EXHIBIT (H)(10)
FORM OF FUND ACCOUNTING AGREEMENT
AGREEMENT made as of ______________________, by and between each entity
listed on Exhibit A hereto (each, a "Fund"; collectively, the "Funds"), and The
Bank of New York, a New York banking organization ("BNY").
W I T N E S S E T H :
WHEREAS, each Fund is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, each Fund desires to retain BNY to provide for the portfolios
identified on Exhibit A hereto (each, a "Series") the services described herein,
and BNY is willing to provide such services, all as more fully set forth below;
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, the parties hereby agree as follows:
1. Appointment.
Each Fund hereby appoints BNY as its agent for the term of this
Agreement to perform the services described herein. BNY hereby accepts such
appointment and agrees to perform the duties hereinafter set forth.
2. Representations and Warranties.
Each Fund hereby represents and warrants to BNY, which representations
and warranties shall be deemed to be continuing, that:
(a) It is duly organized and existing under the laws of
the jurisdiction of its organization, with full power to carry on its business
as now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and
delivered by the Fund in accordance with all requisite action and constitutes a
valid and legally binding obligation of the Fund, enforceable in accordance with
its terms;
(c) It is conducting its business in compliance with all
applicable laws and regulations, both state and federal, and has obtained all
regulatory licenses, approvals and consents necessary to carry on its business
as now conducted; there is no statute, regulation, rule, order or judgment
binding on it and no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or affecting its
property which would prohibit its execution or performance of this Agreement;
and
(d) To the extent the performance of any services
described in Schedule I attached hereto by BNY in accordance with the then
effective Prospectus (as hereinafter defined) for the Fund would violate any
applicable laws or regulations, the Fund shall immediately so notify BNY in
writing and thereafter shall either furnish BNY with the appropriate values of
securities, net asset value or other computation, as the case may be, or,
subject to the prior approval of BNY, instruct BNY in writing to value
securities and/or compute net asset value or other computations in a manner the
Fund specifies in writing, and either the furnishing of such values or the
giving of such instructions shall constitute a representation by the Fund that
the same is consistent with all applicable laws and regulations and with its
Prospectus.
3. Delivery of Documents.
(a) Each Fund will promptly deliver to BNY true and
correct copies of each of the following documents as currently in effect and
will promptly deliver to it all future amendments and supplements thereto, if
any:
(i) The Fund's articles of incorporation or
other organizational document and all amendments thereto (the "Charter");
(ii) The Fund's bylaws (the "Bylaws");
(iii) Resolutions of the Fund's board of directors
or other governing body (the "Board") authorizing the execution, delivery and
performance of this Agreement by the Fund;
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(iv) The Fund's registration statement most
recently filed with the Securities and Exchange Commission (the "SEC") relating
to the shares of the Fund (the "Registration Statement");
(v) The Fund's Notification of Registration
under the 1940 Act on Form N-8A filed with the SEC; and
(vi) The Fund's Prospectus and Statement of
Additional Information pertaining to the Series (collectively, the
"Prospectus").
(b) Each copy of the Charter shall be certified by the
Secretary of State (or other appropriate official) of the state of organization,
and if the Charter is required by law also to be filed with a county or other
officer or official body, a certificate of such filing shall be filed with a
certified copy submitted to BNY. Each copy of the Bylaws, Registration Statement
and Prospectus, and all amendments thereto, and copies of Board resolutions,
shall be certified by the Secretary or an Assistant Secretary of the appropriate
Fund.
(c) It shall be the sole responsibility of each Fund to
deliver to BNY its currently effective Prospectus and BNY shall not be deemed to
have notice of any information contained in such Prospectus until it is actually
received by BNY.
4. Duties and Obligations of BNY.
(a) Subject to the direction and control of each Fund's
Board and the provisions of this Agreement, BNY shall provide to each Fund the
valuation and computation services listed on Schedule I attached hereto.
(b) In performing hereunder, BNY shall provide, at its
expense, office space, facilities, equipment and personnel.
(c) BNY shall not provide any services relating to the
management, investment advisory or sub-advisory functions of any Fund,
distribution of shares of any Fund, maintenance of any Fund's financial records
or other services normally performed by the Funds' respective counsel or
independent auditors.
