INVESTMENT ACCOUNTING AGREEMENT
THIS AGREEMENT made and effective as of this 28 day of August, 1997, by
and between XXXXXXX INVESTMENT TRUST, ("Trust") a Massachusetts business trust,
having its principal place of business at Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, XX
00000-0000 on behalf of the XXXXXXX S&P 500 INDEX FUND, ("Fund"), a series of
the Trust, and BANKERS TRUST COMPANY, a New York banking corporation, having its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
("Bankers").
WHEREAS, Trust is registered as an "investment company" under the
Investment Company Act of 1940, as amended (the "1940 Act") and Fund is a duly
authorized series of the Trust; and
WHEREAS, Bankers performs certain investment accounting and recordkeeping
services or may sub-contract with a third party to perform certain investment
accounting and recordkeeping services in connection with maintaining certain
accounting records of Fund; and
WHEREAS, such third party sub-contractor may perform certain investment
accounting and recordkeeping services on a computerized accounting system (the
"Portfolio Accounting System" or "PAS"); and
WHEREAS, Fund desires to appoint Bankers as investment accounting and
recordkeeping agent for Fund, and Bankers is willing 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 Agent. Fund hereby constitutes and appoints
Bankers as investment accounting and recordkeeping agent for Fund to
perform accounting and recordkeeping functions related to portfolio
transactions required of Fund under Rule 31a-1 of the 1940 Act and to
calculate the net asset value of the Fund.
2. Representations and Warranties. Trust hereby represents, warrants and
acknowledges to Bankers:
A. That it is a trust duly organized and existing and in good standing
under the laws of Massachusetts, and that it is registered under the
1940 Act;
B. That it has the requisite power and authority under applicable law,
its charter or declaration of trust and its bylaws to enter into
this Agreement; that it has taken all requisite action necessary to
appoint Bankers as investment accounting and recordkeeping agent for
Fund; that this Agreement has been duly executed and delivered by
the Trust on behalf of the Fund; and that this Agreement constitutes
a legal, valid and binding obligation of Fund, enforceable in
accordance with its terms, except as may be limited by or subject to
any bankruptcy, insolvency, reorganization, moratorium or other
similar law affecting the enforcement of creditors' rights
generally, and subject to general principles of equity; and
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C. That it has determined to its satisfaction that the Portfolio
Accounting System is appropriate and suitable for its needs.
3. Representations and Warranties of Bankers. Bankers hereby represents,
warrants and acknowledges to Fund:
A. That it is a New York banking corporation duly organized and
existing and in good standing under the laws of the State of New
York;
B. That it has the requisite power and authority under applicable law,
its charter and its bylaws to enter into and perform this Agreement;
that this Agreement has been duly executed and delivered by Bankers;
and that this Agreement constitutes a legal, valid and binding
obligation of Bankers, enforceable in accordance with its terms,
except as may be limited by or subject to any bankruptcy,
insolvency, reorganization, moratorium or other similar law
affecting the enforcement of creditors' rights generally, and
subject to general principles of equity; and
C. That the accounts and records maintained and preserved by Bankers
shall be the property of Fund and that it will not use any
information made available to it by reason of the relationship
created hereby for any purpose other than complying with its duties
and responsibilities hereunder or as specifically authorized by Fund
in writing.
D. Bankers and its designated contractor shall comply in all material
respects with all applicable laws pertaining to its duties
hereunder.
4. Duties and Responsibilities of Fund.
A. Fund shall turn over to Bankers and/or its designated sub-contractor
all of Fund's accounts and records previously maintained, if any.
B. Fund shall provide to Bankers and/or the designated sub-contractor
the information necessary to perform Bankers' duties and
responsibilities hereunder in writing or its electronic or digital
equivalent prior to the close of the New York Stock Exchange on each
day on which Bankers prices the Funds' securities and foreign
currency holdings.
C. Fund shall furnish Bankers and/or its designated sub-contractor with
the declaration, record and payment dates and amounts of any
dividends or income and any other special actions required
concerning the securities in the portfolio when such information is
not readily available from generally accepted securities industry
services or publications.
