FUND ACCOUNTING SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of March, 2000,
by and between Gintel Fund, a Massachusetts business trust organized under the
laws of the Commonwealth of Massachusetts (hereinafter referred to as the
"Fund") and Firstar Mutual Fund Services, LLC, a limited liability corporation
organized under the laws of the State of Wisconsin (hereinafter referred to as
"FMFS").
WHEREAS, the Fund is a registered investment company under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, FMFS is in the business of providing, among other things, mutual
fund accounting services to investment companies; and
WHEREAS, the Fund desires to retain FMFS to provide accounting services to
the portfolio of the Fund.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Fund and FMFS agree as follows:
1. Appointment of Fund Accountant
The Fund hereby appoints FMFS as Fund Accountant of the Fund on the terms
and conditions set forth in this Agreement, and FMFS 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.
2. Duties and Responsibilities of FMFS
A. Portfolio Accounting Services:
(1) Maintain portfolio records on a trade date+1 basis using security
trade information communicated from the investment manager.
(2) For each valuation date, obtain prices from a pricing source
approved by the Board of Trustees of the Fund and apply those prices to the
portfolio positions. For those securities where market quotations are not
readily available, the Board of Trustees of the Fund 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,
short-term or long-term; 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 Fund as to methodology, rate or dollar amount.
(2) Record payments for Fund expenses upon receipt of written
authorization from Fund.
(3) Account for Fund expenditures and maintain expense accrual
balances at the level of accounting detail, as agreed upon by FMFS 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 and other accounts, books, and financial
records for the Fund in the form as agreed upon.
(5) Determine the net asset value of the Fund according to the
accounting policies and procedures set forth in the Fund's Prospectus.
(6) Calculate per share net asset value, per share net earnings, and
other per share amounts reflective of Fund operations 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 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.
(3) Calculate taxable gain/loss on security sales using the tax lot
relief method 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's accounting records available to
the Fund, the Securities and Exchange Commission, and the outside auditors.
(2) Maintain accounting records according to the 1940 Act and
regulations provided thereunder
F. FMFS will perform the following accounting functions on a daily basis:
(1) Reconcile cash and investment balances of each Portfolio with the
Custodian, and provide the Advisor with the beginning cash balance
available for investment purposes;
(2) Transmit or mail a copy of the portfolio valuation to the Advisor;
(3) Review the impact of current day's activity on a per share basis,
review changes in market value.
G. In addition, FMFS will:
(1) Prepare monthly security transactions listings;
(2) Supply various Fund, Portfolio and class statistical data as
requested on an ongoing basis.
3. Pricing of Securities
For each valuation date, obtain prices from a pricing source selected by
FMFS but approved by the Fund's Board of Trustees and apply those prices to
the portfolio positions of the Fund. For those securities where market
quotations are not readily available, the Fund's Board of Directors shall
approve, in good faith, the method for determining the fair value for such
securities.
If the Fund desires to provide a price, which varies from the pricing
source, the Fund shall promptly notify and supply FMFS with the valuation
of any such security on each valuation date. All pricing changes made by
the Fund will be in writing and must specifically identify the securities
to be changed by CUSIP, name of security, new price or rate to be applied,
and, if applicable, the time period for which the new price(s) is/are
effective.
4. Changes in Accounting Procedures
Any resolution passed by the Board of Trustees of the Fund that affects
accounting practices and procedures under this Agreement shall be effective
upon written receipt and acceptance by the FMFS.
5. Changes in Equipment, Systems, Service, Etc.
FMFS 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.
6. Compensation
FMFS 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. The Fund agrees
to pay all fees and reimbursable expenses within ten (10) business days
following the receipt of the billing notice.
7. Performance of Service; Limitation of Liability
A. FMFS shall exercise reasonable care in the performance of its
duties under this Agreement. FMFS 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 FMFS's control, except a loss arising out of or
relating to FMFS'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, if FMFS has exercised reasonable care in
the performance of its duties under this Agreement, the Fund shall
indemnify and hold harmless FMFS 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 FMFS may sustain or incur or which may be asserted against FMFS
by any person arising out of any action taken or omitted to be taken by it
in performing the services hereunder, except for any and all claims,
demands, losses, expenses, and liabilities arising out of or relating to
FMFS's refusal or failure to comply with the terms of this Agreement or
from bad faith, negligence or from willful misconduct on its part in
performance of its duties under this Agreement, (i) in accordance with the
foregoing standards, or (ii) in reliance upon any written or oral
instruction provided to FMFS by any duly authorized officer of the Fund,
such duly authorized officer to be included in a list of authorized
officers furnished to FMFS and as amended from time to time in writing by
resolution of the Board of Trustees of the Fund.
