Exhibit (h)(5)
ACCOUNTING AND BOOKKEEPING AGREEMENT
This Agreement is made this ____ day of _________, 1998, by and between
Heartland Group, Inc. ("HGI"), a Maryland corporation registered under the
Investment Company Act of 1940 ("1940 Act") as an open-end management investment
company, and Heartland Advisors, Inc. ("HAI"), a Wisconsin corporation
registered under the Investment Advisers Act of 1940 as an investment adviser.
1. Appointment. HGI hereby appoints HAI to act as its agent to perform the
services described herein with respect to each series of shares of HGI (the
"Fund") identified in and beginning on the date specified in Schedule A to
this Agreement, as may be amended from time to time. HAI hereby accepts
such appointment and agrees to perform the services described herein.
2. Accounting.
(a) Pricing. For each Fund of HGI, HAI shall value all securities owned by
the Fund and other assets of the Fund, and compute the net asset value
per share of such Fund, at such time and date, and in the manner and
by such methodology as is specified in the then currently effective
prospectus and statement of additional information for such Fund, and
pursuant to such other written procedures or instructions as shall be
furnished to HAI by HGI. To the extent procedures or instructions used
to value securities or other assets of a Fund under this Agreement are
at any time inconsistent with any applicable law or regulation, HGI
shall provide HAI with written instructions for valuing such
securities or assets in a manner which HGI represents to be consistent
with applicable law and regulations.
(b) Net Income. HAI shall calculate, with such frequency as HGI shall
direct, the net income of each Fund of HGI for dividend purposes and
on a per share basis. Such calculation shall be made at such times and
dates and in such manner as HGI shall instruct HAI in writing. For
purposes of such calculation, HAI shall not be responsible for
determining whether any dividend or interest accruable to HGI is or
will be actually paid, but will accrue such dividend and interest
unless otherwise instructed by HGI.
(c) Capital Gains and Losses. HAI shall calculate gains or losses of each
Fund of HGI from the sale or other disposition of assets of that Fund
as HGI shall direct and shall calculate and arrange for payment of all
income, capital gain, and other distributions to shareholders of each
Fund.
(d) Yields and Distribution Rates. At the request of HGI, HAI shall
compute yields, distribution rates, total returns, and such other
performance information, including returns on indexes used for
comparative purposes, as the parties shall mutually agree for each
Fund of HGI for such periods and using such formulas as shall be
determined by HGI.
(e) Communication of Information. HAI shall provide HGI, HGI's transfer
agent, and such other parties as directed by HGI with the net asset
value per share, the net income per share, and yields and distribution
rates for each Fund of HGI at such time, in such manner and format,
and with such frequency as the parties shall mutually agree.
(f) Information Furnished by HGI. HGI shall furnish HAI with any and all
instructions, explanations, information, specifications, and
documentation deemed necessary by HAI in the performance of its duties
hereunder, including, without limitation, the amounts or written
formula, or both, for calculating the amounts and times of accrual of
liabilities and expenses of each Fund of HGI. HGI shall also at any
time and from time to time furnish HAI with bid, offer and/or market
values of securities owned by HGI if the same are not available to HAI
from a pricing or similar service designated by HGI for use by HAI to
value securities or other assets. HAI shall at no time be required to
commence or maintain any utilization of, or subscriptions to, any such
service, which shall be the sole responsibility and expense of HGI.
3. Recordkeeping.
(a) HAI shall, as agent for HGI, maintain and keep current and preserve
the general ledger and other accounts, books, and financial records of
HGI relating to activities and obligations under this Agreement
pursuant to provisions of rules or regulations of the Securities and
Exchange Commission under Section 31(a) of the 1940 Act (the "Rules").
(b) All records maintained and preserved by HAI pursuant to this Agreement
which HGI is required to maintain and preserve in accordance with the
Rules shall be and remain the property of HGI and shall be surrendered
to HGI promptly upon request in the form in which such records have
been maintained and preserved; provided, however, that HAI shall be
permitted to retain a copy of all such items.
(c) HAI shall make available on its premises during regular business hours
all records of HGI for reasonable audit, use, and inspection by HGI,
its agents, and any regulatory agency having authority over HGI.
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4. Instructions, Opinion of Counsel, and Signatures.
