EXHIBIT 8(a)(ii)
FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this 1st day of December, 1996, between Select
Advisors Portfolios, a New York master trust fund (the "Trust") and Investors
Bank & Trust Company ("IBT").
The Trust, an open-end management investment company, on behalf of the
portfolios listed on APPENDIX A hereto, desires to retain IBT to perform
certain Trust accounting services for the Trust, and IBT has indicated its
willingness to so act, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS. Whenever used herein, the terms listed below will have
the following meaning:
1.1 AUTHORIZED PERSON. Authorized Person will mean any of the
persons duly authorized to give Proper Instructions or otherwise act on
behalf of the Trust by appropriate resolution of its Board, and set forth in
a certificate as required by Section 1.4 hereof.
1.2 BOARD. Board will mean the Board of Trustees of the Trust, as
the case may be.
1.3 OFFICERS' CERTIFICATE. Officers' Certificate will mean, unless
otherwise indicated, any request, direction, instruction, or certification in
writing signed by any two Authorized Persons of the Trust.
1.4 PROPER INSTRUCTIONS. Proper Instructions shall mean
instructions (which may be continuing instructions) regarding matters signed
or initialed by an Authorized Person. Oral instructions will be considered
Proper Instructions if IBT reasonably believes them to have been given by an
Authorized Person. The Trust shall cause all oral instructions to be promptly
confirmed in writing. IBT shall act upon and comply with any subsequent
Proper Instruction which modifies a prior instruction and the sole obligation
of IBT with respect to any follow-up or confirmatory instruction shall be to
make reasonable efforts to detect any discrepancy between the original
instruction and such confirmation and to report such discrepancy to the
Trust. The Trust shall be responsible, at the Trust's expense, for taking any
action, including any reprocessing, necessary to correct any such discrepancy
or error, and to the extent such action requires IBT to act, the Trust shall
give IBT specific Proper Instructions as to the action required. Upon receipt
by IBT of an Officers' Certificate as to the authorization by the Board
accompanied by a detailed description of procedures approved by the Trust,
Proper Instructions may include communication effected directly between
electro-mechanical or electronic devices provided that the Board and IBT
agree in writing that such procedures afford adequate safeguards for the
Trust's assets.
2. CERTIFICATION AS TO AUTHORIZED PERSONS. The Secretary or Assistant
Secretary of the Trust will at all times maintain on file with IBT his or her
certification to IBT, in such form as may be acceptable to IBT, of (i) the
names and signatures of the Authorized Persons and (ii) the names of the
members of the Board, it being understood that upon the occurrence of any
change in the information set forth in the most recent certification on file
(including without limitation any person named in the most recent
certification who is no longer an Authorized Person as designated therein),
the Secretary or Assistant Secretary of the Trust will sign a new or amended
certification setting forth the change and the new, additional or omitted
names or signatures. IBT will be entitled to rely and act upon any Officers'
Certificate given to it by the Trust which has been signed by Authorized
Persons named in the most recent certification received by IBT.
3. TRUST EVALUATION AND YIELD CALCULATION
3.1 TRUST EVALUATION. IBT shall compute and, unless otherwise
directed by the Board, determine as of the close of regular trading on the
New York Stock Exchange on each day on which said Exchange is open for
unrestricted trading and as of such other days, or hours, if any, as may be
authorized by the Board, the value of beneficial interests of the Trust and
their allocation between or among portfolios that invest in the Trust, such
determination to be made in accordance with the provisions of the Declaration
of Trust and By-laws of the Trust, as they may from time to time be amended,
and any applicable resolutions of the Board at the time in force and
applicable; and promptly to notify the Trust, the proper exchange and the
NASD or such other persons as the Trust may request of the results of such
computation and determination. In computing the value of beneficial interests
hereunder, IBT may rely in good faith upon information furnished to it by any
Authorized Person in respect of (i) the manner of accrual of the liabilities
of the Trust and in respect of liabilities of the Trust not appearing on its
books of account kept by IBT, (ii) reserves, if any, authorized by the Board
or that no such reserves have been authorized, (iii) the source of the
quotations to be used in computing values hereunder, (iv) the value to be
assigned to any security for which no price quotations are available, and (v)
the method of computation and allocation of beneficial interests in the
Trust, and IBT shall not be responsible for any loss occasioned by such
reliance or for any good faith reliance on any quotations received from a
source pursuant to (iii) above.
