EXHIBIT 99.B(h)(2)
XXXXX FARGO VARIABLE TRUST
FUND ACCOUNTING AGREEMENT
September 17, 1999
AGREEMENT made as of the 17th day of September, 1999, by and between Xxxxx
Fargo Variable Trust, a business trust organized under the laws of the State of
Delaware, with its principal office and place of business at 000 Xxxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000 (the "Trust"), and Forum Accounting Services, LLC
("Forum") a Delaware limited liability company with its principal office and
place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000.
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
may issue its shares of beneficial interest (the "Shares"), in separate series
and classes; and
WHEREAS, the Trust offers shares in various series as listed in Appendix A
hereto (each such series, together with all other series subsequently
established by the Trust and subject to this Agreement in accordance with
Section 6, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offers shares of various classes of each Fund as listed
in Appendix A hereto (each such class together with all other classes
subsequently established by the Trust in a Fund being herein referred to as a
"Class," and collectively as the "Classes");
WHEREAS, the Trust desires that Forum perform certain fund accounting
services for each Fund and Class thereof and Forum is willing to provide those
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Forum hereby agree as follows:
SECTION 1. APPOINTMENT
The Trust hereby appoints Forum, and Forum hereby agrees, to act as fund
accountant of the Trust for the period and on the terms set forth in this
Agreement. In connection therewith, the Trust has delivered to Forum copies of
(i) the Trust's Trust Instrument and, if applicable, Bylaws (collectively, as
amended from time to time, "Organic Documents"), (ii) the Trust's Registration
Statement and all amendments thereto filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"), (iii) the
Trust's current Prospectus and Statement of Additional Information of each Fund
(collectively, as currently in effect and as amended or supplemented, the
"Prospectus") and (iv) all procedures adopted by the Trust with respect to the
Funds (e.g., repurchase agreement procedures), and shall promptly furnish Forum
with all amendments of or supplements to the foregoing. The Trust shall deliver
to Forum a certified copy of the resolution of the Board of Trustees of the
Trust (the "Board") appointing Forum and authorizing the execution and delivery
of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Forum and Xxxxx Fargo Bank, N.A., the Trust's administrator
(collectively with its agents, the "Administrator"), may from time to time adopt
such procedures as they agree upon to implement the terms of this Section. With
respect to each Fund, Forum shall perform the following services:
(i) calculate the net asset value per share ("NAV") with the frequency
prescribed in each Fund's then-current Prospectus;
(ii) calculate each item of income, expense, deduction, credit, gain and
loss, if any, as required by the Trust and in conformance with generally
accepted accounting practice ("GAAP"), the SEC's Regulation S-X (or any
successor regulation) and the Internal Revenue Code of 1986, as amended (or
any successor laws)(the "Code");
(iii) Maintain each Fund's general ledger and record all income, gross
expenses, capital share activity and security transactions of each Fund;
(iv) calculate the yield, effective yield, tax equivalent yield and total
return for each Fund, and each Class thereof, as applicable, and such other
measure of performance as may be agreed upon between the parties hereto;
(v) provide the Trust and such other persons as the Administrator may
direct with the following reports (A) a current security position report,
(B) a summary report of transactions and pending maturities (including the
principal, cost, and accrued interest on each portfolio security in
maturity date order), and (C) a current cash position and projection
report;
(vi) prepare and record, as of each time when the net asset value of a
Fund is calculated or as otherwise directed by the Trust, either (A) a
valuation of the assets of the Fund (based upon the use of outside services
normally used and contracted for this purpose by Forum in the case of
securities for which information and market price or yield quotations are
readily available and based upon evaluations conducted in accordance with
the Trust's instructions in the case of all other assets) or (B) a
calculation confirming that the market value of the Fund's assets does not
deviate from the amortized cost value of those assets by more than a
specified percentage;
(vii) make such adjustments over such periods as the Administrator deems
necessary to reflect over-accruals or under-accruals of estimated expenses
or income;
(viii)request any necessary information from the Administrator and the
Trust's transfer agent and distributor and prepare the Trust's Form N-SAR;
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(ix) provide appropriate records to assist the Trust's independent
accountants and, upon approval of the Trust or the Administrator, any
regulatory body in any requested review of the Trust's books and records
maintained by Forum;
(x) prepare the Funds' semi-annual financial statements to the Trust's
shareholders;
(xi) file the Funds' semi-annual financial statements with the SEC or
ensure that the Funds' semi-annual financial statements are filed with the
SEC;
(xii) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information with respect to investment companies;
