FORM OF
ACCESSOR FUNDS, INC.
ADMINISTRATIVE SERVICES AGREEMENT
INVESTOR CLASS SHARES
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made and
entered into as of the __________ day of __________________, 1998, by and
between Accessor Funds, Inc., a corporation organized under the laws of the
State of Maryland (the "Fund"), and a registered open-end investment management
company, currently with eight portfolios as set forth in Exhibit A, as may be
amended from time to time, (each a "Portfolio" and collectively, the
"Portfolios") on behalf of a class of shares of its Portfolios (the "Investor
Class Shares"), and __________ (the "Service Organization")./1/
WHEREAS, Service Organization provides administrative, recordkeeping
and/or support servicing to its customers who may from time to time beneficially
own Investor Class Shares of the Fund; and
WHEREAS, on the terms and conditions hereinafter set forth, the parties
desire to retain Service Organization to perform certain administrative,
recordkeeping and/or support servicing functions, and Service Organization is
willing and able to furnish such services;
NOW, THEREFORE the Fund and Service Organization agree as follows:
1. Appointment of Service Organization as an Agent./2/
2. Administrative Services. Service Organization agrees to provide all
administrative services to its customers who may from time to time beneficially
own Investor Class Shares of the Portfolios, including by way of example but not
limited to services specified in Exhibit B, as may be amended from time to time.
Service Organization agrees that it will maintain and preserve all records as
required by law and preserved in connection with providing the administrative
services. Service Organization will permit the Fund or its representative to
have reasonable access to its personnel and records, if required by law. Upon
request of the Fund, Service Organization shall provide copies of written
communications regarding the Fund to or from its customers. If, at any time, the
Fund determines Service Organization's practices, procedures or controls to be
inadequate, written notice of such inadequacy shall be given to Service
Organization, and Service Organization shall have fifteen (15) days plus any
additional time as provided by the Fund to correct such inadequacy. In the event
such inadequacy is not corrected by Service Organization, the Fund shall have
the right to immediately terminate this Agreement. Nothing in this Agreement
shall impose upon the Fund the obligation to review Service Organization's
practices, procedures and controls.
----------
/1/ Insert as applicable, name of Service Organization which may include
financial institutions, retirement plans, broker-dealers, depository
institutions, institutional shareholders of record, registered investment
advisers and other financial intermediaries and various brokerage firms or
other industry recognized service providers of fund supermarkets and
similar programs (collectively, "Service Organizations").
/2/ Insert as applicable: Appointment as agent for purpose of effecting
purchases and redemptions in the case where a Service Organization effects
transactions; or
To the extent Service Organization is involved in the purchase of shares of
any Fund by the Service Organization's customers, such involvement will be
as agent of such customers only.
3. Transactions in the Fund. Service Organization agrees that it will
establish with the Fund either:
one or more separate omnibus accounts registered in Service
Organization's name for the exclusive benefit of its clients who are
shareholders of Investor Class Shares in the Portfolios and will
perform various services described in this Administrative Services
Agreement for the client shareholders in its accounts.
or
accounts registered in its clients names who will be shareholders of
Investor Class Shares in the Portfolios and will perform various
services described in this Administrative Services Agreement for its
clients' accounts.
4. Standard of Services. All services to be rendered by Service
Organization hereunder shall be performed in a professional, competent and
timely manner. The details of the services to be provided by Service
Organization in performance of this contract are described by way of example in
Exhibit B, which may be amended from time to time by agreement between Service
Organization and the Fund. Service Organization shall bear responsibility for
any discrepancies between its omnibus account(s), if applicable, and the client
account(s) and for the maintenance of all records regarding the client, all
transactions and the client's interest in the omnibus account(s).
5. Administrative Services Fee.
(a) In consideration of the administrative services and
performance of all other obligations under this Administrative
Services Agreement by Service Organization, Service
Organization will receive a fee at an annual rate not to
exceed 0.25% of the average daily net assets attributable to
the Investor Class Shares of the Portfolios beneficially owned
by the customers of Service Organization (the "Administrative
Services Fee") from the Fund, as set forth on Exhibit C.
(b) Except as otherwise agreed in writing with the Fund with
respect to specific expenditures by Service Organization,
Service Organization shall bear sole responsibility for all
costs and expenses of providing services under this Agreement.
Provided, however, the Fund shall be responsible for preparing
and providing sufficient copies of materials (such as
prospectuses, annual reports, etc.) to Service Organization
and Service Organization shall be responsible for forwarding
Fund materials to investors.
(c) It is agreed that the Administrative Services Fee provided
under this Section 6 shall be payable by the Fund pursuant to
the Fund's Administrative Services Plan. The parties agree
that the payments by the Fund to Service Organization are
solely for non-distribution related administrative or
recordkeeping services provided by Service Organization and do
not constitute payment in any manner for investment advisory
services or for costs of distribution.
