FUND ADMINISTRATION SERVICING AGREEMENT
THIS
AGREEMENT is made and entered into as of this ___ day of September, 2008, by and
among Xxxxxxx Investment Trust,
a Delaware statutory trust (the “Trust”), on behalf of each of its series
listed on Exhibit A hereto, as amended from time to time (each a “Fund” and
collectively the “Funds”), U.S.
Bancorp Fund Services, LLC, a Wisconsin limited liability company
(“USBFS”) and Xxxxxxx
Investment Partners, L.P., a Delaware limited partnership and the
investment advisor to the Trust (the “Advisor”).
WHEREAS,
the Trust 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 issue shares of beneficial interest in separate series, with each
such series representing interests in a separate portfolio of securities and
other assets;
WHEREAS,
USBFS is, among other things, in the business of providing fund administration
services for the benefit of its customers; and
WHEREAS,
USBFS is currently providing administration services to the Trust pursuant to an
Administration Agreement dated as of December 7, 1999, as amended (the “Prior
Agreement”), and the parties wish to enter into a new agreement with USBFS for
the provision of such services;
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.
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Appointment
of USBFS as Administrator
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The Trust
hereby appoints USBFS as administrator of the Trust and its series 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 accordance with the standards of care specified
herein.
2.
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Services
and Duties of USBFS
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USBFS
shall provide the following administration services to each Fund:
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A.
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General
Fund Management:
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(1)
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Act
as liaison among Fund service
providers
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(2)
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Supply:
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a.
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Corporate
secretarial services.
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b.
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Office
facilities (which may be in USBFS’s, or an affiliate’s, own
offices).
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c.
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Non-investment-related
statistical and research data as
needed.
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(3)
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Coordinate
the communications of the Trust’s Board of Trustees (the “Board of
Trustees ” or the “Trustees”) such
as:
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a.
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Prepare
meeting agendas and resolutions, with the assistance of Fund
counsel.
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b.
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Prepare
reports for the Board of Trustees based on financial and administrative
data.
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c.
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Evaluate
independent auditor.
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d.
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Secure
and monitor fidelity bond and director and officer liability coverage, and
make the necessary Securities and Exchange Commission (the “SEC”) filings
relating thereto.
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e.
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Prepare
minutes of meetings of the Board of Trustees and Fund shareholders.
Provide attorney to record and review board meeting minutes, oversee board
meeting preparation process and perform trust secretarial duties for the
Funds.
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f.
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Recommend
dividend declarations to the Board of Trustees and prepare and distribute
to appropriate parties notices announcing declaration of dividends and
other distributions to
shareholders.
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g.
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Attend
Board of Trustees meetings and present materials for Trustees’ review at
such meetings. A senior manager from USBFS shall attend Board
of Trustees meetings semi-annually.
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(4)
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Audits:
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a.
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Prepare
appropriate schedules and assist independent
auditors.
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b.
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Provide
information to the SEC and facilitate audit
process.
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c.
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Provide
office facilities.
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(5)
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Assist
in overall operations of the Fund, including monitoring the fair value
operations of FT Interactive and monitoring regular and effective
communications with the Trust’s other service
providers.
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(6)
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Pay
Fund expenses upon written authorization from the
Trust.
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(7)
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Keep
the Trust’s governing documents, including its charter, bylaws and minute
books, but only to the extent such documents are provided to USBFS by the
Trust or their representatives for safe
keeping.
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(8)
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Conduct
a monthly strategic overview and service requirement
review.
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B.
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Compliance:
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(1)
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Regulatory
Compliance:
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a.
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Monitor
compliance with the 1940 Act requirements,
including:
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(i)
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Asset
diversification tests.
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(ii)
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Total
return and SEC yield calculations.
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(iii)
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Maintenance
of books and records under Rule
31a-3.
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(iv)
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Code
of ethics requirements under Rule 17j-1 for the disinterested
Trustees.
