ADMINISTRATIVE AND FUND ACCOUNTING AGENCY AGREEMENT
THIS AGREEMENT is made as of August 4, 2004 by and between XXXXX BROTHERS
XXXXXXXX & CO., a limited partnership organized under the laws of the State of
New York (the "Administrator"), and Pioneer Ibbotson Asset Allocation Series
(the "Trust") on behalf of itself and each series thereof listed on Appendix A
to this Agreement (each a "Fund" and collectively, the "Funds").
WITNESSETH:
WHEREAS, the Trust is registered with the United States Securities and
Exchange Commission as a management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust on behalf of each Fund desires to retain the Administrator
to render certain services to the Funds, and the Administrator is willing to
render such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto agree as follows:
1. Appointment of Administrator. The Trust on behalf of each Fund hereby employs
and appoints the Administrator to act as its administrative and fund accounting
agent on the terms set forth in this Agreement, and the Administrator accepts
such appointment.
2. Delivery of Documents. The Trust will:
2.1 Furnish the Administrator with properly certified or authenticated copies
of resolutions of the Trust's Board of Trustees (the "Board of Trustees")
authorizing the appointment of the Administrator as administrative and fund
accounting agent of the Funds and approving this Agreement.
2.2 Provide the Administrator with any other documents or resolutions
(including but not limited to directions or resolutions of the Trust's Board
of Trustees) which relate to or affect the Administrator's performance of its
duties hereunder or which the Administrator may at any time reasonably
request.
2.3 Notify the Administrator promptly of any matter affecting the performance
by the Administrator of its services under this Agreement.
2.4 Each of the foregoing obligations set forth in Sections 2.1 through 2.3
shall be the continuing obligations of the Fund.
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3. Duties as Administrator. Subject to the supervision and direction of the
Board of Trustees, the Administrator will perform the administrative services as
set forth on Appendix B hereto. In performing its duties and obligations
hereunder, the Administrator will act in accordance with the Fund's Articles of
Incorporation or Declaration of Trust, By-laws and Prospectus and Proper
Instructions. It is agreed and understood, however, that except as provided in
Appendix B hereto with respect to Compliance Monitoring, the Administrator shall
not be responsible for the Fund's compliance with any applicable documents, laws
or regulations, or for losses, costs or expenses arising out of the Fund's
failure to comply with said documents, laws or regulations or the Fund's failure
or inability to correct any non-compliance therewith.
4. Duties as Fund Accounting Agent. Subject to the supervision and direction of
the Board of Trustees, the Administrator will perform the following fund
accounting services:
4.1 Compute and determine the net asset value per share of each Fund on each
day on which the Fund is traded as of the close of business on the New York
Stock Exchange , unless otherwise directed by Proper Instruction and such
other times as the Fund's Board of Directors or Trustees from time to time
may reasonably request. Such computation and determination shall be made in
accordance with the provisions of the Fund's Valuation Procedures, as they
may from time to time be amended and delivered to the Administrator. Without
limiting the forgoing, any shares of a registered investment company held by
the Fund for which Pioneer Investment Management, Inc. serves as investment
adviser shall be valued at the net asset value per share for shares of the
applicable class as reported to the Administrator by Pioneer Investment
Management, Inc. ("Pioneer") or the person responsible for reporting such net
asset value as designated by Pioneer.
4.2 Create, maintain and retain such records relating to its obligations
under this Agreement as are required under the 1940 Act (including Section 31
thereof and Rules 31a-1 and 31a-2 thereunder).
4.3 Provide Pioneer and each Fund's sub-investment adviser (each an
"Adviser") with written reports which the Adviser will use to verify that
portfolio transactions have been recorded in accordance with a Fund's
instructions and reconcile with the Fund's trading records on each day that
the Administrator shall compute the net asset value per share of the Fund.
Notwithstanding anything in this Agreement to the contrary, the Administrator
shall not be responsible for any liability arising out of the failure of a Fund
or its Adviser to provide the Administrator with Proper Instructions regarding
liabilities which ought to be included in the calculation of the Fund's net
asset value and as to which the Administrator would not otherwise be aware.
5. Expenses and Compensation. For the services to be rendered and the facilities
to be furnished by the
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Administrator as provided for in this Agreement, each Fund, severally and not
jointly, shall pay the Administrator for its services rendered to such Fund
pursuant to this Agreement a fee based on such fee schedule as may from time to
time be agreed upon in writing by the Fund and the Administrator. In addition to
such fee, the Administrator shall xxxx each Fund separately for any reasonable
out-of-pocket disbursements of the Administrator based on an out-of-pocket
schedule as may from time to time be agreed upon in writing by the Trust and the
Administrator. The foregoing fees and disbursements shall be billed to the
applicable Fund by the Administrator and shall be paid promptly by wire transfer
or other appropriate means to the Administrator.
