FUND SERVICING AGREEMENT
This Agreement is made as of January 6, 2004, by and between SBK-Xxxxxx
Investment Corp. ("SBK-Xxxxxx"), an Ohio corporation located at 000 Xxxxxxxx
Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx and Trias Capital Management, Inc.
("Trias"), an Illinois corporation located at 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx.
WHEREAS, Trias is the investment adviser to Millennium Income Trust (the
"Fund"), an open-end registered investment company; and
WHEREAS, SBK-Xxxxxx is offering to its clients various investment programs
pursuant to which its clients will purchase shares of mutual funds at net asset
value without the imposition of initial or contingent deferred sales charges;
and
WHEREAS, Trias desires to have SBK-Xxxxxx perform certain recordkeeping,
shareholder communication, and other services on behalf of its clients who
invest in the Fund;
NOW THEREFORE, in consideration of the foregoing and the mutual promises
set forth below, the parties agree as follows:
1. SERVICES
a. SBK-Xxxxxx agrees to perform certain services for its Clients as more
particularly set forth below.
b. SBK-Xxxxxx represents and warrants that it has and will continue at all
times to maintain necessary facilities, equipment and personnel to perform its
services hereunder and to comply with applicable laws, rules and regulations
including the maintenance and preservation of all required records and
registrations.
c. SBK-Xxxxxx represents and warrants that its Clients are aware that they
are transacting business with SBK-Xxxxxx and not Trias, and that they will look
only to SBK-Xxxxxx and not to Trias or the Fund for resolution of problems or
discrepancies in their accounts.
d. SBK-Xxxxxx agrees that it will establish with the Fund one or more
omnibus accounts registered in the Fund's name for the exclusive benefit of its
customers who are shareholders in the Fund, and will perform various services
for the shareholders in those accounts, including without limitation:
establishing and maintaining records of shareholders' accounts; processing
purchase and redemption transactions; confirming shareholder transactions;
answering routine client inquiries regarding the Fund; providing assistance to
shareholders in effecting changes to their dividend options, account
designations and addresses; withholding taxes on non-resident alien accounts;
disbursing income dividends and capital gains distributions; reinvesting
dividends and distributions; preparing and delivering to shareholders, and state
and federal authorities including the Internal Revenue Service, such information
respecting dividends and distributions paid by the Fund as may be required by
law, rule or regulation; withholding on dividends and distributions as may be
required by state or Federal authorities from time to time; and such other
services as the Fund may reasonably request.
e. SBK-Xxxxxx shall maintain all historical shareholder records consistent
with requirements of all applicable laws, rules and regulations. Upon request of
Trias, SBK-Xxxxxx shall provide copies of written communications regarding the
Fund to or from such shareholders. SBK-Xxxxxx shall upon request make available
to Trias such records or communications as may be necessary to determine the
number of shareholders in each Fund omnibus account. If, at any time, Trias
determines SBK-Xxxxxx' practices, procedures or controls to be inadequate,
written notice of such inadequacy shall be given to SBK-Xxxxxx, and SBK-Xxxxxx
shall have fifteen (15) days plus any additional time as provided by Trias to
correct such inadequacy. In the event such inadequacy is not corrected by
SBK-Xxxxxx, Xxxxx shall have the right to immediately terminate this Agreement.
Nothing in this Agreement shall impose upon Trias the obligation to review
SBK-Xxxxxx' practices, procedures and controls.
f. The official records of transactions of SBK-Xxxxxx' omnibus account and
the number of shares in the account shall be as determined by the Fund.
SBK-Xxxxxx shall bear responsibility for any discrepancies between its omnibus
accounts and its clients' accounts and for the maintenance of all records
regarding its clients, its clients' transactions, and its clients' interests in
the omnibus accounts.
g. SBK-Xxxxxx assumes sole responsibility for reconciliation of customer
accounts with its omnibus account at the Fund. Trias agrees to assist SBK-Xxxxxx
with such reconciliation where necessary.
h. The Fund shall have sole authority and responsibility for countersigning
securities of the Fund, monitoring the issuance of securities of the Fund with a
view to preventing unauthorized issuance, registering the transfer of securities
of the Fund, exchanging or converting securities of the Fund or transferring
record ownership of securities of the Fund by bookkeeping entry without physical
issuance of securities certificates of the Fund.
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2. FEES
a. For performance of the services described herein, SBK-Xxxxxx may receive
a fee (the "Fee"), which will be paid at the end of each quarter at the annual
rate of .10% applied to the average aggregate daily net asset value of shares of
the Fund in the accounts for which SBK-Xxxxxx provides services. Fees are solely
for shareholder servicing and other administrative services provided by
SBK-Xxxxxx and do not constitute payment in any manner for investment advisory,
distribution, trustee, or custodial services.
b. In computing SBK-Xxxxxx' fee, one-fourth of the applicable fee rate
shall be applied to the average aggregate daily net asset value of shares of the
Fund in accounts for which SBK-Xxxxxx provides services during the quarter in
question. For the quarter in which this Agreement becomes effective or
terminates, there shall be an appropriate proration based on the number of days
that the Agreement is in effect during the quarter.
c. Except as otherwise agreed in writing with Trias with respect to
specific expenditures by Trias, SBK-Xxxxxx shall bear sole responsibility for
all costs and expenses of providing services under this Agreement.