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2
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b.
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Monitor
Fund's compliance with the policies and investment limitations as set
forth in its prospectus (the “Prospectus”) and statement of additional
information (the “SAI”).
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c.
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Perform
its duties hereunder in compliance with all applicable laws and
regulations and provide any sub-certifications reasonably requested by the
Trust in connection with any certification required of the Trust pursuant
to the Xxxxxxxx-Xxxxx Act of 2002 (the “SOX Act”) or any rules or
regulations promulgated by the SEC thereunder, provided the same shall not
be deemed to change USBFS’s standard of care as set forth
herein.
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d.
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Monitor
applicable regulatory and operational service issues, and update Board of
Trustees periodically.
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(2)
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Blue
Sky Compliance:
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a.
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Prepare
and file with the appropriate state securities authorities any and all
required compliance filings relating to the qualification of the
securities of the Fund so as to enable the Fund to make a continuous
offering of its shares in all
states.
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b.
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Monitor
status and maintain registrations in each
state.
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c.
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Provide
updates regarding material developments in state securities
regulation.
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(3)
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SEC
Registration and Reporting:
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a.
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Assist
Fund counsel in annual update of the Prospectus and SAI and in preparation
of proxy statements as needed.
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b.
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Prepare
and file annual and semiannual shareholder reports, Form N-SAR, Form
N-CSR, and Form N-Q filings and Rule 24f-2 notices. As
requested by the Trust, prepare and file Form N-PX
filings.
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c.
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Coordinate
the printing, filing and mailing of Prospectuses and shareholder reports,
and amendments and supplements
thereto.
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d.
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File
fidelity bond under Rule 17g-1.
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e.
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Monitor
sales of Fund shares and ensure that such shares are properly registered
or qualified, as applicable, with the SEC and the appropriate state
authorities.
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(4)
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IRS
Compliance:
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a.
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Monitor
the Trust’s status as a regulated investment company under Subchapter M of
the Internal Revenue Code of 1986, as amended (the “Code”), including
without limitation, review of the
following:
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(i)
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Asset
diversification requirements.
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(ii)
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Qualifying
income requirements.
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(iii)
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Distribution
requirements.
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b.
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Calculate
required distributions (including excise tax
distributions).
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(5)
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CCO
Compliance: Assist the Trust’s Chief Compliance Officer as reasonably
requested in connection with the preparation of annual and special reports
to the Board of Trustees and routine examinations of the Trust by
Trustee.
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C.
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Financial
Reporting:
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(1)
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Provide
financial data required by the Prospectus and
SAI.
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(2)
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Prepare
financial reports for officers, shareholders, tax authorities, performance
reporting companies, the Board of Trustees, the SEC, and independent
accountants.
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(3)
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Supervise
the Trust’s custodian and fund accountants in the maintenance of the
Trust’s general ledger and in the preparation of the Trust’s financial
statements, including oversight of expense accruals and payments, the
determination of net asset value of each Fund and the net asset value per
share of the Fund, and the declaration and payment of dividends and other
distributions to shareholders.
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(4)
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Compute
the yield, total return, expense ratio and portfolio turnover rate of each
class of the Fund.
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(5)
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Monitor
expense accruals and notify the Trust’s management of any proposed
adjustments.
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(6)
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Prepare
annual and semi-annual financial statements, which include, if applicable,
without limitation, the following
items:
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a.
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Schedule
of Investments.
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b.
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Statement
of Assets and Liabilities.
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c.
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Statement
of Operations.
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d.
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Statement
of Changes in Net Assets.
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e.
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Cash
Statement.
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f.
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Schedule
of Capital Gains and Losses.
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(7)
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Prepare
quarterly broker security transaction
summaries.
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D.
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Tax
Reporting:
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(1)
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Prepare
and file on a timely basis appropriate federal and state tax returns
including, without limitation, Forms 1120/8613, with any necessary
schedules.
