1
EXHIBIT 9(C)
FUND ACCOUNTING AGREEMENT
AGREEMENT made this 27th day of April, 1998, between ALPINE
EQUITY TRUST (the "Trust"), a Massachusetts business trust having its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BISYS FUND
SERVICES, INC. ("Fund Accountant"), a corporation organized under the laws of
the State of Delaware and having its principal place of business at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust desires that Fund Accountant perform
certain fund accounting services for each investment portfolio of the Trust, all
as now or hereafter may be established from time to time (individually referred
to herein as the "Fund" and collectively as the "Funds"); and
WHEREAS, Fund Accountant is willing to perform such services
on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual premises and
covenants herein set forth, the parties agree as follows:
1. SERVICES AS FUND ACCOUNTANT.
(a) MAINTENANCE OF BOOKS AND RECORDS. Fund
Accountant will keep and maintain the
following books and records of each Fund
pursuant to Rule 31a-1 under the Investment
Company Act of 1940 (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, including interest accrued
and interest received, as required
by subsection (b)(2)(I) of the Rule;
(iii) Separate ledger accounts required by
subsection (b)(2)(ii) and (iii) of
the Rule; and
(iv) A monthly trial balance of all
ledger accounts (except shareholder
accounts) as required by subsection
(b)(8) of the Rule.
2
(b) PERFORMANCE OF DAILY ACCOUNTING SERVICES. In
addition to the maintenance of the books and
records specified above, Fund Accountant
shall perform the following accounting
services daily for each Fund:
(i) Calculate the net asset value per
share utilizing prices obtained from
the sources described in subsection
1(b)(ii) below;
(ii) Obtain security prices from
independent pricing services
approved by the Trust's Board of
Trustees, or if such quotes are
unavailable, then obtain such prices
from each Fund's investment adviser
or its designee, as approved by the
Trust's Board of Trustees;
(iii) Verify and reconcile with the Funds'
custodian all daily trade activity;
(iv) Compute, as appropriate, each Fund's
net income and capital gains,
dividend payables, dividend factors,
7-day yields, 7-day effective
yields, 30-day yields, average
annual returns and weighted average
portfolio maturity;
(v) Review daily the net asset value
calculation and dividend factor (if
any) for each Fund prior to release
to shareholders, check and confirm
the net asset values and dividend
factors for reasonableness and
deviations, and distribute net asset
values and yields to NASDAQ;
(vi) Report to the Trust the daily market
pricing of securities in any money
market Funds, with the comparison to
the amortized cost basis;
(vii) Determine unrealized appreciation
and depreciation on securities held
in variable net asset value Funds;
(viii) Amortize premiums and accrete
discounts on securities purchased at
a price other than face value, if
requested by the Trust;
(ix) Update fund accounting system to
reflect rate changes, as received
from a Fund's investment adviser, on
variable interest rate instruments;
2
3
(x) Post Fund transactions to
appropriate categories;
(xi) Accrue expenses of each Fund
according to instructions received
from the Trust's Administrator;
(xii) Determine the outstanding
receivables and payables for all (1)
security trades, (2) Fund share
transactions and (3) income and
expense accounts;
(xiii) Provide accounting reports in
connection with the Trust's regular
annual audit and other audits and
examinations by regulatory agencies;
and
(xiv) Provide such periodic reports as the
parties shall agree upon, as set
forth in a separate schedule.
(c) SPECIAL REPORTS AND SERVICES.
(i) Fund Accountant may provide
additional special reports upon the
request of the Trust or a Fund's
investment adviser, which may result
in an additional charge, the amount
of which shall be agreed upon
between the parties.
(ii) Fund Accountant may provide such
other similar services with respect
to a Fund as may be reasonably
requested by the Trust, which may
result in an additional charge, the
amount of which shall be agreed upon
between the parties.
(d) ADDITIONAL ACCOUNTING SERVICES. Fund
Accountant shall also perform the following
additional accounting services for each
Fund:
(i) Provide monthly a download (and hard
copy thereof) of the financial
statements described below, upon
request of the Trust. The download
will include the following items:
Statement of Assets and Liabilities,
Statement of Operations,
Statement of Changes in Net Assets,
and
Condensed Financial Information;
3
4
(ii) Provide accounting information for
the following:
(A) federal and state income
tax returns and federal
excise tax returns;
(B) the Trust's semi-annual
reports with the Securities
and Exchange Commission
("SEC") on Form N-SAR;
(C) the Trust's annual,
semi-annual and quarterly
(if any) shareholder
reports;
(D) registration statements on
Form N-1A and other filings
relating to the
registration of shares;
(E) the Administrator's
monitoring of each Trust's
status as a regulated
investment company under
Subchapter M of the
Internal Revenue Code, as
amended;
(F) annual audit by the Trust's
auditors; and
(G) examinations performed by
the SEC.
