FUND ADMINISTRATION SERVICING AGREEMENT
This agreement is made and entered into on this 21, day of December by and
between T.O. Xxxxxxxxxx Trust, a Massachusetts business trust (the "Trust")
created pursuant to that certain Declaration of Trust of the Trust dated June 2,
1998, as amended from time to time (the "Declaration") and Firstar Mutual Fund
Services, LLC, a limited liability company organized under the laws of the State
of Wisconsin (hereinafter referred to as "FMFS").
WHEREAS, The Trust is an open-ended management investment company which is
registered under the Investment Company Act of 1940 (the "Investment Company
Act");
WHEREAS, FMFS is a trust company and, among other things, is in the business of
providing fund administration services for the benefit of its customers; and
WHEREAS, the Trust desires to retain First Star to provide fund administration
services of the Trust's operations in respect of the T.O. Xxxxxxxxxx Sector
Rotation Fund, and such additional funds which the Trust may establish from time
to time, subject to the control of the Board of Trustees of the Trust.
NOW, THEREFORE, the Trust and FMFS do mutually promise and agree as follows:
I. 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.
FMFS shall provide such services subject to the control of the Board of
Trustees of the Trust and in compliance with such policies as the
Trustees may from time to time establish, and in compliance with the
policies and limitations for the Trust set forth in the Trust's
Prospectus and Statement of Additional Information, in each case as
amended from time to time, and applicable laws and regulations.
II. Duties and Responsibilities of FMFS
A. General Trust Management
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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
4. Assist in overall operations of the Trust
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with Investment
Company Act of 1940 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 the Trust's compliance
with the policies and investment limitations
of the Trust as set forth in its prospectus
and statement of additional information
2. Blue Sky Compliance
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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
b. Monitor status and maintain registrations in each
state
3. SEC Registration and Reporting
a. Assisting the Trust's 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 the Trust's status as a
regulated investment company under
Subchapter M of the Internal Revenue Code
through review of the following:
1) Asset diversification requirements
2) Qualifying income requirements
3) Distribution requirement
b. Calculate required distributions (including excise tax
distributions)
C. Financial Reporting
1. Provide financial data required by the Fund Prospectus and
Statement of Additional Information
2. Prepare financial reports for shareholders, the Board
of Trustees of the Trust, the SEC, and independent
auditors
3. Supervise the Trust's Custodian and the Fund's
Accountants in the maintenance of the Fund's general
ledger and in the preparation of the Trust'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
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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 Trust agrees to pay FMFS 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 Trust and FMFS.
The Trust agrees to pay all fees and reimbursable expenses within ten
(10) business days following the mailing of the billing notice.
IV. Additional Series
In the event that the Trust establishes one or more series of shares
with respect to which it desires to have FMFS render fund
administration services, under the terms hereof, it shall so notify
FMFS in writing, and if FMFS 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 FMFS on a
discrete basis. The Fund currently covered by this Agreement is T.O.
Xxxxxxxxxx Company Sector Rotation Fund.
V. Year 2000 Compliance: Performance of Service; Limitation of Liability;
Indemnification
A. FMFS has (i) undertaken a detailed review and assessment of
all areas within its business and operations that could be
adversely affected by the "Year 200 Problem" (that is, the
risk that computed applications used by FMFS may be unable to
recognize and perform properly date-sensitive functions
involving certain dates
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prior to and any date after December 31, 1999, but before
December 31, 1999), (ii) developed a detailed plan and
timeline for addressing the Year 2000 Problem on a timely
basis, and (iii) to date, implemented that plan in accordance
with the timetable. FMFS reasonably anticipates that all
computer applications that are material to its business and
operations, including, among other things, providing fund
administration services for the benefit of its customers, will
on a timely basis be able to perform properly date- sensitive
functions for all dates before and after January 1, 2000,
(that is, to be "Year 2000 compliant"). FMFS has made inquiry
of each of its key suppliers and vendors as to whether such
persons will on a timely basis be Year 2000 compliant in all
material respects and on the basis of that inquiry believes
that all such persons will be so compliant. For purposes
hereof, "key suppliers and vendors" refers to those suppliers
and vendors of FMFS the business failure of which would, with
reasonable probability, be expected to have a material adverse
effect or from which a substantial amount of information and
data is obtained and entered into FMFS's computed
applications.
