EXHIBIT 99.23(h)(1)
FUND ADMINISTRATION SERVICING AGREEMENT
This Agreement is made and entered into on this day of November, 1998, by
and between The Xxxxxxx Funds, a business trust organized under the laws of the
State of Delaware (hereinafter referred to as the "Trust") on behalf of any of
its series as described in Part IV of this Agreement (each such series is
hereafter referred to as a "Fund" and, collectively as the "Funds"), and Firstar
Mutual Fund Services, LLC, a limited liability company organized under the laws
of the State of Wisconsin (hereinafter referred to as "Firstar").
WHEREAS, The Trust is a open-ended management investment company which is
registered under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, Firstar 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 Funds 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 Fund Management
1. Act as liaison among all fund service providers.
2. Coordinate corporate formalities and Board communication by:
a. preparing and distributing meeting agendas and board
materials including board resolutions and various
financial, administrative and regulatory reports;
b. attending all regular or special board meetings,
preparing and distributing minutes of such meetings and
maintaining the corporate records and minute book for
the Trust;
c. updating trustees' and officers' biographical
information and questionnaires; and
d. evaluating independent auditor.
3. Audits
a. Prepare appropriate schedules and assist independent
auditors.
b. Provide information to SEC and facilitate audit process.
c. Provide office facilities for auditors and SEC staff as
appropriate.
4. Assist in overall operations of the Trust, including the
provision of office facilities, executive and administrative
services and Firstar personnel to serve as officers of the
Trust to facilitate Trust operations, all at Firstar's expense
with the exception of the costs incurred when attending Board
of Trustee meetings; and to provide stationary and office
supplies at the Trust's expense.
5. Create and maintain operations and compliance calendars and/or
a compliance manual for the Trust, detailing schedules for the
various responsibilities of Firstar.
6. Shareholder Communications. Coordinate printing and
distribution of prospectuses, statements of additional
information, stickers (supplements) to prospectuses or
statements of additional information, annual and semi-annual
shareholder reports and proxy statements.
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with 1940 Act
requirements, including:
1) Asset diversification tests;
2) Total return and yield calculations;
3) Code of ethics for independent, disinterested
trustees;
4) Compliance with fidelity bond coverage
requirements of Rule 17g-1 under the 1940 Act; and
5) Compliance with the NASD sales charge rule,
including the calculation and monitoring of the
sales charge cap and remaining amount for
asset-based sales charges.
b. Periodically monitor and report at Fund's quarterly
board meeting or more frequently as required, compliance
with the policies investment limitations and
reinvestment restrictions of each Fund 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 or notice
filings relating to the sales, qualification or
registration of the securities of each Fund so as to
enable
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each Fund to make a continuous offering of its shares in
the fifty states, Puerto Rico, U.S. Virgin Islands, and
Guam ("Blue Sky Jurisdictions").
b. Monitor sales and qualification status and make
appropriate renewal filings in each Blue Sky
Jurisdiction.
c. File prospectuses, statements of additional information
or proxy statements for the Trust in Blue Sky
Jurisdictions as requested by the Trust or such
jurisdictions.
3. SEC Registration and Reporting
a. Assist in the preparation and filing of post-effective
amendments to the Trust's Registration Statement on Form
N-1A to reflect the addition or deletion of Funds,
general amendments, or annual updates including the
preparation of Financial Data Schedules; and prepare and
file supplements ("stickers") to any prospectus or
statement of additional information for a Fund.
b. Prepare and file annual and semi-annual reports to
shareholders as required under the 1940 Act, along with
annual and semiannual reports on Form N-SAR (which shall
be series and class-specific, as appropriate).
c. Assist in the preparation and filing of proxy
statements, as requested by the Trust (matters to be
voted on may be class-specific), prepare minutes of
shareholder meetings, and record ballot results and
interface with proxy solicitation companies as required.
d. Prepare and file documents required to report and
calculate Federal securities registration fees (such as
notices on Form 24F-2).
e. File fidelity bond and any joint insurance agreements as
required by Rule 17g-1 under the 1940 Act.
f. Provide for the XXXXX-ization or other appropriate
preparation of all documents described above which must
be filed electronically with the SEC.
4. IRS Compliance
a. Periodically monitor the Trust's status as a regulated
investment company under Subchapter M of the Internal
Revenue Code, as amended, through review of the
following:
1) Asset diversification requirements;
2) Qualifying income requirements; and
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3) Distribution requirements.
b. Monitor short testing as required.
c. Calculate required distributions as required (including
excise tax distributions).
C. Financial Reporting
1. Prepare monthly expense reports (by series and class where
appropriate) including expense figures and accruals,
monitoring of expense caps or reimbursements and calculation
of advisory fees and 12b-1 accruals or payments; and calculate
expense ratios for quarterly, semiannual or annual periods.
2. Prepare unaudited financial statements (by series and class
where appropriate) for use in shareholder reports or
prospectuses and statements of additional information.
3. Prepare other monthly operational reports as required
including:
a. Sales figures (including shares sold, redeemed and
reinvested, changes in share price in net sales and
numbers of shareholders);
b. Performance information (including total return or yield
for the month, quarter, year-to-date, fiscal year or
average annual one-, five- or ten-year periods); and
c. Portfolio information (including turnover, top ten
holdings, book gains/losses per share; net income/book
income per share; basis).
4. Provide financial data required by Fund prospectus and
statements of additional information.
5. Prepare financial reports for shareholders, the board, the
SEC, and independent auditors.
6. Supervise the Trust's Custodian and Fund Accountants in the
maintenance of each Funds general ledger and in the
preparation of each Fund's financial statements including
oversight of expense accruals and payments, of the
determination of net asset value of each Fund and of the
Fund'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.
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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.
The Trust agrees to pay all fees and reimbursable expenses within ten (10)
business days following the mailing of the billing notice.
IV. Additional Funds
In the event that the Trust establishes one or more Funds 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 Funds 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 Xxxxxxx Growth Fund.
V. Performance of Services; 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
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
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 Fund 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 Trustees of the Trust.
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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
contingency plans, that are comparable to those employed within the
financial services industry, 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 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.
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VIII. Terms of Agreement
This Agreement shall become effective on 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 parties and will terminate automatically on its assignment
unless the parties hereto consent in writing.
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.
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 the Trust shall be sent to:
The Xxxxxxx Funds
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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 and as required by 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
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and rules of the 1940 Act and will be promptly surrendered to the Trust on
and in accordance with its request.
THE XXXXXXX FUNDS FIRSTAR MUTUAL FUND SERVICES, LLC
By: ______________________________ By: ______________________________
Title:____________________________ Title:____________________________
Date:_____________________________ Date:_____________________________
Attest:___________________________ Attest:___________________________
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Schedule A
Fund Administration and Compliance
Annual Fee Schedule
o Minimum annual fee per Fund: $30,000
o 6 basis points (.0006) on the first $200,000,000 of average daily net
assets
o 5 basis points (.0005) on the next $500,000,000 of average daily net
assets
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 Trustees meetings
o Auditing & legal expenses
o Fees are billed monthly
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