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AMENDED AND RESTATED
ADMINISTRATION AGREEMENT
AGREEMENT dated as of June 6, 2000 between First Funds, a Massachusetts
business trust which may issue one or more series of shares of beneficial
interest (the "Trust"), with respect to the separate series of the Trust as
listed in Appendix B (the "Portfolios"), and ALPS Mutual Funds Services, Inc., a
Colorado corporation and a registered broker-dealer under the Securities
Exchange Act of 1934 (the "Administrator").
WHEREAS, the Trust wishes to employ the services of the Administrator;
and
WHEREAS, the Administrator wishes to provide such services under the
conditions set forth below; and
WHEREAS, the Trust and Administrator, effective as of November 19,
1997, amended and restated the Administration Agreement dated as of July 1, 1995
to extend the term thereof to June 30, 2000; and
WHEREAS, the Trust and Administrator desire to amend the Amended and
Restated Administration Agreement dated as of November 19, 1997 to clarify the
term "net capital" in Section 8.(iv) hereof to mean "total stockholders equity";
and
WHEREAS, the Trust and Administrator desire to amend certain
responsibilities of the Administrator as described in the Amended and Restated
Administration Agreement dated as of August 19, 1998; and
WHEREAS, the Trust and Administrator desire to amend the Amended and
Restated Administration Agreement dated as of March 3, 1999 to extend the term
thereof to June 30, 2002; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Trust and the Administrator agree as follows:
1. Appointment. The Trust hereby appoints and employs the Administrator
and the Administrator accepts the appointment as agent to perform the services
described herein.
2. Trust Administration. Subject to the direction and control of the
Board of Trustees of the Trust ("Trustees"), the Administrator shall assist in
supervising aspects of the Trust's operation of the Portfolios not otherwise
supervised by the Trust's investment adviser, transfer agent, custodian,
auditors, counsel or other agents.
To the extent not otherwise the responsibility of, or provided by, the
Trust or other agents of the Trust, the Administrator shall provide: (i)
non-investment related
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statistical and research data and such other reports, evaluations, and
information as the Trust may request from time to time; (ii) monthly compliance
testing and reporting based on the Investment Company Act of 1940 (the "1940
Act"), the Internal Revenue Code of 1986, as amended, and the investment
guidelines as outlined in each Portfolio's Prospectus and Statement of
Additional Information (such testing does not include testing for ERISA
compliance in respect of employee benefit plans invested in the Portfolios);
(iii) Code of Ethics reporting for the Trust's defined Access Persons, such
reporting to exclude all employees of the investment adviser(s) or
sub-adviser(s) of the Trust; (iv) internal clerical, accounting and legal
services; and (v) stationery and office supplies. The Administrator shall (a)
prepare and file with the Securities and Exchange Commission ("SEC") and
applicable state securities administrators the Portfolios' Registration
Statement, Prospectuses and Statements of Additional Information and Annual and
Semi-Annual Reports to Shareholders of the Portfolios, and cause such filings,
together with any other filings made with the SEC which may be relied upon by
investors to make an investment decision, to be reviewed and approved by
Administrator's outside counsel, at Administrator's expense, prior to such
filing; and (b) coordinate execution and filing by the Portfolios of all federal
and state tax returns and required tax filings other than those required to be
made by the Trust's transfer agent and custodian, and required filings with the
SEC including timely notices required pursuant to Rule 24f-2 under the 1940 Act,
and Semi-Annual Reports on Form N-SAR; and (c) prepare and file registrations,
renewals and other documents related to registration and qualification of the
shares and the Trust with state Blue Sky authorities with the advice and
consultation of the Trustees and the Trust's counsel. The Administrator shall
also: (i) maintain the Trust's existence, and during such times as the shares of
the Portfolios are publicly offered, maintain the registration and qualification
of the Portfolios' shares under federal and state law; (ii) to the extent not to
be maintained by the Trust's Portfolio accounting agent, keep and maintain the
financial accounts and records of the Trust; (iii) develop and implement
procedures for monitoring compliance with SEC, Internal Revenue Service and
Prospectus and Statement of Additional Information requirements; and (iv)
generally assist as requested from time to time by the Trustees in other aspects
of the Trust's operations, as appropriate, including monitoring performance of
the Trust's other agents.
In compliance with the requirements of Rule 31a-3 of the 1940 Act, the
Administrator hereby agrees that all records which it maintains with respect to
each Portfolio for the Trust are the property of the Trust, and further agrees
to surrender promptly to the Trust any of such records upon the Trust's request.
