ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT, effective as of May 18, 2007, is made by and between
FIFTH THIRD FUNDS, a Massachusetts business trust (the "Trust") and FIFTH THIRD
ASSET MANAGEMENT, INC. an Ohio corporation ("FTAM").
WITNESSETH THAT:
WHEREAS, the Trust is an investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust desires to hire FTAM to serve as its accounting
services agent, and FTAM is willing to act in such capacities upon the terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the premises and of the mutual
convenants herein contained, the parties hereto, intending to be legally bound,
hereby agree as follows:
SECTION I
1.01 APPOINTMENT.
FTAM is hereby appointed to provide the Trust with certain accounting
services, and FTAM accepts such appointment and agrees to provide such services
under the terms and conditions set forth herein.
FTAM may delegate some or all of its responsibilities under this
Agreement and may, at its expense, subcontract with any entity or person
concerning the provision of the services contemplated hereunder; provided,
however, that FTAM shall not be relieved of any of its obligations under this
Agreement by the appointment of such subcontractor and shall be responsible, to
the extent provided in Section VIII and Section XI hereof, for all acts of such
subcontractor as if such acts were its own. FTAM's services shall not be
exclusive to the Trust, and FTAM may perform the same or similar services for
other entities not affiliated with the Trust.
1.02. GENERAL LEDGER.
FTAM will maintain and keep current the general ledger for each series
of the Trust, recording all income and expenses, capital share activity and
security transactions of the Trust. FTAM will prepare and maintain a daily
valuation of all securities and other assets of the Trust in accordance with the
Security Valuation Procedures of the Trust.
1
1.03. RECORDS AND REPORTS.
FTAM will maintain such books and records as are necessary to enable it
to perform its duties under this Agreement. FTAM will periodically provide
reports to the Trust and its authorized agents regarding share purchases and
redemptions and trial balances of the Funds. In addition, FTAM will prepare and
maintain complete, accurate and current records with respect to the Trust
required to be maintained by the Trust under the Internal Revenue Code (the
"Code"), the 1940 Act and rules and regulations thereunder, and will preserve
said records in the manner and for the periods prescribed in the Code, the 1940
Act and rules and regulations thereunder. The retention of such records shall be
at the expense of the Trust. All of the records prepared and maintained by FTAM
pursuant to this Section 1.03 which are required to be maintained by the Trust
under the Code, the 1940 Act and rules and regulations thereunder will be the
property of the Trust. In the event this Agreement is terminated, all such
records shall be delivered to the Trust or to any person designated by the Trust
at the Trust's expense, and FTAM shall be relieved of responsibility for the
preparation and maintenance of any such records delivered to the Trust or any
such person.
1.04 PAYMENT OF THE TRUST'S EXPENSES.
FTAM shall process each request received from the Trust or its
authorized agents for payment of the Trust's expenses. Upon receipt of written
instructions signed by an officer or other authorized agent of the Trust, FTAM
shall prepare checks in the appropriate amounts which shall be signed by an
authorized officer of FTAM and mailed to the appropriate party.
1.05. COOPERATION WITH ACCOUNTANTS.
FTAM shall cooperate with and assist the Trust's independent registered
public accountants and shall take all reasonable action in the performance of
its obligations under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their unqualified
opinion where required for any document for the Trust.
1.06. FORMS N-SAR AND N-CSR.
FTAM shall maintain such records within its control and as shall be
requested by the Trust to assist the Trust in fulfilling the requirements of
Forms N-SAR and N-CSR.
SECTION II
FEES AND CHARGES
For performing its services under this Agreement, each series of the
Trust shall pay FTAM a fee in accordance with the schedule attached hereto as
Schedule A and shall reimburse FTAM for any out-of-pocket expenses and advances
which are to be paid by the Trust in accordance with Section III of this
Agreement. All fees and advances will be billed by FTAM at
2
the end of each month. Payment by the Trust will be due within thirty business
days of receipt of the invoice.
