Fund Administration Servicing Agreement
This Agreement is made and entered into on this third day of
October, 1995, by and between Xxxxxxxx Funds, Inc. (hereinafter
referred to as the "Fund") and Firstar Trust Company, a
corporation organized under the laws of the State of Wisconsin
(hereinafter referred to as "FTC").
WHEREAS, The Fund is an open-ended management investment company
which is registered under the Investment Company Act of 1940;
WHEREAS, FTC is an trust company and, among other things, is in
the business of providing fund administration services for the
benefit of its customers;
NOW, THEREFORE, the Fund and FTC do mutually promise and agree
as follows:
I. Appointment of Administrator
The Fund hereby appoints FTC as Administrator of the Fund on
the terms and conditions set forth in this Agreement, and FTC
hereby accepts such appointment and agrees to perform the
services and duties set forth in this Agreement in consideration
of the compensation provided for herein.
II. Duties and Responsibilities of FTC
A. General Fund Management
1. Act as liaison among all fund service providers
2. Coordinate board communication by:
a. Assisting fund counsel in establishing meeting
agendas
b. Preparing board reports based on financial and
administrative data
c. Evaluating independent auditor
d. Securing and monitoring fidelity bond and
director and officers liability coverage, and
making the necessary SEC filings relating
thereto
3. Audits
a. Prepare appropriate schedules and assist
independent auditors
b. Provide information to SEC and facilitate
audit process
c. Provide office facilities
4. Assist in overall operations of the Fund
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with
Investment Company Act of 1940 requirements
1) Asset diversification tests
2) Total return and SEC yield
calculations
3) Maintenance of books and records
under Rule 31a-3
4) Code of ethics
b. Periodically monitor Fund's compliance with
the policies and investment limitations of
the Fund as set forth in its prospectus and
statement of additional information
2. Blue Sky Compliance
a. Prepare and file with the appropriate state
securities authorities any and all required
compliance filings relating to the
registration of the securities of the Fund
so as to enable the Fund to make a continuous
offering of its shares
b. Monitor status and maintain registrations in
each state
3. SEC Registration and Reporting
a. Assisting Fund's counsel in updating prospectus
and statement of additional information; and
in preparing proxy statements, and Rule 24f-2
notice,
b. Annual and semiannual reports
4. IRS Compliance
a. Periodically monitor Fund's status as a
regulated investment company under Subchapter
M through review of the following:
1) Asset diversification requirements
2) Qualifying income requirements
3) Distribution requirements
b. Monitor short short testing
c. Calculate required distributions (including
excise tax distributions)
C. Financial Reporting
1. Provide financial data required by fund prospectus and
statement of additional information
2. Prepare financial reports for shareholders, the board,
the SEC, and independent auditors
3. Supervise the Fund's Custodian and Fund Accountants
in the maintenance of the Fund's general ledger and in
the preparation of the Fund's financial statements
including oversight of expense accruals and payments,
of the determination of net asset value of the Fund's
net assets and of the Fund's shares, and of the
declaration and payment of dividends and other
distributions to shareholders
D. Tax Reporting
1. Prepare and file on a timely basis appropriate federal
and state tax returns including forms 1120/8610 with
any necessary schedules
2. Prepare state income breakdowns where relevant
3. File 1099 Miscellaneous for payments to directors
and other service providers
4. Monitor wash losses
5. Calculate eligible dividend income for corporate
shareholders
III. Compensation
The Fund agrees to pay FTC for performance of the duties listed
in this Agreement and the fees and out-of-pocket expenses as set
forth in the attached Schedule A.
The Fund agrees to pay all fees and reimbursable expenses
within ten (10) business days following the mailing of the
billing notice.
