EXHIBIT (h)(iii)
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FUND ACCOUNTING AGREEMENT
AGREEMENT made this ____ day of _____ 2003, between the Agile Funds, Inc. a
Maryland corporation (the "Fund") and ALPS Mutual Funds Services, Inc., a
Colorado corporation ("ALPS").
WHEREAS, the Fund is an open-end management investment company registered
under the Investment Company Act of 1940 (the "1940 Act"), as amended, presently
consisting of the portfolio and share classes listed in Appendix A attached
hereto; the investment portfolio and any additional investment portfolios that
may be established by the Fund is referred to herein individually as a
"Portfolio" and collectively as the "Portfolios"; and
WHEREAS the Fund has entered into an Administration Agreement dated
__________, 2003, (the "Administration Agreement") with ALPS whereby ALPS has
agreed to perform certain administration services for the benefit of the
Portfolios.
WHEREAS, ALPS provides certain fund accounting services to investment
companies; and
WHEREAS, the Fund desires to appoint ALPS to perform certain bookkeeping
and pricing services for the Portfolios on behalf of the Fund, and ALPS has
indicated its willingness to so act, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. ALPS APPOINTED BOOKKEEPING AND PRICING AGENT. The Fund hereby appoints
ALPS as bookkeeping and pricing agent for the Portfolios and ALPS agrees to
provide the fund accounting services to each of the Portfolios as set forth in
Appendix B, as may be amended from time to time, upon the terms and conditions
hereinafter set forth. ALPS accepts such appointment and agrees to furnish such
specified services.
2. DUTIES OF ALPS. ALPS agrees to provide the services listed in Appendix B
attached hereto for the Fund.
ALPS shall for all purposes be deemed to be an independent contractor and
shall, except as otherwise expressly authorized in this Agreement, have no
authority to act for or represent the Fund in any way or otherwise be deemed an
agent of the Fund.
3. ALPS COMPENSATION. In consideration for the services to be performed by
ALPS, ALPS shall be entitled to receive from the Fund such compensation and
reimbursement for all reasonable out-of-pocket expenses as may be agreed upon
from time to time between ALPS and the Fund in advance and in writing. The Fund
agrees to pay ALPS compensation as described in the Administration Agreement.
4. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If ALPS is in doubt as to any action it
should or should not take, ALPS shall request directions or
advice from the Fund.
(b) Advice of Counsel. If ALPS shall be in doubt as to any question
of law pertaining to any action it should or should not take,
ALPS shall request advice from counsel of its own choosing and at
its own expense.
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Proper Instructions ALPS receives from the
Fund and the advice ALPS receives from counsel, ALPS shall inform
the Fund and its counsel of the conflict and seek resolution.
(d) Nothing in this subsection shall excuse ALPS when an action or
omission on the part of ALPS constitutes willful misfeasance, bad
faith, negligence or reckless disregard by ALPS of any duties,
obligations or responsibilities set forth in this Agreement.
5. LIABILITY OF ALPS.
(a) ALPS may rely upon the written advice of counsel for the Fund and
the Fund's independent accountants, and upon oral or written
statements of the Fund's investment adviser, brokers and other
service providers to the Fund, reasonably believed by ALPS in
good faith to be an expert in the matters upon which they are
consulted and, for any actions reasonably taken in good faith
reliance upon such advice or statements and without negligence,
ALPS shall not be liable to anyone.
(b) Nothing herein contained shall be construed to protect ALPS
against any liability to the Fund or its shareholders to which
ALPS would otherwise be subject by reason of willful misfeasance,
bad faith, negligence, or reckless disregard in the performance
of its duties.
(c) Except as may otherwise be provided by applicable law, neither
ALPS nor its shareholders, officers, Directors, employees or
agents shall be subject to, and the Fund shall indemnify and hold
such persons harmless from and against, any liability for and any
damages, expenses or losses incurred by reason of the inaccuracy
of factual information furnished to ALPS by other parties.
(d) ALPS shall be obligated to exercise commercially reasonable care
and diligence in the performance of its duties hereunder, to act
in good faith and to use its best efforts, within reasonable
limits, in performing services provided for under this Agreement.
ALPS shall be liable for actual damages arising out of ALPS'
failure to perform its duties under this Agreement to the extent
such damages arise out of ALPS' willful misfeasance, bad faith,
negligence or reckless disregard of such duties.
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6. REPORTS. Whenever, in the course of performing its duties under this
Agreement, ALPS determines, on the basis of information supplied to ALPS by the
Fund or its authorized agents, that a violation of applicable law has occurred
or that, to its knowledge, a possible violation of applicable law may have
occurred or, with the passage of time, would occur, ALPS shall promptly notify
the Fund and its counsel.
7. ACTIVITIES OF ALPS. The services of ALPS under this Agreement are not to
be deemed exclusive, and ALPS shall be free to render similar services to
others.
