EXHIBIT (g)
INVESTMENT ACCOUNTING AGREEMENT
THIS AGREEMENT is made effective as of the ________ day of ______________,
1999, by and between INVESTORS FIDUCIARY TRUST COMPANY, a trust company
established under the laws of the state of Missouri, having its principal place
of business at 000 Xxxxxxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("IFTC"), and
Select Ten Plus Fund, LLC, a Delaware limited liability company, having its
statutory home office at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000
(the "Fund").
WITNESSETH:
WHEREAS, the Fund desires to appoint IFTC as its agent to perform certain
investment accounting and recordkeeping functions for investment portfolio
assets of the Fund; and
WHEREAS, IFTC is willing to accept such appointment on the terms and
conditions hereinafter set forth.
NOW THEREFORE, for and in consideration of the mutual promises contained
herein, the parties hereto, intending to be legally bound, mutually covenant and
agree as follows:
1. APPOINTMENT OF AGENT. The Fund hereby constitutes and appoints IFTC as its
agent to perform certain investment accounting and recordkeeping functions
for each Fund relating to portfolio transactions required under Rule 31a of
the Investment Company Act of 1940 (the "1940 Act") and to value the
Assets.
2. REPRESENTATIONS AND WARRANTIES.
A. The Fund hereby represents, warrants and acknowledges to IFTC:
1. That it is a corporation duly organized and existing and in good
standing under the laws of its state of organization, and that it
is registered under the 1940 Act; and
2. That it has the requisite power and authority under applicable
law, its articles of organization and its operating agreement to
enter into this Agreement; it has taken all requisite action
necessary to appoint IFTC as investment accounting and
recordkeeping agent for the Fund; this Agreement has been duly
executed and delivered by the Fund; and this Agreement
constitutes a legal, valid and binding obligation of the Fund,
enforceable in accordance with its terms.
B. IFTC hereby represents, warrants and acknowledges to the Fund:
1. That it is a trust company duly organized and existing and in good
standing under the laws of the State of Missouri; and
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2. That it has the requisite power and authority under applicable law,
its charter and its bylaws to enter into and perform this Agreement;
this Agreement has been duly executed and delivered by IFTC; and this
Agreement constitutes a legal, valid and binding obligation of IFTC,
enforceable in accordance with its terms.
3. DUTIES AND RESPONSIBILITIES OF THE PARTIES.
A. DELIVERY OF ACCOUNTS AND RECORDS. The Fund will turn over or cause to
be turned over to IFTC all accounts and records needed by IFTC to
perform its duties and responsibilities hereunder fully and properly.
IFTC may rely conclusively on the completeness and correctness of such
accounts and records.
B. ACCOUNTS AND RECORDS. IFTC will prepare and maintain, under the
direction of and as interpreted by the Fund, the Fund's accountants
and/or other advisors, such accounts and records: (a) needed to
perform the accounting and recordkeeping functions under Rule 31a of
the 1940 Act; (b) required as a basis for calculation of the valuation
of the Assets; and (c) as otherwise agreed upon by the parties. The
Fund will advise IFTC in writing of all applicable record retention
requirements. IFTC will preserve such accounts and records in the
manner and for the periods agreed upon by the parties. The Fund will
furnish, in writing or its electronic or digital equivalent, accurate
and timely information needed by IFTC to complete such accounts and
records when such information is not readily available from generally
accepted securities industry services or publications.
C. ACCOUNTS AND RECORDS PROPERTY OF THE FUND. IFTC acknowledges that all
of the accounts and records maintained by IFTC pursuant hereto are the
property of the Fund and will be made available to the Fund for
inspection or reproduction within a reasonable period of time, upon
demand. IFTC will assist the Fund's independent auditors, or upon the
prior written approval of the Fund, or upon demand, any regulatory
body, in any requested review of the Fund's accounts and records,
provided, that the Fund will reimburse IFTC for all expenses and
employee time invested in any such review outside of routine and
normal periodic reviews. Upon receipt from the Fund of the necessary
information or instructions, IFTC will supply information from the
books and records it maintains for the Fund that the Fund may
reasonably request for tax returns, questionnaires, periodic reports
to regulators and such other reports and information requests as the
Fund and IFTC may agree upon from time to time.