(a) At any time, HAI may request instructions regarding HGI from any duly
authorized agent of HGI, and may consult counsel for HGI or its own
counsel, in respect of any matter arising in connection with this
Agreement, and it shall not be liable for any action taken or omitted
by it in good faith in accordance with such instructions or with the
advice or opinion of such counsel. HAI shall be protected in acting
upon any such instructions, advice, or opinion, and upon any other
paper or document delivered by HGI or such counsel believed by HAI to
be genuine and to have been signed by the proper person or persons,
and HAI shall not be held to have notice of any change of authority of
any officer or agent of HGI, until receipt of written notice thereof
from HGI.
(b) HAI may receive and accept a certified copy of a vote of the Board of
Directors of HGI as conclusive evidence of (i) the authority of any
person to act in accordance with such vote or (ii) any determination
or any action by the Board of Directors pursuant to HGI's Articles of
Incorporation as described in such vote, and such vote may be
considered as in full force and effect until receipt by HAI of written
notice to the contrary.
5. Compensation. HGI shall reimburse HAI from the assets of the respective
applicable Fund of HGI for any and all out-of-pocket expenses and charges
in performing services under this Agreement and such compensation as is
provided in Schedule B to this Agreement, as amended from time to time. HAI
shall invoice HGI as soon as practicable after the end of each calendar
month, with allocation among the respective Funds and full detail, and HGI
shall promptly pay HAI the invoiced amount.
6. Ownership and Confidentiality of Records.
(a) Except as otherwise permitted by HGI, HAI agrees not to disclose any
information received from HGI to any other client of HAI or to any
other person, except its employees and agents, and shall use its best
efforts to maintain such information as confidential. Upon termination
of this Agreement, HAI shall return to HGI all records in the
possession and control of HAI related to HGI's activities, other than
HAI's own business records, it being also understood and agreed that
any programs and systems used by HAI to provide the services rendered
hereunder will not be given to HGI.
(b) Upon request, HAI shall be permitted to retain copies of all records
it requires to document the calculation of yield, total return, or the
performance of any Fund for any period during which HAI served as
investment adviser to the Fund. HAI shall be further permitted to
present such performance information to any other client of HAI or
other person in connection with its investment advisory or brokerage
businesses.
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7. Liability and Indemnification
(a) HAI shall not be liable to HGI for any action taken or thing done by
it or its employees or agents on behalf of HGI in carrying out the
terms and provisions of this Agreement if done in good faith and
without negligence or misconduct on the part of HAI, or its employees
or agents.
(b) HGI shall indemnify and hold HAI and its controlling persons, if any,
harmless from any and all claims, actions, suits, losses, costs,
damages, and expenses, including reasonable expenses for counsel,
incurred by it in connection with its acceptance of this Agreement, in
connection with any action or omission by it or its employees or
agents in the performance of its duties hereunder to HGI, or as a
result of acting upon any instruction believed by it to have been
executed by a duly authorized agent of HGI or as a result of acting
upon information provided by HGI in form and under policies agreed to
by HAI and HGI; provided, however, that (i) to the extent such claims,
actions, suits, losses, costs, damages, or expenses relate solely to
one or more Funds, such indemnification shall be only out of the
assets of that Fund or group of Funds; (ii) this indemnification shall
not apply to actions or omissions constituting negligence or
misconduct on the part of HAI or its employees or agents, including,
but not limited to, willful misfeasance, bad faith, or gross
negligence in the performance of their duties, or reckless disregard
of their obligation and duties under this Agreement; and (iii) HAI
shall give HGI prompt notice and reasonable opportunity to defend
against any such claim or action in its own name or in the name of
HAI. In any event, HGI shall not be responsible for any claim settled
or compromised, or for any confession of judgment, without its prior
written consent, which consent shall not be unreasonably withheld.
(c) HAI shall indemnify and hold harmless HGI from and against any and all
claims, demands, expenses, and liabilities which HGI may sustain or
incur arising out of, or incurred because of, the negligence or
misconduct of HAI, or its agents or contractors, or the breach by HAI
of its obligations under this Agreement, provided, however, that (i)
this indemnification shall not apply to actions or omissions
constituting negligence or misconduct on the part of HGI, or its other
agents or contractors, and (ii) HGI shall give HAI prompt notice and
reasonable opportunity to defend against any such claim or action in
its own name or in the name of HGI. In any event, HAI shall not be
responsible for any claim settled or compromised, or for any
confession of judgment, without its prior written consent, which
consent shall not be unreasonably withheld.
