ACCOUNTING SERVICES AGREEMENT
BETWEEN
KALMAR POOLED INVESTMENT TRUST
AND
XXXXXX SQUARE MANAGEMENT CORPORATION
THIS ACCOUNTING SERVICES AGREEMENT is made as of the 31st
day of January, 1997, between Kalmar Pooled Investment Trust, a
Delaware business trust (the "Trust") having its principal place
of business in Greenville, Delaware, and Xxxxxx Square Management
Corporation, a Delaware corporation ("Xxxxxx Square") having its
principal place of business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment
Company Act of 1940, as amended (the "1940 Act") as an open-end,
management investment company and offers for public sale one or
more series of shares of beneficial interest ("Series"), each of
which may offer one or more sub-series (or classes) of shares;
WHEREAS, each share of a Series represents an undivided
interest in the assets, subject to the liabilities, allocated to
that series and each Series has a separate investment objective
and investment policies;
WHEREAS, at the present time, the Trust has established two
Series, each with a single class of shares and the Trust may
establish additional Series and/or classes in the future; and
WHEREAS, the Trust desires to avail itself of the services
of Xxxxxx Square to provide certain accounting services; and
Xxxxxx Square is willing to furnish such services to the Trust
with respect to each of the Series listed on Appendix A to this
Agreement (each a "Fund" or collectively the "Funds"), as such
Appendix shall be amended from time to time on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual
covenants herein contained, it is agreed between the parties
hereto as follows:
1. APPOINTMENT. The Trust hereby appoints Xxxxxx Square
to provide certain accounting services to the Trust for the
period and on the terms set forth in this Agreement. Xxxxxx
Square accepts such appointment and agrees to furnish the
services herein set forth in return for the compensation as
provided in Paragraph 12 of this Agreement. Xxxxxx Square agrees
to comply with all relevant provisions of the 1940 Act and
applicable rules and regulations thereunder, and to remain open
for business on any day on which the New York Stock Exchange, the
Federal Reserve Bank of Philadelphia and Wilmington Trust Company
are open for business. The Trust may from time to time issue
separate Series or classes or classify and reclassify shares of
such Series or classes. Xxxxxx Square shall identify to each
such Series or class property belonging to such Series or class
and in such reports, confirmations and notices to the Trust
called for under this Agreement shall identify the Series or
class to which such report, confirmation or notice pertains.
2. DOCUMENTS. The Trust has furnished Xxxxxx Square
copies of the Trust's Agreement and Declaration of Trust, By-
Laws, Advisory Agreement, Distribution Agreement, Administration
Agreement, Custody Agreement, Transfer Agency Agreement, most
recent Registration Statement on Form N-1A, current Prospectuses
and Statement of Additional Information (the "SAI") and all forms
relating to any plan, program or service offered by the Trust.
The Trust shall furnish promptly to Xxxxxx Square a copy of any
amendment or supplement to the above-mentioned documents. The
Trust shall furnish promptly to Xxxxxx Square any additional
documents necessary for it to perform its functions hereunder or
such other documents as Xxxxxx Square shall request.
3. DEFINITIONS.
(a) Authorized Person. As used in this Agreement, the term
"Authorized Person" means the President, Treasurer,
Secretary and any Vice President of the Trust and any other
person, whether or not any such person is an officer or
employee of the Trust, duly authorized by the Board of
Trustees of the Trust to give Oral and Written Instructions
on behalf of the Trust and listed on Appendix B as such
Appendix may be amended and provided to Xxxxxx Square from
time to time.
(b) Oral Instructions. As used in this Agreement, the term
"Oral Instructions" means oral instructions actually
received by Xxxxxx Square from an Authorized Person or from
a person reasonably believed by Xxxxxx Square to be an
Authorized Person. The Trust agrees to deliver to Xxxxxx
Square, at the time and in the manner specified in Paragraph
4(b) of this Agreement, Written Instructions confirming Oral
Instructions.
(c) Written Instructions. As used in this Agreement, the
term "Written Instructions" means written instructions
delivered by hand, mail, e-mail, tested telegram, cable,
telex or facsimile sending device, and received by Xxxxxx
Square, signed by two Authorized Persons.