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(2)
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Prepare
state income breakdowns where
relevant.
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09/25/08
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(3)
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File
Form 1099 for payments to disinterested Trustees and other service
providers.
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(4)
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Monitor
wash sale losses.
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(5)
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Calculate
eligible dividend income for corporate
shareholders.
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E.
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Eagle
Portal System:
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The Eagle
Portal System (the “System”, “Advisor Information Source” or “AIS”) is a
web-based report delivery system that generates holding, position and tax
reports. Data from IDC, CPORT, S&P and GICs populate the data
warehouse from which reports are generated. Reports can be customer
run or scheduled for automatic delivery to a portal inbox. This is an
internal software application which is maintained and monitored by internal
staff.
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(1)
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Provide
access to the System 24 hours a day, 7 days a week, subject to scheduled
maintenance and events outside of USBFS’s reasonable
control. Unless an emergency is encountered, no routine
maintenance will occur during the hours of 8:00 a.m to 3:00 p.m. Central
Time.
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(2)
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Supply
necessary software to access the System, if
necessary.
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(3)
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Provide
training and connectivity support as outlined in the pricing model agreed
upon by the parties.
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(4)
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Maintain
and support the System, which shall include providing error corrections,
minor enhancements and interim upgrades to the System and providing help
desk support to provide assistance to the Trust’s employees and agents
with their use of the System. Maintenance and support, as used
herein, shall not include (i) access to or use of any substantial added
functionality, new interfaces, new architecture, new platforms, new
versions or major development efforts, unless made generally available by
USBFS to System customers, as determined solely by USBFS or (ii)
maintenance of customized features. To the extent possible,
USBFS shall notify the Trust of all planned outages and will perform any
necessary maintenance during non-business
hours.
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(5)
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Establish
systems to guide assist and permit End Users (as defined below) who access
the System from the Trust’s web site(s) to electronically perform
inquiries and create and transmit transaction requests to
USBFS.
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(6)
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Address
and mail, at the Trust’s expense, notification and promotional mailings
and other communications provided by the Trust to shareholders regarding
the availability of the System.
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09/25/08
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(7)
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Issue
to each shareholder, financial adviser or other person or entity who
desires to make inquiries concerning the Trust or perform transactions in
accounts with the Trust using the System (the “End User”) a unique user ID
and password for authentication purposes, which may be changed upon an End
User’s reasonable request in accordance with policies to be determined by
USBFS and the Trust. USBFS will require the End User to use
his/her user ID and password in order to access the
System.
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(8)
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Utilize
encryption and secure transport protocols intended to prevent fraud and
ensure confidentiality of End User accounts and
transactions. In no event shall USBFS use encryption weaker
than a 40-bit RC4 Stream. USBFS will take reasonable actions,
including periodic scans of Internet interfaces and the System, to protect
the Internet web site that provides the System and related network against
viruses, worms and other data corruption or disabling devices, and
unauthorized, fraudulent or illegal use, by using appropriate virus
detection and destructive software and by adopting such other security
procedures as may be necessary.
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(9)
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Establish
and provide to the Trust written procedures, which may be amended from
time to time by USBFS with the written consent of the Trust, regarding End
User access to the System. Such written procedures shall
establish security standards for the System, including, without
limitation:
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a. Encryption/secure
transport protocols.
b. End
User lockout standards (e.g., lockout after three unsuccessful attempts to gain
access to the System).
c. User
ID and password issuance and reissuance standards.
d. Access
standards, including limits on access to End Users whose accounts are coded for
privilege.
e. Automatic
logoff standards (e.g., if the session is inactive for longer than 15
minutes).
(10) Ensure
that the HTTPS Server is accessible via the Internet.
3.
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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). USBFS shall also be compensated for such
out-of-pocket expenses (e.g., telecommunication charges, postage and delivery
charges, and reproduction charges) as are reasonably incurred by USBFS in
performing its duties hereunder.