D. ADOPTION OF PROCEDURES. IFTC and the Fund may from time to time adopt
such procedures as they agree upon, and IFTC may conclusively assume
that no procedure approved or directed by the Fund, the Fund's
accountants or other advisors conflicts with or violates any
requirements of any the Fund's prospectus the articles of
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organization, operating agreement, any applicable law, rule or
regulation, or any order, decree or agreement by which the Fund may be
bound. The Fund will be responsible for notifying IFTC of any
statutes, regulations, rules, requirements or policies or any changes
thereto which may impact IFTC's responsibilities or procedures under
this Agreement.
E. VALUATION OF ASSETS. IFTC will value the Assets in accordance with
the Fund's Instructions (as defined below) utilizing the pricing
sources designated by the Fund ("Pricing Sources").
4. INSTRUCTIONS.
A. The term "Instructions," as used herein, means written (including
telecopied, telexed, or electronically transmitted) or oral
instructions which IFTC reasonably believes were given by a designated
representative of the Fund. The Fund will deliver to IFTC, prior to
delivery of any Assets to IFTC and thereafter from time to time as
changes therein are necessary, written Instructions naming one or more
designated representatives to give Instructions in the name and on
behalf of the Fund, which Instructions may be received and accepted by
IFTC as conclusive evidence of the authority of any designated
representative to act for the Fund and may be considered to be in full
force and effect until receipt by IFTC of notice to the contrary.
Unless such written Instructions delegating authority to any person to
give Instructions specifically limit such authority to specific
matters or require that the approval of anyone else will first have
been obtained, IFTC will be under no obligation to inquire into the
right of such person, acting alone, to give any Instructions
whatsoever. If the Fund fails to provide IFTC any such Instructions
naming designated representatives, any Instructions received by IFTC
from a person reasonably believed to be an appropriate representative
of the Fund will constitute valid and proper Instructions hereunder.
The term "designated representative" may include the Fund's employees
and agents, including investment managers and their employees.
B. No later than the next business day immediately following each oral
Instruction, the Fund will send IFTC written confirmation of such oral
Instruction. At IFTC's sole discretion, IFTC may record on tape, or
otherwise, any oral Instruction whether given in person or via
telephone, each such recording identifying the date and the time of
the beginning and ending of such oral Instruction.
C. The Fund will provide upon IFTC's request a certificate signed by an
officer or designated representative of the Fund, as conclusive proof
of any fact or matter required to be ascertained from the Fund
hereunder. The Fund will also provide IFTC Instructions with respect
to any matter concerning this Agreement requested by IFTC. If IFTC
reasonably believes that it could not prudently act according to the
Instructions, or the instruction or advice of the Fund's accountants
or counsel, it may in its discretion, with notice to the Fund, not act
according to such Instructions.
