EXHIBIT (H)(1)
ADMINISTRATIVE AND ACCOUNTING SERVICES AGREEMENT
AGREEMENT made this 1st day of January, 2004 between Xxxxxxxx Xxxxx
Funds, Inc., a Wisconsin corporation (the "Corporation"), and XXX Holdings,
Inc., a Delaware corporation ("XXX").
WITNESSETH
WHEREAS, the Corporation is an open-end, management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), and is authorized to issue its shares of capital stock in one or more
series, as designated from time to time by the Corporation's Board of Directors;
and
WHEREAS, the Corporation desires to retain XXX to provide
administrative and accounting services to the Corporation and its mutual fund
series and XXX has agreed to render such services.
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Appointment. The Corporation hereby appoints XXX to provide
administrative services and act as accounting services agent to provide the
services described herein regarding administration, accounting, bookkeeping, and
pricing of shares (cumulatively the "Services") for the periods and on the terms
herein set forth, for each mutual fund series identified on Attachment A to this
Agreement, as modified from time to time by the mutual consent of the parties
(each, a "Fund" and collectively, the "Funds"). XXX accepts such appointment and
agrees to render the Services for the compensation herein provided.
2. Services.
(a) Administrative Services.
(i) XXX, giving due recognition to the fact that
certain of such operations are preformed by others, such as the custodian,
transfer agent, distributor, and investment adviser to the Funds ("Other Service
Providers"), shall provide supervision of all aspects of the Funds' operations
not provided by Other Service Providers or pursuant to paragraph 2(b) below;
(ii) XXX shall, to the extent not provided by
Other Service Providers or pursuant to paragraph 2(b) below, provide the Funds
with personnel to perform such executive, administrative and clerical services
as are reasonably necessary to provide effective administration of the Funds;
(iii) XXX shall, to the extent not provided by
Other Service Providers or pursuant to paragraph 2(b) below, arrange for (A) the
preparation for the Corporation of all required tax returns, (B) the preparation
and submission of reports to existing shareholders of the Funds, and (C) the
periodic updating of each Fund's Prospectus and Statement of Additional
Information and the preparation of reports filed with the Securities and
Exchange Commission and other regulatory authorities;
(b) Accounting Services.
(i) XXX shall prepare the financial statements
of each Fund at the times and in the form as required by the 1940 Act, and at
such other times (not more frequently than monthly) and in such forms
as the Corporation may reasonably request. In so preparing the financial
statements, each Fund shall have, at its own expense, the assistance of the
Fund's independent public accountants.
(ii) XXX shall maintain and keep current all of
the accounts, books and other documents of each Fund specified in paragraph (a)
and in paragraphs (b)(1) through (8) of Rule 31a-1 under the 1940 Act except for
those maintained by the Fund's Other Service Providers.
(iii) XXX shall calculate the net asset value per
share of each Fund at the times and in the manner described in the Fund's
Prospectus and Statement of Additional Information, as presently in effect, and
as amended, supplemented and/or superseded from time to time. In so calculating
the net asset value per share of each Fund, XXX shall be responsible for
determining the value of the portfolio securities of each Fund in the manner
described in the Fund's Prospectus and Statement of Additional Information. If
an independent pricing service is used by XXX to determine such values, the
expense of such service shall be borne by the appropriate Fund. XXX shall
prepare and maintain price make-up sheets and such other records as are
necessary to reflect the determination of the net asset value per share for each
Fund.
XXX agrees that all books, accounts and other documents which it maintains for
each Fund are the property of the Fund and it will surrender promptly to the
Fund any of such books, accounts and other documents upon the Fund's request.
Such books, accounts and other documents shall be maintained by XXX in
accordance with and for the time periods specified by applicable rules and
regulations, including Rule 31a-2 under the 1940 Act.
(c) XXX shall maintain such staff and employ or retain
such personnel and consult with such other persons as shall from time to time be
reasonably necessary to perform the Services. XXX shall provide such office
space, facilities, equipment and other assets and resources as shall be
reasonably necessary to perform the Services.
(d) XXX, in the performance of its duties hereunder,
shall act in conformity with the Corporation's Articles of Incorporation and
Bylaws, each Fund's Prospectus, Statement of Additional Information and
Registration Statement, the codes, policies and procedures maintained by the
Corporation and applicable to the Services, and the instructions and directions
of the Board of Directors of the Corporation, and shall comply with and conform
to the requirements of the 1940 Act and all other applicable federal and state
laws, regulations and rulings.
(e) XXX shall render to the Board of Directors of the
Corporation such periodic and special reports as the Board may reasonably
request.
