ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of , 1999 by and between XXXXXXXXX & XXXXX FUND
TRUST, a Delaware business trust (the "Trust"), and PFPC INC., a Delaware
corporation ("PFPC"), which is an indirect wholly owned subsidiary of PNC Bank
Corp.
W I T N E S S E T H :
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust wishes to retain PFPC to provide administration and
accounting services to its investment portfolios listed on Exhibit A attached
hereto and made a part hereof, as such Exhibit A may be amended from time to
time (each a "Portfolio"), and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Trust and any other
person duly authorized by the Trust's Trustees to give Oral
Instructions and Written Instructions on behalf of the Trust and
listed on the Authorized Persons Appendix attached hereto and made a
part hereof or any amendment thereto as may be received by PFPC. An
Authorized Person's scope of authority may be limited by the Trust by
setting forth such limitation in the Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(f) "Oral Instructions" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA. (i) "Shares" means the shares of beneficial interest of any
series or class of the Trust. (j) "Written Instructions" mean written
instructions signed by an Authorized Person and received by PFPC. The
instructions may be delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. APPOINTMENT. The Trust, on behalf of each Portfolio, hereby appoints PFPC
to provide administration and accounting services to each of the
Portfolios, in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Trust has provided or, where applicable, will
provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the Trust's
Trustees, approving the appointment of PFPC to provide services to
each Portfolio and approving this Agreement;
(b) a copy of the Trust's most recent effective registration statement;
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(c) a copy of each Portfolio's advisory agreement or agreements;
(d) a copy of the distribution agreement with respect to each
class of Shares representing an interest in a Portfolio;
(e) a copy of any additional administration agreement with respect to
a Portfolio;
(f) a copy of any shareholder servicing agreement (other than
agreements with financial intermediaries) made in respect of
the Trust or a Portfolio; and
(g) copies (certified or authenticated, where applicable) of any
and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by PFPC hereunder. Except as specifically set forth herein, PFPC assumes no
responsibility for such compliance by the Trust or any Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions and Written
Instructions it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of the Trust's organizational documents or of any vote,
resolution or proceeding of the Trust's Trustees or of the Trust's
shareholders, unless and until PFPC receives Written Instructions to
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the contrary.
(c) The Trust agrees to forward to PFPC Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by
PFPC or its affiliates) so that PFPC receives the Written Instructions
by the close of business on the business day after such Oral
Instructions are received. The fact that such confirming Written
Instructions are not received by PFPC shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person,
PFPC shall incur no liability to the Trust in acting upon such Oral
Instructions or Written Instructions provided that PFPC's actions
comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE TRUST. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Trust.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may
request advice at its own cost from such counsel of its own choosing
(who may be counsel for the Trust, the Trust's investment adviser or
PFPC, at the option of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC receives from
the Trust and the advice PFPC receives from counsel, PFPC may rely
upon and follow the advice of counsel. In the event PFPC so relies on
the advice of counsel, PFPC remains
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liable for any action or omission on the part of PFPC which
constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard by PFPC of any duties, obligations or
responsibilities set forth in this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it takes or
does not take in reliance upon directions, advice or Oral Instructions
or Written Instructions it receives from the Trust or from counsel and
which PFPC believes, in good faith, to be consistent with those
directions, advice and Oral Instructions or Written Instructions.
Nothing in this section shall be construed so as to impose an
obligation upon PFPC (i) to seek such directions, advice or Oral
Instructions or Written Instructions, or (ii) to act in accordance
with such directions, advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of this
Agreement, the same is a condition of PFPC's properly taking or not
taking such action. Nothing in this subsection shall excuse PFPC when
an action or omission on the part of PFPC constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard by PFPC
of any duties, obligations or responsibilities set forth in this
Agreement.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Trust and the Portfolios which
are in the possession or under the control of PFPC shall be the
property of the Trust and shall be surrendered promptly on request of
the Trust. Such books and records shall be prepared and maintained by
PFPC as required by the 1940 Act and other applicable securities laws,
rules and regulations. The Trust and Authorized Persons shall have
access to such books and records at all times during PFPC's
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normal business hours. Upon the reasonable request of the Trust,
copies of any such books and records shall be provided by PFPC to the
Trust or to an Authorized Person, at the Trust's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each Portfolio's books of
account;
(ii) records of each Portfolio's securities transactions; and
(iii) all other books and records as PFPC is required to maintain
pursuant to Rule 31a-1 of the 1940 Act in connection with the
services provided hereunder.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records of the Trust
and information relating to the Trust and its shareholders, unless the
release of such records or information is otherwise consented to, in
writing, by the Trust. The Trust agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC may be exposed to
civil or criminal contempt proceedings or when required to divulge such
information or records to duly constituted authorities.
