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EXHIBIT 23(H)(5)
ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of May 1, 2000 by and between MONUMENT SERIES
FUND, a Delaware business trust (the "Fund"), and MONUMENT SHAREHOLDER SERVICES,
INC., a Maryland Corporation (the "Fund Accountant").
WHEREAS, the Fund Accountant wishes to provide fund accounting services
to the Fund, an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS the Fund wishes to retain the Fund Accountant to provide
accounting services for the benefit of the Fund's series ("Series"), as listed
in Exhibit A to this Agreement;
NOW, THEREFORE in consideration of the mutual covenants contained in this
Agreement, and intending to be legally bound by this Agreement, the parties
agree as follows:
1. DEFINITIONS AS USED IN THIS AGREEMENT.
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any person authorized by the Fund
Accountant or the Fund to give Oral Instructions and Written
Instructions hereunder. An Authorized Person's scope of authority
may be limited by setting forth such limitation in a written
document signed by the parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(f) "Oral Instructions" mean oral instructions received by the Fund
Accountant from an Authorized Person or from a person reasonably
believed by the Fund Accountant to be an Authorized Person.
Instructions received by the Fund Accountant via electronic mail
will be considered Oral Instructions.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act,
the CEA and all regulations under those laws.
(i) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
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(j) Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by the Fund Accountant; or (ii)
trade instructions transmitted (and received by the Fund
Accountant) by means of an electronic transaction reporting system
access requiring the 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 Fund Accountant may appoint a third party to act on the
Fund Accountant's behalf to provide subaccounting services to each of the
Series in accordance with the terms set forth in this Agreement. The
appointment will be made by separate written agreement.
3. DELIVERY OF DOCUMENTS. The Fund, either directly or through a third party
administrator, will provide the Fund Accountant with the following:
(a) a copy of the Fund's most recent effective registration
statement;
(b) a copy of each Series' advisory agreement(s);
(c) a copy of the distribution/underwriting agreement with respect
to each class of Shares representing an interest in a Series;
(d) a copy of each additional administration agreement with
respect to a Series;
(e) a copy of each distribution and/or shareholder servicing plan
and agreement made for the benefit of the Fund or a Series;
and
(f) copies (certified or authenticated, where applicable) of any
and all amendments or supplements to any of the items listed
above.
4. COMPLIANCE WITH GOVERNMENT RULES AND REGULATIONS. The Fund Accountant
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 the
Fund Accountant under this Agreement. Except as specifically set forth in
this Agreement, the Fund Accountant assumes no responsibility for
compliance with the Securities Laws or other law by the Fund or any other
entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, the Fund
Accountant will act only pursuant to Oral Instructions or Written
Instructions.
(b) The Fund Accountant is entitled to rely on any Oral
Instruction or Written
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Instruction it receives from an Authorized Person (or from a person
reasonably believed by the Fund Accountant to be an Authorized Person)
pursuant to this Agreement. The Fund Accountant may assume that any Oral
Instructions or Written Instruction received pursuant to this Agreement
is not in any way inconsistent with the provisions of the Fund's
organizational documents or this Agreement or of any vote, resolution or
proceeding of the Fund's Board of Trustees or of the Fund's shareholders,
unless and until the Fund Accountant receives Written Instructions to the
contrary.
(c) The Fund or its third-party representative agrees to forward
to the Fund Accountant Written Instructions confirming Oral Instructions
so that the Fund Accountant receives the Written Instructions by the
close of business on the same day that the Oral Instructions are
received. The fact that the confirming Written Instructions are not
received by the Fund Accountant or differ from the Oral Instructions will
in no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions or the Fund Accountant's
ability to rely on the Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received from an
Authorized Person, the Fund Accountant will incur no liability for acting
on the Oral Instructions or Written Instructions provided that the Fund
Accountant's actions comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund Accountant and/or the Fund. If the Fund
Accountant is in doubt as to any action it should or should not take, it
may request directions or advice, including Oral Instructions or Written
Instructions, from the Fund or its third-party representative.
(b) Advice of Counsel. If the Fund Accountant is in doubt as to
any question of law pertaining to any action it should or should not
take, it may request that the Fund seek guidance from its counsel.
Alternatively, the Fund Accountant, at its own expense, may request
advice from counsel of its own choosing (who may be counsel for the Fund
Accountant, the Fund, the Fund's investment advisor or a subaccountant,
at the option of the Fund Accountant.
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral Instructions or Written Instructions the Fund
Accountant receives from the Fund or its representative and the advice
the Fund Accountant receives from its own counsel, the parties will
address the issue together and agree on the appropriate course of action
with the assistance of counsel and/or the Fund's independent public
accountants; provided that if the parties are not able to agree on a
course of action, the Fund Accountant may rely on and follow the advice
of its own counsel.
