EXHIBIT 99.(h)(4)
FUND ACCOUNTING AND SERVICES AGREEMENT
AMONG
ACCESSOR FUNDS, INC.,
ACCESSOR CAPITAL MANAGEMENT LP
AND
ALPS MUTUAL FUNDS SERVICES, INC.
FUND ACCOUNTING AND SERVICES AGREEMENT
Fund Accounting and Services Agreement (the "Agreement") made this 4th
day of September, 2001, between Accessor Funds, Inc., a corporation established
under the laws of the State of Maryland (the "Fund"), Accessor Capital
Management LP, a Washington limited partnership (Accessor Capital) and ALPS
Mutual Funds Services, Inc., a Colorado corporation having its principal office
at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 (the "Agent").
WHEREAS, the Fund is an open-end management investment company
registered under the Investment Company Act of 1940, as amended, presently
consisting of the portfolios, each with two classes of shares, listed in
Appendix A attached hereto; each of such investment portfolios and any
additional investment portfolios that may be established by the Fund is referred
to herein individually as a "Portfolio" and collectively as the "Portfolios";
and
WHEREAS, Accessor Capital has been appointed manager of the Fund and
Accessor Capital has accepted such appointment;
WHEREAS, Accessor Capital and the Fund have entered into a management
agreement (the "Management Agreement") pursuant to which Accessor Capital
provides management, administrative and other services to the Fund and certain
of said services are commonly referred to as those performed by an
administrator;
WHEREAS, the Agent provides certain fund accounting services to
investment companies; and
WHEREAS, Accessor Capital, with the consent of the Fund, desires to
appoint the Agent as agent to perform certain bookkeeping and pricing services
for the Portfolios on behalf of the Fund, and the Agent has indicated its
willingness to so act, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto agree as follows:
1. Agent Appointed Bookkeeping and Pricing Agent. Accessor Capital
hereby appoints the Agent as bookkeeping and pricing agent for the Portfolios
and the Agent agrees to provide the fund accounting and other specified services
to each of the Portfolios as set forth in Appendix B, as may be amended from
time to time, upon the terms and conditions hereinafter set forth. The Agent
accepts such appointment and agrees to furnish such specified services.
2. Definitions. In this Agreement the terms below have the following
meanings:
(a) Authorized Person. Authorized Person means any of the
persons duly authorized to giver Proper Instructions or otherwise act
on behalf of the Fund by appropriate resolution of the Board of
Directors of the Fund and listed on the Authorized Person Appendix
attached hereto and made a part hereof or any amendment thereto as may
be received by the Agent. The Fund will at all times maintain on file
with the Agent
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certification, in such form as may be acceptable to the Agent, of (i)
the names and signatures of the Authorized Person(s) and (ii) the names
of the members of the Board of Directors of the Fund, 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 Fund will
provide a new or amended certification setting forth the change. An
Authorized Person's scope of authority may be limited by the Fund by
setting forth such limitation in the Agent certification. The Agent
will be entitled to rely upon any Proper Instruction (defined below)
which has been signed by person(s) named in the most recent
certification.
(b) Proper Instructions. Proper Instructions means any
request, instruction or certification actually received by the Agent
and signed by one or more Authorized Persons. Oral instructions will be
considered Proper Instructions if the Agent reasonably believes them to
have been given by an Authorized Person and they are promptly confirmed
in writing by the Fund or Accessor Capital to the address for notice,
e-mail or facsimile set forth below. If oral instructions vary from the
written instructions which purport to confirm them, the Agent shall
notify the Fund or Accessor Capital of such variance. Once the variance
is resolved, and if the Agent has not yet acted, the agent may rely on
oral instructions received from the Fund or Accessor Capital, such oral
instructions to be promptly confirmed in writing. Proper Instructions
may include communications effected directly between electro-mechanical
or electronic devices as agreed upon by the parties hereto in writing.
3. Duties of the Agent. The Agent agrees to provide the services listed
in Appendix B attached hereto for the Fund.
The Agent shall for all purposes be deemed to be an
independent contractor and shall, unless otherwise expressly authorized, have no
authority to act for or represent the Fund in any way or otherwise be deemed an
agent of the Fund.
