EXHIBIT 9:
FORM OF
CUSTODY AND ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
REGISTRANT AND RUSHMORE TRUST AND SAVINGS, F.S.B.
Last approved October 27, 1994
ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
RUSHMORE FUND, INC.
AND
RUSHMORE TRUST AND SAVINGS, FSB
This Administrative Services Agreement (the "Agreement") is
entered into this 1st day of September, 1993 by and between
Rushmore Fund, Inc. (the "Fund") and Rushmore Trust and Savings,
FSB ("RTS" sometimes hereinafter referred to as the
"Administrator")
RECITALS
I. WHEREAS RTS and its personnel have expertise and
experience in providing custodian, transfer agent, shareholder
accounting and other administrative services to registered
investment management companies, and
II. WHEREAS the parties wish to set forth herein the manner
and terms upon which services will be provided.
NOW THEREFORE, the parties hereto agree as follows:
EMPLOYMENT OF RTS
1. The fund hereby employs RTS to perform the services as
set forth in Schedule 1 to this agreement.
2. As compensation for the services to be rendered The
Fund shall pay RTS an annual fee as set forth in Schedule 2 to
this agreement.
The fee will be accrued by The Fund daily and paid on such
terms as may from time-to-time be mutually agreeable to The Fund
and RTS. In the event of termination of this contract, the fee
shall be computed on the basis of the period ending on the last
business day on which this contract is in effect subject to a pro
rata adjustment based on the number of days elapsed in the
current month as a percentage of the total number of days in such
month.
In addition to the fees described above, RTS may impose a
charge of $5 per month on any account whose average daily balance
for the month falls below $500 due to redemptions. The fee will
continue to be imposed during months when the account balance
remains below $500. The fee will be imposed on the last business
day of the month. This fee will not be imposed on tax-sheltered
retirement plans or accounts established under the Uniform Gifts
or Transfers to Minors Act
3. Subject to and in accordance with the governing
instruments of the Fund and of RTS respectively, directors,
officers, agents and stockholders of the Fund are or may be
interested in RTS (or any successor thereof) as shareholders or
otherwise; and the effect of any such inter-relationships shall
be governed by said governing instruments and the applicable
provisions of the Investment Company Act of 1940.
4. This contract shall continue in effect so long as such
continuance is approved at least annually by a vote of a majority
of the Fund's Board of Directors, including the votes of a
majority of the Directors who are not parties to such contract or
interested persons of any such party, cast in person at a meeting
called for the purpose of voting such approval. Provided,
however, that (a) this Contract may be terminated without penalty
either by vote of the Board of Directors of the Fund or by vote
of a majority of the outstanding voting securities of the Fund,
on sixty-days prior written notice to RTS, (b) this Contract
shall automatically terminate in the event of its assignment
(within the meaning of the Investment Company Act of 1940), and
(c) this Contract may be terminated by RTS on sixty-days prior
written notice to the Fund. Any notice under this Contract shall
be given in writing, addressed and delivered, or mailed postpaid,
to the other party at any office of such party. As used in this
Agreement, the terms "interested persons" and "vote of a majority
of the outstanding securities" shall have the respective meanings
set forth in Section 2(a)(19) and Section 2(a)(42) of the
Investment Company Act of 1940.
5. The services of RTS to the Fund hereunder are not to be
deemed exclusive, and RTS shall be free to render similar
services to others so long as its services hereunder are not
impaired thereby. RTS shall for 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.
6. No provisions of this Agreement shall be deemed to
protect RTS against any liability to the Fund or its shareholders
to which it otherwise would be subject by reason of any willful
misfeasance, bad faith or gross negligence in the performance of
its duties or the reckless disregard of its obligations under
this Agreement. Nor shall any provisions hereof be deemed to
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protect any Director or officer of the Fund against any such
liability to which he might otherwise be subject by reason of any
willful misfeasance, bad faith or gross negligence in the
performance of his duties or the reckless disregard of his
obligations. 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.
