EXHIBIT 9.1
RECORDKEEPING, PRICING AGENT
AND TRANSFER AGENCY AGREEMENT
THIS AGREEMENT made to be effective as of this _____ day of ______________,
1996, by and between XXXXXX/BIAM WORLDWIDE PORTFOLIOS 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, 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
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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.
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
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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 a 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. 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
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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 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 IFIC 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 chater, bylaws, or any law, rule or regulation
applicable to IFTC. IFTC shall be
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responsible to notify the Fund of any changes in its charter, bylaws,
or policies which which may affect the Fund's responsibilities or
procedures.
7. IFTC will calculate each Portfolio's daily closing net asset value, in
accordance with its 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.
8. IFTC shall also serve as transfer agent of the Fund. In such
capacity, IFTC shall maintain records of each holder's Book Capital
Account, including all contributions and redemptions, representing
ownership of a beneficial interest in any such Portfolio.
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 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.
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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 protecting any
trademarks, patents, copyrights and licenses against unauthorized use
and infringement by parties other than IFTC, its employees and agents.
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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 when such termination shall become effective,
then IFTC shall deliver such records, funds and properties of Fund to a
bank or trust
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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 officers 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 generally 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.
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13. MISCELLANEOUS
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/BIAM WORLDWIDE PORTFOLIOS TRUST
By:
------------------------------------
Title:
---------------------------------
INVESTORS FIDUCIARY TRUST COMPANY
By:
------------------------------------
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 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. Enter security transactions reported by the Fund.
8. 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.
9. Post manual journal entries to the general ledger.
10. Review current daily security transactions for dividends, splits and
other corporate activity.
11. Prepare Net Asset rollforward
12. Enter manual prices.
13. 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 for incorrect CUSIP
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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.
14. Review for ex-dividend items indicated by pricing sources.
15. Attend to routine matters in connection with the calculation of the
aggregate asset value.
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.
3. Prepare allocation of realized and unrealized security gains and
losses according to partnership rules using the aggregate method,
subject to review by fund auditors.
*INFORMATION SHALL BE PROVIDED BY IFTC'S NORMAL MEANS AS ACCEPTABLE TO THE FUND.
COSTS FOR COMMUNICATING ROUTINE INFORMATION, INCLUDING MICROFICHE, SHALL BE
BORNE BY THE FUND.
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