ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of October 28, 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) "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.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(h) "Shares" means the shares of beneficial interest of any series or
class of the Trust.
(i) "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;
(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;
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(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 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
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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 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
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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 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:
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(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 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,
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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, 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
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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 (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
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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;
(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
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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;
(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
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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 the Portfolio's status as a regulated investment company
under Sub-chapter M of the Internal Revenue Code of 1986, as
amended, and assist the Adviser 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 for two years from
the date hereof and continuously thereafter until terminated by the Trust
or by PFPC on sixty (60) days' prior written notice to the other party.
During the term of this Agreement, either party may terminate this
Agreement upon written notice if the other party materially breaches this
Agreement and fails to cure such breach within thirty (30) days following
receipt of written notice of breach.
18. NOTICES. All notices and other written communications, including Written
Instructions, shall be delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device. 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
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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
Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000; 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.
19. 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.
20. 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.
21. 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 same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
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23. 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 shareholders, officers,
employees or agents, whether past, present or future, shall be
personally liable for the obligations of the Trust or any
Portfolio.
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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: /s/ Xxxxxxx X. Xxxxx
---------------------
Title: Executive Vice President
-------------------------
XXXXXXXXX & XXXXX FUND TRUST
By: /s/ Xxxxx X. Xxxxx
---------------------
Title: President
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EXHIBIT A
THIS EXHIBIT A, dated as of October 28, 1999, is Exhibit A to that certain
Administration and Accounting Services Agreement dated as of October 28, 1999
between PFPC Inc. and Xxxxxxxxx & Xxxxx Fund Trust.
PORTFOLIOS
H & Q IPO & Emerging Company Fund
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
Xxxxx X. Xxxxx
----------------------------------- -------------------------------
Xxxxxx X. Xxxxxx
----------------------------------- -------------------------------
Xxxxxx X. Xxxxxxxxxx
----------------------------------- -------------------------------
Xxxxxx X. Xxxxxxxx
----------------------------------- -------------------------------
----------------------------------- -------------------------------
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Dated: October 28, 1999
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