7. Upon delivery of services by RTS to the Fund, RTS shall
prepare and submit to the Fund, an invoice for the amounts to be
paid by the Fund under the Agreement. The invoice shall contain
a description of the services rendered. The calculation of the
amount of the invoice shall be in accordance with the fee
schedule as set forth in Section 2. which has been reviewed as to
the reasonableness of the amounts by the Directors of the Fund
who are not "interested persons" of the Fund. Unless agreed
otherwise, within thirty (30) days of receipt of such invoice,
the Fund shall pay to RTS all amounts indicated as due and
payable notwithstanding the provisions of Section 8. of this
Agreement.
8. If the Fund or its designees shall determine any
discrepancy in the invoice, the Fund shall give RTS written
notice of such discrepancy and the amount thereof. Within ten
(10) days after receipt of such notice, RTS shall either pay the
Fund the amount of the discrepancy or inform the Fund in writing
that RTS disputes the existence or amount of the discrepancy. If
RTS disputes the existence or amount of the discrepancy, the
parties agree that for a period of thirty (30) days they shall
use their best efforts to resolve such dispute on a mutually
satisfactory basis.
9. Any dispute or disagreement arising between RTS and the
Fund in conjunction with any provision of this Agreement, or the
compliance or non-compliance therewith, or the validity or
enforceability thereof which is not settled within thirty (30)
days (or such other period as may be mutually agreed upon) from
the date that either party informs the other in writing that such
dispute or disagreement exists, shall be settled by arbitration
in accordance with rules set by a three member panel, one member
each selected by RTS and the Fund and the third being an attorney
selected by mutual agreement of RTS and the Fund, the aforesaid
with all charges submitted by said attorney to be shared equally
by RTS and the Fund. The member representing the Fund shall be
selected by a majority of the Directors of the Fund who are not
"interested persons" of the Fund. A decision shall be rendered
by the panel within thirty (30) days of a meeting held in such
place or places as may be agreed by the panel, and RTS and the
Fund shall comply with such decision. The decision of the panel
shall be final and not subject to judicial review, and judgment
may be entered thereon in accordance with applicable law in any
court having jurisdiction thereof.
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10. Absent willful misfeasance, bad faith, gross negligence
or reckless disregard of duties, RTS shall not be liable to the
Fund for any special, incidental, or consequential damages for
losses arising out of or relating to the performance of its
obligations under this Agreement, whether or not such damages or
losses were caused by the acts or omissions of RTS or its
employees. RTS is fully responsible for the accurate
transmission to the Fund of information provided to RTS by third
parties but is not responsible for the accuracy of the
information so provided.
11. All documents and files which may be or have been
furnished by RTS to the Fund and which may be produced or
prepared by RTS in connection with this Agreement shall be and
remain the exclusive property of the Fund.
11. RTS will preserve for the periods required in Rule 31a-
2 of the General Rules and Regulations under the Investment
Company Act of 1940 such records maintained by it as are required
to be maintained by Rule 31a-1 of such rules.
12. At the option of a majority of the Directors of the
Fund who are not "interested persons" of the Fund, the books and
records of RTS, insofar as such books and records pertain to the
services, shall be available for inspection by the Fund and its
agents at the offices of RTS during regular business hours, upon
prior written notice to RTS by the Fund.
13. Neither RTS nor the Fund shall be considered to be in
default in the performance of their respective obligations
hereunder to the extent that the performance of any such
obligation or obligations is prevented or delayed by Act of God
or any cause beyond the control of RTS or the Fund, as the case
may be. In the event of equipment breakdown its control, RTS
shall take reasonable steps to minimize service interruptions.
14. The services as provided by RTS in accordance with this
Agreement shall not be deemed accepted until the Fund has
verified the content and accuracy of those services provided by
RTS. The Fund shall notify RTS in writing within ten (10) days
of the Fund's receipt of services of its acceptance or rejection
of such services. If such notification is not received within
ten (10) days of the Trust's receipt of services, the services
will be deemed to have been accepted.
