XXXXXXX SECURITIES TRUST
XXXXXX SQUARE MANAGEMENT CORPORATION
AMENDED AND RESTATED ACCOUNTING SERVICES AGREEMENT Exhibit 9(c)
THIS AMENDED AND RESTATED ACCOUNTING SERVICES AGREEMENT made as of the
14th day of November, 1996, by and between Heitman Securities Trust, a
Massachusetts business trust (hereinafter called the "Trust"), having its
principal place of business in Chicago, Illinois, and Xxxxxx Square
Management Corporation, a corporation organized under the laws of the State
of Delaware (hereinafter called "RSMC"), having its principal place of
business in Wilmington, Delaware.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), as an open-end management
investment company and offers for public sale one or more distinct series
of shares of beneficial interest ("Series"), par value $.001 per share,
each corresponding to a distinct portfolio;
WHEREAS, each share of a Series represents an undivided interest in
the assets, subject to the liabilities, allocated to that Series and each
Series has a separate investment objective and policies;
WHEREAS, at the present time, the Trust has one Series, the Xxxxxxx Real
Estate Fund (the "Fund"), which consists of two classes of shares, the
Xxxxxxx/PRA Institutional Class shares and the Advisor Class shares;
WHEREAS, the Trust currently to employs RSMC to provide certain
accounting services with respect to the Fund pursuant to an Accounting
Services Agreement dated as of December 3, 1993 (the "Original Agreement");
and
WHEREAS, the Trust and RSMC desire to amend and restate the Original
Agreement in its entirety by adopting this Amended and Restated Accounting
Services Agreement which shall supersede the Original Agreement from and
after the date hereof;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained in this Agreement, the Trust and RSMC agree as follows:
1. APPOINTMENT. The Trust hereby appoints RSMC to provide certain
accounting services to the Trust for the period and upon the terms and
conditions set forth in this Agreement. RSMC accepts such appointment and
agrees to furnish the services herein set forth in return for the
compensation provided for in Section 11 of this Agreement. RSMC agrees to
comply with all relevant provisions of the Investment Company Act of 1940,
as amended (the "1940 Act"), and applicable rules and regulations
thereunder, and to remain open for business on any day on which the New
York Stock Exchange, the Philadelphia branch office of the Federal Reserve
and Wilmington Trust Company are open for business. The Trust may from time
to time issue separate series or classes or classify and reclassify shares
of such series or class. RSMC shall identify to each such series or class
property belonging to such series or class and in such reports,
confirmations and notices to the Trust called for under this Agreement and
shall identify the series or class to which such report, confirmation or
notice pertains.
2. DOCUMENTS. The Trust has furnished RSMC with copies properly
certified or authenticated of each of the following:
A. Resolutions of the Trust's Board of Trustees authorizing the
appointment of RSMC to provide certain accounting services to the Trust and
approving this Agreement;
B. Schedule B identifying and containing the signatures of
those Trust officers and other persons authorized ("Authorized Persons") to
sign "Written Instructions" on behalf of the Trust;
C. The Trust's Amended and Restated Master Trust Agreement
filed with the Secretary of the Commonwealth of Massachusetts on March 3,
1995 and all amendments thereto and restatements thereof;
D. The Trust's Bylaws and all amendments thereto and
restatements thereof (such Bylaws, as presently in effect and as they shall
from time to time be amended or restated, are herein called "Bylaws");
E. The Investment Management Agreement between Xxxxxxx/PRA
Securities Advisors, Inc. (the "Advisor") and the Trust with respect to
Xxxxxxx Securities Trust dated as of January 31, 1995;
F. The Distribution Agreement between the Trust and Xxxxxx
Square Distributors, Inc. dated as of December 3, 1993;
G. The Distribution Agreement between the Trust and ACG Capital
Corporation dated as of May 15, 1995;
H. The Amended and Restated Administration Agreement between
the Trust and RSMC of even date herewith;
I. The Amended and Restated Custodian Agreement between
Wilmington Trust Company (the "Custodian") and the Trust, of even date
herewith;
J. The Amended and Restated Transfer Agency Agreement between
the Trust and RSMC of even date herein;
K. The Trust's Notification of Registration filed pursuant to
Section 8(a) of the 1940 Act as filed with the Securities and Exchange
Commission ("SEC") on September 15, 1988;
L. The Trust's most recent Registration Statement on Form N-1A
under the Securities Act of 1933 (the "1933 Act") (File No. 33-24611) and
under the Investment Company Act (File No. 811-5659), as filed with the SEC
relating to shares of beneficial interest in the Trust, and all amendments
thereto;
M. The Trust's most recent prospectuses and statements of
additional information relating to the Fund(s); and
N. If required, a copy of either (i) a filed notice of
eligibility to claim the exclusion from the definition of "commodity pool
operator" contained in Section 2(a)(1)(A) of the Commodity Exchange Act
("CEA") that is provided in Rule 4.5 under the CEA, together with all
supplements as are required by the Commodity Futures Trading Commission
("CFTC"), or (ii) a letter which has been granted the Trust by the CFTC
which states that the Trust will not be treated as a "pool" as defined in
Section 4.10(d) of the CFTC's General Regulations, or (iii) a letter which
has been granted the Trust by the CFTC which states that CFTC will not take
any enforcement action if the Trust does not register as a "commodity pool
operator."
