FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this 1st day of December, 1996, between Select
Advisors Trust C, a Massachusetts business trust (the "Fund") and Investors
Bank & Trust Company ("IBT").
The Fund, an open-end management investment company, on behalf of the
portfolios listed on APPENDIX A hereto, desires to retain IBT to perform
certain fund accounting services for the Fund, and IBT has indicated its
willingness to so act, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS. Whenever used herein, the terms listed below will have
the following meaning:
1.1 AUTHORIZED PERSON. Authorized Person will mean any of the persons
duly authorized to give Proper Instructions or otherwise act on behalf of the
Fund by appropriate resolution of its Board, and set forth in a certificate as
required by Section 1.4 hereof.
1.2 BOARD. Board will mean the Board of Trustees of the Fund, as the
case may be.
1.3 OFFICERS' CERTIFICATE. Officers' Certificate will mean, unless
otherwise indicated, any request, direction, instruction, or certification in
writing signed by any two Authorized Persons of the Fund.
1.4 PROPER INSTRUCTIONS. Proper Instructions shall mean instructions
(which may be continuing instructions) regarding matters signed or initialed
by an Authorized Person. Oral instructions will be considered Proper
Instructions if IBT reasonably believes them to have been given by an
Authorized Person. The Fund shall cause all oral instructions to be promptly
confirmed in writing. IBT shall act upon and comply with any subsequent
Proper Instruction which modifies a prior instruction and the sole obligation
of IBT with respect to any follow-up or confirmatory instruction shall be to
make reasonable efforts to detect any discrepancy between the original
instruction and such confirmation and to report such discrepancy to the Fund.
The Fund shall be responsible, at the Fund's expense, for taking any action,
including any reprocessing, necessary to correct any such discrepancy or
error, and to the extent such action requires IBT to act, the Fund shall give
IBT specific Proper Instructions as to the action required. Upon receipt by
IBT of an Officers' Certificate as to the authorization by the Board
accompanied by a detailed description of procedures approved by the Fund,
Proper Instructions may include communication effected directly between
electro-mechanical or electronic devices provided that the Board and IBT
agree in writing that such procedures afford adequate safeguards for the
Fund's assets.
2. CERTIFICATION AS TO AUTHORIZED PERSONS. The Secretary or Assistant
Secretary of the Fund will at all times maintain on file with IBT his or her
certification to IBT, in such form as may be acceptable to IBT, of (i) the
names and signatures of the Authorized Persons and (ii) the names of the
members of the Board, it being understood that upon the occurrence of any
change in the information set forth in the most recent certification on file
(including without limitation any person named in the most recent
certification who is no longer an Authorized Person as designated therein),
the Secretary or Assistant Secretary of the Fund will sign a new or amended
certification setting forth the change and the new, additional or omitted
names or signatures. IBT will be entitled to rely and act upon any Officers'
Certificate given to it by the Fund which has been signed by Authorized
Persons named in the most recent certification received by IBT.
3. FUND EVALUATION AND YIELD CALCULATION
3.1 FUND EVALUATION. IBT shall compute and, unless otherwise directed
by the Board, determine as of the close of regular trading on the New York
Stock Exchange on each day on which said Exchange is open for unrestricted
trading and as of such other days, or hours, if any, as may be authorized by
the Board, the net asset value and the public offering price of a share of
capital stock of the Fund, such determination to be made in accordance with
the provisions of the Declaration of Trust and By-laws of the Fund and the
Prospectus and Statement of Additional Information relating to the Fund, as
they may from time to time be amended, and any applicable resolutions of the
Board at the time in force and applicable; and promptly to notify the Fund,
the proper exchange and the NASD or such other persons as the Fund may
request of the results of such computation and determination. In computing
the net asset value hereunder, IBT may rely in good faith upon information
furnished to it by any Authorized Person in respect of (i) the manner of
accrual of the liabilities of the Fund and in respect of liabilities of the
Fund not appearing on its books of account kept by IBT, (ii) reserves, if
any, authorized by the Board or that no such reserves have been authorized,
(iii) the source of the quotations to be used in computing the net asset
value, (iv) the value to be assigned to any security for which no price
quotations are available, and (v) the method of computation of the public
offering price on the basis of the net asset value of the shares, and IBT
shall not be responsible for any loss occasioned by such reliance or for any
good faith reliance on any quotations received from a source pursuant to
(iii) above.
