9(g) Form of Accounting Agreement to be between
Registrant and The Bank of New York.
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this 30 day of January, 1996, by
and between THE MILESTONE FUNDS - TREASURY OBLIGATIONS
PORTFOLIO, a Delaware business trust having its principal place
of business at
(hereinafter called the "Fund") and The Bank of New York, a New
York corporation authorized to do a banking business, having
its principal place of business at 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 (hereinafter called the "Bank").
W I T N E S S E T H:
In consideration of the mutual agreements herein
contained, the Fund and the Bank hereby agree as follows:
1. The Fund hereby appoints the Bank to perform the
duties hereinafter set forth.
2. The Bank hereby accepts appointment and agrees to
perform the duties hereinafter set forth.
3. Subject to the provisions of paragraphs 5 and 6
below, the Bank shall compute the net asset value per share of
the Fund and shall value the securities held by the Fund (the
"Securities") at such times and dates and in the manner specified
in the then currently effective Prospectus of the Fund. In the
event Schedule 1 hereto, as amended from time to time upon the
agreement of the Fund and the Bank, specifies series of a Fund
and/or classes of shares of the Fund or of a series, all
computations described with respect to the Fund or shares of the
Fund shall be made with respect to each series so specified and
the shares of each such series or such class.
4. Subject to the provisions of paragraphs 5 and 6
below, the Bank shall also compute the net income of the Fund for
dividend purposes and the net income per share at such times and
dates and in the manner specified in the then currently effective
Prospectus of the Fund.
5. To the extent valuation of Securities or computation
of a net asset value, net income for dividend purposes, or net
income per share as specified in the Fund's then currently
effective Prospectus is at any time inconsistent with any
applicable laws or regulations, the Fund shall immediately so
notify the Bank in writing and thereafter shall either furnish
the Bank at all appropriate times with the values of such
Securities, net asset value, net income for dividend purposes or
net income per share, as the case may be, or subject to the prior
approval of the Bank, instruct the Bank in writing to value
Securities and compute net asset value, net income for dividend
purposes, and net income per share in a manner which the Fund
then represents in writing to be consistent with all applicable
laws and regulations. The Fund may also from time to time,
subject to the prior approval of the Bank, instruct the Bank in
writing to compute the value of the Securities, the Fund's net
asset value, net income for dividend purposes, or net income per
share in a manner other than as specified in paragraphs 3 and 4
of this Agreement. The Fund shall have sole responsibility for
determining the method of valuation of Securities and the method
of computing net asset value, net income for dividend purposes
and net income per share.
6. The Fund shall furnish the Bank with any and all
instructions, explanations, information, specifications and
documentation deemed necessary by the Bank in the performance of
its duties hereunder, including, without limitation, the amounts
or written formula for calculating the amounts and times of
accrual of Fund liabilities and expenses. The Fund shall also
furnish the Bank with bid, offer, or market values of Securities
if the Bank notifies the Fund that same are not available to the
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Bank from a security pricing or similar service utilized, or
subscribed to, by the Bank which the Bank in its judgment deems
reliable at the time such information is required for
calculations hereunder. At any time and from time to time, the
Fund also may furnish the Bank with bid, offer, or market values
of Securities and instruct the Bank to use such information in
its calculations hereunder. The Bank shall at no time be
required or obligated to commence or maintain any utilization of,
or subscriptions to, any securities pricing or similar service.
7. The Bank shall advise the Fund and the Fund's
transfer agent of the net asset value, net income for dividend
purposes, and net income per share upon completion of the
computations required to be made by the Bank pursuant to this
Agreement.
8. The Bank shall, as agent for the Fund, maintain and
keep current the books, accounts and other documents (the
"Records") the Fund is required to maintain and preserve by the
Investment Company Act of 1940, as amended, and the rules and
regulations thereunder (the "Rules") with respect to the
computations by the Bank under this Agreement. Such Records
shall be preserved in accordance with the Rules and shall be made
available upon reasonable request for inspection by officers,
employees and auditors of the Fund during the Bank's normal
business hours.
9. Records maintained and preserved by the Bank pursuant
to this Agreement shall be and remain the property of the Fund
and shall be surrendered to the Fund promptly upon request in the
form in which such Records have been maintained and preserved.