3. Use of Affiliated Companies and Subcontractors. In connection
with the Services, XXX xxx, to the extent it deems appropriate, and subject to
compliance with the requirements of applicable laws and regulations and upon
approval of the Corporation's Board of Directors, make use of (i) its affiliated
companies, if any, and their directors, officers, and employees and (ii)
qualified subcontractors selected by XXX, provided that XXX shall supervise and
remain fully responsible for the services of all such third parties in
accordance with and to the extent provided by this Agreement. All costs and
expenses associated with services provided by any such third parties shall be
borne by XXX or such parties.
4. Instructions, Opinions of Counsel, and Signatures. At any time
XXX xxx request instructions regarding the Corporation or the Funds from any
duly authorized agent of the Corporation, and may consult with counsel for the
Corporation or its own counsel, in respect of any matter arising in connection
with this Agreement, and it shall not be liable for any action taken or omitted
by it in good faith in accordance with such instructions or with the advice or
opinion of such counsel. XXX shall be protected in acting upon any such
instruction, advice, or opinion and upon any other paper or document delivered
by the Fund or such counsel believed by XXX to be genuine
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and to have been signed by the proper person or persons, and shall not be held
to have notice of any change of authority of any officer or agent of the Fund,
unless such change was authorized by a duly authorized employee of XXX or XXX
shall have received written notice thereof from the Fund.
5. Expenses. During the term of this Agreement, XXX will pay all
costs incurred by it in connection with the performance of the Services except
as otherwise expressly provided herein and other than the fees and expenses of
third parties (such as legal counsel and auditors) and the out-of-pocket costs
of the preparations, submissions, updatings and filings referred to in paragraph
2(a)(iii).
6. Compensation. As full compensation for XXX providing the
Services and assuming the expenses pursuant to this Agreement, XXX will receive
from each Fund a fee equal to 0.15% of the first $30 million of the Fund's
average daily net assets, 0.10% of the next $70 million of the Fund's average
daily net assets, and 0.025% of the Fund's average daily net assets in excess of
$100 million. The fee is subject to an annual $30,000 minimum per Fund.
7. Duration and Termination. This Agreement shall continue in
full force and effect until terminated as hereinafter provided, may be amended
at any time by mutual agreement of the parties hereto and may be terminated by
either party on 60 days' written notice to the other party. Each party may also
terminate this Agreement with respect to any one or more Funds on 60 days'
written notice to the other party, without affecting the effectiveness hereof
with respect to any other Funds.
8. Nonexclusivity. The services of XXX to the Funds hereunder are
not to be deemed exclusive, and XXX shall be free to render similar services to
others.
9. Standard of Care. Neither XXX, nor any of its directors,
officers, shareholders, agents or employees shall be liable to the Corporation,
any Fund, or shareholders of either for any action taken or thing done by it, or
its subcontractors or agents, on behalf of the Corporation or any Fund in
carrying out the terms and provisions of this Agreement if done in good faith
without gross negligence or misconduct on the part of XXX, its subcontractors,
or agents. Nothing in this Agreement shall be construed to protect XXX or its
directors, officers, shareholders, agents or employees from liability to the
Corporation, any Fund, or shareholders of either to which XXX would otherwise be
subject by reason of willful misfeasance, bad faith, or gross negligence, in the
performance of TIM's duties, or by reason of TIM's reckless disregard of its
obligations and duties under this Agreement.
10. Assignment. Neither party may assign this Agreement or any
interest hereunder either voluntarily or involuntarily, by operation of law or
otherwise, without the prior consent of the other party.
11. Headings. The headings and captions in this Agreement are
included for convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect.
12. Severability. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the remainder
of this Agreement shall not be affected thereby.
13. Construction, Governing Law. This Agreement shall be construed
in accordance with applicable federal law and the laws of the State of Wisconsin
and shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors. Anything herein to the contrary
notwithstanding, this Agreement shall not be construed to require, or to impose
any duty upon, either of the parties to do anything in violation of any
applicable laws or regulations.
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14. Complete Agreement. This Agreement expresses the complete
agreement of the parties hereto with respect to the subject matter hereof and
supercedes any prior agreement between the parties with respect to the subject
matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed as of the day and year first written above.
XXXXXXXX XXXXX FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx, President
XXX HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, President
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ATTACHMENT A
TO ADMINISTRATIVE AND ACCOUNTING SERVICES AGREEMENT
BETWEEN XXXXXXXX XXXXX FUNDS, INC.
AND
XXX HOLDINGS, INC.
This Agreement shall apply with respect to the following Funds:
1. Growth Fund.
2. Select Fund.
3. Blue Chip Fund.
4. Bond Fund.