FMFS shall exercise reasonable care in the performance of its
duties under this Agreement. FMFS shall not be liable for any
error of judgement 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 resulting from 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.
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
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any time during regular business hours of FMFS, upon
reasonable note to FMFS.
Regardless of the above, FMFS reserves the right to reprocess
and correct administrative errors at its own expense.
B. 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 (i) in accordance with the foregoing standards (set forth in
paragraph B of this Section V), 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 except
to the extent that any claims, demands, losses, expenses, and
liabilities are found by a court of competent jurisdiction in a
judgement which has become final in that it is no longer subject to
appeal or review to have resulted primarily from FMFS's bad faith,
negligence or willful misconduct on its part in the performance of its
duties under this Agreement and except as may otherwise be provided
under provisions of applicable state law or federal securities laws
which cannot be waived or modified hereby. In order that the
indemnification provisions contained in this section shall apply, it
is understood that if in any case the Trust may be asked to indemnify
or hold FMFS harmless, the Trust shall be fully and promptly advised
of all pertinent facts concerning the situation in question, and it is
further understood that FMFS will use all reasonable care to notify
the Trust promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification
against the Trust. The Trust shall have the option to defend FMFS
against any claim, which may be the subject of this indemnification.
In the event that the Trust so elects, it will so notify FMFS and
thereupon the Trust shall take over complete defense of the claim, and
FMFS shall in such situation initiate no further legal or other
expenses for which it shall seek indemnification under this section.
FMFS shall in no case confess any claim or make any compromise in any
case in which the Trust
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will be asked to indemnify FMFS except with the Trust's prior
written consent.
C. 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 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.
VI. Confidentiality
FMFS shall handle, in confidence, all information relating to the
Trust's business which is received by FMFS during the course of
rendering any service hereunder.
VII. Data Necessary to Perform Service
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.
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 ninety (90) 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 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
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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.
X. Choice of Law
This Agreement shall be construed in accordance with the internal laws
of the State of Wisconsin, without regard to conflict of law
principles; provided, however, that nothing herein shall be construed
as being inconsistent with the Investment Company Act.
XI. 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
Trust shall be sent to T.O. Xxxxxxxxxx Trust, Two Bridgewater Road,
Farmington, CT 06032-2256, Attn: Xxxxxx Xxxxxx, Jr., President.
XII. 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 Investment Company 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 with such section and rules of the Investment Company Act and
will be promptly surrendered to the Trust on and in accordance with its
request.
XIII. Notice
The name T.O. Xxxxxxxxxx Trust is the designation of the Trustees under
the Declaration of Trust, dated June 2, 1998, as amended from time to
time. The Declaration of Trust has been filed with the Secretary of
State of the Commonwealth of Massachusetts. The obligations of the
Trust are not personally binding upon, nor shall resort be had to the
private property of, any of the Trustees, shareholders, officers,
employees or agents of the Trust, but the Trust's property only shall
be bound.
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T. O. XXXXXXXXXX TRUST FIRSTAR MUTUAL FUND SERVICES,
LLC
By:/s/ Xxxxxx Xxxxxx, Jr. By: /s/ Xxx X. Xxxxxxx
-------------------------------------- -------------------------------------
Xxxxxx Xxxxxx, Jr. Xxx X. Xxxxxxx
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Fund Administration and Compliance
Annual Fee Schedule
o Annual fee:
o 6 basis points (.0006) on the first $200,000,000
o 5 basis points (.0005) on the next $500,000,000
o 3 basis points (.0003) on the balance
o Minimum annual fee: $40,250 for the first fund
$35,000 per fund for the next three funds
$25,000 for additional funds
o Out-of-Pocket expenses, including, but not limited to:
o Postage
o Stationary
o Programming
o Proxies
o Retention of records
o Special reports
o Federal and state regulatory filing fees
o Certain insurance premiums
o All other out-of-pocket expenses
o Expenses from Board of Directors meetings
o Auditing and legal expenses
o Fees are billed monthly
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