FUND ACCOUNTING AGREEMENT
AGREEMENT made as of this 1st day of December, 1996, between Select
Advisors Portfolios, a New York master trust fund (the "Trust") and Investors
Bank & Trust Company ("IBT").
The Trust, an open-end management investment company, on behalf of the
portfolios listed on Appendix A hereto, desires to retain IBT to perform certain
Trust accounting services for the Trust, and IBT has indicated its willingness
to so act, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. Definitions. Whenever used herein, the terms listed below will have
the following meaning:
1.1 Authorized Person. Authorized Person will mean any of the
persons duly authorized to give Proper Instructions or otherwise act on behalf
of the Trust by appropriate resolution of its Board, and set forth in a
certificate as required by Section 1.4 hereof.
1.2 Board. Board will mean the Board of Trustees of the Trust, as
the case may be.
1.3 Officers' Certificate. Officers' Certificate will mean, unless
otherwise indicated, any request, direction, instruction, or certification in
writing signed by any two Authorized Persons of the Trust.
1.4 Proper Instructions. Proper Instructions shall mean instructions
(which may be continuing instructions) regarding matters signed or initialed by
an Authorized Person. Oral instructions will be considered Proper Instructions
if IBT reasonably believes them to have been given by an Authorized Person. The
Trust shall cause all oral instructions to be promptly confirmed in writing. IBT
shall act upon and comply with any subsequent Proper Instruction which modifies
a prior instruction and the sole obligation of IBT with respect to any follow-up
or confirmatory instruction shall be to make reasonable efforts to detect any
discrepancy between the original instruction and such confirmation and to report
such discrepancy to the Trust. The Trust shall be responsible, at the Trust's
expense, for taking any action, including any reprocessing, necessary to correct
any such discrepancy or error, and to the extent such action requires IBT to
act, the Trust shall give IBT specific Proper Instructions as to the action
required. Upon receipt by IBT of an Officers' Certificate as to the
authorization by the Board accompanied by a detailed description of procedures
approved by the Trust, Proper Instructions may include communication effected
directly between electro-mechanical or electronic devices provided that the
Board and IBT agree in writing that such procedures afford adequate safeguards
for the Trust's assets.
2. Certification as to Authorized Persons. The Secretary or Assistant
Secretary of the Trust will at all times maintain on file with IBT his or her
certification to IBT, in such form as may be acceptable to IBT, of (i) the names
and signatures of the Authorized Persons and (ii) the names of the members of
the Board, it being understood that upon the occurrence of any change in the
information set forth in the most recent certification on file (including
without limitation any person named in the most recent certification who is no
longer an Authorized Person as designated therein), the Secretary or Assistant
Secretary of the Trust will sign a new or amended certification setting forth
the change and the new, additional or omitted names or signatures. IBT will be
entitled to rely and act upon any Officers' Certificate given to it by the Trust
which has been signed by Authorized Persons named in the most recent
certification received by IBT.
3. Trust Evaluation and Yield Calculation
3.1 Trust Evaluation. IBT shall compute and, unless otherwise
directed by the Board, determine as of the close of regular trading on the New
York Stock Exchange on each day on which said Exchange is open for unrestricted
trading and as of such other days, or hours, if any, as may be authorized by the
Board, the value of beneficial interests of the Trust and their allocation
between or among portfolios that invest in the Trust, such determination to be
made in accordance with the provisions of the Declaration of Trust and By-laws
of the Trust, as they may from time to time be amended, and any applicable
resolutions of the Board at the time in force and applicable; and promptly to
notify the Trust, the proper exchange and the NASD or such other persons as the
Trust may request of the results of such computation and determination. In
computing the value of beneficial interests hereunder, IBT may rely in good
faith upon information furnished to it by any Authorized Person in respect of
(i) the manner of accrual of the liabilities of the Trust and in respect of
liabilities of the Trust not appearing on its books of account kept by IBT, (ii)
reserves, if any, authorized by the Board or that no such reserves have been
authorized, (iii) the source of the quotations to be used in computing values
hereunder, (iv) the value to be assigned to any security for which no price
quotations are available, and (v) the method of computation and allocation of
beneficial interests in the Trust, and IBT shall not be responsible for any loss
occasioned by such reliance or for any good faith reliance on any quotations
received from a source pursuant to (iii) above.