SECTION III
EXPENSES
FTAM shall furnish, at its expense and without cost to the Trust (i)
the services of its personnel to the extent that such services are required to
carry out its obligations under this Agreement and (ii) use of data processing
equipment. All costs and expenses not expressly assumed by FTAM under this
Section III shall be paid by the Trust, including, but not limited to costs and
expenses for postage, envelopes, checks, drafts, continuous forms, reports,
communications, statements and other materials, telephone, telegraph and remote
transmission lines, use of outside mailing firms, necessary outside record
storage, media for storage or records (e.g., microfilm, microfiche, computer
tapes), printing, confirmations and any other shareholder correspondence and any
and all assessments, taxes or levies assessed on FTAM for services provided
under this Agreement.
SECTION IV
ACCESS TO FTAM'S RECORDS
FTAM shall arrange for the Trust and its authorized agents to have
direct access with FTAM through a telecommunications system allowing the Trust
and its authorized agents to place purchase, redemption and other transaction
orders and providing access to distribution factors, yields and account
balances. This arrangement shall be in effect during FTAM's normal business
hours.
SECTION V
COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS
Except as otherwise provided in this Agreement and except for the
accuracy of information furnished to it by FTAM, the Trust assumes full
responsibility for the preparation, contents and distribution of each prospectus
and statement of additional information of the Trust, for complying with all
applicable requirements of the 1940 Act and any other laws, rules and
regulations of governmental authorities having jurisdiction.
SECTION VI
CONFIDENTIALITY
FTAM, on behalf of itself and its employees, agrees to keep
confidential all records and other information relative to the Trust and its
prior, present or potential shareholders, except (after prior notification to
and approval in writing by the Trust, which approval shall not be unreasonably
withheld and may not be withheld where FTAM may be exposed to civil or
3
criminal contempt proceedings for failure to comply) when requested to divulge
such information by duly constituted authorities or when so requested by the
Trust.
SECTION VII
EQUIPMENT FAILURES
In the event of equipment failure beyond FTAM's control, FTAM shall
take all steps necessary to minimize service interruptions but shall have no
liability with respect thereto. FTAM shall endeavor to enter into one or more
agreements making provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
SECTION VIII
STANDARD OF CARE/INDEMNIFICATION
8.01 STANDARD OF CARE.
FTAM shall be held to a standard of reasonable care in carrying out the
provisions of this Agreement; provided, however, that FTAM shall be held to any
higher standard of care which would be imposed upon FTAM by any applicable law
or regulation as if such standard of care was part of this Agreement.
8.02 INDEMNIFICATION BY TRUST.
FTAM shall not be responsible for, and the Trust shall indemnify and
hold FTAM harmless against, any and all losses, damages, costs, charges, counsel
fees, payments, expenses, and liability arising out of or attributable to:
(1) The Trust's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Trust's lack of good
faith, negligence or willful misconduct or which arise out of
the breach of any representation or warranty of the Trust
hereunder.
(2) The reliance on or use by FTAM or its agents of subcontractors
of information, records, and documents in proper form which
(a) are received by FTAM or its agents or
subcontractors and furnished to it by or on behalf
of the Trust, its shareholders, or investors
regarding the purchase, redemption, or transfer of
shares and shareholder account information, or
(b) have been prepared and/or maintained by the Trust
or its affiliates or any other person or firm on
behalf of the Trust.
4
(3) The reliance on, or the carrying out by FTAM or its agents or
subcontractors of instructions of the Trust.
(4) The offer or sale of shares of the Trust in violation of any
requirement under the federal securities laws or regulations
or the securities laws or regulations of any state that such
shares be registered in such state or in violation of any stop
order or other determination or ruling by any federal agency
or any state with respect to the offer or sale of such shares
in such state.
Provided, however, that FTAM shall not be protected by this Section
8.02 from liability for any act or omission resulting from FTAM's lack of good
faith, negligence, willful misconduct, or failure to meet the standard of care
set forth hereinabove.
8.03 INDEMNIFICATION BY FTAM
FTAM shall indemnify and hold the Trust harmless from and against any
and all losses, damages, costs, charges, counsel fees, payments, expenses, and
liability arising out of or attributed to any action or failure or omission to
act by FTAM as a result of FTAM's lack of good faith, negligence, willful
misconduct, or failure to meet the standard of care set forth herein.
