INVESTMENT SUB-ACCOUNTING AGREEMENT
THIS AGREEMENT is made effective the 1stday of June, 2007, by and
between STATE STREET BANK AND TRUST COMPANY, a trust company chartered under the
laws of the commonwealth of Massachusetts ("STATE STREET"), and FIFTH THIRD
ASSET MANAGEMENT, INC., an Ohio corporation ("FTAM").
WITNESSETH:
WHEREAS, FTAM serves as the investment accountant to the Fifth Third
Funds, a Massachusetts business trust (the "Trust") pursuant to an Accounting
Services Agreement dated May 18, 2007; and
WHEREAS, FTAM desires to contract with State Street to perform certain
investment sub-accounting and recordkeeping functions for the investment
securities, other non-cash investment properties, and monies (the "ASSETS") of
the Trust's investment portfolio or portfolios (each a "PORTFOLIO", and
collectively the "PORTFOLIOS") listed on Exhibit A hereto; and
WHEREAS, State Street is willing to accept such appointment on the
terms and conditions hereinafter set forth;
NOW THEREFORE, for and in consideration of the mutual promises
contained herein, the parties hereto, intending to be legally bound, mutually
covenant and agree as follows:
SECTION 1 APPOINTMENT. FTAM hereby contracts with State Street to perform
certain investment sub-accounting and recordkeeping functions relating to
portfolio transactions required of a registered investment company under Section
31(a) of the Investment Company Act of 1940, as amended, and the rules and
regulations from time to time adopted thereunder (the "1940 ACT") and to
calculate the net asset value of the Portfolios in accordance with the
provisions of Section 3 hereof.
SECTION 2 REPRESENTATIONS AND WARRANTIES
SECTION 2.1 FTAM REPRESENTATIONS AND WARRANTIES. FTAM hereby
represents, warrants and acknowledges to State Street:
1) That it is a corporation duly organized and existing and in
good standing under the laws of its state of organization; and
2) That it has the requisite power and authority under the
Articles of Incorporation, Code of Regulations, or other
governing documents of FTAM ("GOVERNING DOCUMENTS"), and
applicable law to enter into this Agreement; it has taken all
requisite action necessary to contract with State Street; this
Agreement has been duly executed and delivered by FTAM; and
this Agreement constitutes a legal, valid and binding
obligation of FTAM, enforceable in accordance with its terms.
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SECTION 2.2 STATE STREET REPRESENTATIONS AND WARRANTIES. State Street
hereby represents, warrants and acknowledges to FTAM:
1) That it is a trust company duly organized and existing and in
good standing under the laws of the Commonwealth of
Massachusetts; and
2) That it has the requisite power and authority under applicable
law, its charter and its bylaws to enter into and perform this
Agreement; this Agreement has been duly executed and delivered
by State Street; and this Agreement constitutes a legal, valid
and binding obligation of State Street, enforceable in
accordance with its terms.
SECTION 3 DUTIES AND RESPONSIBILITIES OF THE PARTIES
SECTION 3.1 DELIVERY OF ACCOUNTS AND RECORDS. FTAM will turn over or
cause to be turned over to State Street all accounts and records needed by State
Street to perform its duties and responsibilities hereunder fully and properly
(the "Essential Records"). State Street may rely conclusively on the
completeness and correctness of such accounts and records. If State Street
requests any accounts and records from FTAM's prior service provider, other than
Essential Records, and such additional accounts and records are reasonably
available to State Street from other sources, State Street agrees to pay any
charges of the prior service provider should State Street elect to request them
from the prior service provider rather than an alternative source.
SECTION 3.2 SERVICES. State Street shall provide FTAM those certain
investment accounting services as the parties agree upon by mutual written
agreement from time to time, under the direction of and as interpreted by FTAM,
FTAM's or the Trust's accountants and/or other advisors. FTAM will advise State
Street in writing of all applicable record retention requirements, other than
those set forth in the 1940 Act. State Street will preserve such accounts and
records during the term of this Agreement in the manner and for the periods
prescribed in the 1940 Act or for such longer period as is agreed upon by the
parties. FTAM will furnish, in writing or its electronic or digital equivalent,
accurate and timely information needed by State Street to perform such services
when such information is not readily available from generally accepted
securities industry services or publications. State Street shall provide the
office facilities and the personnel it determines are necessary and appropriate
to perform the services contemplated herein.
