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EXHIBIT 8(e)
FUND ACCOUNTING AND SERVICES AGREEMENT
THIS AGREEMENT is made as of September 2, 1997, by and among THE FIFTH THIRD
BANK, a banking company organized under the laws of the State of Ohio ("Fifth
Third"), and CAPSTONE ASSET MANAGEMENT COMPANY ("CAMCO") on behalf of Capstone
International Series Trust (the "Trust"). See attached Exhibit A for the Trusts
and their effective dates of service.
W I T N E S S E T H
WHEREAS, the Trust is an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "Investment
Company Act").
WHEREAS, Fifth Third provides certain fund accounting, administrative
and other services to investment companies; and
WHEREAS, CAMCO desires to retain Fifth Third to provide fund accounting
and other services for the Trust and the Trust's Board of Trustees has approved
such retention, and Fifth Third is willing to provide such services, all as more
fully set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby, the
parties hereto agree as follows:
(1) Definitions, As Used in This Agreement.
(a) Authorized Person means any Trustee of the Trust, any
officer or employee of CAMCO and any other person duly authorized by
the Trust's Board of Trustees to give Oral and Written Instructions on
behalf of the Trust and listed on the Authorized Persons Appendix
attached hereto and made a part hereof or any amendment thereto as may
be received by Fifth Third. An Authorized Person's scope of authority
may be limited by the Trust by setting forth such limitation in the
Authorized Persons Appendix.
(b) Oral Instructions mean instructions orally transmitted to
and accepted by Fifth Third because such instructions are: (i) given by
an Authorized Person or from a person reasonably believed by Fifth
Third to have been an Authorized Person, (ii) recorded and kept among
the records of Fifth Third made in the ordinary course of business and
(iii) orally confirmed by Fifth Third. CAMCO shall cause all Oral
Instructions to be confirmed by Written Instructions. If such Written
Instructions confirming Oral Instructions are not received by Fifth
Third prior to a transaction, it shall in no way affect the validity of
the transaction or the authorization thereof by CAMCO. If Oral
Instructions vary from the Written Instructions which purport to
confirm them, Fifth Third shall notify the Trust or CAMCO of such
variance but such Oral Instructions will govern unless Fifth Third has
not yet acted.
(c) Written Instructions mean (i) written communications
actually received by Fifth Third and signed by one or more persons as
the Board of Trustees shall have from time to time authorized, or (ii)
communications by fax or any other such system from a person or persons
reasonably believed by Fifth Third to be Authorized or (iii)
communications transmitted electronically through the Institutional
Delivery System (IDS), or any other similar electronic instruction
system acceptable to Fifth Third and approved by resolutions of the
Board of Trustees, a copy of which, certified by the Secretary, shall
have been delivered to Fifth Third.
(d) Shares mean the shares of common stock of any series or
class of the Trust.
2. Appointment. As authorized by the Trust's Board of Trustees, CAMCO
hereby appoints Fifth Third to provide fund accounting and other specified
services to the Trust, in accordance with the terms set forth in this Agreement.
Fifth Third accepts such appointment and agrees to furnish such specified
services.
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3. Delivery of Documents. CAMCO has provided or, where applicable, will
provide Fifth Third with the following:
(a) certified or authenticated copies of the resolutions of
the Trust's Board of Trustees, approving the appointment of Fifth Third
or its affiliates to provide services to the Trust and approving this
Agreement;
(b) a copy of the Trust's most recent effective registration
statement;
(c) a copy of the Trust's advisory agreement;
(d) a copy of any distribution agreement or similar agreement
made with respect to each class of Shares;
(e) a copy of the Management Agreement and any administration
agreements or similar agreements with respect to the Trust;
(f) a copy of any shareholder servicing agreement made in
respect of the Trust; and
(g) copies (certified or authenticated, where applicable) of
any and all amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations. Fifth Third undertakes to
comply with all applicable requirements of the Investment Company Act, and any
laws, rules and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by Fifth Third hereunder. Except as
specifically set forth herein, Fifth Third assumes no responsibility for such
compliance by the Trust or CAMCO.
