FUND ADMINISTRATION SERVICING AGREEMENT
THIS AGREEMENT is made and entered into as of this ___ day of ______,
2000, by and between Kit Cole Investment Trust, a Delaware business trust
(hereinafter referred to as the "Trust") and Firstar Mutual Fund Services, LLC,
a limited liability company organized under the laws of the State of Wisconsin
(hereinafter referred to as "FMFS").
WHEREAS, the Trust is an open-end management investment company which
is registered under the Investment Company Act of 1940, as amended (the "1940
Act");
WHEREAS, the Trust is authorized to create separate series, each
with its own separate investment portfolio;
WHEREAS, FMFS is a limited liability corporation 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 FMFS to act as Administrator for
each series of the Trust listed on Exhibit A attached hereto, (each hereinafter
referred to as a "Fund"), as may be amended from time to time.
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Trust and FMFS agree as follows:
1. APPOINTMENT OF ADMINISTRATOR
The Trust hereby appoints FMFS as Administrator of the Trust 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. General Fund Management
1. Act as liaison among all Fund service providers
2. Supply:
a. Corporate secretarial services
b. Office facilities (which may be in FMFS's or its
affiliate's own offices)
c. Non-investment-related statistical and research data as
needed
3. Coordinate board communication by:
a. 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
officer liability coverage, and
making the necessary SEC filings relating thereto
e. Preparing minutes of meetings of the board and shareholders
f. Recommend dividend declarations to the Board, prepare and
distribute to appropriate parties notices announcing
declaration of dividends and other distributions to
shareholders
g. Provide personnel to serve as officers of the Trust if so
elected by the Board and attend Board meetings to present
materials for Board review
4. Audits
a. Prepare appropriate schedules and assist independent auditors
b. Provide information to SEC and facilitate audit process
c. Provide office facilities
5. Assist in overall operations of the Fund
6. Pay Fund expenses upon written authorization from the Trust
7. Monitor arrangements under shareholder services or similar plan
B. Compliance
1. Regulatory Compliance
a. Monitor compliance with 1940 Act requirements, including:
1) Asset diversification tests
2) Total return and SEC yield calculations
3) Maintenance of books and records under Rule 31a-3
b. Monitor Fund's compliance with the policies and investment
limitations of the Trust as set forth in its Prospectus and
Statement of Additional Information
c. Maintain awareness of applicable regulatory and
operational service issues and recommend dispositions
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 in all states
b. Monitor status and maintain registrations in each state
c. Provide information regarding material developments in state
securities regulation
3. SEC Registration and Reporting
a. Assist Trust counsel in updating Prospectus and Statement of
Additional Information and in preparing proxy statements and
Rule 24f-2 notices
b. Prepare annual and semiannual reports, Form N-SAR filings and
Rule 24f-2 notices
c. Coordinate the printing, filing and mailing of publicly
disseminated Prospectuses and reports
d. File fidelity bond under Rule 17g-1
e. File shareholder reports under Rule 30b2-1
f. Monitor sales of each Fund's shares and ensure that such
shares are properly registered with the SEC and the
appropriate state authorities
g. File Rule 24f-2 notices
4. IRS Compliance
a. Monitor Trust's status as a regulated investment company
under Subchapter M, including without limitation, 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's Prospectus and
Statement of Additional Information;
2. Prepare financial reports for officers, shareholders, tax
authorities, performance reporting companies, the board, the
SEC, and independent auditors;
3. Supervise the Trust's Custodian and Trust Accountants in the
maintenance of the Trust'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 Trust's net assets and of the Trust's shares, and
of the declaration and payment of dividends and other
distributions to shareholders;
4. Compute the yield, total return and expense ratio of each class
of each Fund, and each Fund's portfolio turnover rate; and
5. Monitor the expense accruals and notify Trust management of any
proposed adjustments.
6. Prepare monthly financial statements, which will include
without limitation the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses
7. Prepare quarterly broker security transaction summaries.
D. Tax Reporting
1. Prepare and file on a timely basis appropriate federal and
state tax returns including, without limitation, Forms
1120/8610 with any necessary schedules
2. Prepare state income breakdowns where relevant
3. File Form 1099 Miscellaneous for payments to trustees and other
service providers
4. Monitor wash losses
5. Calculate eligible dividend income for corporate shareholders
3. COMPENSATION
The Trust, on behalf of the Fund, agrees to pay FMFS for the
performance of the duties listed in this Agreement, the fees and
out-of-pocket expenses as set forth in the attached Exhibit A.
Notwithstanding anything to the contrary, amounts owed by the Trust
to FMFS shall only be paid out of the assets and property of the
particular Fund involved.
These fees may be changed from time to time, subject to mutual
written Agreement between the Trust and FMFS.
The Trust agrees to pay all fees and reimbursable expenses within
ten (10) business days following the receipt of the billing notice.
4. 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
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 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
Trust 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 Trust, 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
Trustees of the Trust.
FMFS 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 the
Trust may sustain or incur or which may be asserted against the
Trust 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 Trust 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. The
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 Trust's Agreement and
Declaration of Trust and agrees that obligations assumed by the
Trust pursuant to this Agreement shall be limited in all cases to
the Trust 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 Trust, nor from
the Trustees or any individual Trustee of the Trust.
5. 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 Trust all records and other information relative to the Trust
and prior, present, or potential shareholders of the Trust (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 Trust, 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 Trust.
6. TERM OF AGREEMENT
This Agreement shall become effective as of the date hereof and
will continue in effect for successive annual periods. 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.
7. 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 Trust 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 Trust 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 Trust
on and in accordance with its request.
8. GOVERNING LAW
This Agreement shall be construed and the provisions thereof
interpreted under and 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 Securities and Exchange Commission thereunder.
9. 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 Trust by written notice to FMFS, FMFS 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 FMFS under this Agreement in a
form reasonably acceptable to the Trust (if such form differs from
the form in which FMFS 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 FMFS's personnel in the
establishment of books, records, and other data by such successor.
10. 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.
11. DATA NECESSARY TO PERFORM SERVICES
The Trust 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 if FMFS is also
acting in another capacity for the Trust, nothing herein shall be
deemed to relieve FMFS of any of its obligations in such capacity.
12. 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
615 East Michigan Street
Milwaukee, WI 53202
and notice to the Trust shall be sent to:
Kit Cole Investment Trust
Attn: Kit Cole
851 Irwin Street
San Rafael, CA 94901
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by a duly authorized officer or one or more counterparts as of the day and year
first written above.
KIT COLE INVESTMENT TRUST FIRSTAR MUTUAL FUND SERVICES, LLC
By:______________________________ By: _______________________________
Attest: __________________________ Attest:____________________________
