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Exhibit 5(c)
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Company Accounting Agreement with
The Bank of New York
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COMPANY ACCOUNTING AGREEMENT
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AGREEMENT made as of this day of January, 1993 by and between
The Walnut Street Funds, Inc., a Maryland corporation having its principal
place of business at 0000 Xxxx Xxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000
(hereinafter called the "Company") and The Bank of New York, a New York
corporation authorized to do a banking business, having its principal place
of business at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called
the "Bank").
W I T N E S S E T H:
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In consideration of the mutual agreements herein contained, the Company
and the Bank hereby agree as follows:
1. The Company hereby appoints the Bank its agent to perform the duties
hereinafter set forth.
2. The Bank hereby accepts appointment as such agent and agrees to
perform the duties hereinafter set forth.
3. The Bank shall compute the net asset value per share of each Series
of shares (the "Series") of the Company at such times and dates and in the
manner specified in the then currently effective Prospectus of the Company.
Securities of the Company shall be valued as set forth in the then currently
effective Prospectus of the Company and the Company shall have sole
responsibility for determining the method of valuation of Company securities.
To the extent valuation of Company securities on such basis is at any time
inconsistent with any applicable laws and/or regulations, the Company shall
immediately so notify the Bank in writing and thereafter shall either furnish
the Bank at all appropriate times with the values of the Company's securities
or, subject to the prior approval of the Bank, instruct the Bank in writing
to value Company securities in a manner which the Company then represents
in writing to be consistent with all applicable laws and regulations.
4. The Bank shall also compute the net income of each Series for
dividend purposes and the net income per share at such times and dates and in
the manner specified in the then currently effective Prospectus of the Company.
5. The Company or the then acting investment adviser specified by the
Company to the Bank (the "Adviser") may from time to time instruct the Bank
in writing to compute the value
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of the securities of a Series, a Series' net asset value per share, the net
income of a Series, or the net income per share of a Series in a manner other
than as specified in paragraphs 3 and 4 of this Agreement; provided, however,
that any such other methods of computation shall not be inconsistent with any
applicable laws and regulations.
6. The Company shall furnish or cause the Adviser to furnish the Bank
with any and all instructions, explanations, information, specifications and
documentation deemed necessary by the Bank in the performance of its duties
hereunder, including, without limitation, the amounts, and/or written formula
for calculating the amounts, and times of accrual of Company liabilities and
expenses. The Company shall also at any time and from time to time furnish or
cause the Adviser to furnish the Bank with bid, offer, and/or market values of
Company securities if the same are not available to the Bank from a security
pricing or similar service utilized, or subscribed to, by the Bank at the time
such information is required for calculations hereunder. The Bank shall at no
time or from time to time be required or obligated to commence or maintain
any utilization of, or subscriptions to, any securities pricing or similar
service not listed on Schedule I hereto. Any specifications of the assets of
the Company given to the Bank by the Company, and any changes in such
specifications, including, without limitation, any additions thereto or
deletions therefrom, shall be signed by two (2) officers of the Company, or
shall be sent by an electronic date transmission system, containing such codes
and passwords as the parties may agree upon.
7. The Bank shall advise the Company, the Company's custodian and the
Company's transfer agent of the net asset value per share, the net income and
the net income per share of each Series upon completion of the computations
required to be made by the Bank pursuant to this Agreement. A summary
specifying NAV shall be provided the same day, and a detailed report shall be
electronically provided or electronically available by the next business day,
all in accordance with electronic transmission protocols agreed to by the Bank
and the Company. In addition, for so long as net income and net income per
share is determined by the Company as of 2:00 p.m. New York time, the Bank
shall provide to National Financial Services Corporation ("NFSC") on each
business day by 4:45 p.m. New York time the net income per share on such
business day, such provision to be accomplished by the Bank's sending a
facsimile transmission to NFSC at the address last provided by NFSC to the Bank
for such purpose.
8. The Bank shall, as agent for the Company, maintain and keep current
the books, accounts and other documents, if any, listed in Appendix A hereto
and made a part hereof, as such Appendix A may be amended from time to time,
and preserve any such books, accounts and other documents in accordance
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with the applicable provisions of Rule 31a-2 of the General Rules and
Regulations under the Investment Company Act of 1940, as amended (the "Rules").
