FUND ADMINISTRATION SERVICING AGREEMENT
This agreement is made and entered into on this _____ day of __________1998, by
and between T.O. Xxxxxxxxxx Trust, a Massachusetts business trust (the "Trust")
created pursuant to that certain Declaration of Trust of the Trust dated June 2,
1998, as amended from time to time (the "Declaration") 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 (the "Investment Company
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; and
WHEREAS, the Trust desires to retain First Star to provide fund administration
services of the Trust's operations in respect of the T.O. Xxxxxxxxxx Sector
Rotation Fund, and such additional funds which the Trust may establish from time
to time, subject to the control of the Board of Trustees of the Trust.
NOW, THEREFORE, the Trust and FTC do mutually promise and agree as follows:
I. Appointment of Administrator
The Trust hereby appoints FTC as Administrator of the Trust 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.
FTC shall provide such services subject to the control of the Board of
Trustees of the Trust and in compliance with such policies as the
Trustees may from time to time establish, and in compliance with the
policies and limitations for the Trust set forth in the Trust's
Prospectus and Statement of Additional Information, in each case as
amended from time to time, and applicable laws and regulations.
II. Duties and Responsibilities of FTC
A. General Trust Management
1. Act as liaison among all fund service providers
2. Coordinate board communication by:
a. Assisting fund counsel in establishing 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 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
B. Compliance
1. Regulatory Compliance
a. Periodically monitor compliance with Investment Company
Act of 1940 requirements
1) Asset diversification tests
2) Total return and SEC yield calculations
3) Maintenance of books and records under Rule 31a-3
4) Code of Ethics
b. Periodically monitor the Trust's compliance
with the policies and investment limitations
of the Trust as set forth in its prospectus
and statement of additional information
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 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 the 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 the Trust's status as a
regulated investment company under
Subchapter M of the Internal Revenue Code
through review of the following:
1) Asset diversification requirements
2) Qualifying income requirements
3) Distribution requirement
b. Calculate required distributions (including excise tax
distributions)
C. Financial Reporting
1. Provide financial data required by the Fund Prospectus
and Statement of Additional Information
2. Prepare financial reports for shareholders, the Board
of Trustees of the Trust, the SEC, and independent
auditors
3. Supervise the Trust's Custodian and the Fund's
Accountants in the maintenance of the Fund'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 Trust's net assets and of the
Trust'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 agrees to pay FTC for performance of the duties listed in
this Agreement and the fees and 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 and FTC.
The Trust agrees to pay all fees and reimbursable expenses within ten
(10) business days following the mailing of the billing notice.
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 T.O. Xxxxxxxxxx Company Sector
Rotation Fund.
V. Year 2000 Compliance: Performance of Service; Limitation of Liability;
Indemnification
A. FTC has (i) undertaken a detailed review and assessment of all
areas within its business and operations that could be adversely
affected by the "Year 200 Problem" (that is, the risk that
computed applications used by FTC may be unable to recognize and
perform properly date-sensitive functions involving certain dates
prior to and any date after December 31, 1999, but before
December 31, 1999), (ii) developed a detailed plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii)
to date, implemented that plan in accordance with the timetable.
FTC reasonably anticipates that all computer applications that
are material to its business and operations, including, among
other things, providing fund administration services for the
benefit of its customers, will on a timely basis be able to
perform properly date-sensitive functions for all dates before
and after January 1, 2000, (that is, to be "Year 2000
compliant"). FTC has made inquiry of each of its key suppliers
and vendors as to whether such persons will on a timely basis be
Year 2000 compliant in all material respects and on the basis of
that inquiry believes that all such persons will be so compliant.
For purposes hereof, "key suppliers and vendors" refers to those
suppliers and vendors of FTC the business failure of which would,
with reasonable probability, be expected to have a material
adverse effect or from which a substantial amount of information
and data is obtained and entered into FTC's computed
applications.
FTC shall exercise reasonable care in the performance of its
duties under this Agreement. FTC shall not be liable for any
error of judgement 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.
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 note to FTC.
Regardless of the above, FTC reserves the right to reprocess
and correct administrative errors at its own expense.
B. 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 (set forth in paragraph B of this Section V), 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 except to the extent that any claims,
demands, losses, expenses, and liabilities are found by a
court of competent jurisdiction in a judgement which has
become final in that it is no longer subject to appeal or
review to have resulted primarily from FTC's bad faith,
negligence or willful misconduct on its part in the
performance of its duties under this Agreement and except as
may otherwise be provided under provisions of
applicable state law or federal securities laws which cannot
be waived or modified hereby. 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' fees)
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.
VI. Confidentiality
FTC shall handle, in confidence, all information relating to the
Trust'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 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 internal laws
of the State of Wisconsin, without regard to conflict of law
principles; provided, however, that nothing herein shall be construed
as being inconsistent with the Investment Company Act.
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 as
follows: Notice to FTC shall be sent to Firstar Trust Company Mutual
Trust Services, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000,
Attn:_____________, and notice to the Trust shall be sent to T.O.
Xxxxxxxxxx Trust, Two Bridgewater Road, Farmington, CT 06032-2256,
Attn: Xxxxxx Xxxxxx, Jr., President.
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, 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
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.
T. O. XXXXXXXXXX TRUST FIRSTAR TRUST COMPANY
By: _______________________ By: __________________________
Attest: ____________________ Attest: ________________________