3.2. Yield Calculation. IBT will compute the performance results of
the Trust (the "Yield Calculation") in accordance with the provisions of Release
No. 33-6753 and Release No. IC-16245 (February 2, 1988) (the "Releases")
promulgated by the Securities and Exchange Commission, and any subsequent
amendments to, published interpretations of or general conventions accepted by
the staff of the Securities and Exchange Commission with respect to such
releases or the subject matter thereof ("Subsequent Staff Positions"), subject
to the terms set forth below:
(a) IBT shall compute the Yield Calculation for the Trust for
the stated periods of time as shall be mutually agreed upon, and communicate in
a timely manner the result of such computation to the Trust.
(b) In performing the Yield Calculation, IBT will derive the
items of data necessary for the computation from the records it generates and
maintains for the Trust pursuant Section 11 hereof. IBT shall have no
responsibility to review, confirm, or otherwise assume any duty or liability
with respect to the accuracy or correctness of any such data supplied to it by
the Trust, any of the Trust's designated agents or any of the Trust's designated
third party providers.
(c) At the request of IBT, the Trust shall provide, and IBT
shall be entitled to rely on, written standards and guidelines to be followed by
IBT in interpreting and applying the computation methods set forth in the
Releases or any Subsequent Staff Positions as they specifically apply to the
Trust. In the event that the computation methods in the Releases or the
Subsequent Staff Positions or the application to the Trust of a standard or
guideline is not free from doubt or in the event there is any question of
interpretation as to the characterization of a particular security or any aspect
of a security or a payment with respect thereto (e.g., original issue discount,
participating debt security, income or return of capital, etc.) or otherwise or
as to any other element of the computation which is pertinent to the Trust, the
Trust or its designated agent shall have the full responsibility for making the
determination of how the security or payment is to be treated for purposes of
the computation and how the computation is to be made and shall inform IBT
thereof on a timely basis. IBT shall have no responsibility to make independent
determinations with respect to any item which is covered by this Section, and
shall not be
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responsible for its computations made in accordance with such determinations so
long as such computations are mathematically correct.
(d) The Trust shall keep IBT informed of all publicly
available information relating specifically to the Trust (as opposed to
investment companies generally) and of any non-public advice, or non-public
information obtained by the Trust from its independent auditors or by its
personnel or the personnel of its investment adviser related to the computations
to be undertaken by IBT pursuant to this Agreement and IBT shall not be deemed
to have knowledge of such information (except as contained in the Releases and
the Subsequent Staff Positions or as publicly available regarding investment
companies generally) unless it has been furnished to IBT in writing.
4. Fees. For the services rendered pursuant to this Agreement, the
Trust agrees to pay IBT the fees set forth on Appendix B hereto.
5. Additional Services. IBT shall perform the additional services for
the Trust as are set forth on Appendix C hereto. Appendix C may be amended from
time to time upon agreement of the parties to include further additional
services to be provided by IBT to the Trust, at which time the fees set forth in
Appendix B shall be appropriately increased.
6. Limitation of Liability.
6.1 IBT, its directors, officers, employees and agents shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Trust in connection with the performance of its obligations and duties under
this Agreement, except in respect of an error, mistake or loss resulting from
willful misfeasance, bad faith or negligence in the performance of such
obligations and duties, or by reason of its disregard thereof or a material
breach of the provisions hereof.
6.2 The Trust will indemnify IBT, its directors, officers, employees
and agents against and hold it and them harmless from any and all losses,
claims, damages, liabilities or expenses (including legal fees and expenses)
resulting from any claim, demand, action or suit (i) arising as a result of any
act or omission by IBT or any of its officers, directors, employees or agents in
good faith reliance upon the terms of this Agreement, any Officer's Certificate
or Proper Instructions; (ii) arising as a result of information supplied by any
Authorized Person and relied on in good faith by IBT in connection with the
calculation of (A) the net asset value and public offering price of the shares
of capital stock of the Trust or (B) the Yield Calculation; or (iii) not
resulting from the willful misfeasance, bad faith or negligence of IBT in the
performance of such obligations and duties or by reason of its disregard thereof
or a material breach of the provisions hereof.
