FUND ACCOUNTING SERVICE AGREEMENT
AGREEMENT made the 10th day of August 1999, by and between ICM Series Trust, a
Massachusetts Business Trust, having its principal office and place of business
at 0 Xxxxxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, XX 00000 (the "Fund"), and
American Data Services, Inc., a New York corporation having its principal office
and place of business at the Hauppauge Corporate Center, 000 Xxxxx Xxxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxx Xxxx 00000 ("ADS")
BACKGROUND
WHEREAS, the Fund is a diversified, open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, ADS is a corporation experienced in providing accounting services to
mutual funds and possesses facilities sufficient to provide such services; and
WHEREAS, the Fund desires to avail itself of the experience, assistance and
facilities of ADS and to have ADS perform for the Fund certain services
appropriate to the operations of the Fund, and ADS is willing to furnish such
services in accordance with the terms hereinafter set forth.
TERMS
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the Fund and ADS hereby agree as follows:
1. DUTIES OF ADS.
ADS will provide the Fund with the necessary office space,
communication facilities and personnel to perform the following services for the
Fund:
(a) Timely calculate and transmit to NASDAQ the Fund's daily net
asset value and communicate such value to the Fund and its
transfer agent. To obtain daily securities quotations for all
securities in the Fund's portfolio from independent pricing
services, and determination of unrealized
appreciation/depreciation of portfolio securities;
(b) Maintain and keep current all books and records of the Fund as
required by Rule 31a-1 under the 1940 Act, as such rule or any
successor rule may be amended from time to time ("Rule
31a-1"), that are applicable to the fulfillment of ADS's
duties hereunder, as well as any other documents necessary or
advisable for compliance with applicable regulations as may be
mutually agreed to between the Fund and ADS. Without limiting
the generality of the foregoing, ADS will prepare and maintain
the following records upon receipt of information in proper
form from the Fund or its authorized agents:
o Cash receipts journal
o Cash disbursements journal
o Dividend record
o Purchase and sales - portfolio securities journals
o Subscription and redemption journals
o Security ledgers
o Broker ledger
o General ledger
o Daily expense accruals
o Daily income accruals
o Securities and monies borrowed or loaned and
collateral therefore
o Foreign currency journals
o Trial balances
(c) Provide the Fund and its investment adviser with daily
portfolio valuation, net asset value calculation and other
standard operational reports as requested from time to time.
(d) Provide all raw data available from our fund accounting system
(PAIRS) for management's or the administrators preparation of
the following:
1. Semi-annual financial statements;
2. Semi-annual form N-SAR;
3. Annual tax returns;
4. Financial data necessary to update form N-1a;
5. Annual proxy statement.
(e) Provide facilities to accommodate annual audit and any audits
or examinations conducted by the Securities and Exchange
Commission or any other governmental or quasi-governmental
entities with jurisdiction.
(f) Verify and reconcile with the Fund's custodian bank all daily
trade activity.
ADS shall for all purposes herein be deemed to be an independent contractor and
shall, unless otherwise expressly provided or authorized, have no authority to
act for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
2. COMPENSATION OF ADS.
In consideration of the services to be performed by ADS as set forth
herein for each portfolio listed in Schedule B, ADS shall be entitled to receive
compensation and reimbursement for all reasonable out-of-pocket expenses. The
Fund agrees to pay ADS the fees and reimbursement of out-of-pocket expenses as
set forth in the fee schedule attached hereto as Schedule A.
3. LIMITATION OF LIABILITY OF ADS.
ADS shall not be responsible for, and the Fund shall indemnify and hold
ADS harmless from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liability arising out of or attributable
to:
(a) All actions of ADS whether taken directly or through agents or
subcontractors required to be taken pursuant to this Agreement,
provided that such actions are taken in good faith and without
negligence or willful misconduct.
(b) The reliance on or use by ADS whether directly or through agents
or subcontractors of information, records and documents which
(i) are received by ADS or its agents or subcontractors and
furnished to it by or on behalf of the Fund, and (ii) have been
prepared and/or maintained by the Fund or any other person or
firm on behalf of the Fund provided, in each case, that ADS in
good faith believes such information to be accurate (or such
records and documents to be genuine) and provided further that
such information, records or documents are not received from or
prepared by an employee, officer or agent of ADS or of any
company affiliated with ADS.