4. Instructions to the Agent. The Agent shall act only upon Proper
Instructions, except as otherwise provided in this Agreement. The Agent shall
promptly take all appropriate steps necessary to carry out or comply with any
Proper Instructions received from the Fund.
5. Agent Compensation. In consideration for the services to be
performed by the Agent, the Agent shall be entitled to receive from the Fund
such compensation and reimbursement for all reasonable out-of-pocket expenses as
may be agreed upon from time to time between the Agent and the Fund in advance
and in writing. The Fund agrees to pay the Agent compensation as described in
Appendix C attached hereto. It is agreed that fees set forth in Appendix C may
be increased with not less than 60 days written notice upon written agreement of
the parties. In the event that Appendix B is amended such that significant
additional services as requested by the Fund are required from the Agent on an
on-going basis, with the approval of the Fund, additional fees may be charged.
The fee for the period from the day of the year this Agreement is entered into
until the end of that year shall be prorated according to the proportion that
such period bears to the full annual period.
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6. Right to Receive Advice.
(a) Advice of the Fund. If Agent is in doubt as to any action
it should or should not take, Agent shall request directions or advice,
including Proper Instructions, from Accessor Capital or the Fund.
(b) Advice of Counsel. If Agent shall be in doubt as to any
question of law pertaining to any action it should or should not take,
Agent shall request advice from counsel of its own choosing at its own
expense.
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Proper Instructions Agent receives from the Fund
or Accessor Capital and the advice Agent receives from counsel, Agent
shall inform the Fund or Accessor Capital of the conflict and seek
resolution.
(d) Nothing in this subsection shall excuse the Agent when an
action or omission on the part of the Agent constitutes willful
misfeasance, lack of good faith, negligence or reckless disregard by
the Agent of any duties, obligations or responsibilities set forth in
this Agreement.
7. Liability of the Agent.
(a) The Agent may rely upon the written advice of counsel for
the Fund and the Fund's independent accountants and, for any actions
reasonably taken in good faith reliance upon such advice or statements
and without negligence, the Agent shall not be liable to anyone. The
Agent may rely upon oral or written statements of brokers and other
persons reasonably believed by the Agent in good faith to be expert in
the matters upon which they are consulted and, in resolving issues in
consultation with Accessor Capital, Fund counsel or the Fund's
independent accountants, the Agent shall not be liable to anyone for
any actions reasonably taken in good faith reliance upon such advice or
statements and without negligence.
(b) Nothing herein contained shall be construed to protect the
Agent against any liability to the Fund or its share holders to which
the Agent would otherwise be subject by reason of willful misfeasance,
bad faith or negligence in the performance of its duties.
(c) Except as may otherwise be provided by applicable law,
neither the Agent nor its shareholders, officers, directors, employees
or agents shall be subject to, and the Fund shall indemnify and hold
such persons harmless from and against, any liability for and any
damages, expenses or losses incurred by reason of the inaccuracy of
factual information furnished to the Agent by an Authorized Person of
the Fund.
(d) The Agent shall ensure that it has and maintains Errors
and Omissions Insurance for the services rendered under this Agreement
of at least $1 million (provided
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the Board of Directors of the Fund may by resolution approve some
lesser amount). The Agent shall provide to the Fund annually upon
request a certificate from the appropriate errors and omissions
insurance carrier(s) certifying that such Errors and Omissions
Insurance is in full force and effect.
(e) The Agent shall be obligated to exercise commercially
reasonable 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. The Agent shall be liable for actual damages arising out of
the Agent's failure to perform its duties under this Agreement to the
extent such damages arise out of the Agent's willful misfeasance, lack
of good faith, negligence or reckless disregard of such duties.
(f) The Agent agrees to indemnify and hold harmless Accessor
Capital and the Fund from all taxes, charges, expenses, 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) reasonable attorneys' fees and disbursements
arising from any action or omission of the Agent's own willful
misfeasance, lack of good faith, negligence or reckless disregard of
its duties and obligations under this Agreement. For any legal
proceeding giving rise to this indemnification, the Agent shall be
entitled to defend or prosecute any claim in the name of Accessor
Capital or the Fund at the Agent's own expense through counsel of its
own choosing if it gives written notice to Accessor Capital or the Fund
within ten (10) business days of receiving notice of such claim.
