FORM OF FUND ADMINISTRATION SERVICING AGREEMENT
This Agreement is made and entered into on this fifteenth day of September,
1998, by and between THE XXXXXXX TRUST (hereinafter referred to as the "Funds")
and Firstar Trust Company, a corporation organized under the laws of the State
of Wisconsin (hereinafter referred to as "FTC").
WHEREAS, The Funds are an open-ended management investment companies which are
registered under the Investment Company Act of 1940;
WHEREAS, FTC 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 Funds and FTC do mutually promise and agree as follows:
I. Appointment of Administrator
The Funds hereby appoints FTC as Administrator of the Funds on the terms
and conditions set forth in this Agreement, and FTC 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 FTC
A. General Funds 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 Funds
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with Investment Company Act
of 1940 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 for the independent trustees
b. Periodically monitor Funds' compliance with the policies and
investment limitations of the Funds 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 Funds so as to
enable the Funds 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 Funds' 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 Funds' 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. Monitor short short testing
c. Calculate required distributions (including excise tax
distributions)
C. Financial Reporting
1. Provide financial data required by the fund's prospectus and
statement of additional information
2. Prepare financial reports for shareholders, the board, the SEC,
and independent auditors
3. Supervise the Funds' Custodian and Funds Accountants in the
maintenance of the Funds' general ledger and in the preparation
of the Funds' financial statements including oversight of expense
accruals and payments, of the determination of net asset value of
the Funds' net assets and of the Funds' 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 1120/8610 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 Funds agree to pay FTC 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 Funds and FTC.
The Funds agree 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 Xxxxxxx Trust a Delaware business trust which is
organized as a
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series fund currently offering three fund: The Ramirez Cash Management
Money Market Fund, The Xxxxxxx New York Tax-Free Money Market Fund and The
Xxxxxxx U.S. Treasury Money Market Fund, establishes one or more series of
shares with respect to which it desires to have FTC render fund
administration 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 fund currently
covered by this Agreement is: The Ramirez Cash Management Money Market
Fund, The Xxxxxxx New York Tax-Free Money Market Fund and The Xxxxxxx U.S.
Treasury Money Market Fund.
V. Performance of Service; Limitation of Liability
A. FTC shall exercise reasonable care in the performance of its duties
under this Agreement. FTC shall not be liable for any error of judgment or
mistake of law or for any loss suffered by the Funds 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
Funds 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 Funds,
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 Trustees of the Funds.
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 Funds 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
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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 Funds may be
asked to indemnify or hold FTC harmless, the Funds 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 Funds promptly concerning any situation which presents
or appears likely to present the probability of such a claim for
indemnification against the Funds. The Funds shall have the option to
defend FTC against any claim which may be the subject of this
indemnification. In the event that the Funds so elects, it will so notify
FTC and thereupon the Funds 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 indemnification under this section. FTC shall in no
case confess any claim or make any compromise in any case in which the
Funds will be asked to indemnify FTC except with the Funds' prior written
consent.
C. FTC shall indemnify and hold the Funds 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 Funds 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.
VI. Confidentiality
FTC shall handle, in confidence, all information relating to the Funds'
business which is received by FTC during the course of rendering any
service hereunder.
VII. Data Necessary to Perform Service
The Funds' 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.
VIII. Terms of Agreement
This Agreement shall become effective as of the date hereof 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.
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IX. 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 the Funds by
written notice to FTC, FTC will promptly, upon such termination and at the
expense of the Funds, 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 the Funds (if such
form differs from the form in which FTC has maintained, the Funds 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 FTC'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.
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 FTC shall be sent to Mutual Funds Services located at 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 and notice to the Funds shall
be sent to The Xxxxxxx Trust located at 00 Xxxxxxxx, Xxx Xxxx, X.X. 00000.
XII. 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 Funds but not inconsistent with the rules and regulations
of appropriate government authorities, in particular, Section 31 of the
Investment Company Act of 1940 as amended (the "Investment Company 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 Funds and will be preserved, maintained, and made
available with such section and rules of the Investment Company Act and
will be promptly surrendered to the Funds on and in accordance with its
request.
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THE XXXXXXX TRUST FIRSTAR TRUST COMPANY
By: __________________________ By: __________________________________
Print: __________________________ Print: _________________________________
Title: __________________________ Title: _________________________________
Date: ___________________________ Date: __________________________________
Attest: _______________________ Attest: ______________________________
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EXHIBIT A
FUND ADMINISTRATION AND COMPLIANCE
ANNUAL FEE SCHEDULE
o Minimum annual fee per fund:
- Money Market Funds/Muni Bond Fund = $30,000 each
- Equity Funds = $30,000 each
o 6 basis points (.0006) on the first $200,000,000
o 5 basis points (.0005) on the next $500,000,000
o 3 basis points (.0003) on the balance
o Out-of-Pocket expenses, including, but not limited to:
o Postage
o Stationary
o Programming
o Proxies
o Retention of records
o Special reports
o Federal and state regulatory filing fees
o Certain insurance premiums
o All other out-of-pocket expenses
o Expenses from Board of Directors meetings
o Auditing and legal expenses
o Fees are billed monthly
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