09/25/08
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The Trust
shall pay all such fees and reimbursable expenses for the Funds, except the
Separately Managed Account Reserve Trust, within 30 calendar days following
receipt of the billing notice, except for any fee or expense subject to a good
faith dispute. The Trust shall notify USBFS in writing within 30
calendar days following receipt of each invoice if the Trust is disputing any
amounts in good faith. The Trust shall pay such disputed amounts within 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 Trust is disputing
in good faith as set forth above, unpaid invoices shall accrue a finance charge
of 1½% per month after the due date.
With
respect to the Separately Managed Account Reserve Trust, the Advisor shall pay
all such fees and reimbursable expenses within 30 calendar days following
receipt of the billing notice, except for any fee or expense subject to a good
faith dispute. The Advisor shall notify USBFS in writing within 30
calendar days following receipt of each invoice if the Advisor is disputing any
amounts in good faith. The Advisor shall pay such disputed amounts within 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 Advisor is
disputing in good faith as set forth above, unpaid invoices shall accrue a
finance charge of 1½% per month after the due date.
4.
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Representations
and Warranties
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A.
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The
Trust hereby represents and warrants to USBFS, which representations and
warranties shall be deemed to be continuing throughout the term of this
Agreement, that:
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(1)
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It
is duly organized and exists under the laws of the jurisdiction of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(2)
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This
Agreement has been duly authorized, executed and delivered by the Trust in
accordance with all requisite action and constitutes a valid and legally
binding obligation of the Trust, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of creditors
and secured parties; and
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(3)
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It
is conducting its business in compliance in all material respects with all
applicable laws and regulations, both state and federal, and has obtained
all regulatory approvals necessary to carry on its business as now
conducted; and there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution or
performance of this Agreement.
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09/25/08
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B.
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The
Advisor hereby represents and warrants to USBFS and the Trust, which
representations and warranties shall be deemed to be continuing throughout
the term of this Agreement, that:
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(1)
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It
is duly organized and existing under the laws of the jurisdiction of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(2)
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This
Agreement has been duly authorized, executed and delivered by the Advisor
in accordance with all requisite action and constitutes a valid and
legally binding obligation of the Advisor, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting the rights and remedies of
creditors and secured parties; and
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(3)
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It
is conducting its business in compliance in all material respects with all
applicable laws and regulations, both state and federal, and has obtained
all regulatory approvals necessary to carry on its business as now
conducted; and there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution or
performance of this Agreement.
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C.
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USBFS
hereby represents and warrants to the Trust and Advisor, which
representations and warranties shall be deemed to be continuing throughout
the term of this Agreement, that:
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(1)
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It
is duly organized and existing under the laws of the jurisdiction of its
organization, with full power to carry on its business as now conducted,
to enter into this Agreement and to perform its obligations
hereunder;
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(2)
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This
Agreement has been duly authorized, executed and delivered by USBFS in
accordance with all requisite action and constitutes a valid and legally
binding obligation of USBFS, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of creditors
and secured parties; and
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09/25/08
8
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(3)
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It
is conducting its business in compliance in all material respects with all
applicable laws and regulations, both state and federal, and has obtained
all regulatory approvals necessary to carry on its business as now
conducted; and there is no statute, rule, regulation, order or judgment
binding on it and no provision of its charter, bylaws or any contract
binding it or affecting its property which would prohibit its execution or
performance of this Agreement.
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D.
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USBFS
MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED, WITH RESPECT
TO THE SUITABILITY AND ACCURACY OF FUND DATA, SYSTEMS, INDUSTRY
INFORMATION AND PROCESSES ACCESSED THROUGH THE
SYSTEM.
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5.
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Standard
of Care; Indemnification; Limitation of Liability
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A.
