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EXHIBIT EX-99.H.1.
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of ________, 2001 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and the AB FUNDS TRUST a Delaware business
trust (the "Trust").
W I T N E S S E T H :
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended and the rules
promulgated thereunder (the "1940 Act"); and
WHEREAS, the Trust wishes to retain PFPC to provide administration and
accounting services to its investment portfolios listed on Exhibit A attached
hereto and made a part hereof, as such Exhibit A may be amended from time to
time (each a "Fund"), and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby the parties
hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended and
the rules promulgated thereunder.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended and the rules promulgated thereunder.
(c) "Authorized Person" means any officer of the Trust and any
other person duly authorized by the Trust's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Trust. An Authorized Person's scope of authority
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may be limited by setting forth such limitation in a written
document signed by both parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended and the
rules promulgated thereunder.
(e) "Oral Instructions" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person. PFPC may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(h) "Shares" mean the shares of beneficial interest of any series
of the Trust or class of a Fund.
(i) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by PFPC or (ii) trade
instructions transmitted (and received by PFPC) by means of an
electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. The Trust hereby appoints PFPC to provide administration
and accounting services to each of the Funds, in accordance with the
terms set forth in this Agreement. PFPC accepts such appointment and
agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Trust has provided or, where applicable,
will provide PFPC with the following:
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(a) at PFPC's request, certified or authenticated copies of the
resolutions of the Trust's Board of Trustees, approving the
appointment of PFPC or its affiliates to provide services to
each Fund and approving this Agreement;
(b) a copy of the Trust's most recent effective registration
statement;
(c) a copy of each Fund's advisory and sub-advisory agreement or
agreements;
(d) a copy of the distribution/underwriting agreement concerning
each class of Shares representing an interest in a Fund;
(e) a copy of each additional administration agreement with
respect to a Fund;
(f) a copy of each distribution and/or shareholder servicing plan
and agreement concerning the Trust or a Fund;
(g) a copy of the Trust's custody agreement; and
(h) copies (certified or authenticated, where applicable) of any
and all amendments or supplements to the foregoing.
The documents to be delivered by the Trust to PFPC are the same under
both this Agreement and Transfer Agency Services Agreement between the
same parties and need only be delivered once to satisfy each of those
Agreements.
4. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by PFPC hereunder. Except as specifically set forth herein,
PFPC assumes no responsibility for such compliance by the Trust or
other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or
from a person reasonably believed by
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PFPC to be an Authorized Person) pursuant to this Agreement.
PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent
with the provisions of organizational documents or this
Agreement or of any vote, resolution or proceeding of the
Trust's Board of Trustees or of the Trust's shareholders,
unless and until PFPC receives Written Instructions to the
contrary.
(c) The Trust agrees to forward to PFPC Written Instructions
confirming Oral Instructions (except where such Oral
Instructions are given by PFPC or its affiliates) so that PFPC
receives the Written Instructions by the close of business on
the same day that such Oral Instructions are received. The
fact that such confirming Written Instructions are not
received by PFPC or differ from the Oral Instructions shall in
no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions or PFPC's
ability to rely upon such Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear to have
been received from an Authorized Person, PFPC shall incur no
liability to the Trust in acting upon such Oral Instructions
or Written Instructions provided that PFPC's actions comply
with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Trust. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Trust.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
question of law pertaining
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to any action it should or should not take, PFPC may request
advice from counsel of its own choosing at its own cost (who
may be counsel for the Trust, the Trust's investment adviser
or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC receives from the Trust and the advice PFPC
receives from counsel, PFPC may, upon providing to the Trust
notice of such conflict, rely upon and follow the advice of
counsel.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions or advice
or Oral Instructions or Written Instructions it receives from
the Trust or from counsel and which PFPC believes, in good
faith, to be consistent with those directions or advice and
Oral Instructions or Written Instructions, provided that in
carrying out any such action PFPC has not acted with willful
misfeasance, bad faith, gross negligence or reckless disregard
of its duties hereunder. Nothing in this section shall be
construed so as to impose an obligation upon PFPC (i) to seek
such directions or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC's properly
taking or not taking such action.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Trust and the Funds
which are in the possession or under the control of PFPC shall
be the property of the Trust. Such books and records shall be
prepared and maintained as required by the 1940 Act
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and other applicable securities laws, rules and regulations.
