ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of this 20th day of September, 2000, by and
between XXXXX FAMILY OF REAL ESTATE FUNDS (the "Trust"), an Ohio business trust
having its principal place of business at 0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, and ULTIMUS FUND SOLUTIONS, LLC ("Ultimus"), a limited
liability company organized under the laws of the State of Ohio and having its
principal place of business at 000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx
00000.
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires that Ultimus provide certain administrative
services for each series of the Trust, listed on Schedule A attached hereto and
made part of this Agreement, as such Schedule A may be amended from time to time
(individually referred to herein as the "Portfolio" and collectively as the
"Portfolios"); and
WHEREAS, Ultimus is willing to perform such services on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. RETENTION OF ULTIMUS.
The Trust hereby retains Ultimus to act as the administrator of the Trust
and to furnish the Trust with the services as set forth below. Ultimus hereby
accepts such employment to perform such duties.
Ultimus shall provide the Trust with regulatory compliance and reporting
services; shall provide the Trust with overall day-to-day fund administration
management; shall provide all necessary office space, equipment, personnel,
compensation and facilities for handling the affairs of the Trust; and shall
provide such other services as the Trust may request that Ultimus perform
consistent with its obligations under this Agreement. Without limiting the
generality of the foregoing, Ultimus shall:
(a) calculate Trust expenses and administer all disbursements for the
Trust, and as appropriate compute the Trust's yields, total return,
expense ratios and portfolio turnover rate;
(b) prepare and coordinate, in consultation with Trust counsel, the
preparation of prospectuses, statements of additional information,
registration statements and proxy materials;
(c) prepare such reports, notice filing forms and other documents
(including reports regarding the sale and redemption of shares of
the Trust as may be required in order to comply with federal and
state securities law) as may be necessary or desirable to make
notice filings relating to the Trust's shares with state securities
authorities, monitor the sale of Trust shares for compliance with
state securities laws, and file with the appropriate state
securities authorities compliance filings as
may be necessary or convenient to enable the Trust to make a
continuous offering of its shares;
(d) develop and prepare, with the assistance of the Trust's investment
adviser, communications to shareholders, including the semi-annual
and annual report to shareholders, coordinate the mailing of
prospectuses, notices, proxy statements, proxies and other reports
to Trust shareholders, and supervise and facilitate the proxy
solicitation process for all shareholder meetings, including the
tabulation of shareholder votes;
(e) administer contracts on behalf of the Trust with, among others, the
Trust's investment adviser, distributor, custodian, transfer agent
and fund accountant;
(f) supervise the Trust's transfer agent with respect to the payment of
dividends and other distributions to shareholders;
(g) calculate performance data of the Trust for dissemination to
information services covering the investment company industry;
(h) file all of the Trust's tax returns, and prepare and mail annual
Form 1099, Form W-2P and Form 5498 to appropriate shareholders, with
a copy to the Internal Revenue Service;
(i) assist with the layout and printing of prospectuses and supplements
thereto, and assist with and coordinate layout and printing of the
Trust's semi-annual and annual reports to shareholders;
(j) provide individuals reasonably acceptable to the Trust's Trustees to
serve as officers of the Trust, who will be responsible for the
management of certain of the Trust's affairs as determined by the
Trustees;
(k) advise the Trust and its Trustees on matters concerning the Trust
and its affairs including making recommendations regarding dividends
and distributions;
(l) obtain and keep in effect fidelity bonds and directors and
officers/errors and omissions insurance policies for the Trust in
accordance with the requirements of the 1940 Act and as such bonds
and policies are approved by the Trustees;
(m) monitor and advise the Trust and its Portfolios on their registered
investment company status under the Internal Revenue Code of 1986;
(n) monitor and advise the Trust and its Portfolios on compliance with
applicable limitations as imposed by the 1940 Act and the rules and
regulations thereunder or set forth in the Trust's or any
Portfolio's then current Prospectus or Statement of Additional
Information;
(o) provide such internal legal services as are requested by the Trust
including, but not limited to, the coordination of meetings and
preparation of materials for the quarterly and special meetings of
the Trustees and meetings of the Trust's shareholders;
2
(p) cooperate with, and take all reasonable actions in the performance
of its duties under this Agreement to ensure that all necessary
information is made available to, the Trust's independent public
accountants in connection with the preparation of any audit or
report requested by the Trust;
(q) cooperate with, and take all reasonable actions in the performance
of its duties under this Agreement to ensure that the necessary
information is made available to the Securities and Exchange
Commission (the "SEC") or any other regulatory authority in
connection with any regulatory examination or audit of the Trust or
the investment adviser of the Trust;
(r) perform all administrative services and functions of the Trust to
the extent administrative services and functions are not provided to
the Trust by other agents of the Trust;
(s) prepare and file with the SEC the semi-annual report for the Trust
on Form N-SAR and all required notices pursuant to Rule 24f-2 under
the 1940 Act; and
(t) furnish advice and recommendations with respect to other aspects of
the business and affairs of the Trust as the Trust and Ultimus shall
determine desirable.