8. Reports. Whenever, in the course of performing its duties under this
Agreement, the Agent determines, on the basis of information supplied to the
Agent by the Fund or its authorized agents, that a violation of applicable law
has occurred or that, to its knowledge, a possible violation of applicable law
may have occurred or, with the passage of time, would occur, the Agent shall
promptly notify Accessor Capital, the Fund and its counsel.
9. Activities of the Agent. The services of the Agent under this
Agreement are not to be deemed exclusive, and the Agent shall be free to render
similar services to others so long as its services hereunder are not impaired
thereby.
10. Accounts and Records. The accounts and records maintained by the
Agent shall be the property of the Fund. Such accounts and records shall be
prepared, maintained and preserved as required by the Investment Company Act and
other applicable securities laws, rules and regulations. Such accounts and
records shall be surrendered to the Fund promptly upon receipt of Proper
Instructions from the Fund in the form in which such accounts and records have
been maintained or preserved. The Fund and Authorized Persons shall have access
to such accounts and records at all times during the Agent's normal business
hours. Upon the reasonable request of the Fund, copies of any such books and
records shall be provided by the Agent to the Fund or to an Authorized Person,
at the Fund's expense. The Agent shall assist the Fund, the Fund's independent
auditors, or, upon approval of the Fund, any regulatory body, in any requested
review of the Fund's accounts and records, and reports by the Agent or its
independent
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accountants concerning its accounting system and internal auditing controls will
be open to such entities for audit or inspection upon reasonable request.
11. Confidentiality. The Agent agrees that it will, on behalf of itself
and its officers and employees, treat all transactions contemplated by this
Agreement, and all other information germane thereto (past, present and future),
as confidential and not to be disclosed to any person except as may be
authorized by the Fund in Proper Instructions in writing.
12. Compliance with Rules and Regulations. The Agent undertakes to
comply with all applicable requirements of the Investment Company Act and other
applicable securities laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed by
the Agent hereunder. Except as specifically set forth herein, the Agent assumes
no responsibility for such compliance by Accessor Capital, the Fund or any
Portfolio.
13. Liaison with Accountants. The Agent shall act as liaison with the
Fund's independent public accountants and shall provide account analysis, fiscal
year summaries, and other audit-related schedules with respect to the serviced
provided to each Portfolio. The Agent shall take all reasonable action in the
performance of its duties under this Agreement to assure that the necessary
information in the Agent's control is made available to such accountants for the
expression of their opinion, as required by the Fund.
14. Business Interruption Plan. The Agent shall maintain in effect a
business interruption plan, and enter into any agreements necessary with
appropriate parties making reasonable provisions for emergency use of electronic
data processing equipment customary in the industry. In the event of equipment
failures, the Agent shall, at no additional expense to the Fund, take reasonable
steps to minimize service interruptions. The Agent 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 the Agent's own willful
misfeasance, lack of good faith, negligence or reckless disregard of its duties
or obligations under this Agreement.
15. Duration and Termination of this Agreement. This Agreement shall
continue until terminated by either Accessor Capital, the Fund or Agent on sixty
(60) days' prior written notice to the other party. If service is terminated due
to Agent's failure to meet its obligations under this Agreement (for "cause"),
after written notice documenting such failure and reasonable opportunity to cure
within 15 days, then from the date Notice of Termination is given, there will be
no charges for services for a period not to exceed sixty (60) days.
Termination for "cause" shall mean:
(a) Willful misfeasance, bad faith, negligence, abandonment,
or reckless disregard on the part of the Agent with respect to its
obligations and duties hereunder;
(b) Regulatory, administrative, or judicial proceedings
against the Agent which result in a determination that it has violated
any rule, regulation, order, or law and
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which in the reasonable judgement of the Fund, substantially impairs
the performance of Agent's obligations and duties hereunder;
(c) Financial difficulties on the part of the Agent which are
evidenced 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 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;
(d) Any other circumstance which in the reasonable judgement
of the Fund, substantially impairs the performance of the Agent's
obligations and duties hereunder.
Upon termination of this Agreement, the Agent shall deliver to
the Fund or as otherwise directed in Proper Instructions (at the expense of the
Fund, unless such termination is for breach of this Agreement by the Agent) all
records and other documents made or accumulated in the performance of its duties
for the Fund hereunder.