2. SUBCONTRACTING.
Fund Accountant may, at its expense, subcontract with
any entity or person concerning the provision of the services contemplated
hereunder; provided, however, that Fund Accountant shall not be relieved of any
of its obligations under this Agreement by the appointment of such subcontractor
and provided further, that Fund Accountant shall be responsible, to the extent
provided in Section 7 hereof, for all acts of such subcontractor as if such acts
were its own.
3. COMPENSATION.
The Trust shall pay Fund Accountant for the services
to be provided by Fund Accountant under this Agreement in accordance with, and
in the manner set forth in the Omnibus Fee Agreement among Fund Accountant,
BISYS Fund Services Ohio, Inc. and the Trust dated April 27, 1998.
4
5
4. [INTENTIONALLY OMITTED]
5. EFFECTIVE DATE.
This Agreement shall become effective with respect to
a Fund as of the date first written above (or, if a particular Fund is not in
existence on that date, on the date such Fund commences operation) (the
"Effective Date").
6. TERM.
The initial term of this Agreement (the "Initial
Term") shall be for a period commencing on the Effective Date and ending on
April 27, 1999. Thereafter, this Agreement shall be renewed automatically for
successive one-year terms unless written notice not to renew is given by the
non-renewing party to the other party at least 90 days prior to the expiration
of the then-current term. Notwithstanding the foregoing, either party may
terminate this Agreement, without penalty, during the Initial Term or any
subsequent one-year term, upon the provision of 90 days written notice to the
other party.
After such termination for so long as Fund
Accountant, with the written consent of the Trust, in fact continues to perform
any one or more of the services contemplated by this Agreement or any schedule
or exhibit hereto, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Compensation due Fund Accountant and unpaid by the Trust upon
such termination shall be immediately due and payable upon and notwithstanding
such termination. Fund Accountant shall be entitled to collect from the Trust,
in addition to the compensation described under Section 3 hereof, the amount of
all of Fund Accountant's cash disbursements reasonably incurred for services in
connection with Fund Accountant's activities in effecting such termination,
including without limitation, the delivery to the Trust and/or its designees of
the Trust's property, records, instruments and documents, or any copies thereof.
Subsequent to such termination, for a reasonable fee, Fund Accountant will
provide the Trust with reasonable access to any Trust documents or records
remaining in its possession.
7. STANDARD OF CARE; RELIANCE ON RECORDS AND INSTRUCTIONS;
INDEMNIFICATION.
Fund Accountant shall use its best efforts to insure
the accuracy of all services performed under this Agreement, but shall not be
liable to the Trust for any action taken or omitted by Fund Accountant in the
absence of bad faith, willful misfeasance, negligence or from reckless disregard
by it of its obligations and duties. A Fund agrees to indemnify and hold
harmless Fund Accountant, its employees, agents, directors, officers and
nominees from and against any and all claims, demands, actions and suits,
whether groundless or otherwise, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character arising out of or in any way relating to Fund
Accountant's actions
5
6
taken or non-actions with respect to the performance of services under this
Agreement with respect to such Fund or based, if applicable, upon reasonable
reliance on information, records, instructions or requests with respect to such
Fund given or made to Fund Accountant by a duly authorized representative of the
Trust; provided that this indemnification shall not apply to actions or
omissions of Fund Accountant in cases of its own bad faith, willful misfeasance,
negligence or from reckless disregard by it of its obligations and duties, and
further provided that prior to confessing any claim against it which may be the
subject of this indemnification, Fund Accountant shall give the Trust written
notice of and reasonable opportunity to defend against said claim in its own
name or in the name of Fund Accountant. Fund Accountant agrees to indemnify and
hold harmless the Trust, its employees, agents, Trustees, officers and nominees
from and against any and all actions, suits and claims, whether groundless or
otherwise, and from and against any and all judgments, liabilities, losses,
damages, costs, charges, reasonable counsel fees and other expenses of every
nature and character arising out or in any way relating to Fund Accountant's bad
faith, willful misfeasance, negligence or reckless disregard by it of its
obligations and duties, with respect to the performance of services under this
Agreement; provided, that, prior to confessing any claim against it which may be
the subject of this indemnification, the Trust shall give Fund Accountant
written notice of and a reasonable opportunity to defend against said claim in
its own name or in the name of the Trust.
