FUND ADMINISTRATION SERVICING AGREEMENT
This Agreement is made and entered into as of this 18th day of December,
1998, by and between The Xxxxxxx Funds, a business trust organized under the
laws of the State of Delaware (hereinafter referred to as the "Trust") on behalf
of any of its series as described in Part IV of this Agreement (each such series
is hereafter referred to as a "Fund" and, collectively as the "Funds"), and
Firstar Mutual Fund Services, LLC, a limited liability company organized under
the laws of the State of Wisconsin (hereinafter referred to as "Firstar").
WHEREAS, The Trust is a open-ended management investment company which is
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, Firstar is in the business of providing fund administration
services for the benefit of its customers.
NOW, THEREFORE, the Trust and Firstar do mutually promise and agree as
follows:
I. Appointment of Administrator
The Trust hereby appoints Firstar as Administrator of the Funds on the
terms and conditions set forth in this Agreement, and Firstar 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 Firstar
A. General Fund Management
1. Act as liaison among all fund service providers.
2. Coordinate corporate formalities and Board communication by:
a. preparing and distributing meeting agendas and board
materials including board resolutions and various financial,
administrative and regulatory reports;
b. attending all regular or special board meetings, preparing
and distributing minutes of such meetings and maintaining
the corporate records and minute book for the Trust;
c. updating trustees' and officers' biographical information
and questionnaires; and
d. evaluating independent auditor.
3. Audits
a. Prepare appropriate schedules and assist independent
auditors.
b. Provide information to SEC and facilitate audit process.
c. Provide office facilities for auditors and SEC staff as
appropriate.
4. Assist in overall operations of the Trust, including the
provision of office facilities, executive and administrative
services and Firstar personnel to serve as officers of the Trust
to facilitate Trust operations, all at Firstar's expense with the
exception of the costs incurred when attending Board of Trustee
meetings; and to provide stationary and office supplies at the
Trust's expense.
5. Create and maintain operations and compliance calendars and/or a
compliance manual for the Trust, detailing schedules for the
various responsibilities of Firstar.
6. Shareholder Communications. Coordinate printing and distribution
of prospectuses, statements of additional information, stickers
(supplements) to prospectuses or statements of additional
information, annual and semi-annual shareholder reports and proxy
statements.
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with 1940 Act requirements,
including:
1) Asset diversification tests;
2) Total return and yield calculations;
3) Compliance with fidelity bond coverage requirements of
Rule 17g-1 under the 1940 Act; and
4) Compliance with the NASD sales charge rule, including
the calculation and monitoring of the sales charge cap
and remaining amount for asset-based sales charges.
b. Periodically monitor and report at Fund's quarterly board
meeting or more frequently as required, compliance with the
policies investment limitations and reinvestment
restrictions of each 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 or notice
filings relating to the sales, qualification or registration
of the securities of each Fund so as to enable each Fund to
make a continuous offering of its shares in the fifty
states, Puerto Rico, U.S. Virgin Islands, and Guam ("Blue
Sky Jurisdictions").
b. Monitor sales and qualification status and make appropriate
renewal filings in each Blue Sky Jurisdiction.
c. File prospectuses, statements of additional information or
proxy statements for the Trust in Blue Sky Jurisdictions as
requested by the Trust or such jurisdictions.
3. SEC Registration and Reporting
a. Assist in the preparation and filing of post-effective
amendments to the Trust's Registration Statement on Form N-
1A to reflect the addition or deletion of Funds, general
amendments, or annual updates including the preparation of
Financial Data Schedules; and prepare and file supplements
("stickers") to any prospectus or statement of additional
information for a Fund.
b. Prepare and file annual and semi-annual reports to
shareholders as required under the 1940 Act, along with
annual and semiannual reports on Form N-SAR (which shall be
series and class-specific, as appropriate).
c. Assist in the preparation and filing of proxy statements, as
requested by the Trust (matters to be voted on may be class-
specific), prepare minutes of shareholder meetings, and
record ballot results and interface with proxy solicitation
companies as required.
d. Prepare and file documents required to report and calculate
Federal securities registration fees (such as notices on
Form 24F-2).
e. File fidelity bond and any joint insurance agreements as
required by Rule 17g-1 under the 1940 Act.
f. Provide for the XXXXX-ization or other appropriate
preparation of all documents described above which must be
filed electronically with the SEC.
4. IRS Compliance
a. Periodically monitor the Trust's status as a regulated
investment company under Subchapter M of the Internal
Revenue Code, as amended, through review of the following:
1) Asset diversification requirements;
2) Qualifying income requirements; and
3) Distribution requirements.
b. Monitor short testing as required.
c. Calculate required distributions as required (including
excise tax distributions).
C. Financial Reporting
1. Prepare monthly expense reports (by series and class where
appropriate) including expense figures and accruals, monitoring
of expense caps or reimbursements and calculation of advisory
fees and 12b-1 accruals or payments; and calculate expense
ratios for quarterly, semiannual or annual periods.
2. Prepare unaudited financial statements (by series and class where
appropriate) for use in shareholder reports or prospectuses and
statements of additional information.
3. Prepare other monthly operational reports as required including:
a. Sales figures (including shares sold, redeemed and
reinvested, changes in share price in net sales and numbers
of shareholders);
b. Performance information (including total return or yield for
the month, quarter, year-to-date, fiscal year or average
annual one-, five- or ten-year periods); and
c. Portfolio information (including turnover, top ten holdings,
book gains/losses per share; net income/book income per
share; basis).
4. Provide financial data required by Fund prospectus and statements
of additional information.
5. Prepare financial reports for shareholders, the board, the SEC,
and independent auditors.