4. INSTRUCTIONS CONSISTENT WITH AGREEMENT AND DECLARATION
OF TRUST, ETC.
(a) Unless otherwise provided in this Agreement, Xxxxxx
Square shall act only upon Oral and Written Instructions.
Although Xxxxxx Square may know of the provisions of the
Agreement and Declaration of Trust and By-Laws of the Trust,
Xxxxxx Square may assume that any Oral or Written
Instructions received hereunder are not in any way
inconsistent with any provisions of such Trust Instrument or
By-Laws or any vote, resolution or proceeding of the
Shareholders, or of the Board of Trustees, or of any
committee thereof.
(b) Xxxxxx Square shall be entitled to rely upon any Oral
Instructions and any Written Instructions actually received
by Xxxxxx Square pursuant to this Agreement. The Trust
agrees to forward to Xxxxxx Square Written Instructions
confirming Oral Instructions in such manner that the Written
Instructions are received by Xxxxxx Square, whether by hand
delivery, telex, facsimile sending device or otherwise, by
the close of business of the same day that such Oral
Instructions are given to Xxxxxx Square. The Trust agrees
that the fact that such confirming Written Instructions are
not received by Xxxxxx Square shall in no way affect the
validity of the transactions or enforceability of the
transactions authorized by the Trust by giving Oral
Instructions.
The Trust agrees that Xxxxxx Square shall incur no liability
to the Trust in acting upon Oral Instructions given to Xxxxxx
Square hereunder concerning such transactions provided such
instructions reasonably appear to have been received from an
Authorized Person.
5. SERVICES ON A CONTINUING BASIS.
(a) Xxxxxx Square will perform the following accounting
functions on a daily basis:
(i) Journalize each Fund's investment, capital share
and income and expense activities;
(ii) Verify investment buy/sell trade tickets when
received from the
Trust's investment advisor ("Advisor") and
transmit trades to the
Trust's custodian for proper settlement;
(iii) Maintain individual ledgers for investment
securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of each
Fund with the Custodian, and provide the Advisor
with the beginning cash balance available for investment
purposes;
(vi) Update the cash availability throughout the day as
required by the Advisor;
(vii) Post to and prepare each Fund's Statement of
Assets and Liabilities and the Statement of Operations;
(viii) Calculate expenses payable pursuant to the
Fund's various contractual obligations;
(ix) Control all disbursements from the Trust on behalf
of each Fund and authorize such disbursements upon Written
Instructions;
(x) Calculate capital gains and losses;
(xi) Determine each Fund's net income;
(xii) Obtain security market quotes from services
approved by the Advisor, or if such quotes are unavailable,
then obtain such prices from services approved by the Advisor,
and in either case calculate the market or fair value of each
Fund's investments;
(xiii) Transmit or mail a copy of the portfolio
valuation to the Advisor;
(xiv) Compute the net asset value of each class of
each Fund;
(xv) Compute the yield, total return and expense ratio
of each class of each Fund, and each Fund's portfolio
turnover rate; and
(xvi) Monitor the expense accruals and notify Trust
management of any proposed adjustments.
(b) In addition, Xxxxxx Square will:
(i) Prepare monthly financial statements, which will
include without
limitation the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses;
(ii) Prepare monthly security transactions listings;
(iii) Prepare quarterly broker security
transactions summaries;
(iv) Supply various Trust, Fund and class statistical
data as requested on an ongoing basis;
(v) Assist in the preparation of support schedules
necessary for completion of Federal and state tax returns;
(vi) Assist in the preparation and filing of the
Trust's Semi-Annual Reports with the SEC on Form N-SAR;
(vii) Assist in the preparation and filing of the Trust's annual
and semi-annual shareholder reports and proxy statements;
(viii) Assist with the preparation of and Amendments to the Trust's
registration statements on Form N-lA and other filings
relating to the registration of shares; and
(ix) Monitor each Fund's status as a regulated
investment company under Subchapter M of the Internal
Revenue Code of 1986, as amended.
