EXHIBIT NO. (H) (36)
DAILY VALUATION
SERVICE AGREEMENT
This Agreement is entered into as of April 1, 1998 among Xxxxxxxx & Xxxxxx
Trust Company ("Service Provider"), a registered transfer agent, Firstar Funds,
Inc., an open-end investment management company (the "Company"), and Firstar
Trust Company, transfer agent and co-administrator for the Company ("Transfer
Agent/Co-Administrator").
Service Provider provides certain administrative services comprised of, but
not limited to, recordkeeping, reporting and processing services (the
"Administrative Services") to the qualified employee benefit plan or plans
identified on Schedule A attached hereto (the "Plan(s)"). Administrative
Services for the Plan(s) include processing and transfer arrangements for the
investment and reinvestment of Plan assets in investments specified by an
investment adviser, sponsor, or administrative committee of the Plan(s) (a "Plan
Representative") generally upon the direction of Plan beneficiaries (the
"Participants"). The Administrative Services are provided by Service Provider
under service agreements with the Plan(s).
The Company includes the portfolios identified on Schedule A attached
hereto (collectively, the "Funds" and individually, a "Fund"). The Company is
registered with the Securities and Exchange Commission under the Investment
Company Act of 1940, as amended (the "Company Act").
The Transfer Agent/Co-Administrator services as transfer agent and co-
administrator to each of the Funds.
The Service Provider and the Company desire to facilitate the purchase and
redemption of shares of the Funds (the "Shares") on behalf of the Plan(s) and
Participants through one or more accounts in the Funds (individually an
"Account," and collectively the "Accounts) subject to the terms and conditions
of this Agreement.
Accordingly, the parties hereto agree as follows:
1. Procedures. The operating procedures (the "Procedures")
governing the responsibilities of the parties under this
Agreement are set forth in Schedule B, which is attached hereto
and specifically made a part of this Agreement. The Procedures
shall be consistent with the terms of each Fund's prospectus, the
requirements of the Company Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and all other
applicable laws and regulations.
2. Pricing Information. Transfer Agent/Co-Administrator, or its
designee, will furnish Service Provider, via fax, on each day
that the New York Stock Exchange or the Funds are open for
business ("Business Day"), with (a) per share net asset value
information as of the close of trading (currently 4:00 p.m.
Eastern Time) on the New York Stock Exchange, or as of such
earlier times at which the Funds' net asset values are calculated
as specified in the Funds' then current prospectuses ("Close of
Trading"), and (b) per share dividend and capital gains
information respecting the Funds as it becomes available.
Transfer Agent/Co-Administrator shall provide such information to
Service Provider by 5:30 p.m. Central time on the same Business
Day.
3. Maintenance of Records.
(a) Each party shall maintain and preserve all records it is
required by law to maintain and preserve in connection with
the matters contemplated by this Agreement.
(b) Subject to any applicable confidentiality obligations, each
party hereby agrees to make available copies of all records
such party is required to maintain hereunder that are
reasonably requested by any other party to ensure compliance
with applicable law. Such copies shall be furnished at the
expense of the requesting party.
4. Compliance with Laws. At all times during the term of this
Agreement, each party shall comply with all applicable laws,
rules and regulations.
5. Operation of the Funds. In no way shall the provisions of this
Agreement limit the authority of the Company or the Funds to take
such lawful action as they may deem appropriate or advisable in
connection with all matters relating to the operation of the
Funds and the sale of their shares.
6. Representations with respect to the Funds. Service Provider and
its agents shall not make representations concerning the Company
or its shares except in strict accordance with the information
contained in: (A) a Fund's then current prospectus; and (b)
current sales literature respecting a Fund furnished by the
Company or the Transfer Agent/Co-Administrator; or (c) written
information approved in advance by the Company.
7. Expenses.
(a) Except as otherwise provided in this Agreement, each party
shall bear all expenses incidental to the performance of its
obligations under this Agreement.
(b) Transfer Agent/Co-Administrator shall distribute, or cause
to be distributed, to Service Provider Fund prospectuses,
any Fund proxy solicitation materials, periodic reports to
Fund shareholders, and other materials that the Company may
be required by law to distribute to Plan(s) as shareholders
of the Funds.
8. Relationship of Parties. Except to the limited extent provided
in Paragraph 2(c) of the Procedures, it is understood and agreed
that all services performed hereunder by Service Provider shall
be as an independent contractor and not as an employee or agent
of the Company.
