Exhibit 99.H(6)
FUND ACCOUNTING AND
FINANCIAL ADMINISTRATION SERVICES AGREEMENT
AGREEMENT made and dated effective the 1st day of April, 2005, between ICON
FUNDS (the "Trust"), a Massachusetts business trust having its principal place
of business at 0000 XXX Xxxxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx, 00000, and BISYS
FUND SERVICES OHIO, INC. ("BISYS"), an Ohio corporation having its principal
place of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust desires that BISYS perform fund accounting services and
related financial administration services for the Trust and each investment
portfolio of the Trust, as now in existence and listed on Schedule A, or as
hereafter may be established from time to time (individually referred to herein
as the "Fund" and collectively as the "Funds");
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and Trust wish to enter into this Agreement in order to set
forth the terms under which BISYS will perform the services set forth herein for
the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter contained,
the Trust and BISYS hereby agree as follows:
1. SERVICES. BISYS agrees to perform the services described herein in
accordance with the service standards set forth in Schedule B.
(a) FINANCIAL ADMINISTRATION SERVICES. BISYS shall perform the following
financial administration services each Fund:
(i) Monitor and provide guidance regarding contractual Trust expenses,
including Trustee compensation and vendor fees;
(ii) Coordinate with the Trust's transfer agent with respect to the
payment of dividends and other distributions to Shareholders; and
(iii) Calculate performance data of the Funds for dissemination to up to
fifteen (15) information services covering the investment company
industry.
(b) FUND ACCOUNTING SERVICES. BISYS shall perform the following accounting
services daily for each Fund:
(i) Calculate the net asset value per share ("NAV") of each class of
shares offered by each Fund in accordance with the relevant
provisions of the applicable Prospectus of each Fund and applicable
regulations under the Investment Company Act of 1940, as amended ("
1940 Act");
(ii) In each calculation of NAV, apply securities pricing information as
required or authorized under the terms of the valuation policies and
procedures of the Trust ("Valuation Procedures"), including (A)
pricing information from independent pricing services, with respect
to securities for which market quotations are readily available, and
(B) if applicable to a particular Fund or Funds, fair value pricing
information or adjustment factors from independent fair value
pricing services or other vendors approved by the Trust
(collectively, "Fair Value Information Vendors") with respect to
securities for which market quotations are not readily available,
for which a significant event has occurred following the close of
the relevant market but prior to the Fund's pricing time, or which
are otherwise required to be made subject to a fair value
determination, as set forth under the Valuation Procedures;
(iii) Verify and reconcile with the Funds' custodian all daily trade
activity;
(iv) Compute, as appropriate, each Fund's net income and capital gains,
dividend payables, dividend factors, 7-day yields, 7-day effective
yields, 30-day yields, and weighted average portfolio maturity;
(v) Review daily the net asset value calculation and dividend factor (if
any) for each Fund prior to release to shareholders, check and
confirm the net asset values and dividend factors for reasonableness
and deviations, and distribute net asset values and yields to
NASDAQ;
(vi) Determine unrealized appreciation and depreciation on securities
held in variable net asset value Funds;
(vii) Amortize premiums and accrete discounts on securities purchased at a
price other than face value, if requested by the Trust;
(viii) Update fund accounting system to reflect rate changes, as received
from a Fund's investment adviser, on variable interest rate
instruments,
(ix) Post Fund transactions to appropriate categories;
(x) Accrue expenses of each Fund according to instructions received from
the Trust's Administrator; Determine the outstanding receivables and
payables for all (I) security trades, (2) Fund share transactions
and (3) income and expense accounts;
(xii) Provide accounting reports in connection with the Trust's regular
annual audit and other audits and examinations by regulatory
agencies;
(xiii) Provide such periodic reports as the parties shall agree upon, as
set forth in a prepared schedule;
(xiv) Assist the Trust in identifying instances where market prices are
not readily available, or are unreliable, within parameters set
forth in the Trust's Valuation Procedures.
(c) MAINTENANCE OF BOOKS AND RECORDS. BISYS will keep and maintain the
following books and records of each Fund pursuant to Rule 31 a-1 (the "Rule")
under the 1940 Act:
(i) Journals containing an itemized daily record in detail of all
purchases and sales of securities, all receipts and disbursements of
cash and all other debits and credits, as required by subsection
(b)(1) of the Rule;
(ii) General and auxiliary ledgers reflecting all asset, liability,
reserve, capital, income and expense accounts, including interest
accrued and interest received, as required by subsection (b)(2)(i)
of the Rule;
(iii) Separate ledger accounts required by subsection (b)(2)(ii) and (iii)
of the Rule;
(iv) A monthly trial balance of all ledger accounts (except shareholder
accounts) as required by subsection (b)(8) of the Rule; and
(v) Maintain the books or records pertaining to (i) fair value prices
and/or adjustment factors provided by Fair Value Information Vendors
(described in Section 1(b)(ii)), and (ii) market prices for
securities that are valued using fair value information provided by
Fair Value Information Vendors.
(d) SPECIAL REPORTS AND SERVICES.
