Exhibit 99.B(h)(2)
XXXXX FARGO FUNDS TRUST
FUND ACCOUNTING AGREEMENT
September 17, 1999
AGREEMENT made as of the 17th day of September, 1999, by and between
Xxxxx Fargo Funds Trust, a business trust organized under the laws of the State
of Delaware, with its principal office and place of business at 000 Xxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 (the "Trust"), and Forum Accounting
Services, LLC ("Forum") a Delaware limited liability company with its principal
office and place of business at Xxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000.
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end management investment company
and may issue its shares of beneficial interest (the "Shares"), in separate
series and classes; and
WHEREAS, the Trust offers shares in various series as listed in
Appendix A hereto (each such series, together with all other series subsequently
established by the Trust and subject to this Agreement in accordance with
Section 6, being herein referred to as a "Fund," and collectively as the
"Funds") and the Trust offers shares of various classes of each Fund as listed
in Appendix A hereto (each such class together with all other classes
subsequently established by the Trust in a Fund being herein referred to as a
"Class," and collectively as the "Classes");
WHEREAS, the Trust desires that Forum perform certain fund accounting
services for each Fund and Class thereof and Forum is willing to provide those
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Trust and Forum hereby agree as follows:
SECTION 1. APPOINTMENT
The Trust hereby appoints Forum, and Forum hereby agrees, to act as
fund accountant of the Trust for the period and on the terms set forth in this
Agreement. In connection therewith, the Trust has delivered to Forum copies of
(i) the Trust's Trust Instrument and, if applicable, Bylaws (collectively, as
amended from time to time, "Organic Documents"), (ii) the Trust's Registration
Statement and all amendments thereto filed with the U.S. Securities and Exchange
Commission ("SEC") pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), or the 1940 Act (the "Registration Statement"), (iii) the
Trust's current Prospectus and Statement of Additional Information of each Fund
(collectively, as currently in effect and as amended or supplemented, the
"Prospectus") and (iv) all procedures adopted by the Trust with respect to the
Funds (e.g., repurchase agreement procedures), and shall promptly furnish Forum
with all amendments of or supplements to the foregoing. The Trust shall deliver
to Forum a certified copy of the resolution of the Board of Trustees of the
Trust (the "Board") appointing Forum and authorizing the execution and delivery
of this Agreement.
SECTION 2. DUTIES OF FORUM
(a) Forum and Xxxxx Fargo Bank, N.A., the Trust's administrator
(collectively with its agents, the "Administrator"), may from time to time adopt
such procedures as they agree upon to implement the terms of this Section. With
respect to each Fund, Forum shall perform the following services:
(i) calculate the net asset value per share ("NAV") with the
frequency prescribed in each Fund's then-current Prospectus;
(ii) calculate each item of income, expense, deduction, credit, gain
and loss, if any, as required by the Trust and in conformance with
generally accepted accounting practice ("GAAP"), the SEC's Regulation
S-X (or any successor regulation) and the Internal Revenue Code of
1986, as amended (or any successor laws)(the "Code");
(iii) Maintain each Fund's general ledger and record all income,
gross expenses, capital share activity and security transactions of
each Fund;
(iv) calculate the yield, effective yield, tax equivalent yield and
total return for each Fund, and each Class thereof, as applicable, and
such other measure of performance as may be agreed upon between the
parties hereto;
(v) provide the Trust and such other persons as the Administrator
may direct with the following reports (A) a current security position
report, (B) a summary report of transactions and pending maturities
(including the principal, cost, and accrued interest on each portfolio
security in maturity date order), and (C) a current cash position and
projection report;
(vi) prepare and record, as of each time when the net asset value of
a Fund is calculated or as otherwise directed by the Trust, either (A)
a valuation of the assets of the Fund (based upon the use of outside
services normally used and contracted for this purpose by Forum in the
case of securities for which information and market price or yield
quotations are readily available and based upon evaluations conducted
in accordance with the Trust's instructions in the case of all other
assets) or (B) a calculation confirming that the market value of the
Fund's assets does not deviate from the amortized cost value of those
assets by more than a specified percentage;
(vii) make such adjustments over such periods as the Administrator
deems necessary to reflect over-accruals or under-accruals of
estimated expenses or income;
(viii) request any necessary information from the Administrator and