The Trust and Authorized Persons shall have access to such
books and records at all times during PFPC's normal business
hours. Upon the reasonable request of the Trust, copies of any
such books and records shall be provided by PFPC to the Trust
or to an Authorized Person, at the Trust's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each Fund's
books of account;
(ii) records of each Fund's securities transactions; and
(iii) all other books and records as PFPC is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
8. CONFIDENTIALITY.
(1) Each party shall keep confidential any information relating to
the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or
information that is competitively sensitive material, and not
generally known to the public, including, but not limited to,
information about product plans, marketing strategies,
finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or
future business activities of the Trust or PFPC, their
respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (b) any
scientific or technical information, design, process,
procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality
affords the Trust or PFPC a competitive advantage over its
competitors; (c) all confidential or proprietary concepts,
documentation, reports,
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data, specifications, computer software, source code, object
code, flow charts, databases, inventions, know-how, and trade
secrets, whether or not patentable or copyrightable; and (d)
anything designated as confidential.
(2) Notwithstanding the foregoing, information shall not be
subject to such confidentiality obligations if it: (a) is
already known to the receiving party at the time it is
obtained; (b) is or becomes publicly known or available
through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a
third party without restriction; (e) is required to be
disclosed by the receiving party pursuant to a requirement of
a court order, subpoena, governmental or regulatory agency or
law (provided the receiving party will provide the other party
written notice of such requirement, to the extent such notice
is permitted); (f) is relevant to the defense of any claim or
cause of action asserted against the receiving party; or (g)
has been or is independently developed or obtained by the
receiving party.
(3) PFPC may not disclose nonpublic personal information of Trust
shareholders (whether past, present or future shareholders)
other than (a) in the ordinary course of business of
performing obligations under this Agreement or (b) after
notice to the Trust to the extent permissible under applicable
law, pursuant to a court order, subpoena, governmental or
regulatory request.
9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Trust's
independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules with respect
to each Fund. PFPC shall take all reasonable action
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in the performance of its duties under this Agreement to assure that
the necessary information is made available to such accountants for the
expression of their opinion, as required by the Trust.
10. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC to
the Trust (not including data bases or interfaces created solely by the
Annuity Board of the Southern Baptist Convention).
11. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of
equipment failures, PFPC shall, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions.
12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Trust, on behalf of each Fund, will pay to
PFPC a fee or fees as may be agreed to in writing by the Trust and
PFPC.
13. INDEMNIFICATION. The Trust, on behalf of each Fund, agrees to indemnify
and hold harmless PFPC and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities arising
under the Securities Laws and any state and foreign securities and blue
sky laws) arising directly or indirectly from any action or omission to
act which PFPC
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takes under this Agreement including without limitation in accordance
with Oral or Written Instructions or at the Trust's request or
direction. Neither PFPC, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident to such
liability) caused by PFPC's or its affiliates' own willful misfeasance,
bad faith, negligence, gross negligence or reckless disregard of its
duties and obligations under this Agreement. Any amounts payable by the
Trust hereunder shall be satisfied only against the relevant Fund's
assets and not against the assets of any other investment portfolio of
the Trust.
14. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on
behalf of the Trust or any Fund except as specifically set
forth herein or as may be specifically agreed to by PFPC and
the Trust in a written amendment hereto. PFPC shall be
obligated to exercise care and diligence in the performance of
its duties hereunder and to act in good faith in performing
services provided for under this Agreement. PFPC shall be
liable only for any damages arising out of PFPC's failure to
perform its duties under this Agreement to the extent such
damages arise out of PFPC's willful misfeasance, bad faith,
gross negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC shall not be
liable for losses beyond its control, including without
limitation (subject to Section 11), delays or errors or loss
of data occurring by reason of circumstances beyond PFPC's
control, provided that PFPC has acted in accordance with the
standard set forth in Section 14(a) above; and (ii) PFPC shall
not be under any duty or obligation to inquire into and shall
not be
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liable for the validity or invalidity or authority or lack
thereof of any Oral Instruction or Written Instruction, notice
or other instrument which conforms to the applicable
requirements of this Agreement, and which PFPC reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether
or not the likelihood of such losses or damages was known by
PFPC or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
15. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to
each Fund:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from
the investment adviser for a Fund (the "Adviser");
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Trust with the
Custodian, and provide the Adviser with the beginning cash
balance available for investment purposes;
(vi) Update the cash availability throughout the day as required by
the Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and
custody fees);
(ix) Monitor the expense accruals and notify an officer of the
Trust of any proposed
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adjustments;
(x) Control all disbursements and authorize such disbursements
upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing
services approved by the Adviser, or if such quotes are
unavailable, then obtain such prices from the Adviser, and in
either case calculate the market value of each Fund's
Investments;
(xiv) Transmit or mail a copy of the daily portfolio valuation to
the Adviser;
(xv) Compute net asset value;
(xvi) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity; and
(xvii) Prepare periodic financial reports, as reasonably requested by
the Adviser.
16. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect to
each Fund:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Fund and Trust statistical
data as requested on an ongoing basis;
(iv) Prepare for execution and file the Trust's Federal and state
tax returns;
(v) Monitor each Fund's status as a regulated investment company
under Sub-chapter M of the Internal Revenue Code of 1986, as
amended;
(vi) Prepare and file with the SEC the Trust's annual and
semi-annual shareholder reports and any necessary amendments
thereto;
(vii) Prepare, coordinate with the Trust's counsel and file with the
SEC Post-Effective Amendments to the Trust's Registration
Statement, prepare reports to the SEC including, the
preparation and filing of (i) semi-annual reports on Form
N-SAR and any necessary amendments thereto and (ii) Notices
pursuant to Rule 24f-2;
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(viii) Assist in the preparation of notices of Annual or Special
Meetings of Shareholders and Proxy materials relating to such
meetings;
(ix) Assist in obtaining the fidelity bond and directors' and
officers'/errors and omissions insurance policies for the
Trust in accordance with the requirements of Rule 17g-1 and
17d-1(d)(7) under the 1940 Act as such bond and policies are
approved by the Trust's Board of Trustees;
(x) Monitor the Trust's assets to assure adequate fidelity bond
coverage is maintained;
(xi) Draft agendas, resolutions and materials for quarterly and
special Board meetings;
(xii) Coordinate the preparation, assembly and mailing of Board
materials;
(xiii) Attend Board meetings and draft minutes thereof;
(xiv) Report to the Board quarterly regarding PFPC's activities on
behalf of the Trust;
(xv) Maintain the Trust's corporate calendar to assure compliance
with various filing and Board approval deadlines;
(xvi) Coordinate contractual relationships and communications
between the Trust and its contractual service providers; and
(xvii) Monitor the Trust's compliance with the amounts and conditions
of each state qualification.
17. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Trust or by PFPC on sixty (60) days' prior written
notice to the other party. In the event the Trust gives notice of
termination, all expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor accounting
and administration services agent(s) (and any other service
provider(s)), and all trailing expenses incurred by PFPC will be borne
by the Trust, provided such expenses are reasonable in nature and
documented.
18. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx,
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Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the
Trust, at , Attention: or
(c) if to neither of the foregoing, at such other address as shall have
been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed
to have been given immediately. If notice is sent by first-class mail,
it shall be deemed to have been given three days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
19. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
20. DELEGATION; ASSIGNMENT. PFPC may assign its rights hereunder to any
majority-owned direct or indirect subsidiary of PFPC or The PNC
Financial Services Group, Inc., provided that PFPC gives the Trust 30
days prior written notice of such assignment.
21. COUNTERPARTS. This Agreement may be executed 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.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
23. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may
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embody in one or more separate documents their agreement, if
any, with respect to delegated duties. Notwithstanding any
provision hereof, the services of PFPC are not, nor shall they
be, construed as constituting legal advice or the provision of
legal services for or on behalf of the Trust or any other
person.
(b) No changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Trust agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(c) Captions. The captions in this 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.
(d) Governing Law. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
(e) Partial Invalidity. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
(f) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(g) No Representations or Warranties. Except as expressly provided
in this Agreement, PFPC hereby disclaims all representations
and warranties, express or
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implied, made to the Trust or any other person, including,
without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose
or otherwise (irrespective of any course of dealing, custom or
usage of trade), of any services or any goods provided
incidental to services provided under this Agreement. PFPC
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
(i) Limitations of Liability of the Trustees and Shareholders.
PFPC is hereby expressly put on notice of the limitation of
shareholder liability as set forth in the Trust's Declaration
of Trust and notice is hereby given that this Agreement is
executed on behalf of the Trustees of the Trust as Trustees
and not individually and that the obligations of this
Agreement are not binding upon any of the Trustees or
Shareholders individually but are binding only upon the assets
and property of the Trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
Title:
AB FUNDS TRUST
By:
Title:
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EXHIBIT A
THIS EXHIBIT A, dated as of _________, 2001 is Exhibit A to that
certain Administration and Accounting Services Agreement dated as of ________,
2001 between PFPC Inc. and the AB Funds Trust.
FUNDS
THE BLENDED FUNDS
Flexible Income Fund
Growth & Income Fund
Capital Opportunities Fund
Global Equity Fund
THE SELECT FUNDS
Money Market Fund
Low Duration Bond Fund
Medium Duration Bond Fund
Extended Duration Bond Fund
Equity Index Fund
Value Equity Fund
Growth Equity Fund
Small Cap Equity Fund
International Equity Fund
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