Exhibit 23(h)-2
RECORDKEEPING AND PRICING AGENT AGREEMENT
THIS AGREEMENT made effective as of this 1st day of October, 1992, by and
between XXXXXX ONE HUNDRED AND ONE FUND, INC., a Maryland corporation, having
its principal place of business at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000 ("Fund"), and INVESTORS FIDUCIARY TRUST COMPANY, a state
chartered trust company organized and existing under the laws of the State of
Missouri, having its principal place of business at 000 Xxxx 00xx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx, 00000 ("IFTC"):
WITNESSETH:
WHEREAS, Fund desires to appoint IFTC as Recordkeeping and Pricing Agent
and IFTC desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto, intending to be legally bound, mutually covenant and agree
as follows:
1. APPOINTMENT OF RECORDKEEPING AND PRICING AGENT
Fund hereby constitutes and appoints IFTC as Recordkeeping and Pricing
Agent to calculate the daily net asset value of the Fund and to perform
certain accounting and recordkeeping functions required of Fund as a
registered investment company under the Investment Company Act of 1940, as
amended (the "Act"); to provide certain information necessary for Fund to
file financial and other reports; to prepare, maintain and preserve certain
required books, accounts and records as the basis for such reports; to
perform certain daily functions in connection with such accounts and
records; and, upon request, to act as liaison with the Fund's independent
auditors.
2. DELIVERY OF CORPORATE DOCUMENTS
Fund shall deliver to IFTC prior to the effective date of this Agreement
copies of a resolution of the Board of Directors of Fund appointing IFTC as
Recordkeeping and Pricing Agent for Fund and approving the form of this
Agreement.
3. REPRESENTATIONS AND WARRANTIES OF FUND
A. Fund represents and warrants that it is a corporation duly organized
as an investment company and existing and in good standing under the
laws of the State of Maryland;
B. Fund represents and warrants that it has the power and authority under
applicable laws, its charter document and bylaws, and has taken all
action necessary to enter into and perform this Agreement, including
appropriate authorization from the Fund's Board of Directors;
C. Fund represents and warrants that it has determined that the automated
data processing system on which IFTC shall prepare, maintain and
preserve the books and records of the Fund (the "Portfolio System") is
suitable for its needs;
D. Fund acknowledges that IFTC, as Licensee, and DST Systems, Inc., as
Licensor ("Licensor"), have proprietary rights in and to the Portfolio
System and that the Portfolio System and the programs, documentation,
books, records, lists, pricing schedules, designs, plans and other
information relating to the Portfolio System or the business of IFTC
("IFTC Confidential Information") are confidential and constitute
trade secrets of IFTC;
E. During the term of this Agreement and for a period of five years after
termination of this Agreement, Fund shall preserve the confidentiality
of the IFTC Confidential Information and prevent its disclosure to
persons other than its own employees and agents who reasonably have a
need to know or have access to the IFTC Confidential Information
pursuant to this Agreement, and shall take appropriate action to
protect the rights of IFTC and Licensor as to the IFTC Confidential
Information, including, but not limited to notification to all
employees and agents of the Fund of the necessity to maintain the
confidentiality of IFTC Confidential Information, provided, that IFTC
shall be solely responsible for protecting any trademarks, patents,
copyrights and licenses against unauthorized use and infringement by
parties other than the Fund, its employees and agents.
4. REPRESENTATION AND WARRANTIES OF IFTC
A. IFTC is a trust company duly organized and existing and in good
standing under the laws of the State of Missouri.
B. IFTC has the power and authority under applicable laws, its charter
and bylaws, and has taken all action necessary, to enter into this
Agreement and perform the
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services contemplated herein, and this Agreement constitutes a legal,
valid and binding obligation of IFTC, enforceable in accordance with
its terms.
C. IFTC has obtained and shall maintain throughout the term of this
Agreement all necessary proprietary rights and approvals, licenses and
permits which are required for IFTC to perform its duties and
obligations hereunder and to use the Portfolio System.
D. IFTC presently has, and shall maintain throughout the term of this
Agreement, facilities, equipment, computer hardware and software, and
personnel necessary to perform its duties and obligations under this
Agreement, and shall maintain or otherwise have readily available,
reasonable back-up facilities and equipment to ensure that there is no
material interruption in the services contemplated by this Agreement,
except as provided in Section 7 hereof.