IV. Performance of Service; Limitation of Liability
A. FTC shall exercise reasonable care in the performance
of its duties under this Agreement. FTC shall not be liable for
any error of judgment or mistake of law or for any loss suffered
by the Fund in connection with matters to which this Agreement
relates, including losses resulting from mechanical breakdowns
or the failure of communication or power supplies beyond FTC's
control, except a loss resulting from FTC's refusal or failure
to comply with the terms of this Agreement or from bad faith,
negligence, or willful misconduct on its part in the performance
of its duties under this Agreement. Notwithstanding any other
provision of this Agreement, the Fund shall indemnify and hold
harmless FTC from and against any and all claims, demands,
losses, expenses, and liabilities (whether with or without basis
in fact or law) of any and every nature (including reasonable
attorneys' fees) which FTC may sustain or incur or which may be
asserted against FTC by any person arising out of any action
taken or omitted to be taken by it in performing the services
hereunder (i) in accordance with the foregoing standards, or
(ii) in reliance upon any written or oral instruction provided
to FTC by any duly authorized officer of the Fund, such duly
authorized officer to be included in a list of authorized
officers furnished to FTC and as amended from time to time in
writing by resolution of the Board of Directors of the Fund.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, FTC shall
take all reasonable steps to minimize service interruptions for
any period that such interruption continues beyond FTC's
control. FTC will make every reasonable effort to restore any
lost or damaged data and correct any errors resulting from such
a breakdown at the expense of FTC. FTC agrees that it shall, at
all times, have reasonable contingency plans with appropriate
parties, making reasonable provision for emergency use of
electrical data processing equipment to the extent appropriate
equipment is available. Representatives of the Fund shall be
entitled to inspect FTC's premises and operating capabilities at
any time during regular business hours of FTC, upon reasonable
notice to FTC.
Regardless of the above, FTC reserves the right to reprocess
and correct administrative errors at its own expense.
B. In order that the indemnification provisions contained in
this section shall apply, it is understood that if in any case
the Fund may be asked to indemnify or hold FTC harmless, the
Fund shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further
understood that FTC will use all reasonable care to notify the
Fund promptly concerning any situation which presents or appears
likely to present the probability of such a claim for
indemnification against the Fund. The Fund shall have the
option to defend FTC against any claim which may be the subject
of this indemnification. In the event that the Fund so elects,
it will so notify FTC and thereupon the Fund shall take over
complete defense of the claim, and FTC shall in such situation
initiate no further legal or other expenses for which it shall
seek indemnification under this section. FTC shall in no case
confess any claim or make any compromise in any case in which
the Fund will be asked to indemnify FTC except with the Fund's
prior written consent.
C. FTC shall indemnify and hold the Fund harmless from and
against any and all claims, demands, losses, expenses, and
liabilities (whether with or without basis in fact or law) of
any and every nature (including reasonable attorneys' fees)
which may be asserted against the Fund by any person arising out
of any action taken or omitted to be taken by FTC as a result of
FTC's refusal or failure to comply with the terms of this
Agreement, its bad faith, negligence, or willful misconduct.
V. Confidentiality
FTC shall handle, in confidence, all information relating to
the Fund's business which is received by FTC during the course
of rendering any service hereunder.
VI. Data Necessary to Perform Service
The Fund or its agent, which may be FTC, shall furnish to FTC
the data necessary to perform the services described herein at
times and in such form as mutually agreed upon.
VII. Terms of Agreement
This Agreement shall become effective as of the date hereof
and, unless sooner terminated as provided herein, shall continue
automatically in effect for successive annual periods. The
Agreement may be terminated by either party upon giving ninety
(90) days prior written notice to the other party or such
shorter period as is mutually agreed upon by the parties.
VIII. Duties in the Event of Termination
In the event that, in connection with termination, a successor
to any of FTC's duties or responsibilities hereunder is
designated by the Fund by written notice to FTC, FTC will
promptly, upon such termination and at the expense of the Fund,
transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by FTC
under this Agreement in a form reasonably acceptable to the
Fund (if such form differs from the form in which FTC has
maintained, the Fund shall pay any expenses associated with
transferring the data to such form), and will cooperate in the
transfer of such duties and responsibilities, including
provision for assistance from FTC's personnel in the
establishment of books, records, and other data by such
successor.
IX. Choice of Law
This Agreement shall be construed in accordance with the laws
of the State of Wisconsin.
X. Notices
Notices of any kind to be given by either party to the other
party shall be in writing and shall be duly given if mailed or
delivered as follows: Notice to FTC shall be sent to:
Firstar Trust Company
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to Fund shall be sent to:
XI. Records
FTC shall keep records relating to the services to be performed
hereunder, in the form and manner, and for such period as it may
deem advisable and is agreeable to the Fund but not inconsistent
with the rules and regulations of appropriate government
authorities, in particular, Section 31 of the Investment Company
Act of 1940 as amended (the "Investment Company Act"), and the
rules thereunder. FTC agrees that all such records prepared or
maintained by FTC relating to the services to be performed by
FTC hereunder are the property of the Fund and will be
preserved, maintained, and made available with such section and
rules of the Investment Company Act and will be promptly
surrendered to the Fund on and in accordance with its request.
XXXXXXXX FUNDS, INC. FIRSTAR TRUST COMPANY
By: _________________________________ By: ______________________________
Attest: _____________________________ Attest: ___________________________