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(c) The reliance on, or the carrying out by ADS or its agents or
subcontractors of any instructions or requests of the Fund or
its agents, other than ADS or its affiliates.
ADS shall indemnify and hold the Fund harmless from and against any and
all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to any action or failure or omission to
act by ADS as a result of ADS's lack of good faith, negligence or willful
misconduct.
At any time ADS may apply to any officer of the Fund for instructions,
and may consult with legal counsel with respect to any matter arising in
connection with the services to be performed by ADS under this Agreement, and
ADS shall not be liable and shall be indemnified by the Fund for any action
taken or omitted by it in reliance upon such instructions or upon the opinion of
such counsel. ADS, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on behalf of
the Fund, reasonably believed to be genuine and to have been signed by the
proper person or persons, or upon any instruction, information, data, records or
documents provided ADS or its agents or subcontractors by machine readable
input, telex, CRT data entry or other similar means authorized by the Fund, and
shall not be held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Fund. ADS, its agents and
subcontractors shall also be protected and indemnified in recognizing stock
certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Fund, and the proper
countersignature of any former transfer agent or registrar, or of a co-transfer
agent or co-registrar.
In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes.
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any act or
failure to act hereunder.
In order that the indemnification provisions contained in this Article
5 shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party of seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
4. ACTIVITIES OF ADS.
The services of ADS under this Agreement are not to be deemed
exclusive, and ADS shall be free to render similar services to others so long as
its services hereunder are not impaired thereby.
5. ACCOUNTS AND RECORDS.
The accounts and records maintained by ADS shall be the property of the
Fund, and shall be surrendered to the Fund, at the expense of the Fund, promptly
upon request by the Fund, provided that all service fees and expenses charged by
ADS in the performance of its duties hereunder have been fully paid (the final
amount to be mutually agreed upon by both parties to this agreement), in the
form in which such accounts and records have been maintained or preserved. ADS
agrees to maintain a back-up set of accounts and records of the Fund (which
back-up set shall be updated on at least a weekly basis) at a location other
than that where the original accounts and records are stored. ADS shall assist
the Fund's independent auditors, or, upon approval of the Fund, any regulatory
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body, in any requested review of the Fund's accounts and records. ADS shall
preserve the accounts and records as they are required to be maintained and
preserved by Rule 31a-1.
6. CONFIDENTIALITY.
ADS 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, as confidential and not to be disclosed to any
person except as may be authorized by the Fund.
7. DURATION AND TERMINATION OF THIS AGREEMENT.
This Agreement shall become effective on the date first above written.
This Agreement shall remain in effect for a period of three (3) years
from the date of its effectiveness (the "Initial Term") and shall continue in
effect for successive twelve-month periods; provided that such continuance is
specifically approved at least annually by the Board and by a majority of the
Trustees who are not parties to this Agreement or interested persons of any such
party.
After the Initial Term, this Agreement may be terminated at anytime (i)
by the Board on 90 days' written notice to ADS or (ii) by ADS on 90 days'
written notice to the Fund. The obligations of Sections 2 and 3 shall survive
any termination of this Agreement
Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Fund. Additionally, ADS reserves the right to charge for any other
reasonable costs expenses associated with such termination.
8. 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 ADS, or by ADS without the prior written consent of the Fund.
9. NEW YORK LAWS TO APPLY.
The provisions of this Agreement shall be construed and interpreted in
accordance with the laws of the State of New York as at the time in effect and
the applicable provisions of the 1940 Act. To the extent that the applicable law
of the State of New York, or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control.
10. AMENDMENTS TO THIS AGREEMENT.
This Agreement may be amended by the parties hereto only if such
amendment is in writing and signed by both parties.
11. MERGER OF AGREEMENT.
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
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12. MASSACHUSETTS BUSINESS TRUST.
The parties understand and agree that the Fund is a Massachusetts
business trust and, as such, the obligations of the Fund under this agreement
shall not be binding upon any of the Trustees, or shareholders of the Fund, but
only on the assets and property of the Fund, as provided in the Declaration of
Trust.