8. RECORD RETENTION AND CONFIDENTIALITY.
Fund Accountant shall keep and maintain on behalf of
the Trust all books and records which the Trust or Fund Accountant is, or may
be, required to keep and maintain pursuant to any applicable statutes, rules and
regulations, including without limitation Rules 31a-1 and 31a-2 under the
Investment Company Act of 1940, as amended (the "1940 Act"), relating to the
maintenance of books and records in connection with the services to be provided
hereunder. Fund Accountant further agrees that all such books and records shall
be the property of the Trust and to make such books and records available for
inspection by the Trust or by the Securities and Exchange Commission at
reasonable times and otherwise to keep confidential all books and records and
other information relative to the Trust and its shareholders; except when
requested to divulge such information by duly-constituted authorities or court
process.
9. UNCONTROLLABLE EVENTS.
Fund Accountant assumes no responsibility hereunder,
and shall not be liable, for any damage, loss of data, delay or any other loss
whatsoever caused by events beyond its reasonable control.
10. REPORTS.
Fund Accountant will furnish to the Trust and to its
properly authorized auditors, investment advisers, examiners, distributors,
dealers, underwriters, salesmen, insurance companies and others designated by
the Trust in writing, such reports
6
7
and at such times as are prescribed pursuant to the terms and the conditions of
this Agreement to be provided or completed by Fund Accountant, or as
subsequently agreed upon by the parties pursuant to an amendment hereto. The
Trust agrees to examine each such report or copy promptly and will report or
cause to be reported any errors or discrepancies therein no later than three
business days from the receipt thereof. In the event that errors or
discrepancies, except such errors and discrepancies as may not reasonably be
expected to be discovered by the recipient, are not so reported within the
aforesaid period of time, a report will for all purposes be accepted by and
binding upon the Trust and any other recipient, and, except as provided in
Section 7 hereof, Fund Accountant shall have no liability for errors or
discrepancies therein and shall have no further responsibility with respect to
such report except to perform reasonable corrections of such errors and
discrepancies within a reasonable time after requested to do so by the Trust.
11. RIGHTS OF OWNERSHIP.
All computer programs and procedures developed to
perform services required to be provided by Fund Accountant under this Agreement
are the property of Fund Accountant. All records and other data except such
computer programs and procedures are the exclusive property of the Trust and all
such other records and data will be furnished to the Trust in appropriate form
as soon as practicable after termination of this Agreement for any reason.
12. RETURN OF RECORDS.
Fund Accountant may at its option at any time, and
shall promptly upon the Trust's demand, turn over to the Trust and cease to
retain Fund Accountant's files, records and documents created and maintained by
Fund Accountant pursuant to this Agreement which are no longer needed by Fund
Accountant in the performance of its services or for its legal protection. If
not so turned over to the Trust, such documents and records will be retained by
Fund Accountant for six years from the year of creation. At the end of such
six-year period, such records and documents will be turned over to the Trust
unless the Trust authorizes in writing the destruction of such records and
documents.
13. REPRESENTATIONS OF THE TRUST.
The Trust certifies to Fund Accountant that: (1) as
of the close of business on the Effective Date, each Fund that is in existence
as of the Effective Date has authorized unlimited shares, and (2) this Agreement
has been duly authorized by the Trust and, when executed and delivered by the
Trust, will constitute a legal, valid and binding obligation of the Trust,
enforceable against the Trust 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.
7
8
14. REPRESENTATIONS OF FUND ACCOUNTANT.
Fund Accountant represents and warrants that: (1) the
various procedures and systems which Fund Accountant has implemented with regard
to safeguarding from loss or damage attributable to fire, theft, or any other
cause the records, and other data of the Trust and Fund Accountant's records,
data, equipment facilities and other property used in the performance of its
obligations hereunder are adequate and that it will make such changes therein
from time to time as are required for the secure performance of its obligations
hereunder, and (2) this Agreement has been duly authorized by Fund Accountant
and, when executed and delivered by Fund Accountant, will constitute a legal,
valid and binding obligation of Fund Accountant, enforceable against Fund
Accountant 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.
