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FUND ADMINISTRATION SERVICING AGREEMENT
This Agreement is made and entered into on this thirteenth day of February,
1997, by and between Xxxxxx Series Trust (hereinafter referred to as the
"Fund") and Firstar Trust Company, a corporation organized under the laws of
the State of Wisconsin (hereinafter referred to as "FTC").
WHEREAS, The Fund is an open-ended management investment company which is
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 Fund and FTC do mutually promise and agree as follows:
I. Appointment of Administrator
The Fund hereby appoints FTC as Administrator of the Fund 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 Fund 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
e. Record board minutes
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 Fund
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B. Compliance
1. Regulatory Compliance
a. Monthly, quarterly and intra month
spot checks as needed to 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
b. Periodically monitor Fund's compliance with the policies
and investment limitations of the 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 filings (including initial filings) relating
to the registration of the securities of the Fund so as
to enable the Fund to make a continuous offering of its
shares
b. Monitor status and maintain
registrations in each state
3. SEC Registration and Reporting
a. Update prospectus and statement of additional
information; proxy statements, and Rule 24f-2 notice.
Submit to firm's counsel as needed.
b. Prepare Annual and semiannual reports
4. IRS Compliance
a. Monthly, quarterly and intra month spot checks as needed
to monitor the Fund'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. Monitor short short testing
c. Calculate required distributions
(including excise tax distributions)
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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 Fund's Custodian and Fund
Accountants in the maintenance of the Fund's general ledger
and in the preparation of the Fund's financial statements
including oversight of expense accruals and payments, of the
determination of net asset value of the Fund's net assets 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 1120/8610 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 Fund agrees 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 Fund and FTC.
The Fund 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 Xxxxxx Series Trust a Delaware business trust which
is organized as a series fund currently offering one fund: Xxxxxx Value
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
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this Agreement, and shall be maintained and accounted for by FTC on a
discrete basis. The fund currently covered by this Agreement is the
Xxxxxx Value Fund.
V. Performance of Service; Limitation of Liability
A. FTC shall exercise reasonable care and to act in good faith 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 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 other than the Fund 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 for a proper corporate purpose 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 Fund may be
asked to indemnify or hold FTC harmless, the Fund 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 Fund promptly concerning any situation which presents
or appears likely to present the probability of such a claim for
indemnification against the Fund. The Fund shall have the option to
defend FTC against any claim which may be the
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subject of this indemnification. In the event that the Fund so elects,
it will so notify FTC and thereupon the Fund 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 Fund will be asked to indemnify FTC
except with the Fund's prior written consent.
C. FTC shall indemnify and hold the Fund 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 Fund 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 agrees on behalf of itself and its employees and agents to treat
confidentially all information relating to the Fund's business which is
received by FTC during the course of rendering any service hereunder. The
Agent agrees on behalf of itself and its employees and agents to treat
confidentially all records and other information relative to the Fund and
its shareholders and shall not disclose to any other party, except after
prior notification to and approval in writing by the Fund, which approval
shall not be unreasonably withheld and may not be withheld where the
Agent may be exposed to civil or criminal contempt proceedings for
failure to comply after being requested to divulge such information by
duly constituted authorities.
VII. Data Necessary to Perform Service
The Fund 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.
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 Fund by
written notice to FTC, FTC will promptly, upon such termination and at
the expense of the Fund, 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 Fund (if
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such form differs from the form in which FTC has maintained, the Fund
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 Fund Services located at 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 and notice to the Fund shall
be sent to the Xxxxxx Series Trust located at 000 Xxxx 00xx Xxxxxx,
Xxxxxx-Xxxxx Xxxxx, 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 Fund 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 Fund
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 Fund on and in accordance with its request. [Trustees and
Shareholders shall not be personally liable for the obligations of the
Fund in connection with any matter arising from or in connection with
this agreement.]
XIII. This servicing agreement can not be assigned without consent of Xxxxxx
Series Trust.
XXXXXX SERIES TRUST FIRSTAR TRUST COMPANY
By: /s/ Xxxxx Xxxxxx By: /s/ Xxx X. Xxxxxxx
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Title: Chief Financial Officer/Treasurer Title: First Vice President
Date: February 13, 1997 Date: February 27, 1997
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Attest: /s/ Xxxxx X. Xxxxxxxxx Attest: /s/ Xxxx Rock
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SCHEDULE A
FUND ADMINISTRATION SERVICING AGREEMENT
FUND ADMINISTRATION AND COMPLIANCE
ANNUAL FEE SCHEDULE
o Minimum annual fee per fund: $30,000 for the first $40,000,000
o 6 basis points (.0006) on the next $200,000,000
o 5 basis points (.0005) on the next $300,000,000
o 3 basis points (.0003) on the balance
o Out-of-Pocket expenses, including, but not limited to:
o Postage
o Stationery
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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