made not misleading in (x) the Prospectus,
Additional Statement or the Registration Statement, (y) any
advertisements or sales literature authorized by the Fund
for use in the offer and sale of Units of any Portfolio, or
(z) any application or other document filed in connection
with the qualification of the Fund or Units of any Portfolio
under the Blue Sky or securities laws of any jurisdiction,
except insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon any such untrue statement or omission or
alleged untrue statement or omission either pertaining to a
breach of the Administrator's duties in connection with this
Agreement or made in reliance upon and in conformity with
information furnished to the Fund by or on behalf of the
Administrator pertaining to or originating with the
Administrator for use in connection with any document
referred to in clauses (x), (y) or (z), or
(ii) subject to clause (i) above, the Administrator acting under
this Agreement in accordance with its terms; and the Fund
will reimburse each Indemnified Party for any legal or other
expenses incurred by such Indemnified Party in connection
with investigating or defending any such loss, claim,
damage, liability or action.
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(c) If the indemnification provided for in paragraph 7(b) is
available in accordance with the terms of such paragraph but is
for any reason held by a court to be unavailable from the Fund,
then the Fund shall contribute to the aggregate amount paid or
payable by the Fund and the Indemnified Parties as a result of
such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect
(i) the relative benefits received by the Fund and the
Indemnified Parties in connection with the operations of the
Fund, (ii) the relative fault of the Fund and such Indemnified
Parties, and (iii) any other relevant equitable considerations.
The Fund and the Administrator agree that it would not be just
and equitable if contribution pursuant to this subparagraph (c)
were determined solely by pro rata allocation or any other method
of allocation which does not take into account the equitable
considerations referred to above in this subparagraph (c). The
aggregate amount paid or payable as a result of the losses,
claims, damages or liabilities (or actions in respect thereof)
referred to above in this subparagraph (c) shall be deemed to
include any legal or other expenses incurred by the Fund and
Indemnified Parties in connection with investigating or defending
any such loss, claim, damage, liability or action. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who is not guilty of such fraudulent
misrepresentation.
(d) It is understood, however, that nothing in this paragraph 7 shall
protect any Indemnified Party against, or entitle any Indemnified
Party to indemnification against, or contribution with respect
to, any liability to the Fund or its Unitholders to which such
Indemnified Party is subject, by reason of its willful
misfeasance, bad faith or gross negligence in the performance of
its duties, or by reason of any reckless disregard of its
obligations and duties, under this Agreement, or otherwise to an
extent or in a manner that is inconsistent with Section 17(i) of
the 1940 Act.
8. Duration and Termination. This Agreement shall become effective with
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respect to the Government Securities Portfolio on the date hereof and shall
become effective with respect to the Money Market Portfolio on such date as the
parties shall mutually determine in writing. This Agreement shall remain in
effect, unless sooner terminated as provided herein, until March 31, 1994 and
shall continue from year to year thereafter, provided, however, that each such
continuance must be approved by a vote of a majority of the Trustees of the Fund
and of the Trustees who are not interested persons (as defined in the 0000 Xxx)
of any party to this Agreement, cast in person at a meeting called for the
purpose of voting on such continuance. This Agreement may be terminated as to
any Portfolio at any time, without the payment of any penalty, by (i) a vote of
a majority of the Trustees of the Fund who are not interested persons (as
defined in the 0000 Xxx) of any party to this Agreement or by vote of a majority
of the outstanding Units (as so defined) representing the interests in the
Portfolio affected thereby, on 60 days' written notice to the Administrator, or
(ii) by the Administrator on 60 days' written notice to the Fund. This Agreement
will automatically and immediately terminate in the event of its assignment (as
defined by the 1940 Act).
9. Amendment of Agreement. This Agreement may be amended by mutual
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consent, but the consent of the Fund must be approved by vote of a majority of
those Trustees of the Fund 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 amendment. Any amendment to
this Agreement shall only be by written instrument which shall make specific
reference to this Agreement and which shall be signed by the party against which
enforcement of such change, waiver, discharge or termination is sought.
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10. Status of Administrator as Independent Contractor. The Administrator
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shall for all purposes herein be deemed to be an independent contractor and
shall, unless otherwise expressly provided herein or authorized by the Trustees
of the Fund or the Adviser/Transfer Agent, respectively, from time to time, have
no authority to act for or represent the Fund or the Adviser/Transfer Agent in
any way or otherwise be deemed an agent of the Fund or the Adviser/ Transfer
Agent.
11. Unitholder Liability. This Agreement is executed by or on behalf of
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the Fund with respect to each of its Portfolios and the obligations hereunder
are not binding upon any of the Trustees, officers or Unitholders of the Fund
individually but are binding only upon the particular Portfolio to which such
obligations pertain and the assets and property of such Portfolio.
12. Notices. Without limiting the other provisions hereof, notices and
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other writings delivered or mailed postage prepaid to the Fund, 0000 Xxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: President, with copy to Xxxxxx X.
Xxxxx, Xxxxx & Xxxxxxx, 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx
00000 or to the Administrator, 0000 Xxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000, Attention: Xxxxxxx X. Xxxxxx, or to such other address
as the Fund or the Administrator may hereafter specify by written notice to the
most recent address specified by the party to whom such notice is addressed,
shall be deemed to have been properly delivered or given hereunder to the
respective addressee.
13. Miscellaneous. The captions in this Agreement are included for
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convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. 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. This Agreement shall be construed in accordance with
applicable federal law and (except as to paragraph 11 hereof which shall be
construed in accordance with the laws of The Commonwealth of
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Massachusetts) the laws of the State of Illinois and shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, subject to paragraph 8 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
ATTEST: TRUST FOR CREDIT UNIONS
/s/ Xxxxx Xxxxx By /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Vice President of the Trust
XXXXXXXX CREDIT UNION FINANCIAL
SERVICES
LIMITED PARTNERSHIP
By Xxxxxxxx Financial Services,
Inc., Corporate General
ATTEST: Partner
/s/ Xxxxx Xxxxx By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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