D. Fund shall pay to Bankers such compensation at such time as may from
time to time be agreed upon in writing by Bankers and Fund. The
initial compensation schedule is attached as Exhibit A. Fund shall
also reimburse Bankers on demand for all reasonable out-of-pocket
disbursements, cost and expenses incurred by Bankers
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and/or its designated sub-contractor in connection with services
performed pursuant to this Agreement.
E. Fund shall provide to Bankers, as conclusive proof of any fact or
matter required to be ascertained from Fund as reasonably determined
by Bankers, a certificate signed by Fund's president or other
officer of Fund, or other authorized individual, as reasonably
requested by Bankers. Fund shall also provide to Bankers
instructions with respect to any matter concerning this Agreement
requested by Bankers. Bankers and/or its designated sub-contractor
may rely upon any instruction or information furnished by any person
reasonably believed by it to be an officer or agent of Fund, and
shall not be held to have notice of any change of authority of any
such person until receipt of written notice thereof from Fund.
F. Fund shall preserve the confidentiality of the Portfolio Accounting
System and the tapes, books, reference manuals, instructions,
records, programs, documentation and information of, and other
materials related to PAS and provided by Bankers or its
subcontractor, the Portfolio Accounting System and the business of
Bankers and/or its designated sub-contractor ("Confidential
Information"). Fund shall not voluntarily disclose such Confidential
Information to any other person other than its own employees or
agents who reasonably have a need to know such information pursuant
to this Agreement or in order to comply with law or requests of
regulatory authorities. Fund shall return all such Confidential
Information to Bankers upon termination or expiration of this
Agreement. Confidential Information shall not include information
that becomes known in the public through no fault of the Fund or
Trust.
G. Fund has been informed that PAS is licensed for use by Bankers'
designated subcontractor from DST Systems, Inc. ("Licensor"), and
Fund acknowledges that such designated sub-contractor and Licensor
have proprietary rights in and to PAS and all other sub-contractor
or Licensor programs, code, techniques, know-how, data bases,
supporting documentation, data formats and procedures, including
without limitation any changes or modifications made at the request
or expense or both of Fund (collectively, the "Protected
Information"). Fund acknowledges that the Protected Information
constitutes confidential material and trade secrets of such
designated subcontractor and Licensor. Fund shall preserve the
confidentiality of the Protected Information, and Fund hereby
acknowledges that any unauthorized use, misuse, disclosure or taking
of Protected Information, residing or existing internal or external
to a computer, computer system, or computer network, or the knowing
and unauthorized accessing or causing to be accessed of any
computer, computer system, or computer network, may be subject to
civil liabilities and criminal penalties under applicable law. Fund
shall so inform employees and agents who have access to the
Protected Information or to any computer equipment capable of
accessing the same. Licensor and Bankers' designated sub-contractor
are intended to be and shall be third party beneficiaries of the
Fund's obligations and undertakings contained in this paragraph.
Protected information shall not include information that becomes
known in the public through no fault of the Fund or Trust.
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H. If Bankers and/or its designated sub-contractor shall provide Fund
direct access to the computerized recordkeeping and reporting system
used hereunder or if Bankers and/or its designated sub-contractor
and Fund shall agree to utilize any electronic system of
communication, Fund shall be fully responsible for any and all
consequences of the use or misuse by Fund of the terminal device,
passwords, access instructions and other means of access to such
system(s) which are utilized by, assigned to or otherwise made
available to the Fund. Fund agrees to implement and enforce
appropriate security policies and procedures to prevent unauthorized
or improper access to or use of such system(s). Bankers and its
designated sub-contractor shall be fully protected in acting
hereunder upon any instructions, communications, data or other
information received by Bankers or its designated sub-contractor by
such means as fully and to the same extent as if delivered to
Bankers or its designated subcontractor by written instrument signed
by the requisite authorized representative(s) of the Fund.
5. Duties and Responsibilities of Bankers.
A. Bankers or its designated sub-contractor shall calculate Fund's net
asset value, in accordance with Fund's prospectus. Bankers or its
designated sub-contractor will price the securities of the Fund for
which market quotations are available by the use of outside services
designated by Fund which are normally used and contracted with for
this purpose; all other securities will be priced in accordance with
Fund's instructions.
