ACCOUNTING AND INTERESTHOLDER SERVICES AGREEMENT
AGREEMENT made as of this 24th day of June, 1996, between Worldwide
Health Sciences Portfolio, a New York trust (the "Trust"), and IBT Fund Services
(Canada) Inc., an Ontario corporation ("IBT").
WHEREAS, the Trust is registered under the Investment Company Act of
1940 as an open-end management investment company and desires to engage IBT to
provide certain trust accounting and interestholder recordkeeping services with
respect to the Trust 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. IBT Appointed. The Trust hereby appoints IBT to provide the services as
hereinafter described and IBT agrees to act as such upon the terms and
conditions hereinafter set forth.
2. Definitions. Whenever used herein, the terms listed below will have the
following meaning:
2.1 Authorized Person. Authorized Person will mean any of the persons duly
authorized to give Proper Instructions or otherwise act on behalf of the Trust
by appropriate resolution of its Board, and set forth in a certificate as
required by Section 3 hereof.
2.2 Board. Board will mean the Board of Trustees of the Trust.
2.3 Portfolio Security. Portfolio Security will mean any security owned by
the Trust.
2.4 Interests. Interests will mean participation interests of the Trust.
3. Certification as to Authorized Persons. The Secretary or Assistant
Secretary of the Trust 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 Board
members, 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 Trust, 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 the most recent Officers' Certificate given to it
by the Trust.
4. Maintenance of Records. IBT will maintain records with respect to
the services provided by IBT hereunder and will furnish the Trust daily with a
statement of condition of the Trust. The books and records of IBT pertaining to
its actions under this Agreement and reports by IBT or its independent
accountants concerning its accounting systems and internal accounting controls
will be open to inspection and audit at reasonable times by officers of or
auditors employed by the Trust, and the staff of The U.S. Securities and
Exchange Commission, and will be preserved by IBT in accordance with procedures
established by the Trust.
IBT shall keep the books of account and render statements or copies
from time to time as reasonably requested by the Treasurer or any executive
officer of the Trust.
IBT, as fund accounting agent, shall assist generally in the
preparation of reports of a financial nature to Holders and others, audits of
accounts, and other ministerial matters of like nature.
5. Duties of Bank with Respect to Books of Account and Calculations of
Net Asset Value. Inasmuch as the Trust is treated as a partnership for federal
income tax purposes, the Bank shall as Agent keep and maintain the books and
records of the Trust in accordance with the Procedures for Allocations and
Distributions adopted by the Trustees of the Trust, as such Procedures may be in
effect from time to time. A copy of the current Procedures is attached to this
Agreement, and the Trust agrees promptly to furnish all revisions to or
restatements of such Procedures to the Bank.
The Bank shall as Agent keep such books of account (including records
showing the adjusted tax costs of the Trust's portfolio securities) and render
as at the close of business on each day a detailed statement of the amounts
received or paid out and of securities received or delivered for the account of
the Trust during said day and such other statements, including a daily trial
balance and inventory of the Trust's portfolio securities; and shall furnish
such other financial information and data as from time to time requested by the
Treasurer or any executive officer of the Trust; and shall compute and
determine, as of the close of business of the New York Stock Exchange, or at
such other time or times as the Board may determine, the net asset value of the
Trust and the net asset value of each interest in the Trust, such computations
and determinations to be made in accordance with the governing documents of the
Trust and the votes and instructions of the Board and of the investment adviser
at the time in force and applicable, and promptly notify the Trust and its
investment adviser and such other persons as the Trust may request of the result
of such computation and determination. In computing the net asset value IBT may
rely upon security quotations received by telephone or otherwise from sources or
pricing services designated by the Trust by proper instructions, and may further
rely upon information furnished to it by any authorized officer of the Trust
relative (a) to liabilities of the Trust not appearing on its books of account,
(b) to the existence, status and proper treatment of any reserve or reserves,
(c) to any procedures or policies established by the Board regarding the
valuation of portfolio securities or other assets, and (d) to the value to be
assigned to any bond, note, debenture, Treasury xxxx, repurchase agreement,
subscription right, security, participation interests or other asset or property
for which market quotations are not readily available. IBT shall also compute
and determine at such time or times as the Trust may designate the portion of
each item which has significance for a holder of an interest in the Trust in
computing and determining its U.S. federal income tax liability including, but
not limited to, each item of income, expense and realized and unrealized gain or
loss of the Trust which is attributable for Federal income tax purposes to each
such holder.
6. Interestholder Services. IBT shall keep appropriate records of the
holdings of each interestholder on a daily basis. IBT shall also keep each
interestholder's subscription agreement with the Portfolio.
7. Compensation of IBT. For the services to be rendered and the
facilities provided by IBT hereunder, the Trust shall pay to IBT a fee from the
assets of the Trust computed and paid monthly, in accordance with a fee schedule
agreed upon and attached hereto, as the same may be changed by mutual agreement
of the parties from time to time.
