AMENDED AND RESTATED ADMINISTRATION AGREEMENT
CO-ADMINISTRATOR
This amended and restated AGREEMENT dated as of May 20, 2003, 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 A (the "Portfolios"), and First Tennessee
Bank National Association, a national banking association with its principal
office in Memphis, Tennessee (the "Co-Administrator").
WHEREAS, the Trust has employed the services of the Co-Administrator
pursuant to an agreement between the Trust and Co-Administrator date July 1,
1995 (the "Co-Administrator Agreement"); and
WHEREAS, the Trust desires to amend and restate the Co-Administrator
Agreement to change the compensation payable to Co-Administrator, effective as
of January 1, 2002.
WHEREAS, the Trust desires to amend and restate the Co-Administrator
Agreement to change the compensation payable to the Co-Administrator, effective
as of July 1, 2003, and to amend Appendix A to the Co-Administrator Agreement to
reflect a change in the Portfolios of the Trust.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Trust and the Co-Administrator agree as
follows:
1. APPOINTMENT. The Trust hereby appoints and employs the Co-Administrator
and the Co-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, the Co-Administrator shall:
(i) coordinate document preparation and review for compliance with
requirements of the Office of Comptroller of the Currency ("OCC")
and other bank regulatory agencies with respect to marketing and
advertising materials, annual prospectus filings, annual and
semi-annual reports, exemptive applications, proxy statements,
and other regulatory filings and related activities;
(ii) assist the Trust in the management and monitoring of the expense
ratio budgets of all Portfolios, including the marketing budget
of the distributor;
(iii) assist the Trust with non-investment related research and
statistical data;
(iv) provide information and coordinate service provider responses to
governmental or regulatory inquiries;
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(v) assist in scheduling meetings and provide facilities and clerical
assistance in connection with presentations to brokers and
service providers; participate in meetings to present information
concerning administrative services;
(vi) provide facilities, clerical assistance, and other resources to
facilitate Board of Trustees meetings;
(vii) provide general consultation with service providers, fund counsel
and Trustees for the proper and efficient management of the
Trust; and
(viii) assist the Trust with such other administrative activities as may
be requested by the Trustees to the extent such activities are
permitted to be performed by banking organizations.
In compliance with requirements of Rule 3la-3 under the Investment Company
Act of 1940 (the "1940 Act"), the Co-Administrator hereby agrees that all
records which it maintains with respect to the Portfolios 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. Co-Administrator further agrees to
preserve for the periods prescribed by Rule 3la-2 under the 1940 Act the records
subject to Rule 3la-1 under the 1940 Act that are maintained by the
Co-Administrator.
In performing its services as Co-Administrator, Co-Administrator shall
comply with all 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"), or the 1940 Act, or by the SEC, the National Association
of Securities Dealers, Inc. ("NASD"), or state securities commissions,
applicable to such services.
3. FEES. As compensation for the services, facilities and personnel which
the Co-Administrator is to provide or cause to be provided pursuant to Paragraph
2, each Portfolio of the Trust shall pay to the Co-Administrator out of the
Portfolio's 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 of:
(a) 0.065% of the average net assets of the variable net asset value Portfolios
and 0.05% of the average net assets of the money market Portfolios until June
30, 2003, and (b) effective July 1, 2003, 0.085% of the average net assets of
the variable net asset value Portfolios and 0.05% of the average net assets of
the money market Portfolios.
For the purpose of determining fees payable to the Co-Administrator, the
value of the net assets of the Portfolio of the Trust shall be computed in the
manner described in the Portfolio's Prospectus and Statement of Additional
Information from time to time in effect. The fee for any partial month under
this Agreement shall be calculated on a proportional basis.
The Co-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 persons or person may be officers or
employees who may be employed by the Co-Administrator or any of its affiliates
and the Trust. The compensation of such person or persons shall be paid by the
Co-Administrator or its affiliates.
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The services of the Co-Administrator provided hereunder are not to be
deemed exclusive and the Co-Administrator shall be free to render similar
services to others and engage in other activities. To the extent permitted by
applicable law, the Co-Administrator or its affiliates shall be free to enter
other agreements with the Portfolios or the Trust for providing additional
services to the Portfolios 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, investment adviser, pricing and bookkeeping and
transfer agent services.
4. EXPENSES. The Co-Administrator shall bear all expenses in connection
with its performance of services hereunder. The Portfolios will pay, or contract
with persons not parties to this Agreement to pay, for all Portfolio expenses
other than those expressly stated to be payable by the Co-Administrator
hereunder, which expenses payable by the Portfolios 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) audit expenses, and legal expenses (other than legal fees and
expenses which the Co-Administrator at its sole discretion may incur
from time to time in utilizing outside law firms in fulfillment of
its duties of Co-Administration hereunder);
(v) custodian, pricing and bookkeeping, registrar and transfer 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 Blue Sky registration and qualification of
the Trust's and the Portfolios, shares for distribution under state
and federal securities laws;
(vii) expenses of printing and mailing proxy material to shareholders of
the Portfolios;
(viii) all other expenses incidental to holding meetings of the Portfolios,
shareholders, including proxy solicitations therefor;
(ix) expenses of typesetting Prospectuses and Statements of Additional
Information and supplements thereto;
(x) expenses of printing and mailing Prospectuses and Statements of
Additional Information and supplements thereto sent to existing
shareholders;
(xi) insurance premiums for fidelity bonds and other coverage to the
extent approved by the Trustees;
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(xii) association membership dues authorized by the Trustees; and
(xiii) such non-recurring 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 those
relating to the legal obligation which the Trust may have to
indemnify the Trustees and officers with respect thereto.
The Co-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.
5. LIMITATION OF LIABILITY. The Co-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, Trustee, employee or agent of the Co-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
Co-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 Co-Administrator even though
paid by it.
6. PROPRIETARY AND CONFIDENTIAL INFORMATION. Co-Administrator agrees on
behalf of itself and its 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 Co-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 Co-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 Co-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 Co-Administrator's counsel.
7. TERM. This Agreement shall become effective on January 2, 2002, or such
later date as may be agreed upon by the parties hereto, and shall continue for
one year after the effective date, and thereafter shall continue automatically
for successive annual periods, provided such continuance is specifically
approved at least annually:
(i) by the Trust's Board of Trustees or;
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(ii) by a vote of a majority of outstanding shares (as defined in the
0000 Xxx) of each Portfolio, provided in either event the
continuance is also approved by the majority of the Trust's
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.
This Agreement is terminable without penalty on not less than sixty days,
notice by the Trust's Board of Trustees, by vote of a majority of the
outstanding shares (as defined by the 0000 Xxx) of each Portfolio or by the
Co-Administrator.
8. GOVERNING LAW, SHAREHOLDER AND TRUSTEE LIMITATION OF LIABILITY. This
Agreement shall be governed by the law of the State of Tennessee. The
Co-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
Co-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 Co-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 the 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.
FIRST TENNESSEE BANK
NATIONAL ASSOCIATION
BY:
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TITLE:
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FIRST FUNDS
BY:
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TITLE:
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APPENDIX A
Effective May 20, 2003
FIRST FUNDS
Cash Reserve Portfolio
Municipal Money Market Portfolio
Tennessee Tax-Free Portfolio
Growth Portfolio
Bond Portfolio
U.S. Government Money Market Portfolio
Capital Appreciation Portfolio
Intermediate Bond Portfolio
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