Such books, accounts and other documents shall be made available upon
reasonable request for inspection by officers, employees and auditors of the
Company during the Bank's normal business hours.
9. All records maintained and preserved by the Bank pursuant to this
Agreement which the Company is required to maintain and preserve in
accordance with the above-mentioned Rules shall be and remain the property of
the Company and shall be surrendered to the Company or the Adviser,
respectively promptly upon the respective request of either in the form in
which such records have been maintained and preserved. Upon reasonable
request of the Company or the Adviser, the Bank shall provide in hard copy
or on micro-film, whichever the Bank shall elect, any records included in
any such delivery which are maintained by the Bank on a computer disc, or
are similarly maintained, and the Company shall reimburse the Bank for its
reasonable expenses of providing such hard copy or micro-film.
10. The Bank, in performing the services required of it under the terms
of this Agreement, shall be entitled to rely fully on the accuracy and validity
of any and all instructions, explanations, information, specifications and
documentation furnished to it by the Company or the Adviser and shall have no
duty or obligation to review the accuracy, validity or propriety of such
instructions, explanations, information, specifications or documentation,
including without limitation, valuations of securities held as part of the
portfolios of the Series; the amounts and/or formula for calculating the
amounts and times of accrual of Series' liabilities and expenses; the amounts
receivable and the amounts payable on the sale or purchase of the portfolio
securities of the Series; and amounts receivable or amounts payable for the
sale or redemption of Company shares effected by or on behalf of the Series.
In the event the Bank's computations hereunder require, in whole or in part,
information, including, without limitation, bid, offer and/or market values
of securities or other assets, or accruals of interest or earnings thereon,
which is not furnished by the Company because the same is available to the
Bank from a pricing or similar service listed on Schedule I hereto utilized, or
subscribed to, by the Bank which the Bank in its judgment deems reliable, the
Bank shall not be responsible for, under any duty to inquire into, nor
deemed to make any assurances with respect to, the accuracy or completeness of
such information. From time to time Schedule I may be amended by the parties
hereto to add or delete a service, provided that the costs of any service
added are borne by the Company, and provided further that the Bank shall in
no event be required to utilize any service unless such service is available
to the Bank by a means compatible with the Bank's then existing electronic
data facilities.
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11. The Bank shall not be required to inquire into any valuation of
securities or other assets by the Company or any third party described in
preceding paragraph 10 hereof, even though the Bank in performing services
similar to the services provided pursuant to this Agreement for others may
receive different valuations of the same or different securities of the same
issuers.
12. The Bank, in performing the services required of it under the terms
of this Agreement, shall not be responsible for determining whether any
interest accruable to the Company is or will be actually paid, but will accrue
such interest until otherwise instructed by the Company.
13. The Bank shall not be responsible for delays or errors which occur
by reason of circumstances beyond its control in the performance of its duties
under this Agreement, including, without limitation, labor difficulties within
and without the Bank, mechanical breakdowns, flood or catastrophe, acts of
God, or failures of transportation, communication or power supply, or other
similar circumstances. Nor shall the Bank be responsible for delays or
failures to supply the information or services specified in this Agreement
where such delays or failures are caused by the failure of any person(s) other
than the Bank to supply any instructions, explanations, information,
specifications or documentation deemed necessary by the Bank in the performance
of its duties under this Agreement.
14. No provision of this Agreement shall prevent the Bank from offering
services similar or identical to those covered by this Agreement to any other
corporations, associations or entities of any kind. Any and all operational
procedures, techniques and devices developed by the Bank in connection with
the performance of its duties and obligations under this Agreement, including
those developed in conjunction with the Company, shall be and remain the
property of the Bank, and the Bank shall be free to employ such procedures,
techniques and devices in connection with the performance of any other contract
with any other person whether or not such contract is similar or identical
to this Agreement.
15. The Bank may, with respect to questions of law, apply to and obtain
the advice and opinion of counsel to the Company or, at its own expense, its
own counsel and shall be entitled to rely on the advice or opinion of such
counsel. The costs of any such advice or opinion of counsel to the Company
shall be borne by the Company.
