FUND ADMINISTRATION SERVICING AGREEMENT
This Agreement is made and entered into on this 1st day of December, 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
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
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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.
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
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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 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
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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 December 1, 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.
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
0
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
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxx X. Xxxxxxx
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Print: Xxxxxx X. Xxxxxxxx Print: Xxx X. Xxxxxxx
Title: CFO Title: Senior Vice President
Date: October 5, 1998 Date: October 5, 1998
Attest: /s/ Xxxxx Xxxx Attest: /s/ Xxxxxxx X. Xxxxxx
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