Exhibit(h)(2)
FUND ACCOUNTING AGREEMENT
AGREEMENT made this 1st day of July 2003, between MMA PRAXIS MUTUAL FUNDS
(the "Company"), a Delaware business trust having its principal place of
business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000, and BISYS FUND SERVICES
OHIO INC. ("Fund Accountant"), a corporation organized under the laws of the
State of Ohio and having its principal place of business at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000.
WHEREAS, the Company and BISYS entered into a Fund Accounting Agreement
dated December 31, 1998 (the 1998 Agreement"), whereby BISYS agreed to perform
certain services for the company, which continued in effect through the date
hereof; and
WHEREAS, the Company desires that Fund Accountant continue to perform fund
accounting services for the Company and each investment portfolio of the
Company, all as now or hereafter may be established from time to time
(individually referred to herein as the "Fund" and collectively as the "Funds");
and
WHEREAS, Fund Accountant is willing to perform such services on the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. Services as Fund Accountant.
(a) Maintenance of Books and Records. Fund Accountant will keep and
maintain the following books and records of each Fund pursuant to
Rule 31a-1 under the Investment Company Act of 1940, as amended (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, including
interest accrued and interest received, as required by
subsection (b)(2)(i) of the Rule;
(iii) Separate ledger accounts required by subsection (b)(2)(ii) and
(iii) of the Rule; and
(iv) A monthly trial balance of all ledger accounts (except
shareholder accounts) as required by subsection (b)(8) of the
Rule;
(v) A record of brokerage orders as required by subsection (b)(5);
(vi) A record of all other purchases and sales as required by
subsection (b)(6); and
(vii) A record of any puts, calls, straddles, and options as
required by subsection (b)(7).
(b) Performance of Daily Accounting Services. In addition to the
maintenance of the books and records specified above, Fund
Accountant shall perform the following accounting services daily for
each Fund;
(i) Calculate the net asset value per share utilizing prices
obtained from the sources described in subsection 1(b)(ii)
below in accordance with the Funds' prospectus;
(ii) Obtain security prices from independent pricing services, or
if such quotes are unavailable, then obtain such prices from
each Fund's investment adviser or its designee, as approved by
the Company's board of Trustees/Directors (hereafter referred
to as "Directors");
(iii) Verify and reconcile with the Funds' custodian all daily trade
activity;
(iv) Compute, as appropriate, each Funds' net income and capital
gains, dividend payables, dividend factors, 7-day yields,
7-day effective yields, 30-day yields, and weighted average
portfolio maturity;
(v) Review daily the net asset value calculation and dividend
factor (if any) for each Fund prior to release to
shareholders, check and confirm the net asset values and
dividend factors for reasonableness and deviations, and
distribute net asset values and yields to NASDAQ;
(vi) Report to the Company the daily market pricing of securities
in any money market Funds, with the comparison to the
amortized cost basis;
(vii) Determine unrealized appreciation and depreciation on
securities held in variable net asset value Funds;
(viii) Amortize premiums and accrete discounts on securities
purchased at a price other than face value, if requested by
the Company;
(ix) Update fund accounting system to reflect rate changes, as
received from a Fund's investment adviser, on variable
interest rate instruments;
(x) Post Fund transaction to appropriate categories;
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(xi) Accrue expenses of each Fund according to instructions
received from the Company's Fund Accountant;
(xii) Determine the outstanding receivables and payables for all (1)
security trades, (2) Fund share transactions and (3) income
and expense accounts;
(xiii) Provide accounting reports in connection with the Company's
regular annual audit and other audits and examinations by
regulatory agencies; and
(xiv) Provide such periodic reports as the parties shall agree upon,
as set forth in a separate schedule.
(c) Special Reports and Services.
(i) Fund Accountant may provided additional special reports upon
the request of the Company or a Fund's investment adviser,
which may result in an additional charge, the amount of which
shall be agreed upon between the parties.
(ii) Fund Accountant may provide such other similar services with
respect to a Fund as may be reasonably requested by the
Company, which may result in an additional charge, the amount
of which shall be agreed upon between the parties.
(iii) Fund Accountant shall prepare Xxxxxxxx-Xxxxx
sub-certifications as requested by the Funds, consistent with
the relevant provisions of the Administration Agreement
between the parties hereto dated the date hereof.
