FORM OF
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of , 1998 by and between GOLF ASSOCIATED
FUND, a Massachusetts business trust (the "Fund"), and PFPC INC., a Delaware
corporation ("PFPC"), which is an indirect wholly owned subsidiary of PNC Bank
Corp.
W I T N E S S E T H :
WHEREAS, the Fund is registered as 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 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 "Portfolio"), 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.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Trustees to give
Oral Instructions and Written Instructions on behalf of the Fund
and listed on the Authorized Persons Appendix attached hereto and
made a part hereof or any amendment thereto as may be received by
PFPC. An Authorized Person's scope of authority may be limited by
the Fund by setting forth such limitation in the Authorized
Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(f) "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.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(i) "Shares" means the shares of beneficial interest of any series or
class of the Fund.
(j) "Written Instructions" mean written instructions signed by an
Authorized Person and received by PFPC. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to provide administration
and accounting services to the each of the Portfolios, 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 Fund has provided or, where applicable, will
provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, approving the appointment of PFPC or
its affiliates to provide services to each Portfolio and
approving this Agreement;
(b) a copy of Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreement or agreements;
(d) a copy of the distribution agreement with respect to each class
of Shares representing an interest in a Portfolio;
(e) a copy of any additional administration agreement with respect to
a Portfolio;
(f) a copy of any shareholder servicing agreement made in respect of
the Fund or a Portfolio; and
(g) copies (certified or authenticated, where applicable) of any and
all amendments or supplements to the foregoing.
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 Fund or any
Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions and
Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by 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 Fund's Board of Trustees or of the Fund's
shareholders, unless and until PFPC receives Written Instructions
to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions (except where such Oral Instructions
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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 shall in
no way invalidate the transactions or enforceability of the
transactions authorized by the 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 Fund 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 FUND. 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
Fund.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question
of law pertaining to any action it should or should not take,
PFPC may request advice at its own cost from such counsel of its
own reasonable choosing (who may be counsel for the Fund, the
Fund's investment adviser or PFPC, at the option of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice or Oral Instructions or Written Instructions
PFPC receives from the Fund and the advice PFPC receives from
counsel, PFPC may rely upon and follow the advice of counsel. In
the event PFPC so relies on the advice of counsel, PFPC remains
liable for any action or omission on the part of PFPC which
constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard by PFPC of any duties, obligations or
responsibilities set forth in this Agreement.
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(d) PROTECTION OF PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions, advice or
Oral Instructions or Written Instructions it receives from the
Fund or from counsel and which PFPC believes, in good faith, to
be consistent with those directions, advice and Oral Instructions
or Written Instructions. Nothing in this section shall be
construed so as to impose an obligation upon PFPC (i) to seek
such directions, advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions,
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.
Nothing in this subsection shall excuse PFPC when an action or
omission on the part of PFPC constitutes willful misfeasance, bad
faith, gross negligence or reckless disregard by PFPC of any
duties, obligations or responsibilities set forth in this
Agreement.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and the Portfolios
which are in the possession or under the control of PFPC shall be
the property of the Fund. Such books and records shall be
prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Fund 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 Fund, copies of any such books and
records shall be provided by PFPC to the Fund or to an Authorized
Person, at the Fund's expense.
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(b) PFPC shall keep the following records:
(i) all books and records with respect to each Portfolio's books
of account;
(ii) records of each Portfolio'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. PFPC agrees to keep confidential all records of the
Fund and information relating to the Fund and its shareholders, unless
the release of such records or information is otherwise consented to,
in writing, by the Fund. The Fund agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC may be exposed
to civil or criminal contempt proceedings or when required to divulge
such information or records to duly constituted authorities.
9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules with respect
to each Portfolio. PFPC shall take all reasonable action 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 Fund.
10. 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 Fund,
take reasonable steps to minimize service interruptions. PFPC shall
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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 PFPC's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
11. YEAR 2000 REPRESENTATION.
(a) The Fund and PFPC acknowledge that the ability of each party to
perform its obligations hereunder may depend upon the ability of
certain of such party's computer system/applications to recognize
and perform properly date-sensitive functions involving dates
prior to and after December 31, 1999, including leap year
calculations (the "Year 2000 Change"). Each party represents to
the others that (i) each is reviewing those operations within
such party's organization involved in the Services described
herein and which could be adversely affected by the Year 2000
Change and is developing or has developed a program to remediate
or replace affected applications/systems on a timely basis, and
to test such remediation or replacement on a timely basis and
(ii) that based upon the foregoing, to the best of each party's
knowledge and belief, the Year 2000 Change will not have a
material adverse affect on the ability of such party to perform
hereunder.