B. Bankers or its designated sub-contractor shall prepare and maintain,
with the direction and as interpreted by Fund or Fund's accountants
and/or other advisors, in complete, accurate, and current form, all
accounts and records needed to be maintained as a basis for
calculation of Fund's net asset value, and as further agreed upon by
the parties in writing, and shall preserve such records in the
manner and for the periods required by law or for such longer period
as the parties may agree upon in writing. To the extent required
under the 1940 Act and rules thereunder, Bankers or its designated
sub-contractor agrees that such records maintained by it hereunder
will be preserved, maintained and made available in accordance with
the provisions of the 1940 Act and rules thereunder, and copies or,
if required, originals will be surrendered promptly to the Fund on
and in accordance with its request.
C. Bankers or its designated sub-contractor shall make available to
Fund for inspection or reproduction within a reasonable time, upon
demand, all accounts and records of Fund maintained and preserved by
Bankers or its designated sub-contractor.
D. Bankers or its designated sub-contractor shall be entitled to rely
conclusively on the completeness and correctness of any and all
accounts and records turned over to it by Fund.
E. Bankers or its designated sub-contractor shall assist Fund's
independent accountants, or upon approval of Fund or upon demand,
any regulatory body, in any requested review of Fund's accounts and
records maintained by Bankers but shall be reimbursed
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by Fund for all reasonable out-of-pocket expenses invested in any
such review outside of routine and normal periodic reviews.
F. Upon receipt from Fund of any necessary information or instructions,
Bankers or its designated sub-contractor shall provide information
from the books and records it maintains for Fund that Fund needs for
tax returns, questionnaires, or periodic reports to shareholders and
such other reports and information requests as Fund and Bankers or
its designated sub-contractor shall agree upon from time to time.
G. Subject to the provisions of any custody agreement to which Bankers
and the Fund are parties, neither Bankers nor any designated
sub-contractor shall have any responsibility hereunder to Fund,
Fund's shareowners or any other person or entity for moneys or
securities of Fund, whether held by Fund or custodians of Fund.
H. Subject to the provisions of this Agreement, to the extent agents
perform services under this Agreement that are the responsibility of
Bankers, Bankers shall be responsible for, and assume all liability
for (including any obligation for indemnification), the actions and
inactions of such agents as if such services had been provided by
Bankers.
I. Bankers or its designated sub-contractor shall maintain or provide
commercially reasonable redundant facilities and shall maintain or
provide for backup files of its records maintained hereunder and
shall store such back-up files in a secure off-premises location, in
order to reasonably minimize the impact of an event such as a power
failure or other interruption of whatever cause at the location of
its records.
6. Indemnification.
A. Fund shall indemnify and hold Bankers harmless from and against any
and all costs, expenses, losses, damages, charges, reasonable
counsel fees, payments and liabilities which may be asserted against
or incurred by Bankers, or for which it maybe liable, arising out of
or attributable to any of the following, in each case except for any
loss or damage arising from any negligent act or wilful misconduct
of Bankers or a designated subcontractor:
1. Bankers' and/or Bankers' designated sub-contractor's action or
omission to act in each case in accordance with its
obligations hereunder.
2. Bankers' and/or Bankers' designated sub-contractor's payment
of money as requested by Fund, or the taking of any action
which might make Bankers or its designated sub-contractor
liable for payment of money; provided, however, that neither
Bankers nor its designated sub-contractor shall be obligated
to expend its own moneys or to take any such action except in
Bankers' or its designated sub-contractor's sole discretion.
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3. Bankers' and/or Bankers' designated sub-contractor's action or
omission to act hereunder in accordance with any instructions,
advice, notice, request, consent, certificate or other
instrument or paper appearing to it to be genuine and to have
been properly executed by an authorized person of Fund.
4. Bankers' and/or Bankers' designated sub-contractor's action or
omission to act in good faith reliance on the opinion of
outside counsel acceptable to both parties hereto.
5. Bankers and/or its designated sub-contractor's action or
omission to act in good faith reliance on and in accordance
with statements of counsel to the Fund, the Fund's independent
accountants, and the Fund's officers or other authorized
individuals provided by Fund resolution.