8.04 RELIANCE.
At any time FTAM may apply to any officer of the Trust for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by FTAM under this
Agreement, and FTAM shall be indemnified by the Trust for any action reasonably
taken or omitted by it in reliance upon such instructions or upon the opinion of
such counsel provided such action is not in violation of applicable federal or
state laws or regulations. FTAM, its agents and subcontractors shall be
protected and indemnified in recognizing stock certificates which are reasonably
believed to bear the proper manual or facsimile signatures of the officers of
the Trust, and the proper countersignature of any current or former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
8.05 NOTIFICATION.
In order that the indemnification provisions contained in this Section
VIII shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
5
SECTION IX
MAINTENANCE OF INSURANCE COVERAGE
At all times during the term of this Agreement, FTAM shall maintain a
Trust's Errors & Omissions insurance policy and Fidelity bond, both of which
shall include coverage of FTAM's officers and employees. The scope of coverage
shall be the same as the minimum required by the 1940 Act.
SECTION X
TERMINATION
Either party may terminate this Agreement on any date by giving the
other party at least ninety (90) days prior written notice of such termination
specifying the date fixed therefor. Upon termination of this Agreement, the
Trust shall pay to FTAM, within five business days from the termination date,
such compensation as may be due as of the date of such termination, and shall
likewise reimburse FTAM for any out-of-pocket expenses and disbursements
reasonably incurred by FTAM to such date. In the event that in connection with
termination of this Agreement a successor to any of FTAM's duties or
responsibilities under this Agreement is designated by the Trust by written
notice to FTAM, FTAM shall, promptly upon such termination and at the expense of
the Trust, transfer to such successor a certified list of the shareholders of
the Trust (with name, address and tax identification number), a record of the
accounts of such shareholders and the status thereof, and all other relevant
books, records and other date established or maintained by FTAM under this
Agreement and shall cooperate in the transfer of such duties and
responsibilities, including provision for assistance from FTAM's cognizant
personnel in the establishment of books, records and other data by such
successor.
SECTION XI
LIMITATION OF LIABILITY
The term "Fifth Third Funds" means and refers to the trustees from time
to time serving under the Trust's Declaration of Trust as the same may
subsequently thereto have been, or subsequently hereto may be, amended. It is
expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the trustees, shareholders, nominees, officers, agents or
employees of the Trust, personally, but bind only the Trust property of the
Trust. The execution and delivery of this Agreement have been duly authorized by
the Trustees of the Trust and signed by an officer of the Trust.
6
SECTION XII
NOTICES
Any notices under this Agreement shall be in writing, addressed and delivered or
mailed postage paid to the other party at such address as such other party may
designate for the receipt of such notice. Until further notice to the other
party, it is agreed that the address of the Trust shall be 00 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxx, Xxxx 00000, and the address of FTAM shall be 00 Xxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000.
SECTION XIII
ASSIGNMENT
FTAM may assign and transfer any and all obligations and duties under
this Agreement to its agent(s) and the Trust shall deal with FTAM's agent(s) the
same as if FTAM itself. FTAM shall remain responsible for all obligations and
duties performed by agents of FTAM.
SECTION XIV
MATTERS RELATING TO THE TRUST AS A MASSACHUSETTS BUSINESS TRUST
This Agreement shall be governed by the laws of the state of Ohio. The
names "Fifth Third Funds" and "Trustees of Fifth Third Funds" refer respectively
to the Trust created and the Trustees, as trustees but not individually or
personally, acting from time to time under the Declaration of Trust dated as of
September 15, 1988, to which reference is hereby made and a copy of which is on
file at the office of the Secretary of the State of the Commonwealth of
Massachusetts and elsewhere as required by law, and to any and all amendments
thereto so filed or hereafter filed. The obligations of "Fifth Third Funds"
entered into in the name or on behalf thereof by any of the Trustees,
representatives or agents are made not individually, but in such capacities and
are not binding upon any of the Trustees, shareholders or representatives of the
Trust personally, but bind only the assets of the Trust, and all persons dealing
with any series of shares of the Trust must look solely to the assets of the
Trust belonging to such series for the enforcement of any claims against the
Trust.
SECTION XV
MISCELLANEOUS
Nothing in this Agreement shall prevent FTAM or any affiliated person
(as defined in the 0000 Xxx) of FTAM from providing services for any other
person, firm or corporation (including other investment companies); provided,
however, that FTAM expressly represents that it will undertake no activities
which, in its judgment, will adversely affect the performance of its obligations
to the Trust under this Agreement.