the Trust's transfer agent and distributor and prepare the Trust's
Form N-SAR;
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(ix) provide appropriate records to assist the Trust's independent
accountants and, upon approval of the Trust or the Administrator, any
regulatory body in any requested review of the Trust's books and
records maintained by Forum;
(x) prepare the Funds' semi-annual financial statements to the
Trust's shareholders;
(xi) file the Funds' semi-annual financial statements with the SEC
or ensure that the Funds' semi-annual financial statements are filed
with the SEC;
(xii) provide information typically supplied in the investment
company industry to companies that track or report price, performance
or other information with respect to investment companies;
(xiii) provide the Trust or the Administrator with the data requested
by the Trust or the Administrator that is required to update the
Registration Statement;
(xiv) provide the Trust or independent accountants with all
information requested with respect to the preparation of the Trust's
income, excise and other tax returns;
(xv) prepare, or prepare, execute and file all Federal income and
excise tax returns and state income and other tax returns, including
any extensions or amendments, each as agreed between the Trust and
Forum;
(xvi) produce quarterly compliance reports for investment advisers
to the Trust and the Board and provide information to the
Administrator, investment advisers to the Trust and other appropriate
persons with respect to questions of Fund compliance;
(xvii) determine the amount of distributions to shareholders as
necessary to, among other things, maintain the qualification of each
Fund as a regulated investment company under the Code, and prepare and
distribute to appropriate parties notices announcing the declaration
of distributions to shareholders;
(xviii) transmit to and receive from each Fund's transfer agent
appropriate data to reconcile daily Shares outstanding and other data
with the transfer agent;
(xix) periodically reconcile all appropriate data with each Fund's
custodian;
(xx) verify investment trade tickets when received from an
investment adviser and maintain individual ledgers and historical tax
lots for each security;
(xxi) report to the Trust and the Administrator within 15 days after
the end of each calendar month, Forum's compliance for the prior month
with the written service level standards agreed upon from time to time
by the Trust and Forum (the "Service Standards"). The initial Service
Standards are attached as Appendix B hereto; and
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(xxii) perform such other recordkeeping, reporting and other tasks as
may be specified from time to time in the procedures adopted by the
Board pursuant to mutually acceptable compensation and implementation
agreements.
(b) Forum shall prepare and maintain on behalf of the Trust the
following books and records of each Fund, and each Class thereof, pursuant to
Rule 31a-1 under the 1940 Act (the "Rule"):
(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, as required by
subsection (b)(2) of the Rule (but not including the ledgers required
by subsection (b)(2)(iv) of the Rule);
(iii) A record of each brokerage order given by or on behalf of the
Trust for, or in connection with, the purchase or sale of securities,
whether executed or not, and all other portfolio purchases or sales,
as required by subsections (b)(5) and (b)(6) of the Rule;
(iv) A record of all options, if any, in which the Trust has any
direct or indirect interest or which the Trust has granted or
guaranteed and a record of any contractual commitments to purchase,
sell, receive or deliver any property, as required by subsection
(b)(7) of the Rule;
(v) A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the Rule;
and
(vi) Other records required by the Rule or any successor rule or
pursuant to interpretations thereof to be kept by open-end management
investment companies, but limited to those provisions of the Rule
applicable to portfolio transactions and as agreed upon between the
parties hereto.
(c) The books and records prepared and maintained pursuant to
Section 2(b) shall be prepared and maintained in such form, for such periods and
in such locations as may be required by the 1940 Act. The books and records
pertaining to the Trust that are in possession of Forum shall be the property of
the Trust. The Trust, the Administrator, or the Trust's or the Administrator's
authorized representatives, shall have access to such books and records at all
times during Forum's normal business hours. Upon the reasonable request of the
Trust or the Administrator, copies of any such books and records shall be
provided promptly by Forum to the Trust or the Trust's authorized
representatives at the Trust's expense. In the event the Trust designates a
successor that shall assume any of Forum's obligations hereunder, Forum shall,
at the expense and direction of the Trust, transfer to such successor all
relevant books, records and other data established or maintained by Forum under
this Agreement.
