FUND ACCOUNTING AND SERVICES AGREEMENT
THIS AGREEMENT is made as of _______ , 1998, by and among _____________________,
("Administrator"), and THE FIFTH THIRD BANK, a banking company organized under
the laws of the State of Ohio ("Fifth Third"), and __________________ (the
"Fund").
W I T N E S S E T H
WHEREAS, the Fund is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "Investment Company
Act") with portfolios as listed in Schedule A (the "Portfolios");
WHEREAS, Administrator has been appointed manager of the Fund, including
each portfolio, and Administrator has accepted such appointments;
WHEREAS, Administrator and the Fund have entered into a management
agreement (the "Management Agreement") pursuant to which Administrator provides
management, administrative and other services to the Fund and certain of said
services are commonly referred to as those performed by an administrator;
WHEREAS, Fifth Third provides certain fund accounting, administrative and
other services to investment companies; and
WHEREAS, Administrator, with the consent of the Fund, desires to retain
Fifth Third to provide fund accounting and other services for the portfolios of
the Fund listed on Exhibit A, as may be amended from time to time (each a
Portfolio), 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 officer of the Fund and any other
person duly authorized by the Fund's Board of Directors to give
Oral and Written Instructions on behalf of the Fund 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 Fund 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. The Fund
and Administrator 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 the Fund or
Administrator. If Oral Instructions vary from the Written
Instructions which purport to confirm them, Fifth Third shall
attempt to notify the Fund or Administrator 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 Directors 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 Directors, a copy of
which, certified by the Secretary, shall have been delivered to
Fifth Third.
(d) Shares mean the shares of beneficial interest of any series or
class of the Fund.
2. Appointment. Administrator hereby appoints Fifth Third to provide fund
accounting and other specified services to each of the Portfolios set forth in
Exhibit A, as may be amended from time to time, in accordance with the terms set
forth in this Agreement. Fifth Third accepts such appointment and agrees to
furnish such specified services.
3. Delivery of Documents. Administrator has provided or, where applicable,
will provide Fifth Third with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Directors, approving the appointment of Fifth
Third or its affiliates to provide services to each Portfolio and
approving this Agreement;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of the Fund's advisory agreement or agreements;
(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 Fund;
(f) a copy of any shareholder servicing agreement made in respect of
the Fund or the Fund; 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 Administrator, the Fund or any Portfolio.
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
Fund's Board of Directors or of the Fund's shareholders, unless
and until Fifth Third receives Written Instructions to the
contrary.
(c) Administrator agrees to forward, or to cause the Fund 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 Administrator or
the Fund in acting upon such Oral or Written Instructions.
6. Right to Receive Advice.
(a) Advice of the Fund. 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 Administrator or the Fund.
(b) Advice of Counsel. If Fifth Third shall be in doubt as to any
question of law pertaining to any action it should or should not
take, Fifth Third shall request advice from such counsel of its
own choosing and the Fund 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 Administrator or the Fund and the advice Fifth
Third receives from counsel, Fifth Third shall inform the Fund 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
Administrator, the Fund 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, 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 Fund and the Portfolios
which are in the possession or under the control of Fifth Third
shall be the property of the Fund. 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. The Fund and 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
Fund, copies of any such books and records shall be provided by
Fifth Third to the Fund or to an Authorized Person, at the Fund's
expense.
(b) Fifth Third shall keep the following records:
(i) all books and records relating to the services it performs
hereunder with respect to a Portfolio's books of account;
(ii) records relating to the services it performs hereunder with
respect to a Portfolio'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 Fund and information relating to the Fund and its shareholders (past,
present and future), unless the release of such records of information is
otherwise consented to, in writing, by Administrator or the Fund. The
Administrator and the Fund 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
Fund's independent public accountants and shall provide account analysis, fiscal
year summaries, and other audit-related schedules with respect to the services
provided to each Portfolio. 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 Fund.
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
equipment customary in the industry. In the event of equipment failures, Fifth
Third shall, at no additional expense to the Fund, 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, the Fund will pay to Fifth Third a fee or
fees set forth in Exhibit B, as may be amended from time to time. It is agreed
that fees set forth in Exhibit B 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 Fund are required from Fifth Third on an ongoing
basis, with the approval of the Fund, 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) The Fund and Administrator 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 from
Administrator or the Fund. 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, the Fund shall be entitled
to defend or prosecute any claim in the name of Fifth Third at
the Fund'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 Administrator
and the Fund from all 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 any action or omission of Fifth Third's own willful
misfeasance, bad faith, gross negligence or reckless disregard of
its duties and obligations under this Agreement. For any legal
proceedings giving rise to this indemnification, Fifth Third
shall be entitled to defend or prosecute any claim in the name of
Administrator or the Fund at Fifth Third's own expense through
counsel of its own choosing if it gives written notice to
Administrator or the Fund 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 Administrator, the Fund or any Portfolio 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, gross negligence
or reckless disregard of such duties.