(d) Additional Accounting Services. Fund Accountant shall also perform
the following additional accounting services for each Fund, without
additional compensation:
(i) Provide monthly a download (and hard copy thereof) of the
unaudited financial statements described below, upon request
of the Company. The download of the unaudited financial
statements will include the following items:
(A) Unaudited Statement of Assets and Liabilities;
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(B) Unaudited Statement of Operations;
(C) Unaudited Statement of Changes in Net Assets; and
(D) Unaudited Condensed Financial Information.
(ii) Provide accounting information for the following:
(A) federal and state income tax returns and federal excise tax
returns;
(B) the Company's semi-annual reports with the Securities and
Exchange Commission ("SEC") on Form N-SAR and Form N-CSR;
(C) the Company's annual, semi-annual and quarterly (if any)
shareholder reports;
(D) registration statements on Form N-1A and other filings
relating to the registration of shares;
(E) the Administrator's monitoring of the Company's status as a
regulated investment company under Subchapter M of the
Internal Revenue Code, as amended;
(F) annual audit by the Company's auditors; and
(G) examinations performed by the SEC.
2. Subcontracting.
Fund Accountant may, at its expense and with prior consent of the Company,
subcontract with any entity or person concerning the provision of the services
contemplated hereunder; provided, however, that Fund Accountant shall not be
relieved of any of its obligations under this Agreement by the appointment of
such subcontractor and provided further, that Fund Accountant shall be
responsible, to the extent provided in Section 5 hereof, for all acts of such
subcontractor as if such acts were its own.
3. Compensation.
For the services to be rendered, the Company shall pay to the Fund
Accountant the compensation set forth in the Omnibus Fee Agreement between the
Fund Accountant and the Company.
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4. Reimbursement of Expenses.
In addition to paying the fees described in Section 3 hereof, the Company
shall also reimburse the Fund Accountant for its reasonable out-of-pocket
expenses. The Company agrees to reimburse Fund Accountant for its out-of-pocket
expenses in providing services hereunder, including without limitation the
following:
(a) All freight and other delivery and bonding charges incurred by Fund
Accountant in delivering materials to and from the Company;
(b) All direct telephone, telephone transmission and telecopy or other
electronic transmission expenses incurred by Fund Accountant in
communication with the Company, the Company's investment adviser or
custodian, dealers or others as required for Fund Accountant to
perform the services to be provided hereunder;
(c) The cost of obtaining security market quotes pursuant to Section
1(b)(ii) above;
(d) The cost of microfilm or microfiche of records or other materials;
(e) All systems-related expenses associated with the provision of
special reports and services pursuant to Section 1(c) herein;
(f) Any expenses Fund Accountant shall incur at the written direction of
an officer of the Company thereunto duly authorized; and
(g) Any additional expenses reasonably incurred by Fund Accountant in
the performance of its duties and obligations under this Agreement.
Notwithstanding the foregoing, the Company shall not be required to
reimburse any expenses to the Fund Accountant that are covered by the omnibus
fees payable to the Fund Accountant, as set forth in the Omnibus Fee Agreement.
5. Standard of Care; Uncontrollable Events; Limitation of Liability.
(a) Fund Accountant shall use reasonable professional diligence to
ensure the accuracy of all services performed under this Agreement,
but shall not be liable to the Company for any action taken or
omitted by Fund Accountant in the absence of bad faith, willful
misfeasance, negligence or reckless disregard by it of its
obligations and duties.
(b) Fund Accountant shall maintain adequate and reliable computer and
other equipment necessary or appropriate to carry out its
obligations under this Agreement. Upon the Company's reasonable
request, Fund Accountant shall provide supplemental information
concerning the aspects of its disaster recovery and business
continuity plan that are relevant to the services provided
hereunder. Notwithstanding the foregoing or any other provision of
this Agreement, Fund Accountant assumes no responsibility hereunder,
and shall not be liable for, any damage, loss of data, delay or any
other loss whatsoever caused by events beyond its reasonable
control. Events beyond Fund Accountant' reasonable control include,
without
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limitation, force majeure events. Force majeure events include
natural disasters, actions or decrees of governmental bodies, and
communication lines failures that are not the fault of either party.
In the event of force majeure, computer or other equipment failures
or other events beyond its reasonable control, Fund Accountant shall
follow applicable procedures in its disaster recovery and business
continuity plan and use all commercially reasonable efforts to
minimize any service interruption, including by restoring any lost
or damaged data.