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(d) Forum shall provide the Trust and, subject to agreement to be
bound by the following sentence, the Administrator and any other service
provider to the Trust specified by the Trust, nightly snapshots of such data and
information from Forum's fund accounting system as may be agreed to in writing
from time to time. The Trust acknowledges that the databases, computer
programs, screen formats, report formats, interactive design techniques, and
documentation manuals maintained by Forum on databases under the control and
ownership of Forum or a third party hired by Forum constitute copyrighted, trade
secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to Forum or the third party. The Trust
agrees to treat all Proprietary Information as proprietary to Forum and further
agrees that it shall not divulge any Proprietary Information to any person or
organization except as may be provided under this Agreement.
(e) Forum shall implement the accounting practices and procedures
approved by the Board as soon as practical following receipt of written notice
thereof, subject to Section 2(a)(xxi).
(f) Nothing contained herein shall be construed to require Forum to
perform any service that could cause Forum to be deemed an investment adviser
for purposes of the 1940 Act or the Investment Advisers Act of 1940, as amended,
or that could cause a Fund to act in contravention of the Fund's Prospectus or
any provision of the 1940 Act. Except as otherwise specifically provided
herein, the Trust assumes all responsibility for ensuring that the Trust
complies with all applicable requirements of the Securities Act, the 1940 Act
and any laws, rules and regulations of governmental authorities with
jurisdiction over the Trust. All references to any law in this Agreement shall
be deemed to include reference to the applicable rules and regulations
promulgated under authority of the law and all official interpretations of such
law or rules or regulations.
SECTION 3. STANDARD OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION
(a) Forum shall be under no duty to take any action except as
specifically set forth herein or as may be specifically agreed to by Forum in
writing. Forum shall use its best judgment and efforts in rendering the
services described in this Agreement. Forum shall not be liable to the Trust or
any of the Trust's shareholders for any action or inaction of Forum relating to
any event whatsoever in the absence of bad faith, willful misfeasance or
negligence in the performance or disregard of Forum's duties or obligations
under this Agreement.
(b) The Trust agrees to indemnify and hold harmless Forum, its
employees, agents, directors, officers and managers and any person who controls
Forum within the meaning of section 15 of the Securities Act or section 20 of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), ("Forum
Indemnitees"), against and from any and all claims, demands, actions, suits,
judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees
and other expenses of every nature and character arising out of or in any way
related to Forum's actions taken or failures to act with respect to a Fund that
are consistent with the standard of care set forth in Section 3(a) or based, if
applicable, on good faith reliance upon an
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item described in Section 3(d) (a "Forum Claim"). The Trust shall not be
required to indemnify any Forum Indemnitee if, prior to confessing any Forum
Claim against the Forum Indemnitee, Forum or the Forum Indemnitee does not give
the Trust written notice of and reasonable opportunity to defend against the
Forum Claim in its own name or in the name of the Forum Indemnitee.
(c) Forum agrees to indemnify and hold harmless the Trust, its
employees, agents, directors, officers and managers and any person who controls
the Trust within the meaning of section 15 of the Securities Act or section 20
of the 1934 Act ("Trust Indemnitees"), against and from any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, reasonable counsel fees and other expenses of every nature and
character arising out of or in any way related to (i) Forum's actions taken or
failures to act with respect to a Fund that are not consistent with the standard
of care set forth in Section 3(a) or based, if applicable, on good faith
reliance upon an item described in Section 3(d), or (ii) any breach of Forum's
representation set forth in Section 13 (a "Trust Claim"). Forum shall not be
required to indemnify any Trust Indemnitee if, prior to confessing any Trust
Claim against the Trust Indemnitee, the Trust or the Trust Indemnitee does not
give Forum written notice of and reasonable opportunity to defend against the
Trust Claim in its own name or in the name of the Trust Indemnitee.]
