MASTER FUND ACCOUNTING SERVICES AGREEMENT
AGREEMENT made as of the ____ day of ____________, 1999, by and between
Lifetime Achievement Fund, Inc. (the "Fund") and Mackenzie Investment
Management, Inc. (the "Agent").
WHEREAS, the Fund is an open-end investment company registered with the
Securities and Exchange Commission (the "SEC") under the Investment Company Act
of 1940 (the "1940 Act");
WHEREAS, the Fund desires certain accounting and pricing services of the
Agent as shall be designated in supplements to this Agreement as further agreed
between the Fund and the Agent; and
WHEREAS, the Agent has developed the capability to provide certain of the
accounting and pricing services required by the Fund.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
1. DUTIES OF AGENT - GENERAL.
The Agent is authorized to act under the terms of this Agreement as the
Fund's agent, and as such will:
a. Maintain and preserve the Fund's accounts, books, records and other
documents as are required of the Fund under Section 31 of the 1940 Act
and Rules 31a-1 and 31a-2 thereunder;
b. Record the current day's trading activity and such other proper
bookkeeping entries as are necessary for determining that day's net
asset value for the Fund;
c. Render statements or copies of records for the Fund from time to time
as requested by the Fund (see Exhibit A);
d. Facilitate audits of accounts by the Fund auditors or by any other
auditors employed or engaged by the Fund or by any regulatory body
with jurisdiction over the Fund; and
e. Compute the Fund's net asset value per share and, if applicable, its
public offering price, total returns and yields, and notify the Fund
and such other
persons as the Fund may reasonably request of the net asset value per
share, the public offering price and/or the total return or yield.
2. VALUATION OF SERVICES.
Securities will be valued in accordance with the specific provisions of the
Fund's Prospectus.
3. COMPUTATION OF NET ASSET VALUE, PUBLIC OFFERING PRICE, TOTAL RETURNS AND
YIELDS.
The Agent will compute the Fund's net asset value in a manner consistent
with the specific provisions of the Fund's Prospectus. [In general, such
computation will be made by dividing the value of the Fund's portfolio
securities, cash and any other assets, less its liabilities, by the number of
shares of the Fund outstanding, adjusted to the nearest cent. Such computation
will be made as of the close of regular trading on the New York Stock Exchange
(normally 4:00 p.m. Eastern time) on each day that the New York Stock Exchange
is open for trading. If applicable, the Agent will also compute the public
offering price by dividing the net asset value per share by the appropriate
factor as provided by the Fund; the total return; and the yield.]
4. AGENT'S RELIANCE ON INSTRUCTIONS AND ADVICE.
In maintaining the Fund's books of account and making the necessary
computations, the Agent shall be entitled to receive, and may rely upon, (i)
information furnished by a pricing or other similar service pursuant to an
agreement between the Agent, on behalf of the Fund, and such service provider,
approved by the Fund's Board of Directors, and (ii) information furnished it by
any authorized officer of the Fund relating to:
a. The manner and amount of accrual of expenses other than management
fees to be recorded on the books of the Fund;
b. If applicable, the source of quotations to be used for such portfolio
securities as may not be available through the Agent's normal pricing
services;
c. If applicable, the value to be assigned to any portfolio security or
other asset for which no price quotations are readily available;
d. If applicable, the manner of computation of the public offering price
and such other computations as may be necessary; and
e. Notification of transactions in portfolio securities.
-2-
The Agent shall be entitled to rely upon any certificate, letter or other
instrument or telephone call reasonably believed by the Agent to be genuine and
to have been properly made or signed by an officer or other authorized agent of
the Fund, on behalf of the fund, and shall be entitled to receive as conclusive
proof of any fact or matter required to be ascertained by it hereunder a
certificate signed by an officer of the Fund, on behalf of the Fund or any other
person authorized by the Fund's Board of Directors. The Agent may assume that
any certificate, letter or other instrument or telephone call received hereunder
is not in any way inconsistent with the provisions of organizational documents
or this Agreement or of any vote, resolution or proceeding of the Fund's Board
of Directors or of the Fund's shareholders, unless and until the Agent receives
written notice to the contrary.
The Agent shall be entitled to receive and act upon advice of counsel
(which may be counsel for the Fund) at the expense of the Fund and shall be
without liability for any action taken or thing done in good faith in reliance
upon such advice.
The Fund agrees to furnish the Agent with a copy of the Fund's Prospectus
as in effect from time to time.
5. DUTY OF CARE AND INDEMNIFICATION.
The Agent shall at all times use reasonable care and act in good faith in
performing its duties hereunder. The Agent shall incur no liability to the Fund
in connection with its performance of services hereunder, except to the extent
that it does not comply with the foregoing standards.