(d) Upon receipt of a Fund's prior written consent (which
shall not be unreasonably withheld), BNY may delegate any of its duties and
obligations hereunder to any
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delegee or agent whenever and on such terms and conditions as it deems necessary
or appropriate. Notwithstanding the foregoing, no Fund consent shall be required
for any such delegation to any other subsidiary of The Bank of New York Company,
Inc. BNY shall not be liable to any Fund for any loss or damage arising out of,
or in connection with, the actions or omissions to act of any delegee or agent
utilized hereunder so long as BNY acts in good faith and without negligence or
wilful misconduct in the selection of such delegee or agent.
(e) Each Fund shall cause its officers, advisors,
sponsor, distributor, legal counsel, independent accountants, current
administrator (if any) and transfer agent to cooperate with BNY and to provide
BNY, upon request, with such information, documents and advice relating to such
Fund as is within the possession or knowledge of such persons, in order to
enable BNY to perform its duties hereunder. In connection with its duties
hereunder, BNY shall be entitled to rely, and shall be held harmless by each
Fund when acting in reliance, upon the instructions, advice or any documents
relating to such Fund provided to BNY by any of the aforementioned persons. BNY
shall not be liable for any loss, damage or expense resulting from or arising
out of the failure of the Fund to cause any information, documents or advice to
be provided to BNY as provided herein. All fees or costs charged by such persons
shall be borne by the appropriate Fund.
(f) Nothing in this Agreement shall limit or restrict
BNY, any affiliate of BNY or any officer or employee thereof from acting for or
with any third parties, and providing services similar or identical to same or
all of the services provided hereunder.
(g) Each Fund shall furnish BNY with any and all
instructions, explanations, information, specifications and documentation deemed
necessary by BNY in the performance of its duties hereunder, including, without
limitation, the amounts or written formula for calculating the amounts and times
of accrual of Fund liabilities and expenses. BNY shall not be required to
include as Fund liabilities and expenses, nor as a reduction of net asset value,
any accrual for any federal, state, or foreign income taxes unless the Fund
shall have specified to BNY the precise amount of the same to be included in
liabilities and expenses or used to reduce net asset value. Each Fund shall also
furnish BNY with bid, offer, or market values of Securities if BNY notifies such
Fund that same are not available to BNY from a security pricing or similar
service utilized,
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or subscribed to, by BNY which BNY in its judgment deems reliable at the time
such information is required for calculations hereunder. At any time and from
time to time, the Fund also may furnish BNY with bid, offer, or market values of
Securities and instruct BNY to use such information in its calculations
hereunder. BNY shall at no time be required or obligated to commence or maintain
any utilization of, or subscriptions to, any securities pricing or similar
service.
(h) BNY may apply to an officer of any Fund for written
instructions with respect to any matter arising in connection with BNY's
performance hereunder for such Fund, and BNY shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with such
instructions. Such application for instructions may, at the option of BNY, set
forth in writing any action proposed to be taken or omitted to be taken by BNY
with respect to its duties or obligations under this Agreement and the date on
and/or after which such action shall be taken, and BNY shall not be liable for
any action taken or omitted to be taken in accordance with a proposal included
in any such application on or after the date specified therein unless, prior to
taking or omitting to take any such action, BNY has received written
instructions in response to such application specifying the action to be taken
or omitted.
(i) BNY may consult with counsel to the appropriate Fund
or its own counsel, at such Fund's expense, and shall be fully protected with
respect to anything done or omitted by it in good faith in accordance with the
advice or opinion of such counsel.
(j) Notwithstanding any other provision contained in this
Agreement or Schedule I attached hereto, BNY shall have no duty or obligation to
with respect to, including, without limitation, any duty or obligation to
determine, or advise or notify any Fund of: (i) the taxable nature of any
distribution or amount received or deemed received by, or payable to, a Fund,
(ii) the taxable nature or effect on a Fund or its shareholders of any corporate
actions, class actions, tax reclaims, tax refunds or similar events, (iii) the
taxable nature or taxable amount of any distribution or dividend paid, payable
or deemed paid, by a Fund to its shareholders; or (iv) the effect under any
federal, state, or foreign income tax laws of a Fund making or not making any
distribution or dividend payment, or any election with respect thereto.
(k) BNY shall have no duties or responsibilities
whatsoever except such
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duties and responsibilities as are specifically set forth in this Agreement and
Schedule I attached hereto, and no covenant or obligation shall be implied
against BNY in connection with this Agreement.