6. The legality of the issue, sale or purchase of any shares of
the Fund, the sufficiency of the purchase or sale price, or
the declaration of any dividend by the Fund, whether paid in
cash or stock.
7. Any error, omission, inaccuracy or other deficiency in Fund's
accounts and records or other information, in each case
provided by or on behalf of Fund to Bankers or its designated
sub-contractor, or the failure of the Fund to provide, or
provide in a timely manner, the information needed by Bankers
or its designated sub-contractor to perform its functions as
specified in Section 4.C. hereunder.
8. The Fund's refusal or failure to materially comply with the
terms of this Agreement, the Fund's negligence or willful
misconduct in connection with the performance of its duties
hereunder, or the failure of any representation of the Fund
hereunder to be and remain true and correct in all material
respects at all times.
9. The use or misuse, whether authorized or unauthorized, of the
Portfolio Accounting System or other computerized
recordkeeping and reporting system to which Bankers or its
designated sub-contractor provides Fund direct access
hereunder or of any other electronic system of communication
used hereunder by Fund or by any person who acquires access to
such system(s) through the terminal device, passwords, access
instruction or other means of access to such system(s) which
are utilized by, assigned to or otherwise made available to
the Fund.
Nothing contained here shall be construed to protect any person
against any liability to which such person would otherwise be
subject by reason of willful misfeasance, bad faith, or negligence,
in the performance of such person's duties, or by reason of such
person's reckless disregard of such person's obligations and duties
under this agreement.
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B. Bankers or its designated sub-contractor shall indemnify and hold
Fund harmless from and against any and all costs, expenses, losses,
damages, charges, reasonable counsel fees, payments and liabilities
which may be asserted against or incurred by Fund or for which it
may be liable, arising out our or attributable to any of the
following, in each case except for any loss or damages arising from
any negligent act or wilful misconduct of Trust.
1. Bankers' refusal or failure to comply with the terms of this
Agreement or the failure of any representation or warranty of
Bankers hereunder to be and remain true and correct in all
material respects at all times.
2. Any negligent or willful misconduct of Bankers or its
designated subcontractor.
3. The failure of Bankers or its designated sub-contractor to
materially comply with applicable law in connection with the
performance of its duties hereunder.
4. Fund's action or omission to act in good faith reliance on the
opinion of outside counsel acceptable to both parties hereto.
In no event shall Bankers, its designated sub-contractor, or Fund be
liable for consequential, special or punitive damages.
7. Force Majeure. Neither Bankers nor its designated sub-contractor shall be
responsible or liable for its 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;
inability to obtain labor, material, equipment or transportation, or a
delay in mails; governmental or exchange action, statute, ordinance,
rulings, regulations or direction; war, strike, riot, emergency, civil
disturbance, terrorism, vandalism, explosions, labor disputes, freezes,
floods, fires, tornadoes, acts of God or public enemy, revolutions, or
insurrection.
8. Procedures. Bankers and Fund may from time to time adopt procedures as
they agree upon, and Bankers or its designated sub-contractor may
conclusively assume that any procedure approved in writing or directed by
Fund or its accountants or other advisors does not conflict with or
violate any requirements of Fund's prospectus, charter or declaration of
trust, bylaws, any applicable law, rule or regulation, or any order,
decree or agreement by which the Fund may be bound.
9. Term and Termination. The initial term of this Agreement shall be a period
of one year commencing on the effective date hereof. This Agreement shall
continue thereafter until terminated by either party by notice in writing
received by the other party not less than ninety (90) days prior to the
date upon which such termination shall take effect. Notwithstanding any
other provisions of this section 9, (1) the Fund shall have the right to
immediately terminate this Agreement, in the event the Third Party Feeder
Agreement dated August ___,
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1997, by and among Xxxxxxx, Xxxxxxx & Xxxxx, Inc., the Trust, Equity 500
Index Portfolio and Bankers should terminate, and (2) Bankers shall have
the right to immediately terminate this Agreement in the event the Fund
Accounting Agreement between Bankers and Investors Fiduciary Trust Company
dated December 31, 1996 shall terminate. Upon termination of this
Agreement:
A. Fund shall pay to Bankers its fees and compensation due hereunder.
B. Fund shall designate a successor (which may be Fund) by notice in
writing to Bankers on or before the termination date.