6. Standard of Care. The Administrator shall exercise reasonable care and
diligence in carrying out the provisions of this Agreement, provided that the
Administrator shall not thereby be required to take any action which is in
contravention of any applicable law, rule or regulation or any order or judgment
of any court of competent jurisdiction. The Trust on behalf of each Fund shall
review the services performed by the Administrator under this Agreement
periodically, and shall promptly notify the Administrator of any improper
performance, discrepancy or error that comes to the attention of an officer of
the Trust.
7. Limitation of Liability. The Administrator shall incur no liability for
losses, costs or expenses resulting from the failure of a Fund and/or its
agent(s) to provide, in a timely fashion, all information necessary for the
calculation of the Fund's net asset value other than information otherwise in
the Administrator's possession. The Administrator shall also incur no liability
with respect to any telecommunications, equipment or power failures, or any
failures to perform or delays in performance by postal or courier services or
third-party information providers (including without limitation those listed on
Appendix C), beyond the Administrator's reasonable control. In the event of
equipment failures beyond the Administrator's reasonable control, the
Administrator shall, at no additional expense to the Fund, take reasonable steps
to minimize service interruptions. The Administrator shall maintain reasonably
effective business continuity and disaster recovery plans. Furthermore, the
Administrator shall also incur no liability under this Agreement if the
Administrator or any agent or entity utilized by the Administrator shall be
prevented, forbidden or delayed from performing, or omits to perform, any act or
thing which this Agreement provides shall be performed or omitted to be
performed, by reason of causes or events beyond its reasonable control,
including but not limited to:
7.1 any Sovereign Event. A "Sovereign Event" shall mean any nationalization;
expropriation; devaluation; revaluation; confiscation; seizure; cancellation;
destruction; strike; act of war, terrorism, insurrection or revolution; or
any other act or event beyond the Administrator's reasonable control;
7.2 any provision of any present or future law, regulation or order of the
United States or any
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state thereof, or of any foreign country or political subdivision thereof, or
of any securities depository or clearing agency; and
7.3 any provision of any order or judgment of any court of competent
jurisdiction. Provided that in each case the Administrator promptly informs
the Trust of such event and its inability to perform its obligations.
Notwithstanding any other provision of this Agreement, the Administrator
shall not be held accountable or liable for any losses, damages or expenses the
Fund or any shareholder or former shareholder of the Fund or any other person
may suffer or incur arising from acts, omissions, errors or delays of the
Administrator in the performance of its obligations and duties hereunder,
including without limitation any error of judgment or mistake of law, except a
damage, loss or expense resulting from the Administrator's willful malfeasance,
bad faith or negligence in the performance of such obligations and duties. The
parties hereto acknowledge, however, that the Administrator's causing an error
or delay in the determination of net asset value may, but does not in and of
itself, constitute negligence or reckless or willful misconduct. The
Administrator shall in no event be required to take any action, which is in
contravention of any applicable law, rule or regulation or any order or judgment
of any court of competent jurisdiction.
The Administrator's liability for any such negligence or reckless or willful
misconduct which results in an error in determination of such net asset value
shall be limited exclusively to the direct, out-of-pocket loss the Fund shall
actually incur, measured by the difference between the actual and the
erroneously computed net asset value, and any expenses the Fund shall incur in
connection with correcting the records of the Fund affected by such error
(including (i) any loss to the Fund resulting from a payment to redeeming
shareholders of shares at an overstated net asset value to the extent such
overpayment is not recouped or otherwise collected from such shareholders by the
Fund, and (ii) charges made by the Fund's registrar and transfer agent for
making such corrections) or communicating with shareholders or former
shareholders of the Fund affected by such error. In no event and under no
circumstances shall the Administrator or a Fund be held liable to the other
party for consequential or indirect damages, loss of profits, damage to
reputation or business or any other special damages arising under or by reason
of any provision of this Agreement or for any act or omission hereunder.