(i) BISYS may provide additional special reports upon the request of the
Trust or a Fund's investment adviser, which may result in an
additional charge, the amount of which shall be agreed upon between
the parties.
(ii) BISYS may provide such other similar services with respect to a Fund
as may be reasonably requested by the Trust, which may result in an
additional charge, the amount of which shall be agreed upon between
the parties.
(iii) BISYS will coordinate the preparation of reports that are prepared
or provided by Fair Value Information Services which help the Trust
to monitor and evaluate its use of fair value pricing information
under its Valuation Procedures.
(e) ADDITIONAL ACCOUNTING SERVICES. BISYS shall also perform the following
additional accounting services for each Fund, without additional compensation:
(i) Provide monthly a hard copy of the unaudited financial statements
described below, upon request of the Trust. The unaudited financial
statements will include the following items:
(A) Unaudited Statement of Assets and Liabilities,
(B) Unaudited Statement of Operations,
(C) Unaudited Statement of Changes in Net Assets, and
(D) Unaudited Condensed Financial Information;
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal excise tax
returns;
(B) the Trust's semi-annual reports with the Securities and
Exchange Commission ("SEC") on Form N-SAR;
(C) the Trust's annual, semi-annual and quarterly (if any)
shareholder reports;
(D) registration statements on Form N-1 A and other filings
relating to the registration of shares;
(E) the Administrator's monitoring of the Trust's status as a
regulated investment company under Subchapter M of the
Internal Revenue Code, as amended;
(F) annual audit by the Trust's auditors;
(G) examinations performed by the SEC, or at the request of the
Trust, the NASD, bank regulators, or state regulators;
(H) investigations by any body or agency described in (G); and
(I) reports to the Trust's Board of Trustees, as may be agreed
upon by the parties.
(iii) Calculate turnover and expense ratios;
(iv) Prepare schedule of capital gains and losses;
(v) Provide daily cash report;
(vi) Maintain and report security positions and transactions in
accounting system;
(vii) Monitor expense limitations;
(viii) Monitor wash sales;
(ix) Maintain list of failed trades;
(x) Provide unrealized gain/loss report; and
(xi) Monitor allocation of expenses on multi-class funds for compliance
with the Trust's 18f-3 Policy.
2. SUBCONTRACTING.
BISYS may utilize agents in its performance of its services and, with prior
notice to the Trust, appoint in writing other parties qualified to perform
specific fund accounting or financial administration services reasonably
acceptable to the Trust (individually, a "Sub-Agent") to carry out some or all
of its responsibilities under this Agreement; provided, however, that a
Sub-Agent shall be the agent of BISYS and not the agent of the Trust, and that
BISYS shall be fully responsible for the acts of such Sub-Agent (except for
Sub-Agents selected by the Trust) and shall not be relieved of any of its
responsibilities hereunder by the appointment of a Sub-Agent (except for
Sub-Agents selected by the Trust).
3. COMPENSATION.
The Trust shall pay BISYS compensation for the services to be provided by
BISYS under this Agreement in accordance with, and in the manner set forth in
Schedule C attached hereto.
4. REIMBURSEMENT OF EXPENSES AND MISCELLANEOUS SERVICE FEES.
(a) In addition to paying BISYS the fees provided in Section 3 and Schedule
C, the Trust agrees to reimburse BISYS for its reasonable out-of-pocket expenses
in providing services hereunder, including without limitation the following:
(i) All freight and other delivery and bonding charges incurred by BISYS
in delivering materials to and from the Trust;
(ii) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by BISYS in communication
with the Trust, the Trust's investment adviser or custodian, dealers
or others as required for BISYS to perform the services to be
provided hereunder;
(iii) The cost of microfilm or microfiche of records or other materials;
(iv) All systems-related expenses associated with the provision of
special reports and services pursuant to Section 1(d) herein;
(v) Any expenses BISYS shall incur at the written direction of an
officer of the Trust (other than an employee of BISYS) thereunto
duly authorized; and
(vi) Any additional expenses reasonably incurred by BISYS in the
performance of its duties and obligations under this Agreement (but
not including any amounts related to pricing information, other than
as provided in paragraph 4(b), below).
(b) In addition, BISYS shall be entitled to receive the following amounts:
(i) Systems development fees billed at an hourly rate of $150 per hour,
as approved by the Trust;
(ii) Ad hoc reporting fees billed at an agreed upon rate; and
(iii) In addition:
(A) The Trust shall reimburse BISYS for the actual costs incurred
by BISYS to Fair Value Information Vendors with respect to the
provision of fair value pricing information to BISYS for use
in valuing the portfolio holdings of a specific Fund or Funds
that the Trust designates as being subject to fair value
determinations and for which Fair Value Support Services are
to be provided by BISYS hereunder (such costs shall be
incurred at the discounted group rate made available to BISYS
clients, if applicable);
(B) The Trust shall pay to BISYS a charge for the pricing
information obtained with respect each of the securities held
in the portfolio of each Fund, which charge shall not exceed
the charge that would be incurred if the Fund were to obtain
the information directly from the relevant vendor or vendors.
(C) The Trust shall pay the annual services fee indicated on
Schedule B for each Fund that the Trust designates as being
subject to the fair value support services to be provided by
BISYS.