(xiii) provide the Trust or the Administrator with the data requested by
the Trust or the Administrator that is required to update the Registration
Statement;
(xiv) provide the Trust or independent accountants with all information
requested with respect to the preparation of the Trust's income, excise and
other tax returns;
(xv) prepare, or prepare, execute and file all Federal income and excise
tax returns and state income and other tax returns, including any
extensions or amendments, each as agreed between the Trust and Forum;
(xvi) produce quarterly compliance reports for investment advisers to the
Trust and the Board and provide information to the Administrator,
investment advisers to the Trust and other appropriate persons with respect
to questions of Fund compliance;
(xvii) determine the amount of distributions to shareholders as necessary
to, among other things, maintain the qualification of each Fund as a
regulated investment company under the Code, and prepare and distribute to
appropriate parties notices announcing the declaration of distributions to
shareholders;
(xviii)transmit to and receive from each Fund's transfer agent
appropriate data to reconcile daily Shares outstanding and other data with
the transfer agent;
(xix) periodically reconcile all appropriate data with each Fund's
custodian;
(xx) verify investment trade tickets when received from an investment
adviser and maintain individual ledgers and historical tax lots for each
security;
(xxi) report to the Trust and the Administrator within 15 days after the
end of each calendar month, Forum's compliance for the prior month with the
written service level standards agreed upon from time to time by the Trust
and Forum (the "Service Standards"). The initial Service Standards are
attached as Appendix B hereto; and
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(xxii) perform such other recordkeeping, reporting and other tasks as may
be specified from time to time in the procedures adopted by the Board
pursuant to mutually acceptable compensation and implementation agreements.
(b) Forum shall prepare and maintain on behalf of the Trust the
following books and records of each Fund, and each Class thereof, pursuant to
Rule 31a-1 under the 1940 Act (the "Rule"):
(i) Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and disbursements of cash
and all other debits and credits, as required by subsection (b)(1) of the
Rule;
(ii) General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, as required by subsection
(b)(2) of the Rule (but not including the ledgers required by subsection
(b)(2)(iv) of the Rule);
(iii) A record of each brokerage order given by or on behalf of the Trust
for, or in connection with, the purchase or sale of securities, whether
executed or not, and all other portfolio purchases or sales, as required by
subsections (b)(5) and (b)(6) of the Rule;
(iv) A record of all options, if any, in which the Trust has any direct
or indirect interest or which the Trust has granted or guaranteed and a
record of any contractual commitments to purchase, sell, receive or deliver
any property, as required by subsection (b)(7) of the Rule;
(v) A monthly trial balance of all ledger accounts (except shareholder
accounts) as required by subsection (b)(8) of the Rule; and
(vi) Other records required by the Rule or any successor rule or
pursuant to interpretations thereof to be kept by open-end management
investment companies, but limited to those provisions of the Rule
applicable to portfolio transactions and as agreed upon between the parties
hereto.
(c) The books and records prepared and maintained pursuant to Section
2(b) shall be prepared and maintained in such form, for such periods and in such
locations as may be required by the 1940 Act. The books and records pertaining
to the Trust that are in possession of Forum shall be the property of the Trust.
The Trust, the Administrator, or the Trust's or the Administrator's authorized
representatives, shall have access to such books and records at all times during
Forum's normal business hours. Upon the reasonable request of the Trust or the
Administrator, copies of any such books and records shall be provided promptly
by Forum to the Trust or the Trust's authorized representatives at the Trust's
expense. In the event the Trust designates a successor that shall assume any of
Forum's obligations hereunder, Forum shall, at the expense and direction of the
Trust, transfer to such successor all relevant books, records and other data
established or maintained by Forum under this Agreement.
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(d) Forum shall provide the Trust and, subject to agreement to be bound by
the following sentence, the Administrator and any other service provider to the
Trust specified by the Trust, nightly snapshots of such data and information
from Forum's fund accounting system as may be agreed to in writing from time to
time. The Trust acknowledges that the databases, computer programs, screen
formats, report formats, interactive design techniques, and documentation
manuals maintained by Forum on databases under the control and ownership of
Forum or a third party hired by Forum constitute copyrighted, trade secret, or
other proprietary information (collectively, "Proprietary Information") of
substantial value to Forum or the third party. The Trust agrees to treat all
Proprietary Information as proprietary to Forum and further agrees that it shall
not divulge any Proprietary Information to any person or organization except as
may be provided under this Agreement.
