EXHIBIT 24(b)(9)
RECORDKEEPING AGREEMENT
THIS AGREEMENT made as of this 19th day of March, 1992, by and between
XXXXXXXX INTERNATIONAL FUND SERIES, INC., a Maryland corporation, having its
principal place of business at 000 Xxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Fund"),
and INVESTORS FIDUCIARY TRUST COMPANY, a state chartered trust company organized
and existing under the laws of the State of Missouri, having its principal place
of business at 000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx, 00000 ("IFTC"):
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto, intending to be legally bound, mutually covenant and agree
as follows:
1. Appointment of Recordkeeping Agent
Fund hereby constitutes and appoints IFTC as Recordkeeping Agent to
perform certain accounting and recordkeeping functions required of Fund as
a duly registered investment company in compliance with applicable
provisions of federal, state and local laws, rules and regulations; in
connection therewith, to provide information necessary for Fund to file
required financial reports; to maintain and preserve certain required
books, accounts and records as the basis for such reports; to perform
certain daily functions in connection with such accounts and records; to
calculate daily net asset value; to act as liaison with the Fund's
independent auditors; and to provide information to and cooperate with the
Fund's custodian as provided in this Agreement.
2. Delivery of Corporate Documents
Fund shall deliver to IFTC prior to the effective date of this Agreement
copies of a resolution of the Board of Directors of Fund appointing IFTC
as Recordkeeping Agent for Fund.
3. Representations and Warranties of Fund
A. Fund represents and warrants that it is a corporation duly organized
as heretofore
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described and existing and in good standing under the laws of
Maryland;
B. Fund represents and warrants that it has the power and authority
under applicable laws, its charter document and bylaws, and has
taken all action necessary, to enter into and perform this Agreement
including appropriate authorization from the Fund;
C. Fund represents and warrants that it has determined that the
Portfolio System (the accounting system licensed for use by IFTC
from DST Systems, Inc. ("Licensor") to maintain the accounting
records of the Fund) is appropriate and suitable for its needs;
D. Fund acknowledges that IFTC and Licensor have proprietary rights in
and to the Portfolio System and that the Portfolio System and the
programs, documentation and information of, and other materials
relevant to, the Portfolio System or the business of IFTC
("Confidential Information") are confidential and constitute trade
secrets of IFTC;
E. Fund shall preserve the confidentiality of the Confidential
Information and prevent its disclosure to other than its own
employees and agents who reasonably have a need to know such
information pursuant to this Agreement, and shall take reasonable
action to protect the rights of IFTC and Licensor in the Portfolio
System. For purposes of this paragraph, "reasonable action" shall
mean taking such actions and exercising such degree of care as Fund
uses with reference to its own highly confidential information.
Certain reports as agreed upon in writing by the Fund and IFTC will
be furnished to the Fund's custodian for its reasonable business
needs.
4. Representation and Warranties of IFTC
A. It is a trust company duly organized and existing and in good
standing under the laws of the State of Missouri.
B. It has the requisite power and authority under applicable laws, by
its charter and bylaws, and by agreement to enter into this
Agreement and has taken all action necessary to enter into and
perform the services contemplated herein and this
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Agreement has been duly executed and delivered by IFTC and
constitutes a legal, valid and binding obligation of IFTC,
enforceable in accordance with its terms.
5. Duties and Responsibilities of IFTC
A. Fund shall turn over to IFTC all of Fund's accounts and records
previously maintained. IFTC shall be entitled to rely conclusively
on the completeness and correctness of the accounts and records
turned over to it by Fund and Fund shall indemnify and hold IFTC
harmless of and from any and all expenses, damages and losses
whatsoever arising out of or in connection with any error, omission,
inaccuracy or other deficiency of such accounts and records or in
the failure of Fund to provide any portion of such or to provide any
information needed by IFTC to perform its function hereunder.
B. Accounts and Records
1. IFTC, with the directions and as interpreted by the Fund,
Fund's accountants and/or other advisors, will prepare and
maintain as complete, accurate and current all accounts and
records required to be maintained by Fund under the general
Rules and Regulations under the Investment Company Act of 1940
("Rules"), as amended, and as agreed upon between the parties,
and will preserve said records in the manner and for the
periods prescribed in said Rules, or for such longer period as
is agreed upon by the parties.
2. IFTC relies upon Fund to furnish, in writing, accurate and
timely information to complete Fund's records and perform
daily calculation of the Fund's net asset value as provided in
Section 5.B.8. below. IFTC shall incur no liability except as
provided in Section 6.A. herein and the Fund shall indemnify
and hold IFTC harmless from and against any liability arising
from any failure of Fund to furnish such information in a
timely and accurate manner, even if Fund subsequently provides
accurate but untimely information.