6. RECORDS. Xxxxxx Square shall keep all books and
records with respect to the Trust's books of account and records
of the Trust's securities transactions. The books and records
pertaining to the Trust which are in the possession of Xxxxxx
Square shall be the property of the Trust. Such books and
records shall be prepared and maintained as required by the 1940
Act and other applicable securities laws and rules and
regulations. The Trust, or the Trust's authorized
representatives, shall have access to such books and records at
all times during Xxxxxx Square's normal business hours. Upon the
reasonable request of the Trust, copies of any such books and
records shall be provided by Xxxxxx Square to the Trust or the
Trust's authorized representative at the Trust's expense.
7. LIAISON WITH ACCOUNTANTS. Xxxxxx Square shall act as
liaison with the Trust's independent public accountants and shall
provide account analyses, fiscal year summaries, and other audit
related schedules. Xxxxxx Square 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 opinion, as such may
be required by the Trust from time to time.
8. CONFIDENTIALITY. Xxxxxx Square agrees on behalf of
itself and its employees to treat confidentially and as
proprietary information of the Trust all records and other
information relative to the Trust and its prior, present or
potential Shareholders, and not to use such records and
information for any purpose other than performance of its
responsibilities and duties hereunder, 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 Xxxxxx Square may be exposed to civil or criminal
contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when
so requested by the Trust.
9. EQUIPMENT FAILURES. In the event of equipment failures
beyond Xxxxxx Square's control, Xxxxxx Square shall, at no
additional expense to the Trust, take reasonable steps to
minimize service interruptions but shall have no liability with
respect thereto. Xxxxxx Square shall enter into and shall
maintain in effect with appropriate parties one or more
agreements making reasonable provision of emergency use of
electronic data processing equipment to the extent appropriate
equipment is available.
10. RIGHT TO RECEIVE ADVICE.
(a) Advice of Trust. If Xxxxxx Square shall be in doubt as
to any action to be taken or omitted by it, it may request,
and shall receive, from the Trust directions or advice,
including Oral or Written Instructions where appropriate.
(b) Advice of Counsel. If Xxxxxx Square shall be in doubt
as to any question of law involved in any action to be taken
or omitted by Xxxxxx Square, it may request advice at the
Trust's expense from counsel of its own choosing (who may be
the regularly retained counsel for the Trust or Xxxxxx
Square, at the option of Xxxxxx Square).
(c) Conflicting Advice. In case of conflict between oral
and written instructions received by Xxxxxx Square, Xxxxxx
Square shall be entitled to rely on and follow written
instructions alone. In case of conflict between advice
received from the Trust under (a) and (b) above, Xxxxxx
Square shall be entitled to rely on and follow advice
obtained in accordance with (b) above.
(d) Protection of Xxxxxx Square. Xxxxxx Square shall be
protected in any action or inaction which it takes in
reliance on any directions, advice or Oral or Written
Instructions received pursuant to subsections (a) or (b) of
this paragraph which Xxxxxx Square, after receipt of any
such directions, advice or Oral or Written Instructions, in
good faith believes to be consistent with such directions,
advice or Oral or Written Instructions, as the case may be.
However, nothing in this paragraph shall be construed as
imposing upon Xxxxxx Square any obligation (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 when received, unless, under the terms
of another provision of this Agreement, the same is a
condition to Xxxxxx Square's properly taking or omitting to
take such action
11. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS.
The Trust assumes full responsibility for insuring that the Trust
complies with all applicable requirements of the Securities Act
of 1933 ("1933 Act"), the Securities Exchange Act of 1934, as
amended ("1934 Act"), the 1940 Act, and any laws, rules and
regulations of governmental authorities having jurisdiction.
12. COMPENSATION. For the performance of its obligations
under this Agreement, the Trust on behalf of each Fund, shall pay
Xxxxxx Square in accordance with the fee arrangements described
in Schedule A attached hereto, as such schedule may be amended
from time to time.
13. INDEMNIFICATION. The Trust agrees to indemnify and
hold harmless Xxxxxx Square and any officer, director, or
employee of Xxxxxx Square and any person who controls Xxxxxx
Square within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act (collectively, "Xxxxxx Square
Affiliates") from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation,
liabilities arising under the 1933 Act, the 1934 Act, the 1940
Act, and any other laws, rules and regulations of any
governmental authorities, all as or to be amended from time to
time) and expenses, including (without limitation) attorneys'
fees and disbursements, arising directly or indirectly from any
action or thing which Xxxxxx Square takes or does or omits to
take or do (i) at the request or on the direction of or in
reliance on the written advice of the Trust or (ii) upon Oral or
Written Instructions, provided, that neither Xxxxxx Square nor
any of its nominees shall be indemnified against any liability to
the Trust or to its Shareholders (or any expenses incident to
such liability) arising out of Xxxxxx Square's own willful
misfeasance, bad faith, gross negligence or reckless disregard of
its duties and obligations specifically described in this
Agreement.