The Trust will furnish RSMC from time to time with copies,
properly certified or authenticated, of all additions, amendments or
supplements to the foregoing, if any.
3. INSTRUCTIONS CONSISTENT WITH MASTER TRUST AGREEMENT, ETC.
A. Unless otherwise provided in this Agreement, RSMC shall act
only upon Oral and Written Instructions. ("Oral Instructions", as used in
this Agreement, shall mean oral instructions actually received by RSMC from
an Authorized Person or from a person reasonably believed by RSMC to be an
Authorized Person. "Written Instructions", as used in this Agreement,
shall mean written instructions signed by two Authorized Persons delivered
by hand, mail, telegram, cable, telex or facsimile, and received by RSMC.
"Authorized Person", as used in this Agreement, means any officer of the
Trust and any other person, whether or not any such person is an officer or
employee of the Trust, duly authorized by the Trustees of the Trust to give
Oral and Written Instructions on behalf of the Fund(s) and certified by the
Secretary or an Assistant Secretary of the Trust, or any amendment thereto
as may be received by RSMC from time to time.) Although RSMC may know of
the provisions of the Master Trust Agreement and Bylaws of the Trust, RSMC
in its capacity under this Agreement may assume that any Oral or Written
Instructions received hereunder are not in any way inconsistent with any
provisions of such Master Trust Agreement or Bylaws or any vote, resolution
or proceeding of the shareholders, or of the Board of Trustees, or of any
committee thereof.
B. RSMC shall be entitled to rely upon any Oral Instructions
and any Written Instructions actually received by RSMC pursuant to this
Agreement. The Trust agrees to forward to RSMC Written Instructions
confirming Oral Instructions in such manner that the Written Instructions
are received by RSMC, whether by hand delivery, telex, facsimile or
otherwise, by the close of business of the same day that such Oral
Instructions are given to RSMC. The Trust agrees that the fact that such
confirming Written Instructions are not received by RSMC shall in no way
affect the validity of the transactions or enforceability of the
transactions authorized by the Trust by giving Oral Instructions. The Trust
agrees that RSMC shall incur no liability to the Trust in acting upon Oral
Instructions given to RSMC hereunder concerning such transactions provided
such instructions reasonably appear to have been received from an
Authorized Person.
4. FUND ACCOUNTING.
A. RSMC shall provide the following accounting functions on a
daily basis:
(1)Journalize each Fund's investment, capital share and
income and expense activities;
(2)Verify investment buy/sell trade tickets when received
from the Advisor(s) and transmit trades to the Trust's
Custodian for proper settlement;
(3)Maintain individual ledgers for investment securities;
(4)Maintain historical tax lots for each security;
(5)Reconcile cash and investment balances of each Fund with
the Custodian, and provide the Advisor(s) with the
beginning cash balance available for investment
purposes;
(6)Update the cash availability throughout the day as
required by the Advisor(s);
(7)Post to and prepare each Fund's Statement of Assets and
Liabilities and Statement of Operations;
(8)Calculate expenses payable pursuant to the Trust's
various contractual obligations;
(9)Control all disbursements from the Trust on behalf of
each Fund and authorize such disbursements upon Written
Instructions;
(10)Calculate capital gains and losses;
(11)Determine each Fund's net income;
(12)Obtain security market prices or if such market prices
are not readily available, then obtain such prices from
services approved by the Advisor(s), and in either case
calculate the market or fair value of each Fund's
investments;
(13)In the case of debt instruments with remaining
maturities of sixty (60) days or less, calculate the
amortized cost value of those instruments;
(14)Transmit or mail a copy of the portfolio valuations to
the Advisor(s);
(15)Compute the net asset value of each Fund;
(16)Compute each Fund's yields, total returns, expense
ratios and portfolio turnover rate; and
(17)Prepare and monitor the expense accruals and notify
Trust management of any proposed adjustments.
