EXHIBIT 9.3
RECORDKEEPING AND PRICING AGENT AGREEMENT
THIS AGREEMENT made to be effective as of this ___ day of ____________,
199__ , by and between XXXXXX INVESTMENT PORTFOLIO TRUST, a Delaware business
trust, referred to as the "Fund," consisting of separate portfolios
represented by separate series of shares of beneficial interest, (referred to
herein, together with any such portfolios hereafter constituted, where
appropriate, individually as a "Portfolio," and collectively as the
"Portfolios"), having its place of business at 000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000 ("Fund"), and INVESTORS FIDUCIARY TRUST
COMPANY, a state chartered trust company organized and existing under the
laws of the State of Missouri, having its principal place of business at 000
Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx, 00000 ("IFTC"):
WITNESSETH:
WHEREAS, Fund desires to appoint IFTC as Recordkeeping and Pricing Agent
and IFTC desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto, intending to be legally bound, mutually covenant and agree
as follows:
1. APPOINTMENT OF RECORDKEEPING AND PRICING AGENT
Fund hereby constitutes and appoints IFTC as Recordkeeping and Pricing
Agent to calculate the daily net asset value of each Portfolio and to
perform certain accounting and recordkeeping functions required of Fund
as a registered investment company under the Investment Company Act of
1940, as amended (the "Act"); to provide certain information
necessary for Fund to file financial and other reports; to prepare,
maintain and preserve certain required books, accounts and records as
the basis for such reports; to perform certain daily functions in
connection with such accounts and records; and, upon request, to act as
liaison with the Fund's independent auditors.
2. DELIVERY OF CORPORATE DOCUMENTS
Fund shall deliver to IFTC prior to the effective date of this
Agreement copies of a resolution of the Trustees of Fund certified by
the Secretary or Assistant Secretary of the Fund, appointing IFTC as
Recordkeeping and Pricing Agent for Fund and approving the form of this
Agreement. Fund shall also deliver a resolution of the Trustees of the
Fund designating certain persons to give instructions on behalf of the
Fund to IFTC, and authorizing IFTC to rely upon written instructions
over his/her/their signatures.
3. REPRESENTATIONS AND WARRANTIES OF FUND
A. Fund represents and warrants that it is a business trust duly
organized as an investment company and existing and in good
standing under the laws of the State of Delaware;
B. Fund represents and warrants that it has the power and authority
under applicable laws, its Trust Instrument and bylaws, and has
taken all action necessary to enter into and perform this
Agreement, including appropriate authorization from the Fund's
Trustees;
C. Fund represents and warrants that it has determined that the
automated data processing system on which IFTC shall prepare,
maintain and preserve the books and records of the Fund (the
"Portfolio System") is suitable for its needs;
D. Fund acknowledges that IFTC, as Licensee, and DST Systems, Inc.,
as Licensor ("Licensor"), have proprietary rights in and to the
Portfolio System and that the Portfolio System and the programs,
documentation, books, records, lists, pricing schedules, designs,
plans and other information relating to the Portfolio System or
the business of IFTC ("IFTC Confidential Information") are
confidential and constitute trade secrets of IFTC;
E. During the term of this Agreement and for a period of five years
after termination of this Agreement, Fund shall preserve the
confidentiality of the IFTC Confidential Information and prevent
its disclosure to persons other than its own employees and agents
who reasonably have a need to know or have access to the
IFTC Confidential Information pursuant to this Agreement, and
shall take appropriate action to protect the rights of IFTC and
Licensor as to the IFTC Confidential Information, including,
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but not limited to notification to all employees and agents of
the Fund of the necessity to maintain the confidentiality of IFTC
Confidential Information, provided, that IFTC shall be solely
responsible for protecting any trademarks, patents, copyrights
and licenses against unauthorized use and infringement by parties
other than the Fund, its employees and agents.
4. REPRESENTATION AND WARRANTIES OF IFTC
A. IFTC is a trust company duly organized and existing and in good
standing under the laws of the State of Missouri.
