Exhibit 9.1
ADMINISTRATIVE AGREEMENT
AGREEMENT made this 31st day of December, 1994, between
EASTCLIFF TOTAL RETURN FUND (the "Fund") and FIDUCIARY MANAGEMENT, INC., a
Wisconsin corporation (the "Administrator").
W I T N E S S E T H :
WHEREAS, the Fund is in the process of registering with the
Securities and Exchange Commission as an open-end management investment
company under the Investment Company Act of 1940 (the "Act");
WHEREAS, upon so registering with the Securities and Exchange
Commission, the Fund will be a registered investment company; and
WHEREAS, the Fund desires to retain the Administrator to perform
the following management-related services for the Fund and the
Administrator desires to perform such services for the Fund.
NOW, THEREFORE, the Fund and the Administrator do mutually
promise and agree as follows:
1. Employment. The Fund hereby employs the Administrator to
be its Administrator for the period and on the terms set forth in this
Agreement. The Administrator hereby accepts such employment for the
compensation herein provided and agrees during such period to render the
services and to assume the obligations herein set forth.
2. Authority and Duties of the Administrator. The
Administrator shall perform the following management-related services for
the Fund:
(a) Prepare and maintain the books, accounts and other
documents specified in Rule 31a-1, under the Act in accordance
with the requirements of Rule 31a-1 and Rule 31a-2 under the
Act;
(b) Determine the Fund's net asset value in accordance
with the provisions of the Fund's Articles of Incorporation and
its Registration Statement;
(c) Respond to stockholder inquiries forwarded to it by
the Fund;
(d) Prepare the financial statements contained in reports
to stockholders of the Fund;
(e) Prepare reports to and filings with the Securities and
Exchange Commission (other than the Fund's Registration
Statement on Form N-1A);
(f) Furnish statistical and research data, clerical,
accounting and bookkeeping services and stationery and office
supplies; and
(g) Keep and maintain the Fund's financial accounts and
records, and generally assist in all aspects of the Fund's
operations to the extent agreed to by the Administrator and the
Fund.
The Administrator shall not act, and shall not be required to
act, as an investment adviser to the Fund and shall not have any authority
to supervise the investment or reinvestment of the cash, securities or
other property comprising the Fund's assets or to determine what
securities or other property may be purchased or sold by the Fund. The
Administrator shall for all purposes herein be deemed to be an independent
contractor and shall, unless otherwise expressly provided or authorized,
have no authority to act for or represent the Fund in any way or otherwise
be deemed an agent of the Fund.
3. Expenses. The Administrator, at its own expense and
without reimbursement from the Fund, shall furnish office space, and all
necessary office facilities, equipment and executive personnel for
performing the services required to be performed by it under the
Agreement. The Administrator shall not be required to pay any expenses of
the Fund. The expenses of the Fund's operations borne by the Fund include
by way of illustration and not limitation, directors fees paid to those
directors who are not interested persons of the Fund, as defined in the
Act, the professional costs of preparing and the costs of printing its
registration statements required under the Securities Act of 1933 and the
Act (and amendments thereto), the expense of registering its shares with
the Securities and Exchange Commission and in the various states, the
printing and distribution cost of prospectuses mailed to existing
shareholders, the cost of stock certificates, director and officer
liability insurance, the printing and distribution costs of reports to
stockholders, reports to government authorities and proxy statements,
interest charges, taxes, legal expenses, association membership dues,
auditing services, insurance premiums, brokerage and other expenses
connected with the execution of portfolio securities transactions, fees
and expenses of the custodian of the Fund's assets, printing and mailing
expenses and charges and expenses of dividend disbursing agents,
registrars and stock transfer agents.
4. Compensation of the Administrator. For the services to be
rendered by the Administrator hereunder, the Fund shall pay to the
Administrator an administration fee, paid monthly, based on the average
net assets of the Fund, as determined by valuations made as of the close
of each business day of the month. The administration fee shall be 1/12
of 0.2% of such net assets up to and including $30,000,000 and 1/12 of .1%
of the next $30,000,000 of daily net assets and 1/12 of 0.05% of the daily
net assets in excess of $60,000,000; provided, however, that the minimum
fee payable by the Fund shall be $15,000 annually (such minimum fee will
be waived for the first fiscal year). For any month in which this
Agreement is not in effect for the entire month, such fee shall be reduced
proportionately on the basis of the number of calendar days during which
it is in effect and the fee computed upon the net assets of the business
days during which it is so in effect.