(b) The Fund and PFPC agree to contact any third-party vendors
involved in their respective performance under this Agreement to
determine such vendors' strategies and time-lines regarding the
Year 2000 Change and to communicate such information to the other
parties to this Agreement.
12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund, on behalf of each Portfolio, will pay
to PFPC a fee or fees as may be agreed to in writing by the Fund and
PFPC.
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13. INDEMNIFICATION.
(a) The Fund, on behalf of each Portfolio, agrees to indemnify and
hold harmless PFPC and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including, without
limitation, liabilities arising under the Securities Laws and any
state or foreign securities and blue sky laws, and amendments
thereto), and expenses, including (without limitation) attorneys'
fees and disbursements arising directly or indirectly from any
action or omission to act which PFPC takes (i) at the request or
on the direction of or in reliance on the advice of the Fund or
(ii) upon Oral Instructions or Written Instructions. Neither
PFPC, nor any of its affiliates', shall be indemnified against
any liability (or any expenses incident to such liability)
arising out of PFPC'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 by the
Fund hereunder shall be satisfied only against the relevant
Portfolio's assets and not against the assets of any other
investment portfolio of the Fund.
(b) In order that the indemnification provisions contained in this
section shall apply, it is understood that in any case in which
the Fund may be asked to indemnify or hold PFPC harmless, the
Fund shall be timely advised of material facts concerning the
situation in question, and it is further understood that PFPC
will use reasonable care to notify the Fund on a timely basis of
a claim for indemnification against the Fund. Failure by PFPC to
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furnish the information provided for in the preceding sentence
will not impair PFPC's right to indemnification hereunder unless
such failure materially impairs the Fund's ability to defend the
claim. The Fund shall have the option, which will be undertaken
at the expense of the Fund, to defend PFPC against any claim
which may be the subject of this indemnification, which option
must be exercised within a time period that will not materially
adversely affect PFPC. In the event that the Fund so elects, it
will so notify PFPC and thereupon the Fund shall take over
complete defense of the claim, and PFPC shall in such situation
initiate no further legal or other expenses for which it shall
seek indemnification under this section. Such defense shall be
conducted by counsel reasonably acceptable to PFPC. PFPC shall in
no case confess any claim or make any compromise in any case in
which the Fund will be asked to indemnify PFPC except, with the
Fund's prior written consent. The Fund will not settle or make
any compromise of any claim, demand, expense or liability without
PFPC's prior consent.
14. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the
Fund or any Portfolio except as specifically set forth herein or
as may be specifically agreed to by PFPC in writing. PFPC shall
be obligated to exercise reasonable care and diligence in the
performance of its duties hereunder and to act in good faith and
to use its best efforts, within reasonable limits, in performing
services provided for under this Agreement. PFPC shall be liable
for any taxes, charges, expenses, assessments, claims and
liabilities of the Fund 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.
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(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, provided that PFPC has acted in
accordance with the standard of care set forth above; and (ii)
PFPC shall not be liable for (A) 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; or (B) subject to Section 10,
delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, including acts of civil or
military authority, national emergencies, labor difficulties,
fire, flood, catastrophe, acts of God, insurrection, war, riots
or failure of the mails, transportation, communication or power
supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable to the Fund or to
any Portfolio for any consequential, special or indirect losses
or damages which the Fund or any Portfolio may incur or suffer by
or as a consequence of PFPC's or any affiliates' performance of
the services provided hereunder, whether or not the likelihood of
such losses or damages was known by PFPC or its affiliates.
15. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to
each Portfolio:
(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 Portfolio (the "Adviser") and transmit
trades to the Fund's custodian (the "Custodian") for proper
settlement;
(iii) Maintain individual ledgers for investment securities;
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(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund 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 Fund
of any proposed 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 Portfolio'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 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.