16. Assignment. This Agreement shall extend to and shall be binding
upon the parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by the Fund without the
prior written consent of the Agent, or by the Agent without the prior written
consent of the Fund.
17. Governing Law. The provisions of this Agreement shall be construed
and interpreted in accordance with the laws of the State of Colorado, and the
1940 Act and the rules thereunder. To the extent that the laws of the State of
Colorado conflict with the 1940 Act or such rules, the latter shall control.
18. Names. The obligations of "Accessor Funds" entered into in the name
or on behalf thereof by any of the Directors, representatives or agents are made
not individually, but in such capacities, and are not binding upon any of the
Directors, shareholders, or representatives of the Fund personally, but bind
only the Fund Property, and all persons dealing with any portfolio of the Fund
must look solely to the Fund Property belonging to such portfolio for the
enforcement of any claims against the Fund.
19. Amendments to this Agreement. This Agreement may only be amended by
the parties in writing.
20. Notices. All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by telex
or facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
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To the Agent:
ALPS Mutual Funds Services, Inc.
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
To the Fund:
Accessor Funds, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
To Accessor Capital:
Accessor Capital Management LP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxxxx
Fax: (000) 000-0000
21. Counterparts. This Agreement may be executed by the parties hereto
on any number of counterparts, and all of said counterparts taken together shall
be deemed to constitute one and the same instrument.
22. Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that Accessor
Capital and the Agent may embody in one or more separate documents their
agreement, if any, with respect to delegated duties and oral instructions.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
ACCESSOR FUNDS, INC. ALPS MUTUAL FUNDS SERVICES, INC.
By: ________________________________ By: ________________________________
Name: ______________________________ Name: _______________________________
Title: _____________________________ Title: _____________________________
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APPENDIX A
ACCESSOR FUNDS
--------------
Actively Managed Funds
----------------------
Growth Fund
Value Fund
Small to Mid Cap Fund
International Equity Fund
High Yield Fund
Intermediate Fixed-Income Fund
Short-Intermediate Fixed-Income Fund
Mortgage Securities Fund
U.S. Government Money Fund
Allocation Funds
----------------
Accessor Income Allocation Fund
Accessor Income & Growth Allocation Fund
Accessor Balanced Allocation Fund
Accessor Growth & Income Allocation Fund
Accessor Growth Allocation Fund
Accessor Aggressive Growth Allocation Fund
APPENDIX B
SERVICES
--------
FUND ACCOUNTING
---------------
* Maintain separate accounts for each Portfolio, all as directed from
time to time by Proper Instructions.
* Compute net asset value and, as appropriate, compute yields, expense
ratios, portfolio turnover rate and, if required, portfolio average
dollar-weighted maturity.
* Obtain security market quotes from independent pricing services, if
available, approved by Accessor Capital or the Fund, or if such quotes
are unavailable, then obtain such prices pursuant to the Fund's
valuation policies and procedures, and in either case calculate the
market value of each Portfolio's investments.
* Timely calculate and transmit to NASDAQ each Portfolio's daily net
asset value and public offering price (such determinations to be made
in accordance with the provisions of the Fund's Articles of
Incorporation and the then-current prospectuses and statements of
additional information relating to the Portfolios, and any applicable
resolutions and policies and procedures of the Board of Directors of
the Fund) and promptly communicate such values and prices to the Fund
and the Fund's transfer agent.
* Maintain and keep current all books and records of the Portfolios as
required by Section 31 of the Investment Company Act of 1940, as
amended, and the rules thereunder, in connection with the Agent's
duties hereunder. The Agent shall comply with all laws, rules and
regulations applicable to the performance of its obligations hereunder.
Without limiting the generality of the foregoing, the Agent will
prepare and maintain the following records upon receipt of information
in proper form from Authorized Persons of the Fund:
(i) Cash receipts journal
(ii) Cash disbursements journal
(iii) Dividend records
(iv) Purchase and sales - portfolio securities journals
(v) Subscription and redemption journals
(vi) Security ledgers
(vii) Broker ledger
(viii) General ledger
(ix) Daily expense accruals
(x) Daily income accruals
(xi) Foreign currency journals
(xii) Trial balances
(xiii) Historical tax lots for each security
Appendix B-1
* Prepare the accrual analysis on a monthly basis and notify an officer
of the Fund of any accrual issues.
