FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of ______, 2001,
by and between Gintel Fund, a Massachusetts business trust under the laws of the
State of Massachusetts (the "Fund") and Firstar Mutual Fund Services, LLC, a
limited liability company organized under the laws of the State of Wisconsin
("FMFS").
WHEREAS, the Fund is an open-end management investment company which is
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Fund is authorized to create separate series, each with its
own separate investment portfolio;
WHEREAS, FMFS is a limited liability company and, among other things, is in
the business of providing fund administration services for the benefit of its
customers; and
WHEREAS, the Fund desires to retain FMFS to act as Administrator for each
series of the Fund listed on Exhibit A attached hereto, (each hereinafter
referred to as a "Fund"), as may be amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Fund and FMFS agree as follows:
1. Appointment of Administrator
The Fund hereby appoints FMFS as Administrator 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. 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. Establish 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. Recommend dividend declarations to the Board, 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 Fund if so elected by
the Board and attend Board meetings to present materials for Board
review
(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 Fund
(7) Monitor arrangements under shareholder services or similar plan
B. Compliance
(1) Regulatory Compliance
a. Monitor compliance with 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 Directors of the Fund
b. Monitor Fund's compliance with the policies and investment
limitations of the Fund 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 Fund so as to enable
the Fund 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 Prospectus and Statement of
Additional Information 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 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 Company'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 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 Fund's Custodian and Fund Accountants in the maintenance
of the Fund'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 Fund's net
assets and of the Fund'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 Fund, and each Fund's portfolio turnover rate; and
(5) Monitor the expense accruals and notify Fund management of any
proposed adjustments.
(6) Prepare monthly financial statements, which will include without
limitation the following items: - Schedule of Investments - Statement
of Assets and Liabilities - Statement of Operations - Statement of
Changes in Net Assets - Cash Statement - 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 Directors and other
service providers
(4) Monitor wash losses
(5) Calculate eligible dividend income for corporate shareholders
3. Compensation
The Fund, on behalf of the Fund, agrees to pay FMFS for the performance of
the duties listed in this Agreement, the fees and out-of-pocket expenses as set
forth in the attached Exhibit A. Notwithstanding anything to the contrary,
amounts owed by the Fund to FMFS shall only be paid out of the assets and
property of the particular Fund involved.
These fees may be changed from time to time, subject to mutual written
Agreement between the Fund and FMFS.
The Fund 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 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 Directors 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.
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.
C. FMFS is hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Fund's Articles of InFund
and agrees that obligations assumed by the Fund pursuant to this
Agreement shall be limited in all cases to the Fund and its assets,
and if the liability relates to one or more series, the obligations
hereunder shall be limited to the respective assets of such series.
FMFS further agrees that it shall not seek satisfaction of any such
obligation from the shareholder or any individual shareholder of a
series of the Fund, nor from the Directors or any individual Director
of the Fund.
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 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.
6. Term of Agreement
This Agreement shall become effective as of the date hereof and will
continue in effect for a period of three years. Subsequent to the initial
three-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 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.
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 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 Fund 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 of, or for the account of the other party to this Agreement.
11. 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 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.
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 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 & Co., LLC
0 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxx, XX 00000-0000
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.
Gintel Group FIRSTAR MUTUAL FUND SERVICES, LLC
By:______________________________ By: ________________________________
Title:__________________________ Title:______________________________
Fund Administration and Compliance
Annual Fee Schedule
Exhibit A
Separate Series of _______________
Name of Series Date Added
--------------------------------------------------------------------------------
Annual fee based upon fund group assets:
7 basis points on the first $200 million 6 basis points on the next
$500 million 4 basis points on the balance Minimum Annual Fee:
$40,000 first fund
$30,000 each additional fund
NAV/Fund Data Feeds
$50 per class per month
Daily Fund/Class Performance
$100 per class per month
(with Firstar as Fund Accountant)
Extraordinary services quoted separately.
Plus out-of-pocket expense reimbursements, including but not limited to:
Postage
Programming
Stationery
Proxies
Retention of records
Special reports
Federal and state regulatory filing fees
Certain insurance premiums
Expenses from Board of Directors meetings
Auditing and legal expenses
All other out-of-pocket expenses
Fees and out-of-pocket expense reimbursements are billed monthly