9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Trust's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules with respect to each
Portfolio. PFPC shall take all reasonable action in the performance of its
duties under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion, as
required by the Trust.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In
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the event of equipment failures, PFPC shall, at no additional expense to
the Trust, take reasonable steps to minimize service interruptions. PFPC
shall have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties or obligations under
this Agreement.
11. YEAR 2000 READINESS DISCLOSURE. PFPC (a) has reviewed its business and
operations as they relate to the services provided hereunder, (b) has
developed or is developing a program to remediate or replace computer
applications and systems, and (c) has developed a testing plan to test the
remediation or replacement of computer applications/systems, in each case,
to address on a timely basis the risk that certain computer
applications/systems used by PFPC may be unable to recognize and perform
properly date sensitive functions involving dates prior to, including and
after December 31, 1999, including dates such as February 29, 2000 (the
"Year 2000 Challenge"). To the best of PFPC's knowledge and belief, the
reasonably foreseeable consequences of the Year 2000 Challenge will not
adversely affect PFPC's ability to perform its duties and obligations under
this Agreement.
12. COMPENSATION. As compensation for services rendered by PFPC during the term
of this Agreement, the Trust, on behalf of each Portfolio, will pay to PFPC
a fee or fees as may be agreed to in writing by the Trust and PFPC.
13. INDEMNIFICATION. The Trust, on behalf of each Portfolio, agrees to
indemnify and hold harmless PFPC and its affiliates from all taxes,
charges, assessments, claims and liabilities (including, without
limitation, liabilities arising under the Securities Laws and any state or
foreign securities and blue sky laws, and amendments thereto), and
expenses,
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including (without limitation) attorneys' fees and disbursements, arising
directly or indirectly from any action or omission to act which PFPC takes
(i) at the request or on the direction of or in reliance on the advice of
the Trust or (ii) upon Oral Instructions or Written Instructions.
Notwithstanding the preceding sentence, neither PFPC, nor any of its
affiliates, shall be indemnified and PFPC shall indemnify and hold harmless
the Trust and its affiliates, against any liability (or any expenses
incident to such liability) arising out of PFPC's or its affiliates' own
willful misfeasance, bad faith, gross negligence or reckless disregard of
its duties and obligations under this Agreement. Any amounts payable by the
Trust hereunder shall be satisfied only against the relevant Portfolio's
assets and not against the assets of any other investment portfolio of the
Trust.
14. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the Trust
or any Portfolio except as specifically set forth herein or as may be
specifically agreed to by PFPC in writing. PFPC shall be obligated to
exercise care and diligence in the performance of its duties
hereunder, to act in good faith and to use its best efforts, within
reasonable limits, in performing services provided for under this
Agreement. PFPC shall be liable for any damages arising out of PFPC's
failure to perform its duties under this Agreement to the extent such
damages arise out of PFPC's willful misfeasance, bad faith, gross
negligence or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for losses
beyond its control, provided that PFPC has acted in accordance with
the standard of care set forth above; and
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(ii) PFPC shall not be liable for (A) the validity or invalidity or
authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to the
applicable requirements of this Agreement, and which PFPC reasonably
believes to be genuine; or (B) subject to Section 10, delays or errors
or loss of data occurring by reason of circumstances beyond PFPC's
control, including acts of civil or military authority, national
emergencies, labor difficulties, fire, flood, catastrophe, acts of
God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC nor its affiliates shall be liable to the Trust or to any
Portfolio for any consequential, special or indirect losses or damages
which the Trust or any Portfolio may incur or suffer by or as a
consequence of PFPC's or any affiliates' performance of the services
provided hereunder, whether or not the likelihood of such losses or
damages was known by PFPC or its affiliates.
15. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to
each Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser or subadviser for the Portfolio (the "Adviser")
and transmit trades to the Trust's custodian (the "Custodian") for
proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances with the Custodian, and
provide the Adviser with the beginning cash balance available for
investment purposes;
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(vi) Update the cash availability throughout the day as required by the
Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and custody
fees);
(ix) Monitor the expense accruals and notify an officer of the Trust of
any proposed adjustments;
(x) Control all disbursements and authorize such disbursements upon
Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing services
approved by the Adviser, or if such quotes are unavailable, then
obtain such prices from the Adviser, and in either case calculate
the market value of the Portfolio's investments in accordance with
procedures adopted by the Trust's Trustees and acceptable to PFPC;
(xiv) Transmit or mail a copy of the daily portfolio valuation to the
Adviser;
(xv) Compute net asset value;
(xvi) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rates, and portfolio average dollar-weighted
maturity; and
(xvii) Prepare a monthly financial statement, which will include the
following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses.
16. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect to
each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
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(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Trust statistical
data as requested on an ongoing basis;
(iv) Prepare for execution and file the Trust's Federal and state tax
returns;
(v) Prepare and file with the SEC the Trust's Annual and Semi-Annual
Reports on Form N-SAR;
(vi) Prepare and file with the SEC the Trust's annual, and semi-annual,
shareholder reports;
(vii) Assist in the preparation of registration statements and other
filings relating to the registration of Shares;
(viii) Monitor each Portfolio's status as a regulated investment company
under Sub-chapter M of the Internal Revenue Code of 1986, as
amended; and assist the Advisor in monitoring the Portfolio's
compliance with its investment policies and procedures;
(ix) Coordinate contractual relationships and communications between the
Trust and its contractual service providers;
(x) Monitor the Trust's compliance with the amounts and conditions of
each state qualification; and
(xi) Prepare and file all notices and other documents relating to the
Shares under state securities laws.
17. DURATION AND TERMINATION. This Agreement shall continue until terminated by
the Trust or by PFPC on sixty (60) days' prior written notice to the other
party.
18. CHANGE OF CONTROL. Notwithstanding any other provision of this Agreement,
in the event of an agreement to enter into a transaction that would result
in a Change of Control of the Trust's adviser or sponsor, the Trust's
ability to terminate the Agreement will be suspended from the time of such
agreement until two years after the Change of Control.
19. NOTICES. All notices and other written communications, including Written
Instructions, shall be delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device.
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If notice is sent by tested telegram, cable, telex or facsimile sending
device, it shall be deemed to have been given immediately. If notice is
sent by first-class mail, it shall be deemed to have been given three days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered. Notices shall be
addressed (a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000; (b) if to the Trust, at Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attn: Xxxxx X. Xxxxx, with a copy to Xxxxxx X. Xxxxxxxxxx, Esq., at
_______________________; or (c) if to neither of the foregoing, at such
other address as shall have been provided by like notice to the sender of
any such notice or other communication by the other party.
20. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
21. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or
PNC Bank Corp., provided that (i) PFPC gives the Trust 30 days prior
written notice of such assignment or delegation, (ii) the assignee or
delegate agrees to comply with all provisions of this Agreement, (iii) PFPC
and such assignee or delegate promptly provide such information as the
Trust may reasonably request, and respond to such questions as the Trust
may reasonably ask, relative to the assignment or delegation (including,
without limitation, the capabilities of the assignee or delegate), and (iv)
PFPC remains responsible for all of its obligations under this Agreement.
22. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the
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same instrument.
23. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
24. MISCELLANEOUS.
(a) This Agreement embodies the entire agreement and understanding between
the parties and supersedes all prior agreements and understandings
relating to the subject matter hereof. The captions in this Agreement
are included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their
construction or effect. Notwithstanding any provision hereof, the
services of PFPC are not, nor shall they be, construed as constituting
legal advice or the provision of legal services for or on behalf of
the Trust or any other person.
(b) This Agreement shall be deemed to be a contract made in Delaware and
governed by Delaware law, without regard to principles of conflicts of
law.
(c) If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
(d) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(e) The obligations assumed by the Trust under this Agreement are assumed
on behalf of each Portfolio separately, and no Portfolio shall be
liable for the obligations of any other Portfolio. Neither the
Trustees nor any of the Trust's
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shareholders, officers, employees or agents, whether past, present or
future, shall be personally liable for the obligations of the Trust or
any Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
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Title:
------------------------
XXXXXXXXX & XXXXX FUND TRUST
By:
---------------------------
Title:
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EXHIBIT A
THIS EXHIBIT A, dated as of , 1999, is Exhibit A to that certain
Administration and Accounting Services Agreement dated as of , 1999 between PFPC
Inc. and Xxxxxxxxx & Xxxxx Fund Trust.
PORTFOLIOS
[Xxxxxxxxx & Xxxxx IPO Discovery Fund]
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
Xxxxx X. Xxxxx
-------------------------------- ---------------------------------
Xxxxxx X. Xxxxxx
-------------------------------- ---------------------------------
Xxxxxx X. Xxxxxxxxxx
-------------------------------- ---------------------------------
-------------------------------- ---------------------------------
-------------------------------- ---------------------------------
-------------------------------- ---------------------------------
Dated: , 1999
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