FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 12th day of
December, 2000, by and between Xxxx Xxxxx Funds, a business trust organized
under the laws of the State of Delaware (hereinafter the "Trust") and Firstar
Mutual Fund Services, LLC, a limited liability company organized under the laws
of the State of Wisconsin (hereinafter "FMFS").
WHEREAS, the Trust is an open-end management investment company which
is registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Trust is authorized to create separate series, each
with its own separate investment portfolio;
WHEREAS, FMFS is a limited liability corporation and, among other
things, is in the business of providing fund administration services for the
benefit of its customers; and
WHEREAS, the Trust desires to retain FMFS to act as Administrator for
each series of the Trust listed on Exhibit A attached hereto, (each a "Fund"),
as may be amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Trust and FMFS agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Trust hereby appoints FMFS as Administrator of the Trust
on the terms and conditions set forth in this Agreement, and FMFS
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. DUTIES AND RESPONSIBILITIES OF FMFS
A. General Fund Management
(1) Act as liaison among all Fund service providers
(2) Supply:
a. Corporate secretarial services
b. Office facilities (which may be in FMFS's or its
affiliate's own offices)
c. Non-investment-related statistical and research
data as needed
(3) Coordinate board communication by:
a. Establish meeting agendas
b. Preparing board reports based on financial and
administrative data
c. Evaluating independent auditor
d. Securing and monitoring fidelity bond and director
and officer liability coverage, and making the
necessary SEC filings relating thereto
e. Preparing minutes of meetings of the board and
shareholders
f. Recommend dividend declarations to the Board,
prepare and distribute to appropriate parties
notices announcing declaration of dividends and
other distributions to shareholders
g. Provide personnel to serve as officers of the
Trust if so elected by the Board and attend Board
meetings to present materials for Board review
(4) Audits
a. Prepare appropriate schedules and assist
independent auditors
b. Provide information to SEC and facilitate audit
process
c. Provide office facilities
(5) Assist in overall operations of the Fund
(6) Pay Fund expenses upon written authorization from the
Trust
(7) Monitor arrangements under shareholder services or
similar plan
B. Compliance
(1) Regulatory Compliance
a. Monitor compliance with 1940 Act requirements,
including:
(i) Asset diversification tests
(ii) Total return and SEC yield calculations
(iii) Maintenance of books and records under
Rule 31a-3
(iv) Code of Ethics for the disinterested
trustees of the Fund
b. Monitor Fund's compliance with the policies and
investment limitations of the Trust as set forth in
its Prospectus and Statement of Additional
Information
c. Maintain awareness of applicable regulatory and
operational service issues and recommend
dispositions
(2) Blue Sky Compliance
a. Prepare and file with the appropriate state
securities authorities any and all required
compliance filings relating to the registration of
the securities of the Trust so as to enable the
Trust to make a continuous offering of its shares
in all states
b. Monitor status and maintain registrations in each
state
c. Provide information regarding material developments
in state securities regulation
(3) SEC Registration and Reporting
a. Assist Trust counsel in updating Prospectus and
Statement of Additional Information and in
preparing proxy statements and Rule 24f-2 notices
b. Prepare annual and semiannual reports, Form N-SAR
filings and Rule 24f-2 notices
c. Coordinate the printing, filing and mailing of
publicly disseminated Prospectuses and reports
d. File fidelity bond under Rule 17g-1
e. File shareholder reports under Rule 30b2-1
f. Monitor sales of each Fund's shares and ensure that
such shares are properly registered with the SEC
and the appropriate state authorities
g. File Rule 24f-2 notices
(4) IRS Compliance
a. Monitor Company's status as a regulated investment
company under Subchapter M, including without
limitation, review of the following:
(i) Asset diversification requirements
(ii) Qualifying income requirements
(iii) Distribution requirements
b. Calculate required distributions (including excise
tax distributions)
C. Financial Reporting
(1) Provide financial data required by Fund's Prospectus and
Statement of Additional Information;
(2) Prepare financial reports for officers, shareholders,
tax authorities, performance reporting companies, the
board, the SEC, and independent auditors;
(3) Supervise the Trust's Custodian and Fund Accountants
in the maintenance of the Trust's general ledger 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 Trust's net
assets and of the Trust's shares, and of the declaration
and payment of dividends and other distributions to
shareholders;
(4) Compute the yield, total return and expense ratio of
each class of each Fund, and each Fund's portfolio
turnover rate; and
(5) Monitor the expense accruals and notify Trust management
of any proposed adjustments.
(6) Prepare monthly financial statements, which will include
without limitation the following items:
- Schedule of Investments
- Statement of Assets and Liabilities
- Statement of Operations
- Statement of Changes in Net Assets
- Cash Statement
- Schedule of Capital Gains and Losses
(7) Prepare quarterly broker security transaction summaries.