(d) A Forum Indemnitee shall not be liable for any action taken or
failure to act in good faith reliance upon:
(i) the advice of the Trust or of reputable counsel, who may be
counsel to the Trust or counsel to Forum, or the advice of in-house
counsel of the Administrator or its affiliates;
(ii) any oral instruction which it receives and which it reasonably
believes in good faith was transmitted by a person or persons
authorized by the Board to give such oral instruction. Provided that
Forum has such reasonable belief, Forum shall have no duty or
obligation to make any inquiry or effort of certification of such oral
instruction;
(iii) any written instruction or certified copy of any resolution of
the Board, and Forum may rely upon the genuineness of any such
document or copy thereof reasonably believed in good faith by Forum to
have been validly executed; or
(iv) any signature, instruction, request, letter of transmittal,
certificate, opinion of counsel, statement, instrument, report,
notice, consent, order, or other document reasonably believed in good
faith by Forum to be genuine and to have been signed or presented by
the Trust or other proper party or parties;
and no Forum Indemnitee shall be under any duty or obligation to inquire into
the validity or invalidity or authority or lack thereof of any statement, oral
or written instruction, resolution, signature, request, letter of transmittal,
certificate, opinion of counsel, instrument, report, notice, consent, order, or
any other document or instrument which Forum reasonably believes in good faith
to be genuine.
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(e) Forum shall not be liable for the errors of other service
providers to the Trust, including the errors of pricing services (other than to
pursue all reasonable claims against the pricing service based on the pricing
services' standard contracts entered into by Forum) and errors in information
provided by an investment adviser (including prices and pricing formulas and the
untimely transmission of trade information), custodian or transfer agent to the
Trust.
(f) Forum shall reimburse each applicable Fund for any net losses to
the Fund during each NAV Error Period resulting from an NAV Difference that is
at least $0.01 per Fund share but that, as a percentage of Recalculated NAV of
such Fund, is less than 1/2 of 1%. Forum shall reimburse the Fund on its own
behalf and on behalf of each Fund shareholder for any losses experienced by the
Fund or any Fund shareholder, as applicable, during each NAV Error Period
resulting from an NAV Difference that is at least $0.01 per Fund share and that,
as a percentage of Recalculated NAV of such Fund, is at least 1/2 of 1%;
provided, however, that Forum shall not be responsible for reimbursing any Fund
with respect to any shareholder that experiences a loss during any NAV Error
Period of less than $10.
(g) For purposes of this Agreement, (i) the NAV Difference shall mean
the difference between the NAV at which a shareholder purchase or redemption
should have been effected ("Recalculated NAV") and the NAV at which the purchase
or redemption is effected, (ii) NAV Error Period shall mean any Fund business
day or series of two or more consecutive Fund business days during which an NAV
Difference of $0.01 per Fund share or more exists, (iii) NAV Differences and any
Forum liability therefrom are to be calculated each time a Fund's (or Class's)
NAV is calculated, (iv) in calculating any amount for which Forum would
otherwise be liable under this Agreement for a particular NAV error, Fund (or
Class) losses and gains shall be netted and (v) in calculating any amount for
which Forum would otherwise be liable under this Agreement for a particular NAV
error that continues for a period covering more than one NAV determination, Fund
(or Class) losses and gains for the period shall be netted.
SECTION 4. COMPENSATION AND EXPENSES
(a) In consideration of the services provided by Forum pursuant to
this Agreement, the Trust shall pay Forum, with respect to each Fund, the fees
set forth in Clause (i) of Appendix C hereto. In consideration of the services
provided by Forum to begin the operations of a new Fund, the Trust shall pay
Forum, with respect to each Fund, the fees set forth in clause (ii) of Appendix
C hereto. In consideration of additional services provided by Forum to perform
certain functions, the Trust shall pay Forum, with respect to each Fund the fees
set forth in clause (iii) of Appendix C hereto. Nothing in this Agreement shall
require Forum to perform any of the services listed in Section 2(a)(xv) and
clause (iii) of Appendix C hereto, as such services may be performed by the
Fund's independent accountant if appropriate in the judgment of Forum.
All fees payable hereunder shall be accrued daily by the Trust. The
fees payable for the services listed in clauses (i) and (iii) of Appendix C
hereto shall be payable monthly in advance on the tenth Fund business day of
each calendar month for services to be performed during that month. The fees
payable for the services listed in clause (ii) of Appendix C hereto shall be
payable monthly in arrears on the fifth Fund business day of the calendar month
following the
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month in which a Fund commences operations. If fees payable for the services
listed in clause (i) begin to accrue in the middle of a month or if this
Agreement terminates before the end of any month, all fees for the period from
the date on which such accrual begins to the end of that month or from the
beginning of that month to the date of termination, as the case may be, shall be
prorated according to the proportion that the period bears to the full month in
which the commencement or termination occurs. Upon the termination of this
Agreement with respect to a Fund, the Trust shall pay to Forum such compensation
as shall be payable prior to the effective date of termination.