FMFS 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 the Fund may sustain or incur or which may be
asserted against the Fund by any person arising out of any action taken or
omitted to be taken by FMFS as a result of FMFS's refusal or failure to
comply with the terms of this Agreement, its bad faith, negligence, or
willful misconduct.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, FMFS shall take all reasonable steps to
minimize service interruptions for any period that such interruption
continues beyond FMFS's control. FMFS 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 FMFS. FMFS 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 FMFS's premises and operating
capabilities at any time during regular business hours of FMFS, upon
reasonable notice to FMFS.
Regardless of the above, FMFS 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 indemnitor
may be asked to indemnify or hold the indemnitee harmless, the indemnitor
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnitee
will use all reasonable care to notify the indemnitor promptly concerning
any situation which presents or appears likely to present the probability
of a claim for indemnification. The indemnitor shall have the option to
defend the indemnitee against any claim, which may be the subject of this
indemnification. In the event that the indemnitor so elects, it will so
notify the indemnitee and thereupon the indemnitor shall take over complete
defense of the claim, and the indemnitee shall in such situation initiate
no further legal or other expenses for which it shall seek indemnification
under this section. Indemnitee shall in no case confess any claim or make
any compromise in any case in which the indemnitor will be asked to
indemnify the indemnitee except with the indemnitor's prior written
consent.
8. Proprietary and Confidential Information
FMFS agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of the
Fund all records and other information relative to the Fund and prior,
present, or potential shareholders of the Fund (and clients of said
shareholders), and not to use such records and information for any purpose
other than the performance of its responsibilities and duties hereunder,
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 FMFS may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Fund.
9. Term 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. 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. This Agreement may be replaced or modified by a subsequent written
agreement between the parties.
10. Records
FMFS 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 1940 Act, and the rules thereunder. FMFS agrees that all
such records prepared or maintained by FMFS relating to the services to be
performed by FMFS hereunder are the property of the Fund and will be
preserved, maintained, and made available in accordance with such section
and rules of the 1940 Act and will be promptly surrendered to the Fund on
and in accordance with its request.
11. Governing Law
This Agreement shall be construed in accordance with the laws of the
State of Wisconsin. However, nothing herein shall be construed in a manner
inconsistent with the 1940 Act or any rule or regulation promulgated by the
SEC thereunder.
12. Duties in the Event of Termination
In the event that in connection with termination, a successor to any
of FMFS's duties or responsibilities hereunder is designated by the Fund by
written notice to FMFS, FMFS 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 FMFS
under this Agreement in a form reasonably acceptable to the Fund (if such
form differs from the form in which FMFS 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 FMFS's personnel in the
establishment of books, records and other data by such successor.
13. No Agency Relationship
Nothing herein contained shall be deemed to authorize or empower FMFS
to act as agent for the other party to this Agreement, or to conduct
business in the name of, or for the account of the other party to this
Agreement.
14. Data Necessary to Perform Services
The Fund or its agent, which may be FMFS, shall furnish to FMFS the
data necessary to perform the services described herein at such times and
in such form as mutually agreed upon. If FMFS is also acting in another
capacity for the Fund, nothing herein shall be deemed to relieve FMFS of
any of its obligations in such capacity.
15. Notification of Error
The Fund will notify FMFS of any balancing or control error caused by
FMFS the later of: within three (3) business days after receipt of any
reports rendered by FMFS to the Fund; 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.
16. 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 FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Fund shall be sent to:
Gintel Fund
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxxx
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by a duly authorized officer on one or more counterparts as of
the day and year first written above.
Gintel Fund FIRSTAR MUTUAL FUND SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxxxx
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Print: Xxxxxx X. Xxxxxxxxx Print: Xxx X. Xxxxxxx
Title: President Title: President
Date: April 19, 2000 Date: April 24, 2000
Attest: /s/ Xxxxx X. Xxxxxx Attest: /s/ Xxxxx X. Xxxxx
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