8. Further Assurances. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
9. Dual Interests. It is understood and agreed that some person or persons may
be directors, officers, or shareholders of both HGI and HAI, and that the
existence of
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any such dual interest shall not affect the validity hereof or of any
transaction hereunder except as otherwise provided by specific provision of
applicable law.
10. Amendment and Termination. This Agreement may be modified or amended from
time to time, or terminated, by mutual agreement between the parties hereto
and may be terminated by at least one hundred eighty (180) days' written
notice given by one party to the other. Upon termination hereof, HGI shall
pay to HAI such compensation as may be due from it as of the date of such
termination, and shall reimburse HAI for its costs, expenses, and
disbursements payable under this Agreement to such date. In the event that,
in connection with termination, a successor to any of the duties or
responsibilities of HAI hereunder is designated by HGI by written notice to
HAI, HAI shall promptly upon such termination and at the expense of HGI,
deliver to such successor all relevant books, records, and data established
or maintained by HAI under this Agreement and shall cooperate in the
transfer of such duties and responsibilities, including provision, at the
expense of HGI, for assistance from personnel of HAI in the establishment
of books, records, and other data by such successor.
11. Assignment. Any interest of HAI under this Agreement shall not be assigned
or transferred either voluntarily or involuntarily, by operation of law or
otherwise, without prior written notice to HGI.
12. Notice. Any notice under this Agreement shall be in writing, addressed and
delivered or sent by registered mail, postage prepaid to the other party at
such address as such other party may designate for the receipt of such
notices. Until further notice, it is agreed that the address of both HGI
and HAI is 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
Attention: General Counsel.
13. Allocation of Liability. In connection with the discharge and claim of any
claim made by HAI against HGI involving more than one Fund, HGI shall have
the exclusive right to determine the appropriate allocation of liability
for any such claim between or among the Funds.
14. Headings. Headings are placed herein for convenience of reference only and
shall not be taken as part hereof or control or affect the meaning,
construction, or effect of this Agreement.
15. Governing Law. This Agreement shall be governed by the laws of the State of
Wisconsin.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above written.
HEARTLAND GROUP, INC.
By:
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Xxxxxxx X. Xxxxxxxxx
President
Attest:
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Xxxx X. Xxxxxxxxxxxx
Secretary
HEARTLAND ADVISORS, INC.
By:
-------------------------------
Xxxxxxx X. Xxxxxxxxx
President
Attest:
-------------------------------
Xxxx X. Xxxxxxxxxxxx
Secretary
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ACCOUNTING AND BOOKKEEPING AGREEMENT
SCHEDULE A
The Funds of Heartland Group, Inc. currently subject to this Agreement are as
follows:
Fund Effective Date
---- --------------
Heartland Taxable Municipal Fund
----------------------
Dated:
----------------
HEARTLAND GROUP, INC.
By:
-------------------------------
Xxxxxxx X. Xxxxxxxxx
President
Attest:
-------------------------------
Xxxx X. Xxxxxxxxxxxx
Secretary
HEARTLAND ADVISORS, INC.
By:
-------------------------------
Xxxxxxx X. Xxxxxxxxx
President
Attest:
-------------------------------
Xxxx X. Xxxxxxxxxxxx
Secretary
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ACCOUNTING AND BOOKKEEPING AGREEMENT
SCHEDULE B
Each of the Funds of Heartland Group, Inc. currently subject to this Agreement
is listed in Schedule I to this Agreement and shall pay to HAI an annual fee of
$______ plus .____% of average daily net assets in excess of $__ million.
Dated:
----------------
HEARTLAND GROUP, INC.
By:
-------------------------------
Xxxxxxx X. Xxxxxxxxx
President
Attest:
-------------------------------
Xxxx X. Xxxxxxxxxxxx
Secretary
HEARTLAND ADVISORS, INC.
By:
-------------------------------
Xxxxxxx X. Xxxxxxxxx
President
Attest:
-------------------------------
Xxxx X. Xxxxxxxxxxxx
Secretary
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