(d) The Administrative Services Fee will calculated and accrued
daily and paid monthly, or at such other interval as may be
agreed upon between the parties. Payment of the Administrative
Services Fee will be made by wire transfer as described on
Exhibit D, as may be amended from time to time. The wire
transfer will be preceded by or followed by a statement
showing the calculation of the amounts being paid by the Fund
for the relevant month and such other supporting data as may
be reasonably requested by Service Organization.
(e) Service Organization represents and warrants that the receipt
of the fees described in Section 4 and the provision of
administrative services to its customers by the Service
Organization does not and will not constitute a non-exempt
"prohibited transaction" or "conflict of interest" prohibited
by Section 406 of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA") or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code").
6. Transaction Charges.
Service Organization shall not, during the term of this Agreement,
assess against, or collect from, customers, any transaction fee upon the
purchase or redemption of any of the Fund's Investor Class Shares that meet the
minimum purchase criteria. Customer purchases not meeting the criteria may be
charged a transaction fee and any such fee shall not be included in
administrative fee invoices presented for payment.
7. Representations./3/
(a) Service Organization represents that it shall provide the
Administrative Services consistent with the terms of this
Agreement. Service Organization also hereby represents that it
has full power and authority to enter into and perform this
Agreement and that it will promptly notify the Fund in the
event that Service Organization is for any reason unable to
perform any of its obligations under this Agreement.
(b) Service Organization represents and warrants that it has and
will continue at all times to maintain necessary facilities,
equipment and personnel to perform its services hereunder.
(c) Service Organization represents and warrants that all its
customers are aware that they are transacting business with
Service Organization and not the Fund, and that they will look
only to Service Organization and not the Fund for resolutions
of problems or discrepancies in their account.
----------
/3/ Agreement to be modified to insert appropriate representations and
warranties in the case of a broker-dealer effecting transactions on behalf
of the Fund. Discuss with counsel as appropriate.
8. Additional Covenants and Agreements. Service Organization shall
comply with all applicable federal and state securities, insurance and tax laws
applicable to the activities of Service Organization contemplated by this
Agreement. Service Organization shall not, without the written consent of the
Fund, make representations concerning the shares of the Fund except those
contained in the then current prospectus and in current printed sales literature
approved by the Fund. Provided, however, if Service Organization refers to the
Fund in marketing materials of the Service Organization, the Fund shall have a
reasonable opportunity to review and approve the materials. The Fund shall
comply with all laws, rules and regulations applicable to it as a result of the
transactions contemplated by this Agreement.
9. Relationship of Parties
(a) The relationship between Service Organization and the Fund
shall be that of independent contractors and neither party
shall be or represent itself to be an agent, employee, partner
or joint venturer of the other, nor shall either party have or
represent itself to have any power or authority to act for,
bind or commit the other.
(b) The parties acknowledge and agree that the services under this
Agreement are recordkeeping, shareholder communication, and
related services only and are not the services of an
underwriter or a principal underwriter within the meaning of
the Securities Act of 1933, as amended, or the 1940 Act.
(c) Except as otherwise expressly provided for in this Agreement,
neither Service Organization or any of its affiliates shall
use any trademark, trade name, service xxxx or logo of the
Fund, or any variation of such trademark, trade name, service
xxxx or logo, without the Fund's prior written consent, the
granting of which shall be at the Fund's sole option.
10. Indemnification
(a) Service Organization shall indemnify and hold harmless the
Fund, its directors, officers, employees, and agents
(hereinafter "Indemnified Parties") from and against any and
all losses, claims, liabilities and expenses (including, but
not limited to, reasonable attorney's fees) incurred by any of
them and arising as a result of: (i) Service Organization's
dissemination of information regarding the Fund that is
materially incorrect and that was not provided to Service
Organization by the Fund, or approved by the Fund, its
affiliated persons (as defined in the 0000 Xxx) or agents; or
(ii) Service Organization's willful misconduct or gross
negligence in the performance of, or failure to perform, its
obligations under this Agreement, except to the extent the
losses are a result of the negligence, willful misconduct, or
breach of this Agreement by an Indemnified Party.
(b) In any event, neither party shall be liable for any special,
consequential or incidental damages.
11. Termination; Withdrawal of Offering. Any party may terminate this
Agreement with respect to such party upon 30 days' prior written notice to the
other parties; provided, however, that the Fund reserves the right, without
prior notice, to suspend sales of shares of any of the Portfolios of the Fund,
in whole or in part, or to make a limited offering of shares of any of the
Portfolios in the event that (a) any regulatory body commences formal
proceedings against any of the Portfolios or Service Organization, which
proceedings the Fund believes will have a material adverse impact on the ability
of the Fund or Service Organization to perform its obligations under this
Agreement or (b) in the judgment of the Fund, declining to accept any additional
instructions for the purchase or sale of shares of any such Portfolio is
warranted by market, economic or political conditions. Notwithstanding the
foregoing, this Agreement may be terminated upon (i) a good faith determination
by the Fund that shares of any of the Portfolios are not being offered in
conformity with the terms of this Agreement, the then current prospectuses or
applicable law, or (ii) any other breach by a party, which breach is not cured
within 30 days after notice from the other party. Following termination, the
Fund shall not have any Administrative Services Fee obligation to Service
Organization.