(e) Forum shall implement the accounting practices and procedures approved
by the Board as soon as practical following receipt of written notice thereof,
subject to Section 2(a)(xxi).
(f) Nothing contained herein shall be construed to require Forum to
perform any service that could cause Forum to be deemed an investment adviser
for purposes of the 1940 Act or the Investment Advisers Act of 1940, as amended,
or that could cause a Fund to act in contravention of the Fund's Prospectus or
any provision of the 1940 Act. Except as otherwise specifically provided herein,
the Trust assumes all responsibility for ensuring that the Trust complies with
all applicable requirements of the Securities Act, the 1940 Act and any laws,
rules and regulations of governmental authorities with jurisdiction over the
Trust. All references to any law in this Agreement shall be deemed to include
reference to the applicable rules and regulations promulgated under authority of
the law and all official interpretations of such law or rules or regulations.
SECTION 3. STANDARD OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION
(a) Forum shall be under no duty to take any action except as specifically
set forth herein or as may be specifically agreed to by Forum in writing. Forum
shall use its best judgment and efforts in rendering the services described in
this Agreement. Forum shall not be liable to the Trust or any of the Trust's
shareholders for any action or inaction of Forum relating to any event
whatsoever in the absence of bad faith, willful misfeasance or negligence in the
performance or disregard of Forum's duties or obligations under this Agreement.
(b) The Trust agrees to indemnify and hold harmless Forum, its employees,
agents, directors, officers and managers and any person who controls Forum
within the meaning of section 15 of the Securities Act or section 20 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), ("Forum
Indemnitees"), against and from any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees
and other expenses of every nature and character arising out of or in any way
related to Forum's actions taken or failures to act with respect to a Fund that
are consistent with the standard of care set forth in Section 3(a) or based, if
applicable, on good faith reliance upon an
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item described in Section 3(d) (a "Forum Claim"). The Trust shall not be
required to indemnify any Forum Indemnitee if, prior to confessing any Forum
Claim against the Forum Indemnitee, Forum or the Forum Indemnitee does not give
the Trust written notice of and reasonable opportunity to defend against the
Forum Claim in its own name or in the name of the Forum Indemnitee.
(c) Forum agrees to indemnify and hold harmless the Trust, its employees,
agents, directors, officers and managers and any person who controls the Trust
within the meaning of section 15 of the Securities Act or section 20 of the 1934
Act ("Trust Indemnitees"), against and from any and all claims, demands,
actions, suits, judgments, liabilities, losses, damages, costs, charges,
reasonable counsel fees and other expenses of every nature and character arising
out of or in any way related to (i) Forum's actions taken or failures to act
with respect to a Fund that are not consistent with the standard of care set
forth in Section 3(a) or based, if applicable, on good faith reliance upon an
item described in Section 3(d), or (ii) any breach of Forum's representation set
forth in Section 13 (a "Trust Claim"). Forum shall not be required to indemnify
any Trust Indemnitee if, prior to confessing any Trust Claim against the Trust
Indemnitee, the Trust or the Trust Indemnitee does not give Forum written notice
of and reasonable opportunity to defend against the Trust Claim in its own name
or in the name of the Trust Indemnitee.]
(d) A Forum Indemnitee shall not be liable for any action taken or
failure to act in good faith reliance upon:
(i) the advice of the Trust or of reputable counsel, who may be counsel
to the Trust or counsel to Forum, or the advice of in-house counsel of the
Administrator or its affiliates;
(ii) any oral instruction which it receives and which it reasonably
believes in good faith was transmitted by a person or persons authorized by
the Board to give such oral instruction. Provided that Forum has such
reasonable belief, Forum shall have no duty or obligation to make any
inquiry or effort of certification of such oral instruction;
(iii) any written instruction or certified copy of any resolution of the
Board, and Forum may rely upon the genuineness of any such document or copy
thereof reasonably believed in good faith by Forum to have been validly
executed; or
(iv) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report, notice,
consent, order, or other document reasonably believed in good faith by
Forum to be genuine and to have been signed or presented by the Trust or
other proper party or parties;
and no Forum Indemnitee shall be under any duty or obligation to inquire into
the validity or invalidity or authority or lack thereof of any statement, oral
or written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or
any other document or instrument which Forum reasonably believes in good faith
to be genuine.