D. Tax Reporting
(1) Prepare and file on a timely basis appropriate
federal and state tax returns including, without
limitation, Forms 1120/8610 with any necessary
schedules
(2) Prepare state income breakdowns where relevant
(3) File Form 1099 Miscellaneous for payments to trustees
and other service providers
(4) Monitor wash losses
(5) Calculate eligible dividend income for corporate
shareholders
3. COMPENSATION
The Trust, on behalf of the Fund, agrees to pay FMFS for the
performance of the duties listed in this Agreement, the fees and
out-of-pocket expenses as set forth in the attached Exhibit A.
Notwithstanding anything to the contrary, amounts owed by the Trust to
FMFS shall only be paid out of the assets and property of the
particular Fund involved.
These fees may be changed from time to time, subject to mutual written
Agreement between the Trust and FMFS.
The Trust agrees to pay all fees and reimbursable expenses within ten
(10) business days following the receipt of the billing notice.
4. PERFORMANCE OF SERVICE; LIMITATION OF LIABILITY
A. FMFS shall exercise reasonable care in the performance of
its duties under this Agreement. FMFS shall not be liable
for any error of judgment or mistake of law or for any loss
suffered by the Trust in connection with matters to which
this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or
power supplies beyond FMFS's control, except a loss arising
out of or relating to FMFS'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 FMFS has exercised reasonable
care in the performance of its duties under this greement,
the Trust shall indemnify and hold harmless FMFS 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 FMFS may sustain or incur or which may be asserted
against FMFS 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
FMFS'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 FMFS by any duly authorized officer
of the Trust, such duly authorized officer to be included in
a list of authorized officers furnished to FMFS and as
amended from time to time in writing by resolution of the
Board of Trustees of the Trust.
FMFS 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 the Trust may sustain or incur or which may be asserted
against the Trust by any person arising out of any action
taken or omitted to be taken by FMFS as a result of FMFS's
refusal or failure to comply with the terms of this Agreement,
its bad faith, negligence, or willful misconduct.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, FMFS shall
take all reasonable steps to minimize service interruptions
for any period that such interruption continues beyond FMFS's
control. FMFS 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 FMFS. FMFS 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 shall be entitled to inspect FMFS's premises and
operating capabilities at any time during regular business
hours of FMFS, upon reasonable notice to FMFS.
Regardless of the above, FMFS 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 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 which 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 which 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.
C. FMFS is hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Trust's Declaration
of Trust and agrees that obligations assumed by the Trust
pursuant to this Agreement shall be limited in all cases to
the Trust and its assets, and if the liability relates to one
or more series, the obligations hereunder shall be limited to
the respective assets of such series. FMFS further agrees that
it shall not seek satisfaction of any such obligation from the
shareholder or any individual shareholder of a series of the
Trust, nor from the Trustees or any individual Trustee of the
Trust.
5. PROPRIETARY AND CONFIDENTIAL INFORMATION
FMFS agrees on behalf of itself and its directors, officers,
and employees to treat confidentially and as proprietary information of
the Trust all records and other information relative to the Trust and
prior, present, or potential shareholders of the Trust (and clients of
said shareholders), and not to use such records and information for any
purpose other than the performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing
by the Trust, which approval shall not be unreasonably withheld and may
not be withheld where FMFS may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by
the Trust.
6. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof
and will continue in effect for a period of three years. Subsequent to
the initial three year term, 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.
7. RECORDS
FMFS 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.
FMFS agrees that all such records prepared or maintained by FMFS
relating to the services to be performed by FMFS hereunder are the
property of the Trust and will be preserved, maintained, and made
available in accordance with such section and rules of the 1940 Act and
will be promptly surrendered to the Trust on and in accordance with its
request.
8. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the State of
Wisconsin. However, nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or regulation promulgated by
the Securities and Exchange Commission thereunder.
9. DUTIES IN THE EVENT OF TERMINATION
In the event that, in connection with termination, a successor
to any of FMFS's duties or responsibilities hereunder is designated by
the Trust by written notice to FMFS, FMFS 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 FMFS under this Agreement in a form reasonably
acceptable to the Trust (if such form differs from the form in which
FMFS 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 FMFS's personnel in the establishment of books, records, and other
data by such successor.
10. NO AGENCY RELATIONSHIP
Nothing herein contained shall be deemed to authorize or empower FMFS
to act as agent for the other party to this Agreement, or to conduct
business in the name of, or for the account of the other party to this
Agreement.
11. DATA NECESSARY TO PERFORM SERVICES
The Trust or its agent, which may be FMFS, shall furnish to
FMFS the data necessary to perform the services described herein at
times and in such form as mutually agreed upon if FMFS is also acting
in another capacity for the Trust, nothing herein shall be deemed to
relieve FMFS of any of its obligations in such capacity.
12. 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 FMFS 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:
Xxxx Xxxxx Xxxxx
x/x Xxxx X. Xxxxx
Xxxx Xxxxx Securities, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by a duly authorized officer or one or more counterparts as of
the day and year first written above.
XXXX XXXXX FUNDS FIRSTAR MUTUAL FUND SERVICES, LLC
By:/s/ Xxxx X. Xxxxx By: /s/ Xxxx Rock
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Title: President Title: Senior Vice President
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