5. Instructions. Fifth Third will provide fund accounting and such
other services as is agreed hereunder.
(a) With respect to other services Fifth Third shall act only
upon Oral or Written Instructions.
(b) Fifth Third shall be entitled to rely upon any Oral and
Written Instructions it receives from an Authorized Person (or from a
person reasonably believed by Fifth Third to be an Authorized Person)
pursuant to this Agreement. Fifth Third may assume that any Oral or
Written Instruction received hereunder is not in any way inconsistent
with the provisions of organizational documents or this Agreement or of
any vote, resolution or proceeding of the Trust's Board of Trustees or
of the Trust's shareholders, unless and until Fifth Third receives
Written Instructions to the contrary.
(c) CAMCO agrees to forward, to Fifth Third, Written
Instructions confirming Oral Instructions so that Fifth Third receives
the Written Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such confirming
Written Instructions are not received by Fifth Third shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions. Where Oral or Written Instructions
reasonably appear to have been received from an Authorized Person,
Fifth Third shall incur no liability to CAMCO or the Trust in acting
upon such Oral or Written Instructions.
6. Right to Receive Advice.
(a) Advice of CAMCO. If Fifth Third is in doubt as to any
action it should or should not take, Fifth Third shall request
directions or advice, including Oral or Written Instructions, from
CAMCO.
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(b) Advice of Counsel. If Fifth Third shall be in doubt as to
any questions of law pertaining to any action it should or should not
take, Fifth Third shall request advice from Dechert, Price & Xxxxxx,
Trust's counsel and the Trust shall reimburse such reasonable cost.
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral or Written Instructions Fifth Third receives
from CAMCO and the advice Fifth Third receives from counsel, Fifth
Third shall inform CAMCO of the conflict and seek resolution.
(d) Protection of Fifth Third. Fifth Third shall be protected
in any action it takes or does not take in reliance upon directions,
advice or Oral or Written Instructions it receives from the Trust,
CAMCO or counsel and which Fifth Third believes, in good faith, to be
consistent with those directions, advice or Oral or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon Fifth Third (i) to seek such directions,
advice or Oral or Written Instructions, or (ii) to act in accordance
with such directions, advice or Oral or Written Instructions unless
such obligation is imposed under the terms of other provisions of this
Agreement. Nothing in this subsection shall excuse Fifth Third when an
action or omission on the part of Fifth Third constitutes willful
misfeasance, lack of good faith, or reckless disregard by Fifth Third
of its duties, obligation or responsibilities set forth in this
Agreement.
7. Records; Visits.
(a) The books and records pertaining to the Trust which are in
the possession or under the control of Fifth Third shall be the
property of the Trust. Such books and records shall be prepared,
maintained and preserved as required by the Investment Company Act and
other applicable Securities Laws, rules and regulations. Authorized
Persons shall have access to such books and records at all times during
Fifth Third's normal business hours. Upon the reasonable request of the
Trust or CAMCO, copies of any such books and records shall be provided
by Fifth Third to the Trust, CAMCO or to an Authorized Person, at the
expense of the Trust or CAMCO, as applicable.
(b) Fifth Third shall keep the following records:
(i) all books and records relating to the services
it performs hereunder with respect to the Trust's
books of account;
(ii) records relating to the services it performs
hereunder with respect to the Trust's securities transactions;
and
(iii) all other books and records as Fifth Third is
required to maintain pursuant to Rule 31a-1 of the Investment
Company Act in connection with the services provided
hereunder.
8. Confidentiality. Fifth Third agrees to keep confidential all records
of the Trust and information relating to the Trust and its shareholders (past,
present and future), unless the release of such records or information is
otherwise consented to, in writing, by the Trust or CAMCO. The Trust and CAMCO
agree that such consent shall not be unreasonably withheld and may not be
withheld where Fifth Third may be exposed to civil or criminal contempt
proceedings or when required to divulge such information or records to duly
constituted authorities.