5. DUTIES AND RESPONSIBILITIES OF IFTC
A. DELIVERY OF RECORDS.
Fund shall turn over to IFTC all of Fund's accounts and records
previously maintained relating to the services to be provided by IFTC
hereunder. IFTC shall be entitled to rely conclusively on the
completeness and correctness of the accounts and records turned over
to it by Fund or its previous service provider and Fund shall
indemnify and hold IFTC harmless of and from any and all costs,
expenses, damages, losses and liabilities whatsoever, including
attorney's fees (collectively, "Damages"), arising out of or in
connection with any error, omission, inaccuracy or other deficiency of
such accounts and records or in the failure of Fund or its previous
service provider to provide any portion of such account and records or
to provide any information needed by IFTC to perform its function
hereunder.
B. ACCOUNTING AND PORTFOLIO DUTIES.
IFTC shall perform the duties specified on Schedule A attached hereto.
C. ACCOUNTS AND RECORDS
1. IFTC, with the direction of the Fund, its accountants and/or its
advisors, shall prepare, maintain and preserve all books,
records, ledgers, journals, accounts and other documents,
containing such information as may be
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required from time to time under the Act relating to the
activities performed by IFTC pursuant to Schedule A (the
"Records"); preserve the Records in an readily accessible
location for at least the periods required under the Act, at all
times during the term of this Agreement and, as may be reasonably
necessary, following the termination of this Agreement, make the
Records available for examination by the Securities and Exchange
Commission, the Fund, the Fund's accountants and such other
persons as the Fund may deem appropriate; and maintain facilities
and equipment necessary for producing readable projections or
hard copies of Records. Notwithstanding the terms of this Section
C.1. as heretofore provided, IFTC shall not be responsible for
maintaining or furnishing such Records after termination of the
Agreement to the extent that such Records have been forwarded to
the Fund or its agent. Hard copies of Records will be furnished
to the Fund without additional cost unless such requests for
Records are unusual, repetitive, require special handling, or
otherwise reasonably warrant the Fund's reimbursement for the
costs associated therewith. The Fund shall pay for the costs of
maintaining microfiche records.
2. It shall be the responsibility of Fund to furnish IFTC with the
declaration, record and payment dates and amounts of any
dividends or other distributions, other special actions, and the
value or price of the securities in Fund's portfolio to the
extent such information is not available from generally accepted
securities industry services or publications. IFTC shall incur no
liability and Fund shall indemnify and hold IFTC harmless from
any liability in connection with the Fund's furnishing of such
information.
3. The accounts, books and records prepared, maintained and
preserved by IFTC pursuant to this Agreement shall be the
property of the Fund and shall be made available to the Fund for
inspection or reproduction promptly upon demand.
4. IFTC shall assist Fund's independent accountants, and upon
instruction from Fund or upon proper demand, shall assist any
court or regulatory
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body, in any requested review of Fund's accounts and records
prepared and maintained by IFTC. Fund shall reimburse IFTC for
all reasonable expenses and employee time associated with any
such review which is not part of routine or normal periodic
reviews, unless such expenses are incurred as a result of a
breach of this Agreement by IFTC or IFTC's negligence or willful
misconduct. For purposes of this Agreement, routine or normal
periodic reviews include the annual audit of the Fund and routine
interim audits or reviews by the Fund's independent accountants
and the routine reviews by the Securities and Exchange Commission
(SEC).
5. IFTC shall provide Fund with information for tax returns,
questionnaires, and periodic reports to shareholders and such
other reports and information as Fund may request in conjunction
with IFTC's stated duties hereunder. IFTC shall provide such
information as soon as reasonably practicable following the
Fund's request or as may be otherwise agreed to by the parties.
6. IFTC and Fund may from time to time adopt procedures as they may
agree upon, and IFTC may conclusively assume that any procedure
approved by Fund, or directed by Fund in the manner prescribed by
Section 6.B., does not conflict with or violate any requirements
of Fund's prospectus, charter, bylaws, or any law, rule or
regulation applicable to Fund. Fund shall be responsible to
notify IFTC of any changes in its prospectus, charter, bylaws, or
policies applicable to the Fund which may necessitate changes in
IFTC's responsibilities or procedures. The Fund may conclusively
assume that any procedure adopted by IFTC does not conflict with
or violate any requirements of IFTC's charter, bylaws, or any
law, rule or regulation applicable to IFTC. IFTC shall be
responsible to notify the Fund of any changes in its charter,
bylaws, or policies which may affect the Fund's responsibilities
or procedures.
7. IFTC will calculate Fund's daily closing net asset value, in
accordance with the Fund's prospectus. IFTC will prepare and
maintain a daily
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valuation of securities held in the Fund's investment portfolio
for which market quotations are available by the use of outside
services normally used and contracted for this purpose; all other
securities will be valued in accordance with Fund's instructions.