3.2. YIELD CALCULATION. IBT will compute the performance results of
the Fund (the "Yield Calculation") in accordance with the provisions of
Release No. 33-6753 and Release No. IC-16245 (February 2, 1988) (the
"Releases") promulgated by the Securities and Exchange Commission, and any
subsequent amendments to, published interpretations of or general conventions
accepted by the staff of the Securities and Exchange Commission with respect
to such releases or the subject matter thereof ("Subsequent Staff
Positions"), subject to the terms set forth below:
(a) IBT shall compute the Yield Calculation for the Fund for the
stated periods of time as shall be mutually agreed upon, and communicate in a
timely manner the result of such computation to the Fund.
(b) In performing the Yield Calculation, IBT will derive the items of
data necessary for the computation from the records it generates and maintains
for the Fund pursuant Section 11 hereof. IBT shall have no responsibility to
review, confirm, or otherwise assume any duty or liability with respect to the
accuracy or correctness of any such data supplied to it by the Fund, any of the
Fund's designated agents or any of the Fund's designated third party providers.
(c) At the request of IBT, the Fund shall provide, and IBT shall be
entitled to rely on, written standards and guidelines to be followed by IBT
in interpreting and applying the computation methods set forth in the
Releases or any Subsequent Staff Positions as they specifically apply to the
Fund. In the event that the computation methods in the Releases or the
Subsequent Staff Positions or the application to the Fund of a standard or
guideline is not free from doubt or in the event there is any question of
interpretation as to the characterization of a particular security or any
aspect of a security or a payment with respect thereto (e.g., original issue
discount, participating debt security, income or return of capital, etc.) or
otherwise or as to any other element of the computation which is pertinent to
the Fund, the Fund or its designated agent shall have the full responsibility
for making the determination of how the security or payment is to be treated
for purposes of the computation and how the computation is to be made and
shall inform IBT thereof on a timely basis. IBT shall have no responsibility
to make independent determinations with respect to any item which is covered
by this Section, and shall not be
2
responsible for its computations made in accordance with such determinations so
long as such computations are mathematically correct.
(d) The Fund shall keep IBT informed of all publicly available
information relating specifically to the Fund (as opposed to investment
companies generally) and of any non-public advice, or non-public information
obtained by the Fund from its independent auditors or by its personnel or the
personnel of its investment adviser related to the computations to be
undertaken by IBT pursuant to this Agreement and IBT shall not be deemed to
have knowledge of such information (except as contained in the Releases and
the Subsequent Staff Positions or as publicly available regarding investment
companies generally) unless it has been furnished to IBT in writing.
4. FEES. For the services rendered pursuant to this Agreement, the Fund
agrees to pay IBT the fees set forth on APPENDIX B hereto.
5. ADDITIONAL SERVICES. IBT shall perform the additional services for
the Fund as are set forth on APPENDIX C hereto. APPENDIX C may be amended from
time to time upon agreement of the parties to include further additional
services to be provided by IBT to the Fund, at which time the fees set forth in
APPENDIX B shall be appropriately increased.
6. LIMITATION OF LIABILITY.
6.1 IBT, its directors, officers, employees and agents shall not be
liable for any error of judgment or mistake of law or for any loss suffered
by the Fund in connection with the performance of its obligations and duties
under this Agreement, except in respect of an error, mistake or loss
resulting from willful misfeasance, bad faith or negligence in the
performance of such obligations and duties, or by reason of its disregard
thereof or a material breach of the provisions hereof.
6.2 The Fund will indemnify IBT, its directors, officers, employees
and agents against and hold it and them harmless from any and all losses,
claims, damages, liabilities or expenses (including legal fees and expenses)
resulting from any claim, demand, action or suit (i) arising as a result of
any act or omission by IBT or any of its officers, directors, employees or
agents in good faith reliance upon the terms of this Agreement, any Officer's
Certificate or Proper Instructions; (ii) arising as a result of information
supplied by any Authorized Person and relied on in good faith by IBT in
connection with the calculation of (A) the net asset value and public
offering price of the shares of capital stock of the Fund or (B) the Yield
Calculation; or (iii) not resulting from the willful misfeasance, bad faith
or negligence of IBT in the performance of such obligations and duties or by
reason of its disregard thereof or a material breach of the provisions
hereof.