5. Exclusivity. The services of the Administrator to the Fund
hereunder are not to be deemed exclusive and the Administrator shall be
free to furnish similar services to others as long as the services
hereunder are not impaired thereby. During the period that this Agreement
is in effect, the Administrator shall be the Fund's sole administrator.
6. Liability. In the absence of willful misfeasance, bad
faith, gross negligence or reckless disregard of obligations or duties
hereunder on the part of the Administrator, the Administrator shall not be
subject to liability to the Fund or to any shareholder of the Fund for any
act or omission in the course of, or connected with, rendering services
hereunder, or for any losses that may be sustained in the purchase,
holding or sale of any security.
7. Amendments and Termination. This Agreement may be amended
by the mutual consent of the parties. This Agreement may be terminated at
any time, without the payment of any penalty, by the board of directors of
the Fund upon the giving of ninety (90) days' written notice to the
Administrator. This Agreement may be terminated by the Administrator at
any time upon the giving of ninety (90) days' written notice to the Fund.
Upon termination of the Agreement the Administrator shall deliver to the
Fund all books, accounts and other documents then maintained by it
pursuant to Section 2 hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the day first above written.
FIDUCIARY MANAGEMENT, INC.
(the "Administrator")
By: ___________________________ By: _________________________________
Secretary President
EASTCLIFF TOTAL RETURN
(the "Fund")
By: ___________________________ By: _________________________________
Secretary President
Date: 12/31/94
Fiduciary Management, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Gentlemen:
Pursuant to Section 2(f) of the Administration Agreement dated
12/31/94, you are hereby authorized to perform the following ministerial
services in connection with EASTCLIFF TOTAL RETURN FUND (the "Fund")
investment in commercial paper master notes purchased through Firstar
Trust Co. Prior to 10:30 a.m. on each day the New York Stock Exchange is
open for trading you will review the activity account statement for the
Fund for the previous business day provided to you by Firstar Trust Co.
and a list of the securities transactions to be settled by the Fund on
such date. Such list of securities transactions will be compiled by you
from information supplied to you by the Fund or the Fund's investment
adviser.
After reviewing such list and statement you will subtract (the
sum obtained by adding [the purchase price and related commissions and
expenses to be paid by the Fund in connection with all purchases of
securities by the Fund to be settled on such date) to (the amounts to be
paid to honor redemption requests, if any, received by Firstar Trust Co.
on the previous business day)] from [the sum obtained by adding (the
proceeds to be received from all sales of securities of the Fund to be
settled on such date) to (the amounts received pursuant to all purchase
orders, if any, received by Firstar Trust Co. on the previous business
day)].
The Fund's investment adviser has determined that if the result
of such subtraction is a positive number, the remainder shall be invested
to the extent allowed by the Fund's prospectus in the commercial paper
master notes or repurchase agreements then offered by Firstar Trust Co.
bearing the highest rates of interest. In the event that one or more
commercial paper master notes bear the same rate of interest, the order of
preference in investing shall be based on the assets of the issuers, with
the issuer having the most assets being given the highest preference.
Investments in the commercial paper master notes of any issuer may not
exceed 5% of the Fund's total assets on the date of purchase.
The Fund's investment adviser has determined that if the result
of such subtractions is a negative number, the deficiency shall be
obtained by selling the commercial paper master notes then held by the
Fund bearing the lowest rates of interest. In the event that one or more
commercial paper master notes bear the same rate of interest, the order of
preference in selling shall be the inverse of the order set forth in the
preceding paragraph.
You are instructed to notify Firstar Trust Co. each day prior to
10:30 a.m. of the commercial paper master notes to be purchased and sold
by the Fund as determined above.
If the amount to be invested exceeds the amount which can be
invested as provided above, you will so inform the Fund's investment
adviser who will tell you how the excess should be invested.
These instructions will remain in effect unless and until you
are notified by the Fund or the Fund's investment adviser to the contrary.
Very truly yours,
EASTCLIFF TOTAL RETURN FUND
By: _________________________________
Accepted and agreed to
____________________________________
FIDUCIARY MANAGEMENT, INC.
By ______________________________