6. Supervise the Trust's Custodian and Fund Accountants in the
maintenance of each Funds general ledger and in the preparation
of each Fund's financial statements including oversight of
expense accruals and payments, of the determination of net asset
value of each Fund 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 1120/8613 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 Trust agrees to pay Firstar 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.
These fees may be changed from time to time, subject to mutual written
Agreement between the Trust and Firstar.
The Trust agrees to pay all fees and reimbursable expenses within ten (10)
business days following the mailing of the billing notice.
IV. Additional Funds
In the event that the Trust establishes one or more Funds with respect to
which it desires to have Firstar render fund administration services, under
the terms hereof, it shall so notify Firstar in writing, and if Firstar
agrees in writing to provide such services, such Funds will be subject to
the terms and conditions of this Agreement, and shall be maintained and
accounted for by Firstar on a discrete basis. The Funds currently covered
by this Agreement are: The Xxxxxxx Growth Fund.
V. Performance of Services; Limitation of Liability
A. Firstar shall exercise reasonable care in the performance of its
duties under this Agreement. Firstar shall not be liable 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
Firstar's control, except a loss resulting from Firstar'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 Firstar
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 Firstar may
sustain or incur or which may be asserted against Firstar 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 Firstar by any duly authorized officer of the Trust, such
duly authorized officer to be included in a list of authorized
officers furnished to Firstar and as amended from time to time in
writing by resolution of the Board of Trustees of the Trust.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, Firstar shall take all reasonable
steps to minimize service interruptions for any period that such
interruption continues beyond Firstar's control. Firstar 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
Firstar. Firstar agrees that it shall, at all times, have contingency
plans, that are comparable to those employed within the financial
services industry, with appropriate parties, making reasonable
provision for emergency use of electrical data processing equipment to
the extent appropriate equipment is available. Representatives of the
Trust shall be entitled to inspect Firstar's premises and operating
capabilities at any time during regular business hours of Firstar,
upon reasonable notice to Firstar.
Regardless of the above, Firstar 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 Trust may be
asked to indemnify or hold Firstar harmless, the Trust shall be fully
and promptly advised of all pertinent facts concerning the situation
in question, and it is further understood that Firstar will use all
reasonable care to notify the Trust promptly concerning any situation
which presents or appears likely to present the probability of such a
claim for indemnification against the Trust. The Trust shall have the
option to defend Firstar against any claim which may be the subject of
this indemnification. In the event that the Trust so elects, it will
so notify Firstar and thereupon the Trust shall take over complete
defense of the claim, and Firstar shall in such situation initiate no
further legal or other expenses for which it shall seek
indemnification under this section. Firstar shall in no case confess
any claim or make any compromise in any case in which the Trust will
be asked to indemnify Firstar except with the Trust's prior written
consent.
C. Firstar shall indemnify and hold the Trust 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 Trust by any person arising out of any action taken or omitted to
be taken by Firstar as a result of Firstar's refusal or failure to
comply with the terms of this Agreement, its bad faith, negligence, or
willful misconduct.
VI. Confidentiality
Firstar shall handle, in confidence, all information relating to the
Trust's business which is received by Firstar during the course of
rendering any service hereunder.
VII. Data Necessary to Perform Service
The Trust or its agent, which may be Firstar, shall furnish to Firstar the
data necessary to perform the services described herein at times and in
such form as mutually agreed upon.
VIII.Terms of Agreement
This Agreement shall become effective on and, unless sooner terminated as
provided herein, shall continue automatically in effect for successive
annual periods, provided that the continuance of the Agreement is approved
by a majority of the Trustees of the Trust. The Agreement may also 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 and will terminate automatically on its assignment unless
the parties hereto consent in writing.
IX. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any of
Firstar's duties or responsibilities hereunder is designated by the Trust
by written notice to Firstar, Firstar will promptly, upon such termination
and at the expense of the Trust, transfer to such successor all relevant
books, records, correspondence, and other data established or maintained by
Firstar under this Agreement in a form reasonably acceptable to the Trust
(if such form differs from the form in which Firstar has maintained, the
Trust 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 Firstar's
personnel in the establishment of books, records, and other data by such
successor.
X. Choice of Law
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin.
XI. 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 Firstar shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Trust shall be sent to:
The Xxxxxxx Funds
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XII. Records
Firstar 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 Trust and as required by the rules and
regulations of appropriate government authorities, in particular, Section
31 of the 1940 Act and the rules thereunder. Firstar agrees that all such
records prepared or maintained by Firstar relating to the services to be
performed by Firstar hereunder are the property of the Trust and will be
preserved, maintained, and made available with such section and rules of
the 1940 Act and will be promptly surrendered to the Trust on and in
accordance with its request.
THE XXXXXXX FUNDS FIRSTAR MUTUAL FUND SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxx By: Xxxxxx Xxxxxxxxx
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Title: President Title: Senior Vice President
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Attest: /s/ Xxxxx X. Xxxxxx Attest: /s/ Xxxx X. Xxxxxx
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SCHEDULE A
FUND ADMINISTRATION AND COMPLIANCE
ANNUAL FEE SCHEDULE
o Minimum annual fee per Fund: $30,000
o 6 basis points (.0006) on the first $200,000,000 of
average daily net assets
o 5 basis points (.0005) on the next $500,000,000 of
average daily net assets
o 3 basis points (.0003) on the balance
o Out-of-Pocket expenses, including, but not limited to:
o Postage
o Stationary
o Programming
o Proxies
o Retention of Records
o Special reports
o Federal and state regulatory filing fees
o Certain insurance premiums
o All other out-of-pocket expenses
o Expenses from Board of Trustees meetings
o Auditing & legal expenses
o Fees are billed monthly
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