EXHIBIT (h)
Administration Agreement
October 1, 2003
Exhibit 99.(h)
ADMINISTRATION AGREEMENT
This Agreement dated October 1, 2003 is between THE XXXXX FUNDS, a Delaware
statutory trust, having its principal office and place of business at Omaha,
Nebraska (the "Trust"), and XXXXXXX X. XXXXX & COMPANY, a Nebraska corporation,
having its principal office and place of business at Omaha, Nebraska (the
"Administrator"),
WHEREAS, the Trust desires to engage the Administrator to provide transfer
agent, dividend disbursing agent and fund accounting and related administrator
services.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
Section 1. TERMS OF APPOINTMENT.
1.01 Subject to the conditions set forth in this Agreement, the Trust
hereby employs and appoints Administrator as the Trust's Administrator, Transfer
Agent and Dividend Disbursing Agent.
1.02 Administrator hereby accepts such employment and appointment and
agrees that on and after the effective date of its appointment it will act as
the Trust's Administrator, Transfer Agent and Dividend Disbursing Agent.
Administrator agrees that it will also act as agent in connection with any
periodic investment plan, periodic withdrawal program or other accumulation,
open-account or similar plans provided to the Trust's shareholders and set out
in the Trust's prospectus.
1.03 Administrator agrees to provide the necessary facilities, equipment
and personnel to perform its duties and obligations hereunder in accordance with
industry practice.
1.04 Administrator agrees that it will perform all of the usual and
ordinary services as Transfer Administrator and Dividend Disbursing
Administrator and as agent for the various shareholder accounts including but
not limited to: issuing, transferring and canceling stock certificates,
maintaining all shareholder accounts, preparing annual shareholder meeting
lists,
mailing proxies, receiving and tabulating proxies, mailing shareholder reports
and prospectuses, withholding taxes on non-resident alien accounts, disbursing
income dividends and capital gains distributions, preparing and filing U.S.
Treasury Department Form 1099 for all shareholders, preparing and mailing
confirmation forms to shareholders for all purchases and liquidations of Fund
shares and other confirmable transactions in shareholders' accounts, recording
reinvestment of dividends and distributions in shares of the Trust, causing
liquidation of shares and causing disbursements to be made to withdrawal plan
holders.
1.05 Administrator agrees that it will furnish the Trust with office
facilities, including such space, furniture, equipment and supplies as well as
personnel sufficient to carry out the necessary administrative, clerical and
bookkeeping functions of the Trust. In connection therewith, the Administrator
shall maintain all records required to be maintained for the Trust under the
Investment Company Act of 1940. Additionally, the Administrator shall provide
the following services to the Trust:
i. Daily pricing;
ii. Computation of daily net asset value and reporting to Trust
management, and others as requested;
iii. Prepare daily cash availability reports for portfolio managers;
iv. Post daily all fund activity and prepare all applicable daily
reports;
v. Accrue expenses daily;
vi. Calculate daily reconciliations of cash, receivables, payable
accounts and shares outstanding;
vii. Compute daily dividend rate for appropriate funds;
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viii. Compute yields pursuant to S.E.C. formulas;
ix. Provide monthly analysis and reconciliation of all general ledger
accounts;
x. Generate and maintain monthly broker ledgers, commission ledgers and
net trade reports;
xi. Verify accuracy and propriety of bills and invoices, maintain
expenses files and coordinate payment of bills and invoices in a timely manner;
xii. Prepare report on expense limitations as needed;
xiii. Maintain and verify portfolio trade tickets with broker confirmation;
xiv. Determine income availability for monthly, quarterly and/or annual
dividend/distributions;
xv. Maintain historical record of all Trust net asset values and
dividend/distributions;
xvi. Coordinate audit examination of outside auditors, including
preparation of audit work paper package if required; and
xvii. Produce documents and respond to inquiries during S.E.C. audits.
Section 2. FEES AND EXPENSES.
2.01 For the services to be rendered by Administrator pursuant to
paragraphs 1.04 and 1.05, the Trust agrees to pay Administrator a monthly fee
based upon the schedule set forth as Exhibit A.
2.02 The Trust also agrees promptly to reimburse Administrator for all
reasonable out-of-pocket expenses or advances incurred by Administrator in
connection with the performance of services under this Agreement including, but
not limited to, blue sky notice filing fees, Securities and Exchange Commission
registration fees, costs related to insurance policies, legal counsel, postage,
envelopes, checks, drafts, continuous forms, reports and statements, telephone,
telegraph, stationery,
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supplies, printing, Xxxxx filings, costs of outside mailing firms, record
storage costs and media for storage of records (e.g. microfilm, computer tapes
or disks). In addition, any other expenses incurred by Administrator at the
request or with the consent of the Trust will be promptly reimbursed by the
Trust.
Section 3. REPRESENTATIONS AND WARRANTIES OF ADMINISTRATOR. Administrator
represents and warrants to the Fund that:
3.01 It is a corporation duly organized and existing and in good standing
under the laws of the State of Nebraska;
3.02 It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws, to enter into and perform the services contemplated in
this Agreement;
3.03 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement; and
3.04 It has and will continue to have and maintain the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
Section 4. REPRESENTATIONS AND WARRANTIES OF THE TRUST. The Trust
represents and warrants to Administrator that:
4.01 It is a Delaware statutory trust organized under the laws of the State
of Delaware;
4.02 It is, or prior to the public offering of its shares, will become an
open-end diversified management investment company registered under the
Investment Company Act of 1940;
4.03 A registration statement under the Securities Act of 1933 is
currently, or prior to the public offering of its shares, will become effective
and will remain effective, and appropriate state
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securities laws filings have been or will be made and will continue to be made,
with respect to all shares of the Trust being offered for sale;
4.04 The Trust is empowered under applicable laws and regulations and by
its trust documents to enter into and perform this Agreement; and all requisite
corporate proceedings have been taken to authorize it to enter into and perform
under this Agreement.