3.2. YIELD CALCULATION. IBT will compute the performance results of
the Trust (the "Yield Calculation") in accordance with the provisions of
Release No. 33-6753 and Release No. IC-16245 (February 2, 1988) (the
"Releases") promulgated by the Securities and Exchange Commission, and any
subsequent amendments to, published interpretations of or general conventions
accepted by the staff of the Securities and Exchange Commission with respect
to such releases or the subject matter thereof ("Subsequent Staff
Positions"), subject to the terms set forth below:
(a) IBT shall compute the Yield Calculation for the Trust for the
stated periods of time as shall be mutually agreed upon, and communicate in a
timely manner the result of such computation to the Trust.
(b) In performing the Yield Calculation, IBT will derive the items
of data necessary for the computation from the records it generates and
maintains for the Trust pursuant Section 11 hereof. IBT shall have no
responsibility to review, confirm, or otherwise assume any duty or liability
with respect to the accuracy or correctness of any such data supplied to it
by the Trust, any of the Trust's designated agents or any of the Trust's
designated third party providers.
(c) At the request of IBT, the Trust shall provide, and IBT shall
be entitled to rely on, written standards and guidelines to be followed by
IBT in interpreting and applying the computation methods set forth in the
Releases or any Subsequent Staff Positions as they specifically apply to the
Trust. In the event that the computation methods in the Releases or the
Subsequent Staff Positions or the application to the Trust of a standard or
guideline is not free from doubt or in the event there is any question of
interpretation as to the characterization of a particular security or any
aspect of a security or a payment with respect thereto (e.g., original issue
discount, participating debt security, income or return of capital, etc.) or
otherwise or as to any other element of the computation which is pertinent to
the Trust, the Trust or its designated agent shall have the full
responsibility for making the determination of how the security or payment is
to be treated for purposes of the computation and how the computation is to
be made and shall inform IBT thereof on a timely basis. IBT shall have no
responsibility to make independent determinations with respect to any item
which is covered by this Section, and shall not be
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responsible for its computations made in accordance with such determinations
so long as such computations are mathematically correct.
(d) The Trust shall keep IBT informed of all publicly available
information relating specifically to the Trust (as opposed to investment
companies generally) and of any non-public advice, or non-public information
obtained by the Trust from its independent auditors or by its personnel or
the personnel of its investment adviser related to the computations to be
undertaken by IBT pursuant to this Agreement and IBT shall not be deemed to
have knowledge of such information (except as contained in the Releases and
the Subsequent Staff Positions or as publicly available regarding investment
companies generally) unless it has been furnished to IBT in writing.
4. FEES. For the services rendered pursuant to this Agreement, the
Trust agrees to pay IBT the fees set forth on APPENDIX B hereto.
5. ADDITIONAL SERVICES. IBT shall perform the additional services for
the Trust as are set forth on APPENDIX C hereto. APPENDIX C may be amended
from time to time upon agreement of the parties to include further additional
services to be provided by IBT to the Trust, at which time the fees set forth
in APPENDIX B shall be appropriately increased.
6. LIMITATION OF LIABILITY.
6.1 IBT, its directors, officers, employees and agents shall not be
liable for any error of judgment or mistake of law or for any loss suffered
by the Trust in connection with the performance of its obligations and duties
under this Agreement, except in respect of an error, mistake or loss
resulting from willful misfeasance, bad faith or negligence in the
performance of such obligations and duties, or by reason of its disregard
thereof or a material breach of the provisions hereof.
6.2 The Trust will indemnify IBT, its directors, officers, employees
and agents against and hold it and them harmless from any and all losses,
claims, damages, liabilities or expenses (including legal fees and expenses)
resulting from any claim, demand, action or suit (i) arising as a result of
any act or omission by IBT or any of its officers, directors, employees or
agents in good faith reliance upon the terms of this Agreement, any Officer's
Certificate or Proper Instructions; (ii) arising as a result of information
supplied by any Authorized Person and relied on in good faith by IBT in
connection with the calculation of (A) the net asset value and public
offering price of the shares of capital stock of the Trust or (B) the Yield
Calculation; or (iii) not resulting from the willful misfeasance, bad faith
or negligence of IBT in the performance of such obligations and duties or by
reason of its disregard thereof or a material breach of the provisions
hereof.
