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EXHIBIT 8(a)
ACCOUNTING SERVICES AGREEMENT
TERMS AND CONDITIONS
This Agreement is made as of April 8, 1991 by and between THE XXXXXXX
XXXXXX FAMILY OF FUNDS (the "Fund"), a Massachusetts business trust, and
PROVIDENT FINANCIAL PROCESSING CORPORATION ("PFPC"), a Delaware corporation
which is an indirect wholly-owned subsidiary of PNC Financial Corp.
The Fund is registered as a open-end, diversified investment company
under the Investment Company Act of 1940 (the "1940 Act"), as amended. The Fund
wishes to retain PFPC to provide accounting services to the Fund's investment
portfolios as listed on Schedule B attached ("Portfolio(s)") , and PFPC wishes
to furnish such services.
In consideration of the promises and mutual covenants herein contained,
the parties agree as follows:
1. Definitions.
(a) "Authorized Person." The term "Authorized Person" shall
mean any officer of the Fund and any other person, who is duly authorized by the
Fund's Governing Board, to give Oral and Written Instructions on behalf of the
Fund. Such persons are listed in the Certificate attached hereto as the
Authorized Persons Appendix to each Services Attachment to this, Agreement. If
Provident provides more than one service hereunder, the Fund's designation of
Authorized Persons may vary by service.
(b) "Book-Entry System." The term "Book-Entry System" means
Federal Reserve Treasury book-entry system for United States and federal agency
securities, its
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successor or successors, and its nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934 Act.
(c) "CFTC." The term "CFTC" shall mean the Commodities Futures
Trading Commission.
(d) "Governing Board." The Term "Governing Board" shall mean
the Fund's Board of Directors if the Fund is a corporation or the Fund's Board
of Trustees if the Fund is a trust, or, where duly authorized, a competent
committee thereof.
(e) "Oral Instructions." The term "Oral Instructions" shall
mean oral instructions received by PFPC from an Authorized Person or from a
person reasonably believed by PFPC to be an Authorized Person.
(f) "Provident." The term "Provident" shall mean Provident
National Bank or a subsidiary or affiliate of Provident National Bank.
(g) "SEC." The term "SEC" shall mean the Securities and
Exchange Commission.
(h) "Securities and Commodities Laws." The terms the "1933
Act" shall mean the Securities Act of 1933, as amended, the "1934 Act" shall
mean the Securities Exchange Act of 1934, as amended, the "1940 Act" shall mean
the Investment Company Xxx 0000, as amended, and the "CEA" shall mean the
Commodities Exchange Act, as amended.
(i) "Services." The term "Services" shall mean the service
provided to the Portfolios by PFPC.
(j) "Shares." The terms "Shares" shall mean the shares of
stock of any series or class of the Fund, or, where appropriate, units of
beneficial interest in a trust where the Fund is organized as a Trust.
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(k) "Property." The term Property shall mean:
(i) any and all securities and other investment
items which the Fund may from time to time
deposit, or cause to be deposited, with
Provident or which Provident may from time
to time hold for the Fund;
(ii) all income in respect of any of such
securities or other investment items;
(iii) all proceeds of the sale of any of such
securities or investment items; and
(iv) all proceeds of the sale of securities
issued by the Fund, which are received by
Provident from time to time, from or on
behalf of the Fund.
(l) "Written Instructions." The term "Written
Instructions" shall mean written instructions signed
by two Authorized Persons 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 accounting services
to the Portfolios in accordance with the terms set forth in this
Agreement. PFPC accepts such appointment and agrees to furnish such
services.
The Fund may from time to time issue separate series or
classes or classify and reclassify shares of such series or class. PFPC
shall identify to each such series or class property belonging to such
series or class and in such reports, confirmations and notices to the
Fund called for under this Agreement shall identify the series or class
to which such report, confirmation or notice pertains.
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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 Governing Board, approving the appointment of Provident
or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of the Fund's advisory agreement or agreements;
(d) a copy of the Fund's distribution agreement or agreements;
(e) copies of any shareholder servicing agreements made in respect
of the Fund; and
(f) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. Compliance with Government rules and Regulations.
