Exhibit 8.2
INVESTMENT ACCOUNTING AGREEMENT
THIS AGREEMENT made and effective as of this ____ day of ________,
1995, by and between LEBENTHAL FUNDS, INC., a Maryland corporation, having its
principal place of business at 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 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").
WHEREAS, Fund is registered as an "investment company" under the
Investment Company Act of 1940 (the "1940 Act"); and
WHEREAS, IFTC performs certain investment accounting and recordkeeping
services on a computerized accounting system (the "Portfolio Accounting
System") which is suitable for maintaining certain accounting records of the
portfolios of the Fund ("Portfolios"); and
WHEREAS, Fund desires to appoint IFTC as investment accounting and
recordkeeping agent for the Portfolios of the Fund, and IFTC 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 IFTC as investment accounting and recordkeeping agent for the
Portfolios of the Fund to perform accounting and recordkeeping functions
related to portfolio transactions required of Fund under Rule 31a of the 1940
Act and to calculate the net asset value of the Portfolios.
2. Representations and Warranties of Fund. Fund hereby represents,
warrants and acknowledges to IFTC:
A. That it is a corporation duly organized and existing and in
good standing under the laws of the State of Maryland, 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 IFTC as investment accounting and recordkeeping agent for the
Portfolios of the Fund; that this Agreement has been duly executed and
delivered by Fund; and that this Agreement constitutes a legal, valid and
binding obligation of Fund, enforceable in accordance with its terms; and
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 IFTC. IFTC hereby represents,
warrants and acknowledges to Fund:
A. That it is a trust company duly organized and existing and
in good standing under the laws of the State of Missouri;
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
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IFTC; and that this Agreement constitutes a legal, valid and binding
obligation of IFTC, enforceable in accordance with its terms; and
C. That the accounts and records maintained and preserved by
IFTC shall be the property of Fund and that it will not use any information
made available to it under the terms hereof for any purpose other than
complying with its duties and responsibilities hereunder or as specifically
authorized by Fund in writing.
4. Duties and Responsibilities of Fund.
A. Fund shall turn over to IFTC all of each Portfolio's
accounts and records previously maintained, if any.
B. Fund shall provide to IFTC the information necessary to
perform IFTC's 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 IFTC prices the Portfolios' securities and
foreign currency holdings.
C. Fund shall furnish IFTC 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 Portfolios when such
information is not readily available from generally accepted securities
industry services or publications.
D. 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 as Exhibit A. Fund shall also reimburse IFTC
on demand for all out-of-pocket disbursements, costs and expenses incurred by
IFTC in connection with services performed pursuant to this Agreement.
E. Fund shall notify IFTC of any changes in statutes, rules,
regulations, requirements, or policies which may necessitate changes in IFTC's
responsibilities or procedures.
F. Fund shall provide to IFTC, as conclusive proof of any fact
or matter required to be ascertained from Fund as determined by IFTC, a
certificate signed by Fund's president or other officer of Fund, or other
authorized individual, as requested by IFTC. Fund shall also provide to IFTC
instructions with respect to any matter concerning this Agreement requested by
IFTC. IFTC 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.
G. 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
relevant to, the Portfolio Accounting System and the business of IFTC
("Confidential Information"). Fund shall not voluntarily disclose such
Confidential Information to any other person other than its own employees who
reasonably have a need to know such information pursuant to this Agreement.
Fund shall return all such Confidential Information to IFTC upon termination
or expiration of this Agreement.
H. Fund has been informed that the Portfolio Accounting System
is licensed for use by IFTC from DST Systems, Inc. ("Licensor"), and Fund
acknowledges that IFTC and Licensor have proprietary rights in and to the
Portfolio Accounting System and all other IFTC 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 IFTC and Licensor. Fund shall
preserve the confidentiality of the Protected Information, and Fund
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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 is intended to be and shall be a third party
beneficiary of the Fund's obligations and undertakings contained in this
paragraph.
I. If IFTC shall provide Fund direct access to the computerized
recordkeeping and reporting system used hereunder or if IFTC 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 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). IFTC shall be fully protected in acting hereunder upon any
instructions, communications, data or other information received by IFTC by
such means as fully and to the same effect as if delivered to IFTC by written
instrument signed by the requisite authorized representative(s) of the Fund.
5. Duties and Responsibilities of IFTC.
A. IFTC shall calculate each Portfolio's net asset value, in
accordance with Fund's prospectus. IFTC will price the securities and foreign
currency holdings of the Portfolios 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 and foreign currency
holdings will be priced in accordance with Fund's instructions.
B. IFTC 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 each Portfolio'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. Fund shall advise IFTC in writing of all
applicable record retention requirements, other than those set forth in the
1940 Act.
C. IFTC 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 IFTC.
D. IFTC 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. IFTC 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 IFTC but shall be reimbursed by
Fund for all expenses and employee time invested in any such review outside of
routine and normal periodic reviews.
F. Upon receipt from Fund of any necessary information or
instructions, IFTC 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 IFTC shall agree upon from time to time.
G. Additional series or portfolios of Fund may be added to this
Agreement, provided that IFTC consents to such addition. Rates or charges for
each additional series or portfolio shall be as agreed upon by IFTC and Fund
in writing.