6. LIMITATION OF LIABILITY OF IFTC
A. IFTC shall not be liable for any loss or damage resulting from its
action or omission to act or otherwise, except for any loss or damage
arising from any breach of this Agreement or any negligent act or
omission or willful misconduct of IFTC and IFTC shall indemnify and
hold harmless Fund from and against any Damages arising from such
breach, negligence or willful misconduct. Without limiting the
generality of the foregoing, IFTC will use best efforts to resolve to
the satisfaction of the Fund the effect on shareowners of any IFTC
error which causes an incorrect calculation of the net asset value of
the Fund and which effect is considered material, as such term is
generally used by accountants in the mutual fund industry. IFTC shall
not be liable for consequential, special, or punitive damages. IFTC
may request and obtain the advice and opinion of counsel for Fund or
its own counsel at the reasonable expense of Fund with respect to
questions or matters of law relating to its performance of this
Agreement, and it shall be without liability to Fund for any action
taken or omitted by it in good faith, in conformity with such advice
or opinion.
B. IFTC may rely, and be protected in acting in reliance upon any
instruction, advice, notice, consent, resolution, opinion, certificate
or other written instrument appearing to be genuine and properly
executed by an authorized representative of the Fund or any oral
instruction from an authorized representative of the Fund
("Instruction"), except trade instructions and adjustments to the
Fund's trial balance sheet, general ledger or balance sheet, which
must be in writing executed by two authorized representatives of the
Fund, unless IFTC has actual knowledge that any such Instruction is
incorrect or unauthorized.
C. IFTC shall be entitled to receive and Fund agrees to pay to IFTC, on
demand, reimbursement for such cash disbursements, costs and expenses
as may be agreed upon in writing from time to time by IFTC and Fund.
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D. During the term of this Agreement and for a period of five years after
termination of this Agreement, IFTC shall not use and shall preserve
the confidentiality of all accounting and financial information,
investment portfolio records including, but not limited to,
transactional information, share subscription and redemption records,
and other records made available to or created by IFTC under the terms
of this Agreement ("Fund Confidential Information"), other than for
purposes of complying with its duties and responsibilities under this
Agreement or as specifically authorized by Fund in writing. IFTC shall
prevent disclosure of Fund Confidential Information to persons other
than its own agents and employees who reasonably have a need to know
or have access to Fund Confidential Information pursuant to this
Agreement, and shall take appropriate action to protect the rights of
Fund in such Fund Confidential Information including, but not limited
to, notification to all its employees and agents of the necessity to
maintain the confidentiality of Fund Confidential Information,
provided, that Fund shall be solely responsible for protecting any
trademarks, patents, copyrights and licenses against unauthorized use
and infringement by parties other than IFTC, its employees and agents.
7. FORCE MAJEURE
IFTC 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 any interruption, loss or malfunction
of any utility, transportation, computer (hardware or software) or
communication service; or inability to obtain labor, material, equipment or
transportation; nor shall any such failure or delay give Fund any
additional right to terminate this Agreement.
8. ADDITIONAL FUNDS
IFTC shall act as Recordkeeping and Pricing Agent for additional funds or
portfolios of Fund upon 30 days notice to IFTC provided that IFTC consents
in advance to such arrangement. Rates or charges for serving as
Recordkeeping and Pricing Agent for any such additional funds or portfolios
of Fund shall be as agreed to by IFTC and Fund in writing.
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9. COMPENSATION
Fund shall pay to IFTC such compensation at such time as may from time to
time be agreed upon in writing by IFTC and Fund. The initial compensation
schedule is attached hereto as Schedule B.
10. TERMINATION
Either party to this Agreement may terminate same by notice in writing
received by the other party not less than sixty (60) days prior to the date
upon which such termination shall take effect. Upon termination of this
Agreement, Fund shall pay to IFTC such compensation for its reimbursable
disbursements, costs and expenses paid or incurred to such date and Fund
shall use its best efforts to obtain a successor agent. IFTC shall, upon
termination of this Agreement, deliver to the successor so specified or
appointed, or to Fund, at IFTC's office, all books, records, ledgers,
accounts, journals and other documents and information then held by IFTC
hereunder, all money, instruments and other funds and other properties of
Fund deposited with or held by IFTC hereunder. In the event no written
order designating a successor (which may be Fund) shall have been delivered
to IFTC on or before the date when such termination shall become effective,
then IFTC shall deliver such records, funds and properties of Fund to a
bank or trust company at the selection of IFTC having not less than
$2,000,000 aggregate capital, surplus and undivided profits as shown by its
most recent published report, and meeting the requirements of the Act, or
if a satisfactory successor cannot be obtained, IFTC may deliver the assets
to the Fund, at IFTC's offices or as otherwise agreed to between the
parties. Thereafter the Fund or such bank or trust company shall be the
successor under this Agreement and shall be entitled to reasonable
compensation for its services. Notwithstanding the foregoing requirement as
to delivery upon termination of this Agreement, IFTC may make any other
delivery of the records, funds and property of Fund which shall be
permitted by the Act and Fund's charter or bylaws then in effect.