6.3 IBT may apply to the Trust at any time for instructions and may
consult counsel for the Trust (except as to matters where the interests of
the Trust and IBT, in the opinion of such counsel, differ), or its own
counsel, knowledgeable in the field, and with accountants and other experts
with respect to any matter arising in connection with its duties hereunder,
and IBT shall not be liable or accountable for any action taken or omitted by
it in good faith in accordance with such instruction, or with the opinion of
such counsel, accountants, or other experts. IBT shall not be liable for any
act or omission taken or not taken in reliance upon any document, certificate
or instrument which it reasonably believes to be genuine and to be signed or
presented by any person or persons duly authorized by the Trust (as set forth
in a certificate duly executed by an officer of the Trust). IBT shall not be
held to have notice of any change of authority of any officers, employees, or
agents of the Trust until receipt of written notice thereof has been received
by IBT from the Trust.
6.4 In the event IBT is unable to perform, or is delayed in
performing, its obligations under the terms of this Agreement because of acts
of God, strikes, legal constraint, government actions, war,
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emergency conditions, interruption of electrical power or other utilities,
equipment or transmission failure or damage reasonably beyond its control or
other causes reasonably beyond its control, IBT shall not be liable to the
Trust for any damages resulting from such failure to perform, delay in
performance, or otherwise that is attributable to such causes.
6.5 IBT acknowledges that the portfolios comprising the Trust are
organized under a two-tier financial services structure, known as the Hub &
Spoke-Registered Trademark-(1) structure, under and pursuant to a certain
Hub & Spoke License and Service Agreement dated December 14, 1993 (the
"License Agreement"), by and between the Trust's adviser, Touchstone Advisors,
Inc., and Signature Financial Group, Inc. ("Signature"). As a material
inducement to the Trust to enter into this Agreement, IBT hereby warrants and
represents that IBT is a duly licensed and authorized third party Hub & Spoke
processing agent of Signature, and is duly licensed and authorized by
Signature to provide Hub & Spoke processing and administration services to,
for and on behalf of the Trust and its portfolios in accordance with the
terms of this Agreement; and further, that no consent, which has not already
been obtained in writing by IBT, is required by Touchstone Securities, Inc.,
or by either party to this Agreement from Signature in order for IBT to
provide Hub & Spoke processing and administration services, for and on behalf
of the Trust and its portfolios.
6.6 IBT will indemnify the Trust, its trustees, officers, employees
and agents against and hold them harmless from any and all losses, claims,
damages, liabilities or expenses (including legal fees and related expenses)
resulting from any claim, demand, action or suit (i) arising out of IBT's
failure to obtain and maintain in effect all licenses rights and permissions
(all without cost to the Trust for so long as the Trust remains a party to
the License Agreement and the License Agreement remains in full force and
effect) required to enable it to use, to the full extent necessary for the
performance of its duties and obligations under this Agreement, all
intellectual property belonging to Signature Financial Services, Inc. and its
affiliates that relates to the Hub & Spoke structure and related Trust
accounting and administration and the software and processes associated
therewith and (ii) resulting from the willful misfeasance, bad faith or
negligence of IBT in the performance of its duties and obligations under this
Agreement or from its disregard thereof.
6.7 In no event shall IBT be liable for special, incidental or
consequential damages, even if advised of the possibility of such damages.
7. TERMINATION.
7.1 The term of this Agreement shall be eighteen months commencing
upon the date hereof (the "Initial Term"), unless earlier terminated as
provided herein. After the expiration of the Initial Term, the term of this
Agreement shall automatically renew for successive one-year terms (each a
"Renewal Term") unless notice of non-renewal is delivered by the non-renewing
party to the other party no later than sixty days prior to the expiration of
the Initial Term or any Renewal Term, as the case may be.
(a) Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term in the event the other party violates any
material provision of this Agreement, provided that the non-violating party
gives written notice of such violation to the violating party and the
violating party does not cure such violation within 60 days of receipt of
such notice.
(b) Either party may terminate this Agreement during any Renewal
Term upon sixty days written notice to the other party. Any termination
pursuant to this paragraph 7.1(b) shall be effective upon expiration of such
sixty days, provided, however, that the effective date of such termination
may be postponed, at the request of the Trust, to a date not more than ninety
days after
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(1)Hub & Spoke is a registered service ▇▇▇▇ of Signature Financial Group, Inc.
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delivery of the written notice in order to give the Trust an opportunity to
make suitable arrangements for a successor Trust accountant.
(c) If the Trust determines at any time to cease using the Hub &
Spoke structure in the conduct of its business, whether it changes to a
master-feeder, multiple class or other structure, the Trust may terminate
this Agreement if, after the Trust gives IBT at least 30 days prior written
notice of such change, the parties, after making diligent and good faith
efforts, are unable to agree to amendments to this Agreement that are
reasonable and fair to both parties under the circumstances, such termination
to be effective 90 days after the delivery of such prior written notice.
