EXHIBIT 13(e)
ADMINISTRATION AGREEMENT
Agreement made as of May 31, 1997, as amended May 15, 2002 and June 1,
2004, between XXX XXXXXX MUNICIPAL TRUST, a Massachusetts business trust (the
"Fund"), and XXX XXXXXX FUNDS INC., a Delaware corporation (the "Administrator).
WHEREAS, the Fund intends to operate as a closed-end management
investment company, and is so registered under the Investment Company act of
1940, as amended (the "1940 Act");
WHEREAS, the Fund has authorized the issuance of its common shares of
beneficial interest, par value $.01 per share (the "Common Shares") and a class
of preferred shares of beneficial interest with preference rights, the relative
rights, terms and preferences of which are to be determined by the Board of
Trustees of the Fund (the "Preferred Shares") (holders of the Common Shares and
Preferred Shares are referred to collectively herein as the "Shareholders");
WHEREAS, the Fund wishes to retain the Administrator to provide certain
administrative services to the Fund, under the terms and conditions stated
below, and the Administrator is willing to provide such services for the
compensation set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties agree as follows:
1. Appointment. The Fund hereby appoints the Administrator to
administer the Fund, and the Administrator accepts such appointment and agrees
that it will furnish the services set forth in paragraph 2 below.
2. Services and Duties of the Administrator. Subject to the
supervision of the Fund's Board of Trustees (the "Board"), the Administrator
will:
(a) Prepare and assemble all reports required to be sent to
the Fund Shareholders, and arrange for the printing and dissemination
of such reports to Shareholders;
(b) Assemble all reports required to be filed with the
Securities and Exchange Commission (the "SEC") on Form N-SAR, or such
other form as the SEC may substitute for Form N-SAR, and file such
completed form with the SEC;
(c) Arrange for the dissemination to Shareholders of the
Fund's proxy materials and oversee the tabulation of proxies by the
Fund's transfer agent;
(d) Negotiate the terms and conditions under which custodian
services will be provided to the Fund and the fees to be paid by the
Fund to its custodian (which may or may not be an affiliate of the
Fund's investment adviser) in connection therewith;
(e) Negotiate the terms and conditions under which dividend
disbursing services will be provided to the Fund, and the fees to be
paid by the Fund in connection therewith; review the provision of
dividend disbursing services to the Fund;
(f) Determine the amounts available for distribution as
dividends and distributions to be paid by the Fund to its Shareholders;
prepare and arrange for the printing of dividend notices to
Shareholders; and provide the Fund's dividend disbursing agent and
custodian with such information as is required for such parties to
effect the payment of dividends and distributions and to implement the
Fund's dividend reinvestment plan;
(g) Provide Shareholder services to holders or potential
holders of the Fund's securities including but not limited to
responding to Shareholder requests for information;
(h) Assist in providing to the Fund's independent accountants
such information as is necessary for such accountants to prepare and
file the Fund's federal income and excise tax returns and the Fund's
state and local tax returns;
(i) Assist the Fund's investment adviser in monitoring
compliance of the Fund's operations with the 1940 Act and with its
investment policies and limitations as currently in effect;
(j) In connection with the issuance of the Preferred Shares,
calculate, monitor and provide the rating agencies such asset coverage
and liquidity reports as the Board deems advisable with respect to
obtaining a rating on the Preferred Shares;
(k) Oversee the maintenance of the Fund's books and records
under Rule 31a-1 under the 1940 Act by the custodians and accounting
agent, as applicable; and
(l) Make such reports and recommendations to the Board as the
Board reasonably requests or deems appropriate.
3. Public Inquiries. The Fund and the Administrator agree that the
Administrator will not be responsible for replying to questions or requests for
information concerning the Fund from Shareholders, brokers or the public. The
Fund will inform the Administrator of the party or parties to whom any such
questions or requests should be directed, and the Administrator will refer such
questions and requests to such party or parties.
4. Compliance with the Fund's Governing Documents and Applicable Law.
In all matters relating to the performance of this Agreement, the Administrator
will act in conformity with the Declaration of Trust, By-Laws and registration
statements of the Fund and with the directions of the Board and Fund executive
officers and will conform
to and comply with the requirements of the 1940 Act and all other applicable
federal or state laws and regulations.
5. Service Not Exclusive. The Administrator's services hereunder are
not deemed to be exclusive, and the Administrator is free to render
administrative or other services to other funds or clients so long as the
Administrator's services under this Agreement are not impaired thereby.
6. Use of Employees of the Investment Adviser. The Fund acknowledges
and agrees that the Administrator may, at its own cost, use employees of Xxx
Xxxxxx Asset Management, the Fund's investment adviser, to perform a portion of
or all of the services required to be performed by the Administrator hereunder.
7. Limitation of Liability of the Administrator. The Administrator will
not be liable for any error of judgment or mistake of law or for any loss
suffered by the Fund or its Shareholders in connection with the performance of
its duties under this Agreement, except a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the performance of its
duties or from reckless disregard by it of its duties under this Agreement.
8. Limitation of Liability of the Trustees and Shareholders of the
Fund. Pursuant to the provisions of Article V, Section 5.5 of the Fund's
Declaration of Trust as amended or restated as of the date hereof, this
Agreement is entered into by the Board not individually, but as trustees under
such Declaration of Trust and the obligations of the Fund hereunder are not
binding upon any such trustees or Shareholders of the Fund, but bind only the
trust estate.
9. Duration and Termination. This Agreement will become effective upon
the date hereabove written and shall continue in effect thereafter until
terminated without penalty by the Administrator or the Fund upon 30 days written
notice to the other and shall automatically terminate in the event of its
assignment as the term is defined in the 1940 Act.
10. Amendment of this Agreement. No provision of this Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver or
discharge or termination is sought.
11. Governing Law. This Agreement shall be construed in accordance with
the laws of the Commonwealth of Massachusetts and 1940 Act, without giving
effect to the principles of conflicts of law thereof. To the extent that the
applicable laws of the Commonwealth of Massachusetts conflict with the
applicable provisions of the 1940 Act, the latter shall control.
12. Miscellaneous. The captions of this Agreement are included for
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.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below, as amended on June 1, 2004.
XXX XXXXXX MUNICIPAL TRUST
/s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
Executive Vice President and Principal
Executive Officer
XXX XXXXXX FUNDS INC.
/s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
Managing Director
