FUND ACCOUNTING SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this 20th day of July, 2001,
by and between The Wall Street Fund, Inc., a corporation organized under the
laws of the State of Maryland (the "Corporation") and Firstar Mutual Fund
Services, LLC, a limited liability company organized under the laws of the State
of Wisconsin ("FMFS").
WHEREAS, the Corporation is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Corporation 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 mutual fund accounting services to investment
companies; and
WHEREAS, the Corporation desires to retain FMFS to provide accounting
services to each series of the Corporation listed on Exhibit A attached hereto,
(each hereinafter referred to as a "Fund"), as it may be amended from time to
time.
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Corporation and FMFS agree as follows:
1. Appointment of Fund Accountant
The Corporation hereby appoints FMFS as Fund Accountant of the Corporation
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. Portfolio Accounting Services:
(1) Maintain portfolio records on a trade date+1 basis using security
trade information communicated from the investment manager.
(2) For each valuation date, obtain prices from a pricing source
approved by the Board of Directors of the Corporation and apply
those prices to the portfolio positions. For those securities
where market quotations are not readily available, the Board of
Directors of the Corporation 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,
short-term or long-term; 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 Corporation as to methodology, rate or dollar
amount.
(2) Record payments for Fund expenses upon receipt of written
authorization from the Corporation.
(3) Account for Fund expenditures and maintain expense accrual
balances at the level of accounting detail, as agreed upon by
FMFS and the Corporation.
(4) Provide expense accrual and payment reporting.
C. Fund Valuation and Financial Reporting Services:
(1) Account for Fund share purchases, sales, exchanges, transfers,
dividend reinvestments, and other Fund share activity as reported
by the transfer agent on a timely basis.
(2) Apply equalization accounting as directed by the Corporation.
(3) Determine net investment income (earnings) for the Fund as of
each valuation date. Account for periodic distributions of
earnings to shareholders and maintain undistributed net
investment income balances as of each valuation date.
(4) Maintain a general ledger and other accounts, books, and
financial records for the Fund in the form as agreed upon.
(5) Determine the net asset value of the Fund according to the
accounting policies and procedures set forth in the Fund's
Prospectus.
(6) Calculate per share net asset value, per share net earnings, and
other per share amounts reflective of Fund operations at such
time as required by the nature and characteristics of the Fund.
(7) Communicate, at an agreed upon time, the per share price for each
valuation date to parties as agreed upon from time to time.
(8) Prepare monthly reports that document the adequacy of accounting
detail to support month-end ledger balances.
D. Tax Accounting Services:
(1) Maintain accounting records for the investment portfolio of the
Fund to support the tax reporting required for IRS-defined
regulated investment companies.
(2) Maintain tax lot detail for the investment portfolio.
(3) Calculate taxable gain/loss on security sales using the tax lot
relief method designated by the Corporation.
(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's accounting records
available to the Corporation, the Securities and Exchange
Commission, and the outside auditors.
(2) Maintain accounting records according to the 1940 Act and
regulations provided thereunder
F. FMFS will perform the following accounting functions on a daily basis:
(1) Reconcile cash and investment balances of each Fund with the
Fund's custodian, and provide the Fund's investment adviser with
the beginning cash balance available for investment purposes;
(2) Transmit or mail a copy of the portfolio valuation to the Fund's
investment adviser;
(3) Review the impact of current day's activity on a per share basis,
review changes in market value.
G. In addition, FMFS will:
(1) Prepare monthly security transactions listings;
(2) Supply various Corporation, Fund and class statistical data as
requested by the Corporation on an ongoing basis.
3. Pricing of Securities
For each valuation date, obtain prices from a pricing source selected by
FMFS but approved by the Board of Directors and apply those prices to the
portfolio positions of the Fund. For those securities where market
quotations are not readily available, the Board of Directors of the
Corporation shall approve, in good faith, the method for determining the
fair value for such securities.
If the Corporation desires to provide a price that varies from the pricing
source, the Corporation shall promptly notify and supply FMFS with the
valuation of any such security on each valuation date. All pricing changes
made by the Corporation 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.
4. Changes in Accounting Procedures
Any resolution passed by the Board of Directors of the Corporation that
affects accounting practices and procedures under this Agreement shall be
effective upon written receipt and acceptance by the FMFS.
5. 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 Corporation under this Agreement.
6. 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. The Corporation
agrees to pay all fees and reimbursable expenses within ten (10) business
days following the receipt of the billing notice. Notwithstanding anything
to the contrary, amounts owed by the Corporation to FMFS shall only be paid
out of the assets and property of the particular Fund involved.
7. 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 Corporation
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 Corporation 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 Corporation, 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 Corporation.
FMFS shall indemnify and hold the Corporation 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 Corporation may
sustain or incur or which may be asserted against the Corporation 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 Corporation 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.
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 Corporation's Articles of
Incorporation and agrees that obligations assumed by the Corporation
pursuant to this Agreement shall be limited in all cases to the
Corporation 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 Corporation, nor from
the Directors or any individual Director of the Corporation.
8. 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 Corporation
all records and other information relative to the Corporation and prior,
present, or potential shareholders of the Corporation (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
Corporation, 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
Corporation.
Further, FMFS will adhere to the privacy policies adopted by the
Corporation pursuant to Title V of the Xxxxxx-Xxxxx-Xxxxxx Act (the "Act")
as may be modified from time to time. Notwithstanding the foregoing, FMFS
will not share any nonpublic personal information concerning any of the
Corporation's shareholders to any third party unless specifically directed
by the Corporation or allowed under one of the exceptions noted under the
Act.
9. Term of Agreement
This Agreement shall become effective as of the date hereof and will
continue in effect for a period of two years. Subsequent to the initial
two-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. The attached fee
schedule (exhibit A ) will stay as is for a two year period.
10. 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 Corporation 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 Corporation 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
Corporation on and in accordance with its request.
11. Governing Law
This Agreement shall be construed 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
SEC thereunder.
12. 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
Corporation by written notice to FMFS, FMFS will promptly, upon such
termination and at the expense of the Corporation 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 Corporation (if such form differs from the form in which
FMFS has maintained the same, the Corporation 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.
13. 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.
14. Data Necessary to Perform Services
The Corporation 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. If FMFS is also acting in another
capacity for the Corporation, nothing herein shall be deemed to relieve
FMFS of any of its obligations in such capacity.
15. Notification of Error
The Corporation will notify FMFS of any discrepancy between FMFS and the
Corporation, including, but not limited to, failing to account for a
security position in the fund's portfolio, by the later of: within three
(3) business days after receipt of any reports rendered by FMFS to the
Corporation; within three (3) business days after discovery of any error or
omission not covered in the balancing or control procedure, or within three
(3) business days of receiving notice from any shareholder.
16. 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 Corporation shall be sent to:
Xxxxxx X. Xxxxx
President
Xxxxx, Xxxxxxxx & Company, Inc.
x/x Xxx Xxxx Xxxxxx Fund, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
000-000-0000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by a duly authorized officer on one or more counterparts as of the
day and year first written above.
THE WALL STREET FUND FIRSTAR MUTUAL FUND SERVICES, LLC
By: Xxxxxx X. Xxxxx By: Xxxx Rock
Print: Xxxxxx X. Xxxxx Print: Xxxx Rock
Title: President Title: Senior Vice President
Date: August 6, 2001 Date: July 20, 2001
Attest: _______________________ Attest: _____________________
