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EXHIBIT 99.B9b
FUND ACCOUNTING SERVICING AGREEMENT
This Agreement between The Xxxxxxx Funds, a Delaware business trust (hereinafter
called the "Trust," on behalf of its separate series of shares ("Series") or
classes of such Series ("Classes"), all as described in part 11 of this
Agreement (as such part may be amended from time to time), and Firstar Trust
Company, a Wisconsin corporation (hereinafter called "FTC"), is entered into on
this 2nd day of February, 1998.
WHEREAS, the Trust, is an open-ended management investment company
registered under the Investment Company Act of 1940 (as amended, the "1940
Act"); and
WHEREAS, FTC is in the business of providing, among other things, mutual
fund accounting services to investment companies.
NOW, THEREFORE, the Trust and FTC do mutually promise and agree as
follows:
1. SERVICES. FTC agrees to provide the following mutual fund
accounting services to the Trust on a per Series or per Class basis as
appropriate:
A. Portfolio Accounting Services:
(1) Maintain portfolio trading records (purchase and sale
journals for each Series) on a trade date +1 basis using security
trade information communicated from the Series' investment
manager on a timely basis.
(2) Monitor corporate action to identify and record
interest and dividend income on portfolio securities and maintain
accrual balances as of each valuation date and calculate gross
earnings on investments for the accounting period.
(3) Determine gain/loss on portfolio security sales and
identify them as to short-short, short- or long-term status;
account for periodic distributions of gains or losses to
shareholders and maintain undistributed gain or loss balances as
of each valuation date.
(4) Maintain appropriate records of brokerage activity for
transactions in portfolio securities to enable FTC to provide
monthly brokerage reports showing brokers and commission amounts.
(5) Maintain a daily listing of portfolio holdings by
Series showing cost, market value, and the percentage of
portfolio comprised of each security.
(6) Reconcile accounting asset listings against
custodian's asset listings on at least a monthly basis and report
any securities balance discrepancies promptly to the Trust and
Custodian.
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B. Expense Accrual and Payment Services:
(1) For each valuation date, calculate the expense accrual
amounts as directed by the Trust as to methodology, rate or
dollar amount.
(2) Upon receipt of written authorization from the Trust,
make and record payments for Trust expenses.
(3) Account for Trust and Series expenditures and maintain
expense accrual balances at the level of accounting detail, as
agreed upon by FTC and the Trust.
(4) Provide expense accrual and payment reporting.
C. Fund Valuation and Financial Reporting Services:
(1) Calculate and maintain daily records of the net asset
value (and offering price if appropriate) of each Series (or
class of such Series if appropriate), at such times (each a
"valuation date") as directed and authorized by the Trust through
FTC's questionnaire and in accordance with: (i) relevant
regulatory requirements; (ii) the Trust's Declaration of Trust
and By-Laws; (iii) the Trust's registration statement or Form
N-1A; and (iv) any procedures approved by the Board of Trustees
of the Trust and supplied to FTC in writing.
(2) In connection with the calculation of relevant net
asset values, FTC shall obtain prices for portfolio securities
from pricing services approved by the Trust, and will apply those
prices to the portfolio securities. For those securities where
market quotations are not readily available, the Board of
Trustees shall approve, in good faith, the method for determining
the fair value for such securities. If the Trust desires to
provide a price which varies from the pricing source, the Trust
shall promptly notify and supply FTC with the valuation of any
such security on each valuation date. All pricing changes made by
the Trust will be in writing and must specifically identify the
securities to be changed by CUSIP, name of security, new price or
rate to be applied, and, if applicable, the time period for which
the new price(s) is/are effective.
(3) On trade date +1, account for and record purchases,
sales, exchanges, transfers, dividend reinvestments, and other
transactions in shares of the Trust, its Series as reported by
the transfer agent on a timely basis.
(4) Apply equalization accounting as directed by the
Trust.
(5) Determine net investment income (earnings) for each
Series of the Trust as of each valuation date. Account for
periodic distributions of earnings to shareholders and maintain
undistributed net investment income balances as of each valuation
date.