8. ACCOUNTS AND RECORDS. The accounts and records maintained by ALPS shall
be the property of the Fund. Such accounts and records shall be prepared,
maintained and preserved as required by the 1940 Act and other applicable
securities laws, rules and regulations. Such accounts and records shall be
surrendered to the Fund promptly upon receipt of instructions from the Fund in
the form in which such accounts and records have been maintained or preserved.
The Fund shall have access to such accounts and records at all times during
ALPS' normal business hours. Upon the reasonable request of the Fund, copies of
any such books and records shall be provided by ALPS to the Fund at the Fund's
expense. ALPS shall assist the Fund, the Fund's independent auditors, or, upon
approval of the Fund, any regulatory body, in any requested review of the Fund's
accounts and records, and reports by ALPS or its independent accountants
concerning its accounting system and internal auditing controls will be open to
such entities for audit or inspection upon reasonable request.
9. CONFIDENTIALITY. ALPS agrees that it will, on behalf of itself and its
officers and employees, treat all transactions contemplated by this Agreement,
and all other information germane thereto (past, present and future), as
confidential and not to be disclosed to any person except as may be authorized
by the Fund in writing.
10. COMPLIANCE WITH RULES AND REGULATIONS. ALPS shall comply with all
applicable requirements of the 1940 Act and other applicable securities laws,
and any laws, rules and regulations of governmental authorities having
jurisdiction with respect to the duties to be performed by ALPS hereunder.
Except as specifically set forth herein, ALPS assumes no responsibility for such
compliance by the Fund or any Portfolio.
11. REPRESENTATIONS AND WARRANTIES OF ALPS. ALPS represents and warrants
to the Fund that:
(a) It is duly organized and existing as a corporation and in good
standing under the laws of the State of Colorado.
(b) It is empowered under applicable laws and by its Articles of
Incorporation and By-laws to enter into and perform this
Agreement.
(c) All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement.
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(d) It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement in accordance with industry
standards.
12. REPRESENTATIONS AND WARRANTIES OF THE FUND. The Fund represents and
warrants to ALPS that:
(a) It is an open-end investment company duly organized and
existing under the laws of the state of Maryland.
(b) It is empowered under applicable laws and by its Articles of
Incorporation and By-laws to enter into and perform this
Agreement.
(c) The Board of Directors has duly authorized it to enter into and
perform this Agreement.
13. LIAISON WITH ACCOUNTANTS. ALPS shall act as liaison with the Fund's
independent public accountants and shall provide account analysis, fiscal year
summaries, and other audit-related schedules with respect to the services
provided to each Portfolio. ALPS shall take all reasonable action in the
performance of its duties under this Agreement to assure that the necessary
information in ALPS' control is made available to such accountants for the
expression of their opinion, as required by the Fund.
14. BUSINESS INTERRUPTION PLAN. ALPS shall maintain in effect a business
interruption plan, and enter into any agreements necessary with appropriate
parties making reasonable provisions for emergency use of electronic data
processing equipment customary in the industry. In the event of equipment
failures, ALPS shall, at no additional expense to the Fund, take commercially
reasonable steps to minimize service interruptions. ALPS shall have no liability
with respect to the loss of data or service interruptions caused by equipment
failure provided such loss or interruption is not caused by ALPS' own willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
obligations under this Agreement.
15. DURATION AND TERMINATION OF THIS AGREEMENT. This Agreement shall become
effective as of ________, 2003, and, unless sooner terminated as provided
herein, shall continue until ______________, 2006, (the "Initial Term"). During
the Initial Term, this Agreement may be terminated, without penalty, solely by
agreement of the parties on not less than sixty days written notice or for
cause. After the Initial Term, this Agreement may be terminated without cause
and without penalty by the Fund or by ALPS, on not less than ninety days written
notice to the other party. The Fund may immediately terminate this Agreement for
cause as defined below.
Termination for "cause" shall mean:
(i) willful misfeasance, bad faith, negligence or reckless disregard
on the part of ALPS with respect to its obligations and duties hereunder;
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(ii) regulatory, administrative, or judicial proceedings against ALPS
which result in a determination that it has violated any rule, regulation,
order, or law and which in the reasonable judgment of the Fund's Board of
Directors, including a majority of the Directors who are not interested
persons (as defined in the 0000 Xxx) of any party to this Agreement,
substantially impairs the performances of ALPS' obligations and duties
hereunder;
(iii) financial difficulties on the part of ALPS which are evidenced
by the authorization or commencement of, or involvement by way of pleading,
answer, consent, or acquiescence in, a voluntary or involuntary case under
Title 11 of the United States Code, as from time to time in effect, or any
applicable law other than said Title 11, of any jurisdiction relating to
the liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors; or
(iv) any other circumstance which in the reasonable judgment of the
Directors, including a majority of the Directors who are not interested
persons (as defined in the 0000 Xxx) of any party to this Agreement,
substantially impairs on an on-going basis the performance of ALPS'
obligations and duties hereunder.
