EXHIBIT 9(A)
FUND ADMINISTRATION SERVICING AGEEMENT
This Agreement is made and entered into on this day of , 1997,
by and between Berkeley Capital Management Funds, a Delaware Business Trust (the
"Trust"), on behalf of Berkeley Capital Management Money Market Fund
(hereinafter referred to as the "Fund") and Firstar Trust Company, a corporation
organized under the laws of the State of Wisconsin (hereinafter referred to as
"FTC").
WHEREAS, The Trust is an open-ended management investment company which is
registered under the Investment Company Act of 1940, as amended (the "Act");
WHEREAS, FTC is a trust company and, among other things, is in the business of
providing fund administration services for the benefit of its customers;
NOW, THEREFORE, the Trust on behalf of the Fund and FTC do mutually promise and
agree as follows:
I. Appointment of Administrator
The Trust hereby appoints FTC as Administrator of the Trust and the Fund on
the terms and conditions set forth in this Agreement, and FTC 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.
II. Duties and Responsibilities of FTC
A. General Trust Management
1. Act as liaison among all Trust service providers
2. Coordinate timely Board communication by:
a. Assisting Trust counsel in establishing Board and Board
Committee meeting agendas, and preparing Board and Board
Committee materials
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 and the Fund
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with applicable Investment
Company Act of 1940 requirements, including
1) Asset diversification tests
2) Total return and SEC yield calculations
3) Maintenance of books and records under Rule 31a-3
4) Rule 2a7 compliance
b. Periodically monitor Fund's compliance with the policies and
investment limitations of the Fund as set forth in its
prospectus and statement of additional information
2. Blue Sky Compliance
a. Timely 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 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 Fund's status as a regulated investment
company under Subchapter M through review of the following:
1) Asset diversification requirements
2) Qualifying income requirements
3) Distribution requirements
b. Monitor short short testing
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c. Calculate required distributions (including excise tax
distributions)
d. Prepare and file state and federal tax returns
C. Financial Reporting
1. Provide financial data required by Fund prospectus and statement
of additional information
2. Prepare financial reports for shareholders, the board, 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 Trust'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
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 on behalf of the Fund agrees to pay FTC for performance of the
duties listed in this Agreement and the fees and reasonable 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 on behalf of the Fund and FTC.
The Trust, on behalf of the Fund, agrees to pay all fees and reimbursable
expenses within ten (10) business days following its receipt of the billing
notice.
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IV. Additional Series
In the event that the Trust establishes one or more series of shares with
respect to which it desires to have FTC render fund administration
services, under the terms hereof, it shall so notify FTC in writing, and if
FTC 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 FTC on a discrete basis. The fund currently covered by
this Agreement is: Berkeley Capital Management Money Market Fund.
V. Performance of Service; Limitation of Liability
A. FTC shall exercise reasonable care in the performance of its
duties under this Agreement and shall comply in all material respects
with all applicable laws and regulations. FTC shall not be liable for
any error of judgment or mistake of law or for any loss suffered by the
Trust or 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 FTC's control, except a
loss resulting from FTC'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 or non-performance of its duties under this
Agreement. Notwithstanding any other provision of this Agreement, the
Trust shall indemnify and hold harmless FTC 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 ("Losses") which FTC may sustain or incur or
which may be asserted against FTC by any person arising out of any action
taken or omitted to be taken by it in performing the services hereunder,
and against any and all Losses resulting from FTC's reasonable and good
faith reliance upon any written or oral instruction provided to FTC by
any duly authorized officer of the Trust, such duly authorized officer to
be included in a list of authorized officers furnished to FTC and as
amended from time to time in writing by resolution of the Board of
Directors of the Trust; provided that this indemnification provision
shall not apply to any claim, demand, loss, expense, or liability that is
a result of FTC's willful misfeasance, bad faith, or negligence in the
performance of its duties hereunder, or FTC's reckless disregard of its
obligations and duties under this Agreement.
In the event of a mechanical breakdown or failure of communication or
power supplies beyond its control, FTC shall promptly take all reasonable
steps to minimize service interruptions for any period that such
interruption continues beyond FTC's control. FTC will make every
reasonable effort promptly to restore any lost or damaged data and correct
any errors resulting from such a breakdown at the expense of FTC. FTC
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 FTC's
premises and operating capabilities at any time during regular business
hours of FTC, upon reasonable notice to FTC.
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Regardless of the above, FTC reserves the right to reprocess and
correct administrative errors at its own expense; provided that FTC
provides notice to the Trust of all such errors, other than de minimus
errors, and its intent to reprocess and correct such errors, and the
Trust provides its prior approval in writing.