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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 any loss suffered by the Trust in connection with
USBFS’s duties under this Agreement, including any loss resulting from (i)
any fraudulent, unauthorized or otherwise improper use by the Trust of any
identification, security codes or systems, or access mechanisms assigned
by USBFS in connection with access to the System, (ii) mechanical
breakdowns, the failure of communication or power supplies or USBFS’
failure or delay in delivering the System to the extent such breakdown,
failure or delay is beyond USBFS’ control, except those losses or
damages arising out of or relating to USBFS’ refusal or failure
to comply with the terms of this Agreement or from USBFS’ bad
faith, negligence, or willful misconduct in the performance of its duties
under this Agreement.
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B.
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Notwithstanding
any other provision of this Agreement, if USBFS exercises
reasonable care in the performance of its duties under this Agreement, the
Trust 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) that USBFS may sustain or incur or
that 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
(i) in accordance with the standards in paragraph A, or (ii) in reliance
upon any written or oral instruction provided to USBFS by any duly
authorized officer of the Trust, as approved by the Board of Trustees,
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 its bad faith, negligence or willful
misconduct in the performance of its duties under this
Agreement. This indemnity shall be a continuing obligation of
the Trust, its successors and assigns, notwithstanding the termination of
this Agreement. As used in this paragraph, the term “USBFS”
shall include USBFS’s directors, officers and
employees.
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09/25/08
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C.
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USBFS
shall indemnify and hold the Trust and the Advisor harmless from and
against any and all claims, demands, losses, expenses, and liabilities of
any and every nature (including reasonable attorneys’ fees) that the Trust
may sustain or incur or that may be asserted against the Trust or Advisor
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, or from its bad faith, negligence, or willful
misconduct in the performance of its duties under this
Agreement. This indemnity shall be a continuing obligation of
USBFS, its successors and assigns, notwithstanding the termination of this
Agreement. As used in this paragraph, the term “Trust” and
“Advisor” shall include the Trust’s and Advisor’s respective directors,
partners, officers and employees.
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D.
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In
order that the indemnification provisions contained in this section 5
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 with counsel reasonably acceptable to the
indemnitee. 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 which shall not be unreasonably
withheld. The Indemnitor shall in no way confess any claim or
make any compromise on any basis that does not provide for the full
release of the indemnitee.
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E.
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The
agreement of each indemnitor to indemnify an indemnitee hereunder with
respect to any action or claim of loss brought against such indemnitee is
expressly conditioned upon the indemnitor being notified of such action or
claim of loss within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have
been served upon the indemnitee, unless the failure to give notice does
not prejudice the indemnitor.
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09/25/08
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F.
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In
the event of a mechanical breakdown, failure of communication or power
supplies or its failure or delay in delivering the System due to an event
beyond its control, USBFS shall take all reasonable steps to minimize
service interruptions for any period that such interruption
continues. 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 Trust and the Advisor 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. Moreover, USBFS shall provide the Trust and Advisor, at
such times as the Trust or Advisor may reasonably require, copies of
reports rendered by independent accountants on the internal controls and
procedures of USBFS relating to the services provided by USBFS under this
Agreement.
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G.
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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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H.
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The
Trust shall hold harmless USBFS from and against any and all claims,
demands, losses, expenses and liabilities of any and every nature
(including reasonable attorneys’ fees) to which the Trust may become
subject (collectively, “Liabilities”) arising from or by reason of its use
of the equipment, software or other related services provided by vendors
to USBFS, except those Liabilities arising out of or relating to the
USBFS’s refusal or failure to comply with the terms of the Agreement or
the terms of its agreement with the applicable vendor or from USBFS’s bad
faith, negligence, or willful misconduct in the performance or USBFS’s
duties under the Agreement.
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H.
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The
indemnity and defense provisions set forth in this Section 5 shall
indefinitely survive the termination and/or assignment of this
Agreement.
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I.
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If
USBFS is acting in another capacity for the Trust or Advisor pursuant to a
separate agreement, nothing herein shall be deemed to relieve USBFS of any
of its obligations in such other capacity, and nothing therein shall be
deemed to relieve USBFS of any of its obligations under this
Agreement.