9. Use of the Company's Name. Except as otherwise expressly
provided herein, Service Provider shall not use, nor shall it
allow its employees or agents to use, the name or logo of the
Company for advertising, trade, or other commercial or
noncommercial purposes without the express prior written consent
of the Company.
10. Insurance and Bonding. Each of the parties shall maintain
fidelity bond coverage for its employees and authorized agents in
such amount as may be required by applicable law.
11. Termination. This Agreement may be terminated by any party at
any time upon at least sixty (60) days' prior written notice to
the other parties. Notwithstanding the foregoing, any party may
terminate this Agreement immediately upon written notice to such
party of the institution of formal proceedings against any other
party with respect to the arrangements documented herein by the
Securities and Exchange Commission or any other regulatory body.
12. Indemnification.
(a) Service Provider agrees to indemnify and hold harmless
Transfer Agent/Co-Administrator, the Company, the Company's
administrators, and each of their respective affiliates,
directors, trustees, officers, employees, agents, and each
person, if any, who controls them within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"),
against any losses, claims, damages, settlements,
liabilities, or expenses (including, without limitation,
reasonable attorneys' fees and expenses whether or not
involving a thirty party) (collectively, "Claims") to the
extent any such Claim arises out of or is based upon (i) the
provision of Administrative Services by Service Provider;
(ii) Service Provider's negligence, bad faith, or willful
misconduct in performing its obligations hereunder; (iii)
any breach by Service Provider of any material provision of
this Agreement; or (iv) any breach by Service Provider of a
representation, warranty, or covenant made in this
Agreement; and Service Provider shall reimburse the persons
indemnified hereunder for any legal or other expenses
reasonably incurred, as incurred, by them in connection with
investigating or defending such Claim. This indemnity shall
continue in full force and effect, notwithstanding the
termination of this Agreement.
(b) Transfer Agent/Co-Administrator agrees to indemnify and hold
harmless Service Provider and each of its respective
affiliates, directors, officers, employees, agents, and each
person, if any, who controls them within the meaning of the
Securities Act against any Claims to the extent any such
Claim arises out of or is based upon (i) any breach by
Transfer Agent/Co-Administrator of any material provision of
this Agreement; (ii) Transfer Agent/Co-Administrator's
negligence, bad faith, or willful misconduct in carrying out
its duties and responsibilities under this Agreement; or
(iii) any breach by Transfer Agent/Co-Administrator of a
representation, warranty, or covenant made in this
Agreement; and Transfer Agent/Co-Administrator shall
reimburse the persons indemnified hereunder for any legal or
other expenses reasonably incurred, as incurred, by them in
connection with investigating or defending such Claim. This
indemnity shall continue in full force and effect,
notwithstanding the termination of this Agreement.
(c) Upon the assertion of a Claim for which a party may be
required to indemnify another party, the party seeking
indemnification ("Indemnitee") shall promptly notify the
indemnifying party ("Indemnitor") in writing of such
assertion and of any relevant facts or background known by
Indemnitee with respect to such Claim. Indemnitor shall
elect whether to participate with Indemnitee in the defense
of such Claim or to defend against such Claim in the name of
Indemnitees or in the name of Indemnitors. If Indemnitor
elects to defend and control the course of any defense,
Indemnitee shall cooperate with Indemnitor in connection
with such defense. If Indemnitor elects not to control the
defense, Indemnitee shall have the right to select counsel
of its choice and participate in such defense. In any
event, Indemnitor shall not be responsible for any Claim
settled or compromised, or for any confessions of judgment,
without its prior written consent.
13. Notice. Each notice required by this Agreement shall be given in
writing and delivered personally or mailed by certified mail or
overnight courier service to the other party at the following
address or such other addresses as each party may give notice to
the other:
If to Service Provider, to:
Xxxxxxxx & Xxxxxx Trust Company
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Legal Department
If to the Company, to:
Firstar Funds, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx XX 00000
Attn: Investor Service Manager
If to Transfer Agent/Co-Administrator, to:
Firstar Trust Company
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxx XxXxx
A notice given pursuant to this Section 13 shall be deemed given
immediately when delivered personally, three (3) business days
after the date of certified mailing, and one (1) business day
after delivery by overnight courier service.
14. Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Wisconsin
applicable to agreements fully executed and to be performed
therein.
15. Additional Representations, Warranties, and Covenants. Each
party represents, warrants, and covenants that it has full power
and authority under applicable law, and has taken all action
necessary, to enter into and perform this Agreement, and that it
is free to enter into this Agreement, and that by doing so it
will not breach or otherwise impair any other agreement or
understanding with any person, corporation, or other entity.