Without limiting the foregoing, the Administrator shall not be held
accountable or liable to a Fund, any shareholder or former shareholder thereof
or any other person for any delays or losses, damages or expenses any of them
may suffer or incur resulting from (i) the Administrator's failure to receive
timely and suitable notification concerning quotations or corporate actions
relating to or affecting portfolio securities of the Fund or (ii) any errors in
the computation of the net asset value based upon or arising out of quotations
or information as to corporate actions if received by the Administrator, in the
case of (i) and (ii), (a) from a source which the Administrator was authorized
to rely upon (including those sources listed on Appendix C),
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(b) from a source which in the Administrator's reasonable judgment was as
reliable a source for such quotations or information as such authorized sources,
or (c) relevant information known to the Fund or the Adviser which would impact
the calculation of net asset value but which is not communicated by the Fund or
the Adviser to the Administrator.
In the event of any error or delay in the determination of such net asset
value for which the Administrator may be liable, the Funds and the Administrator
will consult and make good faith efforts to reach agreement on what actions
should be taken in order to mitigate any loss suffered by the Fund or its
present or former shareholders, in order that the Administrator's exposure to
liability shall be reduced to the extent possible after taking into account all
relevant factors and alternatives. It is understood that in attempting to reach
agreement on the actions to be taken or the amount of the loss which should
appropriately be borne by the Administrator, the Fund and the Administrator will
consider such relevant factors as the amount of the loss involved, the Fund's
desire to avoid loss of shareholder goodwill, the fact that other persons or
entities could have been reasonably expected to have detected the error sooner
than the time it was actually discovered, the appropriateness of limiting or
eliminating the benefit which shareholders or former shareholders might have
obtained by reason of the error, and the possibility that other parties
providing services to the Fund might be induced to absorb a portion of the loss
incurred. The Fund hereby agrees to indemnify the Administrator against and hold
it harmless from any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) resulting from any act,
omission, error or delay or any claim, demand, action or suit, in connection
with or arising out of performance of its obligations and duties under this
Agreement, not resulting from the willful malfeasance, bad faith or negligence
of the Administrator in the performance of such obligations and duties.
8. Reliance by the Administrator on Proper Instructions and Opinions of Counsel
and Opinions of Certified Public Accountants. The Administrator shall not be
liable for, and shall be indemnified by the Fund against any and all losses,
costs, damages or expenses arising from or as a result of, any action taken or
omitted in reliance upon Proper Instructions or upon any other written notice,
request, direction, instruction, certificate or other instrument believed by it
to be genuine and signed or authorized by the proper party or parties.
Proper Instructions shall include a written request, direction, instruction
or certification signed or initialed on behalf of the Fund by one or more
persons as the Board of Trustees shall have from time to time authorized. Those
persons authorized to give Proper Instructions may be identified by the Board of
Trustees by name, title or position and will include at least one officer
empowered by the Board to name other individuals who are authorized to give
Proper Instructions on behalf of the Fund.
Telephonic or other oral instructions or instructions given by telefax
transmission may be given by
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any one of the above persons and will also be considered Proper Instructions if
the Administrator believes them to have been given by a person authorized to
give such instructions with respect to the transaction involved.
With respect to telefax transmissions, the Trust on behalf of each Fund
hereby acknowledges that (i) receipt of legible instructions cannot be assured,
(ii) the Administrator cannot verify that authorized signatures on telefax
instructions are original, and (iii) the Administrator shall not be responsible
for losses or expenses incurred through actions taken in reliance on such
telefax instructions. The Fund agrees that such telefax instructions shall be
conclusive evidence of the Fund's Proper Instruction to the Administrator to act
or to omit to act.
Proper Instructions given orally will be confirmed by written instructions in
the manner set forth above, including by telefax, but the lack of such
confirmation shall in no way affect any action taken by the Administrator in
reliance upon such oral instructions. The Trust on behalf of each Fund
authorizes the Administrator to tape record any and all telephonic or other oral
instructions given to the Administrator by or on behalf of the Fund (including
any of its officers, directors, trustees, employees or agents or any investment
manager or adviser or person or entity with similar responsibilities which is
authorized to give Proper Instructions on behalf of the Fund to the
Administrator). The Trust on behalf of each Fund agrees to solicit valid written
or other consent from any of its employees to the extent such consent is
required by applicable law.
The Administrator may consult with the Fund's counsel in any case where so
doing appears to the Administrator to be necessary or desirable. The
Administrator shall not be considered to have engaged in any misconduct or to
have acted negligently and shall be without liability in acting reasonably upon
the advice of the Fund's counsel.
The Administrator may consult with a certified public accountant or the
Fund's Treasurer in any case where so doing appears to the Administrator to be
necessary or desirable. The Administrator shall not be considered to have
engaged in any misconduct or to have acted negligently and shall be without
liability in acting reasonably upon the advice of such certified public
accountant or of the Fund's Treasurer.