6.3 IBT may apply to the Fund at any time for instructions and may
consult counsel for the Fund (except as to matters where the interests of the
Fund and IBT, in the opinion of such counsel, differ), or its own counsel,
knowledgeable in the field, and with accountants and other experts with
respect to any matter arising in connection with its duties hereunder, and
IBT shall not be liable or accountable for any action taken or omitted by it
in good faith in accordance with such instruction, or with the opinion of
such counsel, accountants, or other experts. IBT shall not be liable for any
act or omission taken or not taken in reliance upon any document, certificate
or instrument which it reasonably believes to be genuine and to be signed or
presented by any person or persons duly authorized by the Fund (as set forth
in a certificate duly executed by an officer of the Fund). IBT shall not be
held to have notice of any change of authority of any officers, employees, or
agents of the Fund until receipt of written notice thereof has been received
by IBT from the Fund.
6.4 In the event IBT is unable to perform, or is delayed in
performing, its obligations under the terms of this Agreement because of acts
of God, strikes, legal constraint, government actions, war,
3
emergency conditions, interruption of electrical power or other utilities,
equipment or transmission failure or damage reasonably beyond its control or
other causes reasonably beyond its control, IBT shall not be liable to the
Fund for any damages resulting from such failure to perform, delay in
performance, or otherwise that is attributable to such causes.
6.5 IBT acknowledges that the portfolios comprising the Fund are
organized under a two-tier financial services structure, known as the Hub &
Spoke -Registered Trademark-(1) structure, under and pursuant to a certain
Hub & Spoke License and Service Agreement dated December 14, 1993 (the
"License Agreement"), by and between the Fund's adviser, Touchstone Advisors,
Inc., and Signature Financial Group, Inc. ("Signature"). As a material
inducement to the Fund to enter into this Agreement, IBT hereby warrants and
represents that IBT is a duly licensed and authorized third party Hub & Spoke
processing agent of Signature, and is duly licensed and authorized by
Signature to provide Hub & Spoke processing and administration services to,
for and on behalf of the Fund and its portfolios in accordance with the terms
of this Agreement; and further, that no consent, which has not already been
obtained in writing by IBT, is required by Touchstone Securities, Inc., or by
either party to this Agreement from Signature in order for IBT to provide Hub
& Spoke processing and administration services, for and on behalf of the Fund
and its portfolios.
6.6 IBT will indemnify the Fund, its trustees, officers, employees
and agents against and hold them harmless from any and all losses, claims,
damages, liabilities or expenses (including legal fees and related expenses)
resulting from any claim, demand, action or suit (i) arising out of IBT's
failure to obtain and maintain in effect all licenses rights and permissions
(all without cost to the Fund for so long as the Fund remains a party to the
License Agreement and the License Agreement remains in full force and effect)
required to enable it to use, to the full extent necessary for the
performance of its duties and obligations under this Agreement, all
intellectual property belonging to Signature Financial Services, Inc. and its
affiliates that relates to the Hub & Spoke structure and related fund
accounting and administration and the software and processes associated
therewith and (ii) resulting from the willful misfeasance, bad faith or
negligence of IBT in the performance of its duties and obligations under this
Agreement or from its disregard thereof.
6.7 In no event shall IBT be liable for special, incidental or
consequential damages, even if advised of the possibility of such damages.
7. TERMINATION.
7.1 The term of this Agreement shall be eighteen months commencing
upon the date hereof (the "Initial Term"), unless earlier terminated as
provided herein. After the expiration of the Initial Term, the term of this
Agreement shall automatically renew for successive one-year terms (each a
"Renewal Term") unless notice of non-renewal is delivered by the non-renewing
party to the other party no later than sixty days prior to the expiration of
the Initial Term or any Renewal Term, as the case may be.
(a) Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term in the event the other party violates any
material provision of this Agreement, provided that the non-violating party
gives written notice of such violation to the violating party and the
violating party does not cure such violation within 60 days of receipt of
such notice.
(b) Either party may terminate this Agreement during any Renewal Term
upon sixty days written notice to the other party. Any termination pursuant to
this paragraph 7.1(b) shall be effective upon expiration of such sixty days,
provided, however, that the effective date of such termination may be postponed,
at the request of the Fund, to a date not more than ninety days after
-------------------------
(1) Hub & Spoke is a registered service xxxx of Signature Financial Group, Inc.
4
delivery of the written notice in order to give the Fund an opportunity to
make suitable arrangements for a successor fund accountant.
(c) If the Fund determines at any time to cease using the Hub &
Spoke structure in the conduct of its business, whether it changes to a
master-feeder, multiple class or other structure, the Fund may terminate this
Agreement if, after the Fund gives IBT at least 30 days prior written notice
of such change, the parties, after making diligent and good faith efforts,
are unable to agree to amendments to this Agreement that are reasonable and
fair to both parties under the circumstances, such termination to be
effective 90 days after the delivery of such prior written notice.