Section 5. INDEMNIFICATION.
5.01 Administrator shall not be responsible and the Trust shall indemnify
and hold Administrator harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability which may be
asserted against Administrator or for which it may be held to be liable, arising
out of or in any way attributable to:
(a) All actions of Administrator required to be taken by
Administrator pursuant to this Agreement provided that Administrator has
acted in good faith and with due diligence.
(b) The Trust's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Trust's negligence or willful
misconduct or which arise out of the breach of any representation or
warranty of the Trust hereunder.
(c) The reliance on, or the carrying out of, any instructions or
requests of the Trust.
(d) Defaults by dealers with respect to payment for share orders
previously entered.
(e) The reliance on, or the carrying out of, any instructions or
requests of the Trustt.
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(f) The offer or sale of the Trust's shares in violation of any
requirement under federal securities laws or regulations or the securities
laws or regulations of any state or in violation of any stop order or other
determination or ruling by any federal agency or state with respect to the
offer or sale of such shares in such state (unless such violation results
from Administrator's failure to comply with written instructions of the
Trust or of any officer of the Trust that no offers or sales be made in or
to residents of such state).
5.02 Administrator shall indemnify and hold the Trust harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of Administrator's willful failure to comply
with the terms of this Agreement or which arise out of Administrator's gross
negligence or willful misconduct.
5.03 At any time Administrator may apply to any officer of the Trust for
instructions, and may consult with legal counsel for the Trust or its own legal
counsel, at the expense of the Trust, with respect to any matter arising in
connection with the services to be performed by Administrator under this
Agreement and Administrator shall not be liable and shall be indemnified by the
Trust for any action taken or omitted by it in good faith in reliance upon such
instructions or upon the opinion of such counsel. Administrator shall be
protected and indemnified in acting upon any paper or document believed by it to
be genuine and to have been signed by the proper person or persons and shall not
be held to have notice of any change of authority of any person, until receipt
of written notice thereof from the Trust. Administrator shall also be protected
and indemnified in recognizing stock certificates which Administrator reasonably
believes to bear the proper manual or facsimile signatures of the officers of
the Trust, and the proper counter-signature of any former transfer agent or
registrar, or of a co-transfer agent or co-registrar.
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5.04 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage, or other causes reasonably beyond its control,
such party shall not be liable for damages to the other for any damages
resulting from such failure to perform or otherwise from such causes.
5.05 In no event and under no circumstances shall either party to this
Agreement be liable to the other party for consequential damages under any
provision of this Agreement or for any act or failure to act hereunder.
Section 6. COVENANTS OF ADMINISTRATOR AND THE TRUST.
6.01 The Trust shall promptly furnish to Administrator the following:
(a) A certified copy of the resolution of the Board of Directors
of the Trust authorizing the appointment of Administrator and the execution
and delivery of this Agreement.
(b) Certified copy of the Declaration of Trust and all amendments
thereto.
(c) Specimens of stock certificates, if any, in the form approved
by the Trust's Board of Trustees with a certificate of the Secretary of the
Trust as to such approval.
6.02 Administrator hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Trust for safekeeping of stock
certificates, check forms, and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of such certificates,
forms and devices.
6.03 To the extent required by Section 31 of the Investment Company Act of
1940 and Rules thereunder, Administrator agrees that all records maintained by
Administrator relating to the services
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to be performed by Administrator under this Agreement are the property of the
Trust and will be preserved and will be surrendered promptly to the Trust on
request.
6.04 Administrator and the Trust agree that all books, records, information
and data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation of and the carrying out of this Agreement
shall remain confidential, and shall not be voluntarily disclosed to any other
person.
Section 7. TERMINATION OF AGREEMENT.
7.01 This Agreement may be terminated by either party by 90 days written
notice.
Section 8. MISCELLANEOUS.
8.01 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other.
8.02 The Administrator may, however, without further consent of the Trust,
subcontract for the performance of any of its responsibilities under this
contract with a qualified party acceptable to the Administrator; provided,
however, that any party with whom the Administrator contracts for sub-transfer
agent responsibilities shall be registered as a transfer agent under Section
17A(c)(2) of the Securities Exchange Act of 1934. In the event the Administrator
subcontracts with any party (the "Contracted Party") for any such
responsibilities, the Administrator shall be fully responsible to the Fund for
the acts and omissions of the Contracted Party as it is for its own acts and
omissions.
8.03 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective successors and assigns.
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8.04 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written, and this Agreement may not be modified except
by written instrument executed by both parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their duly authorized officers, as of the day and year
first above written.
THE XXXXX FUNDS
ATTEST: By /s/ Xxxxxxx X. Xxxxx
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President
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Secretary
XXXXXXX X. XXXXX & COMPANY
By /s/ Xxxxxxx X. Xxxxx
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ATTEST: President
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
Asst. Secretary
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THE XXXXX FUNDS
Exhibit A
ASSET BREAK POINTS
--------------------------------
EQUAL TO OR
GREATER THAN LESS THAN % OF NAV MINIMUM
0 25,000,000 0.200% 25,000
25,000,000 100,000,000 0.175%
100,000,000 0.100%
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