* Verify investment buy/sell trade tickets when received from the Money
Manager of each Portfolio and reconcile trades with the Fund's
custodian (the "Custodian") for proper settlement;
* Instruct Custodian to make disbursements from a Portfolio into the DDA
account upon Written Instructions from Accessor Capital.
* Reconcile cash and investment balances with the Custodian and provide
Accessor Capital and the investment adviser for a Portfolio (the "Money
Manager") with the beginning cash balance available for investment
purposes daily.
* Provide Accessor Capital, the Fund and the Money Managers with daily
Portfolio values, net asset values and other statistical data for each
Portfolio as requested from time to time.
* Compute the net income and capital gains and losses of each Portfolio
and calculate dividend rates in accordance with relevant prospectus
policies and resolutions of the Board of Directors of the Fund and, as
appropriate, prepare Certificates of Treasurer (or other agreed upon
procedures).
* Provide the Fund and its investment adviser(s) with information
necessary for the timely preparation of the Fund's Federal, state and
excise tax returns, prospectus updates, Rule 24f-2 filings and proxy
statements.
* Furnish to the Fund at the end of every month, and at the close of each
quarter of the Fund's fiscal year, a list of the portfolio securities
and the aggregate amount of cash in the Portfolios.
* Assist in the preparation of certain reports, audits of accounts, and
other matters of like nature, as reasonably requested from time to time
by the Fund.
* Prepare monthly reports with the information to allow the Fund to
prepare a 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
* Supply portfolio data maintained on Agent's system in an electronic
format on an on-going basis, as agreed upon by the parties, and may be
amended from time to time.
Appendix B-2
ADMINISTRATION
* Prepare an initial draft of the Fund's annual and semi-annual financial
statements, excluding related management discussion and analysis and
footnotes and assist in the completion of the Fund's Annual Report and
Semi-Annual Report.
* Provide the Fund and its investment adviser(s) with information
necessary for, and generally assist the Fund in performing the
following functions:
(i) portfolio compliance testing
(ii) fund expense budgeting
(iii) calculation of income and capital gain distributions in
compliance with the Internal Revenue Code
(iv) preparation of Form N-SAR
(v) monitor each Portfolio's status as a regulated investment
company under Sub-chapter M of the Internal Revenue Code of
1986, as amended
* Review, as requested, fund documents including annual and semi-annual
reports and fund prospectuses.
* Provide facilities, information and personnel, as necessary, to
accommodate annual audits with the Fund's independent accountants, or
examinations conducted by the Securities and Exchange Commission or
other governmental entities.
* Provide a written quarterly report for the Fund's Board of Trustees
regarding the services provided for the Fund and such other materials
as are requested by Accessor Capital including but not limited to:
* quarterly schedule of aged receivables, by country for
holdings of the International Equity Fund.
* quarterly broker security transactions summaries.
* Provide such information to a Portfolio's Money Manager as shall be
mutually agreed upon between the Money Manager and the Agent to allow
the Money Manager to monitor the Portfolio's compliance with certain
requirements of the Investment Company Act and the Fund's registration
statement on Form N-1A.
Appendix B-3
APPENDIX C
FEES AND EXPENSES
-----------------
BASE FEE (CALCULATED DAILY, PAYABLE MONTHLY)
--------------------------------------------
Actively Managed Funds: annual fee of the greater of
* $270,000; or
* .02% (2 basis points) of combined average daily net assets of
the Actively Managed Funds up to $750 million, and .0175%
(1.75 basis points) thereafter.
Allocation Funds: annual fee of .03% (3 basis points) of combined
average daily net assets of the Allocation Funds.
OUT-OF-POCKET EXPENSES
----------------------
Securities Pricing
AUTHORIZED PERSONS APPENDIX
FUND ACCOUNTING AND SERVICES AGREEMENT
NAME SIGNATURE
Xxxxxxxx X. Xxx ______________________________
J. Xxxxxxx Xxxxxxx III ______________________________
Xxxxx X. Xxxxxxx ______________________________
Xxxxxx X. Xxxxxx ______________________________
Xxxxxxxxx X. Xxxxxxxxx ______________________________