(c) The provisions of Section 4(a) and (b) above are subject to the expense
limitation provisions set forth in Schedule C under "Out of Pocket Expenses and
Miscellaneous Charges."
5. STANDARD OF CARE; UNCONTROLLABLE EVENTS; LIMITATION OF LIABILITY.
BISYS shall use reasonable professional diligence to ensure the accuracy of
all services performed under this Agreement, but shall not be liable to the
Trust for any action taken or omitted by BISYS in the absence of bad faith,
willful misfeasance, negligence or reckless disregard by it of its obligations
and duties. The duties of BISYS
shall be confined to those expressly set forth herein, and no implied duties are
assumed by or may be asserted against BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's reasonable request, BISYS shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder. Notwithstanding the
foregoing or any other provision of this Agreement, BISYS assumes no
responsibility hereunder, and shall not be liable for, any damage, loss of data,
delay or any other loss whatsoever caused by events beyond its reasonable
control. Events beyond BISYS reasonable control include, without limitation,
force majeure events. Force majeure events include natural disasters, actions or
decrees of governmental bodies, and communication lines failures that are not
the fault of either party. In the event of force majeure, computer or other
equipment failures or other events beyond its reasonable control, BISYS shall
follow applicable procedures in its disaster recovery and business continuity
plan and use all commercially reasonable efforts to minimize any service
interruption. Nothing contained herein, however, shall relieve BISYS for
responsibility for the acts or omissions to act of its employees, agents, or
Sub-Agents (provided such Sub-Agents have been selected by BISYS rather than the
Trust) if such acts or omissions to act involve the bad faith, willful
misfeasance, negligence or reckless disregard of its duties hereunder.
BISYS shall provide the Trust, at such times as the Trust may reasonably
require, copies of reports rendered by independent public accountants on the
internal controls and procedures of BISYS relating to the services provided by
BISYS under this Agreement.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL
BISYS, ITS AFFILIATES OR ANY OF ITS OR THEIR. DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS OR SUBCONTRACTORS BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS HEREBY
EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6. TERM.
This Agreement shall become effective as of the date first written above
and shall continue for a period of five (5) years, until March 31, 2010 (the
"Initial Term"). Thereafter, unless otherwise terminated as provided herein,
this Agreement shall be renewed automatically for successive one year periods
(each a "Rollover Term"). This Agreement may be terminated only (i) by provision
of a written notice of nonrenewal at least ninety (90) days prior to the end of
the Initial Term (ii) after the end of the Initial Term, by providing one
hundred twenty (120) days notice, (iii) by mutual agreement of the parties (iv)
for "Cause," as defined below, upon the provision of sixty (60) days advance
written notice by the party alleging cause. For purposes of this Agreement,
"Cause" shall mean (a) a material breach of this Agreement that has not been
remedied for thirty (30) days following written notice of such breach from the
non-breaching party; (b) a final, unappealable judicial, regulatory or
administrative ruling or order in which the party to be terminated has been
found guilty of criminal or unethical behavior in the conduct of its business;
or (c) financial difficulties on the part of the party to be terminated which
are evidenced by the authorization or commencement of, or involvement by way of
pleading, answer, consent or acquiescence in, a voluntary or involuntary case
under Title 11 of the United States Code, as from time to time is in effect, or
any applicable law, other than said Title 11, of any jurisdiction relating to
the liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors. BISYS shall not terminate this Agreement
pursuant to clause. (a) above based solely upon the Trust's failure to pay an
amount to BISYS which is the subject of a good faith dispute, if (i) the Trust
is attempting in good faith to resolve such dispute with as much expediency as
may be possible under the circumstances, and (ii) the Trust continues to perform
its obligations hereunder in all other material respects (including paying all
fees and expenses not subject to reasonable dispute hereunder).
Notwithstanding the foregoing, following any such termination, in the event
that BISYS in fact continues to perform any one or more of the services
contemplated by this Agreement (or any Schedule or exhibit hereto) with the
consent of the Trust, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Fees and out-of-pocket expenses incurred by BISYS but unpaid
by the Trust upon such termination shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled to collect from the
Trust, in addition to the fees and disbursements provided by Sections 3 and 4
hereof, the amount of all of BISYS' cash disbursements in connection with BISYS'
activities in effecting such termination, including without limitation, the
delivery to the Trust and/or its distributor or investment adviser and/or other
parties of the Trust's property, records, instruments and documents.
If, for any reason other than (i) nonrenewal, (ii) mutual agreement of the
parties or (iii) "Cause" for termination of BISYS hereunder,. BISYS' services
are terminated hereunder, BISYS is replaced as fund accountant financial
administrator, or if a third party is added to perform all or a part of the
services provided by BISYS under this Agreement (excluding any Sub-Fund
Accountant appointed as provided in Section 1 hereof), then the Trust shall make
a one-time cash payment, in consideration of the fee structure and services to
be provided under this Agreement, and not as a penalty, to BISYS equal to the
balance that would be due BISYS for its services hereunder during (x) the next
twelve (12) months or (y) if less than twelve (12), the number of months
remaining in the then-current term of this Agreement, assuming for purposes of
the calculation of the one-time payment that the fees that would be earned by
BISYS for each month shall be based upon the average assets of the Funds and
fees payable to BISYS monthly during the twelve (12) months prior to the date
that services terminate, BISYS is replaced or a third party is added.