SECTION 3.3 ACCOUNTS AND RECORDS PROPERTY OF TRUST. State Street
acknowledges that all of the accounts and records maintained by State Street
pursuant hereto are the property of the Trust, and will be made available to
FTAM and/or the Trust for inspection or reproduction within a reasonable period
of time, upon demand. Upon the reasonable request of FTAM or the Trust, State
Street shall provide copies of any such records or accounts to FTAM or the Trust
at the requestor's expense. State Street will assist the Trust's independent
auditors, or upon the prior written approval of FTAM, or upon demand, any
regulatory body, in any requested review of the Trust's accounts and records but
FTAM will reimburse State Street for all expenses and employee time invested in
any such review outside of routine and normal periodic reviews. Upon receipt
from FTAM of the necessary information or Proper Instructions, State Street will
supply information from the books and records it maintains for FTAM that FTAM
may reasonably request for tax returns, questionnaires, periodic reports to
shareholders, the information requested by the Trust's registered public
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accountants to express their opinions, and such other reports and information
requests as FTAM and State Street may agree upon from time to time.
SECTION 3.4 ADOPTION OF PROCEDURES. State Street and FTAM may from time
to time adopt such procedures as they agree upon, and State Street may
conclusively assume that no procedure approved or directed by FTAM, or FTAM's or
the Trust's accountants or other advisors conflicts with or violates any
requirements of the governing documents, prospectus, any applicable law, rule or
regulation, or any order, decree or agreement by which FTAM and/or the Trust may
be bound. FTAM will be responsible for notifying State Street of any changes in
statutes, regulations, rules, requirements or policies (other than the 1940 Act
and regulations promulgated thereunder) which may impact State Street
responsibilities or procedures under this Agreement.
SECTION 3.5 VALUATION OF ASSETS. State Street will value the Assets in
accordance with FTAM's Proper Instructions utilizing the information sources
designated by FTAM ("PRICING SOURCES") on the Price Source and Methodology
Authorization Matrix, incorporated herein by this reference.
SECTION 4 PROPER INSTRUCTIONS. "PROPER INSTRUCTIONS", which may also be standing
instructions, as used throughout this Agreement, shall mean instructions
received by State Street from FTAM, or otherwise as authorized by FTAM. Such
instructions may be in writing signed by the authorized person(s) or may be in a
tested communication or in a communication utilizing access codes effected
between electro-mechanical or electronic devices or may be by such other means
and utilizing such intermediary systems and utilities as may be agreed to from
time to time by State Street and the person or entity giving such instructions,
provided that FTAM has followed any security procedures agreed to from time to
time by FTAM and State Street. Oral instructions will be considered Proper
Instructions if State Street reasonably believes them to have been given by a
person authorized to give such instructions with respect to the transaction
involved. FTAM shall cause all oral instructions to be confirmed in writing.
FTAM shall cause its duly authorized officer to certify to State Street in
writing the names and specimen signatures of persons authorized to give Proper
Instructions. State Street shall be entitled to rely upon the identity and
authority of such persons until it receives Proper Instruction to the contrary.
Unless such Proper Instructions delegating authority to any person to give
Proper Instructions specifically limit such authority to specific matters or
require that the approval of anyone else will first have been obtained, State
Street will be under no obligation to inquire into the right of such person,
acting alone, to give any Proper Instructions whatsoever. If FTAM fails to
provide State Street any such Proper Instructions naming designated
representatives, any instructions received by State Street from a person
reasonably believed to be an appropriate representative of FTAM will constitute
valid Proper Instructions hereunder. The term "designated representative" may
include FTAM's employees and agents, including investment managers and their
employees. FTAM will provide upon State Street's request a certificate signed by
an officer or designated representative of FTAM, as conclusive proof of any fact
or matter required to be ascertained from FTAM hereunder. FTAM will also provide
State Street Proper Instructions with respect to any matter concerning this
Agreement requested by State Street. If State Street reasonably believes that it
could not prudently act according to the Proper Instructions, or the instruction
or advice of FTAM's and/or the Trust's accountants or counsel, it may in its
discretion, communicate such belief to FTAM and refrain from acting in
accordance therewith.