2. SUBCONTRACTING.
Ultimus may, at its expense and, upon written notice to the Trust,
subcontract with any entity or person concerning the provision of the services
contemplated hereunder; provided, however, that Ultimus shall not be relieved of
any of its obligations under this Agreement by the appointment of such
subcontractor and provided further, that Ultimus shall be responsible, to the
extent provided in Section 7 hereof, for all acts of such subcontractor as if
such acts were its own.
3. ALLOCATION OF CHARGES AND EXPENSES.
Ultimus shall furnish at its own expense the executive, supervisory and
clerical personnel necessary to perform its obligations under this Agreement.
Ultimus shall also pay all compensation, if any, of officers of the Trust who
are affiliated persons of Ultimus.
The Trust assumes and shall pay or cause to be paid all other expenses of
the Trust not otherwise allocated herein, including, without limitation,
organization costs, taxes, expenses for legal and auditing services, the
expenses of preparing (including typesetting), printing and mailing reports,
prospectuses, statements of additional information, proxy solicitation material
and notices to existing shareholders, all expenses incurred in connection with
issuing and redeeming shares, the costs of custodial services, the cost of
initial and ongoing registration and/or qualification of the shares under
federal and state securities laws, fees and out-of-pocket expenses of Trustees
who are not affiliated persons of Ultimus or the investment adviser to the
Trust, insurance premiums, interest, brokerage costs, litigation and other
extraordinary or nonrecurring expenses, and all fees and charges of investment
advisers to the Trust.
4. COMPENSATION OF ULTIMUS.
For the services to be rendered, the facilities furnished and the expenses
assumed by Ultimus pursuant to this Agreement, the Trust shall pay to Ultimus
compensation at an annual rate specified in Schedule B attached hereto. Such
compensation shall be calculated and accrued
3
daily, and paid to Ultimus monthly. The Trust shall also reimburse Ultimus for
its reasonable out-of-pocket expenses, including but not limited to the travel
and lodging expenses incurred by officers and employees of Ultimus in connection
with attendance at Board meetings.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, Ultimus' compensation for that
part of the month in which this Agreement is in effect shall be prorated in a
manner consistent with the calculation of the fees as set forth above. Payment
of Ultimus' compensation for the preceding month shall be made promptly.
5. EFFECTIVE DATE.
This Agreement shall become effective with respect to a Portfolio as of
the date first written above (or, if a particular Portfolio is not in existence
on that date, on the date such Portfolio commences operation) (the "Effective
Date").
6. TERM OF THIS AGREEMENT.
The term of this Agreement shall continue in effect, unless earlier
terminated by either party hereto as provided hereunder, for a period of two
years. Thereafter, unless otherwise terminated as provided herein, this
Agreement shall be renewed annually upon approval of the Trust's Board of
Trustees.
This Agreement may be terminated without penalty: (i) by provision of
sixty (60) days' written notice; or (ii) by mutual agreement of the parties.
Notwithstanding the foregoing, after such termination for so long as
Ultimus, with the written consent of the Trust, in fact continues to perform any
one or more of the services contemplated by this Agreement or any schedule or
exhibit hereto, the provisions of this Agreement, including without limitation
the provisions dealing with indemnification, shall continue in full force and
effect. Compensation due Ultimus and unpaid by the Trust upon such termination
shall be immediately due and payable upon and notwithstanding such termination.