14. RESPONSIBILITY OF XXXXXX SQUARE. In the performance of
its duties hereunder, Xxxxxx Square shall be obligated to
exercise care and diligence and to act in good faith and to use
its best efforts within reasonable limits in performing services
provided for under this Agreement. Xxxxxx Square shall be under
no duty to take any action on behalf of the Trust except as
specifically set herein or as may be specifically agreed to by
Xxxxxx Square in writing. Neither Xxxxxx Square nor any Xxxxxx
Square Affiliate shall be liable for any error of judgment or
mistake of law, or for any loss suffered by the Trust in
connection with the matters to which this Agreement relates
except to the extent that such loss. arise out of Xxxxxx Square's
own gross negligence, bad faith or willful misfeasance, or
reckless disregard of obligations and duties under this
Agreement. Any person, even though also an officer, director,
employee or agent of Xxxxxx Square or any of its affiliates who
may be or become an officer or director of the Trust, shall be
deemed, when rendering services to the Trust as such officer or
acting on any business of the Trust in such capacity (other than
services or business in connection with Xxxxxx Square's duties
under this Agreement), to be rendering such services to or acting
solely for the Trust and not as an officer, director, employee or
agent or one under the control or direction of Xxxxxx Square or
any of its affiliates, even though paid by one of those entities.
Xxxxxx Square shall not be liable or responsible for any acts or
omissions of any predecessor administrator or any other persons
having responsibility for matters to which this Agreement relates
nor shall Xxxxxx Square be responsible for reviewing any such
act or omissions.
Without limiting the generality of the foregoing or of any
other provision of this Agreement, Xxxxxx Square in connection
with its duties under this Agreement shall not be under any duty
or obligation to inquire into and shall not be liable for or in
respect of (i) 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 Xxxxxx Square reasonably believes to be
genuine; or (ii) delays or errors or loss of data occurring by
reason of circumstances beyond Xxxxxx Square's control, including
acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdown (except as provided in
paragraph 9), flood or catastrophe, acts of God, insurrection,
war, riots or failure of the mails, transportation, communication
or power supply.
15. DURATION AND TERMINATION. The provisions of this
Agreement may not be changed, waived, discharged or terminated
orally, but only by written instrument that shall make specific
reference to this Agreement and that shall be signed by the party
against which enforcement of such change, waiver, discharge or
termination is sought.
This Agreement shall become effective as of the day and
year first written above, and unless terminated as provided,
shall continue in force for three (3) years from the date of its
execution and thereafter from year to year, provided continuance
after the three (3) year period is approved at least annually by
a vote of the Trustees of the Trust. This Agreement may at any
time be terminated on sixty (60) days' written notice given to
Xxxxxx Square or by Xxxxxx Square by six (6) months' written
notice given to the Trust; provided, however, that the foregoing
provisions of this Agreement may be terminated immediately at any
time for cause either by the Trust or by Xxxxxx Square in the
event that such cause shall have remained unremedied for sixty
(60) days or more after receipt of written specification of such
cause. Any such termination shall not affect the rights and
obligations of the parties under Section 13 hereof.
Upon the termination of this Agreement, the Trust shall
pay to Xxxxxx Square such compensation as may be payable for the
period prior to the effective date of such termination, including
reimbursement for any out-of-pocket expenses reasonably incurred
by Xxxxxx Square to such date. In the event that the Trust
designates a successor to any of Xxxxxx Square's obligations
hereunder, Xxxxxx Square shall, at the expense and direction of
the Trust, transfer to such successor all relevant books, records
and other data established or maintained by Xxxxxx Square under
the foregoing provisions.
16. NOTICES. Any notice under this Agreement shall be
given in writing addressed and delivered or mailed, postage
prepaid, to the other party to this Agreement at its principal
place of business.