SECTION 5 LIMITATION OF LIABILITY OF STATE STREET. State Street shall be held to
the exercise of reasonable care in carrying out the provisions of this
Agreement, but State Street is not
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responsible or liable for, and FTAM will indemnify and hold State Street
harmless from and against, any and all costs, expenses, losses, damages,
charges, counsel fees (including, without limitation, disbursements and the
allocable cost of in-house counsel), payments and liabilities which may be
asserted against or incurred by State Street or for which State Street may be
held to be liable, provided that State Street has acted with reasonable care and
in good faith, arising out of or attributable to:
1) State Street's action or failure to act pursuant hereto;
provided that State Street has acted in good faith and with
reasonable care; and provided further, that in no event is
State Street liable for consequential, special, or punitive
damages;
2) State Street's payment of money as requested by FTAM, or the
taking of any action that might make it or its nominee liable
for payment of monies or in any other way; provided, however,
that nothing herein obligates State Street to take any such
action or expend its own monies except in its sole discretion;
3) State Street's action or failure to act hereunder upon any
Proper Instruction, advice, notice, request, consent,
certificate or other instrument or paper appearing to it to be
genuine and to have been properly executed, including any
Proper Instructions, communications, data or other information
received by State Street by means of the Systems, as defined
in the Remote Access Services Agreement executed by the
parties, or any electronic system of communication;
4) State Street's action or failure to act in good faith reliance
on the advice or opinion of counsel for the Trust (at the
Trust's expense) or of its own counsel (at State Street's
expense) with respect to questions or matters of law, or on
the Proper Instruction, advice or statements of any officer or
employee of FTAM, or FTAM's and/or the Trust's accountants or
other authorized individuals, and other persons believed by it
in good faith to be expert in matters upon which they are
consulted;
5) Any error, omission, inaccuracy or other deficiency in any
Portfolio's accounts and records or other information provided
to State Street by or on behalf of FTAM or the Trust,
including the accuracy of the prices quoted by the Pricing
Sources, or the information supplied by FTAM to value the
Assets, or the failure of FTAM to provide, or provide in a
timely manner, any accounts, records, or information needed by
State Street to perform its duties hereunder;
6) FTAM's refusal or failure to comply with the terms hereof
(including without limitation FTAM's failure to pay or
reimburse State Street under Section 5 hereof), FTAM's
negligence or willful misconduct, or the failure of any
representation or warranty of FTAM hereunder to be and remain
true and correct in all material respects at all times;
7) Loss occasioned by the acts, omissions, defaults or insolvency
of any broker, bank, trust company, securities system or any
other person with whom State Street may deal, other than
subsidiaries and affiliates of State Street; and
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8) The failure or delay in performance of its obligations
hereunder, or those of any entity for which it is responsible
hereunder, arising out of or caused, directly or indirectly,
by circumstances beyond the affected entity's reasonable
control, including, without limitation: any interruption, loss
or malfunction of any utility, transportation, computer
(hardware or software) or communication service; inability to
obtain labor, material, equipment or transportation, or a
delay in mails; governmental or exchange action, statute,
ordinance, rulings, regulations or direction; war, strike,
riot, emergency, civil disturbance, terrorism, vandalism,
explosions, labor disputes, freezes, floods, fires, tornadoes,
acts of God or public enemy, revolutions, or insurrection.
SECTION 6 COMPENSATION. In consideration for its services hereunder, FTAM will
pay to State Street the compensation set forth in a separate fee schedule,
incorporated herein by reference, to be agreed to in writing by FTAM and State
Street from time to time, and, upon demand, reimbursement for State Street's
reasonable out-of-pocket costs and expenses incurred by State Street in
connection with the performance of services hereunder, such reimbursements to be
made thirty (30) days from receipt of State Street's statements by FTAM. State
Street agrees that all reimbursable travel expenses will be subject to a
corporate travel policy designed to manage such expenses at a commercially
reasonable level.
SECTION 7 TERM AND TERMINATION. The initial term of this Agreement is for a
period of three (3) year (the "Initial Term"). Thereafter, either FTAM or State
Street may terminate this Agreement on not less than sixty (60) days written
notice. In addition, either party may terminate this Agreement with immediate
effect at any time upon written notice if:
1) The other party shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be
instituted by or against such party seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief,
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors,
or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or
for any substantial part of its property; or such party shall
take any corporate action to authorize any of the preceding
actions;
2) The other party shall commit any material breach hereunder,
which breach, although capable of remedy within sixty (60)
days, has not been remedied by such party within sixty (60)
days after receipt of written notice specifying the nature of
the breach, provided that the parties shall have completed the
escalation procedure described in that certain Service Level
Agreement (Investment Accounting Services) between the parties
of even date herewith (the ("SLA");
3) The other party shall commit any material breach hereunder,
which breach cannot be remedied with reasonable efforts within
sixty (60) days after receipt of written notice specifying the
nature of the breach; provided, that if within such sixty (60)
day period the other party has commenced and is diligently
pursuing efforts to remedy such breach, such party shall have
a reasonable period of time in which to effect a remedy,
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provided that the parties shall have completed the escalation
procedure described in the SLA;
4) The other party shall commit any act of fraud or willful or
intentional misconduct in the performance of its obligations
hereunder; or
5) FTAM ceases serving as investment accountant to the Trust.