(d) The Trust may terminate this Agreement if and at such time as
a court of competent jurisdiction either (A) finds, after the exhaustion of
all appeals, that the performance by IBT of the services called for by this
Agreement or the engagement by the Trust of IBT to perform such services
infringes the intellectual property rights of Signature Financial Services,
Inc., or any affiliate thereof, in any manner whatsoever, or (B) enjoins or
restrains the performance by Investors Bank of the services called for by
this Agreement.
(e) The Trust may terminate this Agreement if and at such time as
any of the Trust accounting agreements between Investors Bank and Select
Advisors Trust A, Select Advisors Portfolio or Select Advisors Portfolios are
terminated due to a material violation of the terms of any such Trust
accounting agreement by Investors Bank.
7.2 The Trust shall reimburse IBT for any reasonable expenses
incurred by IBT for transition accounting and transfer of records in
connection with the termination of this Agreement.
7.3 At any time after the termination of this Agreement, the Trust
may, upon written request, have reasonable access to the records of IBT
relating to its performance of its duties as hereunder.
8. CONFIDENTIALITY. Both parties hereto agree that any non-public
information obtained hereunder concerning the other party is confidential and
may not be disclosed without the consent of the other party, except as may be
required by applicable law or at the request of a governmental agency. The
parties further agree that a breach of this provision would irreparably
damage the other party and accordingly agree that each of them is entitled,
in addition to all other remedies at low or in equal to an injunction or
injunctions without bond or other security to prevent breaches of this
provision.
9. NOTICES. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and delivered via (I) United
States Postal Service registered mail, (ii) telecopier with written
confirmation, (iii) hand delivery with signature to such party at its office
at the address set forth below, namely:
(a) In the case of notices sent to the Trust to:
Select Advisors Portfolios
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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(b) In the case of notices sent to IBT to:
Investors Bank & Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Client Manager
With a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
or at such other place as such party may from time to time
designate in writing.
10. AMENDMENTS. This Agreement may not be altered or amended, except
by an instrument in writing, executed by both parties.
11. PARTIES. This Agreement will be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and
assigns; provided, however, that this Agreement will not be assignable by the
Trust without the written consent of IBT or by IBT without the written
consent of the Trust, authorized and approved by its Board; and provided
further that termination proceedings pursuant to Section 16 hereof will not
be deemed to be an assignment within the meaning of this provision.
12. GOVERNING LAW. This Agreement and all performance hereunder will be
governed by the laws of the Commonwealth of Massachusetts, without regard to
conflict of laws provisions.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
14. ENTIRE AGREEMENT. This Agreement, together with its Appendices,
constitutes the sole and entire agreement between the parties relating to the
subject matter herein and does not operate as an acceptance of any
conflicting terms or provisions of any other instrument and terminates and
supersedes any and all prior agreements and undertakings between the parties
relating to the subject matter herein.
15. LIMITATION OF LIABILITY. IBT is hereby expressly put on notice of
the limitation of liability set forth in the Declaration of Trust of the
Trust and agrees that the obligations assumed by the Trust hereunder shall be
limited in all cases to the assets of the Trust and that IBT shall not seek
satisfaction of any such obligation from the officers, agents, employees,
trustees, or shareholders of the Trust.
16. SEVERAL OBLIGATIONS OF THE PORTFOLIOS. This Agreement is an
agreement entered into between IBT and the Trust with respect to each
Portfolio. With respect to any obligation of the Trust on behalf of any
Portfolio arising out of this Agreement, IBT shall look for payment or
satisfaction of such obligation solely to the assets of the Portfolio to
which such obligation relates as though IBT had separately contracted with
the Trust by separate written instrument with respect to each Portfolio.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first written above.
SELECT ADVISORS PORTFOLIOS
By:
----------------------------------
Name:
Title:
INVESTORS BANK & TRUST COMPANY
By:
----------------------------------
Name:
Title:
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APPENDIX A
PORTFOLIOS
Emerging Growth Portfolio
International Equity Portfolio
Growth & Income Portfolio
Growth & Income Portfolio II
Balanced Portfolio
Bond Portfolio
Bond Portfolio II
Income Opportunity Portfolio
Municipal Bond Portfolio
APPENDIX C
ADDITIONAL SERVICES
None