Administrator further agrees to preserve for the periods prescribed by Rule
31a-2 under the 1940 Act the records subject to Rule 31a-1 under the 1940 Act
that are maintained by the Administrator.
In performing its services as Administrator, Administrator shall comply
with all applicable laws, rules and regulations including without limitation all
rules and regulations made or adopted pursuant to the Securities Act of 1933, as
amended ("1933 Act"), the 1940 Act, the SEC, the National Association of
Securities Dealers, Inc. (the "NASD") or state securities commissions.
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In connection with all documents and filings to be prepared by it under
this Section 2, Administrator represents that all such Registration Statements
and Prospectuses filed on behalf of the Trust with the SEC under the 1933 Act
and the 1940 Act, as applicable, with respect to the shares, will be prepared in
conformity with the requirements of said Acts and rules and regulations of the
SEC thereunder. As used in this Agreement, the terms "Registration Statement"
and "Prospectus" shall mean any registration statement and prospectus (together
with the related Statements of Additional Information) filed with the SEC with
respect to any of the shares and any amendments and supplements thereto which at
any time shall have been filed with the SEC. Administrator further represents
that any Registration Statement and Prospectus, when such Registration Statement
becomes effective, will contain all statements required to be stated therein in
conformity with the 1933 and 1940 Acts and the rules and regulations of the SEC;
that all statements of fact contained in any such Registration Statement and
Prospectus will be materially true and correct when such Registration Statement
becomes effective; and that neither any Registration Statement nor any
Prospectus when such Registration Statement becomes effective, will include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements contained therein not
misleading.
Administrator agrees to advise the Trustees promptly in writing:
(a) of any request by the SEC for amendments to the
Registration Statement or Prospectuses then in effect;
(b) in the event of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
Prospectuses then in effect or the initiation of any proceeding for
that purpose;
(c) of the happening of any event which makes untrue any
statement of a material fact made in the Registration Statement or
Prospectuses in order to make the statements therein not misleading;
and
(d) of all the actions of the SEC with respect to any
Registration Statement or Prospectus which may from time to time be
filed with the SEC.
3. Fees. As compensation for the services, facilities and personnel
which the Administrator is to provide or cause to be provided pursuant to
Paragraph 2, each Portfolio of the Trust shall pay to the Administrator out of
said Portfolio's net assets, an annual fee, which shall be computed and accrued
daily and paid in arrears on the first business day of every month, at the
annual rate as referenced in Appendix A to this Agreement.
For the purpose of determining fees payable to the Administrator, the
value of the net assets of each Portfolio of the Trust shall be computed in the
manner described in the Portfolios' Prospectuses and Statements of Additional
Information from time to time in
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effect. The fee for any partial month under this Agreement shall be calculated
on a proportional basis.
The Administrator may, from time to time, employ or associate with
itself such person or persons as it may believe to be particularly fitted to
assist it in the performance of this Agreement. Such person or persons may be
officers and employees who are employed by both the Administrator and the Trust.
The compensation of such person or persons shall be paid by the Administrator
except for such compensation as the Trust may agree to pay directly to employees
of the Administrator who are also employed as officers of the Trust.
The services of the Administrator provided hereunder are not to be
deemed exclusive and the Administrator shall be free to render similar services
to others and engage in other activities. The Administrator shall be free to
enter other agreements with the Portfolios or the Trust for providing additional
services to the Portfolio or the Trust which are not covered by this Agreement,
and to receive additional compensation for such services. Such services may
include, but are not limited to, distribution of shares, pricing and bookkeeping
and transfer agent services. The Administrator will make available, at the
Administrator's expense, for consideration by the Trustees, officers or
employees of the Administrator to serve as Treasurer and Secretary of the Trust,
and such assistant officers as the Trustees may deem necessary or appropriate.
4. Seed Capital. Administrator will replace the seed capital (in the
amount of $100,000.00) of Fidelity Management & Research Corp. which had been
initially invested to activate the Portfolios of First Funds.