Upon termination hereof:
1) FTAM will pay State Street its fees and compensation due
hereunder and its reimbursable disbursements, costs and
expenses paid or incurred to such date;
2) FTAM will designate a successor (which may be FTAM) by Proper
Instruction to State Street; and
3) State Street will, upon payment of all sums due to State
Street from FTAM hereunder or otherwise, deliver all accounts
and records and other properties of the Trust to the
successor, or, if none, to FTAM, at State Street's office.
Upon the termination of this Agreement for any reason, and provided that State
Street and FTAM agree in writing upon the compensation to be paid by FTAM, for a
period of up to six (6) months State Street will perform such services as the
parties in good faith agree in writing are reasonably necessary to facilitate
the orderly transfer of the functions, responsibilities, tasks and operations
comprising the services provided by State Street hereunder to the successor
service provider ("Services Transfer Assistance"). Notwithstanding the
foregoing, State Street shall not be required to disclose any proprietary or
confidential material to any successor service provider or other third party,
nor shall it be required to obtain or develop any data not produced as part of
the services hereunder. Services Transfer Assistance shall be in addition to the
continued provision by State Street of the services hereunder. Notwithstanding
anything contained in this Agreement to the contrary, the term of this Agreement
and the fee schedule shall continue in full force and effect so long as State
Street provides the Services Transfer Assistance. In the event of a termination
by State Street due to FTAM's material breach of this Agreement, all
compensation and reimbursable expenses of State Street shall be payable by FTAM
in advance.
In the event that accounts, records or other properties remain in the possession
of State Street after the date of termination hereof for any reason other than
State Street's failure to deliver the same, State Street is entitled to
compensation for storage thereof during such period, and shall be entitled to
destroy the same if not removed by FTAM within thirty (30) days after written
demand.
SECTION 8 GENERAL
SECTION 8.1 INTERPRETIVE AND ADDITIONAL PROVISIONS. In connection with
the operation hereof, State Street and FTAM may from time to time agree on such
provisions interpretive of or in addition to the provisions hereof as may in
their joint opinion be consistent with the general tenor of this Agreement. Any
such interpretive or additional provisions shall be in a writing signed by both
parties and shall be annexed hereto, provided that no such interpretive or
additional provisions shall contravene any applicable federal or state
regulations or any provision of the governing documents.
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No interpretive or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Agreement.
SECTION 8.2 ADDITIONAL PORTFOLIOS. In the event that the Trust
establishes one or more additional series with respect to which FTAM desires to
have State Street render services as sub-fund accountant under the terms hereof,
FTAM shall so notify State Street in writing, and if State Street agrees to
provide such services, such series shall become a Portfolio hereunder.
SECTION 8.3 MASSACHUSETTS LAW TO APPLY. This Agreement shall be
construed and the provisions thereof interpreted under and in accordance with
laws of The Commonwealth of Massachusetts.
SECTION 8.4 PRIOR AGREEMENTS. This Agreement supersedes and terminates,
as of the date hereof, all prior agreements between FTAM on behalf of the Trust
and State Street relating to the recordkeeping of the Assets.
SECTION 8.5 INSTRUCTIONS AND NOTICES. Any Proper Instruction, notice,
communication or other instrument required to be given hereunder may be (a)
delivered in person to the offices of the parties as set forth herein during
normal business hours; or (b) effected directly between electro-mechanical or
electronic devises as provided in Section 4 hereof; or (c) delivered prepaid
registered mail (in which case it shall be deemed to have been served at the
expiration of five business days after posting); or (d) delivered by telecopy
(in which case it shall be deemed to have been served on the business day of
receipt thereof). Each party hereto shall designate from time to time the
person(s) and address(es) for Proper Instructions and other communications
related to the daily operations. Proper Instructions and other communications
related to this Agreement (including, but not limited to termination, breach, or
default) shall be delivered at the following addresses or such other addresses
as may be notified by any party from time to time.