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5. LIMITATION OF LIABILITY OF IFTC. IFTC is not responsible or liable for,
and the Fund will indemnify and hold IFTC harmless from and against, any
and all costs, expenses, losses, damages, charges, counsel fees (including,
without limitation, disbursements and the allocable cost of in-house
counsel), payments and liabilities which may be asserted against or
incurred by IFTC or for which IFTC may be held to be liable, arising out of
or attributable to:
A. IFTC's action or failure to act pursuant hereto; provided that IFTC
has acted in good faith and with reasonable care; and provided
further, that in no event shall IFTC be liable for consequential,
special, or punitive damages;
B. IFTC's payment of money as requested by the Fund, or the taking of any
action which might make it or its nominee liable for payment of monies
or in any other way; provided, however, that nothing herein obligates
IFTC to take any such action or expend its own monies except in its
sole discretion;
C. IFTC's action or failure to act hereunder upon any Instruction,
advice, notice, request, consent, certificate or other instrument or
paper appearing to it to be genuine and to have been properly
executed, including any Instruction, communications, data or other
information received by IFTC by means of the Systems, as hereinafter
defined, or any electronic system of communication;
D. IFTC's action or failure to act in good faith reliance on the advice
or opinion of counsel for the Fund or of its own counsel with respect
to questions or matters of law, which advice or opinion may be
obtained by IFTC at the expense of the Fund, or on the Instruction,
advice or statements of any officer or employee of the Fund or the
Fund's accountants or other authorized individuals, and other persons
believed by it in good faith to be expert in matters upon which they
are consulted;
E. Any error, omission, inaccuracy or other deficiency in any accounts
and records or other information provided by or on behalf of the Fund
to IFTC, including the accuracy of the prices quoted by the Pricing
Sources or for the information supplied by the Fund to value the
Assets (except to the extent such inaccuracy results from IFTC's lack
of reasonable care in performing the agreed-upon tolerance checks as
to the data furnished), or the failure of the Fund to provide, or
provide in a timely manner, any accounts, records, or information
needed by IFTC to perform its duties hereunder;
F. The Fund's refusal or failure to comply with the terms hereof
(including without limitation the Fund's failure to pay or reimburse
IFTC under Section 5 hereof), 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;
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G. The use or misuse, whether authorized or unauthorized, of the Systems
or any electronic system of communication used hereunder, by the Fund
or by any person who acquires access to the Systems or such other
systems through the terminal device, passwords, access instructions or
other means of access to such Systems or such other system 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;
H. Loss occasioned by the acts, omissions, defaults or insolvency of any
broker, bank, trust company, securities system or any other person
with whom IFTC may deal; and
I. The failure or delay in performance of its obligations hereunder, or
those of any entity for which it is responsible hereunder, arising out
of or caused, directly or indirectly, by circumstances beyond the
affected entity's 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.
6. COMPENSATION. In consideration for its services hereunder, the Fund will
pay to IFTC the compensation set forth in a separate fee schedule to be
agreed to by the Fund and IFTC from time to time, and, upon demand,
reimbursement for IFTC's cash disbursements and reasonable out-of-pocket
costs and expenses, including attorney's fees and disbursements, incurred
by IFTC in connection with the performance of services hereunder.
7. TERM AND TERMINATION. The initial term of this Agreement is for a period
of one (1) year. Thereafter, either the Fund or IFTC may terminate this
Agreement by notice in writing, delivered or mailed, postage prepaid, to
the other party and received not less than ninety (90) days prior to the
date upon which such termination will take effect. Upon termination
hereof:
A. The Fund will pay IFTC its fees and compensation due hereunder and its
reimbursable disbursements, costs and expenses paid or incurred to
such date and the Fund will designate a successor investment
accounting agent (which may be the Fund) by Instruction to IFTC; and
B. IFTC will, upon payment of all sums due to IFTC from the Fund
hereunder, deliver all accounts and records and other properties of
the Fund to the successor, or, if none, to the Fund, at IFTC's office.
In the event that accounts, records or other properties remain in the
possession of IFTC after
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the date of termination hereof for any reason other than IFTC's failure to
deliver the same, IFTC is entitled to compensation as provided in the
then-current fee schedule for its services during such period, and the
provisions hereof relating to the duties and obligations of IFTC will remain in
full force and effect.
8. NOTICES. Notices, requests, instructions and other writings addressed to
the Fund at the address set forth above, Attention: _________________, or
at such other address as the Fund may have designated to IFTC in writing,
will be deemed to have been properly given to the Fund hereunder. Notices,
requests, Instructions and other writings addressed to IFTC at the address
set forth above, Attention: Vice President, Investment Accounting, or to
such other address as it may have designated to the Fund in writing, will
be deemed to have been properly given to IFTC hereunder.
9. THE SYSTEMS; CONFIDENTIALITY.
A. If IFTC provides the Fund direct access to the computerized investment
portfolio recordkeeping and accounting systems used by IFTC
("Systems") or if IFTC and the Fund agree to utilize any electronic
system of communication, the Fund agrees to implement and enforce
appropriate security policies and procedures to prevent unauthorized
or improper access to or use of the Systems or such other system.