9. Termination of Agreement. This Agreement shall continue in full force and
effect until either party terminates this Agreement as to the Trust as a whole
or as to any Fund by written notice effective no sooner than seventy-five (75)
calendar days following the date that notice to such effect shall be delivered
to the other party at its address set forth herein. Notwithstanding the
foregoing provisions, either party may terminate this Agreement as to the Trust
as a whole or as to any Fund at any time upon thirty (30) calendar days' written
notice to the other party in the event that the either party is adjudged
bankrupt or insolvent, or there shall be commenced against such party a case
under any applicable bankruptcy, insolvency, or other
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similar law now or hereafter in effect. In the event a termination notice is
given by a party hereto, all expenses associated with the movement of records
and materials and the conversion thereof shall be paid by the Fund for which
services shall cease to be performed hereunder. The Accounting Agent shall be
responsible for completing all actions in progress when such termination notice
is given unless otherwise agreed.
This Section 9 shall survive any termination of this Agreement, whether for
cause or not for cause.
10. Amendment of this Agreement. This Agreement constitutes the entire
understanding and agreement of the parties hereto with respect to the subject
matter hereof. No provision of this Agreement may be amended or terminated
except by a statement in writing signed by the party against which enforcement
of the amendment or termination is sought.
In connection with the operation of this Agreement, the Trust and the
Administrator may agree in writing from time to time on such provisions
interpretive of or in addition to the provisions of this Agreement as may in
their joint opinion be consistent with the general tenor of this Agreement. No
interpretive or additional provisions made as provided in the preceding sentence
shall be deemed to be an amendment of this Agreement.
In the event any provision of this Agreement is determined to be void or
unenforceable, such determination shall not affect the remainder of this
Agreement, which shall continue to be in force.
The section headings and the use of defined terms in the singular or plural
tenses in this Agreement are for the convenience of the parties and in no way
alter, amend, limit or restrict the contractual obligations of the parties set
forth in this Agreement.
11. Governing Law. This Agreement shall be governed by and construed according
to the laws of the Commonwealth of Massachusetts without giving effect to
conflicts of laws principles.
12. Notices. Notices and other writings delivered or mailed postage prepaid to
the Fund addressed to the Fund at 00 Xxxxx Xxxxxx. Xxxxxx, XX 00000, Attention:
President, with a copy to Xxxxxxx X. Xxxxxxxx, Secretary, or to such other
address as the Fund may have designated to the Administrator in writing, or to
the Administrator at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, Attention: Manager, Fund
Administration Department, or to such other address as the Administrator may
have designated to the Fund in writing, shall be deemed to have been properly
delivered or given hereunder to the respective addressee.
13. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Fund and the
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Administrator and their respective successors and assigns, provided that no
party hereto may assign this Agreement or any of its rights or obligations
hereunder without the written consent of the other party.
14. Counterparts. This Agreement may be executed in any number of counterparts
each of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument. This Agreement shall become effective
when one or more counterparts have been signed and delivered by each of the
parties.
15. Exclusivity. The services furnished by the Administrator hereunder are not
to be deemed exclusive, and the Administrator shall be free to furnish similar
services to others.
16. Authorization. The Trust hereby represents and warrants that the Board of
Trustees has authorized the execution and delivery of this Agreement and that an
authorized officer of the Fund has signed this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by their duly authorized officers as of the date first
written above. The undersigned acknowledges that (I/we) have received a copy of
this document .
XXXXX BROTHERS XXXXXXXX & CO. Pioneer Ibbotson Asset
Allocation Series on behalf of
Itself and each series thereof
By /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx Xxxx
--------------------------- --------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxxx Xxxx
Title: Managing Director Title: Executive Vice President
Date: June 3, 2005 Date: June 14, 2005
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APPENDIX A
TO
ADMINISTRATIVE AND FUND ACCOUNTING AGENCY AGREEMENT
Dated as of August 4, 2004
The following is a list of Investment Companies for which the Administrator
shall serve under a Administrative and Accounting Agency Agreement dated as of
August 5, 2004: each series of Pioneer Ibbotson Asset Allocation Series
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APPENDIX B TO
ADMINISTRATIVE AND FUND ACCOUNTING AGENCY AGREEMENT
Financial Administration Services
COMPLIANCE MONITORING SERVICES:
o Perform administrative compliance monitoring of the Funds with respect to the
investment restrictions and policies as set forth in the Funds' current
prospectus and statement of additional information provided to the
Administrator by the Fund and in the 1940 Act and applicable IRS rules and
regulations, using certain manual and automated applications such as the
Xxxxxxx River Development "ComplianceMaster" Automated Compliance System
("CRD"), a system provided to the Administrator by an unaffiliated third
party vendor. Changes to such objectives, policies and restrictions will be
monitored as agreed in writing between the parties. The Administrator shall
only perform post net asset value compliance monitoring.