(d) Protection of the Fund Accountant. The Fund Accountant is
protected in any
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action it takes or does not take in reliance on directions or advice or
Oral Instructions or Written Instructions it receives from the Fund (or
its third-party representative) or from counsel and that the Fund
Accountant believes, in good faith based on standards considered
reasonable in the industry, to be consistent with those directions or
advice and Oral Instructions or Written Instructions. Nothing in this
section will be construed so as to impose an obligation on the Fund
Accountant (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, other than what
is already required pursuant to this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Fund and the
Series which are in the possession or under the control of the Fund
Accountant are the property of the Fund. The Fund Accountant, the Fund
and Authorized Persons will have access to the books and records at all
times during the Fund Accountant's normal business hours. Upon reasonable
request by the Fund, the Fund Accountant or its subaccountant will
provide copies of any books and records to the Fund or to an Authorized
Person at the expense of the Fund. The Fund Accountant will keep the
following records:
(a) all books and records with respect to the Fund's books of
account, as required by and consistent with the standards
under the 1940 Act.
(b) records of each Series' securities transactions.
8. CONFIDENTIALITY. Each party will keep confidential any information
relating to the others' business ("Confidential Information").
Confidential Information includes: (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 either party, 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 either party a competitive
advantage over its competitors; (c) all confidential or proprietary
concepts, documentation, reports, 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.
Notwithstanding the foregoing, information will not be subject to the
confidentiality obligations of this provision 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
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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 party whose information being disclosed
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.
9. LIAISON WITH ACCOUNTANTS. The Fund Accountant will act as liaison with
the Fund's independent public accountants and will provide account
analyses, fiscal year summaries, and other audit-related schedules with
respect to each Series. The Fund Accountant will take all reasonable
action in the performance of its duties under this Agreement to assure
that the necessary information is made available to the accountants for
the expression of their opinion, as required by the Fund Accountant or
the Securities Laws.
10. FUND ACCOUNTANT'S SYSTEM. To the extent the Fund Accountant has a prior
legal right to such property, it will 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 used
by the Fund Accountant in connection with the services it provides to the
Fund pursuant to this Agreement.
11. DISASTER RECOVERY. The Fund Accountant will take steps to ensure that
there are in place reasonable provisions for emergency use of electronic
data processing equipment to the extent appropriate equipment is
available. In the event of equipment failures, the Fund Accountant will,
at no additional expense to the Fund, take reasonable steps to minimize
service interruptions. The Fund Accountant will have no liability with
respect to the loss of data or service interruptions caused by equipment
failure, provided the loss or interruption is not caused by the Fund
Accountant's own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties or obligations under this Agreement.
12. COMPENSATION. As compensation for services rendered by the Fund
Accountant during the term of this Agreement, the Fund will pay to the
Fund Accountant (out of the assets of the Fund) the fees set forth in the
exhibit accompanying this Agreement.
13. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless the Fund
Accountant and its affiliates (out of the assets of the Fund) 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 that the Fund Accountant takes in connection with the
provision of services under this Agreement. Neither the Fund Accountant
nor any of its affiliates will be indemnified against any liability (or
any expenses incident to such liability) caused by the Fund
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Accountant's or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under this
Agreement. Any amounts payable under this Section will be satisfied only
against the relevant Series' assets and not against the assets of any
other investment portfolio of the Fund.
14. RESPONSIBILITY OF THE FUND ACCOUNTANT.
(a) The Fund Accountant is under no duty to take any action under this
Agreement except as specifically set forth in this Agreement or as
may be specifically agreed to by the Fund Accountant and the Fund
in a written amendment to this Agreement. The Fund Accountant is
obligated to exercise care and diligence in the performance of its
duties under this Agreement and to act in good faith in performing
services provided for under this Agreement. The Fund Accountant
will be liable only for any damages arising out of its failure to
perform its duties under this Agreement to the extent such damages
arise out of its willful misfeasance, bad faith, gross negligence
or reckless disregard of its duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) the Fund Accountant will 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 its control,
provided that the Fund Accountant has acted in accordance with the
standard set forth in Section 14(a) above; and (ii) the Fund
Accountant will not be under any duty or obligation to inquire
into, and will not be liable for the validity or invalidity or
authority or lack of authority, of any Oral Instruction or Written
Instruction, notice or other instrument that conforms to the
applicable requirements of this Agreement, and that the Fund
Accountant reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither the Fund Accountant nor its affiliates will be liable for
any consequential, special or indirect losses or damages, whether
or not the likelihood of such losses or damages was known by the
Fund Accountant or its affiliates; and (ii) the Fund Accountant's
cumulative liability to the Fund Accountant and the Fund for all
losses, claims, suits, controversies, breaches or damages for any
cause whatsoever (including but not limited to those arising out
of or related to this Agreement) and regardless of the form of
action or legal theory will not exceed the fees received by the
Fund Accountant for services provided pursuant to this Agreement
during the 24 months immediately prior to the date of such loss or
damage.