9. Liaison with Accountants. Fifth Third shall act as liaison with the
Trust's independent public accountants and shall provide account analysis,
fiscal year summaries, and other audit-related schedules with respect to the
services provided to the Trust. Fifth Third shall take all reasonable action in
the performance of its duties under this Agreement to assure that the necessary
information in Fifth Third's control is made available to such accountants for
the expression of their opinion, as required by the Trust or CAMCO.
10. Disaster Recovery. Fifth Third shall maintain in effect a disaster
recovery plan, and enter into any agreement necessary with appropriate parties
making reasonable provisions for emergency use of electronic data processing
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equipment customary in the industry. In the event of equipment failures, Fifth
Third shall, at no additional expense to the Trust or CAMCO, take reasonable
steps to minimize service interruptions. Fifth Third shall have no liability
with respect to the loss of data or service interruptions caused by equipment
failure provided such loss or interruption is not caused by Fifth Third's own
willful misfeasance or gross negligence.
11. Compensation. As compensation for services rendered by Fifth Third
during the term of this Agreement, CAMCO will pay to Fifth Third a fee or fees
set forth in Exhibit A, as may be amended from time to time. It is agreed that
fees set forth in Exhibit A may be increased with not less than ninety (90)
days' written notice. In the event that Exhibit C is amended such that
additional services as requested by the Trust or CAMCO are required from Fifth
Third on an ongoing basis, with the approval of CAMCO and the Trust, additional
fees may be charged as applicable. The fee for the period from the day of the
year this Agreement is entered into until the end of that year shall be prorated
according to the proportion that such period bears to the full annual period.
12. Indemnification.
(a) CAMCO and the Trust agree to indemnify and hold harmless
Fifth Third and its agents or subcontractor from all taxes, charges,
expenses, assessments, claims and liabilities (including, without
limitation, liabilities arising under the Securities Laws and any state
or foreign securities and blue sky laws, and amendments thereto), and
expenses, including (without limitation) attorneys' fees and
disbursements arising directly or indirectly from any action or
omission to act which Fifth Third takes in reasonable reliance on Oral
or Written Instructions. Fifth Third, shall not be indemnified against
any liability (or any expenses incident to such liability) arising out
of Fifth Third's own willful misfeasance, lack of good faith or
reckless disregard of its duties and obligations under this Agreement.
For any legal proceedings giving rise to this indemnification, CAMCO or
the Trust shall be entitled to defend or prosecute any claim in the
name of Fifth Third at CAMCO and the Trust's own expense through
counsel of its own choosing if it gives written notice to Fifth Third
within ten (10) business days of receiving notice of such claim.
(b) Fifth Third agrees to indemnify and hold harmless CAMCO
and the Trust from actual taxes, charges, expenses, assessments, claims
and liabilities (excluding liabilities arising under the Securities
Laws and any state or foreign securities and blue sky laws, and
amendments thereto), and expenses, including (without limitation)
attorneys' fees and disbursements arising directly from Fifth Third's
own willful misfeasance, bad faith or reckless disregard of its duties
and obligations under this Agreement. For any legal proceedings giving
rise to this, Fifth Third shall be entitled to defend or prosecute any
claim in the name of CAMCO or the Trust, as applicable, at Fifth
Third's own expense through counsel of its own choosing if it gives
written notice to CAMCO or the Trust, as applicable within ten (10)
business days of receiving notice of such claim.
13. Responsibilities of Fifth Third.
(a) Fifth Third shall be under no duty to take any action on
behalf of the Trust or CAMCO except as specifically set forth herein or
as may be specifically agreed to by Fifth Third in writing. Fifth Third
shall be obligated to exercise commercially reasonable care and
diligence in the performance of its duties hereunder, to act in good
faith and act within reasonable limits, in performing services provided
for under this Agreement. Fifth Third shall only be liable for actual
damages arising out of Fifth Third's failure to perform its duties
under this Agreement to the extent such damages arise out of Fifth
Third's willful misfeasance, bad faith or reckless disregard of such
duties.