C. Bankers shall deliver to the successor, or if none has been
designated, to Fund, at Bankers' office, all records, funds and
other proportions of Fund deposited with or held by Bankers
hereunder. In the event that neither a successor nor Fund takes
delivery of all records, funds and other properties of Fund by the
termination date, Bankers' sole obligation with respect thereto from
the termination date until delivery to a successor or Fund shall be
to exercise reasonable care to hold the same in custody in its form
and condition as of the termination date, and Bankers shall be
entitled to reasonable compensation therefor, including but not
limited to all of its out-of-pocket costs and expenses incurred in
connection therewith.
10. Notices. Notices, requests, instructions and other writings addressed to
Fund at Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx, carbon copy to Xxxxxx Xxxxx, or at such address as
Fund may have designated to Bankers in writing, shall be deemed to have
been properly given to Fund hereunder; and notices, requests, instructions
and other writings addressed to Bankers Trust Company at its offices at 0
Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxx X. Xxxxxx, or to such
other address as it may have designated to Fund in writing, shall be
deemed to have been properly given to Bankers hereunder.
11. Miscellaneous.
A. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of
the State of New York, without reference to the choice of laws
principles thereof.
B. All terms and provisions of this Agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and
their respective successors and permitted assigns.
C. The representations, warranties, and indemnifications extended
hereunder, and the provisions of Section 4.G. and 4.H. are intended
to and shall continue after and survive the expiration, termination
or cancellation of this Agreement.
D. No provisions of the Agreement may be amended or modified in any
manner except by a written agreement properly authorized and
executed by each party hereto.
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E. The failure of either party to insist upon the performance of any
terms or conditions of this Agreement or to enforce any rights
resulting from any breach of any of the terms or conditions of this
Agreement, including the payment of damages, shall not be construed
as a continuing or permanent waiver of any such terms, conditions,
rights or privileges, but the same shall continue and remain in full
force and effect as if no such forbearance or waiver had occurred.
F. The captions in this Agreement are included for convenience of
reference only, and in no way define or limit any of the provisions
hereof or otherwise affect their construction or effect.
G. This Agreement may be executed in two or more separate counterparts,
each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.
H. If any provision of this Agreement shall be determined to be invalid
or unenforceable, the remaining provisions of this Agreement shall
not be affected thereby, and every provision of this Agreement shall
remain in full force and effect and shall remain enforceable to the
fullest extent permitted by applicable law.
I. This Agreement may not be assigned by either party hereto without
the prior written consent of the other.
J. Neither the execution nor performance of this Agreement shall be
deemed to create a partnership or joint venture by and between Fund
and Bankers.
K. Except as specifically provided herein, this Agreement does not in
any way affect any other agreements entered into among the parties
hereto and any actions taken or omitted by any party.
L. The parties hereto acknowledge that any desginated sub-contractor of
Bankers shall be a third party beneficiary of this Agreement.
M. Notice is hereby given that a copy of Trust's declaration of trust
and all amendments thereto is on file with the Secretary of State of
the state of its organization; that this Agreement has been executed
on behalf of Fund by the undersigned duly authorized representative
of Fund in his/her capacity as such and not individually, and that
in recognition that the Fund is a Massachusetts business trust, it
is understood and expressly stipulated that none of the trustees,
officers, agents, or shareholders of the Fund shall be personally
liable hereunder. It is understood and acknowledged that all persons
dealing with the Fund must look solely to the property of such party
for the enforcement of any claims against such party, as neither the
trustees, officers, agents nor shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective and duly authorized officers, to be effective as of the day
and year first above written.
Bankers Trust Company
By: /s/ [Illegible]
--------------------------
Title: Vice President
Xxxxxxx Investment Trust___________ on behalf of
Xxxxxxx S&P 500 Index Fund
By: /s/Xxxxxx X. XxXxxxxxx
--------------------------
Title: Secretary
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EXHIBIT A
Annual Investment Accounting fee shall equal $10,000.
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