8. Concerning IBT.
8.1 Performance of Duties and Standard of Care. IBT shall not
be liable for any error of judgment or mistake of law or for any act or omission
in the performance of its duties hereunder, except for willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of its
reckless disregard of its obligations and duties hereunder.
IBT will be entitled to receive and act upon the advice of independent
counsel of its own selection, which may be counsel for the Trust, and will be
without liability for any action taken or thing done or omitted to be done in
accordance with this Agreement in good faith in conformity with such advice. In
the performance of its duties hereunder, IBT will be protected and not be
liable, and will be indemnified and held harmless by the Trust for any
reasonable action taken or omitted to be taken by it in good faith reliance upon
the terms of this Agreement, any Officers' Certificate, and or written
instructions received from an Authorized Person, resolution of the Board,
telegram, notice, request, certificate or other instrument reasonably believed
by IBT to be genuine and for any other loss to the Trust except in the case of
IBT's gross negligence, willful misfeasance or bad faith in the performance of
its duties or reckless disregard of its obligations and duties hereunder.
Notwithstanding anything in this Agreement to the contrary, in no event
shall IBT be liable hereunder or to any third party:
(a) for any losses or damages of any kind resulting from acts of God,
earthquakes, fires, floods, storms or other disturbances of restrictions, acts
of war, civil war or terrorism, insurrection, nuclear fusion, fission or
radiation, the interruption, loss or malfunction or utilities, transportation,
or computers (hardware or software) and computer facilities, the unavailability
of energy sources and other similar happenings or events except as results from
IBT's own gross negligence, willful misfeasance or bad faith in the performance
of its duties; or
(b) for special, punitive or consequential damages arising from the
provision of services hereunder, even if IBT has been advised of the possibility
of such damages.
8.2 Subcontractors. IBT, subject to approval of the Trust, may
subcontract for the performance of IBT's obligations hereunder with any one or
more persons, provided, however, that unless the Trust otherwise expressly
agrees in writing, IBT shall be as fully responsible to the Trust for the acts
and omissions of any subcontractor as it would be for its own acts or omissions.
In the event IBT obtains a judgment, settlement or other monetary recovery for
the wrongful conduct of the subcontractor, the Trust shall be entitled to such
recovery if such conduct resulted in a loss to the Trust and IBT agrees to
pursue such claims vigorously. To the extent possible, such sub-contractors
shall provide services outside the United States.
8.3 Activities of IBT. The services provided by IBT to the
Trust are not to be deemed to be exclusive, IBT being free to render
administrative, fund accounting and/or other services to other parties. It is
understood that members of the Board, officers, and shareholders of the Trust
are or may become similarly interested in the Trust and that IBT and/or any of
its affiliates may become interested in the Trust as a shareholder of the Trust
or otherwise.
8.4 Insurance. IBT need not maintain any special insurance for
the benefit of the Trust, but will maintain customary insurance for
its obligations hereunder.
9. Termination. This Agreement may be terminated at any time without
penalty upon sixty days written notice delivered by either party to the other by
means of registered mail, and upon the expiration of such sixty days, this
Agreement will terminate. At any time after the termination of this Agreement,
the Trust will have access to the records of IBT relating to the performance of
its duties hereunder and IBT shall cooperate in the transfer of such records to
its successor.
10. Confidentiality. Both parties hereto agree that any non-public
information obtained hereunder concerning the other party is confidential and
may not be disclosed to any other person 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, without bond or other security, to an injunction or injunctions to
prevent breaches of this provision.
11. 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 mailed or delivered to it at
its office at the address set forth below; namely:
(a) In the case of notices sent to the Trust to:
X/X Xxx Xxxx xx Xxxx Xxxxxx Trust Company (Cayman) Ltd.
The Bank of Nova Scotia Building
P. O. Box 501
Xxxxxx Town
Grand Cayman, Cayman Island
British West Indies
(b) In the case of notices sent to IBT to:
IBT Fund Services (Canada), Inc.
Suite 5850, One First Canadian Place
P. O. Xxx 000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxx Xxxxxxx
or at such other place as such party may from time to time designate in writing.
12. Amendments. This Agreement may not be altered or amended, except by an
instrument in writing, executed by both parties, and in the case of the Trust,
duly authorized and approved by its respective Board.
13. Governing Law. This Agreement will be governed by the laws of Ontario.
14. 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.
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.
Worldwide Health Sciences Portfolio
By:/s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
ATTEST:
/s/ H. Day Xxxxxxx, Jr.
IBT Fund Services (Canada), Inc.
By:/s/ Xxxxxx X. Xxxxxxx XX
Name: Xxxxxx X. Xxxxxxx XX
Title: Director
signed in Xxxxxxx, Xxxxxxx, Xxxxxx
ATTEST:
/s/ Xxxx Xxxxxxxxx
DATE: June 24, 1996