16. Complete Agreement. This Agreement contains the full and
complete understanding of the parties and supersedes all prior
representations, promises, statements, arrangements, agreements,
warranties, and understandings between the parties with respect
to the subject matter hereof, whether oral or written, express or
implied.
17. Modification. This Agreement may be modified or amended, and the
terms of this Agreement may be waived, only by a writing signed
by each of the parties.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same Agreement.
19. Assignment. This Agreement shall not be assigned by a party,
without the prior written consent of the other parties, except
that a party may assign this Agreement to an affiliate having the
same ultimate ownership and regulatory licenses or qualifications
as the assigning party without such prior consent, buy only upon
at least 10 days' prior written notice to the other parties.
20. Non-exclusivity. Each of the parties acknowledges and agrees
that this Agreement and the arrangement described herein are
intended to be non-exclusive and that each of the parties is free
to enter into similar agreements and arrangements with other
entities.
XXXXXXXX & XXXXXX TRUST COMPANY
By: /s/ illegible
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Title: Vice President
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By: /s/ Xxxxx X. Xxxxxx
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Title: Trust Officer
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FIRSTAR FUNDS, INC.
By: /s/ Xxxx Xxxxx Xxxxxx
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Title: Vice President
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FIRSTAR TRUST COMPANY
By: /s/ Xxxxxx XxXxx
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Title: Assistant Vice President
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SCHEDULE A
EMPLOYEE BENEFIT PLAN
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X. X. Xxxxx Corporation
FIRSTAR FUND(S)
---------------
Firstar Growth and Income Fund Institutional
CUSIP 000000000
Ticker FIGCX
SCHEDULE B
DAILY VALUATION REQUIREMENTS
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Due to the increase in volume and dollar amounts of daily valuation or defined
contribution trades, it is essential that strict and uniform procedures be in
place for the communication and settlement of trades. Effective immediately the
requirements listed below must be followed to ensure accurate and timely posting
of daily valuation transactions to the appropriate accounts.
SETTLEMENT INSTRUCTIONS:
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. New Wiring Instructions
Wire to: Firstar Bank Xxxxxxxxx XX 00000
ABA #000000000
For Credit To: MFS Institutional Acct. # 000-000-000
For Further Credit to (Fund Name; Account #; and Acct Name,
"Daily val trade")
SETTLEMENT REQUIREMENTS:
------------------------
. Wires received on or after July 1, 1997, to any other Firstar account for
accounts covered under Schedule A of the Servicing Agreement among Firstar
Funds, Firstar Trust Company and Service Provider will automatically be
rejected.
. Wires must be received by Firstar no later than 12:00 Noon, EST, trade date
plus one.
. Transmit one wire per each Firstar Fund 16 digit account number per day.
. Aggregation of wires for multiple accounts, funds or trades are not
permitted.
TRADING REQUIREMENTS:
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. Trade communication must be received by Firstar no later than 7:30 a.m. CST
T+1 (trade date +1), on each day the Fund is open even if no activity takes
place.
. The plan recordkeeper must notify Firstar a minimum of 24 hours in advance of
the first daily valuation trade that takes place in a new account or in an
existing account that converts to daily valuation.
. The plan recordkeeper must notify Firstar a minimum of 24 hours in advance of
any changes or addition to current accounts covered by daily valuation
servicing agreements.
TRADE REJECTION AND CANCELLATION:
---------------------------------
. Beginning July 1, wires not directed to MFS Institutional Acct. #112-952-
305, will automatically be returned to the originating bank.
. Wires received with incomplete fund name/account will be returned to the
originating bank.
. Wires for amounts other than communicated trade amounts will be returned to
the originating bank.
. Wires received for which no trade communication has been received will be
returned to the originating bank.
. Wires received after the 1:00 p.m., EST, cutoff will be subject to shares
being sold, interest penalties, and losses, if any, to the Fund(s), unless
otherwise agreed upon.
To the extent the time frames above differ from those stated in the agreement
among the fund group, the recordkeeper and the transfer agent, those time
frames in such agreement shall control.
FIRSTAR TRUST COMPANY FIRSTAR FUNDS
/s/ Xxxxxx XxXxx /s/ Xxxx Xxxxx Xxxxxx
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Received and Acknowledged by:
MARSHAL & ILSLEY TRUST COMPANY
By: /s/ illegible
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Title: Vice President
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By: /s/ Xxxxxx Xxxxxx
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Title: EB Trust Officer
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