FUND ADMINISTRATION 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 which
is 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 fund administration services for the benefit of
its customers; and
WHEREAS, the Corporation desires to retain FMFS to act as Administrator for
each series of the Corporation 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
Corporation and FMFS agree as follows:
1. Appointment of Administrator
The Corporation hereby appoints FMFS as Administrator 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. 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. Establish 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 Corporation 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 Corporation
(7) Monitor arrangements under shareholder services or similar plan
B. Compliance
(1) Regulatory Compliance
a. Monitor compliance with 1940 Act requirements, including:
(i) Asset diversification tests
(ii) Total return and SEC yield calculations
(iii) Maintenance of books and records under Rule 31a-3
(iv) Code of Ethics for the disinterested Directors of the
Fund
b. Monitor Fund's compliance with the policies and investment
limitations of the Corporation 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 Corporation so
as to enable the Corporation 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 Corporate 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 Company's status as a regulated investment company
under Subchapter M, including without limitation, review of
the following:
(i) Asset diversification requirements
(ii) Qualifying income requirements
(iii) 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 Corporation's Custodian and Fund Accountants in the
maintenance of the Corporation'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 Corporation's net assets and of the
Corporation'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 Corporation 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 Directors and other
service providers
(4) Monitor wash losses
(5) Calculate eligible dividend income for corporate shareholders
3. Compensation
The Corporation, 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 Corporation
to FMFS shall only be paid out of the assets and property of the particular
Fund involved.
Thesefees may be changed from time to time, subject to mutual written
Agreement between the Corporation and FMFS.
The Corporation 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 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.
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 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.
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 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 ▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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.
6. 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.
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 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.
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
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 Corporation 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 Corporation 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 Corporation, 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
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and notice to the Corporation shall be sent to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Inc.
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Fund, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
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.
THE WALL STREET FUND FIRSTAR MUTUAL FUND SERVICES, LLC
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: ▇▇▇▇ Rock
Print: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Print: ▇▇▇▇ Rock
Title: President Title: Senior Vice President
Date: August 6, 2001 Date: July 20, 2001
Attest:___________________________ Attest:__________________________
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