B. In order that the indemnification provisions contained in this
section shall apply, it is understood that if in any case a party to this
Agreement (the "Indemnifying Party") may be asked to indemnify or hold
the other party (the "Indemnified Party") harmless, the Indemnifying
Party shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further understood that
the Indemnified Party will use all reasonable care to notify the
Indemnifying Party promptly concerning any situation which presents or
appears likely to present the probability of such a claim for
indemnification against the Indemnifying Party. The Indemnifying Party
shall have the option to defend the Indemnifying Party against any claim
which may be the subject of this indemnification. In the event that the
Indemnifying Party so elects, it will so notify the Indemnified Party and
thereupon the Indemnifying Party shall take over complete defense of the
claim, and the Indemnified Party shall in such situation initiate no
further legal or other expenses for which it shall seek indemnification
under this section. The Indemnified Party shall in no case confess any
claim or make any compromise in any case in which the Indemnifying Party
will be asked to indemnify the Indemnified Party except with the
Indemnifying Party's prior written consent.
C. FTC shall indemnify and hold the Trust and the Fund, and the
Trust's trustees, officers, and agents, harmless from and against any and
all Losses which the Trust or the Fund may sustain or incur or which may
be asserted against the Trust or the Fund by any person arising out of
any action taken or omitted to be taken by FTC as a result of FTC's
refusal or failure to comply with the terms of this Agreement, its bad
faith, negligence, willful misconduct, or violation of applicable laws or
regulations.
VI. Confidentiality
FTC shall handle, in confidence, all information relating to the Trust's
and the Fund's business which is received by FTC during the course of
rendering any service hereunder.
VII. Data Necessary to Perform Service
The Trust or its agent, which may be FTC, shall furnish to FTC 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
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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
FTC's duties or responsibilities hereunder is designated by the Trust by
written notice to FTC, FTC 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 FTC
under this Agreement in a form reasonably acceptable to the Trust (if
such form differs from the form in which FTC 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 FTC'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 laws of the
State of California. FTC hereby consents to the exclusive jurisdiction,
venue, and forum of any state or federal court in San Francisco,
California with respect to any action, whether commenced by the Trust or
any other party, which, in whole or in part, in any way arises under or
relates to this Agreement. FTC hereby authorizes and accepts service of
process sufficient for personal jurisdiction in any action against it as
contemplated by this paragraph by registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of
notices as set forth in this Agreement, or in the manner set forth in
Section XI of this Agreement for the giving of notice.
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 to FTC at
__________________ or to the Trust or the Fund at 000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 or sent by facsimile
transmission to FTC at __________________________ or to the Trust or the
Fund at (000)000-0000.
XII. Records
FTC 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 of 1940 as amended
(the "Investment Company Act"), and the rules thereunder. FTC agrees
that all such records prepared or maintained by FTC relating to the
services to be performed by FTC hereunder are the property of the Trust
and will be preserved, maintained, and made
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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 of Declaration of Trust.
FTC agrees that the Trust's obligations under this Agreement shall be
limited to the Fund and its assets, and that FTC shall not seek
satisfaction of any such obligation from the shareholders of the Trust
nor from any Trustee, officer, employee, or agent of the Trust.
XIV. Compliance with Applicable Law.
FTC represents, warrants, and covenants that it will comply in all
material respects with all applicable laws and regulations, including
but not limited to the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder, in performing its duties under this
Agreement.
XV. Attorneys' Fees
If any party to this Agreement seeks to enforce its rights under this
Agreement or construe any provision of this Agreement by legal
proceedings or otherwise, the non-prevailing party in such proceedings
shall pay all reasonable costs and expenses incurred by the prevailing
party (who shall be the party who obtains substantially the relief sought
by such party, whether by settlement, compromise, or judgment), including
without limitation court costs and all reasonable attorneys' fees.
BERKELEY CAPITAL MANAGEMENT FIRSTAR TRUST COMPANY
FUNDS
By: By:
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Xxxxxxx X. Xxxxxx
President and
Principal Executive Officer
Attest: Attest:
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EXHIBIT A
BERKELEY CAPITAL MANAGEMENT MONEY MARKET FUND
FUND ADMINISTRATION AND COMPLIANCE SERVICE
MONEY MARKET FUND FEE SCHEDULE
Fund Administration Annual Fee (based upon fund assets)
$80,000 up to $500 million
3 basis points on the balance
Plus out-of-pocket expenses, 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 are billed monthly