17. FURTHER ACTIONS. Each party agrees to perform such
further acts and execute such further documents as are necessary
to effectuate the purposes hereof.
18. AMENDMENTS. This Agreement or any part hereof may be
changed or waived only by an instrument in writing signed by the
party against which enforcement of such change or waiver is
sought.
19. DELEGATION. On thirty (30) days' prior written notice
to the Trust, Xxxxxx Square may assign all its rights and
delegate its duties hereunder to any wholly-owned direct or
indirect subsidiary of Wilmington Trust Company provided that (i)
the delegate agrees with Xxxxxx Square to comply with all
relevant provisions of the 1940 Act and applicable rules and
regulations; (ii) Xxxxxx Square shall remain responsible for the
performance of all of its duties under this Agreement; (iii)
Xxxxxx Square and such delegate shall promptly provide such
information as the Trust may request; and (iv) Xxxxxx Square
shall respond to such questions as the Trust may ask, relative to
the delegation, including (without limitation) the capabilities
of the delegate.
20. MISCELLANEOUS.
(a) Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof. 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. This Agreement may be executed in two counterparts,
each of which taken together shall constitute one and the same
instrument.
(b) This Agreement embodies the entire agreement and
understanding between the parties thereto, and supersedes all
prior agreements and understandings, relating to the subject
matter hereof, provided that the parties hereto may embody in one
or more separate documents their agreement, if any, with respect
to Written and/or Oral Instructions. 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. This Agreement
shall be deemed to be a contract made in Delaware and governed by
Delaware law. 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.
This Agreement shall be binding and shall inure to the benefits
of the parties hereto and their respective successors.
(c) Xxxxxx Square is hereby expressly put on notice of the
limitation of shareholder liability as set forth in the Trust
Instrument of the Trust and agree that obligations assumed by the
Trust under this Agreement shall be limited in all cases to the
Trust and its assets, and if the liability relates to one or more
Funds, the obligations hereunder shall be limited to the
respective assets of such Fund or Funds. Xxxxxx Square further
agrees that it shall not seek satisfaction of any such
obligations from the shareholders or any individual shareholder
of the Funds, nor from the Trustees or any individual Trustee of
the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below on
the day and year first written above.
KALMAR POOLED INVESTMENT TRUST
By: /s/ Ford X. Xxxxxx, Xx.
------------------------------
Ford X. Xxxxxx, Xx., President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx., President
APPENDIX A
ACCOUNTING SERVICES AGREEMENT
KALMAR POOLED INVESTMENT TRUST
FUND LISTINGS AND FEE SCHEDULE
For accounting services provided to Kalmar Pooled Investment
Trust pursuant to this Accounting Services Agreement, Xxxxxx
Square Management Corporation shall receive an annual fee for the
first class of each portfolio calculated as follows:
$45,000 for assets up to $50 million, plus;
0.03% of the next $50 million in assets, plus;
0.02% of assets in excess of $100 million.
The fee paid by each additional class of a portfolio shall
be calculated as follows:
$12,000 for assets up to $50 million, plus;
0.02% of assets in excess of $50 million
PORTFOLIOS:
Kalmar "Growth-with-Value" Small Cap Fund
Kalmar "Growth-with-Value" Micro Cap Fund
This accounting fee shall be payable monthly as soon as
practicable after the last day of each month based on the average
of the daily net assets of each Portfolio, as determined at the
close of business on each day throughout the month.
Out of pocket expenses shall be reimbursed by the Trust to Xxxxxx
Square or paid directly by the Trust.
LIQUIDATED DAMAGES:
Upon the termination of the attached Agreement within the initial
three (3) year term by the Trust or the Trust's Board of Trustees,
the Trust shall pay to Xxxxxx Square six (6) months of base fees
in liquidated damages with respect to each Portfolio.
APPENDIX B
ACCOUNTING SERVICES AGREEMENT
KALMAR POOLED INVESTMENT TRUST
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board of
Trustees to give Oral and Written Instructions on behalf of the
Portfolios:
Ford X. Xxxxxx, Xx.
Xxx X. Xxxxx
Xxxxxxxx X. XxXxxxxxx
Xxxxx Xxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxx
