FUND ACCOUNTING SERVICE AGREEMENT
AGREEMENT made as of the _____ day of _________, 2000 by and between TRUST
FOR INVESTMENT MANAGERS (the "Trust"), a Delaware business trust, on behalf of
the First Internet Fund (the "Fund"), a series of the Trust, and ICA FUND
SERVICES CORP., a Delaware corporation ("ICA").
WHEREAS, the Trust is an open-end management series investment company
registered with the Securities and Exchange Commission under the Investment
Company Act of 1940 (the "1940 Act"); and
WHEREAS, the Trust desires to have ICA perform for the Trust certain
services appropriate to the operations of the Fund, and ICA is willing to
furnish such services in accordance with the terms hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the Trust and ICA hereby agree as follows:
1. TERMS OF APPOINTMENT; DUTIES OF ICA
1.01. Subject to the terms and conditions set forth in this Agreement, the
Trust hereby employs and appoints ICA, and ICA agrees to act, as accounting
agent for the Fund.
1.02. ICA will perform the following services for the Fund:
(a) Timely calculate and transmit to the Fund and, if applicable, to
NASDAQ the Fund's daily net asset value and communicate such value to the
Fund and its transfer agent. All portfolio securities will be valued in
accordance with the methods that are specified by the Board of Trustees of
the Trust;
(b) Maintain and keep current all books and records of the Fund as
required by Rule 31a-1 under the 1940 Act, as such rule or any successor
rule may be amended from time to time, that are applicable to the
fulfillment of ICA's duties hereunder, as well as any other documents
necessary or advisable for compliance with applicable regulations as may be
mutually agreed to between the Trust and ICA.
1.03. In the performance of these services, ICA agrees that it shall
exercise the care and adhere to the standards that are usual and customary for
mutual fund accounting services agents.
1.04. ICA shall for all purposes herein be deemed to be an independent
contractor and shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent the Fund or the Trust in any way or otherwise
be deemed an agent of the Fund or the Trust.
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2. COMPENSATION OF ICA
In consideration of the services to be performed by ICA as set forth
herein, ICA shall be entitled to receive, and the Trust agrees to pay, the fees
as set forth in the fee schedule attached hereto as Schedule A as well as
reimbursement for all reasonable out-of-pocket expenses. ICA agrees that it
shall look only to the assets of the Fund to satisfy fees earned and expenses
incurred by ICA.
3. LIMITATION OF LIABILITY OF ICA AND INDEMNIFICATION
3.01. ICA may rely upon the advice of the Trust, or of counsel for the
Trust and upon statements of the Trust's independent accountants, brokers and
other persons reasonably believed by it in good faith to be expert in the
matters upon which they are consulted, and for any actions reasonably taken in
good faith reliance upon such statements and without negligence or misconduct,
ICA shall not be liable to anyone.
3.02. ICA shall be liable to the Trust for any losses arising out of any
act or omission in the course of its duties, arising out of its gross
negligence, misfeasance, bad faith of ICA or breach of the agreement by ICA or
disregard of ICA's obligations and duties under this agreement or the willful
violation of any applicable law or inaccurate information supplied by pricing
agents selected by ICA.
3.03. ICA and the Trust (each an "Indemnifying Party") agree to the
following indemnifications:
(a) Except as may otherwise be provided by applicable law, no
Indemnified Party (an "Indemnified Party" shall mean ICA, the Trust and
their respective shareholders, officers, directors, trustees, employees and
agents) shall be subject to, and the Indemnifying Party shall indemnify and
hold such Indemnified Party harmless from and against, any liability for
and any damages, expenses or losses incurred by reason of the inaccuracy of
information furnished to such Indemnified Party, provided that the Trust
shall not have any indemnification obligations with respect to inaccurate
information supplied by affiliates or pricing agents selected by ICA and
ICA shall not have any indemnification obligations with respect to
inaccurate information supplied by pricing agents selected by the Trust or
in circumstances where ICA has acted in accordance with the standard of
care established in Sections 1.03 or 3.02 of this Agreement.
(b) An Indemnified Party shall promptly notify the Indemnifying Party
of the assertion of a claim for which the Indemnifying Party may be
required to indemnify the Indemnified Party and shall keep the Indemnifying
Party advised with respect to all developments regarding such claim. The
Indemnifying Party shall have the option to participate in the defense of
such claim. An Indemnified Party in no case shall confess any claim or make
any compromise in any case in which the Indemnifying Party may be required
to indemnify the Indemnified Party except with the Indemnifying Party's
prior written consent.
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4. ACTIVITIES OF ICA
The services of ICA under this Agreement are not to be deemed exclusive,
and ICA shall be free to render similar services to others so long as its
services hereunder are not impaired thereby.
5. ACCOUNTS AND RECORDS
The accounts and records maintained by ICA shall be the property of the
Trust, and shall be surrendered to the Trust promptly upon request by the Trust
in the form in which such accounts and records have been maintained or preserved
(including the electronic or computerized format in which such accounts and
records have been maintained). ICA shall assist the Trust's independent
auditors, or, upon approval of the Trust, any regulatory body, in any requested
review of the Trust's accounts and records. ICA shall preserve the accounts and
records as they are required to be maintained and preserved by Rule 31a-2 under
the1940 Act.
6. CONFIDENTIALITY
ICA agrees that it will, on behalf of itself and its officers and
employees, treat all information obtained pursuant to, and all transactions
contemplated by this Agreement, and all other information germane thereto, as
confidential and not to be disclosed to any person except as may be authorized
by the Trust.
7. DURATION AND TERMINATION OF THIS AGREEMENT
This Agreement shall become effective as of the date hereof and shall
remain in force for an indefinite period, provided that both parties to this
Agreement have the option to terminate the Agreement, without penalty, upon
thirty (30) days' prior written notice.
Should the Trust exercise its right to terminate, all expenses incurred by
ICA associated with the movement of records and material will be borne by the
Trust. Such expenses will include all out-of-pocket expenses and the reasonable
cost of all time incurred to train or consult with the successor fund accounting
agent with regard to the transfer of fund accounting responsibilities.
8. AMENDMENTS TO THIS AGREEMENT
This Agreement may be amended by the parties hereto only if such amendment
is in writing and signed by both parties.
9. MERGER OF AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject matter hereof
whether oral or written.
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10. NOTICES
All notices and other communications hereunder shall be in writing, shall
be deemed to have been given when received or when sent by telex or facsimile,
and shall be given to the following addresses (or such other addresses as to
which notice is given):
To the Trust: To ICA:
Trust for Investment Managers ICA Fund Services Corp.
0000 X. Xxxxxxxxx Xxx, Xxxxx 000 0000 X. Xxxxxxxxx Xxxx, Xxxxx 000X
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TRUST FOR INVESTMENT MANAGERS ICA FUND SERVICES CORP.
on behalf of the First Internet Fund
By: By:
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Title: Title:
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