Exhibit H (1)
Administrative Services Agreement between the Registrant and Rushmore
Trust and Savings, FSB
ADMINISTRATIVE SERVICES AGREEMENT
Between
AMERICAN GAS INDEX FUND
And
RUSHMORE TRUST AND SAVINGS, FSB
This Administrative Services Agreement (the "Agreement") is
entered into this 1st day of November, 1993 by and between American
Gas Index Fund, Inc. (the "Fund") and Rushmore Trust and Savings, FSB
("RTS" sometimes hereinafter 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 Exhibit I to this agreement.
2. As compensation for the services to be rendered, the Fund
shall pay RTS an annual fee based on 35 basis points (0.35 of 1%) of
the average daily net asset value of the Fund.
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 the 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 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 by 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 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 protect any Director or Officer of
the Fund against any such liability to which he might otherwise be
subject by reasons 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 this 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.
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 period required in Rule 31a-2 of
the General Rules and Regulations under the Investment Company Act of
1940, such records maintained by RTS 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 agent 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 an 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 beyond 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 Fund'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.
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, Xxxxxxxx 00000
Attention: ________________________
If to the Fund:
American Gas Index Fund, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx 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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
Witness: AMERICAN GAS INDEX FUND, INC.
/s/ Xxxxxxx X. Xxxxxx
By: Chairman
Witness: Rushmore Trust and Savings, FSB
/s/ Xxxxxxxx X. Xxxxx
By: Senior Vice President
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