(c) Fund Accountant shall provide to the Company, at such times as the
Company may reasonably require, copies of the most recent reports
rendered by independent public accountants on the internal controls
and procedures of Fund Accountant relating to the services provided
by Fund Accountant under this Agreement.
(d) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE
FOR SPECULATIVE OR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EACH OF WHICH IS
HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER
SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Term.
This Agreement shall continue in effect with respect to each Fund, unless
earlier terminated by either party hereto as provided hereunder, until June 30,
2005 (the "Term"). During the Term this Agreement may be terminated without
penalty (i) by mutual agreement of the parties or (ii) for "cause," as defined
below, upon the provision of 60 days advance written notice by the party
alleging cause. For purposes of this Agreement, "cause" shall mean (a) a
material breach of this Agreement that has not been remedied for thirty (30)
days following written notice of such breach from the non-breaching party; (b) a
final, unappealable judicial, regulatory or administrative ruling or order to
which the party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; or (c) financial difficulties on the
part of the party to be terminated which are evidence by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the rights of
creditors. Fund Accountant shall not terminate this Agreement pursuant to clause
(a) above based solely upon the Company's failure to pay an amount to Fund
Accountant which is the subject of a good faith dispute, if (i) the Company is
attempting in good faith to resolve such dispute with as much expediency as may
be possible under the
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circumstances, and (ii) the Company continues to perform its obligations
hereunder in all other material respects (including paying all fees and expenses
not subject to reasonable dispute hereunder).
After such termination for so long as Fund Accountant, with the written
consent of the Company, in fact continues to perform any one or more of the
services contemplated by the Agreement or any schedule or exhibit hereto, the
provisions of this Agreement, including without limitation the provisions
dealing with indemnification, shall continue in full force and effect.
Compensation due Fund Accountant and unpaid by the Company upon such termination
shall be immediately due an payable upon and notwithstanding such termination.
Fund Accountant shall be entitled to collect from the Company, in addition to
the compensation described under Section 3 hereof, the amount of all Fund
Accountant's reasonable cash disbursements for services in connection with Fund
Accountant's activities in effecting such termination, including without
limitation, the delivery to the Company and/or its designees of the Company's
property, records, instruments and documents.
If, for any reason other than (i) expiration of Terms, (ii) mutual
agreement of the parties, or (iii) "cause," as defined above, Fund Accountant is
replaced as fund accountant, or if a third party is added to perform all or a
part of the services provided by Fund Accountant under this Agreement (excluding
any sub-accountant appointed by Fund Accountant as provided in Section 2
hereof), then the Company shall make a one-time cash payment, in consideration
of the fee structure and services to be provided under this Agreement, and not
as a penalty, to Fund Accountant equal to the balance due Fund Accountant for
the remainder of the then current term of this Agreement, assuming for purposes
of calculation of the payment that such balance shall be based upon the average
amount of the Company's assets for the twelve months prior to the date fund
Accountant is replaced or a third party is added.
The parties further acknowledge and agree that, in the event Fund
Accountant is replaced, or a third party is added, as set forth above, (i) a
determination of actual damages incurred by Fund Accountant would be extremely
difficult, and (ii) the liquidated damages provision contained herein is
intended to adequately compensate Fund Accountant for damages incurred and is
not intended to constitute any form of penalty.