In the event the Trust or any Fund is merged into another legal entity in
part or in whole pursuant to any form of business reorganization or is
liquidated in part or in whole
prior to the expiration of the then-current term of this Agreement, the parties
acknowledge and agree that the liquidated damages provision set forth above
shall be applicable in those instances in which BISYS is not retained to provide
fund accounting services consistent with this Agreement, including the number of
Funds subject to such services. The one-time cash payment referenced above shall
be due and payable on the day prior to the first day in which services are
terminated, BISYS is replaced or a third party is added.
The parties further acknowledge and agree that, in the event services are
terminated, BISYS is replaced, or a third party is added, as set forth above,
(i) a determination of actual damages incurred by BISYS would be extremely
difficult, and (ii) the liquidated damages provision contained herein is
intended to adequately compensate BISYS for damages incurred and is not intended
to constitute any form of penalty.
7. INDEMNIFICATION.
The Trust agrees to indemnify, defend and hold harmless BISYS, its
employees, agents, directors, officers and nominees from and against any claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses including reasonable investigation
expenses (collectively, "Losses") resulting directly and proximately from BISY'S
performance of services under this Agreement or based, if applicable, upon
BISYS' reasonable reliance on information, records, instructions or requests
pertaining to services hereunder, that are given or made to BISYS by the Trust,
the investment adviser, or other authorized agents of the Trust with which BISYS
must interface in providing services; provided that this indemnification shall
not apply to actions or omissions of BISYS involving bad faith, willful
misfeasance, negligence or reckless disregard by it of its obligations and
duties.
BISYS shall indemnify, defend, and hold harmless the Trust, and its
directors, officers, agents and nominees from and against Losses resulting
directly and proximately from BISYS' willful misfeasance, bad faith or
negligence in the performance of, or the reckless disregard of, its duties or
obligations hereunder.
The indemnification rights hereunder shall include the right to reasonable
advances of defense expenses in the event of any pending or threatened
litigation with respect to which indemnification hereunder may ultimately be
merited. In order that the indemnification provisions contained herein shall
apply, however, it is understood that if in any case a party may be asked to
indemnify or hold the other party harmless, the indemnifying party shall be
fully and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that the indemnified party will use all
reasonable care to identify and notify the indemnifying party promptly
concerning any situation which presents or appears likely to present the
probability of such a claim for indemnification against the indemnifying party,
but failure to do so in good faith shall not affect the rights hereunder except
to the extent the indemnifying party is materially prejudiced thereby. As to any
matter eligible for indemnification, an indemnified party shall act reasonably
and in accordance with good faith business judgment and shall not
effect any settlement or confess judgment without the consent of the
indemnifying party, which consent shall not be withheld or delayed unreasonably.
The indemnifying party shall be entitled to participate at its own expense
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnity provision. If the indemnifying party elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by it and reasonably satisfactory to the indemnified party. In the event
that the indemnifying party elects to assume the defense of any suit and retain
counsel, the indemnified party shall bear the fees and expenses of any
additional counsel retained by it. An indemnifying party shall not effect any
settlement without the consent of the indemnified party (which shall not be
withheld or delayed unreasonably by the indemnified party) unless such
settlement imposes no liability, responsibility or other obligation upon the
indemnified party and relieves it of all fault. If the indemnifying party does
not elect to assume the defense of suit, it will reimburse the indemnified party
for the reasonable fees and expenses of any counsel retained by the indemnified
party. The indemnity and defense provisions set forth herein shall indefinitely
survive the termination of this Agreement.
8. RECORD RETENTION AND CONFIDENTIALITY.
BISYS shall keep and maintain on behalf of the Trust all books and records
which the Trust and BISYS is, or may be, required to keep and maintain pursuant
to any applicable statutes, rules and regulations, including without limitation
Rules 31a-1 and 31 a-2 under the 1940 Act, relating to the maintenance of books
and records in connection with the services to be provided hereunder. Any
records required to be maintained and preserved pursuant to Rules 31a-1 and
31a-2 under the 1940 Act which are prepared or maintained by BISYS on behalf of
the Trust shall be prepared and maintained at the expense of BISYS, but shall be
the property of the Trust and will be surrendered promptly to the Trust on
request, and made available for inspection by the Trust or by the Commission at
reasonable times.
In case of any request or demand for the inspection of such records by
another party, BISYS shall notify the Trust and follow the Trust's instructions
as to permitting or refusing such inspection; provided that BISYS may exhibit
such records in any case where disclosure is required by law, (ii) BISYS is
advised by counsel that it may incur (i) liability for failure to make a
disclosure, (iii) BISYS is requested to divulge such information by
duly-constituted authorities or court process, or (iv) BISYS is requested to
make a disclosure by the Trust. BISYS shall provide the Trust with reasonable
advance notice of disclosure pursuant to items (i) - (iii) of the previous
sentence, to the extent reasonably practicable.