o Each Fund shall remain ultimately responsible for ensuring compliance with
its investment restrictions and policies and that assistance provided by the
Administration in monitoring investment restrictions and policies shall not
be deemed to be a delegation of this responsibility to the Administrator.
o In the event that the Administrator detects a possible non-compliance with
the investment restrictions and policies applicable to the Fund, it shall
promptly notify the Fund's Chief Compliance Officer thereof. In the event
that the Fund or any officers, employee or agent of the Fund detects a
possible non-compliance with the investment restrictions and policies
applicable to the Fund, it shall promptly notify the Administrator.
TREASURER'S SUPPORT SERVICES:
o Provide an Assistant Treasurer to the Fund upon request by the Fund.
o Accumulate information for and, subject to approval by the Funds' Treasurer,
prepare reports to the Funds' shareholders of record as set forth in Rule
30e-1 under the 1940 Act and reports on Form N-CSR as required by Rule 30d-1
under the 1940 Act, and file such reports with the U.S. Securities and
Exchange Commission ("SEC").
o Prepare and file the Rule 24f-2 Notice and Form N-SAR with the SEC.
o Prepare and file Form N-Q reports as required by Rules 30b1-5 under the 1940
Act.
o Prepare and file Form N-PX reports as required by Rule 30b1-4 under the 0000
Xxx.
o Consult with the Funds' Treasurer on financial matters relating to the Funds
including without limitation dividend distributions, expense pro formas,
expense accruals and other matters, including payment of expenses, as shall
from time to time be agreed upon by the parties.
o Assist the Fund's Treasurer in the preparation of quarterly reporting to the
Fund's Board of Directors or Trustees as required by applicable rules under
the 1940 Act and in reporting to external databases such
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information as may reasonably be requested and as agreed between the
Administrator and the Funds from time to time.
TAX SERVICES:
o Assist the Fund's Treasurer with the Fund's federal, state and applicable
local tax preparation and reporting, including the following:
o preparation of fiscal and excise tax distribution calculations;
o preparation and filing of federal, state and any local income tax returns,
including tax return extension requests;
o preparation of shareholder year end reporting statements;
o provide the appropriate amounts and characterization of distributions
declared during the calendar year for Forms 1099 reporting;
o periodically review and determine distributions to be paid to
shareholders;
o consult with the Fund's Treasurer regarding potential passive foreign
investment companies; and
o consult with the Fund's Treasurer on various tax issues as they arise and
with the Fund's outside auditors when appropriate.
CORPORATE SECRETARIAL, REGULATORY AND CONSULTATIVE SERVICES:
o Monitor good standing of the Fund in its state of organization as required.
o Provide Assistant Secretary for the Fund upon request by the Fund.
o Maintain corporate calendars for regulatory matters and Board approvals.
o Prepare quarterly Board and Audit Committee meeting materials, including
scripts, agendas, resolutions, memoranda, minutes.
o Attend quarterly Board and Audit Committee meetings; take minutes of the
meetings; make presentations as required; follow up on matters raised at the
meetings.
o Coordinate and monitor shareholder vote solicitation and tabulation with the
Fund's transfer agent upon request.
o Prepare supplements and stickers to registration statements and file the same
with the SEC.
o Review and comment on shareholder communications, including shareholder
reports, reports, advertising and sales literature upon request.
o Assist in filing advertising and sales literature with the SEC upon request.
o Prepare and file annual shareholder meeting materials, if applicable,
including scripts, agendas, resolutions, proxy statements, notices and other
solicitation materials.
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o Coordinate and monitor shareholder vote solicitation and tabulation with the
Fund's transfer agent, upon request.
o Attend shareholder meetings, if applicable, and take minutes.
o Prepare and file Fund's initial registration statement and/or annual updates
to the Fund's registration statement with the SEC.
o Maintain and communicate awareness of regulatory proposals and changes to
Fund management.
o Act as liaison with internal counsel, Fund counsel, and Fund auditors.
Assist the Fund's officers and the Fund's investment advisers in such other
matters as the Funds and the Administrator shall from time to time agree.
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