B. In addition, RSMC will:
(1)Prepare monthly financial statements, which will include
without limitation the Schedule of Investments, the
Statement of Assets and Liabilities, the Statement of
Operations, the Statement of Changes in Net Assets, the
Cash Statement, and the Schedule of Capital Gains and
Losses;
(2)Prepare monthly security transactions listings;
(3)Prepare monthly broker security transactions summaries;
(4)Supply various Trust and Fund statistical data as
requested on an ongoing basis;
(5)Assist in the preparation of support schedules necessary
for completion of Federal and state tax returns;
(6)Assist in the preparation and filing of the Trust's
annual and semiannual reports with the SEC on Form N-
SAR;
(7)Assist in the preparation and filing of the Trust's
annual and semiannual reports to shareholders and proxy
statements;
(8)Assist with the preparation of amendments to the Trust's
registration statements on Form N-1A and other filings
relating to the registration of shares; and
(9)Monitor each Fund's status as a regulated investment
company under Subchapter M of the Internal Revenue Code
of 1986, as amended from time to time;
(10)Determine the amount of dividends and other
distributions payable to shareholders as necessary to,
among other things, maintain the qualification as a
regulated investment company of each Fund of the Trust
under the Code.
5. RECORDKEEPING AND OTHER INFORMATION. RSMC shall create and
maintain all necessary records in accordance with all applicable laws,
rules and regulations, including, but not limited to, records required by
Section 31(a) of the 1940 Act and the rules thereunder, as the same may be
amended from time to time, pertaining to the various functions (described
above) performed by it and not otherwise created and maintained by another
party pursuant to contract with the Trust. All records shall be the
property of the Trust at all times and shall be available for inspection
and use by the Trust or the Trust's authorized representatives. Upon
reasonable request of the Trust, copies of such records shall be provided
by RSMC to the Trust or the Trust's authorized representatives at the
Trust's expense. Where applicable, such records shall be maintained by RSMC
for the periods and in the places required by Rule 31a-2 under the 1940
Act.
6. LIAISON WITH ACCOUNTANTS. RSMC shall act as liaison with the
Trust's independent public accountants and shall provide account analysis,
fiscal year summaries and other audit related schedules. RSMC shall take
all reasonable action in the performance of its obligations under this
Agreement to assure that the necessary information is made available to
such accountants for the expression of their opinion, as such may be
required by the Trust from time to time.
7. CONFIDENTIALITY. RSMC agrees on behalf of itself and its
employees to treat confidentially and as proprietary information of the
Trust all records and other information relative to the Trust and its
prior, present or potential shareholders, and not to use such records and
information for any purpose other than performance of its responsibilities
and duties hereunder, except, after prior notification to and approval in
writing by the Trust, which approval shall not be unreasonably withheld and
may not be withheld where RSMC may be exposed to civil or criminal contempt
proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by the
Trust.
8. EQUIPMENT FAILURE. In the event of equipment failures beyond
RSMC's control, RSMC shall, at no additional expense to the Trust, take
reasonable steps to minimize service interruptions but shall have no
liability with respect thereto. RSMC shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provision of emergency use of electronic data processing equipment to the
extent appropriate equipment is available.
9. RIGHT TO RECEIVE ADVICE.
A. ADVICE OF TRUST. If RSMC shall be in doubt as to any action
to be taken or omitted by it, it may request, and shall receive, from the
Trust directions or advice, including Oral or Written Instructions where
appropriate.
B. ADVICE OF COUNSEL. If RSMC shall be in doubt as to any
question of law involved in any action to be taken or omitted by RSMC, it
may request directions or advice at its own cost from counsel of its own
choosing (who may be the regularly retained counsel for the Trust or RSMC
or the in-house counsel for RSMC, at the option of RSMC).
C. CONFLICTING ADVICE. In case of conflict between directions,
advice or Oral or Written Instructions received by RSMC pursuant to
subsection A of this Section and directions or advice received by RSMC
pursuant to subsection B of this Section, RSMC shall be entitled to rely
upon and follow the directions or advice obtained in accordance with the
latter provision alone.
