THIS
FUND ADMINISTRATION SERVICING AGREEMENT (this “Agreement”) is made and entered
into as of this ____ day of April, 2004, by and between Xxxxxxx Funds,
Inc., a Maryland corporation (the “Corporation”), and U.S. Bancorp Fund
Services, LLC, a Wisconsin limited liability company (“USBFS”).
RECITALS
WHEREAS,
the Corporation is registered under the Investment Company Act of 1940, as amended (the
“1940 Act”), as an open-end management investment company, and is authorized to
create separate series each with its own separate investment portfolio;
WHEREAS,
USBFS is, among other things, in the business of providing mutual fund administration
services to investment companies; and
WHEREAS,
the Corporation desires to retain USBFS to provide mutual fund administration services for
each series of the Corporation listed on Exhibit A hereto (as amended from time to time)
(each a “Fund”).
AGREEMENT
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein contained, and
other good and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as follows:
1. Appointment of USBFS
as Administrator
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The
Corporation hereby appoints USBFS as administrator of the Corporation on the terms and
conditions set forth in this Agreement, and USBFS 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. |
2. Services and Duties
of USBFS
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USBFS
shall provide the following fund administration services for each Fund, and such other
services as the parties may agree to: |
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A. |
General
Fund Management: |
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(1) |
Act
as liaison among all Fund service providers. |
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(2) |
Coordinate
the Corporation’s Board of Directors’ (the “Board of
Directors” or the “Directors”) communications, such
as: |
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a. |
Prepare
Board Meeting Minutes. |
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b. |
Prepare
Board Meeting materials. |
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(3) |
Pay
Fund expenses upon written authorization from the Corporation, subject to
that certain Custodian Agreement of the Corporation. |
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(1) |
Regulatory
Compliance: |
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a. |
Maintain
and manage a regulatory compliance calendar. |
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b. |
Maintain
awareness of applicable regulatory and operational service issues and
recommend dispositions. |
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a. |
Prepare
and file with the appropriate state securities authorities any and all
required compliance filings relating to the qualification of the
securities of the Corporation, the Fund , or class of shares of the
Fund, as applicable, so as to enable the Corporation to make a
continuous offering of its shares in all states. |
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b. |
Monitor
status and maintain registrations in each state. |
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c. |
Provide
information regarding material developments in state securities
regulation. |
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(3) |
SEC
Registration and Reporting: |
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a. |
Assist
Fund counsel in updating the Prospectus and SAI and in preparing proxy
statements and Rule 24f-2 notices. |
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b. |
Prepare
and file annual and semiannual reports on Forms N-CSR and N-SAR and such
other periodic reports as may be required by applicable federal
securities laws and regulations. |
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(1) |
Provide
financial data required by the Fund’s Prospectus and SAI. |
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(2) |
Prepare
financial reports for officers, shareholders, tax authorities,
performance reporting companies, the Boards of Directors, the SEC,
and independent auditors. |
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(3) |
Supervise
the Corporation’s custodian and fund accountants in the
maintenance of the Corporation’s general ledgers 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 Corporation’s net assets and of the
Corporation’s shares, and of the declaration and payment of
dividends and other distributions to shareholders. |
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(4) |
Compute
the yield, total return and expense ratio of each class of the Fund, and
the Fund’s portfolio turnover rate. |
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(5) |
Monitor
the expense accruals and notify the Corporation’s management of any
proposed adjustments. |
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(6) |
Prepare
monthly financial statements, which include without limitation the
following items: |
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a. |
Schedule
of Investments. |
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b. |
Statement
of Assets and Liabilities. |
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c. |
Statement
of Operations. |
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d. |
Statement
of Changes in Net Assets. |
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f. |
Schedule
of Capital Gains and Losses. |
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(7) |
Prepare
quarterly broker security transaction summaries. |
3. Compensation
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USBFS
shall be compensated for providing the services set forth in this Agreement in accordance
with the fee schedule set forth on Exhibit B hereto (as amended from time to time). The