7
The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions hereof or
other wise affect their construction or effect.
In the event any provision of this Agreement is determined to be void
or unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
Each party agrees to perform such further acts and execute such further
documents as are necessary to effectuate the purposes hereof.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
Each of the undersigned expressly warrants and represents that he has
the full power and authority to sign this Agreement on behalf of the party
indicated, and that his signature will operate to bind the party indicated to
the foregoing term.
This Agreement shall be governed by the laws of the state of Ohio.
Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term or provision
of the 1940 Act shall be resolved by reference to such term or provision of the
1940 Act and to interpretations thereof, in any, by the United State Courts or
in the absence of any controlling decision of any such court, by rules,
regulations or orders of the Securities and Exchange Commission issued pursuant
to the 1940 Act. In addition, where the effect of a requirement of the 1940 Act,
reflected in any provision of this Agreement is revised by rule, regulation or
order of the Securities and Exchange Commission, such provision shall be deemed
to incorporate the effect of such rule, regulation or order.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
FIFTH THIRD FUNDS FIFTH THIRD ASSET MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ X. X. Xxxxx
------------------------ ---------------
Name: Xxxxxxx X. Xxxxxxxxx Name: X. X. Xxxxx
Title: Vice President Title: President
8
DATED: MAY 18, 2007
SCHEDULE A
TO THE
ACCOUNTING SERVICES AGREEMENT
BETWEEN FIFTH THIRD FUNDS
AND FIFTH THIRD ASSET MANAGEMENT, INC. ("FTAM")
The following sets forth the list of Funds included and the compensation paid by
the Funds to FTAM for its services under the Accounting Services Agreement:
I. FUNDS:
Fifth Third Government Money Market Fund
Fifth Third Prime Money Market Fund
Fifth Third Municipal Money Market Fund
Fifth Third U.S. Treasury Money Market Fund
Fifth Third Institutional Government Money Market Fund
Fifth Third Institutional Money Market Fund
Fifth Third Michigan Municipal Money Market Fund
Fifth Third Ohio Tax Exempt Money Market Fund
Fifth Third Quality Growth Fund
Fifth Third Disciplined Large Cap Value Fund
Fifth Third Dividend Growth Fund
Fifth Third Balanced Fund
Fifth Third Mid Cap Growth Fund
Fifth Third International Equity Fund
Fifth Third Technology Fund
Fifth Third Intermediate Bond Fund
Fifth Third High Yield Bond Fund
Fifth Third Bond Fund
Fifth Third U.S. Government Bond Fund
Fifth Third Intermediate Municipal Bond Fund
Fifth Third Ohio Municipal Bond Fund
Fifth Third Strategic Income Fund
Fifth Third Multi Cap Value Fund
Fifth Third Micro Cap Value Fund
Fifth Third Small Cap Growth Fund
Fifth Third Equity Index Fund
Fifth Third Large Cap Core Fund
Fifth Third Short Term Bond Fund
Fifth Third Michigan Municipal Bond Fund
Fifth Third Municipal Bond Fund
Fifth Third LifeModel Conservative FundSM
9
Fifth Third LifeModel Moderately Conservative FundSM
Fifth Third LifeModel Moderate FundSM
Fifth Third LifeModel Moderately Aggressive FundSM
Fifth Third LifeModel Aggressive FundSM
Fifth Third Small Cap Value Fund
II. COMPENSATION:
Fund Accounting Fees (Per Fund Per Year)
Assets Fees
Up to $500 million 0.020%
Over $500 million and up to $1 billion 0.015%
Over $1 billion 0.010%
There shall be an annual fee of $10,000 per additional class of shares
per Fund. The minimum annual fee per Fund shall be $30,000.
In addition to the above Fund accounting fees, the Funds shall
reimburse FTAM for certain out-of-pocket expenses, including pricing of
portfolio securities.
FIFTH THIRD FUNDS FIFTH THIRD ASSET MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ X. X. Xxxxx
------------------------ ---------------
Name: Xxxxxxx X. Xxxxxxxxx Name: X. X. Xxxxx
Title: Vice President Title: President
10