(b) In no event shall Fifth Third be liable for any special,
consequential, extraordinary or punitive damages, arising from its
performance or non-performance under this Agreement, or failure to
comply with any of the terms of this Agreement. Cumulative liability
within a calendar year shall be limited to CAMCO and the Trust or any
party claiming by, through or on behalf of CAMCO or the Trust for the
initial and all subsequent renewal terms of this Agreement, to the
lessor of (a) the actual damages sustained by CAMCO and/or by the
Trust; or (b) one-half of the net fees paid to Fifth Third, but not to
exceed one half of the net fees paid within the prior twelve calendar
months as in accordance with this Agreement.
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(c) Without limiting the generality of the foregoing or of
any other provision of this Agreement,
(i) Fifth Third shall not be liable for losses beyond
its reasonable control, provided that Fifth Third has acted in
accordance with the standard of care set forth above; and
(ii) Fifth Third shall not be liable for:
(A) the validity or invalidity or authority
or lack thereof of any Oral or Written Instruction,
notice or other instrument which conforms to the
applicable requirements of this Agreement, and which
Fifth Third reasonably believes to be genuine; or
(B) subject to Section 10, delays or errors
or loss of data occurring by reason of circumstances
beyond Fifth Third's control, including acts of civil
or military authority, national emergencies,
non-Fifth Third labor difficulties, fire, flood,
catastrophe, acts of God, insurrection, war, riots or
failure of the mails, transportation, communication
or power supply.
14. Description of Accounting Services on a Continuous Basis. Fifth
Third will perform the accounting services as set forth on Exhibit C, as may be
amended from time to time, with respect to the Trust.
15. Description of Other Services on a Continuous Basis. Fifth Third
will perform the other services as set forth on Exhibit B, as may be amended
from time to time, with respect to the Trust:
16. Duration and Termination. This Agreement shall continue until
terminated by either CAMCO or the Trust, on the one part, or by Fifth Third, on
the other part, on ninety (90) days' prior written notice to the other party.
17. Notices. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. If notice is sent by confirming telegram, cable, telex
or facsimile sending device, it shall be deemed to have been given immediately
If notice is sent by first class mad, it shall be deemed to have been given
three days after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered. Notices shall be addressed
as stated below or to such other address as shall have been provided by like
notice to the sender of any such notice or other communication by the receiving
party.
(a) if to Fifth Third: (b) if to the CAMCO or the Trust:
00 Xxxxxxxx Xxxxxx Xxxxx 0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000 Xxxxxxx, Xxxxx 00000
Attention: Trust Accounting Manager Attn.: Corporate Secretary
18. Amendments. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
19. Delegation; Assignment. Fifth Third may assign its rights and
delegate its duties hereunder upon prior written consent of CAMCO and the Trust
to any wholly-owned direct or indirect subsidiary of Fifth Third, provided that:
(a) Fifth Third gives CAMCO and the Trust sixty (60) days'
prior written notice;
(b) the delegate (or assignee) agrees with Fifth Third and
with CAMCO and the Trust to comply with all relevant provisions of the
Securities Laws; and
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(c) Fifth Third and such delegate (or assignee) promptly
provide such information as CAMCO or the Trust may request, and respond
to such questions as CAMCO or the Trust may ask, relative to the
delegation (or assignment), including (without limitation) the
capabilities of the delegate (or assignee).
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof
22. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire
agreement and understanding among the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that CAMCO and the Trust and Fifth Third may embody in one or
more separate documents their agreement, if any, with respect to
delegated duties and Oral Instructions.
(b) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or effect.