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16. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect to
each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund
statistical data as requested on an ongoing basis;
(iv) Prepare for execution and file the Fund's Federal and state tax
returns;
(v) Prepare and file the Fund's Semi-Annual Reports with the SEC on
Form N-SAR;
(vi) Prepare and file with the SEC the Fund's annual, semi-annual,
and quarterly shareholder reports;
(vii) Coordinate the preparation of and file the Fund's Form 24F-2;
(viii) Assist in the preparation of registration statements and other
filings relating to the registration of Shares;
(ix) Monitor each Portfolio's status as a regulated investment
company under Sub-chapter M of the Internal Revenue Code of
1986, as amended;
(x) Provide the Fund's Board of Trustees periodic reports and
information as requested;
(xi) Coordinate contractual relationships and communications between
the Fund and its contractual service providers; and
(xii) Monitor the Fund's compliance with the amounts and conditions of
each state qualification and maintain registrations in each
state.
17. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or by PFPC on (sixty) 60 days= prior written
notice to the other party.
18. DUTIES IN THE EVENT OF TERMINATION. In the event that, in connection
with termination, a successor to any of PFPC's duties or
responsibilities hereunder is designated by the Fund by written notice
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to PFPC, PFPC will promptly, upon such termination and at the expense
of the Fund, transfer to such successor all relevant books, records,
correspondence, and other data established or maintained by PFPC under
this Agreement in a form reasonably acceptable to the Fund (if such
form differs from the form in which PFPC has maintained such records,
the Fund shall pay any expenses associated with transferring the data
to such form), and will cooperate in the transfer of such duties and
responsibilities.
19. CHANGE OF CONTROL. Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a transaction
that would result in a Change of Control of the Fund's adviser or
sponsor, the Fund's ability to terminate the Agreement will be
suspended from the time of such agreement until two years after the
Change of Control, provided that notwithstanding the foregoing
provisions of this sentence the Fund may terminate this Agreement if
the following have occurred: (i) the Fund gives PFPC notice that for
the preceding thirty (30) days PFPC has been in material breach of the
Agreement (and PFPC has in fact been in such material breach) and that
PFPC has sixty (60) days from receipt of such notice to cure such
material breach; (ii) PFPC fails to cure such material breach within
such sixty (60) day period; and (iii) at the conclusion of such sixty
(60) day period the Fund gives PFPC notice that it is terminating the
Agreement.
20. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. 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
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mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered. Notices shall be addressed (a) if to
PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to
the Fund, at 0000 Xxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx, 00000,
Attn.: Xxxxxxx X. Xxxxxxxx; or (c) if to neither of the foregoing, at
such other address as shall have been provided by like notice to the
sender of any such notice or other communication by the other party.
21. 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.
22. DELEGATION; ASSIGNMENT. Except as provided below, neither this
Agreement nor any rights or obligations hereunder may be assigned by
either party without the written consent of the other party. PFPC may
assign its rights and delegate its duties hereunder to any affiliate
(as defined in the 0000 Xxx) or any majority-owned direct or indirect
subsidiary of PFPC or PNC Bank Corp., provided that (i) PFPC gives the
Fund thirty (30) days' prior written notice of such assignment or
delegation, (ii) the assignee or delegate agrees to comply with the
relevant provisions of the 1940 Act, and (iii) PFPC and such assignee
or delegate promptly provide such information as the Fund may
reasonably request, and respond to such questions as the Fund may
reasonably ask, relative to the assignment or delegation (including,
without limitation, the capabilities of the assignee or delegate.
23. 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.
24. FURTHER ACTIONS. Each party agrees to perform such further acts and
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execute such further documents as are necessary to effectuate the
purposes hereof.
25. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS. A copy of
the Declaration of Trust of the Fund is on file with the Secretary of
The Commonwealth of Massachusetts, and notice is hereby given that this
instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees or Shareholders
individually but are binding only upon the assets and property of the
Fund.
26. 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 embody in one or more
separate documents their agreement, if any, with respect to
delegated duties and Oral Instructions.
(b) 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.
(c) 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.
(d) 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.
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(e) 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.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such 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.
PFPC INC.
By:
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Title:
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GOLF ASSOCIATED FUND
By:
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Title:
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EXHIBIT A
THIS EXHIBIT A, dated as of ______________, 1998, is Exhibit A to
that certain Administration and Accounting Services Agreement dated as of _____,
1998 between PFPC Inc. and GOLF ASSOCIATED FUND.
PORTFOLIOS
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[List all Portfolios here]
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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