The Fund agrees to indemnify and hold harmless the Agent and its employees,
agents and nominees from all taxes, charges, expenses, assessments, claims and
liabilities (including attorneys' fees) incurred or assessed against them in
connection with the performance of this Agreement, except such as may arise from
the Agent's own willful misfeasance, bad faith, gross negligence, or reckless
disregard of its duties, obligations or responsibilities set forth in this
Agreement.
Notwithstanding anything in this Agreement to the contrary, neither the
Agent nor its affiliates shall be liable to the Fund for any consequential,
special or indirect losses or damages which the Fund may incur or suffer by or
as a consequence of the Agent's or its affiliates' performance of the services
provided hereunder, whether or not the likelihood of such losses or damages was
known by the Agent or its affiliates.
Without limiting the generality of the foregoing, the Agent's
responsibility for damage or loss arising from service interruptions caused by
equipment failure, military power, war, insurrection, or nuclear fission, fusion
or radioactivity shall be limited to
-3-
the use of the Agent's reasonable efforts to recover the Fund's records
determined to be lost, missing or destroyed.
6. COMPENSATION AND AGENT'S EXPENSES.
The Agent shall be paid for its services pursuant to this Agreement such
compensation as may from time to time be agreed upon in writing between the two
parties. The Agent shall be entitled to recover its reasonable telephone,
delivery and other out-of-pocket expenses as incurred.
The Fund shall pay the Agent a monthly fee based upon the rate(s) set forth
in a Fee Schedule attached to this Agreement as Exhibit B. The Fund shall be
responsible for fees incurred in connection with a pricing or other similar
service furnishing information pursuant to Section 4 of this Agreement.
If the fees payable to the Agent pursuant to this Section begin to accrue
before the end of any month or if this Agreement terminates before the end of
any month, the fees for the period from that date to the end of that month or
for the period from the beginning of that month to the date of termination, as
the case may be, shall be prorated according to the proportion which the period
bears to the full month in which the effectiveness or termination occurs. For
purposes of calculating the monthly fees, the value of the net assets of the
Fund shall be computed in the manner specified in the Fund's Prospectus for the
computation of its net asset value.
7. TERMINATION AGREEMENT.
This Agreement may be terminated by either party upon at least sixty (60)
days' prior written notice to the other party. Upon termination of this
Agreement with respect to the Fund, the Agent will turn over to the Fund, at the
Fund's expense, and cease to retain in the Agent's files, records of the
calculations of the net asset value of the Fund and other records pertaining to
its services hereunder; PROVIDED, that the Agent may, at the Fund's expense,
make and retain copies of any such records. In the event that in connection with
the termination of this Agreement with respect to the Fund, a successor to any
of the Agent's duties or responsibilities hereunder is designated by the Fund by
written notice to the Agent, the Agent will cooperate in the transfer of such
duties and responsibilities, and the Fund shall pay any reasonable expenses
associated with transferring the books and records of the Fund.
8. REPORTS AND MAINTENANCE OF RECORDS BY AGENT.
The Agent will furnish to the Fund and to properly authorized auditors,
examiners, distributors, dealers, underwriters, salesmen, insurance companies,
-4-
investors, and others designated by the Fund in writing, such books, records,
and reports at such times as are prescribed for each service in Exhibit A
attached hereto. The Fund shall examine or shall cause any other authorized
recipient to examine promptly each such book, record, or report, or copy
thereof, and shall report or shall cause to be reported any errors or
discrepancies therein, but the Fund's failure to observe or report any such
error or discrepancy shall not relieve the Agent of its responsibilities or
liabilities as agreed to under the terms of this Agreement. The Agent may at its
option at any time and shall forthwith upon the Fund's demand turn over to the
Fund and cease to retain in the Agent's files, records and documents created and
maintained by the Agent pursuant to this Agreement that are no longer needed by
the Agent in the performance of its services or for its protection.
If not so turned over to the Fund, such documents and reports will be
retained by the Agent for six years from the year of creation, during the first
two of which the same will be in readily accessible form. At the end of six
years, such records and documents shall be turned over to the Fund by the Agent
unless the Fund authorizes their destruction.
Upon the reasonable request of the Fund or its agents, copies of any such
records shall be provided by the Agent to the Fund or to an authorized person of
the Fund, at the Fund's expense.
9. TERM.
The term of this Agreement shall begin as of the date first set forth above
and unless sooner terminated as hereinafter provided, this Agreement shall
remain in effect for a period of one year from that date. Thereafter, this
Agreement shall continue in effect with respect to the Fund from year to year,
subject to the termination provisions and all other terms and conditions hereof.