B. IFTC has the power and authority under applicable laws, its
charter and bylaws, and has taken all action necessary, to enter
into this Agreement and perform the services contemplated herein,
and this Agreement constitutes a legal, valid and binding
obligation of IFTC, enforceable in accordance with its terms.
C. IFTC has obtained and shall maintain throughout the term of this
Agreement all necessary proprietary rights and approvals, licenses
and permits which are required for IFTC to perform its duties and
obligations hereunder and to use the Portfolio System.
D. IFTC presently has, and shall maintain throughout the term of
this Agreement, facilities, equipment, computer hardware and
software, and personnel necessary to perform its duties and
obligations under this Agreement, and shall maintain or otherwise
have readily available, reasonable back-up facilities and
equipment to ensure that there is no material interruption in the
services contemplated by this Agreement, except as provided in
Section 7 hereof.
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5. DUTIES AND RESPONSIBILITIES OF IFTC
A. DELIVERY OF RECORDS.
Fund shall turn over to IFTC all of Fund's accounts and records
previously maintained relating to the services to be provided by
IFTC hereunder. IFTC shall be entitled to rely conclusively on
the completeness and correctness of the accounts and records
turned over to it by Fund or its previous service provider and
Fund shall indemnify and hold IFTC harmless of and from any and
all costs, expenses, damages, losses and liabilities whatsoever,
including attorney's fees (collectively, "Damages"), arising out
of or in connection with any error, omission, inaccuracy or other
deficiency of such accounts and records or in the failure of Fund
or its previous service provider to provide any portion of such
account and records or to provide any information needed by IFTC
to perform its function hereunder.
B. ACCOUNTING AND PORTFOLIO DUTIES.
IFTC shall perform the duties specified on Schedule A attached
hereto.
C. ACCOUNTS AND RECORDS
1. IFTC, with the direction of the Fund, its accountants and/or
its advisors, shall prepare, maintain and preserve all books,
records, ledgers, journals, accounts and other documents,
containing such information as may be required from time to
time under the Act relating to the activities performed by
IFTC pursuant to Schedule A (the "Records"); preserve the
Records in an readily accessible location for at least the
periods required under the Act, at all times during the term
of this Agreement and, as may be reasonably necessary,
following the termination of this Agreement, make the Records
available for examination by the Securities and Exchange
Commission, the Fund, the Fund's accountants and such other
persons as the Fund may deem appropriate; and maintain
facilities and equipment necessary for producing readable
projections or hard copies of Records. Notwithstanding the
terms of this Section C.1. as heretofore provided, IFTC shall
not be responsible for maintaining or furnishing such Records
after termination of the Agreement to the extent that such
Records have been forwarded to the Fund or its agent.
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Hard copies of Records will be furnished to the Fund without
additional cost unless such requests for Records are unusual,
repetitive, require special handling, or otherwise reasonably
warrant the Fund's reimbursement for the costs associated
therewith. The Fund shall pay for the costs of maintaining
microfiche records.
2. It shall be the responsibility of Fund to furnish IFTC
with the declaration, record and payment dates and amounts of
any dividends or other distributions, other special actions,
and the value or price of the securities in Fund's portfolio
to the extent such information is not available from generally
accepted securities industry services or publications. IFTC
shall incur no liability and Fund shall indemnify and hold
IFTC harmless from any liability in connection with the Fund's
furnishing of such information.
3. The accounts, books and records prepared, maintained and
preserved by IFTC pursuant to this Agreement shall be the
property of the Fund and shall be made available to the Fund
for inspection or reproduction promptly upon demand.
4. IFTC shall assist Fund's independent accountants, and upon
instruction from Fund or upon proper demand, shall assist any
court or regulatory body, in any requested review of Fund's
accounts and records prepared and maintained by IFTC. Fund
shall reimburse IFTC for all reasonable expenses and employee
time associated with any such review which is not part of
routine or normal periodic reviews, unless such expenses are
incurred as a result of a breach of this Agreement by IFTC or
IFTC's negligence or willful misconduct. For purposes of this
Agreement, routine or normal periodic reviews include the
annual audit of the Fund and routine interim audits or reviews
by the Fund's independent accountants and the routine reviews
by the Securities and Exchange Commission (SEC).