11. NOTICES
Notices, requests, instructions and other writings received by Fund at 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, or at such address
as Fund may have designated to IFTC in writing, shall be deemed to have
been properly given to Fund hereunder; and notices, requests, instructions
and other writings received by IFTC at its
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offices at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or to such
other address as it may have designated to Fund in writing, shall be deemed
to have been properly given to IFTC hereunder.
12. MISCELLANEOUS
A. This Agreement is executed and delivered in the State of Missouri and
shall be governed by the laws of said state.
B. 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.
C. No provisions of the Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed
by both parties hereto.
D. The captions in the 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.
E. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
F. If any part, term or provision of this Agreement is by the courts held
to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered 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. This Agreement may not be assigned by either party without prior
written consent of the other party.
H. This Agreement shall be effective as of the 1st day of October, 1992.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective and duly authorized corporate or trust officers.
XXXXXX ONE HUNDRED AND
ONE FUND, INC.
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By:
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Title:
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INVESTORS FIDUCIARY TRUST COMPANY
By:
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Title: EXECUTIVE VICE PRESIDENT
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Schedule - A
ACCOUNTING AND PORTFOLIO DUTIES
In its capacity as the Recordkeeping and Pricing Agent for the Fund, IFTC
shall perform the following responsibilities:*
A. ON A DAILY BASIS.
1. Prepare available cash forecasts and communicate balances to the Fund.
2. Review investment portfolio for cash and stock dividends and stock
splits.
3. Prepare compliance reports including data necessary to monitor
compliance with limitations prescribed by the Investment Company Act
of 1940 with respect to the types and amounts of securities held in
the Fund's investment portfolio.
4. Review failed security transaction report; investigate failed
transactions and report status to Fund.
5. Prepare overdraft report with explanation of overdraft.
6. Post Fund share receivables and payables to the Fund's general ledger;
send general ledger reflecting all the day's activities to Fund
preferably by 3:30 p.m. Mountain time but in no event later than 8
a.m. Mountain time the next day.
7. Reconcile ending share balance from transfer agent reports to general
ledger; report differences to Fund and resolve with the transfer
agent.
8. Enter security transactions reported by the Fund.
9. Post bank activity to general ledger; account for all items on bank
statements, and prepare and complete daily bank reconciliations,
including documentation of reconciling items.
10. Post manual journal entries to the general ledger.
11. Review current daily security transactions for dividends, splits and
other corporate activity.
12. Prepare Net Asset Value rollforward.
13. Review individual components of the change in the Fund's Net Asset
Value for accuracy and reasonableness.
14. Enter manual prices.
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15. Review pricing stratification report for unusual price movements in
individual securities; investigate and trace items to the particular
pricing sources; and consult with Fund. Review pricing report for
detection of stock splits and dividends, cash dividends and corporate
action. Review NAV for incorrect CUSIP numbers or ticker symbols or
incorrectly posted purchases and sales of securities. Review income
and expense accruals and posting of gains and losses for proper
recording. Send Fund complete pricing sheet for the Fund's portfolio
preferably by 3:30 p.m. Mountain time but in no event later that 8:00
a.m. Mountain time the next day.
16. Review for ex-dividend items indicated by pricing sources.
17. Communicate required pricing information to Fund,
quotation/publication services and to transfer agents. Communicate NAV
to newspapers and quotation services in time for publication and to
the transfer agent in time to run the shareowner accounts by the
beginning of the next day. Communicate the NAV and corresponding
worksheet to the Fund preferably by 3:30 p.m. Mountain time but in no
event later that 8:00 a.m. Mountain time the next day.
18. Attend to routine matters in connection with the calculation of the
net asset value and aggregate asset value of the Fund.
B. ON A PERIODIC BASIS.
1. Provide information prepared by IFTC during the performance of its
duties hereunder for Fund's semiannual reports within 15 calendar days
after March 31st and September 30th or the end of the reporting period
of the Fund, as applicable.
2. As agreed upon, deliver information to Fund on days when the NYSE is
not open.
*Information shall be provided by IFTC's normal means as acceptable to the Fund.
Costs for communicating routine information shall be borne by IFTC; costs other
than routine information, including microfiche, shall be borne by the Fund.
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