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(e) Forum shall not be liable for the errors of other service providers to
the Trust, including the errors of pricing services (other than to pursue all
reasonable claims against the pricing service based on the pricing services'
standard contracts entered into by Forum) and errors in information provided by
an investment adviser (including prices and pricing formulas and the untimely
transmission of trade information), custodian or transfer agent to the Trust.
(f) Forum shall reimburse each applicable Fund for any net losses to the
Fund during each NAV Error Period resulting from an NAV Difference that is at
least $0.01 per Fund share but that, as a percentage of Recalculated NAV of such
Fund, is less than 1/2 of 1%. Forum shall reimburse the Fund on its own behalf
and on behalf of each Fund shareholder for any losses experienced by the Fund or
any Fund shareholder, as applicable, during each NAV Error Period resulting from
an NAV Difference that is at least $0.01 per Fund share and that, as a
percentage of Recalculated NAV of such Fund, is at least 1/2 of 1%; provided,
however, that Forum shall not be responsible for reimbursing any Fund with
respect to any shareholder that experiences a loss during any NAV Error Period
of less than $10.
(g) For purposes of this Agreement, (i) the NAV Difference shall mean the
difference between the NAV at which a shareholder purchase or redemption should
have been effected ("Recalculated NAV") and the NAV at which the purchase or
redemption is effected, (ii) NAV Error Period shall mean any Fund business day
or series of two or more consecutive Fund business days during which an NAV
Difference of $0.01 per Fund share or more exists, (iii) NAV Differences and any
Forum liability therefrom are to be calculated each time a Fund's (or Class's)
NAV is calculated, (iv) in calculating any amount for which Forum would
otherwise be liable under this Agreement for a particular NAV error, Fund (or
Class) losses and gains shall be netted and (v) in calculating any amount for
which Forum would otherwise be liable under this Agreement for a particular NAV
error that continues for a period covering more than one NAV determination, Fund
(or Class) losses and gains for the period shall be netted.
SECTION 4. COMPENSATION AND EXPENSES
(a) In consideration of the services provided by Forum pursuant to this
Agreement, the Trust shall pay Forum, with respect to each Fund, the fees set
forth in Clause (i) of Appendix C hereto. In consideration of the services
provided by Forum to begin the operations of a new Fund, the Trust shall pay
Forum, with respect to each Fund, the fees set forth in clause (ii) of Appendix
C hereto. In consideration of additional services provided by Forum to perform
certain functions, the Trust shall pay Forum, with respect to each Fund the fees
set forth in clause (iii) of Appendix C hereto. Nothing in this Agreement shall
require Forum to perform any of the services listed in Section 2(a)(xv) and
clause (iii) of Appendix C hereto, as such services may be performed by the
Fund's independent accountant if appropriate in the judgment of Forum.
All fees payable hereunder shall be accrued daily by the Trust. The fees
payable for the services listed in clauses (i) and (iii) of Appendix C hereto
shall be payable monthly in advance on the tenth Fund business day of each
calendar month for services to be performed during that month. The fees payable
for the services listed in clause (ii) of Appendix C hereto shall be payable
monthly in arrears on the fifth Fund business day of the calendar month
following the
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month in which a Fund commences operations. If fees payable for the services
listed in clause (i) begin to accrue in the middle of a month or if this
Agreement terminates before the end of any month, all fees for the period from
the date on which such accrual begins to the end of that month or from the
beginning of that month to the date of termination, as the case may be, shall be
prorated according to the proportion that the period bears to the full month in
which the commencement or termination occurs. Upon the termination of this
Agreement with respect to a Fund, the Trust shall pay to Forum such compensation
as shall be payable prior to the effective date of termination.
(b) In connection with the services provided by Forum pursuant to this
Agreement, the Trust, on behalf of each Fund, agrees to reimburse Forum for the
expenses set forth in Clause (iv) of Appendix C hereto. Reimbursements shall be
payable as incurred. In addition, the Trust, on behalf of the applicable Fund,
shall reimburse Forum for all reasonably incurred expenses and employee time (at
150% of salary) attributable to any review of the Trust's accounts and records
by the Trust's independent accountants or any regulatory body outside of routine
and normal periodic reviews. Should the Trust exercise its right to terminate
this Agreement, the Trust, on behalf of the applicable Fund, shall reimburse
Forum for all reasonably incurred out-of-pocket expenses and employee time (at
150% of salary) associated with the copying and movement of records and material
to any successor person and providing assistance to any successor person in the
establishment of the accounts and records necessary to carry out the successor's
responsibilities.