16. The Bank shall not be liable for any loss, damage or expense,
including counsel fees and other costs and expenses of a defense against any
claim or liability, resulting from, arising out of, or in connection with its
performance hereunder, including its actions or omissions, the
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incompleteness or inaccuracy of any specifications or other information
furnished by the Company, or for delays caused by circumstances beyond the
Bank's control, unless such loss, damage or expense arises out of the bad
faith, negligence, or willful misconduct of the Bank. In no event shall the
Bank be liable to the Company or any third party for special, indirect, or
consequential damages, or for loss profits or loss of business, arising under
or in connection with this Agreement, even if previously informed of
possibility of such damages and regardless of the form of action.
17. Without limiting the generality of the foregoing, the Company shall
indemnify the Bank against and save the Bank harmless from any loss, damage
or expense, including counsel fees and other costs and expenses of a defense
against any claim or liability, arising from the following:
(a) Errors in records, information, specifications or documentation
of any kind, as the case may be, supplied to the Bank by any third party
described in preceding paragraph 10 hereof or by or on behalf of the Company;
(b) Action or inaction taken or omitted to be taken by the Bank
without bad faith, negligence or willful misconduct including actions pursuant
to written instructions or explanations of an officer or employee of the
Company or the Adviser; and
(c) Any action taken or omitted to be taken by the Bank in good
faith in accordance with the advice or opinion of counsel for the Company or
its own counsel.
18. In consideration for all of the services to be performed by the Bank
as set forth herein the Bank shall be entitled to receive reimbursement for
all reasonable out-of-pocket expenses and such compensation as may be agreed
upon in writing from time to time between the Bank and the Company.
19. This Agreement shall not be assignable by the Company without the
prior written consent of the Bank, or by the Bank without the prior written
consent of the Company.
20. Either of the parties hereto may terminate this Agreement by giving
the other party a notice in writing specifying the date of such termination,
which shall not be less than sixty (60) days in case of a notice given by the
Company, or 120 days in the case of a notice given by the Bank, after the date
of giving of such notice. Upon the date set forth in such notice, the Bank
shall deliver to the Company all records then the property of the Company and,
upon such delivery, the Bank shall be relieved of all duties and
responsibilities under this Agreement.
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21. This Agreement may not be amended or modified in any manner except
by written agreement executed on behalf of both parties hereto.
22. This Agreement is executed in the State of New York and all laws or
rules of construction of the State of New York shall govern the rights, duties
and obligations of the parties hereto.
23. The performance and provisions of this Agreement are intended to
benefit only the Bank and the Company, and no rights shall be granted to any
other person by virtue of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Attest:
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THE BANK OF NEW YORK
By: /s/ Xx Xxxxxxxxx
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Attest:
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APPENDIX A TO COMPANY ACCOUNTING AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
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I. The Bank of New York (the "Bank"), as agent for
(the "Company"), shall maintain the following records on a daily basis for each
Series.
1. Report of priced portfolio securities
2. Statement of net asset value per share
3. New income of the Company for dividend proposes
4. Net income per share
5. Yield of the Company
II. The Bank shall maintain the following records on a monthly basis
for each Series:
1. General Ledger
2. General Journal
3. Cash Receipts Journal
4. Cash Disbursements Journal
5. Subscriptions Journal
6. Redemptions Journal
7. Accounts Receivable Reports
8. Accounts Payable Reports
9. Open Subscriptions/Redemption Reports
10. Transaction (Securities) Journal
11. Broker Net Trades Reports
III. The Bank shall prepare a Holdings Ledger on a quarterly basis, and
a Buy-Sell Ledger (Broker's Ledger) on a semiannual basis for each Series.
Schedule D shall be produced on an annual basis for each Series.
The above reports may be printed according to any other required frequency
to meet the requirements of the Internal Revenue Service, The Securities and
Exchange Commission and the Company's Auditors.
IV. For internal control purposes, the Bank uses the Account Journals
produced by The Bank of New York Custody System to record daily settlements
of the following for each Series:
1. Securities bought
2. Securities sold
3. Interest received
4. Dividends received
5. Capital stock sold
6. Capital stock redeemed
7. Other income and expenses
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All portfolio purchases for the Company are recorded to reflect expected
maturity value and total cost including any prepaid interest.
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