Ultimus shall be entitled to collect from the Trust, in addition to the
compensation described in Schedule B, the amount of all of Ultimus' cash
disbursements for services in connection with Ultimus' activities in effecting
such termination, including without limitation, the delivery to the Trust and/or
its designees of the Trust's property, records, instruments and documents.
7. STANDARD OF CARE.
Ultimus shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith in performing the
services provided for under this Agreement. Ultimus shall be liable for any
damages arising directly or indirectly out of Ultimus' failure to perform its
duties under this Agreement to the extent such damages arise directly or
indirectly out of Ultimus' willful misfeasance, bad faith, negligence in the
performance of its duties, or reckless disregard of it obligations and duties
hereunder. (As used in this Article 7, the term "Ultimus" shall include
directors, officers, employees and other agents of Ultimus as well as Ultimus
itself.)
Without limiting the generality of the foregoing or any other provision of
this Agreement, (i) Ultimus shall not be liable for losses beyond its reasonable
control, provided that Ultimus has acted in accordance with the standard of care
set forth above; and (ii) Ultimus shall not be liable for the validity or
invalidity or authority or lack thereof of any instruction, notice or other
4
instrument that Ultimus reasonably believes to be genuine and to have been
signed or presented by a duly authorized representative of the Trust (other than
an employee or other affiliated persons of Ultimus who may otherwise be named as
an authorized representative of the Trust for certain purposes).
Ultimus may apply to the Trust at any time for instructions and may
consult with counsel for the Trust or its own counsel and with accountants and
other experts with respect to any matter arising in connection with Ultimus'
duties hereunder, and Ultimus shall not be liable or accountable for any action
taken or omitted by it in good faith in accordance with such instruction or with
the reasonable opinion of such counsel, accountants or other experts qualified
to render such opinion.
8. INDEMNIFICATION.
The Trust agrees to indemnify and hold harmless Ultimus from and against
any and all actions, suits, claims, losses, damages, costs, charges, reasonable
counsel fees and disbursements, payments, expenses and liabilities (including
reasonable investigation expenses) (collectively, "Losses") arising directly or
indirectly out of any action or omission to act which Ultimus takes (i) at any
request or on the direction of or in reliance on the reasonable advice of the
Trust, (ii) upon any instruction, notice or other instrument that Ultimus
reasonably believes to be genuine and to have been signed or presented by a duly
authorized representative of the Trust (other than an employee or other
affiliated person of Ultimus who may otherwise be named as an authorized
representative of the Trust for certain purposes) or (iii) on its own
initiative, in good faith and in accordance with the standard of care set forth
herein, in connection with the performance of its duties or obligations
hereunder; provided, however that the Trust shall have no obligation to
indemnify or reimburse Ultimus under this Article 8 to the extent that Ultimus
is entitled to reimbursement or indemnification for such Losses under any
liability insurance policy described in this Agreement or otherwise.
Ultimus agrees to indemnify and hold the Trust harmless from and against
any and all actions, suits, claims, losses damages, costs, charges, reasonable
counsel fees and disbursements, payments, expenses and liabilities (including
reasonable investigation expenses) (collectively, "Losses") arising directly or
indirectly out of the prior relationship between Ultimus' officers and directors
and Countrywide Fund Services, Inc. or Integrated Fund Services, Inc.
Ultimus shall not be indemnified against or held harmless from any Losses
arising directly or indirectly out of Ultimus' own willful misfeasance, bad
faith, negligence in the performance of its duties, or reckless disregard of its
obligations and duties hereunder. (As used in this Article 8, the term "Ultimus"
shall include directors, officers, employees and other agents of Ultimus as well
as Ultimus itself.)
9. RECORD RETENTION AND CONFIDENTIALITY.
Ultimus shall keep and maintain on behalf of the Trust all books and
records which the Trust and Ultimus is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the 1940 Act, relating to the maintenance
of books and records in connection with the services to be provided hereunder.