(b) In connection with the services provided by Forum pursuant to this
Agreement, the Trust, on behalf of each Fund, agrees to reimburse Forum for the
expenses set forth in Clause (iv) of Appendix C hereto. Reimbursements shall be
payable as incurred. In addition, the Trust, on behalf of the applicable Fund,
shall reimburse Forum for all reasonably incurred expenses and employee time (at
150% of salary) attributable to any review of the Trust's accounts and records
by the Trust's independent accountants or any regulatory body outside of routine
and normal periodic reviews. Should the Trust exercise its right to terminate
this Agreement, the Trust, on behalf of the applicable Fund, shall reimburse
Forum for all reasonably incurred out-of-pocket expenses and employee time (at
150% of salary) associated with the copying and movement of records and material
to any successor person and providing assistance to any successor person in the
establishment of the accounts and records necessary to carry out the successor's
responsibilities.
(c) Forum may, with respect to questions of law relating to its
services hereunder, apply to and obtain the advice and opinion of counsel to the
Trust or counsel to Forum; provided, however, that Forum shall in all cases
first reasonably attempt to apply to and obtain the advice and opinion of in-
house counsel to the Administrator. In the event that Forum is unable to
contact in-house counsel to the Administrator, it shall nonetheless inform a
Vice President or more senior person at the Administrator of the matters for
which it intends to seek advice and opinion. The costs of any such advice or
opinion shall be borne by the Trust.
SECTION 5. EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT
(a) This Agreement shall become effective with respect to each Fund or
Class on the later of September 17, 1999 or the date of the commencement of
operations of the Fund or Class. Upon effectiveness of this Agreement, it shall
supersede all previous agreements between the parties hereto covering the
subject matter hereof insofar as any such agreement may have been deemed to
relate to the Funds.
(b) This Agreement shall continue in effect with respect to each Fund
until September 30, 2002 (the "Initial Term") and shall continue in effect
thereafter until terminated.
(c) Notwithstanding Section 5(b), this Agreement may be terminated
with respect to any or all Funds at any time after the expiration of the Initial
Term, without the payment of any
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penalty (i) by the Board on 60 days' written notice to Forum or (ii) by Forum on
60 days' written notice to the Trust.
(d) Notwithstanding Section 5(b), this Agreement may be terminated
by either party hereto at any time without notice, whether prior to or after the
expiration of the Initial Term, if:
(i) the other party breaches any material provision of this
Agreement, the terminating party has provided written notice of such breach
to the breaching party and the breaching party has not cured the breach
within 30 days of receipt of such notice; provided that such termination
notice shall not be given more than 30 days after the breaching party has
cured the breach;
(ii) the other party becomes the subject of any federal or state
bankruptcy proceeding that is not dismissed within 60 days after the
initiation of such proceeding; provided that such termination shall not
occur more than 60 days after the dismissal of such proceeding; or
(iii) the other party (or in the case of Forum, the Administrator) is
convicted of corporate criminal activity.
(e) Notwithstanding Section 5(b), this Agreement may be terminated
by the Trust at any time, whether prior to or after the expiration of the
Initial Term, if:
(i) Forum fails to meet or exceed [ ]% of the Service Standards:
(A) in any three consecutive months; or
(B) in any six months during any consecutive period of twelve
months; or
(ii) the average cumulative Service Level Percentage (as defined
below) is less than [ ]% in any consecutive period of six months.
Compliance with the Service Standards shall be computed as a fraction, the
numerator of which shall be the number of Service Standard criteria that were
met or exceeded in the month and the denominator of which shall be the number of
Service Standard criteria applicable in such month. The Service level
Percentage shall mean such fraction expressed as a percentage.
Nothing in this paragraph (e) shall in any way diminish the Trust's right to
terminate this Agreement in the event of a breach of a material provision of
this Agreement by Forum pursuant to Section 5(d).