(l) The Bank, in performing the services required of it
under the terms of this Agreement, shall be entitled to rely fully on the
accuracy and validity of any and all instructions, explanations, information,
specifications and documentation furnished to it by a Fund and shall have no
duty or obligation to review the accuracy, validity or propriety of such
instructions, explanations, information, specifications or documentation,
including, without limitation, evaluations of securities; the amounts or formula
for calculating the amounts and times of accrual of Series' liabilities and
expenses; the amounts receivable and the amounts payable on the sale or purchase
of Securities; and amounts receivable or amounts payable for the sale or
redemption of Fund shares effected by or on behalf of a Fund. In the event BNY's
computations hereunder rely, in whole or in part, upon information, including,
without limitation, bid, offer or market values of securities or other assets,
or accruals of interest or earnings thereon, from a pricing or similar service
utilized, or subscribed to, by BNY which BNY in its judgment deems reliable, BNY
shall not be responsible for, under any duty to inquire into, or deemed to make
any assurances with respect to, the accuracy or completeness of such
information. Without limiting the generality of the foregoing, BNY shall not be
required to inquire into any valuation of securities or other assets by a Fund
or any third party described in this (l) even though BNY in performing services
similar to the services provided pursuant to this Agreement for others may
receive different valuations of the same or different securities of the same
issuers.
(m) BNY, in performing the services required of it under
the terms of this Agreement, shall not be responsible for determining whether
any interest accruable to a Fund is or will be actually paid, but will accrue
such interest until otherwise instructed by such Fund.
(n) BNY shall not be responsible for delays or errors
which occur by reason of circumstances beyond its control in the performance of
its duties under this Agreement, including, without limitation, labor
difficulties within or without the Bank, mechanical breakdowns, flood or
catastrophe, acts of God, failures of transportation, interruptions, loss, or
malfunctions of utilities, communications or computer (hardware or software)
services. Nor
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shall BNY be responsible for delays or failures to supply the information or
services specified in this Agreement where such delays or failures are caused by
the failure of any person(s) other than BNY to supply any instructions,
explanations, information, specifications or documentation deemed necessary by
BNY in the performance of its duties under this Agreement.
5. Allocation of Expenses.
Except as otherwise provided herein, all costs and expenses arising or
incurred in connection with the performance of this Agreement shall be paid by
the appropriate Fund, including but not limited to, organizational costs and
costs of maintaining corporate existence, taxes, interest, brokerage fees and
commissions, insurance premiums, compensation and expenses of such Fund's
trustees, directors, officers or employees, legal, accounting and audit
expenses, management, advisory, sub-advisory, administration and shareholder
servicing fees, charges of custodians, transfer and dividend disbursing agents,
expenses (including clerical expenses) incident to the issuance, redemption or
repurchase of Fund shares, fees and expenses incident to the registration or
qualification under federal or state securities laws of the Fund or its shares,
costs (including printing and mailing costs) of preparing and distributing
Prospectuses, reports, notices and proxy material to such Fund's shareholders,
all expenses incidental to holding meetings of such Fund's trustees, directors
and shareholders, and extraordinary expenses as may arise, including litigation
affecting such Fund and legal obligations relating thereto for which the Fund
may have to indemnify its trustees, directors and officers.
6. Standard of Care; Indemnification.
(a) Except as otherwise provided herein, BNY shall not be
liable for any costs, expenses, damages, liabilities or claims (including
attorneys' and accountants' fees) incurred by a Fund, except those costs,
expenses, damages, liabilities or claims arising out of BNY's own gross
negligence or wilful misconduct. In no event shall BNY be liable to any Fund or
any third party for special, indirect or consequential damages, or lost profits
or loss of business, arising under or in connection with this Agreement, even if
previously informed of the possibility of such damages and regardless of the
form of action. BNY shall not be liable for any loss, damage or expense,
including counsel fees and other costs and expenses of a defense against any
claim or liability, resulting from, arising out of, or in connection with its
performance
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hereunder, including its actions or omissions, the incompleteness or inaccuracy
of any specifications or other information furnished by the Fund, or for delays
caused by circumstances beyond the Bank's control, unless such loss, damage or
expense arises out of the gross negligence or willful misconduct of the Bank.