9. ACTIVITIES OF BISYS.
The services of BISYS rendered to the Trust hereunder are not to be deemed
to be exclusive. BISYS is free to render such services to others and to have
other businesses and interests. It is understood that Trustees, officers,
employees and Shareholders of the Trust are or may be or become interested in
BISYS, as officers, employees or otherwise
and that partners, officers and employees of BISYS and its counsel are or may be
or become similarly interested in the Trust, and that BISYS may be or become
interested in the Trust as a shareholder or otherwise.
10. REPORTS.
BISYS shall furnish to the Trust and to its properly authorized auditors,
investment advisers, examiners, distributors, dealers, underwriters, salesmen,
insurance companies and others designated by the Trust in writing, such reports
and at such times as are prescribed pursuant to the terms and the conditions of
this Agreement to be provided or completed by BISYS, or as subsequently agreed
upon by the parties pursuant to an amendment hereto. The Trust agrees to examine
each such report or copy promptly and will report or cause to be reported any
errors or discrepancies therein. In the event that errors or discrepancies,
except such errors and discrepancies as may not reasonably be expected to be
discovered by the recipient after conducting a diligent examination, are not so
reported promptly, a report will for all purposes be accepted by and binding
upon the Trust and any other recipient, and BISYS shall have no liability for
errors or discrepancies therein and shall have no further responsibility with
respect to such report.
11. RIGHTS OF OWNERSHIP.
All computer programs and procedures employed or developed by or on behalf
of BISYS to perform services required to be provided by BISYS under this
Agreement are the property of BISYS. All records and other data except such
computer programs and procedures are the exclusive property of the Trust and all
such other records and data shall be furnished to the Trust in appropriate form
as soon as practicable after termination of this Agreement for any reason.
12. RETURN OF RECORDS.
BISYS may at its option at any time, and shall promptly upon the Trust's
demand, turn over to the Trust and cease to retain BISYS' files, records and
documents created and maintained by BISYS pursuant to this Agreement which are
no longer needed by BISYS in the performance of its services or for its legal
protection. If not so turned over to the Trust, such documents and records will
be retained by BISYS for six years from the year of creation. At the end of such
six-year period, such records and documents will be turned over to the Trust
unless the Trust authorizes in writing the destruction of such records and
documents.
11. REPRESENTATIONS AND WARRANTIES.
(a) The Trust represents and warrants that: (l) as of the close of business
on the effective date of this Agreement, each Fund that is in existence as of
the effective date has authorized unlimited shares, and (2) this Agreement has
been duly authorized by the Trust and, when executed and delivered by the Trust,
will constitute a legal, valid and binding obligation of the Trust, enforceable
against the Trust in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
(b) BISYS represents and warrants that: (1) the various procedures and
systems which BISYS has implemented with regard to safeguarding from loss or
damage attributable to fire, theft, or any other cause the records, and other
data of the Trust and BISYS' records, data, equipment facilities and other
property used in the performance of its obligations hereunder are adequate and
that it will make such changes therein from time to time as are reasonably
required for the secure performance of its obligations hereunder, and (2) this
Agreement has been duly authorized by BISYS and, when executed and delivered by
BISYS, will constitute a legal, valid and binding obligation of BISYS,
enforceable against BISYS in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting the rights and remedies of creditors and secured parties.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE
(IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
14. INSURANCE.
BISYS shall maintain a fidelity bond covering larceny and embezzlement and
an insurance policy with respect to directors and officers errors and omissions
coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Trust, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be canceled. Such notification shall include the date of
cancellation and the reasons therefore. BISYS shall notify the Trust of any
material claims against it with respect to services performed under this
Agreement, whether or not they may be covered by insurance, and shall notify the
Trust should the total outstanding claims made by BISYS under its insurance
coverage materially impair, or threaten to materially impair, the adequacy of
its coverage.
15. INFORMATION FURNISHED BY THE TRUST.
The Trust has furnished to BISYS the following, as amended and current as
of the effective date of this Agreement:
(a) Copies of the Declaration of Trust of the Trust and of any
amendments thereto, certified by the proper official of the state in which such
Declaration has been filed.
(b) Certified copies of the following documents:
(i) The Trust's Bylaws and any amendments thereto;
(ii) Resolutions of the Trustees covering (A) approval of this
Agreement and authorization of a specified officer of the
Trust to execute and deliver this Agreement and authorization
for specified officers of the Trust to instruct BISYS
hereunder, and (B) authorization of BISYS to act as fund
accountant/financial administrator for the Trust.
(c) A list of all officers of the Trust and any other persons (who may
be associated with the Trust or its investment adviser), together with specimen
signatures of those officers and other persons, who are authorized to instruct
BISYS in all matters.
(d) Two copies of the Prospectuses and Statement of Additional
Information of each Fund.
(e) A copy of the Trust's Valuation Procedures and any related policies
or procedures applicable to the services hereunder.
