FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 28th day of August, 2001
by and between Zodiac Trust, a Delaware business trust (the "Trust") and Firstar
Mutual Fund Services, LLC, a Wisconsin limited liability company ("FMFS").
WHEREAS, the Trust is registered under the Investment Company Act of 1940,
as amended (the "1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interest in separate series, with
each such series representing interests in a separate portfolio of securities
and other assets;
WHEREAS, FMFS is, among other things, in the business of providing fund
administration services for the benefit of its customers; and
WHEREAS, the Trust desires to retain FMFS to provide fund accounting
services for each series of the Trust listed on Exhibit A hereto (as amended
from time to time) (each a "Portfolio", collectively the "Portfolios").
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. Appointment of FMFS as 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.
2. Services and Duties of FMFS
FMFS shall provide the following fund administration services for the
Portfolios, including but not limited to:
A. General Portfolio Management:
(1) Act as liaison among all Portfolio 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 the Trust's Board of Trustees' (the "Board of
Trustees" or the "Trustees") communication:
a. Establish meeting agendas.
b. Prepare reports for the Board of Trustees based on
financial and administrative data
c. Evaluate independent auditor.
d. Secure and monitor fidelity bond and director and
officer liability coverage, and make the necessary
Securities and Exchange Commission (the "SEC") filings
relating thereto.
e. Prepare minutes of meetings of the Board of Trustees
and Portfolio shareholders.
f. Recommend dividend declarations to the Board of
Trustees, prepare and distribute to appropriate parties
notices announcing declaration of dividends and other
distributions to shareholders.
g. Provide personnel to serve as officers of the Trust if
so elected by the Board of Trustees, attend Board of
Trustees meetings and present materials for Trustees'
review at such meetings.
(4) Audits:
a. Prepare appropriate schedules and assist independent
auditors.
b. Provide information to the SEC and facilitate audit
process.
c. Provide office facilities.
(5) Assist in overall operations of the Portfolio.
(6) Pay Portfolio 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 the 1940 Act requirements,
including:
(i) Asset diversification tests.
(ii) Total return and SEC yield calculations.
(iii) Maintenance of books and records under Rule
31a-3.
(iv) Code of Ethics for the disinterested Trustees of
the Portfolio.
b. Monitor Portfolio's compliance with the policies and
investment limitations of the Trust as set forth in its
current prospectus (the "Prospectus") and statement of
additional information (the "SAI").
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 Corporate counsel in updating the Prospectus and
SAI and in preparing proxy statements and Rule 24f-2
notices.
b. Prepare annual and semiannual reports, Form N-SAR
filings and Rule 24f-2 notices.
c. Coordinate 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 Portfolio'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 the Trust's status as a regulated investment
company under Subchapter M, including without
limitation, review of the following:
(i) Asset diversification requirements.
(ii) Qualifying income requirements.
(iii) Distribution requirements.
b. Calculate required distributions (including excise tax
distributions).
C. Financial Reporting:
(1) Provide financial data required by the Portfolio's
Prospectus and SAI.
(2) Prepare financial reports for officers, shareholders, tax
authorities, performance reporting companies, the Board of
Trustees, the SEC, and independent auditors.
(3) Supervise the Trust's custodian and fund accountants in the
maintenance of the Trust's general ledger and in the
preparation of the Portfolio'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.
(5) Monitor the expense accruals and notify the Trust's
management of any proposed adjustments.
(6) Prepare monthly financial statements, which 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 set forth on Exhibit A
hereto (as amended from time to time). The Trust shall pay all fees
and reimbursable expenses within ten (10) business days following
receipt of the billing notice. Notwithstanding anything to the
contrary, amounts owed by the Trust to FMFS shall only be paid out of
the assets and property of the particular Portfolio involved.
4. Indemnification; 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.
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) that the Trust may
sustain or incur or that 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 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 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.
Notwithstanding 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
that 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 that 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. 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.
Further, FMFS will adhere to the privacy policies adopted by the Trust
pursuant to Title V of the Xxxxxx-Xxxxx-Xxxxxx Act, as may be modified
from time to time (the "Act"). Notwithstanding the foregoing, FMFS
will not share any nonpublic personal information concerning any of
the Trust's shareholders to any third party unless specifically
directed by the Trust or allowed under one of the exceptions noted
under the Act.
6. Term of Agreement; Amendment
This Agreement shall become effective as of the date first written
above and will continue in effect for a period of one year. Subsequent
to the initial one-year term, 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 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 applicable sections 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 in accordance with the laws of the
State of Wisconsin, without regard to conflicts of law principles. To
the extent that the applicable laws of the State of Wisconsin, or any
of the provisions herein, conflict with the applicable provisions of
the 1940 Act, the latter shall control, and nothing herein shall be
construed in a manner inconsistent with the 1940 Act or any rule or
order of the SEC 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 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, 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 such 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. Assignment
This Agreement may not be assigned by either party without the prior
written consent of the other party.
13. Notices
Any notice required or permitted to be given by either party to the
other shall be in writing and shall be deemed to have been given on
the date delivered personally or by courier service, or three (3) days
after sent by registered or certified mail, postage prepaid, return
receipt requested, or on the date sent and confirmed received by
facsimile transmission to the other party's address set forth below:
Notice to FMFS shall be sent to:
Firstar Mutual Fund Services, LLC
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and notice to the Trust shall be sent to:
Zodiac Trust
Attention: Xxx Xxxxxxxxx
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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 date first
above written.
ZODIAC TRUST FIRSTAR MUTUAL FUND SERVICES, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: President Title: President
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