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J.
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No
party to this Agreement shall be liable to any other party for
consequential, special or punitive damages under any provision of this
Agreement.
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K.
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No
party shall be obligated to provide indemnification under this Section 5
if such indemnification would be impermissible under the 1940 Act, the
1933 Act, the 1934 Act or the rules of FINRA; provided, however, in such
event indemnification shall be provided under this Section 5 to the
maximum extent so permissible.
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09/25/08
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L.
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Nothing
in this section 5 shall require the Trust be responsible for fees or
expenses owed by the Advisor as directed by Section 3 of this Agreement.
The obligations specified in Section 3 of this Agreement herein with
respect to the Advisor are payable only by the
Advisor.
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6.
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Duties
and Obligations of the Trust
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A.
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The
Trust or its agents shall furnish to USBFS the data reasonably necessary
to perform the services described herein at such times and in such form as
mutually agreed upon by the
parties.
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B.
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In
connection with its use of the System (also known as Advisors Information
System), the Trust shall:
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(1) Provide
and maintain, at its own expense, one or more personal computers for accessing
the Advisors Information System that will accommodate and be compatible with the
software provided by USBFS.
(2) Follow
any and all procedures necessary to access the System as may be set forth in any
user guide or instruction manual provided and which may be amended or
supplemented from time to time.
(3) Provide
for the security of all codes and system access mechanisms relating to the
System and implement such security procedures and/or devices to ensure the
integrity of the System when accessed by the Trust from its principal place of
business.
(4) Acknowledge
that all programs, software, manuals and other written information relating to
the System shall remain the exclusive property of USBFS at all
times.
(5) Acknowledge
that it is responsible for determining the suitability and accuracy of the
information obtained through its access to the System. The
Trust assumes exclusive responsibility for the consequences of any instructions
it may give to USBFS or the Trust’s or End Users’ failure to properly access the
System in the manner prescribed by USBFS, and for the Trust’s failure to supply
accurate information to USBFS.
(6) Promptly
notify USBFS of any problems or errors with the System of which the Trust
becomes aware or any changes in policies or procedures of the Trust requiring
changes to the System.
(7) Comply,
and instruct End Users to comply, with all the End User enrollment and
authorization procedures.
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(8) Obtain
and pay for connectivity to the HTTPS Server.
(9) Have
the proper equipment and software to enable End Users to access the HTTPS Server
and download the files and obtain all related maintenance, including support in
the event of download problems.
7.
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Proprietary
and Confidential Information
|
USBFS
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 trading or other purpose other than the performance of its
responsibilities and duties hereunder, except (i) after prior notification to
and approval in writing by the Trust, 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, (ii) when requested to divulge such
information by duly constituted authorities, or (iii) when so requested by the
Trust. Records and other information which have become known to the
public through no wrongful act of USBFS or any of its employees, agents or
representatives, and information that was already in the possession of USBFS
prior to receipt thereof from the Trust or its agents shall not be subject to
this paragraph.
Further,
USBFS will adhere to the privacy policies adopted by the Trust pursuant to Title
V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to
time. In this regard, USBFS shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to protect
the security, confidentiality and integrity of, and to prevent unauthorized
access to or use of, records and information relating to the Trust and its
shareholders.
8.
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Records
|
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 Trust, 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 Trust 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 Trust or its designee on and in accordance with its
request.
USBFS and
its agents shall employ commercially reasonable security procedures to ensure
that unauthorized third-parties do not have access to the Trust’s databases,
files, and other information provided by the Trust to USBFS for use with the
System, the names of end users or end user transaction or account data
(collectively, “Trust Files”). USBFS shall notify the Trust promptly
in the event USBFS receives a request for the Trust Files from a securities
regulator with jurisdiction over the Trust.
