EXHIBIT 99-B9B
FUND ACCOUNTING AGREEMENT
THIS AGREEMENT is made as of the 1st day of April, 1994, by and between
UNITED MISSOURI BANK, n.a., a national banking association with its principal
place of business located at Kansas City, Missouri ("UMB") and each of the Funds
listed in Appendix A attached hereto as said Exhibit may from time to time be
revised (individually, a "Fund" and collectively, the "Funds").
W I T N E S S E T H :
WHEREAS, each Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, each Fund wishes to retain UMB to provide certain accounting
services, and UMB is willing to furnish such services;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Funds hereby appoint UMB to provide certain
accounting services to the Funds for the period and on the terms set forth in
this Agreement. UMB accepts such appointment and agrees to furnish the services
herein set forth in return for the compensation as provided in Paragraph 13 of
this Agreement.
2. DELIVERY OF DOCUMENTS. Each Fund has furnished UMB with copies,
properly certified or authenticated, with all amendments or supplements thereto,
of the following documents:
(a) Certificate of Incorporation (or equivalent document) of the Fund
as in effect on the date hereof;
(b) By-Laws of the Fund as in effect on the date hereof;
(c) Resolutions of the Board of Directors of the Fund appointing UMB
and approving the form of this Agreement; and
(d) The Fund's current prospectus and statements of additional
information.
In addition, each Fund shall promptly furnish UMB with copies of any updates,
amendments or supplements to the foregoing documents.
3. AUTHORIZED PERSONS. Concurrently with the execution of this
Agreement, each Fund shall deliver to UMB copies of a Resolution of its Board of
Directors and all amendments or supplements thereto, properly certified or
authenticated, designating certain officers or employees of each such Fund who
will have continuing authority to certify to
UMB the names, titles, signatures and scope of authority of all persons
authorized to give Proper Instructions or any other notice, instruction,
certificate, instrument or other communication on behalf of each such Fund
(collectively, the "Authorized Persons" and individually, an "Authorized
Person"). Such Resolutions and certificates may be accepted and relied upon by
UMB as conclusive evidence of the facts set forth therein and shall be
considered to be in full force and effect until delivery to UMB of a similar
Resolution or certificate to the contrary. Upon delivery of a certificate which
deletes or does not include the name(s) of a person previously authorized to
give Proper Instructions, such person(s) shall no longer be considered an
Authorized Person authorized to give Proper Instructions. Unless the
certificate specifically requires that the approval of anyone else will first
have been obtained, UMB will be under no obligation to inquire into the right of
the person giving such Proper Instructions to do so.
4. PROPER INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, UMB shall act only upon
Proper Instructions. Proper Instructions shall mean: (i) a tested telex, a
written (including, without limitation, facsimile transmission) request,
direction, instruction or certification signed or initialed by or on behalf of a
Fund by one or more Authorized Persons; (ii) a telephonic or other oral
communication from a person UMB reasonably believes to be an Authorized Person;
or (iii) a communication effected directly between an electro-mechanical or
electronic device or system (including, without limitation, computers) on behalf
of a Fund. Instructions given by facsimile transmission will be considered
Proper Instructions if UMB reasonably believes them to have been given by
Authorized Persons. Instructions in the form of oral communications shall be
confirmed by the Fund by tested telex or in writing in the manner set forth in
clause (i) above, but the lack of such confirmation shall in no way affect any
action taken by UMB in reliance upon such oral Instructions prior to UMB's
receipt of such confirmation. Each Fund authorizes UMB to tape record any and
all telephonic or other oral instructions given to UMB by or on behalf of a Fund
(including any of its respective officers, Directors, employees or agents or any
investment manager or adviser of a Fund or person or entity with similar
responsibilities which is authorized to give Proper Instructions on behalf of a
Fund to UMB). Proper Instructions may be in the form of standing instructions.
(b) Although UMB may know of the provisions of the Certificates of
Incorporation (or equivalent document) and By-Laws of the Funds, UMB may assume
that any Proper Instructions received hereunder are not in any way inconsistent
with any provisions of such Certificates of Incorporation (or equivalent
document) or By-Laws or any vote, resolution or proceeding of the Funds'
shareholders, or of the Boards of Directors or of any committees thereof. UMB
shall be entitled to rely upon any Proper Instructions actually received by it
pursuant to this Agreement.
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5. SERVICES ON A CONTINUING BASIS.