B. The Fund will preserve the confidentiality of the Systems and the
tapes, books, reference manuals, instructions, records, programs,
documentation and information of, and other materials relevant to, the
Systems and the business of IFTC ("Confidential Information"). The
Fund agrees that it will not voluntarily disclose any such
Confidential Information to any other person other than its own
employees who reasonably have a need to know such information pursuant
hereto. The Fund will return all such Confidential Information to IFTC
upon termination or expiration hereof.
C. The Fund has been informed that the Systems are licensed for use by
IFTC and its affiliates from one or more third parties ("Licensors"),
and the Fund acknowledges that IFTC and Licensors have proprietary
rights in and to the Systems 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 the Fund
(collectively, the "Protected Information"). The Fund acknowledges
that the Protected Information constitutes confidential material and
trade secrets of IFTC and Licensors. The Fund will preserve the
confidentiality of the Protected Information, and the 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
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law. The Fund will so inform employees and agents who have access to the
Protected Information or to any computer equipment capable of accessing the
same. Licensors are intended to be and are third party beneficiaries of the
Fund's obligations and undertakings contained in this Section.
D. The Fund hereby represents and warrants to IFTC that it has determined
to its satisfaction that the Systems are appropriate and suitable for
its use. THE SYSTEMS ARE PROVIDED ON AN AS IS, AS AVAILABLE BASIS.
IFTC EXPRESSLY DISCLAIMS ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, EXCEPT THOSE WARRANTIES EXPRESSLY STATED HEREIN.
10. MULTIPLE FUNDS. If Schedule A lists more than one Fund:
A. Each Fund will be regarded for all purposes hereunder as a separate
party apart from each other Fund. Unless the context otherwise
requires, with respect to every transaction covered hereby, every
reference herein to the Fund is deemed to relate solely to the
particular Fund to which such transaction relates. Under no
circumstances will the rights, obligations or remedies with respect to
a particular Fund constitute a right, obligation or remedy applicable
to any other Fund. The use of this single document to memorialize the
separate agreement of each Fund is understood to be for clerical
convenience only and will not constitute any basis for joining the
Funds for any reason.
B. The Fund may appoint IFTC as its investment accounting and
recordkeeping agent for additional Funds from time to time by written
notice, provided that IFTC consents to such addition. Rates or
charges for each additional Fund will be as agreed upon by IFTC and
The Fund in writing.
11. MISCELLANEOUS.
A. This Agreement will be construed according to, and the rights and
liabilities of the parties hereto will be governed by the laws of the
State of Missouri without reference to the choice of law principles
thereof.
B. All terms and provisions hereof will 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 indemnifications extended
hereunder, and the provisions of Section 9 hereof are intended to and
will continue after and survive the expiration, termination or
cancellation hereof.
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D. No provisions hereof 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 hereof or to enforce any rights resulting from any
breach of any of the terms or conditions hereof, including the payment
of damages, will not be construed as a continuing or permanent waiver
of any such terms, conditions, rights or privileges, but the same will
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 will be effective unless contained in a
written instrument signed by the party sought to be charged.
F. The captions herein 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 counterparts, each of
which is deemed an original but all of which together constitute one
and the same instrument.
H. If any provision hereof is determined to be invalid, illegal, in
conflict with any law or otherwise unenforceable, the remaining
provisions hereof will be considered severable and will not be
affected thereby, and every remaining provision hereof will remain in
full force and effect and will remain enforceable to the fullest
extent permitted by applicable law.
I. The benefits of this Agreement may not be assigned by either party nor
may either party delegate all or a portion of its duties hereunder
without the prior written consent of the other party. Notwithstanding
the foregoing, The Fund agrees that IFTC may delegate all or a portion
of its duties to an affiliate of IFTC provided that such delegation
shall not reduce the obligations of IFTC under this Agreement.
J. Neither the execution nor performance hereof will be deemed to create
a partnership or joint venture by and between IFTC and The Fund or any
Fund.
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 either party hereunder will not
affect any rights or obligations of the other party hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers.
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SELECT TEN PLUS FUND, LLC INVESTORS FIDUCIARY TRUST
COMPANY
By: By:
--------------------- --------------------
Name: Name:
Title: Title:
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SCHEDULE A--LIST OF FUND DIVISIONS
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