6.3 IBT may apply to the Trust at any time for instructions and may
consult counsel for the Trust (except as to matters where the interests of the
Trust and IBT, in the opinion of such counsel, differ), or its own counsel,
knowledgeable in the field, and with accountants and other experts with respect
to any matter arising in connection with its duties hereunder, and IBT shall not
be liable or accountable for any action taken or omitted by it in good faith in
accordance with such instruction, or with the opinion of such counsel,
accountants, or other experts. IBT shall not be liable for any act or omission
taken or not taken in reliance upon any document, certificate or instrument
which it reasonably believes to be genuine and to be signed or presented by any
person or persons duly authorized by the Trust (as set forth in a certificate
duly executed by an officer of the Trust). IBT shall not be held to have notice
of any change of authority of any officers, employees, or agents of the Trust
until receipt of written notice thereof has been received by IBT from the Trust.
6.4 In the event IBT is unable to perform, or is delayed in
performing, its obligations under the terms of this Agreement because of acts of
God, strikes, legal constraint, government actions, war,
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emergency conditions, interruption of electrical power or other utilities,
equipment or transmission failure or damage reasonably beyond its control or
other causes reasonably beyond its control, IBT shall not be liable to the Trust
for any damages resulting from such failure to perform, delay in performance, or
otherwise that is attributable to such causes.
6.5 IBT acknowledges that the portfolios comprising the Trust are
organized under a two-tier financial services structure, known as the Hub &
Spoke(1 structure, under and pursuant to a certain Hub & Spoke License and
Service Agreement dated December 14, 1993 (the "License Agreement"), by and
between the Trust's adviser, Touchstone Advisors, Inc., and Signature Financial
Group, Inc. ("Signature"). As a material inducement to the Trust to enter into
this Agreement, IBT hereby warrants and represents that IBT is a duly licensed
and authorized third party Hub & Spoke processing agent of Signature, and is
duly licensed and authorized by Signature to provide Hub & Spoke processing and
administration services to, for and on behalf of the Trust and its portfolios in
accordance with the terms of this Agreement; and further, that no consent, which
has not already been obtained in writing by IBT, is required by Touchstone
Securities, Inc., or by either party to this Agreement from Signature in order
for IBT to provide Hub & Spoke processing and administration services, for and
on behalf of the Trust and its portfolios.
6.6 IBT will indemnify the Trust, its trustees, officers, employees
and agents against and hold them harmless from any and all losses, claims,
damages, liabilities or expenses (including legal fees and related expenses)
resulting from any claim, demand, action or suit (i) arising out of IBT's
failure to obtain and maintain in effect all licenses rights and permissions
(all without cost to the Trust for so long as the Trust remains a party to the
License Agreement and the License Agreement remains in full force and effect)
required to enable it to use, to the full extent necessary for the performance
of its duties and obligations under this Agreement, all intellectual property
belonging to Signature Financial Services, Inc. and its affiliates that relates
to the Hub & Spoke structure and related Trust accounting and administration and
the software and processes associated therewith and (ii) resulting from the
willful misfeasance, bad faith or negligence of IBT in the performance of its
duties and obligations under this Agreement or from its disregard thereof.
6.7 In no event shall IBT be liable for special, incidental or
consequential damages, even if advised of the possibility of such damages.
7. Termination.
7.1 The term of this Agreement shall be eighteen months commencing
upon the date hereof (the "Initial Term"), unless earlier terminated as provided
herein. After the expiration of the Initial Term, the term of this Agreement
shall automatically renew for successive one-year terms (each a "Renewal Term")
unless notice of non-renewal is delivered by the non-renewing party to the other
party no later than sixty days prior to the expiration of the Initial Term or
any Renewal Term, as the case may be.
(a) Either party hereto may terminate this Agreement prior to
the expiration of the Initial Term in the event the other party violates any
material provision of this Agreement, provided that the non-violating party
gives written notice of such violation to the violating party and the violating
party does not cure such violation within 60 days of receipt of such notice.
(b) Either party may terminate this Agreement during any
Renewal Term upon sixty days written notice to the other party. Any termination
pursuant to this paragraph 7.1(b) shall be effective upon expiration of such
sixty days, provided, however, that the effective date of such termination may
be postponed, at the request of the Trust, to a date not more than ninety days
after
--------
(1) Hub & Spoke is a registered service xxxx of Signature Financial Group, Inc.
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delivery of the written notice in order to give the Trust an opportunity to make
suitable arrangements for a successor Trust accountant.