The Trust will submit any material amendments to its Valuation Procedures
and related policies or procedures to BISYS for BISYS' review, and any amendment
that would have a material impact upon the services to be rendered by BISYS or
the responsibilities of BISYS shall be subject to approval by BISYS in good
faith, including but not limited to the designation of any additional Fair Value
Information Vendor.
16. INFORMATION FURNISHED BY BISYS.
BISYS has furnished to the Trust evidence of the following:
(a) Approval of this Agreement by BISYS, and authorization of a specified
officer of BISYS to execute and deliver this Agreement; and
(b) Authorization of BISYS to act as fund accountant/financial
administrator for the Trust.
17. AMENDMENTS TO DOCUMENTS.
The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 15 hereof forthwith upon
such amendments or changes becoming effective. In addition, the Trust agrees
that no amendments will be made to the Prospectuses or Statements of Additional
Information of the Trust which might have the effect of changing the procedures
employed by BISYS in providing the services agreed to hereunder or which
amendment might affect the duties of BISYS hereunder unless the Trust first
obtains BISYS' approval of such amendments or changes, which approval shall not
be withheld unreasonably.
18. LEGAL ADVICE; RELIANCE ON PROSPECTUS; CERTAIN INSTRUCTIONS.
BISYS may apply to the Trust at any time for instructions and may consult
with counsel for the Trust and with accountants and other experts with respect
to any matter arising in connection with BISYS' duties, and BISYS shall not be
liable nor 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.
BISYS shall notify the Trust at any time BISYS believes that it is in need of
the advice of counsel (other than counsel in the regular employ of BISYS or any
affiliated companies) with regard to BISYS' responsibilities and duties pursuant
to this Agreement. After so notifying the Trust, BISYS, at its discretion, shall
be entitled to seek, receive and act upon advice of legal counsel of its
choosing, such advice to be at the expense of the Trust unless relating to a
matter involving BISYS' willful misfeasance, bad faith, negligence or reckless
disregard of BISYS' responsibilities and duties hereunder, and BISYS shall in no
event be liable to the Trust or any Fund or any shareholder or beneficial owner
of the Trust for any action reasonably taken pursuant to such advice.
As to the services to be provided hereunder, BISYS may rely conclusively
upon the terms of the Prospectuses and Statement of Additional Information of
the Trust relating to the relevant Funds to the extent that such services are
described therein, as well as the minutes of Board meetings (if applicable) and
other records of the Trust unless BISYS receives written instructions to the
contrary in a timely manner from the Trust.
Also, BISYS shall be protected in acting upon any document which it
reasonably believes to be genuine and to have been signed or presented by the
proper person or persons. The Administrator will 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 from the Trust.
The Trust has approved, or shall approve; each independent pricing vendor
and Fair Value Information Vendor to be used by BISYS in rendering fund
accounting services, including Fair Value Support Services hereunder.
The Trust hereby instructs and authorizes BISYS to provide information
pertaining to the Fund's portfolio to Fair Value Information Vendors in
connection with the fair value determinations made under the Trust's Valuation
Procedures and other legitimate purposes related to the Fair Value Support
Services to be provided hereunder.
The Trust understands and acknowledges that while BISYS' fair value support
services hereunder are intended to assist the Trust and the Board in its
obligations to price and monitor pricing of Fund portfolios, BISYS does not
assume responsibility for the accuracy or appropriateness of pricing information
or methodologies, including any fair value pricing information or adjustment
factors. The Trust retains its overall responsibilities to (i) adopt policies
and procedures to monitoring for circumstances that may necessitate the use of
fair value prices, (ii) establish criteria for determining when market
quotations are no longer reliable for a particular portfolio security, (iii)
determine a methodology or methodologies by which the Trust determines the
current fair value of the portfolio security, and (iv) regularly review the
appropriateness and accuracy of the method used in valuing securities and make
any necessary adjustments.
19. COMPLIANCE WITH LAW.
Except for the obligations of BISYS set forth in Sections 1 and 8 hereof,
the Trust assumes full responsibility for the preparation, contents and
distribution of each prospectus of the Trust as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the 1940 Act and any other laws, rules and regulations of
governmental authorities having jurisdiction. BISYS shall have no obligation to
take cognizance of any laws relating to the sale of the Trust's shares.
20. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, c/o ICON Advisers, Inc. at 0000 XXX
Xxxxxxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000; Attn: General Counsel; and if to
BISYS, to it at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, Attn: President, or at
such other address as such party may from time to time specify in writing to the
other party pursuant to this Section.
21. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
with respect to a Fund by either of the parties hereto except by the specific
written consent of the other party. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
22. GOVERNING LAW AND MATTERS RELATING TO THE TRUST AS A MASSACHUSETTS
BUSINESS TRUST.
This Agreement shall be governed by and provisions shall be construed in
accordance with the laws of the State of Ohio. To the extent that the applicable
laws of the State of Ohio, or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control.
It is expressly agreed that the obligations of the Trust hereunder shall
not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but shall bind only the trust
property of the Trust. The execution and delivery of this Agreement have been
authorized by the Board, and this Agreement has been signed and delivered by an
authorized officer of the Trust, acting as such, and neither such authorization
by the Board nor such execution and delivery by such officer shall be deemed to
have been made by any of them individually or to impose any liability on any of
them personally, but shall bind only the trust property of the Trust as provided
in the Trust's Declaration of Trust.
