FUND ACCOUNTING SERVICING AGREEMENT
This contract between T.O. Xxxxxxxxxx Trust, a Massachussetts business trust,
hereinafter called the "Trust," and Firstar Trust Company, a Wisconsin
corporation, hereinafter called "FTC," is entered into on this __ day of _______
1998.
WHEREAS, the Trust is an open-end management investment company registered under
the Investment Company Act of 1940; and
WHEREAS, FTC 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. FTC 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.
(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 FTC 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 FTC 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 FTC 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
FTC.
4. Changes in Equipment, Systems, Service, Etc. FTC 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.
5. Compensation. FTC 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. FTC shall exercise reasonable care in the performance of its duties
under this Agreement. FTC 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 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 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 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 (i) in
accordance with the foregoing standards, or (ii) in 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 Trustees of the
Trust.
In the event of a mechanical breakdown or failure of
communication or power supplies beyond its control, FTC shall
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 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.
Regardless of the above, FTC 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
Trust may be asked to indemnify or hold FTC harmless, the Trust
shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further
understood that FTC 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 FTC against any claim
which may be the subject of this indemnification. In the event
that the Trust so elects, it will so notify FTC and thereupon the
Trust shall take over complete defense of the claim, and FTC
shall in such situation initiate no further legal or other
expenses for which it shall seek indemnification under this
section. FTC shall in no case confess any claim or make any
compromise in any case in which the Trust will be asked to
indemnify FTC except with the Trust's prior written consent.
C. FTC 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 FTC as a result of FTC's refusal or
failure to comply with the terms of this Agreement, its bad
faith, negligence, or willful misconduct.
7. 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 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. FTC
agrees that all 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 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. FTC shall handle in confidence all information
relating to theTrusts' business which is received by FTC during the
course of rendering any service hereunder.
9. Data Necessary to Perform Services. The Trust or its agent, which may be
FTC, shall furnish to FTC 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 FTC of any balancing or
control error caused by FTC within three (3) business days after receipt
of any reports rendered by FTC 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 FTC render
accounting services, under the terms hereof, it shall so notify FTC in
writing, and if FTC 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 FTC 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 FTC's duties or
responsibilities hereunder is designated by the Fund by written notice
to FTC, FTC 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 FTC under
this Agreement in a form reasonably acceptable to the Fund (if such
form differs from the form in which FTC 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 FTC'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 FTC 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.
IN WITNESS WHEREOF, the due execution hereof on the date first above
written.
ATTEST: Firstar Trust Company
____________________________ By__________________________
ATTEST: T.O. Xxxxxxxxxx Trust
_____________________________ By___________________________