3. It shall be the responsibility of Fund to furnish IFTC with
the declaration,
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record and payment dates and amounts of any dividends or
income and any other special actions required concerning the
securities in the portfolio when such information is not
readily available from generally accepted securities industry
services or publications.
4. The accounts and records maintained and preserved by IFTC
shall be the property of the Fund and shall be made available
to the Fund for inspection or reproduction within a reasonable
time, upon demand. The Fund will be entitled to receive
reports produced by the Portfolio System, including without
limitation those listed on Exhibit B hereof.
5. IFTC shall assist Fund's independent accountants, or upon
approval of Fund or upon demand, any regulatory body, in any
requested review of Fund's accounts and records maintained by
IFTC but shall be reimbursed by Fund for all expenses and
employee time invested in any such review outside of routine
and normal periodic reviews.
6. Upon receipt from Fund of the necessary information, IFTC
shall provide information for tax returns, questionnaires, or
periodic reports to shareholders and such other reports and
information requests as Fund and IFTC shall agree upon from
time to time.
7. IFTC and Fund may from time to time adopt procedures as they
agree upon, and IFTC may conclusively assume that any
procedure approved by Fund, or directed by Fund, does not
conflict with or violate any requirements of Fund's
prospectus, Articles of Incorporation, Bylaws, or any rule or
regulation of any applicable regulatory body or governmental
agency. Fund shall be responsible to notify IFTC of any
changes in statutes, rules or requirements, or policies which
may necessitate changes in IFTC's responsibilities or
procedures.
8. IFTC will calculate Fund's net asset value, in accordance with
the Fund's prospectus once daily. IFTC will prepare and
maintain a daily evaluation of securities for which market
quotations are available by the use of
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outside services normally used and contracted for this
purpose; all other securities will be evaluated in accordance
with Fund's instructions. Notwithstanding anything in this
Agreement to the contrary, the evaluation of Fund's securities
will be in accordance with Fund's Statement of Procedure as to
Valuation of Portfolio Securities. Fund will be solely
responsible for providing IFTC with such statement and with
any subsequent supplements, amendments or modifications
thereof in a timely manner.
9. IFTC will cooperate with Fund's custodian as necessary with
respect to portfolio accounting matters, and the Fund shall
cause its custodian to cooperate with IFTC as necessary for
the performance of IFTC's obligations under this Agreement.
6. Limitation of Liability of IFTC
A. IFTC shall not be liable for any loss or damage resulting from its
action or omission to act or otherwise, including but not limited to
any act or omission of IFTC done in response to or in reliance upon
any act or omission of or information provided by the Fund or its
custodian, except for any loss or damage arising from any negligent
act or willful misconduct of IFTC and IFTC shall indemnify and hold
harmless Fund from and against any liability arising from such
negligence or willful misconduct. IFTC shall not be liable for
consequential, special, or punitive damages. IFTC may request and
obtain the advice and opinion of counsel for Fund or its own counsel
at the expense of Fund with respect to questions or matters of law,
and it shall be without liability to Fund for any action taken or
omitted by it in good faith, in conformity with such advice or
opinion.
B. IFTC may rely in good faith upon the advice of Fund, the Fund's
representatives, other authorized individuals as provided by
corporate resolution to IFTC, and others believed by it in good
faith to be expert in matters upon which they are consulted. Actions
or inaction taken in reliance on such advice shall not be
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considered "negligent" and IFTC shall not be liable for any actions
taken in good faith upon such statements.
C. If Fund requires IFTC in any capacity to take any action which
involves the payment of money by it, or which in IFTC's opinion
might make it liable for payment of money or in any other way, IFTC
shall be and be kept indemnified by Fund in an amount and form
satisfactory to IFTC against any liability on account of such
action.
D. IFTC shall be entitled to receive and Fund agrees to pay to IFTC, on
demand, reimbursement for such cash disbursements, costs and
expenses as may be agreed upon in writing from time to time by IFTC
and Fund.
E. IFTC shall be protected in acting hereunder upon any instructions,
advice, notice, request, consent, certificate or other instrument or
paper appearing to it to be genuine and to have been properly
executed and shall, unless otherwise specifically provided herein,
be entitled to receive as conclusive proof of any fact or matter
required to be ascertained from Fund as determined by IFTC, a
certificate signed by Fund's President or other officer of Fund as
requested by IFTC.