(b) Each Fund shall indemnify and hold harmless BNY from
and against any and all costs, expenses, damages, liabilities and claims
(including claims asserted by a Fund), and reasonable attorneys' and
accountants' fees relating thereto, which are sustained or incurred or which may
be asserted against BNY, by reason of or as a result of any action taken or
omitted to be taken by BNY in good faith hereunder or in reliance upon (i) any
law, act, regulation or interpretation of the same even though the same may
thereafter have been altered, changed, amended or repealed, (ii) such Fund's
Registration Statement or Prospectus, (iii) any instructions of an officer of
such Fund, or (iv) any opinion of legal counsel for such Fund or BNY, or arising
out of transactions or other activities of such Fund which occurred prior to the
commencement of this Agreement; provided, that no Fund shall indemnify BNY for
costs, expenses, damages, liabilities or claims for which BNY is liable under
preceding 6(a). This indemnity shall be a continuing obligation of each Fund,
its successors and assigns, notwithstanding the termination of this Agreement.
Without limiting the generality of the foregoing, each Fund shall indemnify BNY
against and save BNY harmless from any loss, damage or expense, including
counsel fees and other costs and expenses of a defense against any claim or
liability, arising from any one or more of the following:
(i) Errors in records or instructions,
explanations, information, specifications or documentation of any kind, as the
case may be, supplied to the Bank by any third party described above or by or on
behalf of a Fund;
(ii) Action or inaction taken or omitted to be
taken by BNY pursuant to written or oral instructions of the Fund or otherwise
without gross negligence or willful misconduct;
(iii) Any action taken or omitted to be taken by
BNY in good faith in accordance with the advice or opinion of counsel for a Fund
or its own counsel;
(iv) Any improper use by a Fund or its agents,
distributor or investment
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advisor of any valuations or computations supplied by BNY pursuant to this
Agreement;
(v) The method of valuation of the securities
and the method of computing each Series' net asset value; or
(vi) Any valuations of securities or net asset
value provided by a Fund.
(c) Actions taken or omitted in reliance on oral or
written instructions, or upon any information, order, indenture, stock
certificate, power of attorney, assignment, affidavit or other instrument
believed by BNY to be genuine or bearing the signature of a person or persons
believed to be authorized to sign, countersign or execute the same, or upon the
opinion of legal counsel for a Fund or its own counsel, shall be conclusively
presumed to have been taken or omitted in good faith.
(d) Notwithstanding any other provision contained in this
Agreement, BNY shall have no duty or obligation with respect to, including,
without limitation, any duty or obligation to determine, or advise or notify the
Fund of: (a) the taxable nature of any distribution or amount received or deemed
received by, or payable to, a Fund; (b) the taxable nature or effect on a Fund
or its shareholders of any corporate actions, class actions, tax reclaims, tax
refunds, or similar events; (c) the taxable nature or taxable amount of any
distribution or dividend paid, payable or deemed paid, by a Fund to its
shareholders; or (d) the effect under any federal, state, or foreign income tax
laws of the Fund making or not making any distribution or dividend payment, or
any election with respect thereto.
7. Compensation.
For the services provided hereunder, each Fund agrees to pay BNY such
compensation as is mutually agreed from time to time and such out-of-pocket
expenses (e.g., telecommunication charges, postage and delivery charges, record
retention costs, reproduction charges and transportation and lodging costs) as
are incurred by BNY in performing its duties hereunder. Except as hereinafter
set forth, compensation shall be calculated and accrued daily and paid monthly.
Each Fund authorizes BNY to debit such Fund's custody account for all amounts
due and payable hereunder. BNY shall deliver to each Fund invoices for services
rendered after debiting such Fund's custody account with an indication that
payment has been made. Upon termination of this Agreement before the end of any
month, the compensation for such part of a
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month shall be prorated according to the proportion which such period bears to
the full monthly period and shall be payable upon the effective date of
termination of this Agreement. For the purpose of determining compensation
payable to BNY, each Fund's net asset value shall be computed at the times and
in the manner specified in the Fund's Prospectus.
8. Term of Agreement.
(a) This Agreement shall continue until terminated by
either BNY giving to a Fund, or a Fund giving to BNY, a notice in writing
specifying the date of such termination, which date shall be not less than 90
days after the date of the giving of such notice. Upon termination hereof, the
affected Fund(s) shall pay to BNY such compensation as may be due as of the date
of such termination, and shall reimburse BNY for any disbursements and expenses
made or incurred by BNY and payable or reimbursable hereunder.