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H. IFTC shall not 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.
6. Indemnification. IFTC shall not be responsible or liable for, and
Fund shall indemnify and hold IFTC harmless from and against, any and all
costs, expenses, losses, damages, charges, counsel fees, payments and
liabilities, which may be asserted against or incurred by IFTC or for which it
may be liable, arising out of or attributable to:
A. IFTC's action or omission to act pursuant hereto, except
for any loss or damage arising from any negligent act or willful misconduct of
IFTC; provided however, that IFTC shall not be liable for consequential,
special, or punitive damages in any event.
B. IFTC's payment of money as requested by Fund, or the taking
of any action which might make IFTC liable for payment of money; provided,
however, that IFTC shall not be obligated to expend its own moneys or to take
any such action except in IFTC's sole discretion.
C. IFTC's action or omission to act hereunder upon any
instructions, advice, notice, request, consent, certificate or other
instrument or paper appearing to it to be genuine and to have been properly
executed.
D. IFTC's action or omission to act in good faith reliance on
the advice or opinion of counsel for Fund or its own counsel, which advice or
opinion may be obtained by IFTC at the expense of Fund, or on the
instructions, advice and statements of Fund, Fund's accountants and officers
or other authorized individuals, and others believed by it in good faith to be
expert in matters upon which they are consulted.
E. The purchase or sale of any securities or foreign currency
positions. Without limiting the generality of the foregoing, IFTC shall be
under no duty or obligation to inquire into:
(1) The validity of the issue of any securities
purchased by or for Fund, or the legality of the purchase thereof, or the
propriety of the purchase price;
(2) The legality of the sale of any securities by or
for Fund, or the propriety of the sale price;
(3) The legality of the issue, sale or purchase of any
shares of Fund, or the sufficiency of the purchase or sale price; or
(4) The legality of the declaration of any dividend by
Fund, or the legality of the issue of any shares of Fund in payment of any
stock dividend.
F. Any error, omission, inaccuracy or other deficiency in
Fund's accounts and records or other information provided by or on behalf of
Fund to IFTC, or the failure of Fund to provide, or provide in a timely
manner, any accounts, records, or information needed by IFTC to perform its
functions hereunder.
G. The Fund's refusal or failure to comply with the terms of
this Agreement (including without limitation the Fund's failure to pay or
reimburse IFTC under this indemnification provision), the Fund's negligence or
willful misconduct, or the failure of any representation or warranty of the
Fund hereunder to be and remain true and correct in all respects at all times.
H. The use or misuse, whether authorized or unauthorized, of
the Portfolio Accounting System or other computerized recordkeeping and
reporting system to which IFTC provides Fund direct access hereunder or of any
other electronic system of communication used hereunder by Fund or by any
person who
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acquires access to such system(s) through the terminal device, passwords,
access instructions or other means of access to such system(s) which are
utilized by, assigned to or otherwise made available to the Fund, except to
the extent attributable to any negligence or willful misconduct by IFTC.
7. Force Majeure. IFTC shall not 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, tornados, acts of God or public enemy, revolutions, or
insurrection.
8. Procedures. IFTC and Fund may from time to time adopt procedures as
they agree upon, and IFTC may conclusively assume that any procedure approved
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. Upon termination of
this Agreement:
A. Fund shall pay to IFTC its fees and compensation due
hereunder and its reimbursable disbursements, costs and expenses paid or
incurred to such date.
B. Fund shall designate a successor (which may be Fund) by
notice in writing to IFTC on or before the termination date.
C. IFTC shall deliver to the successor, or if none has been
designated, to Fund, at IFTC's office, all records, funds and other properties
of Fund deposited with or held by IFTC 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, IFTC's 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 IFTC 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 000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 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 addressed to IFTC at its offices at 000 Xxxx
00xx Xxxxxx, Xxxxxx Xxxx, XX 00000, Attn: Xxxxx Xxxxxx, 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.
11. Limitation of Portfolio Liability. Each Portfolio shall be
regarded for all purposes hereunder as a separate party apart from each other
Portfolio. Unless the context otherwise requires, with respect to every
transaction covered by this Agreement, every reference herein to the Fund
shall be deemed to relate solely to the particular Portfolio to which such
transaction relates. Under no circumstances shall the rights, obligations or
remedies with respect to a particular Portfolio constitute a right, obligation
or remedy applicable to any other Portfolio. The use of this single document
to memorialize the separate agreement of each Portfolio is understood to be
for clerical convenience only and shall not constitute any basis for joining
the Portfolios for any reason.
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12. 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 Missouri, 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 and warranties, the indemnification
extended hereunder, and the provisions of Sections 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.
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. No waiver, release or discharge of any
party's rights hereunder shall be effective unless contained in a written
instrument signed by the party sought to be charged.
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 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 IFTC.
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 hereunder shall not
affect any rights or obligations of any other party hereunder.
L. If Fund is a business trust, notice is hereby given that a
copy of its 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 the obligations of this Agreement shall only be binding upon the assets
and property of Fund and shall not be binding upon any trustee, officer or
shareholder of Fund individually.
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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.
INVESTORS FIDUCIARY TRUST COMPANY
By:
Title:
LEBENTHAL FUNDS, INC.
By:
Title:
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