(f) Notwithstanding Section 5(b), this Agreement may be terminated
by Forum at any time, whether prior to or after the expiration of the Initial
Term, without the payment of any penalty on 180 days' written notice to the
Trust.
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(g) The provisions of Sections 2(c), 3, 4, 5(g), 5(h), 7, 8, 9(b), 12,
13 and 14 shall survive any termination of this Agreement.
(h) This Agreement and the rights and duties under this Agreement
otherwise shall not be assignable by either Forum or the Trust except by the
specific written consent of the other party. All terms and provisions of this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the respective successors and assigns of the parties hereto.
SECTION 6. ADDITIONAL FUNDS AND CLASSES
In the event that the Trust establishes one or more series of Shares
or one or more classes of Shares after the effectiveness of this Agreement, such
series of Shares or classes of Shares, as the case may be, shall become Funds
and Classes under this Agreement; provided, that such series shall not become
Series hereunder if the Board reasonably determines that Forum is unable to
perform the services.
SECTION 7. CONFIDENTIALITY
Forum agrees to treat all records and other information related to the
Trust as proprietary information of the Trust and, on behalf of itself and its
employees, to keep confidential all such information, except that Forum may
(a) prepare or assist in the preparation of periodic reports to
shareholders and regulatory bodies such as the SEC;
(b) provide information typically supplied in the investment company
industry to companies that track or report price, performance or other
information regarding investment companies; and
(c) release such other information as approved in writing by the
Trust, which approval shall not be unreasonably withheld and may not be withheld
where Forum is advised by reputable counsel that it may be exposed to civil or
criminal contempt proceedings for failure to release the information (provided,
however, that Forum shall seek the approval of the Trust as promptly as possible
so as to enable the Trust to pursue such legal or other action as it may desire
to prevent the release of such information) or when so requested by the Trust.
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SECTION 8. FORCE MAJEURE
Forum shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdowns, flood or
catastrophe, acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
SECTION 9. ACTIVITIES OF FORUM
(a) Except to the extent necessary to perform Forum's obligations
under this Agreement, nothing herein shall be deemed to limit or restrict
Forum's right, or the right of any of Forum's managers, officers or employees
who also may be a trustee, officer or employee of the Trust, or persons who are
otherwise affiliated persons of the Trust, to engage in any other business or to
devote time and attention to the management or other aspects of any other
business, whether of a similar or dissimilar nature, or to render services of
any kind to any other corporation, trust, firm, individual or association.
(b) Forum may subcontract any or all of its functions or
responsibilities pursuant to this Agreement to one or more affiliated persons
who agree to comply with the terms of this Agreement; provided, that any such
subcontracting shall not relieve Forum of its responsibilities hereunder. Forum
shall be responsible for the acts and omissions of any such person to the same
extent as if Forum had done such acts or made such omissions itself. Forum may
pay those persons for their services, but no such payment will increase Forum's
compensation or reimbursement of expenses from the Trust.
SECTION 10. COOPERATION WITH INDEPENDENT ACCOUNTANTS
Forum shall cooperate, if applicable, with each Fund's independent
public accountants and shall take reasonable action to make all necessary
information available to the accountants for the performance of the accountants'
duties.
SECTION 11. SERVICE DAYS
Nothing contained in this Agreement is intended to or shall require
Forum, in any capacity under this Agreement, to perform any functions or duties
on any day other than a business day of the Trust or of a Fund. Functions or
duties normally scheduled to be performed on any day which is not a business day
of the Trust or of a Fund shall be performed on, and as of, the next business
day, unless otherwise required by law.
SECTION 12. LIMITATION OF SHAREHOLDER AND TRUSTEE LIABILITY
The trustees of the Trust and the shareholders of each Fund shall not
be liable for any obligations of the Trust or of the Funds under this Agreement,
and Forum agrees that, in
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asserting any rights or claims under this Agreement, it shall look only to the
assets and property of the Trust or the Fund to which Forum's rights or claims
relate in settlement of such rights or claims, and not to the trustees of the
Trust or the shareholders of the Funds.