23. PRIVACY.
Nonpublic personal financial information relating to consumers or customers
of the Trust provided by, or at the direction of the Trust to BISYS, or
collected or retained
by BISYS to perform its duties shall be considered confidential information.
BISYS shall not give, sell or in any way transfer such confidential information
to any person or entity, other than affiliates of BISYS except at the direction
of the Trust or as required or permitted by law. BISYS shall have in place and
maintain physical, electronic and procedural safeguards reasonably designed to
protect the security, confidentiality and integrity of, and to prevent
unauthorized access to or use of records and information relating to consumers
or customers of the Trust. The Trust represents to BISYS that it has adopted a
Statement of its privacy policies and practices as required by the Commission's
Regulation S-P and agrees to provide BISYS with a copy of that statement
annually.
24. MISCELLANEOUS.
(a) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties hereto
as to the subject matter covered by this Agreement, and supercedes all prior
negotiations, understandings and agreements bearing upon the subject matter
covered herein.
(c) This Agreement may be executed in counterparts, each of which shall be
an original but all of which, taken together, shall constitute one and the same
agreement.
(d) No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto. The parties hereto may amend such
procedures as may be set forth herein by written agreement as may be appropriate
or practical under the circumstances, and BISYS may conclusively assume that any
special procedure which has been approved by an executive officer of the Trust
(other than an officer or employee of BISYS) does not conflict with or violate
any requirements of the Trust's Declaration of Trust, By-Laws or then-current
prospectuses, or any rule, regulation or requirement of any regulatory body.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
ICON FUNDS
By:
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
SCHEDULE A
TO THE FUND ACCOUNTING AND FINANCIAL ADMINISTRATION
SERVICES AGREEMENT
BETWEEN ICON FUNDS
AND BISYS FUND SERVICES OHIO, INC.
ICON FUNDS
SECTOR FUNDS
ICON Consumer Discretionary Fund
ICON Energy Fund
ICON Financial Fund
ICON Healthcare Fund
ICON Industrials Fund
ICON Information Technology Fund
ICON Leisure and Consumer Staples Fund
ICON Materials Fund
ICON Telecommunication & Utilities Fund
FOREIGN FUNDS
ICON Asia-Pacific Region Fund
ICON Europe Fund
ICON International Equity Fund
DOMESTIC DIVERSIFIED FUNDS
ICON Bond Fund
ICON Core Equity Fund
ICON Covered Call Fund
ICON Equity Income Fund
ICON Long/Short Fund
SCHEDULE B
TO THE FUND ACCOUNTING AND FINANCIAL ADMINISTRATION
SERVICES AGREEMENT
BETWEEN ICON FUNDS
AND
BISYS FUND SERVICES OHIO INC.
SERVICE STANDARDS
Pursuant to Section 1 of this Agreement, BISYS has agreed to perform the
services described in this Agreement in accordance with the service standards
set forth on the following pages of this Schedule B. The standards, deadlines
and financial penalties included in this Schedule B or otherwise agreed to from
time to time will remain in effect during the term of this Agreement unless
subsequently modified or terminated following a review and the written consent
of the parties.
In the event BISYS fails to meet a service standard in any particular
month, quarter or year, as the case may be, BISYS agrees to take appropriate
corrective measures within the following period in order to be in compliance
with the appropriate standard at the end of such. period. The foregoing
requirement shall not apply in those instances in which the BISYS' failure to
meet a service standard was due to circumstances beyond its control. In the
event BISYS fails to meet a service standard for a particular item for reasons
within its control, the Trust will be entitled to a fee reduction as listed in
the table below. Any determination by BISYS in a particular instance to agree to
a financial or other penalty provided for in this Schedule B, shall be without
prejudice to BISYS and shall not be construed as an admission of wrongdoing or a
waiver of any rights generally under this Agreement.
ITEM STANDARD FEE REDUCTIOION
----------------------------------------------------------------------------------------
NAV Calculation Accuracy Greater than 99% per Fund per $ 500
quarter, according to ICI
materiality guidelines.
Excise Tax Distributions Calculated and declared income and
capital gain distributions prior to
December 31.
Daily Bulletin 95% delivered by 6:30 pm (EST). $ 100
Cash Availability 95% delivered by 11:00 am (EST) $ 100
(this assumes any transactions
received from platforms that may be
authorized by the Trust to submit
late-day trade information will be
received by 9.30am (EST)).
Expense Monitoring Analyze and adjust expense accruals, N/A
as needed, on a monthly basis.
Daily Dividend Rate Greater than 99.9% accuracy rate $ 100
Accuracy per quarter
NASDAQ Reporting Greater than 98% accuracy rate $ 100
Accuracy per quarter
Asset Reconciliation Weekly
Cash Reconciliation. Daily
Corporate Actions Processing Greater than 99% accuracy rate per $ 500
Completion quarter
Mutual Fund Performance Greater than 99.9% accuracy rate per $ 500
Accuracy Fund per quarter
SEC Yield Accuracy Greater than 99% accuracy rate per $ 500
applicable Fund per quarter
SEC Yield Calculation Monthly
Frequency
NAV calculations are measured by total number of NAVs calculated monthly.