13. 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 the Fund: To the Administrator:
Xx. Xxxx Xxxx Xxxxxxx Xxxxx
Chief Operating Officer President
Ironwood Capital Management LLC American Data Services, Inc.
0 Xxxxxxxxxxxxx Xxxxx, Xxxxx 0000 000 Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000 Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ICM/ISABELLE SMALL CAP VALUE FUND AMERICAN DATA SERVICES, INC.
By: /s/ By: /s/
----------------------------- ---------------------------------
Xxxxxx X. Xxxxxxxx, President Xxxxxxx Xxxxx, President
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SCHEDULE A
(a) FUND ACCOUNTING SERVICE FEE:
For the services rendered by ADS in its capacity as fund accounting
agent, as specified in Paragraph 1. DUTIES OF ADS, the Fund shall pay ADS,
within twenty (20) days after receipt of an invoice from ADS at the beginning of
each month, a fee equal to:
Calculated Fee Will Be Based Upon Prior Month Average Net Assets:
(No prorating partial months)
MONTHLY FEE PER PORTFOLIO
Portfolio Type
Net Assets (in millions) Foreign* Domestic Money Mkt
------------------------ -------- -------- ---------
Under $1 ....................... $2,375 $1,200 $1,050
From $1 to $ 5 ................ 2,775 1,500 1,300
From $5 to $10 ................ 3,125 1,700 1,500
From $10 to $20................ 3,525 1,850 1,650
Over $20........................ 3,925 2,000 1,800
$25 million to $100 million:
The fee for assets over $20 million,
plus 1/12 of ............. 3.50BP** 2.00BP 2.00BP
Domestic portfolios excess assets over $100 million 1/12 of 1.00 BP. Fee capped
at $50,000 per year.
* Non US Dollar denominated securities
** Basis Points
MULTI-CLASS PROCESSING CHARGE
$300 per month will be charged for each additional class of stock per portfolio.
FEE INCREASES
On each anniversary date of this Agreement, the minimum service fees
enumerated above will be increased by the change in the Consumer Price Index for
the Northeast Region (CPI) for the twelve month period ending with the month
preceding such annual anniversary date.
(b) EXPENSES:
The Fund shall reimburse ADS for any out-of-pocket expenses , exclusive
of salaries, advanced by ADS in connection with but not limited to the printing
or filing of documents for the Fund, travel, telephone, quotation services
(currently (1) $0.12 per equity valuation, $0.60 per bond valuation, and 1.50
for each foreign quotation or manual quote insertion), facsimile transmissions,
stationery and supplies, record storage, NASDAQ insertion fee ($22 (1) per
month), prorata portion of annual SAS 70 review, postage, telex, and courier
charges, incurred in connection with the performance of its duties hereunder.
ADS shall provide the Fund with a monthly invoice of such expenses and the Fund
shall reimburse ADS within fifteen (15) days after receipt thereof.
(1) Rate subject to change on 30 days notice.
(c) SPECIAL REPORTS:
All reports and /or analyses requested by the Fund, its auditors, legal
counsel, portfolio manager, or any regulatory agency having jurisdiction over
the Fund, that are not in the normal course of fund accounting activities as
specified in Section 1 of this Agreement shall be subject to an additional
charge, agreed upon in advance, based upon the following rates:
Labor:
Senior staff - $150.00/hr. Junior staff - $ 75.00/hr.
Computer time - $45.00/hr.
(d) CONVERSION CHARGE:
NOTE: FOR EXISTING FUNDS ONLY (new funds please ignore):
There will be a charge to convert the Fund's portfolio accounting
records on to the ADS fund accounting system (PAIRS). In addition, ADS will be
reimbursed for all out-of-pocket expenses, enumerated in paragraph (b) above,
incurred during the conversion process.
The conversion charge is estimated to be $1,000. However, if the
quality of the records received, and the level of cooperation from the previous
service provider requires that ADS spend additional time to complete the
conversion, the Fund will be notified and all missing information that can be
provided by the Fund will be determined. In the absence of a cost effective
solution by the Fund and ADS, any incremental charges required by ADS to
complete the conversion will be agreed upon in advance by the Fund and ADS.
SCHEDULE B:
PORTFOLIOS TO BE SERVICED UNDER THIS AGREEMENT:
ICM/ISABELLE SMALL CAP VALUE FUND