(a) With respect to each Fund, UMB will perform the following accounting
functions on a daily basis:
(1) Journalize the Fund's investment, capital share and income and
expense activities;
(2) Verify investment buy/sell trade tickets received from the Fund's
investment manager or from the Fund, as the case might be, and transmit trades
to the Fund's custodian for proper settlement;
(3) Maintain individual ledgers for investment securities;
(4) Maintain historical tax lots for each security;
(5) Reconcile cash and investment balances of the Fund with the
Fund's custodian, and provide the Fund's investment manager with the beginning
cash balance available for investment purposes;
(6) Update the cash availability throughout the day as required by
the Fund's investment manager;
(7) Post to and prepare the Fund's Statement of Assets and
Liabilities and the Statement of Operations;
(8) Calculate various contractual expenses (e.g., advisory and
custody fees);
(9) Calculate capital gains and losses;
(10) Determine the Fund's net income;
(11) Obtain security market quotes from services approved by the
Fund's investment manager, or if such quotes are unavailable, then obtain such
prices from the Fund's investment manager, and in either case calculate the
market value of the Fund's investments;
(12) Value the assets of the Fund and compute the net asset value per
share of the Fund at such times and dates and in the manner specified in the
then currently effective prospectus and statement of additional information;
(13) Monitor the expense accruals and notify Fund management of any
proposed adjustments; and
(14) Receive and act on notices, instructions, certificates,
instruments or other communication from a Fund's shareholder servicing agent
and/or transfer agents.
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(b) In addition to the accounting services described in the foregoing
Paragraph 5(a), UMB will:
(1) Prepare monthly financial statements, which will include the
following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses; and
(2) At the reasonable request of the Fund, assist in the preparation
of various reports or other financial documents required by federal, state and
other appropriate laws and regulations.
6. RECORDS. With respect to each Fund, UMB shall keep all books and
records with respect to the Fund's books of account as requested to be
maintained under this Agreement. The books and records pertaining to the Funds
which are in the possession of UMB shall be the property of the Funds. The
Funds, or the Funds' authorized representatives, shall have access to such books
and records at all times during UMB's normal business hours. Upon the
reasonable request of a Fund, copies of any such books and records shall be
provided by UMB to the Fund or the Fund's authorized representative at the
Fund's expense. UMB shall maintain the books and records for the accounting
services described in Paragraph 5 in accordance with the 1940 Act and the rules
promulgated thereunder.
7. LIAISON WITH ACCOUNTANTS. UMB shall act as liaison with the Funds'
independent public accountants and shall provide account analyses, fiscal year
summaries, and other audit related schedules.
8. CONFIDENTIALITY. UMB agrees on behalf of itself and its employees to
treat confidentially and as proprietary information of the Funds all records and
other information relative to the Funds and their prior, present or potential
shareholders, and not to use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except, (1) after
prior notification to and approval by a Fund, which approval shall not be
unreasonably withheld and may not be withheld where UMB may be exposed to civil
or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities; (2) when so requested
by a Fund; or (3) where otherwise permitted by law.
9. EQUIPMENT FAILURES. In the event of equipment failures, UMB shall, at
no additional expense to the Funds, take reasonable steps to minimize service
interruptions but shall have no liability with respect thereto.
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10. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF FUNDS. If UMB shall be in doubt as to any action to be
taken or omitted by it, it may request, and shall promptly receive, from the
relevant Fund or Funds directions or advice, including Proper Instructions where
appropriate.
(b) ADVICE OF COUNSEL. If UMB shall be in doubt as to any question
of law involved in any action to be taken or omitted by UMB, it may request
advice from counsel of its own choosing.
(c) CONFLICTING ADVICE. In case of conflict between directions,
advice or Proper Instructions received by UMB pursuant to subsection (a) of this
paragraph and advice received by UMB pursuant to subsection (b) of this
paragraph, UMB shall be entitled to rely on and follow the advice received
pursuant to the latter provision alone.
(d) PROTECTION OF UMB. UMB shall be protected in any action or
inaction which it takes in reliance on any directions, advice or Proper
Instructions received pursuant to subsections (a) or (b) of this paragraph which
UMB, after receipt of any such directions, advice or Proper Instructions,
believes to be consistent with such directions, advice or Proper Instructions,
as the case may be. However, nothing in this paragraph shall be construed as
imposing upon UMB any obligation (i) to seek such directions, advice or Proper
Instructions, or (ii) to act in accordance with such directions, advice or
Proper Instructions when received, unless, under the terms of another provision
of this Agreement, the same is a condition to UMB's properly taking or omitting
to take such action. Nothing in this subsection shall excuse UMB when an action
or omission on the part of UMB constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by UMB of its duties under this Agreement.
11. COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS. Each Fund assumes
full responsibility for ensuring that the Fund complies with its investment
objectives, policies and limitations. Each Fund further assumes full
responsibility for ensuring that the Fund complies with all applicable
requirements of the Securities Act of 1933 ("1933 Act"), the Securities Exchange
Act of 1934 ("1934 Act"), the 1940 Act, the Commodity Exchange Act ("CEA"),
Subchapter M of the Internal Revenue Code of 1986, as amended, and all
regulations thereunder, and any laws, rules and regulations of governmental
authorities having jurisdiction.