5. IFTC shall provide Fund with information for tax returns,
questionnaires, and periodic reports to shareholders and such
other reports and information as Fund may request in
conjunction with IFTC's stated duties hereunder. IFTC
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shall provide such information as soon as reasonably
practicable following the Fund's request or as may be
otherwise agreed to by the parties.
6. IFTC and Fund may from time to time adopt procedures as they
may agree upon, and IFTC may conclusively assume that any
procedure approved by Fund, or directed by Fund in the manner
prescribed by Section 6.B., does not conflict with or violate
any requirements of Fund's prospectus, Trust Instrument,
bylaws, or any law, rule or regulation applicable to Fund.
Fund shall be responsible to notify IFTC of any changes in its
prospectus, Trust Instrument, bylaws, or policies applicable
to the Fund which may necessitate changes in IFTC's
responsibilities or procedures. The Fund may conclusively
assume that any procedure adopted by IFTC does not conflict
with or violate any requirements of IFTC's charter, bylaws, or
any law, rule or regulation applicable to IFTC. IFTC shall be
responsible to notify the Fund of any changes in its charter,
bylaws, or policies which may affect the Fund's
responsibilities or procedures.
7. IFTC will calculate Portfolio's daily closing net asset value,
in accordance with the Fund's prospectus. IFTC will prepare
and maintain a daily valuation of securities held in the
Portfolios for which market quotations are available by the
use of outside services normally used and contracted for this
purpose; all other securities will be valued in accordance
with Fund's instructions.
6. LIMITATION OF LIABILITY OF IFTC
A. IFTC shall not be liable for any loss or damage resulting from its
action or omission to act or otherwise, except for any loss or damage
arising from any breach of this Agreement or any negligent act or
omission or willful misconduct of IFTC and IFTC shall indemnify and
hold harmless Fund from and against any Damages arising from such
breach, negligence or willful misconduct. Without limiting the
generality of the foregoing, IFTC will use best efforts to resolve to
the satisfaction of the Fund the effect on shareowners of any IFTC
error which causes an incorrect calculation of the net asset value of
the Portfolios and which effect is considered material, as such term
is generally used by accountants in the mutual fund industry. IFTC
shall not be
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liable for consequential, special, or punitive damages. IFTC may
request and obtain the advice and opinion of counsel for Fund or its
own counsel at the reasonable expense of Fund with respect to
questions or matters of law relating to its performance of this
Agreement, and it shall be without liability to Fund for any action
taken or omitted by it in good faith, in conformity with such advice
or opinion.
B. IFTC may rely, and be protected in acting in reliance upon any
instruction, advice, notice, consent, resolution, opinion,
certificate or other written instrument appearing to be genuine and
properly executed by an authorized representative of the Fund or
any oral instruction from an authorized representative of the Fund
("Instruction"), except trade instructions and adjustments to the
Fund's trial balance sheet, general ledger or balance sheet, which
must be in writing executed by two authorized representatives of
the Fund, unless IFTC has actual knowledge that any such
Instruction is incorrect or unauthorized.
C. IFTC shall be entitled to receive and Fund agrees to pay to IFTC,
on demand, reimbursement for such cash disbursements, costs and
expenses as may be agreed upon in writing from time to time by IFTC
and Fund.