(d) No party may assert a cause of action against the Fund Accountant
or any of its affiliates that allegedly occurred more than 12
months immediately prior to the filing of the suit (or, if
applicable, commencement of mediation sessions or arbitration
proceedings) alleging such cause of action; except, however, that
this
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proscription will not apply: (i) unless the Fund Accountant or the
Fund had knowledge of the circumstances and accordingly knew or
should have known of the existence of the claim during that time
period; (ii) if the Fund Accountant or any of its affiliates
withheld information from the party asserting the claim that would
have been deemed material in the decision to file a claim; (iii)
if the Fund Accountant or any of its affiliates employed delaying
tactics that resulted in the passage of the time period during
which a claim would have been filed but for the delaying tactics;
or (iv) if, during the 12-month period following the action giving
rise to the claim, the party asserting the claim notifies the Fund
Accountant or any of its affiliates in writing of its intent to
commence a legal action once sufficient information has been
collected.
(e) Each party shall have a duty to mitigate damages for which another
party may become responsible.
15. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS. The Fund
Accountant will perform the following accounting services with respect to
each Series:
(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 Series (the "Adviser") and
transmit trades to the Fund's custodian (the "Custodian")
for proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances 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 the Fund Accountant
of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements
upon Written
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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 Series'
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 a monthly financial statement, which will include
the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses.
16. DURATION AND TERMINATION. This Agreement will continue until terminated
by the Fund (either unilaterally or pursuant to direction by the Board of
Trustees of the Fund) or by the Fund Accountant on ninety (90) days prior
written notice to the other. In the event either party gives notice of
termination, all expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor accounting
services agent(s) (and any other service provider(s)), and all other
expenses incurred by the Fund Accountant, will be paid out of the assets
of the Fund.
17. NOTICES. Notices shall be addressed as follows: (a) if to the Fund
Accountant, at 0000 Xxxxxxx Xxx., Xxxxx 000, Xxxxxxxx, XX 00000,
Attention: Xxxxx X. Xxxxxx; (b) if the Fund, at 0000 Xxxxxxx Xxx., Xxxxx
000, Xxxxxxxx, XX 00000, or (d) if to none 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 receiving party. If notice
is sent by confirming telegram, cable, telex or facsimile sending device,
it shall be deemed to have
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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.
18. 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.
19. DELEGATION; ASSIGNMENT. The Fund Accountant may assign its rights and
delegate its duties under this Agreement to any of its majority-owned
direct or indirect subsidiaries, provided that the Fund Accountant give
the Fund thirty days prior written notice of an assignment or delegation.
20. 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.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute additional documents as may be necessary to effectuate the
purposes of this Agreement.
22. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary, the
Fund agrees not to make any modifications to its registration
statement or adopt any policies that would affect materially the
obligations or responsibilities of the Fund Accountant under this
Agreement without the prior written approval of the Fund
Accountant, which approval will not be unreasonably withheld or
delayed.
(b) Except as expressly provided in this Agreement, the Fund
Accountant hereby disclaims all representations and warranties,
express or implied, made to the Fund 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. The Fund Accountant
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(c) This Agreement, including all exhibits, attachments and
appendices, embodies the entire agreement and understanding among
the parties and supersedes all prior agreements and understandings
relating to the provision of fund accounting services to the Fund,
except that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated
duties. The captions in this Agreement are included for
convenience of reference only and in no way
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define or delimit any of the provisions of the Agreement or
otherwise affect their construction or effect. Notwithstanding any
provision in this Agreement, the services of the Fund Accountant
are not, nor shall they be, construed as constituting legal advice
or the provision of legal services for or on behalf of the Fund or
any other person.
(d) 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) 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 by that finding of
invalidity. This Agreement will be binding on, and inure to the
benefit of, the parties and their respective successors and
permitted assigns.
(f) The facsimile signature of any party to this Agreement constitutes
the valid and binding execution by that party.
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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.
MONUMENT SHAREHOLDER SERVICES, INC.
By:
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Title:
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MONUMENT SERIES FUND
By:
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Title:
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EXHIBIT A
May 1, 2000
[LIST PORTFOLIOS]
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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