FUND ADMINISTRATION SERVICING AGREEMENT
This Agreement is made and entered into on this 30th day of August, 1999 by
amd between Battery Park Funds, Inc. (hereinafter referred to as the "Fund") and
Firstar Mutual Fund Services, LLC, a corporation organized under the laws of the
State of Wisconsin (hereinafter referred to as "FMFS").
WHEREAS, The Fund is an open-ended management investment company which is
registered under the Investment Company Act of 1940;
WHEREAS, FMFS 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 Fund and FMFS do mutually promise and agree as follows:
I. Appointment of Administrator
The Fund hereby appoints FMFS as Administrator of the Fund 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.
II. Duties and Responsibilities of FMFS
A. General Fund 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 Fund
a. Attendance at board meeting
b. Preparation of Minutes of board meetings
B. Compliance
1. Regulatory Compliance
a. Monitor at least quarterly 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. Monitor no less frequently than annually Fund's
compliance with the policies and investment
limitations of the Fund as set forth in its prospectus
and statement of additional information
c. Monitor at least semiannually fidelity bond coverage
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
Fund so as to enable the Fund to make a continuous
offering of its shares
b. Monitor status and maintain registrations in each state
3. SEC Registration and Reporting
a. Assisting Fund's counsel in updating prospectus and
statement of additional information; and in preparing
proxy statements, and preparing and filing Rule 24f-2
notices,
b. Prepare and file 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. Calculate required distributions (including excise
tax distributions)
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 Fund's Custodian and Fund Accountants in the
maintenance of the Fund's general ledger and in the
preparation of the Fund'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 Fund agrees to pay FMFS 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 Fund and FMFS. If the Fund elects to terminate
this Agreement prior to the 3rd anniversary of this Agreement for
reasons other than unacceptable service levels, the Fund agrees to
reimburse Agent for the difference between the standard fee schedule
and the discounted fee schedule agreed to between the parties from the
date of termination.
The Fund 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 Battery Park Fund, Inc. establishes one or more
series of shares with respect to which it desires to have FMFS render
fund administration services, under the terms hereof, it shall so \
notify FMFS in writing, and if FMFS 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 FMFS on a
discrete basis. The funds currently covered by this Agreement are:
Battery Park High Yield Fund
V. 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 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 FMFS's control, except a loss
resulting from 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, the Fund 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 (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 Fund, 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 Fund.
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 Fund 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 Fund may
be asked to indemnify or hold FMFS harmless, the Fund shall be fully
and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that FMFS will use all
reasonable care to notify the Fund promptly concerning any situation
which presents or appears likely to present the probability of such a
claim for indemnification against the Fund. The Fund shall have the
option to defend FMFS against any claim which may be the subject of
this indemnification. In the event that the Fund so elects, it will so
notify FMFS and thereupon the Fund shall take over complete defense of
the claim, and FMFS shall in such situation initiate no further legal
or other expenses for which it shall seek indemnification under this
section. FMFS shall in no case confess any claim or make any compromise
in any case in which the Fund will be asked to indemnify FMFS except
with the Fund's prior written consent.
C. FMFS shall indemnify and hold the Fund 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 Fund 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.
VI. Confidentiality
FMFS shall handle, in confidence, all information relating to the
Fund's business which is received by FMFS during the course of
rendering any service hereunder.
VII. Data Necessary to Perform Service
The Fund or its agent, which may be FMFS, shall furnish to FMFS 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 on August 30, 1999 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. It is understood and agreed to by the
parties that a notice to terminate one of the servicing contacts
constitutes notice of termination for all servicing contracts that
exist between the parties.
IX. 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
Fund by written notice to FMFS, FMFS 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 FMFS under this Agreement in a form reasonably
acceptable to the Fund (if such form differs from the form in which
FMFS has maintained, the Fund 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 FMFS's personnel in the establishment of books, records, and other
data by such successor.
FIRSTAR MUTUAL FUND SERVICES, LLC YEAR 2000 READINESS DISCLOSURE
FMFS represents to the Fund that the computer software, computer
firmware, computer hardware (whether general or special purpose) and
other similar related items of automated, computerized and/or software
systems that are owned or licensed by FMFS and will be utilized by FMFS
or its agents in connection with the provision of services described in
this Agreement are "Year 2000 compliant" (as defined below). As used in
this Section X of this Agreement, the term "Year 2000 compliant" shall
mean the ability of the relevant system to provide all of the following
functions:
A. Process date information before, during and after January 1, 2000,
including but not limited to accepting specific input data, providing
date specific output data, and performing calculations on dates or
portions of dates;
B. Function accurately and without interruption or malfunction before,
during and after January 1, 2000, without any change in operations
associated with the advent of the new millennium and assuming no other
defects, bugs, viruses or other problems unrelated to Year 2000
compliance issues which disrupt functionality;
C. Respond to two-digit, year-date input in a way that resolves the
ambiguity as to century and in a disclosed, defined and predetermined
manner; and
D. Store and provide output data of specific information in ways that
are unambiguous as to century.
XI. Choice of Law
This Agreement shall be construed in accordance with the laws of the
State of Wisconsin.
XII. 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 Fund shall be sent to:
Battery Park Funds, Inc.
Attn: President
2 World Financial Xxxxxx, Xxxx. X
Xxx Xxxx, XX 00000-0000
XIII. 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 Fund 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. 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 Fund
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 Fund on and in accordance with its request.
Battery Park Funds, Inc. Firstar Mutual Fund Services, LLC
By: /S/ XXXXXX XXXXXX By: /S/ XXXX ROCK
------------------------ -------------------------------
Print:XXXXXX XXXXXX Print: XXXX ROCK
------------------------ -------------------------------
Title: PRESIDENT Title: SENIOR VICE PRESIDENT
------------------------ -------------------------------
Date: AUGUST 27, 1999 Date: SEPTEMBER 1, 1999
------------------------ -----------------------------
Attest: /S/ XXXXXX XXXX Attest: /S/ XXXXXXX XXXXXX, XX.
------------------------ -------------------------------
Print: XXXXXX XXXX Print: XXXXXXX XXXXXX, XX.
------------------------ -------------------------------