(d) The Fund may terminate this Agreement if and at such time as a
court of competent jurisdiction either (A) finds, after the exhaustion of all
appeals, that the performance by IBT of the services called for by this
Agreement or the engagement by the Fund of IBT to perform such services
infringes the intellectual property rights of Signature Financial Services,
Inc., or any affiliate thereof, in any manner whatsoever, or (B) enjoins or
restrains the performance by Investors Bank of the services called for by
this Agreement.
(e) The Fund may terminate this Agreement if and at such time as
any of the fund accounting agreements between Investors Bank and Select
Advisors Trust C, Select Advisors Portfolio or Select Advisors Variable
Insurance Trust are terminated due to a material violation of the terms of
any such fund accounting agreement by Investors Bank.
7.2 The Fund shall reimburse IBT for any reasonable expenses incurred
by IBT for transition accounting and transfer of records in connection with
the termination of this Agreement.
7.3 At any time after the termination of this Agreement, the Fund
may, upon written request, have reasonable access to the records of IBT
relating to its performance of its duties as hereunder.
8. CONFIDENTIALITY. Both parties hereto agree that any non-public
information obtained hereunder concerning the other party is confidential and
may not be disclosed without the consent of the other party, except as may be
required by applicable law or at the request of a governmental agency. The
parties further agree that a breach of this provision would irreparably
damage the other party and accordingly agree that each of them is entitled,
in addition to all other remedies at low or in equal to an injunction or
injunctions without bond or other security to prevent breaches of this
provision.
9. NOTICES. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and delivered via (I) United
States Postal Service registered mail, (ii) telecopier with written
confirmation, (iii) hand delivery with signature to such party at its office
at the address set forth below, namely:
(a) In the case of notices sent to the Fund to:
Select Advisors Trust C
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
5
(b) In the case of notices sent to IBT to:
Investors Bank & Trust Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxx, Client Manager
With a copy to: Xxxx X. Xxxxx, General Counsel
or at such other place as such party may from time to time designate
in writing.
10. AMENDMENTS. This Agreement may not be altered or amended, except by
an instrument in writing, executed by both parties.
11. PARTIES. This Agreement will be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement will not be assignable by the Fund
without the written consent of IBT or by IBT without the written consent of
the Fund, authorized and approved by its Board; and provided further that
termination proceedings pursuant to Section 16 hereof will not be deemed to
be an assignment within the meaning of this provision.
12. GOVERNING LAW. This Agreement and all performance hereunder will be
governed by the laws of the Commonwealth of Massachusetts, without regard to
conflict of laws provisions.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
14. ENTIRE AGREEMENT. This Agreement, together with its Appendices,
constitutes the sole and entire agreement between the parties relating to the
subject matter herein and does not operate as an acceptance of any
conflicting terms or provisions of any other instrument and terminates and
supersedes any and all prior agreements and undertakings between the parties
relating to the subject matter herein.
15. LIMITATION OF LIABILITY. IBT is hereby expressly put on notice of
the limitation of liability set forth in the Declaration of Trust of the Fund
and agrees that the obligations assumed by the Fund hereunder shall be
limited in all cases to the assets of the Fund and that IBT shall not seek
satisfaction of any such obligation from the officers, agents, employees,
trustees, or shareholders of the Fund.
16. SEVERAL OBLIGATIONS OF THE PORTFOLIOS. This Agreement is an agreement
entered into between IBT and the Fund with respect to each Portfolio. With
respect to any obligation of the Fund on behalf of any Portfolio arising out of
this Agreement, IBT shall look for payment or satisfaction of such obligation
solely to the assets of the Portfolio to which such obligation relates as though
IBT had separately contracted with the Fund by separate written instrument with
respect to each Portfolio.
6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first written above.
SELECT ADVISORS TRUST C
By:
---------------------------------
Name:
Title:
INVESTORS BANK & TRUST COMPANY
By:
---------------------------------
Name:
Title:
7
APPENDIX A
PORTFOLIOS
Touchstone Emerging Growth Fund C
Touchstone International Equity Fund C
Touchstone Growth & Income Fund C
Touchstone Balanced Fund C
Touchstone Income Opportunity Fund C
Touchstone Bond Fund C
Touchstone Standby Income Fund
Touchstone Municipal Bond Fund C
APPENDIX C
ADDITIONAL SERVICES
None
2