Corporation shall pay all fees and reimbursable expenses within thirty (30) calendar days
following receipt of the billing notice, except for any fee or expense subject to a good
faith dispute. The Corporation shall notify USBFS in writing within thirty (30) calendar
days following receipt of each invoice if the Corporation is disputing any amounts in good
faith. The Corporation shall settle such disputed amounts within ten (10) calendar days of
the day on which the parties agree to the amount to be paid. With the exception of any fee
or expense the Corporation is disputing in good faith as set forth above, unpaid invoices
shall accrue a finance charge of one and one-half percent (1½%) per month, after
the due date. Notwithstanding anything to the contrary, amounts owed by the Corporation to
USBFS shall only be paid out of the assets and property of the particular Fund involved. |
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4. Indemnification;
Limitation of Liability
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A. |
USBFS
shall exercise reasonable care in the performance of its duties under this
Agreement. USBFS shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Corporation in connection with
matters to which this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power supplies
beyond USBFS’s control, except a loss arising out of or relating to
USBFS’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, if USBFS has exercised reasonable care in the
performance of its duties under this Agreement, the Corporation shall
indemnify and hold harmless USBFS from and against any and all claims,
demands, losses, expenses, and liabilities of any and every nature
(including reasonable attorneys’ fees) which USBFS may sustain or
incur or which may be asserted against USBFS by any person arising out of
any action taken or omitted to be taken by it in performing the services
hereunder, except for any and all claims, demands, losses, expenses, and
liabilities arising out of or relating to USBFS’s refusal or failure
to comply with the terms of this Agreement or from bad faith, negligence
or from willful misconduct on its part in performance of its duties under
this Agreement, (i) in accordance with the foregoing standards, or (ii) in
reliance upon any written or oral instruction provided to USBFS by any
duly authorized officer of the Corporation, such duly authorized officer
to be included in a list of authorized officers furnished to USBFS and as
amended from time to time in writing by resolution of the Board of
Directors. |
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USBFS
shall indemnify and hold the Corporation harmless from and against any and all claims,
demands, losses, expenses, and liabilities of any and every nature (including reasonable
attorneys’ fees) that the Corporation may sustain or incur or that may be asserted
against the Corporation by any person arising out of any action taken or omitted to be
taken by USBFS as a result of USBFS’s refusal or failure to comply with the terms of
this Agreement, its bad faith, negligence, or willful misconduct. |
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In
the event of a mechanical breakdown or failure of communication or power supplies beyond
its control, USBFS shall take all reasonable steps to minimize service interruptions for
any period that such interruption continues beyond USBFS’s control. USBFS 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 USBFS. USBFS 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 Corporation shall be entitled
to inspect USBFS’s premises and operating capabilities at any time during regular
business hours of USBFS, upon reasonable notice to USBFS. |
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Notwithstanding
the above, USBFS reserves the right to reprocess and correct administrative errors at its
own expense. |
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B. |
In
order that the indemnification provisions contained in this section shall
apply, it is understood that if in any case the indemnitor may be asked to
indemnify or hold the indemnitee harmless, the indemnitor shall be fully
and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnitee will use all
reasonable care to notify the indemnitor promptly concerning any situation
that presents or appears likely to present the probability of a claim for
indemnification. The indemnitor shall have the option to defend the
indemnitee against any claim that may be the subject of this
indemnification. In the event that the indemnitor so elects, it will so
notify the indemnitee and thereupon the indemnitor shall take over
complete defense of the claim, and the indemnitee shall in such situation
initiate no further legal or other expenses for which it shall seek
indemnification under this section. The indemnitee shall in no case
confess any claim or make any compromise in any case in which the
indemnitor will be asked to indemnify the indemnitee except with the
indemnitor’s prior written consent. |
5. Proprietary and
Confidential Information
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USBFS
agrees on behalf of itself and its directors, officers, and employees to treat
confidentially and as proprietary information of the Corporation all records and other
information relative to the Corporation and prior, present, or potential shareholders of
the Corporation (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 Corporation,
which approval shall not be unreasonably withheld and may not be withheld where USBFS 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 Corporation. |
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Further,
USBFS will adhere to the privacy policies adopted by the Corporation pursuant to Title V
of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time (the “Act”).