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(6) Maintain a general ledger for the Trust and each of
its Series in the form as agreed upon.
(7) Communicate, at an agreed upon time, the per share
price for each valuation date to the Trust and its investment
advisers as agreed upon from time to time.
D. Tax Accounting Services:
(1) Maintain accounting records for each Series'
investment portfolio to support the tax reporting required for
IRS-defined regulated investment companies.
(2) Maintain tax lot detail for each Series' investment
portfolio.
(3) Calculate taxable gain/loss on security sales using
the tax lot relief method designated by the Trust.
(4) Provide the necessary financial information to support
the taxable components of income and capital gains distributions
to the transfer agent to support tax reporting to the
shareholders.
(5) Maintain schedules of dividends paid and payable.
E. Compliance Control Services:
(1) Support reporting to regulatory bodies and support
financial statement preparation by making the Trust's accounting
records available to the Trust and its investment manager, the
Securities and Exchange Commission, and the outside auditors.
(2) Maintain accounting records according to the 1940 Act
and regulations provided thereunder.
3. CHANGES IN ACCOUNTING PROCEDURES. Any resolution passed by the
Board of Trustees of the Trust that affects accounting practices and procedures
under this agreement shall be effective upon written receipt and acceptance by
the FTC.
4. CHANGES IN EQUIPMENT, SYSTEMS, SERVICE, ETC. FTC reserves the
right to make changes from time to time, as it deems advisable, relating to its
services, systems, programs, rules, operating schedules and equipment, so long
as such changes do not adversely affect the service provided to the Trust under
this Agreement.
5. COMPENSATION. FTC shall be compensated for providing the services
set forth in this Agreement in accordance with the Fee Schedule attached hereto
as Exhibit A and as mutually agreed upon and amended from time to time.
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6. PERFORMANCE OF SERVICE.
A. FTC shall exercise reasonable care in the performance
of its duties under this Agreement. FTC shall not be liable for
any loss suffered by the Fund in connection with matters to which
this Agreement relates, including losses resulting from
mechanical breakdowns or the failure of communication or power
supplies beyond FTC's control, except a loss resulting from FTC'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 Fund
shall indemnify and hold harmless FTC 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 FTC may sustain or
incur or which may be asserted against FTC 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 FTC by any duly authorized officer of the
Fund, such duly authorized officer to be included in a list of
authorized officers furnished to FTC and as amended from time to
time in writing by resolution of the Board of Directors of the
Fund.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, FTC shall
take all reasonable steps to minimize service interruptions for
any period that such interruption continues beyond FTC's control.
FTC 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 FTC. FTC 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 Fund shall be
entitled to inspect FTC's premises and operating capabilities at
any time during regular business hours of FTC, upon reasonable
notice to FTC.
Regardless of the above, FTC 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 FTC harmless, the
Trust shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further
understood that FTC 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 FTC against any claim which may be the subject
of this indemnification. In the event that the Fund so elects, it
will so notify FTC and thereupon the Trust shall take over
complete defense of the claim, and FTC shall in such situation
initiate no further legal or other expenses for which it shall
seek
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indemnification under this section. FTC shall in no case
confess any claim or make any compromise in any case in which the
Trust will be asked to indemnify FTC except with the Trust's
prior written consent.
C. FTC 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 FTC as a result of FTC's
refusal or failure to comply with the terms of this Agreement,
its bad faith, negligence, or willful misconduct.
7. RECORDS. FTC 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 and as required by the rules and
regulations of appropriate government authorities, in particular, Section 31 of
the 1940 Act and the rules thereunder. FTC agrees that all such records prepared
or maintained by FTC relating to the services to be performed by FTC 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.
8. CONFIDENTIALITY. FTC shall handle in confidence all information
relating to the Trust's or its investment manager's business, which is received
by FTC during the course of rendering any service hereunder.
9. DATA NECESSARY TO PERFORM SERVICES. The Trust or its agent, which
may be FTC, shall furnish to FTC the data necessary to perform the services
described herein at times and in such form as mutually agreed upon.