(c) Governing Law. This Agreement will be governed and
consumed in accordance with the laws of the State of New York without
regard to principles or conflicts of law. The parties agree that venue
for any action or proceeding brought pursuant to this Agreement shall
be in the state or federal courts located in the State of New York.
(d) Partial Invalidity. If any provision of this Agreement
shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected
thereby.
(e) Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) Facsimile Signatures. The facsimile signature of any party
to this Agreement shall constitute the valid and binding execution
hereof by such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE FIFTH THIRD BANK CAPSTONE ASSET
MANAGEMENT COMPANY
By: ____________________________ By: ___________________________
Its: ____________________________ Its: ___________________________
CAPSTONE INTERNATIONAL
SERIES TRUST
By: ___________________________
Its: ___________________________
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EXHIBIT A
FUNDS OF THE CAPSTONE INTERNATIONAL SERIES TRUST
FUND SERVICE DATE
---- ------------
Capstone New Zealand Fund June 2, 0000
Xxxxxxxx Xxxxx Fund September 2, 1997
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EXHIBIT B
FEE SCHEDULE
THIS EXHIBIT B, dated as of September 2, 1997, is Exhibit A to the
Trust Accounting and Services Agreement dated as of September 2 by and among
Capstone Asset Management Company and the undersigned Trust and Fifth Third
Bank. This Exhibit A shall supersede all previous forms of Exhibit A.
Capstone Asset Management Company will pay Fifth Third an annual fund accounting
and service fee (the "Fee"), to be calculated daily and paid monthly. The annual
Fee for each Portfolio shall be the greater of a monthly minimum or an asset
based fee, as follows:
Asset Based Fees
Monthly First Next Assets over
Minimum OR $100,000,000 $100,000,000 $200,000,000
------- -- ------------ ------------ -------------
$3,500 .04% .03% .02%
Should the Trust add additional share classes, there will be an annual charge of
$7,000 per additional class per portfolio, also to be charged monthly. CAMCO
will also reimburse Fifth Third for its out-of-pocket expense incurred in
performing its services under this Agreement, including, but not limited to:
postage and mailing, telephone, facsimile, overnight courier services and
outside independent pricing service charges, and record retention/storage.
THE FIFTH THIRD BANK CAPSTONE ASSET
MANAGEMENT COMPANY
By: ____________________________ By: ___________________________
Its: ____________________________ Its: ___________________________
CAPSTONE INTERNATIONAL
SERIES TRUST
By: ___________________________
Its: ___________________________
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EXHIBIT C
Fifth Third will perform the accounting services with respect to the Trust:
(a) Journalize investment, capital share and income and expense
activities;
(b) Verify investment buy/sell trade tickets when received from the
Trust's investment adviser (the "Money Manager") and transmit trades to the
Trust's custodian (the "Custodian") for proper settlement;
(c) Maintain individual ledgers for investment securities;
(d) Maintain historical tax lots for each security;
(e) Reconcile cash and investment balances with the Custodian, and
provide the Money Manager with the beginning cash balance available for
investment purposes;
(f) Update the cash availability daily;
(g) Post to and prepare the Statement of Assets and Liabilities and
the Statement of Operations;
(h) Calculate the various contractual expenses (e.g., advisory and
custody fees);
(I) Monitor the expense accruals and notify an officer of the Trust
of any proposed adjustments;
(j) Control all disbursements and authorize such disbursements upon
Written Instructions;
(k) Calculate capital gains and losses and only upon Written
Instructions from the Trust transmit such information to the Trust's transfer
agent (or other agreed upon procedures);
(l) Determine net income;
(m) Obtain security market quotes from independent pricing services, if
available, approved by the Money Manager, or if such quotes are unavailable,
then obtain such prices from the Money Manager, and in either case calculate the
market value of the Trust's investments;
(n) Transmit or mail a copy of the daily portfolio valuation to the
Money Manager;
(o) Compute net asset value;
(p) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average dollar-weighted
maturity; and
(q) Prepare a monthly financial statement, which will include 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.
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