D. PROTECTION OF RSMC. RSMC shall be protected in any action or
inaction which it takes in reliance on any directions, advice or Oral or
Written Instructions received pursuant to subsections A or B of this
Section which RSMC, after receipt of any such directions, advice or Oral or
Written Instructions, in good faith believes to be consistent with such
directions, advice or Oral or Written Instructions, as the case may be.
However, nothing in this Section shall be construed as imposing upon RSMC
any obligation (i) to seek such direction, advice or Oral or Written
Instructions, or (ii) to act in accordance with such directions, advice or
Oral or Written Instructions when received, unless, under the terms of
another provision of this Agreement, the same is a condition to RSMC's
properly taking or omitting to take such action. Nothing in this subsection
shall excuse RSMC when an action or omission on the part of RSMC
constitutes willful misfeasance, bad faith, negligence or reckless
disregard by RSMC of its duties under this Agreement.
10. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. Except as
otherwise provided herein in Sections 4 and 5, the Trust assumes full
responsibility for ensuring that the Trust complies with all applicable
requirements of the Securities Act of 1933 (the "1933 Act"), the Securities
Exchange Act of 1934 (the "1934 Act"), the 1940 Act, the CEA and any laws,
rules and regulations of governmental authorities having jurisdiction.
11. COMPENSATION. For the performance of its obligations under this
Agreement, the Trust on behalf of each Fund shall pay RSMC in accordance
with the fee arrangements described in Schedule A attached hereto, as such
schedule may be amended from time to time.
12. INDEMNIFICATION. (a) The Trust agrees to indemnify and hold
harmless RSMC and its directors, officers, employees, agents and
representatives from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising under the
1933 Act, the 1934 Act, the 1940 Act, the CEA and any applicable state and
foreign laws, all as or to be amended from time to time) ("Applicable
Laws") and expenses, including (without limitation) reasonable attorneys'
fees and disbursements arising directly or indirectly from any action or
thing which RSMC takes or does or omits to take or do (i) at the request or
on the direction of or in reliance on the advice of the Trust or (ii) upon
Oral or Written Instructions, provided, that neither RSMC nor any of its
directors, officers, employees, agents and representatives shall be
indemnified against any liability to the Trust or to its shareholders (or
any expenses incident to such liability) arising out of RSMC's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties and obligations under this Agreement.
(b) RSMC agrees to indemnify and hold harmless the Trust from all
taxes, charges, expenses, assessments, claims, liabilities (including,
without limitation, liabilities arising under the Applicable Laws) and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) arising directly or indirectly from any action or omission
to act which RSMC or any of RSMC's directors, officers, employees, agents
and/or representatives take or fail to take that constitutes willful
misfeasance, bad faith, negligence or reckless disregard of RSMC's duties
and obligations under this Agreement.
(c) Upon the assertion of a claim for which either party may be
required to indemnify the other, the party 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.
13. RESPONSIBILITY OF RSMC. In the performance of its duties
hereunder, RSMC shall be obligated to exercise due care and diligence and
to act in good faith and to use its best efforts within reasonable limits.
RSMC shall be under no duty to take any action on behalf of the Trust
except as specifically set herein or as may be specifically agreed to by
RSMC in writing. To the extent that duties, obligations and
responsibilities assumed by RSMC are not expressly set forth in this
Agreement, RSMC shall not be liable for any act or omission which does not
constitute willful misfeasance, bad faith or negligence on the part of RSMC
or reckless disregard by RSMC of such duties, obligations and
responsibilities. Without limiting the generality of the foregoing or of
any other provision of this Agreement, RSMC, in connection with its duties
under this Agreement, shall not be under any duty or obligation to inquire
into, and shall not be liable for or in respect of: (i) the validity or
invalidity or authority or lack thereof of any Oral or Written Instruction,
notice or other instrument which conforms to the applicable requirements of
this Agreement, and which RSMC reasonably believes to be genuine; or (ii)
delays or errors or loss of data occurring by reason of circumstances
beyond RSMC's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, mechanical breakdown
(except as provided in Section 8), flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation,
communication or power supply, in which circumstances RSMC shall take
reasonable actions to minimize loss of data resulting therefrom.
14. DURATION, TERMINATION, ETC. The provisions of this Agreement may
not be changed, waived, discharged or terminated orally, but only by
written instrument that shall make specific reference to this Agreement and
that shall be signed by the party against which enforcement of such change,
waiver, discharge or termination is sought.