7. Indemnification.
The Company agrees to indemnify and hold harmless Fund Accountant, its
employees, agents, directors, officers and nominees from and against any and all
claims, demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, reasonable counsel fees and other
expenses (including reasonable investigation expenses) (collectively, "Losses")
resulting from Fund Accountant's performance of services under this Agreement or
based, if applicable, upon reasonable reliance on information, records,
instructions or requests given or made to Fund Accountant by the Company, the
investment adviser, fund accountant or custodian thereof; provided that this
indemnification shall not apply to actions or omissions of Fund
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Accountant's bad faith, willful misfeasance, negligence or reckless disregard by
it of its obligations and duties hereunder;
The Fund Accountant shall indemnify, defend, and hold the Company harmless
from and against Losses caused by the Fund Accountant's willful misfeasance, bad
faith or negligence in the performance of its duties hereunder, or by reason of
reckless disregard of its obligations and duties hereunder. The indemnification
rights hereunder shall include the right to reasonable advances of defense
expenses in the event of any pending or threatened litigation with respect to
which indemnification hereunder may ultimately be merited, provided that any
such advanced expenses shall be reimbursed by the indemnified party if an
ultimate determination is made that indemnification is not merited under the
circumstances. If in any case a party may be asked to indemnify or hold the
other party harmless, the indemnifying party shall be fully and promptly advised
of all pertinent facts concerning the situation in question, and it is further
understood that the indemnified party will use all reasonable care to notify the
indemnifying party promptly concerning any situation which presents or appears
likely to present the probability of such a claim for indemnification against
the indemnifying party, but failure to do so in good faith shall not affect the
rights hereunder. except to the extent the indemnifying party is materially
prejudiced thereby. As to any matter eligible for indemnification, an
indemnified party shall act reasonably and in accordance with good faith
business judgment and shall not effect any settlement or confess judgment
without the consent of the indemnifying party, which consent shall not be
unreasonably withheld or delayed.
The indemnifying party shall be entitled to participate at its own expense
or, if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnity provision. If the indemnifying party elects to
assume the defense of any such claim, the defense shall be conducted by counsel
chosen by it and reasonably satisfactory to the indemnified party, whose
approval shall not be unreasonably withheld. In the event that the indemnifying
party elects to assume the defense of any suit and retain counsel, the
indemnified party shall bear the fees and expenses of any additional counsel
retained by it. If the indemnifying party does not elect to assume the defense
of suit, it will reimburse the indemnified party for the reasonable fees and
expenses of any counsel retained by the indemnified party. The indemnity and
defense provisions set forth herein shall indefinitely survive the termination
of this Agreement.
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8. Certain Records and Confidentiality.
Fund Accountant shall keep and maintain on behalf of the Company all books
and records which the Company or the Fund Accountant is required to keep and
maintain pursuant to any applicable statutes, rules and regulations, including
without limitation Rules 31a-1 and 31a-2 under the Investment Company Act of
1940, as amended (the "1940 Act"), relating to the maintenance of books and
records in connection with the services to be provided hereunder. Any records
required to be maintained and preserved pursuant to Rules 31a-1 and 31a-2 under
the 1940 Act which are prepared or maintained by Fund Accountant on behalf of
the Company shall be prepared and maintained at the expense of Fund Accountant,
but shall be the property of the Company and will be surrendered promptly to the
Company on request, and made available for inspection by the Company or by the
Commission at reasonable times.
The Fund Accountant may at its option at any time, and shall promptly upon
the Company's demand, turn over to the Company and cease to retain the Fund
Accountant's files, records and documents created and maintained by the Fund
Accountant pursuant to this Agreement which are no longer needed by the Fund
Accountant in the performance of its services or for its legal protection. If
not so turned over to the Company, such documents and records shall be retained
by the Fund Accountant for six years from the year of creation. At the end of
such six-year period, such records and documents shall be turned over to the
Company unless the Company authorizes in writing the destruction of such records
and documents.
In case of any request or demand for the inspection of such records by
another party, Fund Accountant shall notify the Company and follow the Company's
instructions as to permitting or refusing such inspection; provided that Fund
Accountant may exhibit such records in any case where (i) disclosure is required
by law, (ii) Fund Accountant is advised by counsel that it may incur liability
for failure to make a disclosure, (iii) Fund Accountant is requested to divulge
such information by duly-constituted authorities or court process, or (iv) Fund
Accountant is requested to make a disclosure by the Company. Fund Accountant
shall otherwise keep confidential all books and records relating to the Company.
Fund Accountant shall provide the Company with reasonable advance notice of
disclosure pursuant to items (i) - (iii) of the previous sentence, to the extent
reasonably practicable.
9. Activities of Fund Accountant.
The services of Fund Accountant rendered to the Company hereunder are not
to be deemed to be exclusive. Fund Accountant is free to render such services to
others and to have other businesses and interests. It is understood that
Directors, officers, employees and Shareholders of the Company are or may be or
become interested in Fund Accountant, as officers, employees or otherwise and
that partners, officers and employees of Fund Accountant and its counsel are or
may be or become similarly interested in the Company, and that Fund Accountant
may be or become interested in the Company as a shareholder or otherwise.
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10. Reports.