(b) Notwithstanding the foregoing, BNY may terminate this
Agreement upon 30 days prior written notice to a Fund if such Fund shall
terminate its custody agreement with The Bank of New York, or fail to perform
its obligations hereunder in a material respect.
9. Authorized Persons.
Attached hereto as Exhibit B is a list of persons duly authorized by
the board of each Fund to execute this Agreement and give any written or oral
instructions, or written or oral specifications, by or on behalf of such Fund.
From time to time each Fund may deliver a new Exhibit B to add or delete any
person and BNY shall be entitled to rely on the last Exhibit B actually received
by BNY.
10. Amendment.
This Agreement may not be amended or modified in any manner except by a
written agreement executed by BNY and the Fund to be bound thereby, and
authorized or approved by such Fund's Board.
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11. Assignment.
This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by any Fund without the written consent
of BNY, or by BNY without the written consent of the affected Fund accompanied
by the authorization or approval of such Fund's Board.
12. Governing Law; Consent to Jurisdiction.
This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflict of laws principles thereof. Each
Fund hereby consents to the jurisdiction of a state or federal court situated in
New York City, New York in connection with any dispute arising hereunder, and
waives to the fullest extent permitted by law its right to a trial by jury. To
the extent that in any jurisdiction any Fund may now or hereafter be entitled to
claim, for itself or its assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process, such Fund irrevocably agrees
not to claim, and it hereby waives, such immunity.
13. Severability.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
14. No Waiver.
Each and every right granted to BNY hereunder or under any other
document delivered hereunder or in connection herewith, or allowed it by law or
equity, shall be cumulative and may be exercised from time to time. No failure
on the part of BNY to exercise, and no delay in exercising, any right will
operate as a waiver thereof, nor will any single or partial exercise by BNY of
any right preclude any other or future exercise thereof or the exercise of any
other right.
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15. Notices.
All notices, requests, consents and other communications pursuant to
this Agreement in writing shall be sent as follows:
if to a Fund, at
if to BNY, at
The Bank of Xxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Title:
or at such other place as may from time to time be designated in writing.
Notices hereunder shall be effective upon receipt.
16. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts together shall
constitute only one instrument.
17. Several Obligations.
The parties acknowledge that the obligations of the Funds hereunder are
several and not joint, that no Fund shall be liable for any amount owing by
another Fund and that the Funds have executed one instrument for convenience
only.
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IN WITNESS WHEREOF, the parties hereto have caused the foregoing
instrument to be executed by their duly authorized officers and their seals to
be hereunto affixed, all as of the day and year first above written.
By: __________________________
on behalf of each Fund
identified on Exhibit A
attached hereto
THE BANK OF NEW YORK
By: __________________________
Title:
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EXHIBIT A
Name of Fund
EXHIBIT B
I, , of *, a (State) corporation (the "Fund"), do hereby
certify that:
The following individuals serve in the following positions with the
Fund, and each has been duly elected or appointed by the Board of Directors of
the Fund to each such position and qualified therefor in conformity with the
Fund's Articles of Incorporation and By-Laws, and the signatures set forth
opposite their respective names are their true and correct signatures. Each such
person is authorized to give written or oral instructions or written or oral
specifications by or on behalf of the Fund to the Bank.
Name Position Signature
_________ __________________ _________________
SCHEDULE I
VALUATION AND COMPUTATION SERVICES
I. BNY shall maintain the following records on a daily basis for
each Series.
1. Report of priced portfolio securities
2. Statement of net asset value per share
II. BNY shall maintain the following records on a monthly basis
for each Series:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. BNY shall prepare a Holdings Ledger on a quarterly basis, and
a Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Series.
Schedule D shall be produced on an annual basis for each Series.
The above reports may be printed according to any other required
frequency to meet the requirements of the Internal Revenue Service, The
Securities and Exchange Commission and the Fund's Auditors.
IV. For internal control purposes, BNY uses the Account Journals
produced by The Bank of New York Custody System to record daily settlements of
the following for each Series:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
All portfolio purchases for the Fund are recorded to reflect expected
maturity value and total cost including any prepaid interest.
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