Upon reasonable request of the Fund, the Bank shall provide in
hard copy or on micro-film, whichever the Bank shall elect, any
Records included in any such delivery which are maintained by the
Bank on a computer disc, or are similarly
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maintained, and the Fund shall reimburse the Bank for its
expenses of providing such hard copy or micro-film.
10. The Bank, in performing the services required of it
under the terms of this Agreement, shall be entitled to rely
fully on the accuracy and validity of any and all instructions,
explanations, information, specifications and documentation
furnished to it by the Fund and shall have no duty or obligation
to review the accuracy, validity or propriety of such
instructions, explanations, information, specifications or
documentation, including, without limitation, evaluations of
Securities; the amounts or formula for calculating the amounts
and times of accrual of liabilities and expenses; the amounts
receivable and the amounts payable on the sale or purchase of
Securities; and amounts receivable or amounts payable for the
sale or redemption of Fund shares effected by or on behalf of the
Fund. In the event the Bank's computations hereunder rely, in
whole or in part, upon information, including, without
limitation, bid, offer or market values of Securities or other
assets, or accruals of interest or earnings thereon, from a
pricing or similar service utilized, or subscribed to, by the
Bank which the Bank in its judgment deems reliable, the Bank
shall not be responsible for, under any duty to inquire into, or
deemed to make any assurances with respect to, the accuracy or
completeness of such information.
11. The Bank shall not be required to inquire into any
valuation of Securities or other assets by the Fund or any third
party described in preceding paragraph 10 hereof, even though the
Bank in performing services similar to the services provided
pursuant to this Agreement for others may receive different
valuations of the same or different securities of the same
issuers.
12. The Bank, in performing the services required of it
under the terms of this Agreement, shall not be responsible for
determining whether any interest accruable to the Fund is or
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will be actually paid, but will accrue such interest until
otherwise instructed by the Fund.
13. The Bank shall not be responsible for delays or
errors which occur by reason of circumstances beyond its control
in the performance of its duties under this Agreement, including,
without limitation, labor difficulties within or without the
Bank, mechanical breakdowns, flood or catastrophe, acts of God,
failures of transportation, communication or power supply, or
other similar circumstances. Nor shall the Bank be responsible
for delays or failures to supply the information or services
specified in this Agreement where such delays or failures are
caused by the failure of any person(s) other than the Bank to
supply any instructions, explanations, information,
specifications or documentation deemed necessary by the Bank in
the performance of its duties under this Agreement.
14. No provision of this Agreement shall prevent the Bank
from offering services similar or identical to those covered by
this Agreement to any other corporations, associations or
entities of any kind. Any and all operational procedures,
techniques and devices developed by the Bank in connection with
the performance of its duties and obligations under this
Agreement, including those developed in conjunction with the
Fund, shall be and remain the property of the Bank, and the Bank
shall be free to employ such procedures, techniques and devices
in connection with the performance of any other contract with any
other person whether or not such contract is similar or identical
to this Agreement.
15. The Bank may, with respect to questions of law, apply
to and obtain the advice and opinion of counsel to the Fund or
its own counsel and shall be entitled to rely on the advice or
opinion of such counsel. The costs of any such advice or opinion
shall be borne by the Fund.
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16. The Bank shall be entitled to rely upon any oral
instructions received by the Bank and reasonably believed by the
Bank to be given by or on behalf of the Fund, even if the Bank
subsequently receives written instructions contradicting such
oral instructions. The books and records of the Bank with
respect to the content of any oral instruction shall be binding
and conclusive.
17. The Bank shall not be liable for any loss, damage or
expense, including counsel fees and other costs and expenses of
a defense against any claim or liability, resulting from, arising
out of, or in connection with its performance hereunder,
including its actions or omissions, the incompleteness or
inaccuracy of any specifications or other information furnished
by the Fund, or for delays caused by circumstances beyond the
Bank's control, unless such loss, damage or expense arises out of
the bad faith, negligence, or willful misconduct of the Bank. In
no event shall the Bank be liable to the Fund or any third party
for special, indirect, or consequential damages, or for lost
profits or loss of business, arising under or in connection with
this Agreement, even if previously informed of the possibility of
such damages and regardless of the form of action.