5. Expenses. The Administrator shall bear all expenses in connection
with its performance of services hereunder, including but not limited to legal
fees and expenses in providing the services and preparing the documents
described in Section 2 of this Agreement. The Portfolios will pay, or contract
with persons not parties to this Agreement to pay for, all its expenses other
than those expressly stated to be payable by the Administrator hereunder, which
expenses payable by each Portfolio shall include, without limitation, (i)
interest and taxes; (ii) brokerage commissions and other costs in connection
with the purchase or sale of securities and other investment instruments; (iii)
fees and expenses of the Trustees; (iv) legal expenses (other than legal fees
and expenses, including legal fees related to Blue Sky filings for the Trust,
which the Administrator at its sole discretion, may incur from time to time in
utilizing outside law firms in fulfillment of its duties of Administration
hereunder) and audit expenses; (v) custodian, pricing and bookkeeping, registrar
and transfer agent fees and expenses; (vi) state and jurisdiction registration
fees, sales report fees, fees (if any) for filing of Prospectuses and/or
Statements of Additional Information related to the Blue Sky registration and
qualification of the Trust and the Portfolios' shares for distribution under
state and federal securities laws; (vii) expenses of printing and mailing proxy
material to shareholders of each Portfolio; (viii) expenses relating to office
space, equipment and facilities for maintaining the Trust's organization and
business operation; (ix) compensation of officers and directors of the Trust as
may be determined from time to time; (x) all other expenses incidental to
holding meetings of the Portfolios' shareholders, including proxy
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solicitations therefor; (xi) expenses of typesetting Prospectuses and Statements
of Additional Information and supplements thereto; (xii) expenses of printing
and mailing Prospectuses and Statements of Additional Information and
supplements thereto sent to existing shareholders; (xiii) insurance premiums for
fidelity bonds and other coverage to the extent approved by the Trustees; (xiv)
association membership dues authorized by the Trustees; and (xv) such
nonrecurring or extraordinary expenses as may arise, including those relating to
actions, suits, or proceedings to which the Trust is a party or to which the
Portfolios' assets are subject and the legal obligation which the Trust may have
to indemnify the Trustees and officers with respect thereto.
The Administrator has no obligation to reimburse the Trust or its
Portfolios for (or to have deducted from its fees) any Trust or Portfolio
expense in excess of expense limitations, if any, imposed by state securities
authorities having jurisdiction over the Trust.
6. Limitation of Liability. The Administrator shall not be liable for
any damages or loss suffered by the Trust in connection with the matters to
which this Agreement relates, except for a loss resulting from willful
misfeasance, bad faith or gross negligence on its part in the performance, or
reckless disregard, of its duties under this Agreement. Any person, even though
also an officer, director, employee, or agent of the Administrator, who may be
or become an officer, Trustee, employee or agent of the Trust, shall be deemed,
when rendering services to or acting on any business of the Trust in any such
capacity (other than services or business in connection with the Administrator's
duties under this Agreement), to be rendering such service to or acting solely
for the Trust, and not as an officer, director, employee, or agent or one under
the control or direction of the Administrator even though paid by it.
7. Proprietary and Confidential Information. Administrator agrees on
behalf of itself and its officers, directors, agents and employees to treat
confidentially and as proprietary information of the Trust all records and other
information relative to the Trust and prior, present or potential shareholders,
and not to use such records and information for any purpose other than
performance of its responsibilities and duties hereunder. If the Administrator
is requested or required by, but not limited to, oral questions,
interrogatories, request for information or documents, subpoena, civil
investigation, demand or other action, proceeding or process or as otherwise
required by law, statute, regulation, writ, decree, or the like to disclose such
information, the Administrator will provide the Trust with prompt written notice
of any such request or requirement so that the Trust may seek an appropriate
protective order or other appropriate remedy and/or waive compliance with this
provision. If such order or other remedy is not sought, or obtained, or waiver
not received, the Administrator may without liability hereunder, disclose to the
person, entity or agency requesting or requiring the information, that portion
of the information that is legally required in the opinion of Administrator's
counsel.
8. Term. This Agreement became effective as of July 1, 1995, and shall
continue until June 30, 2002 (the "Initial Term"). Thereafter, this Agreement
shall continue automatically
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for successive annual periods ending June 30 of each year, provided such
continuance is specifically approved at least annually (i) by the Trustees, (ii)
by a vote of a majority of the outstanding shares (as defined in the 1940 Act),
and provided further that in either event such continuance is also approved by
the majority of the Trustees who are not parties to the Agreement or "interested
persons" (as defined in the 0000 Xxx) of any party to this Agreement, by vote
cast in person at a meeting called for the purpose of voting on such approval.
