FUND ACCOUNTING SERVICING AGREEMENT
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THIS AGREEMENT between Xxxxxxxx Funds, Inc., a Maryland Corporation,
on behalf of Grizzly Short Fund, hereinafter called the "Fund," and Firstar
Mutual Fund Services, LLC, a Wisconsin limited liability company, hereinafter
called "Firstar," is entered into on this _____ day of __________, 2000.
W I T N E S S E T H :
WHEREAS, the Fund is an open-end management investment company which
is registered under the Investment Company Act of 1940; and
WHEREAS, Firstar is in the business of providing, among other things,
mutual fund accounting services to investment companies;
NOW, THEREFORE, the parties do mutually promise and agree as follows:
1. Services. Firstar agrees to provide the following mutual fund
accounting services to the Fund:
A. Portfolio Accounting Services:
(1) Maintain portfolio records on a trade date +1 basis using
security trade information communicated from the investment
manager on a timely basis.
(2) For each valuation date, obtain prices from a pricing source
approved by the Board of Directors and apply those prices to
the portfolio positions. For those securities where market
quotations are not readily available, the Board of Directors
shall approve, in good faith, the method for determining the
fair value for such securities.
(3) Identify interest and dividend accrual balances as of each
valuation date and calculate gross earnings on investments
for the accounting period.
(4) Determine gain/loss on security sales and identify them as
to short- or long-term status; account for periodic
distributions of gains or losses to shareholders and
maintain undistributed gain or loss balances as of each
valuation date.
B. Expense Accrual and Payment Services:
(1) For each valuation date, calculate the expense accrual
amounts as directed by the Fund as to methodology, rate or
dollar amount.
(2) Record payments for Fund expenses upon receipt of written
authorization from the Fund.
(3) Account for fund expenditures and maintain expense accrual
balances at the level of accounting detail, as agreed upon
by Firstar and the Fund.
(4) Provide expense accrual and payment reporting.
C. Fund Valuation and Financial Reporting Services:
(1) Account for fund share purchases, sales, exchanges,
transfers, dividend reinvestments, and other fund share
activity as reported by the transfer agent on a timely
basis.
(2) Apply equalization accounting as directed by the Fund.
(3) Determine net investment income (earnings) for the Fund as
of each valuation date. Account for periodic distributions
of earnings to shareholders and maintain undistributed net
investment income balances as of each valuation date.
(4) Maintain a general ledger for the Fund in the form as agreed
upon.
(5) For each day the Fund is open as defined in the prospectus
determine the net asset value according to the accounting
policies and procedures set forth in the prospectus.
(6) Calculate per share net asset value, per share net earnings,
and other per share amounts reflective of fund operation at
such time as required by the nature and characteristics of
the Fund.
(7) Communicate, at an agreed upon time, the per share price for
each valuation date to parties as agreed upon from time to
time.
(8) Prepare monthly reports which document the adequacy of
accounting detail to support month-end ledger balances.
D. Tax Accounting Services:
(1) Maintain tax accounting records for the investment portfolio
of the Fund to support the tax reporting required for
IRS-defined regulated investment companies.
(2) Maintain tax lot detail for the investment portfolio.
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(3) Calculate taxable gain/loss on security sales using the tax
cost basis designated by the Fund.
(4) Provide the necessary financial information to support the
taxable components of income and capital gains distributions
to the transfer agent to support tax reporting to the
shareholders.
E. Compliance Control Services:
(1) Support reporting to regulatory bodies and support financial
statement preparation by making the fund accounting records
available to the Fund, Xxxxxxxx Xxxxxx Capital Management,
LLC, the Securities and Exchange Commission, and the outside
auditors.
(2) Maintain accounting records according to the Investment
Company Act of 1940 and regulations provided thereunder.
2. Changes in Accounting Procedures. Any resolution passed by the
Board of Directors that affects accounting practices and procedures under this
agreement shall be effective upon written receipt and acceptance by Firstar.
3. Changes in Equipment, Systems, Service, Etc. Firstar reserves the
right to make changes from time to time, as it deems advisable, relating to its
services, systems, programs, rules, operating schedules and equipment, so long
as such changes do not adversely affect the service provided to the Fund under
this Agreement.
4. Compensation. Firstar shall be compensated for providing the
services set forth in this Agreement in accordance with the Fee Schedule
attached hereto as Exhibit A and as mutually agreed upon and amended from time
to time.
5. Performance of Service. Firstar shall exercise reasonable care in
the performance of its duties under the Agreement. The Fund agrees to reimburse
and make Firstar whole for any loss or damages (including reasonable fees and
expenses of legal counsel) arising out of or in connection with its actions
under this Agreement so long as Firstar acts in good faith and is not negligent
or guilty of any willful misconduct.
Firstar shall not be liable or responsible for delays or errors
occurring by reason of circumstances beyond its control, including acts of civil
or military authority, natural or state emergencies, fire, mechanical breakdown,
flood or catastrophe, acts of God, insurrection, war, riots or failure of
transportation, communication or power supply.
In the event of a mechanical breakdown 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 the correcting
of any errors resulting from such a breakdown will be
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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 Fund 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.
This indemnification includes any act, omission to act, or delay by
Firstar in reliance upon, or in accordance with, any written or oral instruction
it receives from any duly authorized officer of the Fund.
Regardless of the above, Firstar reserves the right to reprocess and
correct administrative errors at its own expense.
6. No Agency Relationship. Nothing herein contained shall be deemed to
authorize or empower Firstar to act as agent for any other party to this
Agreement, or to conduct business in the name of, or for the account of, any
other party to this Agreement.
7. Ownership of Records. All records prepared or maintained by Firstar
on behalf of the Fund remain the property of the Fund and will be surrendered
promptly on the written request of an authored officer of the Fund.
8. Confidentiality. Firstar shall handle in confidence all information
relating to the Fund's business, which is received by Firstar during the course
of rendering any service hereunder.
9. Data Necessary to Perform Services. The Fund 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.
10. Notification of Error. The Fund will notify Firstar of any
balancing or control error caused by Firstar within three (3) business days
after receipt of any reports rendered by Firstar to the Fund, or within three
(3) business days after discovery of any error or omission not covered in the
balancing or control procedure, or within three (3) business days of receiving
notice from any shareholder.
11. Term of Agreement. This 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. However, this
Agreement may be replaced or modified by a subsequent agreement between the
parties.
12. 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 Fund by written notice to
Firstar, Firstar 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 Firstar under this Agreement in a form
reasonably acceptable to the Fund (if such form differs from the form in
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which Firstar has maintained the same, the Fund shall pay any expenses
associated with transferring the same 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.
13. Choice of Law. This Agreement shall be construed in accordance
with the laws of the State of Wisconsin.
IN WITNESS WHEREOF, the due execution hereof on the date first above
written.
FIRSTAR MUTUAL FUND SERVICES, LLC
By ________________________________
XXXXXXXX FUNDS, INC.
By _______________________________
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