15. INSURANCE.
Fund Accountant shall promptly notify the Trust
should any of its insurance coverage be canceled or reduced. Such notification
shall include the date of change and the reasons therefor. Fund Accountant shall
promptly notify the Trust of any material claims against it with respect to
services performed under this Agreement, whether or not they may be covered by
insurance, and shall notify the Trust from time to time as may be appropriate of
the total outstanding claims made by Fund Accountant under its insurance
coverage.
16. INFORMATION TO BE FURNISHED BY THE TRUST AND FUNDS.
The Trust has furnished to Fund Accountant the
following:
(a) Copies of the Declaration of Trust of the
Trust and of any amendments thereto,
certified by the proper official of the
state in which such document has been filed.
(b) Copies of the following documents:
(i) The Trust's Bylaws and any
amendments thereto; and
(ii) Certified copies of resolutions of
the Board of Trustees covering the
approval of this Agreement,
authorization of a specified officer
of the Trust to execute and deliver
this Agreement and authorization for
specified officers of the Trust to
instruct Fund Accountant thereunder.
8
9
(c) A list of all the officers of the Trust,
together with specimen signatures of those
officers who are authorized to instruct Fund
Accountant in all matters.
(d) Two copies of the Prospectuses and
Statements of Additional Information for
each Fund.
17. INFORMATION FURNISHED BY FUND ACCOUNTANT.
(a) Fund Accountant has furnished to the Trust
the following:
(i) Fund Accountant's Articles of
Incorporation; and
(ii) Fund Accountant's Bylaws and any
amendments thereto.
(b) Fund Accountant shall, upon request, furnish
certified copies of corporate actions
covering the following matters:
(i) Approval of this Agreement, and
authorization of a specified officer
of Fund Accountant to execute and
deliver this Agreement; and
(ii) Authorization of Fund Accountant to
act as fund accountant for the Trust
and to provide accounting services
for the Trust.
18. AMENDMENTS TO DOCUMENTS.
The Trust shall furnish Fund Accountant written
copies of any amendments to, or changes in, any of the items referred to in
Section 16 hereof upon such amendments or changes becoming effective.
19. COMPLIANCE WITH LAW.
Except for the obligations of Fund Accountant set
forth in Section 8 hereof, the Trust assumes full responsibility for the
preparation, contents and distribution of each prospectus of the Trust as to
compliance with all applicable requirements of the Securities Act of 1933, as
amended (the "Securities Act"), the 1940 Act and any other laws, rules and
regulations of governmental authorities having jurisdiction. Fund Accountant
shall have no obligation to take cognizance of any laws relating to the sale of
the Trust's shares. The Trust represents and warrants that no shares of the
Trust will be offered to the public until the Trust's registration statement
under the Securities Act and the 1940 Act has been declared or becomes
effective.
9
10
20. NOTICES.
Any notice provided hereunder shall be sufficiently
given when sent by registered or certified mail to the party required to be
served with such notice, at the following address: 0000 Xxxxxxx Xxxx, Xxxxxxxx,
Xxxx 00000, or at such other address as such party may from time to time specify
in writing to the other party pursuant to this Section.
21. HEADINGS.
Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
22. AMENDMENT AND ASSIGNMENT.
This Agreement may be modified or amended only by a
writing signed by each of the parties. This Agreement and the rights and duties
hereunder shall not be assignable with respect to a Fund by either of the
parties hereto except by the specific written consent of the other party. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
23. GOVERNING LAW.
This Agreement shall be governed by and provisions
shall be construed in accordance with the laws of the State of Ohio.
24. LIMITATION OF LIABILITY OF THE TRUSTEES AND
SHAREHOLDERS.
It is expressly agreed that the obligations of the
Trust hereunder shall not be binding upon any of the Trustees, shareholders,
nominees, officers, agents or employees of the Trust personally, but shall bind
only the trust property of the Trust. The execution and delivery of this
Agreement have been authorized by the Trustees, and this Agreement has been
signed and delivered by an authorized officer of the Trust, acting as such, and
neither such authorization by the Trustees nor such execution and delivery by
such officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in the Trust's Agreement and Declaration of
Trust.
10
11
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first above written.
ALPINE EQUITY TRUST
By: /s/ Xxxxxx X. Xxxxxx
------------------------
BISYS FUND SERVICES, INC.
By: /s/ Xxxxx Xxxxx
------------------------
11