Ultimus further agrees that all such books and records shall be the property of
the Trust and to make such books and records available for inspection by the
Trust or by the SEC at reasonable times and otherwise to keep confidential all
books and records and other
5
information relative to the Trust and its shareholders; except when requested to
divulge such information by duly-constituted authorities or court process.
10. FORCE MAJEURE.
Ultimus assumes no responsibility hereunder, and shall not be liable, for
any damage, loss of data, delay or any other loss whatsoever caused by events
beyond its reasonable control, including acts of civil or military authority,
national emergencies, fire, flood, catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power supply.
11. RIGHTS OF OWNERSHIP; RETURN OF RECORDS.
All records and other data except computer programs and procedures
developed to perform services required to be provided by Ultimus are the
exclusive property of the Trust and all such records and data will be furnished
to the Trust in appropriate form as soon as practicable after termination of
this Agreement for any reason. Ultimus may at its option at any time, and shall
promptly upon the Trust's demand, turn over to the Trust and cease to retain
Ultimus' files, records and documents created and maintained by Ultimus pursuant
to this Agreement which are no longer needed by Ultimus in the performance of
its services or for its legal protection. If not so turned over to the Trust,
such documents and records will be retained by Ultimus for six years from the
year of creation. At the end of such six-year period, such records and documents
will be turned over to the Trust unless the Trust authorizes in writing the
destruction of such records and documents.
12. REPRESENTATIONS OF THE TRUST.
The Trust certifies to Ultimus that: (1) as of the close of business on
the Effective Date, each Portfolio that is in existence as of the Effective Date
has authorized unlimited shares, and (2) this Agreement has been duly authorized
by the Trust and, when executed and delivered by the Trust, will constitute a
legal, valid and binding obligation of the Trust, enforceable against the Trust
in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
13. REPRESENTATIONS OF ULTIMUS.
Ultimus represents and warrants that: (1) the various procedures and
systems which Ultimus has implemented with regard to safeguarding from loss or
damage attributable to fire, theft, or any other cause the records, and other
data of the Trust and Ultimus's records, data, equipment facilities and other
property used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as are required for the
secure performance of its obligations hereunder, (2) this Agreement has been
duly authorized by Ultimus and, when executed and delivered by Ultimus, will
constitute a legal, valid and binding obligation of Ultimus, enforceable against
Ultimus in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting the
rights and remedies of creditors and secured parties, (3) it is duly registered
with the appropriate regulatory agency as a transfer agent and such registration
will remain in full force and effect for the duration of this Agreement, and (4)
it has and will continue to have access to the necessary facilities, equipment
and personnel to perform its duties and obligations under this Agreement.
6
14. INSURANCE.
Ultimus shall furnish the Trust with pertinent information concerning the
professional liability insurance coverage that it maintains. Such information
shall include the identity of the insurance carrier(s), coverage levels and
deductible amounts. Ultimus shall notify the Trust should any of its insurance
coverage be canceled or reduced. Such notification shall include the date of
change and the reasons therefor. Ultimus shall notify the Trust of any material
claims against it with respect to services performed under this Agreement,
whether or not they may be covered by insurance, and shall notify the Trust from
time to time as may be appropriate of the total outstanding claims made by
Ultimus under its insurance coverage.
15. INFORMATION TO BE FURNISHED BY THE TRUST.
The Trust has furnished to Ultimus the following:
(a) Copies of the Declaration of Trust and of any amendments thereto,
certified by the proper official of the state in which such document
has been filed.
(b) Copies of the following documents:
(1) The Trust's Bylaws and any amendments thereto; and
(2) Certified copies of resolutions of the Trustees covering the
approval of this Agreement, authorization of a specified
officer of the Trust to execute and deliver this Agreement and
authorization for specified officers of the Trust to instruct
Ultimus thereunder.
(c) A list of all the officers of the Trust, together with specimen
signatures of those officers who are authorized to instruct Ultimus
in all matters.
(d) Copies of the Prospectus and Statement of Additional Information for
each Portfolio.
16. AMENDMENTS TO AGREEMENT.
This Agreement, or any term thereof, may be changed or waived only by
written amendment signed by the party against whom enforcement of such change or
waiver is sought.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and Ultimus
may conclusively assume that any special procedure which has been approved by
the Trust does not conflict with or violate any requirements of its Declaration
of Trust or then current prospectuses, or any rule, regulation or requirement of
any regulatory body.