Notwithstanding the foregoing, USBFS will not share any nonpublic personal information
concerning any of the Corporation’s shareholders to any third party unless
specifically directed by the Corporation or allowed under one of the exceptions noted
under the Act. |
6. Term of Agreement;
Amendment
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This
Agreement shall become effective as of the date first written above and, unless sooner
terminated as provided herein, will continue in effect for a period of three years.
Subsequent to the three year term, this Agreement will renew automatically for an annual
period, subject to the approval of the Board of Directors of the Corporation. This
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. However, this Agreement may be amended by mutual written consent of the parties. |
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7. Records
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USBFS
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
Corporation, but not inconsistent with the rules and regulations of appropriate
government authorities, in particular, Section 31 of the 1940 Act and the rules
thereunder. USBFS agrees that all such records prepared or maintained by USBFS relating
to the services to be performed by USBFS hereunder are the property of the Corporation
and will be preserved, maintained, and made available in accordance with such applicable
sections and rules of the 1940 Act and will be promptly surrendered to the Corporation on
and in accordance with its request. |
8. Governing Law
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This
Agreement shall be construed in accordance with the laws of the State of Wisconsin,
without regard to conflicts of law principles. To the extent that the applicable laws of
the State of Wisconsin, or any of the provisions herein, conflict with the applicable
provisions of the 1940 Act, the latter shall control, and nothing herein shall be
construed in a manner inconsistent with the 1940 Act or any rule or order of the SEC
thereunder. |
9. Duties in the Event
of Termination
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In
the event that, in connection with termination, a successor to any of USBFS’s duties
or responsibilities hereunder is designated by the Corporation by written notice to
USBFS, USBFS will promptly, upon such termination and at the expense of the Corporation,
transfer to such successor all relevant books, records, correspondence, and other data
established or maintained by USBFS under this Agreement in a form reasonably acceptable
to the Corporation (if such form differs from the form in which USBFS has maintained, the
Corporation 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 USBFS’s personnel in the establishment of books,
records, and other data by such successor. |
10. No Agency
Relationship
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Nothing
herein contained shall be deemed to authorize or empower USBFS to act as agent for the
other party to this Agreement, or to conduct business in the name, or for the account, of
the other party to this Agreement. |
11. Data Necessary to
Perform Services
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The
Corporation or its agent shall furnish to USBFS the data necessary to perform the
services described herein at such times and in such form as mutually agreed upon. If
USBFS is also acting in another capacity for the Corporation, nothing herein shall be
deemed to relieve USBFS of any of its obligations in such capacity. |
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12. Assignment
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This
Agreement may not be assigned by either party without the prior written consent of the
other party. |
13. Notices
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Any
notice required or permitted to be given by either party to the other shall be in writing
and shall be deemed to have been given on the date delivered personally or by courier
service, or three (3) days after sent by registered or certified mail, postage prepaid,
return receipt requested, or on the date sent and confirmed received by facsimile
transmission to the other party’s address set forth below: |
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Notice
to USBFS shall be sent to: |
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U.S.
Bancorp Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 |
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and
notice to the Corporation shall be sent to: |
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Xxxxxxx
Capital Management, Inc.
00 X. Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 |
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IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed by a duly authorized officer on one or
more counterparts as of the date first above written.
| XXXXXXX FUNDS, INC. |
U.S. BANCORP FUND SERVICES, LLC |
By: ______________________________ |
By: _______________________________ |
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Xxx X. Xxxxxxx |
| Title: _____________________________ |
Title: President |
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Fund Names
|
Date Added |
Xxxxxxx Emerging Opportunities Fund, a series of Xxxxxxx Funds, Inc. |
April 1, 2004 |
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Xxxxxxx Funds, Inc.
PARTIAL SERVICE
FUND ADMINISTRATION & COMPLIANCE SERVICES
ANNUAL FEE SCHEDULE
[To be completed.]
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