SECTION 13. YEAR 2000
Forum confirms that it has taken all reasonable business steps to
ensure that any system or software used in the operation of its business that is
an any way related to the services provided herein:
(i) manages and manipulates data involving all dates from the 20th
and 21st centuries without functional or data abnormality related to such
dates;
(ii) has user interfaces and data fields formatted to distinguish
between dates from the 20th and 21st centuries; and
(iii) represents all data to include indications of the millennium,
century, and decade, as well as the actual year.
SECTION 14. MISCELLANEOUS
(a) Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement; provided,
however, that any damages suffered by the Trust by virtue of the loss by any
Fund of its status as a registered investment company under the 1940 Act shall
in no circumstances be treated as consequential damages for purposes of this
Agreement; provided, further, that the foregoing proviso shall not create any
implication that, in the absence of such proviso, consequential damages would
include any damages of the type or nature referred to therein.
(b) Except for Appendix A to add new Funds and Classes in
accordance with Section 6, no provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly authorized and
executed by both parties hereto.
(c) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware.
(d) 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.
(e) This Agreement may be executed by the parties hereto on any
number of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
(f) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered
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severable and not be affected, and the rights and obligations of the parties
shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
(g) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(h) Notices, requests, instructions and communications received by
the parties at their respective principal places of business, or at such other
address as a party may have designated in writing, shall be deemed to have been
properly given.
(i) Notwithstanding any other provision of this Agreement, the
parties agree that the assets and liabilities of each Fund of the Trust are
separate and distinct from the assets and liabilities of each other Fund and
that no Fund shall be liable or shall be charged for any debt, obligation or
liability of any other Fund, whether arising under this Agreement or otherwise.
(j) No affiliated person, employee, agent, director, officer or
manager of Forum shall be liable at law or in equity for Forum's obligations
under this Agreement.
(k) Each of the undersigned warrants and represents that they have
full power and authority to sign this Agreement on behalf of the party indicated
and that their signature will bind the party indicated to the terms hereof and
each party hereto warrants and represents that this Agreement, when executed and
delivered, will constitute a legal, valid and binding obligation of the party,
enforceable against the party 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.
(l) The terms "vote of a majority of the outstanding voting
securities," "interested person" and "affiliated person" shall have the meanings
ascribed thereto in the 1940 Act.
-13-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
XXXXX FARGO FUNDS TRUST
By:____________________________
[Name]
President
FORUM ACCOUNTING SERVICES, LLC
By:____________________________
Xxxxxx X. Xxxx
Director
-14-
XXXXX FARGO FUNDS TRUST
FUND ACCOUNTING AGREEMENT
Appendix A
Funds and Classes of the Trust Covered by this Agreement
as of September 17, 1999
--------------------------------------------------------------
Xxxxx Fargo
Funds Trust Funds
--------------------------------------------------------------
1 AGGRESSIVE BALANCED EQUITY
Institutional Class
--------------------------------------------------------------
2 ARIZONA TAX-FREE FUND
Class A
Class B
Institutional Class
--------------------------------------------------------------
3 ASSET ALLOCATION FUND
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
4 CALIFORNIA TAX-FREE BOND FUND
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
5 CALIFORNIA TAX-FREE INCOME FUND
Class A
Institutional Class
--------------------------------------------------------------
6 CALIFORNIA TAX-FREE MONEY MARKET FUND
Class A
Service Class
--------------------------------------------------------------
7 CALIFORNIA TAX-FREE MONEY MARKET TRUST
--------------------------------------------------------------
8 CASH INVESTMENT MONEY MARKET FUND
Institutional Class
Service Class
--------------------------------------------------------------
9 Colorado Tax-Free Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
10 Corporate Bond Fund
Class A
Class B
Class C
--------------------------------------------------------------
11 Disciplined Growth Fund
--------------------------------------------------------------
12 Diversified Bond Fund
Institutional Class
--------------------------------------------------------------
--------------------------------------------------------------
Xxxxx Fargo
Funds Trust Funds
--------------------------------------------------------------
13 Diversified Equity Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
14 Diversified Small Cap Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
15 Equity Index Fund
Class A
Class B
Class O
--------------------------------------------------------------
16 Equity Value Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
17 Government Money Market Fund
Class A
Service Class
--------------------------------------------------------------
18 Growth Balanced Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