D. During the term of this Agreement and for a period of five years
after termination of this Agreement, IFTC shall not use and shall
preserve the confidentiality of all accounting and financial
information, investment portfolio records including, but not limited
to, transactional information, share subscription and redemption
records, and other records made available to or created by IFTC
under the terms of this Agreement ("Fund Confidential Information"),
other than for purposes of complying with its duties and
responsibilities under this Agreement or as specifically authorized
by Fund in writing. IFTC shall prevent disclosure of Fund
Confidential Information to persons other than its own agents and
employees who reasonably have a need to know or have access to Fund
Confidential Information pursuant to this Agreement, and shall take
appropriate action to protect the rights of Fund in such Fund
Confidential Information including, but not limited to, notification
to all its employees and agents of the necessity to maintain the
confidentiality of Fund Confidential Information, provided, that
Fund shall be solely responsible for
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protecting any trademarks, patents, copyrights and licenses against
unauthorized use and infringement by parties other than IFTC, its
employees and agents.
7. FORCE MAJEURE
IFTC shall not be responsible or liable for any failure or delay in
performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation any interruption, loss or
malfunction of any utility, transportation, computer (hardware or
software) or communication service; or inability to obtain labor,
material, equipment or transportation; nor shall any such failure or
delay give Fund any additional right to terminate this Agreement.
8. ADDITIONAL FUNDS
IFTC shall act as Recordkeeping and Pricing Agent for additional
Portfolios upon 30 days notice to IFTC provided that IFTC consents in
writing in advance to such arrangement. Rates or charges for serving as
Recordkeeping and Pricing Agent for any such additional Portfolios
shall be as agreed to by IFTC and Fund in writing.
9. COMPENSATION
Fund shall pay to IFTC such compensation at such time as may from time
to time be agreed upon in writing by IFTC and Fund. The initial
compensation schedule is attached hereto as Schedule B.
10. TERMINATION
Either party to this Agreement may terminate same by notice in writing
received by the other party not less than sixty (60) days prior to the
date upon which such termination shall take effect. Upon termination of
this Agreement, Fund shall pay to IFTC such compensation for its
reimbursable disbursements, costs and expenses paid or incurred to such
date and Fund shall use its best efforts to obtain a successor agent.
IFTC shall, upon termination of this Agreement, deliver to the
successor so specified or appointed, or to Fund, at IFTC's office, all
books, records, ledgers, accounts, journals and other documents and
information then held by IFTC hereunder, all money, instruments and
other funds and other properties of Fund deposited with or held by IFTC
hereunder. In the event no written order designating a successor (which
may be Fund) shall have been delivered to IFTC on or before the date
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when such termination shall become effective, then IFTC shall deliver
such records, funds and properties of Fund to a bank or trust company
at the selection of IFTC having not less than $2,000,000 aggregate
capital, surplus and undivided profits as shown by its most recent
published report, and meeting the requirements of the Act, or if a
satisfactory successor cannot be obtained, IFTC may deliver the assets
to the Fund, at IFTC's offices or as otherwise agreed to between the
parties. Thereafter the Fund or such bank or trust company shall be the
successor under this Agreement and shall be entitled to reasonable
compensation for its services. Notwithstanding the foregoing
requirement as to delivery upon termination of this Agreement, IFTC may
make any other delivery of the records, funds and property of Fund
which shall be permitted by the Act and Fund's Trust Instrument or
bylaws then in effect.
11. NOTICES
Notices, requests, instructions and other writings received by Fund at
000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, or at such
address as Fund may have designated to IFTC in writing, shall be deemed
to have been properly given to Fund hereunder; and notices, requests,
instructions and other writings received by IFTC at its offices at 000
Xxxx 00xx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or to such other address
as it may have designated to Fund in writing, shall be deemed to have
been properly given to IFTC hereunder.
12. LIMITATION OF LIABILITY.
Notice is hereby given that the Fund is a business trust organized
under the Delaware Business Trust Act pursuant to a Certificate of
Trust filed in the office of the Secretary of State of the State of
Delaware. All parties to this Agreement acknowledge and agree that the
Fund is a series Fund and all debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to
a particular series shall be enforceable against the assets held with
respect to such series only, and not against the assets of the Fund
general or against the assets held with respect to any other series;
and further that no trustee, officer or holder of shares of beneficial
interest of the Fund shall be personally liable for any of the
foregoing.
13. MISCELLANEOUS
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A. This Agreement is executed and delivered in the State of Missouri
and shall be governed by the laws of said state.