(c) Forum may, with respect to questions of law relating to its services
hereunder, apply to and obtain the advice and opinion of counsel to the Trust or
counsel to Forum; provided, however, that Forum shall in all cases first
reasonably attempt to apply to and obtain the advice and opinion of in-house
counsel to the Administrator. In the event that Forum is unable to contact in-
house counsel to the Administrator, it shall nonetheless inform a Vice President
or more senior person at the Administrator of the matters for which it intends
to seek advice and opinion. The costs of any such advice or opinion shall be
borne by the Trust.
SECTION 5. EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT
(a) This Agreement shall become effective with respect to each Fund or
Class on the later of September 17, 1999 or the date of the commencement of
operations of the Fund or Class. Upon effectiveness of this Agreement, it shall
supersede all previous agreements between the parties hereto covering the
subject matter hereof insofar as any such agreement may have been deemed to
relate to the Funds.
(b) This Agreement shall continue in effect with respect to each Fund
until September 30, 2002 (the "Initial Term") and shall continue in effect
thereafter until terminated.
(c) Notwithstanding Section 5(b), this Agreement may be terminated with
respect to any or all Funds at any time after the expiration of the Initial
Term, without the payment of any
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penalty (i) by the Board on 60 days' written notice to Forum or (ii) by Forum on
60 days' written notice to the Trust.
(d) Notwithstanding Section 5(b), this Agreement may be terminated by
either party hereto at any time without notice, whether prior to or after the
expiration of the Initial Term, if:
(i) the other party breaches any material provision of this Agreement,
the terminating party has provided written notice of such breach to the
breaching party and the breaching party has not cured the breach within 30
days of receipt of such notice; provided that such termination notice shall
not be given more than 30 days after the breaching party has cured the
breach;
(ii) the other party becomes the subject of any federal or state
bankruptcy proceeding that is not dismissed within 60 days after the
initiation of such proceeding; provided that such termination shall not
occur more than 60 days after the dismissal of such proceeding; or
(iii) the other party (or in the case of Forum, the Administrator) is
convicted of corporate criminal activity.
(e) Notwithstanding Section 5(b), this Agreement may be terminated by
the Trust at any time, whether prior to or after the expiration of the Initial
Term, if:
(i) Forum fails to meet or exceed [ ]% of the Service Standards:
(A) in any three consecutive months; or
(B) in any six months during any consecutive period of twelve
months;or
(ii) the average cumulative Service Level Percentage (as defined below)
is less than [ ]% in any consecutive period of six months.
Compliance with the Service Standards shall be computed as a fraction, the
numerator of which shall be the number of Service Standard criteria that were
met or exceeded in the month and the denominator of which shall be the number of
Service Standard criteria applicable in such month. The Service level Percentage
shall mean such fraction expressed as a percentage.
Nothing in this paragraph (e) shall in any way diminish the Trust's right to
terminate this Agreement in the event of a breach of a material provision of
this Agreement by Forum pursuant to Section 5(d).
(f) Notwithstanding Section 5(b), this Agreement may be terminated by
Forum at any time, whether prior to or after the expiration of the Initial Term,
without the payment of any penalty on 180 days' written notice to the Trust.
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(g) The provisions of Sections 2(c), 3, 4, 5(g), 5(h), 7, 8, 9(b), 12, 13
and 14 shall survive any termination of this Agreement.
(h) This Agreement and the rights and duties under this Agreement
otherwise shall not be assignable by either Forum or the Trust except by the
specific written consent of the other party. All terms and provisions of this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the respective successors and assigns of the parties hereto.
SECTION 6. ADDITIONAL FUNDS AND CLASSES
In the event that the Trust establishes one or more series of Shares or one
or more classes of Shares after the effectiveness of this Agreement, such series
of Shares or classes of Shares, as the case may be, shall become Funds and
Classes under this Agreement; provided, that such series shall not become Series
hereunder if the Board reasonably determines that Forum is unable to perform the
services.
SECTION 7. CONFIDENTIALITY
Forum agrees to treat all records and other information related to the
Trust as proprietary information of the Trust and, on behalf of itself and its
employees, to keep confidential all such information, except that Forum may
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(c) release such other information as approved in writing by the Trust,
which approval shall not be unreasonably withheld and may not be withheld where
Forum is advised by reputable counsel that it may be exposed to civil or
criminal contempt proceedings for failure to release the information (provided,
however, that Forum shall seek the approval of the Trust as promptly as possible
so as to enable the Trust to pursue such legal or other action as it may desire
to prevent the release of such information) or when so requested by the Trust.