F. Without limiting the generality of the foregoing, IFTC shall be
under no duty or obligation to inquire into, and shall not be liable
for:
1. The validity of the issue of any securities purchased by or
for Fund, or the legality of the purchase thereof;
2. The legality of the sale of any securities by or for Fund, or
the propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any shares of the shares
of Fund, or the sufficiency of the amount to be received
therefore;
4. The legality of the purchase of any shares of shares of Fund,
or the propriety of the amount to be paid therefore, or
5. The legality of the declaration of any dividend by Fund, or
the legality of the issue of any shares of Fund's shares in
payment of any stock dividend.
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G. IFTC shall not be responsible in any manner for any custodial
services with respect to the Fund or any of its assets.
H. Notwithstanding anything herein to the contrary, it is expressly
understood and agreed that IFTC shall have no responsibility to
Fund, the Fund's shareowners or any other person or entity for
moneys or securities of the Fund held by banks or trust companies as
custodians in the absence of negligence or willful misconduct of
IFTC.
I. IFTC shall not use any information made available to it under the
terms of this Agreement for any purpose other than complying with
its duties and responsibilities under this Agreement or as
specifically authorized by Fund in writing to IFTC.
7. Force Majeure
IFTC shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation, any interruption, loss or
malfunction of any utility, transportation, computer (hardware or
software) or communication service.
8. Additional Funds
IFTC shall act as recordkeeper for additional portfolios of Fund upon 30
days notice to IFTC provided IFTC consents to such arrangement. Rates or
charges for such additional portfolios shall be as agreed by IFTC and Fund
in writing.
9. Compensation
Fund shall pay to IFTC such compensation at such time as may from time to
time be agreed upon in writing by IFTC and Fund. The initial compensation
schedule is attached as Exhibit A.
10. Termination
Either party to this Agreement may terminate same by notice in writing
received by the other party not less than ninety (90) days prior to the
date upon which such termination shall take effect. Upon termination of
this Agreement, Fund shall pay to IFTC such
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compensation for its reimbursable disbursements, costs and expenses paid
or incurred to such date and Fund shall use his best efforts to obtain a
successor. IFTC shall, upon termination of this Agreement, deliver to the
successor so specified or appointed, or to Fund, at IFTC's office, all
records then held by IFTC hereunder, all funds and other properties of
Fund deposited with or held by IFTC hereunder. In the event no written
order designating a successor (which may be Fund) shall have been
delivered to IFTC on or before the date when such termination shall become
effective, then IFTC shall deliver the records, funds and properties of
Fund to a bank or trust company at the selection of IFTC or if a
satisfactory successor cannot be obtained, IFTC may deliver the records,
funds and properties to the Fund, at IFTC's offices or as otherwise agreed
to between the parties. Thereafter the Fund or such bank or trust company
shall be the successor under this Agreement and shall be entitled to
reasonable compensation for its services. Notwithstanding the foregoing
requirement as to delivery upon termination of this Agreement, IFTC may
make any other delivery of the funds and property of Fund which shall be
permitted by the Investment Company Act of 1940 and Fund's Articles of
Incorporation, Declaration of Trust, and/or Bylaws then in effect. Except
as otherwise provided herein, neither this Agreement nor any portion
thereof may be assigned by IFTC without the consent of Fund.
11. Notices
Notices, requests, instructions and other writings received by Fund at 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx,
Treasurer, cc: Xxxx X. Xxxxxxx, Esq., General Counsel, or at such address
as Fund may have designated to IFTC in writing, shall be deemed to have
been properly given to Fund hereunder; and notices, requests, instructions
and other writings received by IFTC at its offices at 000 Xxxx 00xx
Xxxxxx, Xxxxxx Xxxx, XX 00000, or to such other address as it may have
designated to Fund in writing, shall be deemed to have been properly given
to IFTC hereunder.
12. Miscellaneous
A. This Agreement is executed and delivered in the State of Missouri
and shall be governed by the laws of said state.
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B. All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified in any
manner except by a written agreement properly authorized and
executed by both parties hereto.
D. The captions in the 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 effort.
E. This Agreement may be executed simultaneously 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.
F. If any part, term or provision of this Agreement is by the courts
held to be illegal, in conflict with any law or otherwise invalid,
the remaining portion or portions shall be considered severable and
not be affected, and the rights and obligations of the parties shall
be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
G. This Agreement may not be assigned by either party without prior
written consent in writing of the other party.
H. This Agreement shall be effective as of the 19th day of March, 1993.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective and duly authorized corporate or trust officers.
INVESTORS FIDUCIARY TRUST COMPANY
By:______________________________
Title:___________________________
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XXXXXXXX INTERNATIONAL FUND SERIES, INC.
By:______________________________
Title:___________________________
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