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EXHIBIT 9A
FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT is made and entered into on this 5th day of November, 1996,
by and between Xxxxxx Investment Funds, Inc., a Maryland series company
currently sponsoring the Bond Fund and the Growth Stock Fund (each, a "Fund,"
and together, the "Funds") and Firstar Trust Company, a corporation organized
under the laws of the State of Wisconsin (hereinafter referred to as "FTC").
WHEREAS, Xxxxxx Investment Funds, Inc. is an open-ended management
investment company which shall be registered under the Investment Company Act
of 1940, as amended (the "Investment Company Act");
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 appoint 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 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
3. Audits
a. Prepare appropriate schedules and assist independent auditors
b. Provide information to SEC and facilitate audit process
c. Provide office facilities
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4. Assist in overall operations of the Funds
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with Investment Company 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 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 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. Assisting 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 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
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c. 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 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 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.
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IV. ADDITIONAL SERIES
In the event that Xxxxxx Investment Funds, Inc., 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 funds currently
covered by this Agreement are: the Bond Fund and the Growth Stock 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 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.
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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 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 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 their 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 sixty (60) 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 Funds by
written notice to FTC, FTC will
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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.
IX. CHOICE OF LAW
This Agreement shall be construed in accordance with the laws of the State
of Wisconsin.
X. 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, 000 X. Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, and notice to Funds shall be sent to X.X. Xxx
0000, Xx. Xxxxx, Xxxxxxxxx 00000.
XI. 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 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.
In witness whereof, the parties have duly executed this Agreement as of
the day and year first above written.
Xxxxxx Investment Funds, Inc. Firstar Trust Company
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxx
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Its: President Its: Vice President
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Attest: /s/ Xxxxxxx X. XxXxxxx Attest: /s/ Xxxxxx XxXxx
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Exhibit A
Fund Administration Annual Fee Schedule
Xxxxxx Funds
Annual fees based on market value of assets
5 basis points on the first $100 million
4 basis points on the next $400 million
3 basis points on the balance
$30,000 minimum annual fee on the first fund
$20,000 minimum annual fee on the second fund
15% discount for the first year
10% discount for the second year