The required Standard (performance level) associated with an item or function
will be measured by dividing the total number of times that item or function was
correctly performed during the month by the total number of times that item or
function occurred during the month.
EXAMPLE: With respect to the calculation of NAVs, assuming 66 business days and
9 non-money market funds in existence in the first quarter, there should be 594
NAV calculations in the first quarter. If there are 6 NAV errors in the first
quarter, the Performance Level for the first quarter is 98.9% (588/594).
For purposes of the foregoing, a failure to perform a particular function
properly includes only those failures for which BISYS would not be excused and
for which BISYS would be responsible under the Agreement.
An inaccurate calculation of the NAV (an error greater than 1 cent per share of
the net asset value) is considered one event and will only be counted on the day
it first occurred, unless the source of the inaccuracy changes during the
relevant period.
It is anticipated that the Funds would not wish to deliver an NAV to NASDAQ if
the accuracy of the NAV is in question at the time it is necessary to transmit
the NAV to NASDAQ. If BISYS has reason to believe that an NAV is or may be
incorrect, it may either "withhold" the NAV from NASDAQ or "withdraw" an NAV
previously submitted, in consultation with an appropriate representative of the
Funds. In such event, BISYS shall not be deemed to have failed to report to
NASDAQ by the applicable cut-off time.
SCHEDULE C
TO THE
FUND ACCOUNTING AND FINANCIAL ADMINISTRATION
SERVICES AGREEMENT
BETWEEN
ICON FUNDS
AND
BISYS FUND SERVICES
OHIO, INC.
The Trust shall pay BISYS a fee on the first day of each month for the services
under this Agreement. The monthly amount of the Fee will be computed as follows:
ASSET-BASED FEE
An asset-based fee calculated on the average net asset value of all Funds, with
the fee rates applied incrementally to assets at the respective levels indicated
below, and accrued daily, as follows:
AVERAGE DAILY NET ASSETS OF ALL FUNDS ANNUAL RATE OF FEE
--------------------------------------------------------------------------------
Up to the first $1.75 Billion 0.0300%(3 basis points)
From $1.75 Billion to $5 Billion 0.0175%(1.75 basis points)
Over $5 Billion 0.0100%(1 basis point)
These asset-based fees are subject to a minimum fee of $630,000 annually for the
Fund complex. FOR PURPOSES OF THIS MINIMUM, THE ASSET-BASED FEES (BUT NOT THE
OTHER FEES) PAID TO BISYS UNDER ITS SUB-ADMINISTRATION AGREEMENT WITH ICON
ADVISERS, INC. SHALL BE COUNTED TOWARDS THE SATISFACTION OF THE MINIMUM.
FEE FOR FAIR VALUE SUPPORT SERVICES
The annual fee is in respect of each Fund that the Trust designates as being
subject to fair value determinations and for which, Fair Value Support Services
are to be provided by BISYS hereunder.
An annual fee for services provided by BISYS under this Agreement:
For each Fund with less than 200 securities $ 5,000
For each Fund with at least 200 securities $ 7,500
In addition to the above fees, BISYS shall be entitled to receive payment for
out-of-pocket expenses related to Fair Value Support Services. This includes the
Annual Fair
Valuation Vendor Fee, which consists of the actual cost charged by Fair Value
Information Vendors with respect to the provision of fair value pricing
information to BISYS for use in valuing the portfolio holdings of a specific
Fund or Funds.
The Annual Fair Valuation Vendor Fee is currently $10,000 per Fund.
CPI ADJUSTMENT
All fixed and minimum fees set forth in this schedule shall be increased
annually commencing on the one-year anniversary date of the Effective Date by
the percentage increase in consumer prices during the most recent 12 months for
services as measured by the United States Consumer Price Index entitled "All
Services Less Rent of Shelter" or a similar index should such index no longer be
published; provided, however that this adjustment shall be reduced or eliminated
to the extent of any increase in the dollar amount of Asset-Based Fee in any
calendar year, determined as per above, from the amount of the Asset-Based Fee
in the immediately preceding calendar year.
OUT-OF-POCKET EXPENSES:
BISYS shall also be entitled to be reimbursed for its out-of-pocket expenses as
set forth in the Agreement; provided, however, that the aggregate amount to be
charged to the Trust shall not exceed $275 per Fund per month for the expenses
under Section 4(a) sub-sections (ii),(iii) and (iv), and Section 4 (b)
sub-section (ii), and expenses related to the following items (whether under the
aforementioned provisions or other sections of the Agreement): SAS-70 expenses;
Electronic Transmissions, such as, FundStation - automated communication /
distribution of Total Returns & other Performance numbers; FundSmith - Automated
Financial Reporting package; Various Tax Information Databases (but not
including PFIC), QDI calculations; Telecommunication - phone/ faxes; Client &
any Ad-hoc reporting that does not require additional development costs;
Corporate Actions; Variable Rates; and Mortgage Backed Securities Factors.