12. Governing Law. The laws of the State of New York shall govern the
validity of this Agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties.
13. Counterpart Execution. This Agreement may be executed in any number
of counterparts with the same effect as if the parties had signed the same
document. All counterparts shall be construed together and shall constitute one
agreement.
14. Notices. Except as otherwise provided in this Agreement, all
notices, requests and other communications to any party under or in connection
with this Agreement shall be in writing and shall be sent via personal delivery,
via telephone facsimile transmission, via certified or registered mail, return
receipt requested, or via express courier or delivery service, addressed to such
party at such party's address or telephone facsimile number set forth below or
at such other address or telephone facsimile number as shall be designated by
such party in a written notice given to each other party complying as to
delivery with the terms of this Section:
Accessor Funds, Inc.: Accessor Funds, Inc.
c/o Bennington Capital Management
U.S. Bank Centre
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Service Organization: [To be inserted]
15. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity or
legality of the remainder of this Agreement.
16. Non-Exclusivity. Each of the parties acknowledges and agrees that
this Agreement and the arrangement described herein are intended to be
non-exclusive and that each of the parties is free to enter into similar
agreements and arrangements with other entities.
17. Amendment. Neither this Agreement, nor any provision hereof, may be
amended, waived, discharged, or terminated orally, but only by an instrument in
writing signed by all of the parties hereto.
18. Successors and Assigns. This Agreement may not be assigned without
the written consent of all parties to the Agreement at the time of such
assignment. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
19. Entire Agreement. This Agreement, including the Attachments hereto,
constitutes the entire agreement between the parties with respect to the matters
dealt with herein, and supersedes all previous agreements, written or oral, with
respect to such matters.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
ACCESSOR FUNDS, INC.
By:___________________________________
Name
Title
[NAME OF SERVICE ORGANIZATION]
By:_____________________________________
Name
Title
EXHIBIT A
ACCESSOR FUNDS, INC.
as of February 19, 1998
Growth Portfolio
Value and Income Portfolio
Small to Mid Cap Portfolio
International Equity Portfolio
Intermediate Fixed-Income Portfolio
Short-Intermediate Fixed-Income Portfolio
Mortgage Securities Portfolio
U.S. Government Money Portfolio
EXHIBIT B
TYPES OF SERVICES
Service Organization shall be responsible for performing administrative
and support servicing to their customers who may from time to time beneficially
own Investor Class Shares of the Fund, which by way of example may include:
1. Establishing and maintaining accounts and records relating to shareholders;
2. Processing dividend and distribution payments from the Portfolio on behalf
of shareholders;
3. Providing information periodically to shareholders showing their positions
in shares and integrating such statements with those of other transactions
and balances in shareholders other accounts serviced by such financial
institution;
4. Arranging for bank wires;
5. Providing transfer agent or sub-transfer agent services, recordkeeping,
custodian or subaccounting services with respect to shares beneficially
owned by shareholders, or the information to the Portfolio necessary for
such services;
6. If required by law, forwarding shareholder communications from the
Portfolio (such as proxies, shareholder reports, annual and semi-annual
financial statements and dividend, distribution and tax notices) to
shareholders;
7. Assisting in processing purchase, exchange and redemption requests from
shareholders and in placing such orders with our service contractors;
8. Withholding taxes on non-resident alien accounts;
9. Withholding on dividends and distributions as may be required by state or
Federal authorities from time to time; and providing such other similar
services, which are not considered "service fees" as defined in National
Association of Securities Dealers, Inc. (the "NASD") Rule 2830(b)(9), as
the Portfolio may reasonably request to the extent the financial
institution, broker-dealer, registered investment adviser or fund
supermarket is permitted to do so under applicable laws, statutes, rules
and regulations, provided, however, if the NASD adopts a definition of
"service fee" for purposes of Rule 2830 of the NASD Conduct Rules that
differs from the definition of "service fee" as presently used, or if the
NASD adopts a related definition intended to define the same concept, the
definition of "service fee" as used herein shall be automatically amended
to conform to the NASD definition;
10. Transmittal of Purchase and Redemption Orders./4/
--------
/4/ In case where Service Organization is transmitting purchase and redemption
orders, operation type disclosure must be added.
EXHIBIT C
Service Organization
Portfolio Administrative Services Fee
--------- ---------------------------
Growth
Value and Income
Small to Mid Cap
International Equity
Intermediate Fixed-Income
Short-Intermediate Fixed-Income
Mortgage Securities
U.S. Government Money
EXHIBIT D
WIRE TRANSFER INFORMATION
Bank Name:
ABA#:
Account#:
For Credit to:
Special Instructions:
