FORM OF FUND Administration Servicing Agreement
This Agreement is made and entered into on this 5th day of October, 1998, by and
between The Xxxxx Funds, a Delaware business trust (the "Trust"), and Firstar
Mutual Fund Services, LLC, a limited liability company organized under the laws
of the State of Wisconsin ("Firstar").
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, Firstar is a trust company and, among other things, is in the business
of providing fund administration services for the benefit of its customers;
NOW, THEREFORE, the Trust and Firstar do mutually promise and agree as follows:
I. Appointment of Administrator
The Trust hereby appoints Firstar as Administrator of the Trust on the
terms and conditions set forth in this Agreement, and Firstar 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.
II. Duties and Responsibilities of Firstar
A. General Trust Management
1. Act as liaison among all fund service providers
2. Coordinate board communication by:
a. Assisting fund counsel in establishing
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 officers liability
coverage, and making the necessary SEC
filings relating thereto
3. Audits
a. Prepare appropriate schedules and assist
independent auditors
b. Provide information to SEC and facilitate
audit process
c. Provide office facilities
4. Assist in overall operations of the Trust
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with 1940
Act requirements
1) Asset diversification tests
2) Total return and SEC yield
calculations
3) Maintenance of books and records
under Rule 31a-3
4) Code of ethics
b. Periodically monitor Trust's compliance with
the policies and investment limitations of
the Trust as set forth in its prospectus and
statement of additional information
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
b. Monitor status and maintain registrations in
each state
3. SEC Registration and Reporting
a. Assisting the Trust's counsel in updating
prospectus and statement of additional
information; and in preparing proxy
statements, and Rule 24f-2 notice,
b. Annual and semiannual reports
4. IRS Compliance
a. Periodically monitor the Trust's status as
a regulated investment company
under Subchapter M through review of the
following:
1) Asset diversification requirements
2) Qualifying income requirements
3) Distribution requirements
b. Calculate required distributions (including
excise tax distributions)
C. Financial Reporting
1. Provide financial data required by fund prospectus
and statement of additional information
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2. Prepare financial reports for shareholders, the
board, the SEC, and independent auditors
3. Supervise the Trust's Custodian and Trust 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, 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
D. Tax Reporting
1. Prepare and file on a timely basis appropriate
federal and state tax returns including forms
1120/8613 with any necessary schedules
2. Prepare state income breakdowns where relevant
3. File 1099 Miscellaneous for payments to directors and
other service providers
4. Monitor wash losses
5. Calculate eligible dividend income for corporate
shareholders
III. Compensation
The Trust agrees to pay Firstar for performance of the duties listed in
this Agreement and the fees and out-of-pocket expenses as set forth in
the attached Schedule A.
These fees may be changed from time to time, subject to mutual written
Agreement between the Trust and Firstar. If the Trust elects to
terminate this Agreement prior to the first anniversary of this
Agreement, the Trust agrees to reimburse Firstar for the difference
between the standard fee schedule and the discounted fee schedule
agreed to between the parties.
The Trust agrees to pay all fees and reimbursable expenses within ten
(10) business days following the mailing of the billing notice.
IV. Additional Series
In the event that the Trust establishes one or more series of shares
with respect to which it desires to have Firstar render fund
administration services, under the terms hereof, it shall so notify
Firstar in writing, and if Firstar agrees in writing to provide such
services, such series will be subject to the terms and conditions of
this Agreement, and shall be maintained and accounted for by Firstar on
a discrete basis. The funds currently covered by this Agreement are:
the U.S. Equity Trust, the International Equity Trust and the Global
Equity Trust.
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V. Performance of Service; Limitation of Liability
A.
Firstar shall exercise reasonable care in the performance of
its duties under this Agreement. Firstar 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 Firstar's control, except a loss resulting from
Firstar'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, the Trust shall indemnify and hold harmless Firstar
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 Firstar may sustain or incur or which
may be asserted against Firstar 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 foregoing
standards, or (ii) in reliance upon any written or oral
instruction provided to Firstar by any duly authorized officer
of the Trust, such duly authorized officer to be included in a
list of authorized officers furnished to Firstar and as
amended from time to time in writing by resolution of the
Board of Directors of the Trust.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, Firstar
shall take all reasonable steps to minimize service
interruptions for any period that such interruption continues
beyond Firstar's control. Firstar 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
Firstar. Firstar 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 Firstar's premises and operating capabilities at any
time during regular business hours of Firstar, upon reasonable
notice to Firstar.
Regardless of the above, Firstar 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
Trust may be asked to indemnify or hold Firstar harmless, the
Trust shall be fully and promptly advised of all pertinent
facts concerning the situation in question, and it is further
understood that Firstar will use all reasonable care to notify
the Trust promptly concerning any situation which presents or
appears likely to present the probability of such a claim for
indemnification against the Trust. The Trust shall have the
option to defend Firstar against any claim which may be the
subject of this indemnification. In the event that the Trust
so elects, it will so notify Firstar and thereupon the Trust
shall take
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over complete defense of the claim, and Firstar shall in such
situation initiate no further legal or other expenses for
which it shall seek indemnification under this section.
Firstar shall in no case confess any claim or make any
compromise in any case in which the Trust will be asked to
indemnify Firstar except with the Trust's prior written
consent.
C. Firstar 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 may be asserted against the Trust by any person arising
out of any action taken or omitted to be taken by Firstar as a
result of Firstar's refusal or failure to comply with the
terms of this Agreement, its bad faith, negligence, or willful
misconduct.
VI. Confidentiality
Firstar shall handle, in confidence, all information relating to the
Trust's business which is received by Firstar during the course of
rendering any service hereunder.
VII. Data Necessary to Perform Service
The Trust or its agent, which may be Firstar, shall furnish to Firstar
the data necessary to perform the services described herein at times
and in such form as mutually agreed upon.
VIII. Terms of Agreement
This Agreement shall become effective on October 5, 1998 and, unless
sooner terminated as provided herein, shall continue automatically in
effect for successive annual periods. The 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.
IX. Duties in the Event of Termination
In the event that, in connection with termination, a successor to any
of Firstar's duties or responsibilities hereunder is designated by the
Trust by written notice to Firstar, Firstar 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 Firstar under this Agreement in a form reasonably
acceptable to the Trust (if such form differs from the form in which
Firstar 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 Firstar's personnel in the establishment of books,
records, and other data by such successor.
X. Choice of Law
This Agreement shall be construed in accordance with the laws of the
State of Wisconsin.
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XI. 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 Firstar shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to Trust shall be sent to:
The Xxxxx Funds
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
XII. Records
Firstar 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.
Firstar agrees that all such records prepared or maintained by Firstar
relating to the services to be performed by Firstar hereunder are the
property of the Trust and will be preserved, maintained, and made
available with such section and rules of the 1940 Act and will be
promptly surrendered to the Trust on and in accordance with its
request.
XIII. Year 2000 Compliance
Firstar represents that it has examined and tested its internal systems
which have been developed to support the services outlined herein, and
as of the date of this Agreement, has no knowledge of any situation or
circumstance that will inhibit the systems' ability to perform the
expected functions, or inhibit Firstar's ability to provide the
expected services as a result of any business interruptions or other
business problems relating to dates or days before, during, and after
the year 2000. In connection with the foregoing, Firstar represents
that it has made reasonable inquiry of its business partners and other
entities with whom it conducts business and has carefully considered
the responses of those third-parties.
The Xxxxx Funds Firstar Mutual Fund Services, LLC
Sign: ____________________________ Sign: _____________________________________
Print:____________________________ Print:_____________________________________
Title:____________________________ Title:_____________________________________
Date:_____________________________ Date:______________________________________
Attest:___________________________ Attest:____________________________________
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EXHIBIT A
Fund Administration and Compliance
Annual Fee Schedule - Domestic Funds
|X| Annual fee based upon assets per fund
o 6 basis points on the first $400 million
o 5 basis points on the next $1 billion
o 3 basis points on the balance
o Minimum annual fee: $30,000 for each fund
$15,000 for each class of share
|X| Plus out-of-pocket expenses, including but not limited to:
o Postage
o Programming
o Stationery
o Proxies
o Retention of records
o Special reports
o Federal and state regulatory filing fees
o Certain insurance premiums
o Expenses from board of directors meetings
o Auditing and legal expenses
o All other out-of-pocket expenses
|X| Fees are billed monthly