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9.
|
Proprietary
Rights
|
|
A.
|
The
Trust acknowledges and agrees that by virtue of accessing the System, it
shall not obtain any rights in or to any of the software, templates,
screen and file formats, interface protocols, formats and development
tools and instructions, hardware, processes, trade secrets, instruction
manuals, enrollment authorization, authentication and other business
processes, proprietary information or distribution and communication
networks used to allow access to the System owned by or licensed to
USBFS. Any interface and other software or programs provided to
the Trust in order to provide connectivity to the System shall be used by
the Trust only for the period during which this Agreement is in effect and
only in accordance with the terms of this Agreement, and shall not be used
by the Trust to provide connectivity to or through any other system or
person without USBFS’s prior written approval. The Trust shall
not copy, decompile or reverse engineer any software or programs provided
to the Trust hereunder. The Trust also agrees not to take any
action which would mask, delete or otherwise alter any on-screen
disclaimers and copyright, trademark and service xxxx notifications, or
any “point and click” features relating to acknowledgment and acceptance
of such disclaimers and
notifications.
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|
B.
|
The
Trust agrees that USBFS, without prejudice to any rights to judicial
relief it may have, shall be entitled to seek equitable relief, including
injunction, in the event of a breach by the Trust of this Section 9 and
that the Trust will not resist such application for relief on the basis
that USBFS has an adequate remedy at
law.
|
|
C.
|
Each
party acknowledges and agrees that it obtains no rights in or to any of
the software, hardware, processes, trade secrets, and proprietary
information or distribution and communication networks of the other
hereunder. Except in the normal course of business and in conformity with
Federal copyright law or with the other party’s consent, neither party nor
any of its affiliates shall disclose, use, copy, decompile or reverse
engineer any software or other programs provided to such party by the
other in connection herewith.
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|
D.
|
Notwithstanding
any other provision of the Agreement, each party hereto agrees that it
shall not knowingly insert into any interface, other software, or other
program provided by the other party hereunder, any “back door,” “time
bomb,” “Trojan Horse,” “worm,” “drop dead device,” “virus” or other
computer software code or routines or hardware components designed to
disable, damage or impair the operation of the System, program or
operation hereunder. For its failure to comply with the
foregoing, the non-complying party shall immediately replace all copies of
the affected work product, System or software. All costs
incurred with replacement including, but not limited to, cost of media,
shipping, deliveries and installation, shall be borne by such
non-complying party.
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09/25/08
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10. Compliance
with Laws
The Trust
has and retains primary responsibility for all compliance matters relating to
the Funds, including but not limited to compliance with the 1940 Act, the Code,
the SOX Act, the USA Patriot Act of 2002 and the policies and limitations of the
Trust relating to its portfolio investments as set forth in its Prospectus and
SAI. USBFS’s services hereunder shall not relieve the Trust of its
responsibilities for assuring such compliance or the Board of Trustees’
oversight responsibility with respect thereto.
11. Term
of Agreement; Amendment
This
Agreement shall become effective as of October 1, 2008 and will continue in
effect for a period of three (3) years. Subsequent to the initial
three-year term, this Agreement may be terminated by either party upon giving 90
days prior written notice to the other party or such shorter period as is
mutually agreed upon by the parties. Notwithstanding the foregoing, this
Agreement may be terminated by any party upon the breach of the other party of
any material term of this Agreement if such breach is not cured within 15 days
of notice of such breach to the breaching party. This Agreement is
the entire agreement between the parties with respect to the matters covered
hereby and supersedes the Prior Agreement and all prior agreements will respect
to the subject matter hereof and may not be amended or modified in any manner
except by written agreement executed by USBFS, the Advisor and the Trust, and
authorized or approved by the Board of Trustees.
12. Duties
in the Event of Termination
In the
event that, in connection with termination, a successor to any of USBFS’s duties
or responsibilities hereunder is designated by the Trust by written notice to
USBFS, USBFS 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 USBFS under this Agreement in a form
reasonably acceptable to the Trust (if such form differs from the form in which
USBFS has maintained the same, 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 USBFS’s
personnel in the establishment of books, records, and other data by such
successor. If no such successor is designated, then such books,
records and other data shall be returned to the Trust.