Fund Accountant will furnish to the Company and to its properly authorized
auditors, investment advisers, examiners, distributors, dealers, underwriters,
salesmen, insurance companies and others designated by the Company in writing,
such reports and at such times as are prescribed pursuant to the terms and the
conditions of this Agreement to be provided or completed by Fund Accountant, or
as subsequently agreed upon by the parties pursuant to an amendment hereto.
11. Rights of Ownership.
All computer programs and procedures employed or developed by or on behalf
of Fund Accountant to perform services required to be provided by Fund
Accountant under this Agreement are the property of Fund Accountant. All records
and other data except such computer programs and procedures are the exclusive
property of the Company and all such other records and data will be furnished to
the Company in appropriate form as soon as practicable after termination of this
Agreement for any reason.
12. Representations of the Company.
The Company represents and warrants that: (1) as of the close of business
on the Effective Date, each Fund that is in existence as of the Effective Date
has authorized unlimited shares, and (2) this Agreement has been duly authorized
by the Company and, when executed and delivered by the Company, will constitute
a legal, valid and binding obligation of the Company, enforceable against the
Company 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.
13. Representations of Fund Accountant.
Fund Accountant represents and warrants that: (1) the various procedures
and systems which Fund Accountant has implemented with regard to safeguarding
from loss or damage attributable to fire, theft, or any other cause the records,
and other data of the Company and Fund Accountant's records, data, equipment
facilities and other property used in the performance of its obligations
hereunder are adequate and that it will make such changes therein from time to
time as are required for the secure performance of its obligations hereunder,
and (2) this Agreement has been duly authorized by Fund Accountant and, when
executed and delivered by Fund Accountant, will constitute a legal, valid and
binding obligation of Fund Accountant, enforceable against Fund Accountant 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.
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14. Insurance.
Fund Accountant shall maintain a fidelity bond covering larceny and
embezzlement and an insurance policy with respect to directors and officers
errors and omissions coverage in amounts that are appropriate in light of its
duties and responsibilities hereunder. Upon the request of the Company, Fund
Accountant shall provide evidence that coverage is in place. Fund Accountant
shall notify the Company should its insurance coverage with respect to
professional liability or errors and omissions coverage be canceled. Such
notification shall include the date of cancellation and the reasons therefore.
Fund Accountant shall notify the Company of any material claims against it with
respect to services performed under this Agreement, whether or not they may be
covered by insurance, and shall notify the Company should the total outstanding
claims made by Fund Accountant under its insurance coverage materially impair,
or threaten to materially impair, the adequacy of its coverage.
15. Information to be Furnished by the Company and Funds.
The Company has furnished to Fund Accountant the following, as amended and
current as of the date of this Agreement:
(a) Copies of the Declaration of Trust of the Company and of any
amendments thereto, certified by the proper official of the state in
which such Declaration has been filed.
(b) Copies of the following documents:
(i) The Company's Bylaws and any amendments thereto; and
(ii) Certified copies of resolutions of the Directors covering the
approval of this Agreement, authorization of a specified
officer of the Company to execute and deliver this Agreement
and authorization for specified officers of the Company to
instruct Fund Accountant thereunder.
(c) A list of all the officers of the Company and any other persons (who
may be associated with the Company or its investment adviser),
together with specimen signatures of those officers and other
persons who are authorized to instruct Fund Accountant in all
matters.
Two copies of the Prospectus and Statements of Additional Information for
each Fund.
16. Information Furnished by Fund Accountant.
(a) Fund Accountant has furnished to the Company the following:
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(i) Fund Accountant's Articles of Incorporation; and
(ii) Fund Accountant's Bylaws and any amendments thereto.
(b) Fund Accountant shall, upon request, furnish certified copies of
corporate actions covering the following matters:
(i) Approval of this Agreement by Fund Accountant, and
authorization of a specified officer of Fund Accountant to
execute and deliver this Agreement; and
(ii) Authorization of Fund Accountant to act as fund accountant for
the Company and to provide accounting services for the
Company.
17. Amendments to Documents.
For special cases, the parties hereto may amend such procedures set forth
herein as may be appropriate or practical under the circumstances, and the Fund
Accountant may conclusively assume that any special procedure which has been
approved by the Company does not conflict with or violate any requirements of
its Articles of Incorporation or then current prospectuses, or any rule,
regulation or requirement of any regulatory body.