During the Initial Term, this Agreement may only be terminated (i) for "cause"
by the Trustees, or (ii) by vote of a majority (as defined in the 0000 Xxx) of
the outstanding shares of each Portfolio, or (iii) by the Administrator on not
less than sixty days' prior notice. After the Initial Term of this Agreement,
this Agreement may be terminable with respect to a Portfolio, on not less than
sixty days' notice by the Trustees, the Administrator, or by vote of a majority
of the outstanding shares of the Portfolios (as defined by the 1940 Act).
Termination for "cause" shall mean:
(i) willful misfeasance, bad faith, gross negligence or
reckless disregard on the part of the Administrator with respect to its
obligations and duties hereunder or under the Distribution Agreement of
even date herewith between Administrator and the Trust (the
"Distribution Agreement");
(ii) regulatory, administrative, or judicial proceedings
against Administrator which result in a determination that it has
violated any rule, regulation, order, or law and which in the
reasonable judgment of the Trustees, including a majority of the
Trustees who are not interested persons (as defined in the 0000 Xxx) of
any party to this Agreement, which substantially impairs the
performances of Administrator's obligations and duties hereunder or
under the Distribution Agreement;
(iii) financial difficulties on the part of Administrator
which are evidenced by the authorization or commencement of, or
involvement by way of pleading, answer, consent, or acquiescence in, a
voluntary or involuntary case under Title 11 of the United Stated Code,
as from time to time in effect, or any applicable law other than said
Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the
rights of creditors;
(iv) failure by the Administrator to maintain total
stockholders equity of at least $250,000 and to provide to the Trustees
at least annually an audited financial statement documenting the
existence of such total stockholders equity;
(v) failure by the Administrator to keep in effect
professional liability insurance satisfactory to the Trustees naming
the Administrator as insured and providing coverage with respect to the
Administrator's activities on behalf of the Trust in the amount of at
least $1,000,000, and to provide to the Trustees at least
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annually a certificate of insurance evidencing that such insurance is
in full force and effect; or
(vi) any other circumstance which in the reasonable judgment
of the Trustees, including a majority of the Trustees who are not
interested persons (as defined in the 0000 Xxx) of any party to this
Agreement, substantially impairs on an on-going basis the performance
of Administrator's obligations and duties hereunder or under the
Distribution Agreement.
9. Governing Law, Shareholder and Trustee Limitation of Liability. This
Agreement shall be governed by the law of the State of Colorado. The
Administrator is hereby expressly put on notice of the limitations of
shareholder and Trustee liability as set forth in the Declaration of Trust of
the Trust and agrees that obligations assumed by the Trust pursuant to this
Agreement shall be limited in all cases to the Trust and its assets. The
Administrator agrees that it shall not seek satisfaction of any such obligation
from the shareholders or any individual shareholder of the Trust, nor from the
Trustees or any individual Trustee of the Trust. The Administrator understands
that the rights and obligations of each series of the Trust under the Trust's
Declaration of Trust are separate and distinct from those of any and all other
series.
The captions in 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. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
ALPS MUTUAL FUNDS SERVICES, INC.
By:
-----------------------------
W. Xxxxxx Xxxxxxxxx
Title: Chairman
FIRST FUNDS
By:
-----------------------------
Xxxxxx Xxx
Title: Treasurer
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APPENDIX A
Effective July 1, 1995
ADMINISTRATION FEES
Money Market Portfolios: 7.5 Basis Points
Variable NAV Portfolios: 15 Basis Points
On new Portfolios of the Trust introduced after July 1, 1995, including the
Tennessee Tax-Free Portfolio, the Administrator will waive its fee for the
initial six months of operation, or until the Portfolio reaches $20 million in
average net assets, whichever occurs first. For the next six months of operation
of a new Portfolio, the Administrator will receive fees based on the following
structure:
1. 50% of the contractual fee up to $20 million in average net assets.
2. 75% of the contractual fee based on average net assets from $20
million to $25 million.
3. 100% of the contractual fee for average net assets above $25
million.
After one year of operation, the Administrator will collect its full contractual
fees.
Average net assets for each Portfolio shall be defined and computed in the
manner described in the Portfolio's Prospectuses and Statements of Additional
Information from time to time in effect.
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APPENDIX B
Effective November 19, 1997
FIRST FUNDS
Cash Reserve Portfolio
Municipal Money Market Portfolio
Tennessee Tax-Free Portfolio
Growth and Income Portfolio
Bond Portfolio
U.S. Government Money Market Portfolio
U.S. Treasury Money Market Portfolio
Capital Appreciation Portfolio
Intermediate Bond Portfolio
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