FULFILLMENT SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 12th day of
December, 2000, by and between Xxxx Xxxxx Funds, a business trust organized
under the laws of the State of Delaware (hereinafter the "Trust"), Xxxx Xxxxx
Securities, Inc., a corporation organized under the laws of the state of New
York (hereinafter the "Adviser"), and Firstar Mutual Fund Services, LLC, a
limited liability company organized under the laws of the State of Wisconsin
(hereinafter "FMFS").
WHEREAS, the Adviser is a registered investment adviser under the
Investment Advisers Act of 1940, as amended;
WHEREAS, the Adviser serves as investment adviser to the Trust, a
registered investment company under the Investment Company Act of 1940, as
amended, which is authorized to create separate series of funds;
WHEREAS, the Distributor is a registered broker-dealer under the
Securities Exchange Act of 1934, as amended, and serves as principal distributor
of Trust shares;
WHEREAS, FMFS provides fulfillment services to mutual funds;
WHEREAS, the Trust desires to retain FMFS to provide fulfillment
services to all portfolio's of the Trust (each a "Fund") and each additional
series of the Trust listed on Exhibit A attached hereto, as it may be amended
from time to time.
NOW, THEREFORE, the parties agree as follows:
1. DUTIES AND RESPONSIBILITIES OF FMFS
A. Answer all prospective shareholder calls concerning the Fund.
B. Send all available Fund material requested by the prospect within
24 hours from time of call.
C. Receive and update all Fund fulfillment literature so that the
most current information is sent and quoted.
D. Provide 24 hour answering service to record prospect calls made
after hours (7 p.m. to 8 a.m. Central Time).
E. Maintain and store Fund fulfillment inventory.
F. Send periodic fulfillment reports to the Trust as agreed upon
between the parties.
2. DUTIES AND RESPONSIBILITIES OF THE TRUST
A. Provide Fund fulfillment literature updates to FMFS as necessary.
B. File with the NASD, SEC and State Regulatory Agencies, as
appropriate, all fulfillment literature that the Fund requests
FMFS send to prospective shareholders.
C. Supply FMFS with sufficient inventory of fulfillment materials as
requested from time to time by FMFS.
D. Provide FMFS with any sundry information about the Fund in order
to answer prospect questions.
3. COMPENSATION
The Adviser agrees to compensate FMFS for the services performed under
this Agreement in accordance with the attached Exhibit A. All invoices
shall be paid within ten days of receipt.
4. PROPRIETARY AND CONFIDENTIAL INFORMATION
FMFS agrees on behalf of itself and its directors, officers, and
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 of the Trust (and clients of
said shareholders), and not to use such records and information for any
purpose other than the performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing
by the Trust, which approval shall not be unreasonably withheld and may
not be withheld where FMFS may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by
the Trust.
5. INDEMNIFICATION
The Trust agrees to indemnify FMFS from any liability arising out of
the distribution of fulfillment literature which has not been filed
with the appropriate Federal and State Regulatory Agencies. FMFS agrees
to indemnify the Trust from any liability arising from the improper use
of fulfillment literature during the performance of duties and
responsibilities identified in this agreement. FMFS will be liable for
bad faith, negligence or willful misconduct on its part in its duties
under this Agreement.
6. TERMINATION
This Agreement may be terminated by either party upon 90 days written
notice.
FMFS is hereby expressly put on notice of the limitation of shareholder
liability as set forth in the Trust's Declaration of 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, and if the
liability relates to one or more series, the obligations hereunder
shall be limited to the respective assets of such series. FMFS further
agrees that it shall not seek satisfaction of any such obligation from
the shareholder or any individual shareholder of a series of the Trust,
nor from the Trustees or any individual Trustee of the Trust.
7. NO AGENCY RELATIONSHIP
Nothing herein contained shall be deemed to authorize or empower FMFS
to act as agent for the other party to this Agreement, or to conduct
business in the name of, or for the account of the other party to this
Agreement.
8. DATA NECESSARY TO PERFORM SERVICES
The Trust or its agent, which may be FMFS, shall furnish to FMFS the
data necessary to perform the services described herein at such times
and in such form as mutually agreed upon. If FMFS is also acting in
another capacity for the Trust, nothing herein shall be deemed to
relieve FMFS of any of its obligations in such capacity.
9. NOTIFICATION OF ERROR
The Trust will notify FMFS of any discrepancy between FMFS and the
Trust, including, but not limited to, failing to account for a security
position in the fund's portfolio, by the later of: within three (3)
business days after receipt of any reports rendered by FMFS to the
Trust; within three (3) business days after discovery of any error or
omission not covered in the balancing or control procedure, or within
three (3) business days of receiving notice from any shareholder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer or one or more counterparts as of the day and year
first written above.
XXXX XXXXX FUNDS XXXX XXXXX SECURITIES, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
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Title: President Title: President
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FIRSTAR MUTUAL FUND SERVICES, LLC
By: /s/ Xxxx Rock
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Title: Senior Vice President
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