10. INTERPRETATION AND DEFINITION OF TERMS.
Any question or interpretation of any term or provision of this Agreement
having a counterpart in or otherwise derived from a term or provision of the
1940 Act, as amended, shall be resolved by reference to such term or provision
of the 1940 Act and to interpretation thereof, if any. Specifically, the terms
"interested persons," "affiliated person," and "assignment," as used in this
Agreement, shall have the meanings assigned to them by Section 2(a) of the 1940
Act.
11. SOFTWARE AND RELATED MATERIALS.
All computer programs, written procedures, and similar items developed
or acquired and used by the Agent in performing its obligations under this
Agreement
-5-
shall be the property of the Agent, and the Fund will not acquire any ownership
interest therein or property rights with respect thereto.
12. SERVICES TO OTHER CLIENTS.
Nothing herein contained shall limit the freedom of the Agent or any
affiliated person of the Agent to render services of the types contemplated
hereby to other persons, firms or corporations, including but not limited to
other investment companies, or to engage in other business activities.
13. MISCELLANEOUS.
a. This Agreement shall be governed and construed in accordance with the
laws of Florida, provided that nothing herein shall be construed in a
manner inconsistent with the 1940 Act.
b. This Agreement may not be assigned by either party without the written
consent of the other party. The Agent may, with notice to and consent
on the part of the Fund, which consent shall not be unreasonably
withheld, subcontract for the performance of certain services under
this Agreement to qualified service providers.
c. The captions of this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
d. The Fund's Articles of Incorporation, together with any amendments
thereto, have been filed with the Secretary of State of the State of
Maryland. The obligations of the Fund are not personally binding upon,
nor shall resort be had to the private property of, any of the
trustees, shareholders, officers, employees or agents of the Fund, but
only the Fund's property shall be bound.
e. In connection with the operation of this Agreement, the Fund and the
Agent may agree from time to time on such provisions interpretive of
or in addition to the provisions of this Agreement as in their joint
opinions may be consistent with the general tenor of this Agreement.
Any such interpretive or additional provisions are to be signed by
both parties and annexed hereto, but no provision shall be deemed to
be an amendment of this Agreement.
f. Nothing in this Agreement shall give or be construed to give any
shareholder of the Fund any rights against the Agent.
-6-
g. All notices and other communications shall be in writing or by
confirming telegram, cable, telex or facsimile sending device. Notices
shall be addressed (a) if to the Agent, at Via Xxxxxx Financial Plaza,
000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000 Xxxx Xxxxx, XX 00000, Attn: C.
Xxxxxxx Xxxxxx; (b) if to the Fund, at 00000 Xxxx Xxxxx Xxxx, Xxxxx,
Xxxxxxxx 00000, Attn: Xxxxxx X. Xxxxxxx; or (c) if to neither of the
foregoing, at such other address as shall have been given by like
notice to the sender of any such notice or other communication by the
other party. If notice is sent during regular business hours, by
confirming 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 or overnight
mail, it shall be deemed to have been given on the day it is
delivered.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
LIFETIME ACHIEVEMENT FUND, INC.
By:
-------------------------------
Xxxxxx X. Xxxxxxx, President
MACKENZIE INVESTMENT
MANAGEMENT, INC.
By:
-------------------------------
C. Xxxxxxx Xxxxxx, Senior Vice
President
-7-
EXHIBIT A
Fund Accounting Services Agreement
STANDARD REPORTS AND AVAILABILITY
The following reports will be provided to the Fund on a regular basis with
availability as indicated:
A. Daily
1. Printed Trial Balance
2. Net Asset Value Worksheet
3. Cash Forecast
4. Yield Computation, if applicable
B. Weekly - Tax Lot Ledgers
C. Monthly
1. Tax Lot Ledgers as of month-end
2. Working Appraisal as of month-end
3. Purchase and Sale Journal for the month
4. Summary of Gains and Losses on Securities for the month
5. Dividend Ledger for the month (receivable as of month-end and earned)
6. Interest Income Analysis for the month (receivable as of month-end and
earned)
7. Trial Balance as of month-end
8. Net Asset Value Worksheet as of month-end
9. Open Trades (payable and receivable for unsettled securities
transactions)
D. Annually
1. Purchase and Sale Journal for the year
2. Summary of Gains and Losses on Securities for the year
3. Broker Allocation Report for the year
-8-
EXHIBIT B
Fund Accounting Services Agreement
Fee Schedule
NET ASSETS OF FUND AT PRECEDING MONTH'S END MONTHLY FEE
------------------------------------------- -----------
$0 - $10 million $1,250
$10 million - $40 million $2,500
$40 million - $75 million $5,000
Over $75 million $6,500
-9-