This Agreement shall become effective as of the close of business on
the date first above written and shall continue in force unless terminated
as herein provided. This Agreement may at any time be terminated by the
Trust on sixty (60) days' written notice given to RSMC or by RSMC on six
(6) months' written notice given to the Trust; provided, however, that the
foregoing provisions of this Agreement may be terminated immediately at any
time for cause either by the Trust or by RSMC in the event that such cause
shall have remained unremedied for sixty (60) days or more after receipt of
written specification of such cause. Any such termination shall not affect
the rights and obligations of the parties under Section 12 hereof.
Upon the termination of this Agreement, the Trust shall pay to RSMC
such compensation as may be payable for the period prior to the effective
date of such termination, including reimbursement for any out-of-pocket
expenses reasonably incurred by RSMC to such date. In the event that the
Trust designates a successor to any of RSMC's obligations hereunder, RSMC
shall, at the expense and direction of the Trust, transfer to such
successor all relevant books, records and other data established or
maintained by RSMC under the foregoing provisions.
15. NOTICES. Any notice under this Agreement shall be given in
writing addressed and delivered or mailed, postage prepaid, to the other
party to this Agreement at its principal place of business.
16. FURTHER ACTIONS. Each Party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the
purposes hereof.
17. AMENDMENTS. This Agreement or any part hereof may be changed or
waived only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
18. DELEGATION. On thirty (30) days' prior written notice to the
Trust, RSMC may assign any part or all its rights and delegate its duties
hereunder to any wholly owned direct or indirect subsidiary of Wilmington
Trust Company provided that (i) the delegate agrees with RSMC to comply
with all relevant provisions of the 1940 Act and applicable rules and
regulations thereunder; (ii) RSMC shall remain responsible for the
performance of all of its duties under this Agreement; (iii) RSMC and such
delegate shall promptly provide such information as the Trust may request;
and (iv) RSMC shall respond to such questions as the Trust may ask,
relative to the delegation, including (without limitation) the capabilities
of the delegate.
19. MISCELLANEOUS.
A. RSMC acknowledges that it has received notice of and accepts
the limitations of liability set forth in the Trust's Master Trust
Agreement. RSMC agrees that the Trust's obligations hereunder shall be
limited to the Trust, and that RSMC shall have recourse solely against the
assets of the Portfolio with respect to which the Trust's obligations
hereunder relate and shall have no recourse against the assets of any other
Portfolio or against any shareholder, Trustee, officer, employee, or agent
of the Trust.
B. This Agreement embodies the entire agreement and
understanding between the parties thereto, and supersedes all matters
hereof, provided that the parties hereto may embody in one or more separate
documents their agreement, if any, with respect to Written and/or Oral
Instructions. 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. This Agreement
shall be deemed to be a contract made in Delaware and shall be
administered, construed and enforced according to the laws (without regard,
however, to laws as to conflicts of law) of the State of Delaware. 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. This Agreement shall be binding and shall inure to
the benefits of the parties hereto and their respective successors.
IN WITNESS WHEREOF the parties have caused this instrument to be
signed on their behalf by their respective officers thereunto duly
authorized all as of the date first written above.
XXXXXXX SECURITIES TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx, President
XXXXXX SQUARE MANAGEMENT
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxx, President
SCHEDULE A
XXXXXXX SECURITIES TRUST
FEE SCHEDULE
For the services RSMC provides under the Accounting Services Agreement
attached hereto, the Trust, on behalf of the Fund, agrees to pay RSMC an
annual accounting fee payable monthly in arrears, which consists of a
$75,000 minimum fee, plus 0.02% on total Fund assets in excess of $100
million. In addition, RSMC will receive a $25,000 minimum fee for each
additional class of the Fund's shares added after the date hereof.
SCHEDULE B
XXXXXXX SECURITIES TRUST
AUTHORIZED PERSONS
The following persons have been duly authorized by the Board of
Trustees to give Oral and Written Instructions on behalf of the Fund:
Xxxxx X. Xxxx /S/ Xxxxx Xxxx
___________________________
Xxxxx Xxxxxxx /S/ Xxxxx Xxxxxxx
___________________________
Xxxxxxx X. Xxxx /S/ Xxxxxxx Xxxx
___________________________
Xxxx X. Xxxxxx /S/ Xxxx Xxxxxx
___________________________