18. Legal Advice; Reliance on Instructions.
The Fund Accountant may apply to the Company at any time for instructions
and may consult with counsel for the Company and with accountants and other
experts with respect to any matter arising in connection with the Fund
Accountant's duties, and the Fund Accountant shall not be liable nor 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.
Fund Accountant shall notify the Company at any time the Fund Accountant
believes that it is in need of the advice of counsel (other than counsel in the
regular employ of the Fund Accountant or any affiliated companies) with regard
to the Fund Accountant's responsibilities and duties pursuant to this Agreement.
After so notifying the Company, the Fund Accountant, at its discretion, shall be
entitled to seek, receive and act upon advice of legal counsel of its choosing,
such advice to be at the expense of the Company unless relating to a matter
involving BISYS' willful misfeasance, bad faith, negligence or reckless
disregard of BISYS' responsibilities and duties.
Also, Fund Accountant shall be protected in acting upon any document which
it reasonably believes to be genuine and to have been signed or presented by the
proper person or persons. The Fund Accountant will not be held to have notice of
any change of authority of any officers, employees or agents of the Company
until receipt of written notice thereof from the Company.
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19. Compliance with Law.
Except for the obligations of Fund Accountant set forth in Section 8
hereof, the Company assumes full responsibility for the preparation, contents
and distribution of each prospectus of the Company as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the 1940 Act and any other laws, rules and regulations of
governmental authorities having jurisdiction. Fund Accountant shall have no
obligation to take cognizance of any laws relating to the sale of the Company's
shares.
Fund Accountant 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
Fund Accountant hereunder.
20. Notices.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such
notice, at the following address: if to the Company, at 0000 X. Xxxx Xxxxxx,
X.X. Xxx 000, Xxxxxx, XX 00000-0000; and if to Fund Accountant, at 0000 Xxxxxxx
Xxxx, Xxxxxxxx, XX 00000, or at such other address as such party may from time
to time specify in writing to the other party pursuant to this Section.
21. Assignment.
This Agreement shall not be assignable by either party without the written
consent of the other party; provided, however, that the Fund Accountant utilize
agents in connection with its services hereunder and may, at its expense and
with the advance approval of the Board, subcontract with any entity or person
concerning the provision of Fund Accounting services contemplated hereunder (a
"Sub-Fund Accountant"). The Fund Accountant shall not, however, be relieved of
any of its obligations under this Agreement by the appointment of any Sub-Fund
Accountant or other subcontractor and that the Fund Accountant shall be
responsible, to the extent provided in Section 5 hereof, for all acts of any
Sub-Fund Accountant or sub-contractor as if such acts were its own. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns
22. Governing Law.
This Agreement shall be construed in accordance with the laws of the State
of Ohio and the applicable provisions of the 1940 Act. To the extent that the
applicable laws of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
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23. Privacy
Nonpublic personal financial information relating to consumers or
customers of the Company provided by, or at the direction of the Company to Fund
Accountant, or collected or retained by Fund Accountant to perform its duties
shall be considered confidential information. Fund Accountant shall not give,
sell or in any way transfer such confidential information to any person or
entity, other than affiliates of Fund Accountant except at the direction of the
Company or as required or permitted by law, including, without limitation
Regulation S-P. Fund Accountant shall have in place and maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of records and information relating to consumers or customers of the
Company, consistent with Regulation S-P. The Company represents to Fund
Accountant that it has adopted a Statement of its privacy policies and practices
as required by the Commission's Regulation S-P and agrees to provide Fund
Accountant with a copy of that statement annually.
24. Miscellaneous.
(a) Paragraph headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties
hereto as to the subject matter covered by this Agreement, and
supercedes all prior negotiations, understandings and agreements
bearing upon the subject matter covered herein. including but not
limited to the 1998 Agreement.
(c) This Agreement may be executed in counterparts, each of which shall
be an original but all of which, taken together, shall constitute
one and the same agreement.
(d) No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto.
(e) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each Fund of the Company
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
out of this Agreement or otherwise.
(f) The provisions of sections 3, 4, 6, 7, and 11 shall survive the
termination of the Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed all as of the day and year first above written.
MMA PRAXIS MUTUAL FUNDS
By: /s/ Xxxx X. Xxxxxxx
Title: President
BISYS FUND SERVICES OHIO, INC.
By: /s/ Xxxxxxx Xxxxx
Title: President - Fund Services
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