Exhibit 9.2
-----------
FUND ADMINISTRATION SERVICING AGREEMENT
This Agreement is made and entered into on this 1st day of December,
1995, by and between O.R.I Funds, Inc. (the "Company"), on behalf of O.R.I.
Growth Fund (hereinafter referred to as the "Fund"), and Firstar Trust
Company, a corporation organized under the laws of the State of Wisconsin
(hereinafter referred to as "FTC").
WHEREAS, The Company is an open-ended management investment company
which is registered under the Investment Company Act of 1940;
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;
NOW, THEREFORE, the Company and FTC do mutually promise and agree as
follows:
I. Appointment of Administrator
The Company hereby appoints FTC as Administrator of the Company 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.
II. Duties and Responsibilities of FTC
As Administrator, and subject to the supervision and control of the
Company's Board of Directors, FTC will provide facilities, equipment,
and personnel to carry out the following administrative services for
operation of the business and affairs of the Company:
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. Preparing minutes of meetings of the Board and
shareholders
d. Evaluating independent auditor
e. Securing and monitoring fidelity bond and director and
officers liability coverage, and making the necessary SEC
filings relating thereto
3. Maintain the Fund's governing documents, including the
Articles of Incorporation, the By-laws, and the minute book
4. Audits
a. Prepare appropriate schedules and assist independent
accountants
b. Provide information to SEC and facilitate audit process
c. Provide office facilities
5. Advise the Fund and its Board on matters concerning the Fund
and its affairs
6. Assist in overall operations of the Fund
B. Compliance
1. Regulatory Compliance
a. Monitor compliance with Investment Company Act of 1940
requirements
1) Asset diversification tests
2) Performance data calculations
3) Maintenance of books and records under Rule 31a-3
4) Code of ethics
b. Monitor Fund's compliance with the policies and investment
limitations of the Fund as set forth in the Prospectus,
Statement of Additional Information, By-laws, and Articles
of Corporation
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 registration 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 Rule 24F-2 notices
b. Prepare annual and semiannual reports
c. Coordinate the layout and printing of publically
disseminated prospectuses and reports
4. IRS Compliance
a. 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. Monitor short short testing
c. 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 independent 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 Company, on behalf of the Fund, 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 Company and FTC.
The Company agrees to pay all fees and reimbursable expenses within
ten (10) business days following the mailing of the billing notice.
IV. Performance of Service; Limitation of Liability
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 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 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 or reckless disregard by it
of its obligations and duties under this Agreement. Notwithstanding
any other provision of this Agreement, the Fund 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
Fund, 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 Directors of the Fund.
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 provisions for emergency
use of electrical data processing equipment to the extent appropriate
equipment is available. Representatives of the Fund 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.
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 FTC harmless, the Fund 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 identify and 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 FTC against any claim which may
be the subject of this indemnification. In the event that the Fund so
elects, it will so notify FTC and thereupon the Fund 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 Fund will be
asked to indemnify FTC except with the Fund's written consent.
FTC 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 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, its reckless disregard of its obligations and duties under
this Agreement, or failure to meet the standard of care as set forth
above.
V. Proprietary and Confidential Information
FTC agrees on behalf of itself and its directors, officers, and
employees to treat confidentially and as proprietary information of
the Fund all records and other information relative to the Fund and
prior, present, or potential shareholders of the Fund (and clients of
said shareholders), and not to use such records and information for
any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing
by the Fund, which approval may not be unreasonably withheld and may
not be withheld where FTC 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 Fund.
VI. Data Necessary to Perform Service
The Fund 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.
VII. 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.
The terms of this Agreement shall not be waived, altered, modified,
amended, or supplemented in any manner whatsoever except by a written
instrument signed by FTC and the Company, on behalf of the Fund.
VIII. 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 Fund shall pay any expenses
associated with transferring the data to such form requested by the
Fund), 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.
IX. 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 Attention ▇▇▇ ▇▇▇▇▇▇▇▇▇,
Firstar Trust Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, and notice to the Company and/or the Fund shall be sent to
Attention ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, O.R.I. Funds, Inc., Suite 1807, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
X. Records
FTC shall keep records relating to the service 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. 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
Fund and will be preserved, maintained, and made available in
accordance 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.
XI. Miscellaneous
The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions
hereof or otherwise affect their construction or effect. If any
provision of this Agreement shall be held invalid by a court or
regulatory agency decision, statute, rule, or otherwise, the remainder
of this Agreement shall not be affected thereby. This Agreement shall
be governed by Wisconsin law; provided, however, that nothing herein
shall be construed in a manner inconsistent with the Investment
Company Act or any rule or regulation promulgated by the SEC
thereunder. This Agreement constitutes the entire Agreement of the
parties hereto.
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.
O.R.I. Funds, Inc. FIRSTAR TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- ---------------------------
Attest: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Attest: /s/ ▇▇▇▇ ▇. Zen
---------------------- -----------------------
7