10. NOTIFICATION OF ERROR. The Trust will notify FTC of any
balancing or control error caused by FTC within three (3) business days after
receipt of any reports rendered by FTC to the Trust, or within three (3)
business days after discovery of any error or omission not covered in the
balancing or control procedure, or within three (3) business days of receiving
notice from any shareholder.
11. ADDITIONAL SERIES. In the event that the Trust establishes one
or more Series or Classes of shares with respect to which it desires to have FTC
render accounting services, under the terms hereof, it shall so notify FTC in
writing, and if FTC 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 FTC on a discrete basis. The series and classes
currently covered by this Agreement are: "The Xxxxxxx Financial Alert Fund."
12. TERM OF AGREEMENT. This Agreement shall become effective on
February 2, 1998 and, unless sooner terminated as provided herein, shall
continue automatically in effect for successive annual periods, provided that
the continuance of the Agreement is approved by a majority of the Trustees of
the Trust. The Agreement may also 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
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parties and will terminate automatically upon its assignment unless the parties
offer consent in writing. However, this Agreement may be replaced or modified by
a subsequent agreement between the parties.
13. DUTIES IN THE EVENT OF TERMINATION. In the event that in
connection with termination a Successor to any of FTC's duties or
responsibilities hereunder is designated by Trust by written notice to FTC, FTC
will promptly, upon such termination and at the expense of Trust, transfer to
such Successor all relevant books, records, correspondence and other data
established or maintained by FTC under this Agreement in a form reasonably
acceptable to Trust (if such form differs from the form in which FTC has
maintained the same, Trust shall pay any expenses associated with transferring
the same to such form), and will cooperate in the transfer of such duties and
responsibilities, including provision for assistance from FTC's personnel in the
establishment of books, records and other data by such successor.
14. 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 FTC shall be sent to:
Firstar Trust Company
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Trust shall be sent to:
The Olstein Funds
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
14. CHOICE OF LAW. This Agreement shall be construed in accordance
with the laws of the State of Wisconsin.
IN WITNESS WHEREOF, the due execution hereof on the date first above
written.
The Xxxxxxx Funds Firstar Trust Company
Sign: /s/ Xxxxxx X. Xxxxxxx Sign: /s/ Xxx Xxxxxxx
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Print: Xxxxxx X. Xxxxxxx Print: Xxx Xxxxxxx
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Title: Chairman and President Title:
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Date: March 2, 1998 Date: March 2, 1998
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Attest: Xxxxxxx Xxxxx Attest: Xxxx Xxxxxxxx
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Mutual Fund Services
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FUND VALUATION AND ACCOUNTING
DOMESTIC PORTFOLIOS
ANNUAL FEE SCHEDULE
Fixed Income Funds
o Annual fee per Series based on market value of assets::
o $25,000 for the first $40,000,000
o 2/100 of 1% (2 basis points) on the next $200,000,000
o 1/100 of 1% (1 basis point) on the balance
o Out-of-pocket expenses, including daily pricing service
Equity Balanced Funds
o Annual fee per Series based on market value of assets:
o $23,500 for the first $40,000,000
o 1.5/100 of 1% (1.5 basis points) on the next $200,000,000
o 1/100 of 1% (1.0 basis point) on the balance
o Out-of-pocket expenses, including daily pricing service
Money Market Funds
o Annual fee per Series based on market value of assets:
o $25,000 for the first $40,000,000
o 1/100 of 1% (1 basis point) on the next $200,000,000
o 5/100 of 1% (1/2 basis point) on the balance
o Out-of-pocket expenses, including daily pricing service
All fees and out-of-pocket expenses are billed monthly.
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12.8.0 FIRSTAR
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Mutual Fund Services
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FUND VALUATION AND ACCOUNTING
ASSET PRICING COST
ASSET TYPE CHARGE PER ITEM PER VALUATION
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(DAILY, WEEKLY, ETC.)
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Domestic and Canadian Equities $0.15
Options $0.15
Corporate/Government/Agency Bonds $0.50
CMOs $0.80
International Equities and Bonds $0.50
Municipal Bonds $0.80
Money Market Instruments $0.80
Pricing costs are billed monthly.
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12.8.0 FIRSTAR
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