18. Without limiting the generality of the foregoing, the
Fund shall indemnify the Bank against and save the Bank harmless
from any loss, damage or expense, including counsel fees and
other costs and expenses of a defense against any claim or
liability, arising from any one or more of the following:
(a) Errors in records or instructions, explanations,
information, specifications or documentation of any kind, as the
case may be, supplied to the Bank by any third party described in
preceding paragraph 10 hereof or by or on behalf of the Fund;
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(b) Action or inaction taken or omitted to be taken
by the Bank pursuant to written or oral instructions of the Fund
or otherwise without bad faith, negligence or willful misconduct;
(c) Any action taken or omitted to be taken by the
Bank in good faith in accordance with the advice or opinion of
counsel for the Fund or its own counsel;
(d) Any improper use by the Fund or its agents,
distributor or investment advisor of any valuations or
computations supplied by the Bank pursuant to this Agreement;
(e) The method of valuation of the Securities and
the method of computing net asset value, net income for dividend
purposes, and net income per share; or
(f) Any bid, offer, market value or other valuations
of Securities, net asset value, net income for dividend purposes,
or net income per share provided by the Fund.
19. In consideration for all of the services to be
performed by the Bank as set forth herein the Bank shall be
entitled to receive reimbursement for all out-of-pocket expenses
and such compensation as may be agreed upon in writing from time
to time between the Bank and the Fund.
20. Attached hereto as Appendix A is a list of persons
duly authorized by the Board of Trustees of the Fund to execute
this Agreement and give any written or oral instructions, or
written or oral specifications, by or on behalf of the Fund.
From time to time the Fund may deliver a new Appendix A to add or
delete any person and the Bank shall be entitled to rely on the
last Appendix A actually received by the Bank.
21. The Fund represents and warrants to the Bank that it
has all requisite power to execute and deliver this Agreement,
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to give any written or oral instructions contemplated hereby, and
to perform the actions or obligations contemplated to be
performed by it hereunder, and has taken all necessary action to
authorize such execution, delivery, and performance. By giving
any instruction described in this Agreement to the Bank, the Fund
shall be deemed to have represented that such instruction is
consistent with all applicable laws and regulations and the then
currently effective Prospectus of the Fund.
22. This Agreement shall not be assignable by the Fund
without the prior written consent of the Bank, or by the Bank
without the prior written consent of the Fund.
23. Either of the parties hereto may terminate this
Agreement by giving the other party a notice in writing
specifying the date of such termination, which shall not be less
than ninety (90) days after the date of giving of such notice.
Upon the date set forth in such notice, the Bank shall deliver to
the Fund all Records then the property of the Fund and, upon such
delivery, the Bank shall be relieved of all duties and
responsibilities under this Agreement.
24. This Agreement may not be amended or modified in any
manner except by written agreement executed on behalf of both
parties hereto.
25. This Agreement is executed in the State of New York
and all laws and rules of construction of the State of New York
(other than those relating to choice of laws) shall govern the
rights, duties and obligations of the parties hereto.
26. The performance and provisions of this Agreement are
intended to benefit only the Bank and the Fund, and no rights
shall be granted to any other person by virtue of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first written above.
By: /s/
-----------------------
Attest:
/s/
------------------------
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Grunston
------------------------
XXXXXXX X. GRUNSTON
Attest: Vice President
/s/
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SCHEDULE 1
Series and Classes
APPENDIX A
I, Xxxxxxx X. Xxxxxx, Secretary, of THE MILESTONE FUNDS -
TREASURY OBLIGATIONS PORTFOLIO, a Delaware business trust (the
"Fund"), do hereby certify that:
The following individuals serve in the following positions
with the Fund, and each has been duly elected or appointed by the
Board of Trustees of the Fund to each such position and qualified
therefor in conformity with the Fund's Declaration of Trust and
By-Laws, and the signatures set forth opposite their respective
names are their true and correct signatures. Each such person is
authorized to give written or oral instructions or written or
oral specifications by or on behalf of the Fund to the Bank.
Name Position Signature
_________________ ________________ _________________
Xxxxx X. Xxxxxx Pres/CEO /s/ Xxxxx X. Xxxxxx
Xxxx Xxxxxxx CIO /s/ Xxxx Xxxxxxx
Xxxxxxx Xxxxxxx Trading Asst. /s/ Xxxxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx COO /s/ Xxxxxxx X. Xxxxxx