(b) In no event shall Bank be liable for any special, consequential,
extraordinary or punitive damages, arising from the performance
or non-performance of Bank under this Agreement, or Bank's
failure to comply with any of the terms of this Agreement. Bank's
cumulative liability within a calendar year shall be limited to
the Fund or any party claiming by, through or on behalf of the
Fund for the initial and all subsequent renewal terms of this
Agreement, to the lessor of (a) the actual damages sustained by
the Fund; or (b) one-half of the net fees paid to the Bank, but
not to exceed one half of the net fees paid to the bank within
the prior twelve calendar months as in accordance with Agreement.
(c) In the unlikely event of a Net Asset Value break on the Fund,
actual damages sustained by the Fund shall be calculated using
the industry standard xxxxx per share or 1/2% of Net Asset Value
decision table. (See Exhibit D)
(d) 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 accounting services as deemed industry standard and/or agreed upon
with Customer at the time of conversion. (See Exhibit C for Standard Services)
15. Description of Other Services on a Continuous Basis. Fifth Third will
perform other services at the request of the Customer, documented previous to
conversion.
16. Duration and Termination. This Agreement shall continue until
terminated by either Administrator, the Fund or Fifth Third 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 mail, 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
(a) if to Fifth Third:
Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Fund Accounting Manager
(b) if to the Fund:
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(c) if to Administrator:
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(d) if to none of the foregoing, at 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.
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 Administrator and the Fund to
any wholly-owned direct or indirect subsidiary of Fifth Third, provided that:
(a) Fifth Third gives Administrator and the Fund sixty (60) days' prior written
notice;
(b) the delegate (or assignee) agrees with Fifth Third, Administrator
and the Fund to comply with all relevant provisions of the
Securities Laws; and
(c) Fifth Third and such delegate (or assignee) promptly provide such
information as Administrator may request, and respond to such
questions as Administrator or the Fund 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 Administrator 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 construed 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 biding execution
hereof by such party.
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 "Administrator"
By: By:
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Its: Its:
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"Fund"
By:
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Its:
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EXHIBIT A
PORTFOLIOS OF FUNDS
THIS EXHIBIT A, dated as of ______________, _____, is Exhibit A to the Fund
Accounting and Services Agreement dated as of ________________ by and among the
Administrator, Fifth Third Bank and the Fund. This Exhibit A shall supersede all
previous forms of Exhibit A.
THE FIFTH THIRD BANK "Administrator"
By: By:
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Its: Its:
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"Fund"
By:
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Its:
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EXHIBIT B
FEE SCHEDULE
THIS EXHIBIT B, dated as of ______________, _____, is Exhibit B to the Fund
Accounting and Services Agreement dated as of ________________ by and among the
Administrator, Fifth Third Bank and the Fund. This Exhibit B shall supersede all
previous forms of Exhibit B.
The Fund 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 an asset based fee, exclusive of out-of-pocket expenses, with
a minimum monthly payment as set forth below:
Asset Monthly Additional Other
Funds Based Fees Minimum Class Services
Monthly Monthly
The Fund will also reimburse Fifth Third for its out-of-pocket expenses incurred
in performing its services under this Agreement, including, but not limited to:
postage and mailing, telephone, telex, overnight courier services and outside
independent pricing service charges, and record retention/storage.
THE FIFTH THIRD BANK "Administrator"
By: By:
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Its: Its:
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"Fund"
By:
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Its:
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EXHIBIT C
Fifth Third will perform the following accounting services with respect to each
Portfolio:
a) Journalize investment, capital share and income and expense activities;
b) Verify investment buy/sell trade tickets when received from the investment
adviser for a Portfolio (the "Money Manager") and transmit trades to the
Fund'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 Funds' Trial Balance;
h) Accrue Fund expenses on a daily basis according to budgets received from
the Money Manager or Funds' Administrator.
i) Control all disbursements and authorize such disbursements upon Written
Instructions;
j) 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 each Portfolio's investments;
k) Transmit or mail a copy of the daily portfolio valuation to the Money
Manager;
l) Compute net asset value;
m) As appropriate, compute yields, total return, expense ratios, portfolio
turnover rate, and, if required, portfolio average dollar-weighted
maturity; and
n) Make available, on a monthly basis, various reports from the Fund
accounting system, including:
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.