3. TRANSACTION CHARGES
SBK-Xxxxxx shall not, during the term of this Agreement, assess against, or
collect from, its clients, any transaction fee upon the purchase or redemption
of the Fund's shares that meet the minimum purchase criteria set forth in the
Fund's prospectus.
4. RELATIONSHIP OF PARTIES
a. The relationship between SBK-Xxxxxx and Xxxxx shall be that of
independent contractors and neither party shall be or represent itself to be an
agent, employee, partner or joint venturer of the other, nor shall either party
have or represent itself to have any power or authority to act for, bind or
commit the other.
b. The parties acknowledge and agree that the services under this Agreement
are recordkeeping, shareholder communication, and related services only and are
not the services of an underwriter or a principal underwriter within the meaning
of the Securities Act of 1933, as amended, or the 1940 Act. This Agreement does
not grant SBK-Xxxxxx any right to purchase shares as a principal from the Fund,
nor does it constitute SBK-Xxxxxx an agent of the Fund for purposes of selling
shares of the Fund to any dealer or to the public. To the extent SBK-Xxxxxx is
involved in the purchase of shares of the Fund by its clients, such involvement
will be as agent of such clients only.
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6. INDEMNIFICATION
a. SBK-Xxxxxx shall indemnify and hold harmless Trias, the Fund, and their
trustees, directors, officers, employees, and agents (hereinafter "Indemnified
Parties") from and against any and all losses, claims, liabilities and expenses
(including, but not limited to, reasonable attorneys' fees) incurred by any of
them and arising as a result of: (i) SBK-Brook's dissemination of information
regarding the Fund that is materially incorrect and that was not provided to
SBK-Xxxxxx by the Fund, or approved by the Fund, its affiliated persons (as
defined in the Investment Company Act of 1940, as amended (the "1940 Act")) or
agents; or (ii) SBK-Xxxxxx' willful misconduct or gross negligence in the
performance of, or failure to perform, its obligations under this Agreement,
except to the extent the losses are a result of the negligence, willful
misconduct, or breach of this Agreement by an Indemnified Party.
x. Xxxxx hereby agrees to indemnify SBK-Xxxxxx against any and all losses,
claims, damages and liabilities to which SBK-Xxxxxx may become subject as a
result of any untrue statement of a material fact contained in the Fund's
prospectus or statement of additional information, as amended or supplemented
from time to time, or the omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading.
c. In any event, neither party shall be liable for any special,
consequential or incidental damages.
7. INFORMATION TO BE PROVIDED
Trias shall provide to SBK-Xxxxxx, prior to the effectiveness of this
Agreement, or as soon thereafter as possible, a copy of the Fund's current
prospectus and statement of additional information. Trias shall provide
SBK-Xxxxxx with written copies of any amendments to, or changes in such
documents as soon as possible after such amendments or changes become available.
Trias shall additionally provide SBK-Xxxxxx with reasonable supplies of
prospectuses upon request.
8. NOTICES
All notices required under this Agreement must be in writing and delivered
either personally or via first class mail. Such notices will be deemed to be
received as of the date of actual receipt, or three (3) days after deposit in
the United States mail, whichever is earlier.
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All such notices shall be made, if to SBK-Xxxxxx, to: SBK-Xxxxxx Investment
Corp., 000 Xxxxxxxx Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000; if to Trias,
to: Trias Capital Management, Inc., 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxxxxx
00000.
9. NONEXCLUSIVITY
Each party acknowledges that the other may enter into agreements, similar
to this one, with other parties, for the performance of services similar to
those to be provided under this Agreement, unless otherwise agreed to in writing
by the parties.
10. SEVERABILITY
If any provision of this Agreement should be invalid, illegal or in
conflict with any applicable state or federal law or regulation, such law or
regulation shall control, to the extent of such conflict, without affecting the
remaining provisions of this Agreement.
11. LICENSES
SBK-Xxxxxx represents and warrants that it is a corporation duly organized
under the laws of the State of Ohio and has the requisite authority to enter
into this Agreement and to carry out the services contemplated herein.
12. ENTIRE AGREEMENT; AMENDMENT
This Agreement, including any exhibits attached hereto, constitutes the
entire agreement between the parties with regard to the subject matter herein.
Additionally, these materials supersede any and all agreements, representations
and warranties, wither written or oral, made prior to the execution of this
Agreement. This Agreement and the exhibits attached hereto may be amended only
by a writing signed by both parties.
13. TERM AND TERMINATION
This Agreement shall become effective as of the date it is accepted by
SBK-Xxxxxx and will continue in effect until terminated in writing upon sixty
(60) days prior notification by either party to the other; provided, that
SBK-Xxxxxx shall be entitled to receive all Fees it has earned up to and
including the effective date of the termination.
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14. ASSIGNABILITY
This Agreement is not assignable by either party without the other party's
prior written consent. Any attempted assignment in contravention hereof shall be
null and void; provided, however, that SBK-Xxxxxx may assign its rights and
obligations under this Agreement to any affiliate of SBK-Xxxxxx.
15. GOVERNING LAW
This Agreement shall be governed by, and interpreted in accordance with the
laws of the State of Illinois, without reference to conflicts of law provisions
thereof.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
the day and year first above written.
SBK-Xxxxxx Investment Corp. Trias Capital Management Inc.
By: _____________________________ By: __________________________
Name: Xxxx Xxxxx Name: Xxxxx X. Xxxxxxxxxxx, Xx.
Title: President & CEO Title: President
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