(c) If the Trust determines at any time to cease using the Hub
& Spoke structure in the conduct of its business, whether it changes to a
master-feeder, multiple class or other structure, the Trust may terminate this
Agreement if, after the Trust gives IBT at least 30 days prior written notice of
such change, the parties, after making diligent and good faith efforts, are
unable to agree to amendments to this Agreement that are reasonable and fair to
both parties under the circumstances, such termination to be effective 90 days
after the delivery of such prior written notice.
(d) The Trust may terminate this Agreement if and at such time
as a court of competent jurisdiction either (A) finds, after the exhaustion of
all appeals, that the performance by IBT of the services called for by this
Agreement or the engagement by the Trust of IBT to perform such services
infringes the intellectual property rights of Signature Financial Services,
Inc., or any affiliate thereof, in any manner whatsoever, or (B) enjoins or
restrains the performance by Investors Bank of the services called for by this
Agreement.
(e) The Trust may terminate this Agreement if and at such time
as any of the Trust accounting agreements between Investors Bank and Select
Advisors Trust A, Select Advisors Portfolio or Select Advisors Portfolios are
terminated due to a material violation of the terms of any such Trust accounting
agreement by Investors Bank.
7.2 The Trust shall reimburse IBT for any reasonable expenses
incurred by IBT for transition accounting and transfer of records in connection
with the termination of this Agreement.
7.3 At any time after the termination of this Agreement, the Trust
may, upon written request, have reasonable access to the records of IBT relating
to its performance of its duties as hereunder.
8. Confidentiality. Both parties hereto agree that any non-public
information obtained hereunder concerning the other party is confidential and
may not be disclosed without the consent of the other party, except as may be
required by applicable law or at the request of a governmental agency. The
parties further agree that a breach of this provision would irreparably damage
the other party and accordingly agree that each of them is entitled, in addition
to all other remedies at low or in equal to an injunction or injunctions without
bond or other security to prevent breaches of this provision.
9. Notices. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and delivered via (I) United
States Postal Service registered mail, (ii) telecopier with written
confirmation, (iii) hand delivery with signature to such party at its office at
the address set forth below, namely:
(a) In the case of notices sent to the Trust to:
Select Advisors Portfolios
000 Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
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(b) In the case of notices sent to IBT to:
Investors Bank & Trust Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxx, Client Manager
With a copy to: Xxxx X. Xxxxx, General Counsel
or at such other place as such party may from time to time
designate in writing.
10. Amendments. This Agreement may not be altered or amended, except by
an instrument in writing, executed by both parties.
11. Parties. This Agreement will be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement will not be assignable by the Trust
without the written consent of IBT or by IBT without the written consent of the
Trust, authorized and approved by its Board; and provided further that
termination proceedings pursuant to Section 16 hereof will not be deemed to be
an assignment within the meaning of this provision.
12. Governing Law. This Agreement and all performance hereunder will be
governed by the laws of the Commonwealth of Massachusetts, without regard to
conflict of laws provisions.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
14. Entire Agreement. This Agreement, together with its Appendices,
constitutes the sole and entire agreement between the parties relating to the
subject matter herein and does not operate as an acceptance of any conflicting
terms or provisions of any other instrument and terminates and supersedes any
and all prior agreements and undertakings between the parties relating to the
subject matter herein.
15. Limitation of Liability. IBT is hereby expressly put on notice of
the limitation of liability set forth in the Declaration of Trust of the Trust
and agrees that the obligations assumed by the Trust hereunder shall be limited
in all cases to the assets of the Trust and that IBT shall not seek satisfaction
of any such obligation from the officers, agents, employees, trustees, or
shareholders of the Trust.
16. Several Obligations of the Portfolios. This Agreement is an
agreement entered into between IBT and the Trust with respect to each Portfolio.
With respect to any obligation of the Trust on behalf of any Portfolio arising
out of this Agreement, IBT shall look for payment or satisfaction of such
obligation solely to the assets of the Portfolio to which such obligation
relates as though IBT had separately contracted with the Trust by separate
written instrument with respect to each Portfolio.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first written above.
SELECT ADVISORS PORTFOLIOS
By:
-------------------------
Name:
Title:
INVESTORS BANK & TRUST COMPANY
By:
-------------------------
Name:
Title:
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Appendix A
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Portfolios
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Emerging Growth Portfolio
International Equity Portfolio
Growth & Income Portfolio
Growth & Income Portfolio II
Balanced Portfolio
Bond Portfolio
Bond Portfolio II
Income Opportunity Portfolio
Municipal Bond Portfolio
Appendix C
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Additional Services
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None