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SECTION 8. FORCE MAJEURE
Forum shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
SECTION 9. ACTIVITIES OF FORUM
(a) Except to the extent necessary to perform Forum's obligations under
this Agreement, nothing herein shall be deemed to limit or restrict Forum's
right, or the right of any of Forum's managers, officers or employees who also
may be a trustee, officer or employee of the Trust, or persons who are otherwise
affiliated persons of the Trust, to engage in any other business or to devote
time and attention to the management or other aspects of any other business,
whether of a similar or dissimilar nature, or to render services of any kind to
any other corporation, trust, firm, individual or association.
(b) Forum may subcontract any or all of its functions or responsibilities
pursuant to this Agreement to one or more affiliated persons who agree to comply
with the terms of this Agreement; provided, that any such subcontracting shall
not relieve Forum of its responsibilities hereunder. Forum shall be responsible
for the acts and omissions of any such person to the same extent as if Forum had
done such acts or made such omissions itself. Forum may pay those persons for
their services, but no such payment will increase Forum's compensation or
reimbursement of expenses from the Trust.
SECTION 10. COOPERATION WITH INDEPENDENT ACCOUNTANTS
Forum shall cooperate, if applicable, with each Fund's independent public
accountants and shall take reasonable action to make all necessary information
available to the accountants for the performance of the accountants' duties.
SECTION 11. SERVICE DAYS
Nothing contained in this Agreement is intended to or shall require Forum,
in any capacity under this Agreement, to perform any functions or duties on any
day other than a business day of the Trust or of a Fund. Functions or duties
normally scheduled to be performed on any day which is not a business day of the
Trust or of a Fund shall be performed on, and as of, the next business day,
unless otherwise required by law.
SECTION 12. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The trustees of the Trust and the shareholders of each Fund shall not be
liable for any obligations of the Trust or of the Funds under this Agreement,
and Forum agrees that, in
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asserting any rights or claims under this Agreement, it shall look only to the
assets and property of the Trust or the Fund to which Forum's rights or claims
relate in settlement of such rights or claims, and not to the trustees of the
Trust or the shareholders of the Funds.
SECTION 13. YEAR 2000
Forum confirms that it has taken all reasonable business steps to ensure
that any system or software used in the operation of its business that is an any
way related to the services provided herein:
(i) manages and manipulates data involving all dates from the 20th and
21st centuries without functional or data abnormality related to such
dates;
(ii) has user interfaces and data fields formatted to distinguish between
dates from the 20th and 21st centuries; and
(iii) represents all data to include indications of the millennium,
century, and decade, as well as the actual year.
SECTION 14. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement; provided,
however, that any damages suffered by the Trust by virtue of the loss by any
Fund of its status as a registered investment company under the 1940 Act shall
in no circumstances be treated as consequential damages for purposes of this
Agreement; provided, further, that the foregoing proviso shall not create any
implication that, in the absence of such proviso, consequential damages would
include any damages of the type or nature referred to therein.
(b) Except for Appendix A to add new Funds and Classes in accordance with
Section 6, no provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
(e) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of the counterparts taken together shall be deemed to
constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered
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severable and not be affected, and the rights and obligations of the parties
shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid .
(g) Section headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by the
parties at their respective principal places of business, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
(i) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the Trust are separate and
distinct from the assets and liabilities of each other Fund and that no Fund
shall be liable or shall be charged for any debt, obligation or liability of any
other Fund, whether arising under this Agreement or otherwise.
(j) No affiliated person, employee, agent, director, officer or manager
of Forum shall be liable at law or in equity for Forum's obligations under this
Agreement.
(k) Each of the undersigned warrants and represents that they have full
power and authority to sign this Agreement on behalf of the party indicated and
that their signature will bind the party indicated to the terms hereof and each
party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting the rights and remedies of creditors and secured parties.
(l) The terms "vote of a majority of the outstanding voting securities,"
"interested person" and "affiliated person" shall have the meanings ascribed
thereto in the 1940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
XXXXX FARGO VARIABLE TRUST
By:__________________________
[Name]
President
FORUM ACCOUNTING SERVICES, LLC
By:____________________________
Xxxxxx X. Xxxx
Director
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