PFPC undertakes to comply with all applicable requirements of
the 1933 Act, the 1934 Act, the 1940 Act, and the CEA, and any laws, rules and
regulations of governmental authorities having Jurisdiction with respect to all
duties to be performed by PFPC hereunder. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the Fund.
5. Instructions.
Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral and Written Instructions.
PFPC shall be entitled to rely upon any Oral and Written
instructions it receives from an Authorized Person (or from a person reasonably
believed by PFPC to be an Authorized
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Person) pursuant to this Agreement. In the exercise of reasonable judgment, PFPC
may assume that any Oral 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 Governing Board
or of the Fund's shareholders.
The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions 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. The Fund further agrees that
PFPC shall incur no liability to the Fund solely by reason of acting upon Oral
or Written instructions provided such instructions reasonably appear to have
been received from an Authorized Person.
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 or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
questions of law pertaining to any action it should or should not take, PFPC may
request advice at its own cost form such counsel of its own choosing (who may be
counsel for the Fund, the Fund's advisor or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral or Written Instructions Provident receives from the
Fund, and the advice it receives from counsel, PFPC shall be entitled in good
faith, to rely upon and follow the advice of counsel.
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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 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 or
Written Instructions.
Nothing in this paragraph shall be construed so as to impose an
obligation upon PFPC (i) to seek such directions, advice or Oral or Written
Instructions, or (ii) to act in accordance with such directions, advice or Oral
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.
7. Records.
The books and records pertaining to the Fund, which are in the
possession 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, or the Fund's
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 of the Fund, at the Fund's expense.
PFPC shall keep the following records:
(a) all books and records with respect to the Fund's
books of account;
(b) records of the Fund's securities transaction;
(c) all other books and records as PFPC is required to
maintain pursuant to Rule 3la-1 of the 1940 Act and
as specifically set forth in Appendix A hereto.
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8. Confidentiality,
PFPC agrees to keep confidential all records of the Fund and
information relative to the Fund and its shareholders (past, present and
potential), 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. The Fund further agrees that, should PFPC be
required to provide such information or records to duly constituted authorities
(who may institute civil or criminal contempt proceedings for failure to comply)
, PFPC shall not be required to seek the Fund's prior written consent before
disclosing such information, but shall instead notify an officer of the Fund and
obtain the officer's oral consent, which consent shall be timely and shall not
be unreasonably withheld.
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. PFPC 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 Fund from time to time.
10. Disaster Recovery.
PFPC 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. In the event of equipment failures,
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PFPC shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions but shall have no liability with respect thereto.
11. Compensation.
The fees for services rendered by PFPC during the term of this
Agreement shall be paid by the Fund to PFPC as may be agreed to in writing by
the Fund and PFPC from time to time.
12. Indemnification.
The Fund agrees to indemnify and hold harmless PFPC and its
nominees 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 state and foreign securities and blue sky
laws, and amendments thereto), and expenses, including (without limitation)
reasonable attorneys' fees and disbursements, arising directly or indirectly
from any action which PFPC takes or does not take (i) at the request or on the
direction of or in reliance on the advice of the Fund or (ii) upon oral or
Written Instructions. Neither PFPC nor any of its nominees, shall be indemnified
against any liability to the Fund or to its shareholders (or any expenses
incident to such liability) arising out of PFPC's own willful misfeasance, gross
negligence or reckless disregard of its duties and obligations under this
Agreement.
13. Responsibility of PFPC.
PFPC shall be under no duty to take any action on behalf of
the Fund 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, to act in good
faith and to use its best efforts, within reasonable limits, in performing
services
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provided for under this Agreement. PFPC shall be responsible for damages arising
out of its failure to perform its duties under this Agreement arising out of
PFPC's gross negligence. Notwithstanding the foregoing, PFPC shall not be
responsible for losses beyond its reasonable control, provided that PFPC has
acted in accordance with the standard of care set forth above; and provided
further that PFPC shall only be responsible for that portion of losses or
damages suffered by the Fund that are attributable to the gross negligence of
PFPC.