12. NOTICES, INSTRUCTIONS CERTIFICATES, INSTRUMENTS OR OTHER
COMMUNICATIONS. With respect to any notices, instructions, certificates,
instruments or other communications from a Fund's custodian, UMB shall be
authorized to rely and act upon its own internal sources of communication for so
long as UMB is also serving as custodian for such Fund. With respect to any
notices, instructions, certificates, instruments or other communications from a
Fund, any investment manager, shareholder servicing agent or transfer agent for
a Fund, any custodian other than UMB, or any other source, UMB shall be entitled
to rely and act upon any such notices, instructions, certificates, instruments
or other communications it reasonably believes to be genuine.
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13. FEES AND EXPENSES.
(a) As compensation for the services rendered by UMB during the term
of this Agreement, each of the Funds will pay to UMB a fee, as specified in the
Fee Schedule, attached hereto as Appendix B to this Agreement, as may be revised
from time to time in writing by the Funds and UMB.
(b) In addition to the fees paid pursuant to the Fee Schedule, the
Funds agree to reimburse UMB for its cash disbursements, expenses or charges in
connection with the Agreement (excluding salaries and usual overhead expenses).
(c) UMB will, on a timely basis, xxxx each Fund separately with
respect to fees and all amounts for which UMB is to be reimbursed. Each Fund
will promptly pay to UMB the amount of such billing.
(d) UMB in its sole discretion may from time to time employ or
associate with itself such person or persons as UMB may believe to be
particularly suited to assist it in performing services under this Agreement.
The compensation of such person or persons shall be paid by UMB and no
obligation shall be incurred on behalf of any Fund.
14. RESPONSIBILITY OF UMB. UMB shall be under no duty to take any action
on behalf of the Funds except as specifically set forth herein or as may be
specifically agreed to by UMB in writing. UMB shall not be liable for any error
in Judgment or mistake at law for any loss suffered by the Funds in connection
with any matters to which this Agreement relates, but nothing herein contained
shall be construed to protect UMB against any liability by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement. Without limiting the generality of the foregoing or of any other
provision of this Agreement, UMB in connection with its duties under this
Agreement shall not be under any duty or obligation to inquire into and shall
not be liable for or in respect of (a) the validity or invalidity or authority
or lack thereof of any Proper Instruction, notice, certificate, instrument or
other communication from either a Fund or other source which conforms to the
applicable requirements of this Agreement, and which UMB reasonably believes to
be genuine; (b) prices obtained in the manner set forth in paragraphs 5(a)(11)
and/or (12); or (c) delays or errors or loss of data occurring by reason of
circumstances beyond UMB's control, including, without limitation, acts of civil
or military authority, national emergencies, labor difficulties, fire,
earthquakes, mechanical breakdowns (except as provided in paragraph 9), flood or
catastrophe, act of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
15. INDEMNIFICATION. The Funds agree to indemnify and hold harmless UMB
and its nominees from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising under the 1933
Act, the 1934 Act, the 1940 Act, the CEA, Subchapter M of the Internal Revenue
Code and any regulations thereunder, and any state and foreign securities and
blue sky laws, all as or to be amended from time to time) and expenses,
including (without limitation) attorneys' fees and disbursements, arising
directly or indirectly from any action or thing which UMB takes or does or omits
to take or do in reliance upon any
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Proper Instruction, notice, certificate, instrument or other communication from
a Fund, or from a Fund's custodian, investment manager, shareholder servicing
agent or transfer agent, which conforms to the applicable requirements of this
Agreement; provided that neither UMB nor any of its nominees shall be
indemnified against any liability to the Funds or to their shareholders (or any
expenses incident to such liability) arising out of UMB's own willful
misconduct, bad faith, gross negligence or reckless disregard of its duties and
obligations specifically described in the Agreement.
UMB agrees and represents that it will fully indemnify the Fund and hold
the Fund harmless from and against any and all liability, claims, damages, costs
and expenses (including attorneys' fees), incurred by the Fund by reason of
UMB's gross negligence, willful misconduct, bad faith or reckless disregard of
its duties and obligations specifically described in this Agreement.
16. LIABILITY FOR PAST RECORDS. UMB shall not have any liability in
respect of any 105B, damage or expense suffered by any Fund, insofar as such
loss, damage or expense arises from the performance of UMB in reliance upon
records that were maintained for any Fund by entities other than UMB.
17. DURATION AND TERMINATION. This Agreement shall continue until
termination by either UMB or a Fund or Funds on ninety days' written notice.