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In the
event of termination of the Agreement, the Trust shall immediately end its
access to the System and return all codes, system access mechanisms, programs,
manuals and other written information to USBFS, and shall destroy or erase all
such information on any diskettes or other storage medium, unless such access
continues to be permitted pursuant to a separate agreement between the Trust and
USBFS that is in effect.
13. Assignment
This
Agreement shall extend to and be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this Agreement shall
not be assignable by any party without the written consent of the other parties
(and in the case of the Trust, accompanied by the authorization or approval of
the Trust’s Board of Trustees).
14. Governing
Law
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.
15. No
Agency Relationship
Except as
specifically set forth herein, nothing herein contained shall be deemed to
authorize or empower either party 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.
16. Services
Not Exclusive
Nothing
in this Agreement shall limit or restrict USBFS from providing services to other
parties that are similar or identical to some or all of the services provided
hereunder.
17. Invalidity
Any
provision of this Agreement which may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties.
16
18. Legal-Related
Services
Nothing
in this Agreement shall be deemed to appoint USBFS and its officers, directors
and employees as the Trust attorneys, form attorney-client relationships or
require the provision of legal advice. The Trust acknowledges that
in-house USBFS attorneys exclusively represent USBFS and rely on outside counsel
retained by the Trust to review all services provided by in-house USBFS
attorneys and to provide independent judgment on the Trusts’s
behalf. The Trust acknowledges that because no attorney-client
relationship exists between in-house USBFS attorneys and the Trust, any
information provided to USBFS attorneys may not be privileged and may be subject
to compulsory disclosure under certain circumstances. USBFS
represents that it will maintain the confidentiality of information disclosed to
its in-house attorneys on a best efforts basis.
19. Notices
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 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:
Notice to
USBFS shall be sent to:
U.S.
Bancorp Fund Services, LLC
000 Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Fax:
000-000-0000
Notice to
the Trust and the Advisor shall be sent to:
Xxxxxxx
Investment Trust
00000 Xx
Xxxxxx Xxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Attn:
President
Fax: 000
000-0000
20. Declaration
of Trust
USBFS and
the Advisor acknowledge and agree that the obligations of the Trust hereunder
are not binding upon any of the trustees or representatives of the Trust
individually, but only on the assets of the Trust, and that they must look
solely to the assets of the Trust belonging to a Fund for the enforcement of any
claims against the Trust with respect to services on behalf of such Fund (and
not to the assets of the Trust belonging to any other Fund).
09/25/08
17
21. Multiple
Originals
This
Agreement may be executed on two or more counterparts, each of which when so
executed shall be deemed to be an original, but such counterparts shall together
constitute but one and the same instrument.
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 INVESTMENT TRUST | U.S. BANCORP FUND SERVICES, LLC |
By: | By: |
Name: | Name: Xxxxxxx X. XxXxx |
Title: | Title: Executive Vice President |
XXXXXXX INVESTMENT PARTNERS, L.P. | |
By: | |
Name: | |
Title: |
09/25/08
18
Exhibit
A
to
the
Xxxxxxx
Investment Trust and Xxxxxxx Investment Partners, L.P.
Fund
Names
Separate
Series of Xxxxxxx Investment Trust
Name of
Series
Brandes
Institutional International Equity Fund
Xxxxxxx
Separately Managed Account Reserve Trust
Xxxxxxx
Institutional Core Plus Fixed Income Fund
Xxxxxxx
Institutional Enhanced Income Fund
Xxxxxxx
Institutional Global Equity Fund
09/25/08
19
Exhibit
B
to
the
Fund
Administration Servicing Agreement – Xxxxxxx Investment Trust and Xxxxxxx
Investment Partners. L.P.
09/25/08 20