Without limiting the generality of the foregoing or of any
other provision of this Agreement, PFPC, in connection with its duties under
this Agreement, shall not be liable for (a) 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 PFPC reasonably believes to be genuine; or (b) delays or errors or loss of
data occurring by reason of circumstances beyond PFPC's reasonable control,
including acts of civil or military authority, national emergencies, labor
difficulties, fire, flood or catastrophe, acts of God, insurrection, war, riots
or failure of the mails, transportation, communication or power supply.
14. Description of Accounting Services.
(a) Services on a Continuing Basis. PFPC will perform the
following accounting functions if required:
(i) Journalize each Portfolio's investment,
capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets
when received from the Fund's investment
advisor and transmit trades to the Fund's
custodian for proper settlement;
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(iii) Maintain individual ledgers for investment
securities;
(iv) Maintain historical tax lots for each
security;
(v) Reconcile cash and investment balances of
the Fund with the custodian, and provide the
Fund's investment advisor with the beginning
cash balance available for investment
purposes;
(vi) Update the cash availability throughout the
day as required by the Fund's advisor;
(vii) Post to and prepare the Fund's 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 Fund
management of any proposed adjustments;
(x) Control all disbursements from the Fund and
authorize such disbursements upon Written
Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine each Portfolio's net income;
(xiii) Obtain security market quotes from
independent pricing services approved by the
Advisor, or if such quotes are unavailable,
then obtain such prices from the Advisor,
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 Advisor;
(xv) Compute the net asset value of each class or
series of shares in a Portfolio;
(xvi) As appropriate, Compute each Portfolio's
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:
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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.
(b) PFPC will provide the Funds' Administrator with the following
services:
(i) Assist with preparation of:
Federal and State Tax Returns
Excise Tax Returns
Annual and Semi-Annual Shareholder Reports
Rules 24(e)-2 and 24(f)-2 Notices;
(ii) Assist in the Blue Sky and Federal registration and
compliance process;
(iii) Assist in the review of registration statements; and
(iv) Assist in monitoring compliance with Sub-Chapter M of
the Internal Revenue Code.
15. Duration and Termination.
This Agreement shall continue, with respect to each Portfolio,
unless sooner terminated by the Fund or by PFPC for "cause" (as defined below)
on sixty (60) days prior written notice to the other party, for a period of 4
years. For purposes of this Agreement "cause" shall mean any circumstances which
materially impair the ability of either party to this Agreement to perform all
of its duties and obligations hereunder.
16. 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
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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 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 PFPC's address, 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to the Fund, at the address
of the Fund; or (c) if to neither of the foregoing, at such other address as
shall have been notified to the sender of any such Notice or other
communication.
17. 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.
18. Delegation.
PFPC may, with the prior written consent of the Fund,
which such consent may not be unreasonably withheld, assign its rights and
delegate its duties hereunder to any wholly-owned direct or indirect
subsidiary of Provident National Bank or PNC Financial Corp, provided that
(i) PFPC gives the Fund a minimum of thirty (30) days in which to decide and
consent by written notice; (ii) the delegate agrees with PFPC to comply with
all relevant provisions of this Agreement and the 1940 Act; and (iii) PFPC
and such delegate promptly provide such information as the Fund may request,
and respond to such questions as the Fund may ask, relative to the
delegation, including (without limitation) the capabilities of the delegate.
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19. 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.
20. Further Actions.
Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
21. Miscellaneous.
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 and/or Oral Instructions.
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 the Fund by the undersigned officer of the Fund in his/her capacity as an
officer of the Fund. The obligations of this Agreement shall only be binding
upon the assets and property of the Fund and shall not be binding upon any
Trustee, officer or shareholder of the Fund individually.
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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
California and governed by California law. 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 benefit of the parties hereto and their
respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first above
written.
PROVIDENT FINANCIAL PROCESSING CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
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THE XXXXXXX XXXXXX FAMILY OF FUNDS
By: /s/ Xxx Xxx
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APPENDIX A
[List Books and Records to be
Maintained by PFPC]