Upon termination of this Agreement, ALPS shall deliver to the Fund or as
otherwise directed by the Fund (at the expense of the Fund, unless such
termination is for "cause") all records and other documents made or accumulated
in the performance of its duties for the Fund hereunder.
16. ASSIGNMENT. This Agreement shall extend to and shall be binding upon
the parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by the Fund without the
prior written consent of ALPS, or by ALPS without the prior written consent of
the Fund.
17. GOVERNING LAW. The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of Colorado, and the 1940
Act and the rules thereunder. To the extent that the laws of the State of
Colorado conflict with the 1940 Act or such rules, the latter shall control.
18. NAMES. The obligations of the "Fund" entered into in the name or on
behalf thereof by any of the Director, representatives or agents are made not
individually, but in such capacities, and are not binding upon any of the
Directors, shareholders, or representatives of the Fund personally, but bind
only the property of the Fund, and all persons dealing with any portfolio of the
Fund must look solely to the property of the Fund belonging to such portfolio
for the enforcement of any claims against the Fund.
19. AMENDMENTS TO THIS AGREEMENT. This Agreement may only be amended by the
parties in writing.
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20. NOTICES. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by telex
or facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
To ALPS:
ALPS Mutual Funds Services, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
To the Fund:
Agile Funds, Inc.
0000 Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Fax: (000) 000-0000
With a copy to:
Xxxx Xxxxx LLP
0000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
21. COUNTERPARTS. This Agreement may be executed by the parties hereto on
any number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
22. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding among the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof.
23. ADDITIONAL PORTFOLIOS. If the Fund establishes one or more additional
series with respect to which it wishes to retain ALPS to serve as fund
accounting agent hereunder, it will notify ALPS in writing. If ALPS is willing
to render such services under this Agreement, it will so notify the Fund in
writing, whereupon such series will become a "Portfolio" as defined hereunder
and will be subject to the provisions of this Agreement to the same extent as
the Fund is named above, except to the extent that such provisions are modified
with respect to such new Portfolio in writing by the Fund and ALPS.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
AGILE FUNDS, INC.
By:
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Name: Xxxx Xxxxxxx
Title: President/CEO
ALPS MUTUAL FUNDS SERVICES, INC.
By:
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Name:
Title:
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APPENDIX A
The Agile Multi-Strategy Fund
APPENDIX B
SERVICES
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o Maintain separate accounts for each Portfolio, all as directed from time to
time by Proper Instructions.
o Compute net asset value for each Class of each Portfolio and, as
appropriate, compute yields, expense ratios, portfolio turnover rate and,
if required, portfolio average dollar-weighted maturity.
o Obtain security market quotes from independent pricing services, if
available, approved by the Fund, or if such quotes are unavailable, then
obtain such prices pursuant to the Fund's valuation policies and
procedures, and in either case calculate the market value of each
Portfolio's investments.
o Timely calculate and transmit to NASDAQ each Portfolio's (and each Class of
each Portfolio's) daily net asset value and public offering price (such
determinations to be made in accordance with the provisions of the Fund's
then-current prospectuses and statements of additional information relating
to the Portfolios, and any applicable resolutions and policies and
procedures of the Board of Directors of the Fund) and promptly communicate
such values and prices to the Fund and the Fund's transfer agent.
o Maintain and keep current all books and records of the Portfolios as
required by Section 31 of the 1940 Act, and the rules thereunder, in
connection with ALPS' duties hereunder. ALPS shall comply with all laws,
rules and regulations applicable to the performance of its obligations
hereunder. Without limiting the generality of the foregoing, ALPS will
prepare and maintain the following records upon receipt of information in
proper form from the Fund:
(i) Cash receipts journal
(ii) Cash disbursements journal
(iii) Dividend records
(iv) Purchase and sales - portfolio securities journals
(v) Subscription and redemption journals
(vi) Security ledgers
(vii) Broker ledger
(viii) General ledger
(ix) Daily expense accruals
(x) Daily income accruals
(xi) Foreign currency journals
(xii) Trial balances
(xiii) Historical tax lots for each security
o Reconcile cash and investment balances with the Custodian.
o Provide the Fund with daily Portfolio values, net asset values and other
statistical data for each Class of each Portfolio as requested from time to
time.
o Compute the net income and capital gains and losses of each Portfolio and
calculate dividend rates in accordance with relevant prospectus policies
and resolutions of the Board of Directors of the Fund.
o Assist in the preparation of certain reports (including annual and
semi-annual reports, Prospectuses and Statement of Additional Information),
audits of accounts, and other matters of like nature, as reasonably
requested from time to time by the Fund.