15. In the event that RTS fails to meet the performance
schedules (if any) contained herein and such failure is not
caused by the Fund, RTS shall take such steps as may be necessary
to improve the schedule(s) in such form as is required to meet
such performance or delivery schedules (if any) described herein.
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16. RTS and the Fund may amend, modify or supplement this
Agreement only by a written instrument executed by both RTS and
the Fund. If any such amendment, modification, or supplement
causes an increase or decrease in the price of, or time required
for, the performance of this Agreement, an equitable adjustment
shall be made, and this adjustment shall be mutually agreed upon
by RTS and the Fund and the Agreement modified in writing
accordingly.
17. All notices, demand and other communications required
or permitted to be given hereunder shall be made in writing and
shall be deemed to be duly given if personally delivered or if
deposited in the United States mail, registered or certified
mail, with postage prepaid, and addressed to the appropriate
party at the address set forth below, or at such other address as
the parties may designate in writing delivered in accordance with
the provisions of this Section 17.
If to RTS:
Rushmore Trust and Savings, FSB
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX. 00000
Attention: _______________________________________
If to the Fund:
Rushmore Fund, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. X'Xxxxxx, Chairman
18. This Agreement is intended by the parties as a full
expression of their agreement with respect to the subject matter
hereof and a complete and exclusive statement of the terms
thereof. No course of prior dealings between the parties and no
usage of trade shall be relevant or admissible to supplement,
explain, or vary any of the terms of this Agreement. Acceptance
of, or acquiescence in, a course of performance rendered under
this Agreement shall not be relevant or admissible to vary the
terms and meaning of this Agreement, even though the accepting or
acquiescing party has knowledge of the nature of the performance
and the opportunity to make objection. No representations,
undertakings, or agreements have been made or relied upon in the
making of this Agreement other than those specifically set forth
herein.
19. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland and shall be
binding upon and shall inure to the benefit of the parties
hereto.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.
WITNESS: RUSHMORE FUND, INC.
/s/Xxxxxx X. X'Xxxxxx
By: Chairman
WITNESS: RUSHMORE TRUST AND SAVINGS
/s/Xxxxxxx X. Major
By: Senior Vice President and
Chief Financial Officer
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EXHIBIT I
RUSHMORE TRUST AND SAVINGS, FSB
DESCRIPTION OF SERVICES
SHAREHOLDER SERVICING AND TRANSFER AGENT SERVICES
Services included:
Maintenance of individual shareholder accounts
Posting all transactions
Preparation of periodic shareholder statements
Preparation of transaction confirmations
Income distributions
Respond to inquiries from shareholders
Process account changes such as name or address
CUSTODIAN SERVICES
Services included:
Safekeeping of securities
Delivery of securities sold
Receipt of securities purchased
Retain Fund cash in separate account(s)
ADMINISTRATIVE SERVICES
Services Included:
General ledger accounting
Portfolio accounting
Daily share pricing
Maintenance of records per SEC regulations
SEC registration fees
State "blue-sky" fees
Directors fees and expenses
Insurance
Legal fees
Prospectus preparation
Tax return preparation
Shareholder report preparation
Printing
Postage
Printing of statement stock
Mailing envelopes
Postage
SCHEDULE 2
RUSHMORE TRUST AND SAVINGS, FSB
SCHEDULE OF FEES
RUSHMORE FUND, INC.
MONEY MARKET PORTFOLIO . . . . . . . . . 25 basis points per
annum (.0025%)
U.S. GOV'T INTERMEDIATE-TERM PORTFOLIO . 30 basis points per
annum (.0030%)
U.S. GOV'T LONG-TERM PORTFOLIO . . . . . 30 basis points per
annum (.0030%)
STOCK MARKET INDEX PLUS PORTFOLIO . . . 50 basis points per
annum (.0050%)
OVER-the-COUNTER INDEX PLUS PORTFOLIO . 50 basis points per
annum (.0050%)
PRECIOUS METALS INDEX PLUS PORTFOLIO . . 50 basis points per
annum (.0050%)
NOVA PORTFOLIO . . . . . . . . . . . . . 75 basis points per
annum (.0075%)