To FTAM:
FIFTH THIRD ASSET MANAGEMENT, INC.
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: 000.000.0000
Telecopy: 513.534.4312
To State Street:
STATE STREET BANK AND TRUST COMPANY
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Vice President, Fifth Third Funds Services And Attention:
Managing Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
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SECTION 8.6 REPRODUCTION OF DOCUMENTS. This Agreement and all
schedules, addenda, exhibits, attachments and amendments hereto may be
reproduced by any photographic, photostatic, microfilm, micro-card, miniature
photographic or other similar process. The parties hereto all/each agree that
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 8.7 [Intentionally Omitted]
SECTION 8.8 ASSIGNMENT. Except as otherwise set forth herein, this
Agreement may not be assigned by either party without the written consent of the
other; however, this Agreement shall be binding on and shall inure to the
benefit of State Street and FTAM and their respective successors and permitted
assigns. State Street shall have the right to delegate and sub-contract for the
performance of any or all of its duties hereunder, provided that State Street
shall remain responsible for the performance of such duties and all the terms
and conditions hereof shall continue to apply as though State Street performed
such duties itself.
SECTION 8.9 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts taken together shall constitute but one and the same Agreement.
SECTION 8.10 SEVERABILITY. If any provision in this Agreement is
determined to be invalid, illegal, in conflict with any law or otherwise
unenforceable, the remaining provisions hereof will be considered severable and
will not be affected thereby, and every remaining provision hereof will remain
in full force and effect and will remain enforceable to the fullest extent
permitted by applicable law.
SECTION 8.11 INSURANCE. State Street shall have in force and maintain
adequate insurance protection to comply with the requirements of State Street's
banking regulators to cover its duties and activities hereunder.
SECTION 8.12 AMENDMENT. No amendment to this Agreement will be valid
unless made in writing and executed by both parties hereto.
SECTION 8.13 CONFIDENTIAL INFORMATION. State Street agrees to treat all
Confidential Information communicated to it by FTAM in connection with the
activities contemplated by this Agreement as confidential. "Confidential
Information" shall mean all records and information in State Street's possession
relating to the Trust and its shareholders and shareholder accounts. State
Street will not use or disclose Confidential Information for purposes other than
the activities contemplated by this Agreement or except as required by law,
court process or pursuant to the lawful requirement of a governmental agency, or
if State Street is advised by counsel that it may incur liability for failure to
make a disclosure, or except at the request or with the written consent of FTAM.
Confidential Information will not include information which: (a) is or becomes
available to the general public through no fault of State Street; (b) is
independently developed by State Street ; or (c) is rightfully received by State
Street from a third party without a duty of confidentiality. Notwithstanding the
foregoing, FTAM acknowledges that State Street may provide access to and use of
Confidential Information to State Street's employees, contractors, agents,
professional advisors, auditors or
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persons performing similar functions who are bound by confidentiality agreements
similar in scope. In addition, State Street may aggregate Trust data with
similar data of other customers of State Street ("Aggregated Data") and may use
Aggregated Data for purposes of constructing statistical models so long as such
Aggregated Data represents such a sufficiently large sample that no Trust data
can be identified either directly or by inference or implication.
SECTION 8.14 DISASTER RECOVERY. State Street shall implement and
maintain reasonable disaster recovery and business continuity procedures that
are reasonably designed to recover data processing systems, data communications
facilities, information, data and other business related functions of State
Street in a manner and time frame consistent with legal, regulatory and business
requirements applicable to State Street in its provision of services hereunder.
In the event of any disaster which causes a business interruption, State Street
shall act in good faith and take reasonable steps to minimize service
interruptions.
SECTION 8.15 XXXXXXXX-XXXXX COMPLIANCE. Upon request of FTAM, State
Street will provide to FTAM in connection with any periodic annual or
semi-annual shareholder report filed by the Trust or, in the absence of the
filing of such reports, on a quarterly basis, a sub-certification pursuant to
the Xxxxxxxx-Xxxxx Act of 2002 with respect to State Street's performance of the
services set forth in this Agreement and its internal controls related thereto.
State Street reserves the right to amend and update its sub-certifications
provided hereunder from time to time in order to address changing regulatory and
industry developments.
[Rest of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers.
FIFTH THIRD ASSET MANAGEMENT, INC.
By:
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Name:
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Title:
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STATE STREET BANK AND TRUST COMPANY
By:
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Name:
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Title:
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