B. All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto.
C. No provisions of the Agreement may be amended or modified in any
manner except by a written agreement properly authorized and
executed by both parties hereto.
D. The captions in the Agreement are included for convenience of
reference only, and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
E. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
F. If any part, term or provision of this Agreement is by the courts
held to be illegal, in conflict with any law or otherwise
invalid, the remaining portion or portions shall be considered
severable and not be affected, and the rights and obligations of
the parties shall be construed and enforced as if the Agreement
did not contain the particular part, term or provision held to be
illegal or invalid.
G. This Agreement may not be assigned by either party without prior
written consent of the other party.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective and duly authorized corporate or trust officers.
XXXXXX INVESTMENT PORTFOLIO TRUST
By:
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Title:
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INVESTORS FIDUCIARY TRUST COMPANY
By:
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Title:
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Schedule - A
ACCOUNTING AND PORTFOLIO DUTIES
In its capacity as the Recordkeeping and Pricing Agent for the Fund, IFTC
shall perform the following responsibilities:*
A. ON A DAILY BASIS.
1. Prepare available cash forecasts and communicate balances to the
Fund.
2. Review investment portfolio for cash and stock dividends and stock
splits.
3. Prepare compliance reports including data necessary to monitor
compliance with limitations prescribed by the Investment
Company Act of 1940 with respect to the types and amounts
of securities held in the Portfolio.
4. Review failed security transaction report; investigate failed
transactions and report status to Fund.
5. Prepare overdraft report with explanation of overdraft.
6. Post Fund share receivables and payables to the Fund's general
ledger; send general ledger reflecting all the day's activities
to Fund preferably by 3:30 p.m. Mountain time but in no event
later than 8 a.m. Mountain time the next day.
7. Reconcile ending share balance from transfer agent reports to
general ledger; report differences to Fund and resolve with the
transfer agent.
8. Enter security transactions reported by the Fund.
9. Post bank activity to general ledger; account for all items on
bank statements, and prepare and complete daily bank
reconciliations, including documentation of reconciling items.
10. Post manual journal entries to the general ledger.
11. Review current daily security transactions for dividends, splits
and other corporate activity.
12. Prepare Net Asset Value rollforward.
13. Review individual components of the change in each Portfolio's Net
Asset Value for accuracy and reasonableness.
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14. Enter manual prices.
15. Review pricing stratification report for unusual price movements
in individual securities; investigate and trace items to the
particular pricing sources; and consult with Fund. Review pricing
report for detection of stock splits and dividends, cash
dividends and corporate action. Review NAV for incorrect CUSIP
numbers or ticker symbols or incorrectly posted purchases and
sales of securities. Review income and expense accruals and
posting of gains and losses for proper recording. Send Fund
complete pricing sheet for the Fund's Portfolios preferably by
3:30 p.m. Mountain time but in no event later that 8:00 a.m.
Mountain time the next day.
16. Review for ex-dividend items indicated by pricing sources.
17. Communicate required pricing information to Fund,
quotation/publication services and to transfer agents.
Communicate NAV to newspapers and quotation services in time for
publication and to the transfer agent in time to run the
shareowner accounts by the beginning of the next day. Communicate
the NAV and corresponding worksheet to the Fund preferably by
3:30 p.m. Mountain time but in no event later that 8:00 a.m.
Mountain time the next day.
18. Attend to routine matters in connection with the calculation of the
net asset value and aggregate asset value of each Portfolio.
B. ON A PERIODIC BASIS.
1. Provide information prepared by IFTC during the performance of its
duties hereunder for Fund's semiannual reports within 15 calendar
days after March 31st and September 30th or the end of the
reporting period of the Fund, as applicable.
2. As agreed upon, deliver information to Fund on days when the NYSE
is not open.
*Information shall be provided by IFTC's normal means as acceptable to the
Fund. Costs for communicating routine information shall be borne by IFTC;
costs other than routine information, including microfiche, shall be borne by
the Fund.
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