19 Growth Equity Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
20 Growth Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
21 Income Equity Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
22 Income Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
23 Income Plus Fund
Class A
Class B
Class C
--------------------------------------------------------------
--------------------------------------------------------------
Xxxxx Fargo
Funds Trust Funds
--------------------------------------------------------------
24 Index Allocation Fund
Class A
Class B
Class C
--------------------------------------------------------------
25 Index Fund
Class I
--------------------------------------------------------------
26 Intermediate Government Income Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
27 International Equity Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
28 International Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
29 Large Company Growth Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
30 LifePath Opportunity Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
31 LifePath 2010 Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
32 LifePath 2020 Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
33 LifePath 2030 Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
34 LifePath 2040 Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
--------------------------------------------------------------
Xxxxx Fargo
Funds Trust Funds
--------------------------------------------------------------
35. Limited Term Government Income Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
36. Limited Term Tax-Free Fund
Institutional Class
--------------------------------------------------------------
37. Minnesota Intermediate Term Tax-Free Fund
Institutional Class
--------------------------------------------------------------
38. Minnesota Tax-Free Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
39. Moderate Balanced Fund
Institutional Class
--------------------------------------------------------------
40. Money Market Fund
Class A
Class B
--------------------------------------------------------------
41. Money Market Trust
--------------------------------------------------------------
42. National Tax-Free Institutional Money Market Fund
Institutional Class
Service Class
--------------------------------------------------------------
43. National Tax-Free Money Market Fund
Class A
--------------------------------------------------------------
44. National Tax-Free Money Market Trust
--------------------------------------------------------------
45. Oregon Tax-Free Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
46. Overland Express Sweep Fund
--------------------------------------------------------------
47. Prime Investment Money Market Fund
Service Class
--------------------------------------------------------------
48. Small Cap Fund
Class A
Class B
Class C
--------------------------------------------------------------
49. Institutional Class Small Cap Opportunities Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
50. Small Cap Value Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
51. Small Company Growth Fund
--------------------------------------------------------------
52. Stable Income Fund
Class A
Class B
Institutional Class
--------------------------------------------------------------
53. Strategic Income Fund
Institutional Class
--------------------------------------------------------------
--------------------------------------------------------------
Xxxxx Fargo
Funds Trust Funds
--------------------------------------------------------------
54. Tax-Free Income Fund
Class A
Class B
Class C
Institutional Class
--------------------------------------------------------------
55. 100% Treasury Money Market Fund
Class A
Service Class
--------------------------------------------------------------
56. Treasury Plus Institutional Money Market Fund
Institutional Class
Service Class
--------------------------------------------------------------
57. Treasury Plus Money Market Fund
Class A
--------------------------------------------------------------
58. Variable Rate Government Fund
Class A
--------------------------------------------------------------
59. Wealthbuilder II Growth Portfolio
--------------------------------------------------------------
60. Wealthbuilder II Growth and Income Portfolio
--------------------------------------------------------------
61. Wealthbuilder II Growth Balanced Portfolio
--------------------------------------------------------------
Approved by the Board of Trustees: March 26, 1999
XXXXX FARGO FUNDS TRUST
FUND ACCOUNTING AGREEMENT
Appendix B
Service Standards
as of September 17, 1999
XXXXX FARGO FUNDS TRUST
FUND ACCOUNTING AGREEMENT
Appendix C
Fees and Expenses
as of September 17, 1999
[(i) -(iii) FEES]
(iv) Out-Of-Pocket and Related Expenses
The Trust, on behalf of the applicable Fund, shall reimburse Forum for all
out-of-pocket and ancillary expenses reasonably incurred in providing the
services described in the Fund Accounting Agreement, including but not limited
to the cost of (or appropriate share of the cost of): (i) pricing, paydown,
corporate action, credit and other reporting services, (ii) taxes, (iii) postage
and delivery services, (iv) communications services, (v) electronic or facsimile
transmission services, (vi) reproduction, (vii) printing and distributing
financial statements, (viii) microfilm, microfiche and other storage medium and
(ix) Trust record storage and retention fees. In addition, any other expenses
incurred by Forum at the request or with the consent of the Trust, will be
reimbursed by the Trust on behalf of the applicable Fund.