17. COMPLIANCE WITH LAW.
Except for the obligations of Ultimus otherwise set forth herein, the
Trust assumes full responsibility for the preparation, contents and distribution
of each prospectus of the Trust as to compliance with all applicable
requirements of the Securities Act of 1933, as amended (the "Securities Act"),
the 1940 Act and any other laws, rules and regulations of governmental
authorities having jurisdiction. The Trust represents and warrants that no
shares of the Trust will
7
be offered to the public until the Trust's registration statement under the
Securities Act and the 1940 Act has been declared or becomes effective.
18. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such
notice, at the following address: if to the Trust, at 0000 Xxx Xxxxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, Attn: Xxxx Xxxxxxxx; and if to Ultimus, at
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx 00000, Attn: Xxxxxx X. Xxxxxx;
or at such other address as such party may from time to time specify in writing
to the other party pursuant to this Section.
19. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
by either of the parties hereto except by the specific written consent of the
other party. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and permitted
assigns.
20. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the State
of Ohio and the applicable provisions of the 1940 Act. To the extent that the
applicable laws of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
21. LIMITATION OF LIABILITY.
A copy of the Declaration of Trust of the Trust is on file with the
Secretary of the State of Ohio, and notice is hereby given that this instrument
is executed on behalf of the Board of Trustees of the Trust and not individually
and that the obligations of this instrument are not binding upon any of the
Trustees, officers or shareholders individually but are binding only upon the
assets and property of the Trust (or if the matter relates only to a particular
Portfolio, that Portfolio), and the Ultimus shall look only to the assets of the
Trust, or the particular Portfolio, for the satisfaction of such obligations.
22. MULTIPLE ORIGINALS.
This Agreement may be executed in two or more counterparts, each of which
when so executed shall be deemed to be an original, but such counterparts shall
together constitute but one and the same instrument.
8
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
XXXXX FAMILY OF REAL ESTATE FUNDS
By: /s/ Xxx X. Xxxxx
---------------------------------
Title: President
ULTIMUS FUND SOLUTIONS, LLC
By: /s/ Xxxxxx X. Xxxxxx
Title: President
9
SCHEDULE A
TO THE ADMINISTRATION AGREEMENT BETWEEN
XXXXX FAMILY OF REAL ESTATE FUNDS
AND
ULTIMUS FUND SOLUTIONS, LLC
FUND PORTFOLIOS
---------------
XXXXX S&P REIT INDEX FUND
XXXXX DONE XXXXX WILSHIRE GLOBAL RESI INDEX FUND
10
REVISED JULY 1, 2006
SCHEDULE B
TO THE ADMINISTRATION AGREEMENT BETWEEN
XXXXX FAMILY OF REAL ESTATE FUNDS
AND
ULTIMUS FUND SOLUTIONS, LLC
FEES
----
Pursuant to Article 4, in consideration of services rendered and expenses
assumed pursuant to this Agreement, the Trust will pay Ultimus on the first
business day after the end of each month, or at such time(s) as Ultimus shall
request and the parties hereto agree, a fee computed with respect to each
Portfolio as follows:
----------------------------------------------------------
AVERAGE DAILY NET ASSETS ADMINISTRATION FEE
----------------------------------------------------------
Up to $500 million .08%
----------------------------------------------------------
$500 million to $2 billion .05%
----------------------------------------------------------
$2 billion to $3 billion .04%
----------------------------------------------------------
In excess of $3 billion .03%
----------------------------------------------------------
The fee will be subject to a monthly minimum of $2,000 with respect to each
Portfolio.
In addition to the above fees, the Trust will reimburse Ultimus for
certain out-of-pocket expenses incurred on the Trust's behalf, including but not
limited to, travel expenses to attend Board meetings and any other expenses
approved by the Trust. The Trust will be responsible for its normal operating
expenses, such as federal and state filing fees, insurance premiums, typesetting
and printing of the Trust's public documents, and fees and expenses of the
Trust's other vendors and providers.
11