18. NOTICES. Written notices (including but not limited to written Proper
Instructions) shall be addressed: (a) if hand-delivered to UMB, to the
Securities Administration Department of UMB at its office at 000 Xxxxx Xxxxxx,
Xxxxxx Xxxx, Xxxxxxxx 00000, or if mailed, to UMB's Securities Xxxxxxxxxxxxxx
Xxxxxxxxxx, Xxxx Xxxxxx Xxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000; (b) if to a Fund,
at the address of the Fund as listed on Appendix A; or (c) if to neither of the
foregoing, at such other address as shall have been notified to the sender of
any such notice or other communication. Notices may be sent by first class
mail, in which case it shall be deemed to have been given two days after it is
sent, or if sent by messenger, it shall be deemed to have been given on the day
it is delivered, or if sent by certified or registered mail, it shall be deemed
to have been given on the day it is received. All postage, cable, telex or
facsimile sending device charges arising from the sending of a notice hereunder
shall be paid by the sender.
19. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
20. AMENDMENTS; WAIVER. This Agreement or any part hereof may be amended,
modified or waived only by an instrument in writing signed by both parties
hereto.
21. ADDITIONAL FUNDS. An additional Fund or Funds may become a party to
this Agreement after the date hereof by an instrument in writing to such effect
signed by such Fund or Funds and UMB. If this Agreement is terminated as to one
or more of the Funds (but less than all of the Funds) or if an additional Fund
or Funds shall become a party to this Agreement, there shall be delivered to
each party an amended Appendix A deleting or adding such Fund or Funds, as the
case may be. The termination of this Agreement as to less than all of the Funds
shall not
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affect the obligations of UMB and the remaining Funds hereunder as set forth in
Appendix A as revised from time to time.
22. ASSIGNMENT. Neither this Agreement nor any rights or obligations
hereunder may be assigned by either party without the written consent of the
other party.
23. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This Agreement shall
become effective when one or more counterparts have been signed and delivered by
each of the parties.
24. DISCLAIMER OF PERSONAL LIABILITY. The obligations of Universal
Capital Investment Trust ("Universal") hereunder shall not be binding upon any
of the trustees of Universal, shareholders, nominees, officers, agents, or
employees of Universal, personally, but shall bind only the assets and property
of Universal as provided in Universal's Agreement and Declaration of Trust.
25. MISCELLANEOUS. This Agreement embodies the entire agreement and
understanding between the parties thereto, and supersedes all prior agreements
and understandings, relating to the subject matter hereof, provided that the
parties hereto may embody in one or more separate documents their agreement, if
any, with respect to Proper Instructions. The captions in this 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. This
Agreement shall be deemed to be a contract made in Missouri and governed by
Missouri law. If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule, regulation or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement shall be binding
and shall inure to the benefit of the parties hereto and their respective
successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first above
written.
[SEAL] UNITED MISSOURI BANK, N.A.
Attest:/s/ [illegible] By: /s/ Xxxxxxxx X. Didusor
----------------------- -----------------------------------
Title:Senior Vice President
--------------------------------
[SEAL] FUNDS LISTED IN APPENDIX A
Attest:/s/ Xxxxx X. Xxxxx By:/s/ Xxxxxxxx X. Xxxxxx
----------------------- -----------------------------------
Title:President
--------------------------------
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APPENDIX A
FUND ACCOUNTING AGREEMENT
The following open-end management investment companies ("Funds") are hereby
made parties to the Fund Accounting Agreement dated April 1, 1994, with United
Missouri Bank, n.a. ("UMB").
[SEAL] UNIVERSAL CAPITAL GROWTH FUND
Attest:/s/ Xxxxx X. Xxxxx By:/s/ Xxxxxxxx X. Xxxxxx
------------------- --------------------------------------
Title: President,
----------------------------------
Universal Capital Investment Trust
------------------------------------
Address: One Xxxxxxxx Xxxxxxx, Xxxxx 000
---------------------------------
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
---------------------------------
[SEAL] ------------------------------------------
(Name of Fund)
Attest: By:
------------------------ ---------------------------------------
Title:
------------------------------------
Address:
----------------------------------
[SEAL] ------------------------------------------
(Name of Fund)
Attest: By:
------------------------ ---------------------------------------
Title:
------------------------------------
Address:
----------------------------------
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APPENDIX B
FUND ACCOUNTING AGREEMENT
FEE SCHEDULE
Flat fee of $600.00 per month per portfolio.
Annual asset base charge:
- 3 basis points up to $100,000,000
- 2 basis points next $250,000,000
- 1 basis point next $650,000,000
- .5 basis point over $1,000,000,000
(computed daily and paid monthly.)
PLUS OUT OF POCKET EXPENSES: including pricing charges, telecommunication
lines and equipment, recalculation of portfolio, etc.
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