FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 3rd day of November,
2000, by and between Everest Funds, a trust organized under the laws of the
State of Delaware (the "Trust") and Firstar Mutual Fund Services, LLC, a limited
liability company organized under the laws of the State of Wisconsin ("FMFS").
WHEREAS, the Trust is an open-end investment management companies
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Trust is authorized to create separate series, each with
its own separate investment portfolio;
WHEREAS, FMFS is in the business of providing, among other things,
mutual fund administration services to investment companies; and
WHEREAS, the Trust desires to retain FMFS to provide mutual fund
administration services to each of the portfolios of the Trust, and each
additional series of the Trust listed on Exhibit A attached hereto, as it may be
amended from time to time (individually a "Fund" and collectively the "Funds").
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Trust and FMFS agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Trust hereby appoints FMFS as Administrator of the Trust 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. General Fund Management
(1) Act as liaison among all Fund service providers
(2) Supply
(a) Corporate secretarial services
(b) Office facilities (which may be in FMFS's or its
affiliate's own offices)
(c) Non-investment-related statistical and research data as
needed
(3) Coordinate board communication by:
(a) 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 officer liability coverage, and making the
necessary SEC filings relating thereto
(e) Preparing minutes of meetings of the board and
shareholders
(f) Recommending dividend declarations to the Board,
preparing and distributing to appropriate parties'
notices announcing declaration of dividends and other
distributions to shareholders
(g) Providing personnel to serve as officers of the Trust
if so elected by the Board and attending Board
meetings to present materials for Board review
If requested, all board communications shall be
provided to the Fund's investment advisor for review
prior to use.
(4) Audits
(a) Prepare appropriate schedules and assist independent
auditors
(b) Provide information to SEC and facilitate audit process
(c) Provide office facilities
(5) Assist in overall operations of the Fund
(6) Pay Fund expenses upon written authorization from the Trust
(7) Monitor arrangements under shareholder services or similar
plan
B. Compliance
(1) Regulatory Compliance
(a) Monitor compliance with 1940 Act requirements,
including:
o Asset diversification tests
o Total return and SEC yield calculations
o Maintenance of books and records under Rule 31a-3
o Code of Ethics for the disinterested Trustees of
the Fund
(b) Monitor Fund's compliance with the policies and
investment limitations of the Trust as set forth in its
Prospectus and Statement of Additional Information
(c) Maintain awareness of applicable regulatory and
operational service issues and recommend dispositions
(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 in all states
(b) Monitor status and maintain registrations in each state
(c) Provide information regarding material developments in
state securities regulation
(3) SEC Registration and Reporting
(a) Assist Trust counsel in updating Prospectus and
Statement of Additional Information and in preparing
proxy statements and Rule 24f-2 notices
(b) Prepare or assist in the preparation of annual and
semiannual reports, Form N-SAR filings and Rule 24f-2
notices
(c) Coordinate or assist in the coordination of the
printing, filing and mailing of publicly disseminated
Prospectuses and reports
(d) File fidelity bond under Rule 17g-1
(e) File shareholder reports under Rule 30b2-1
(f) Monitor sales of each Fund's shares and ensure that
such shares are properly registered with the SEC and
the appropriate state authorities
(g) File Rule 24f-2 notices
(4) IRS Compliance
(a) Monitor Trust's status as a regulated investment
Trust under Subchapter M, including without
limitation, review of the following:
o Asset diversification requirements
o Qualifying income requirements
o Distribution requirements
(b) Calculate required distributions (including excise tax
distributions)
C. Financial Reporting
(1) Provide financial data required by Fund's Prospectus and
Statement of Additional Information;
(2) Prepare financial reports for officers, shareholders, tax
authorities, performance reporting companies,
the board, the SEC, and independent auditors;
(3) Supervise the Trust's Custodian and Accountants in
the maintenance of the Trust'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
Trust's net assets and of the Trust's shares, and of
the declaration and payment of dividends and other
distributions to shareholders;
(4) Compute the yield, total return and expense ratio of each
class of each Portfolio, and each Portfolio's portfolio
turnover rate; and
(5) Monitor the expense accruals and notify Trust management of
any proposed adjustments.
(6) Prepare monthly financial statements, which will include
without limitation the following items:
(a) Schedule of Investments
(b) Statement of Assets and Liabilities
(c) Statement of Operations
(d) Statement of Changes in Net Assets
(e) Cash Statement
(f) Schedule of Capital Gains and Losses
(7) Prepare quarterly broker security transaction summaries.
D. Tax Reporting
(1) Prepare and file on a timely basis appropriate
federal and state tax returns including, without
limitation, Forms 1120/8610 with any necessary
schedules
(2) Prepare state income breakdowns where relevant
(3) File Form 1099 Miscellaneous for payments to Trustees and
other service providers
(4) Monitor wash losses
(5) Calculate eligible dividend income for corporate shareholders
3. 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 Trust agrees to pay all fees and reimbursable expenses within ten
(10) business days following the receipt of the billing notice.
4. 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 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 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 Trust 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 Trust, 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 Trust.
FMFS shall indemnify and hold the Trust 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 Trust may sustain or incur or which may be asserted
against the Trust 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. 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. Representatives of the Trust 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 unless the claim against the indemnitee shall be adverse
to the claim of the indemnitor. The 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.
5. 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
Trust, all records and other information relative to the Trust and
prior, present, or potential shareholders of the Trust (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 Trust, 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 Trust.
6. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof and, unless
sooner terminated as provided herein, shall continue subject to Board
approval 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. However, this Agreement may be amended by mutual
written consent of the parties.
7. 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 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. 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
Trust 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 Trust on and in accordance with its
request.
8. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and 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 Securities and Exchange Commission thereunder.
9. 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
Trust by written notice to FMFS, FMFS 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 FMFS under this Agreement in a form reasonably
acceptable to the Trust (if such form differs from the form in which
FMFS has maintained, the Trust shall pay any direct 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 FMFS's personnel in the establishment of books,
records, and other data by such successor.
10. 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.
11. DATA NECESSARY TO PERFORM SERVICES
The Trust or its agent, which may be FMFS, shall furnish to FMFS the
data necessary to perform the services described herein at times and in
such form as mutually agreed upon if FMFS is also acting in another
capacity for the Trust, nothing herein shall be deemed to relieve FMFS
of any of its obligations in such capacity.
12. 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 THE TRUST SHALL BE SENT TO: NOTICE TO FMFS SHALL BE SENT TO:
------------------------------------- --------------------------------
Everest Funds Firstar Mutual Fund Services, LLC
0000 X. 00xx Xxxxxx 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 000000 Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxx Xxxxx
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer or one or more counterparts as of the day
and year first written above.
EVEREST FUNDS FIRSTAR MUTUAL FUND SERVICES, LLC
By: ______________________________ By: ______________________________
Print: ___________________________ Print: ___________________________
Title: ___________________________ Title: ___________________________
