FUND ACCOUNTING SERVICING AGREEMENT
This contract between T.O. Xxxxxxxxxx Trust, a Massachusetts business trust,
hereinafter called the "Trust," and Firstar Mutual Fund Services, LLC, a
Wisconsin corporation, hereinafter called "FMFS," is entered into on this 21 day
of December 1998.
WHEREAS, the Trust is an open-end management investment company registered under
the Investment Company Act of 1940; and
WHEREAS, FMFS 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. FMFS agrees to provide the following mutual fund accounting
services to the Trust:
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 Trustees and apply
those prices to the portfolio positions. For those
securities where market quotations are not readily
available, the Board of Trustee 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 Trust as to
methodology, rate or dollar amount.
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(2) Record payments for Trust expenses upon receipt of
written authorization from the Trust.
(3) Account for fund expenditures and maintain expense
accrual balances at the level of accounting detail,
as agreed upon by FMFS and the Trust.
(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 Trust, 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. Pricing of Securities. For each valuation date, obtain prices from a
pricing source selected by FMFS but approved by the Trust's Board and
apply those prices to the portfolio positions. For those securities
where market quotations are not readily available, the Trust's Board
shall approve, in good faith, the method for determining the fair value
for such securities.
If the Trust desires to provide a price which varies from the pricing
source, the Trust shall promptly notify and supply FMFS with the
valuation of any such security on each valuation date. All pricing
changes made by the Trust 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.
3. Changes in Accounting Procedures. Any resolution passed by the Trust's
Board that affects accounting practices and procedures under this
agreement shall be effective upon written receipt and acceptance by the
FMFS.
4. 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 Trust under this Agreement.
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5. 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.
6. Performance of Service.
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
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.
Notwithstanding any other provision of 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 (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.
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.
Regardless of the above, FMFS reserves the right to
reprocess and correct administrative errors at its
own expense.
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B. 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 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' fee
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.
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 as 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 of 1940, as amended (the "Investment
Company Act"), and the rules thereunder. FMFS agrees that all
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.
8. Confidentiality. FMFS shall handle in confidence all information
relating to the Trusts' business which is received by FMFS during
the course of rendering any service hereunder.
9. 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.
10. Notification of Error. The Trust will notify FMFS of any balancing or
control error caused by FMFS within three (3) business days after
receipt of any reports
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rendered by FMFS to the Trust, or within three (3) business days after
discovery of any error or omission not covered by the balancing or
control procedure, or within three (3) business days of receiving
notice from any shareholder.
11. Additional Series. In the event that the Fund establishes one or more
series of shares with respect to which it desires to have FMFS render
accounting services, under the terms hereof, it shall so notify FMFS in
writing, and if FMFS agrees in writing to provide 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
portfolio currently covered by this Agreement is: T.O.
Xxxxxxxxxx Sector Rotation Fund.
12. 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.
13. 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.
14. 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 Trust
Company Mutual Fund Services, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000, Attention: and notice to Trust shall be sent to T.O. Xxxxxxxxxx
Trust, Two Bridgewater Road, Farmington, CT 06032, Attention: Xxxxxx
Xxxxxx, Jr.
15. Choice of Law. This Agreement shall be construed in accordance with the
laws of the State of Wisconsin.
16. 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
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the Trustees, shareholders, officers, employees or agents of the Trust,
but the Trust's property only shall be bound.
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IN WITNESS WHEREOF, the due execution hereof on the date first above
written.
Firstar Mutual Fund Services, LLC
By: /s/ Xxx X. Xxxxxxx
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Xxx X. Xxxxxxx
T.O. Xxxxxxxxxx Trust
By: /s/ Xxxxxx Xxxxxx, Jr.
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Xxxxxx Xxxxxx, Jr.
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Shareholder Accounting Services
No-Load Funds
Annual Fee Schedule
o $14.00 per shareholder account
o Minimum annual fee of $27,000 for the first fund and $15,000 for each
additional fund and class of share.
o Plus out-of-pocket expenses, including but not limited to:
o Telephone - toll-free lines
o Postage
o Programming
o Stationary/envelopes o Mailing o Insurance o Proxies o Retention of
records o Microfilm/fiche of records o Special reports
o All other out-of-pocket expenses
o ACH fees
o Fees are billed monthly
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Shareholder Accounting Services
Automatic Investment Plan Processing
ACH Service
o Automatic Investment Plan
o Telephone Purchase, Liquidation
o EFT Payments of Dividends, Capital Gains, SWP's
o $125.00 per month per fund group
o $0.50 per account set-up and/or change
o $0.50 per item for AIP purchases
o $0.50 per item for EFT payments, purchases
o $3.50 per correction, reversal, or return item
o Fees are billed monthly
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Fund Valuation and Accounting
Domestic Portfolios
Annual Fee Schedule
Fixed Income Funds
o Annual fee per fund based on market value of assets:
o $28,000 for the first $40,000,000
o 2/100 of 1% (1 basis point) on the next $200,000,000
o 5/1000 of 1% (1/2 basis point) on the balance
o 25% of annual minimum for each class of share
o Out-of-pocket expenses, including daily pricing service
Money Market Funds
o Annual fee per fund based on market
value of assets:
o $25,300 for the first $40,000,000
o 1/100 of 1% (1 basis point) on the nest $200,000,000
o 5/1000 of 1% (1/2 basis point) on the balance
o 25% of annual minimum for each
class of share
o Out-of-pocket expenses, including daily
pricing service
MoneyMarket Fu
o Annual fee per fund based on market
value of assets:
o $28,500 of the first $40,000,000
o 1/100 of 1% (1 basis point) on the nest $200,000,000
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o 5/1000 of 1% (1/2 basis point) on
the balance
o 25% of annual minimum for each
class of share
o Out-of-pocket expenses, including daily pricing service
All fees and out-of-pocket expenses are billed monthly.
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Fund Valuation and Accounting
Asset Pricing Cost
Charge per Item per Valuation
Asset Type (daily, weekly, etc.)
Domestic and Canadian Equities $0.15
(NYSE, OTC)
Options $0.15
Corporate/Government/Agency Bonds $0.50
CMOs $0.80
International Equities and Bonds $0.50
Municipal Bonds $0.80
Money Market Instruments $0.80
Pricing costs are billed monthly.
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