FUND ACCOUNTING AND SERVICES AGREEMENT
THIS AGREEMENT is made as of _______ , 1998, by and among THE FIFTH THIRD BANK,
a banking company organized under the laws of the State of Ohio ("Fifth Third"),
and STONEBRIDGE FUNDS TRUST, a business trust organized under the laws of the
State of Delaware, (the "Trust").
W I T N E S S E T H
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "Investment Company
Act") with portfolios as listed in Exhibit A (the "Portfolios");
WHEREAS, Fifth Third provides certain fund accounting, administrative and
other services to investment companies; and
WHEREAS, the Trust, desires to retain Fifth Third to provide fund
accounting and other services for the Trust portfolios listed on EXHIBIT A, as
may be amended from time to time (each a "Portfolio"), and Fifth Third is
willing to provide such services, all as more fully set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
(1) DEFINITIONS, AS USED IN THIS AGREEMENT.
(a) Authorized Person means any officer of the Trust and any
other person duly authorized by the Trust's Board of Trustees to give Oral
and Written Instructions on behalf of the Trust and listed on the
Authorized Persons Appendix attached hereto and made a part hereof or any
amendment thereto as may be received by Fifth Third. An Authorized
Person's scope of authority may be limited by the Trust by setting forth
such limitation in the Authorized Persons Appendix.
(b) Oral Instructions mean instructions orally transmitted to
and accepted by Fifth Third because such instructions are: (i) given by an
Authorized Person or from a person reasonably believed by Fifth Third to
have been an Authorized Person, (ii) recorded and kept among the records of
Fifth Third made in the ordinary course of business and (iii) orally
confirmed by Fifth Third. The Trust shall cause all Oral Instructions to
be confirmed by Written Instructions. If such Written Instructions
confirming Oral Instructions are not received by Fifth Third prior to a
transaction, it shall in no way affect the validity of the transaction or
the authorization thereof by the Trust. If Oral Instructions vary from the
Written Instructions which purport to confirm them, Fifth Third shall
notify the Trust of such variance but such Oral Instructions will govern
unless Fifth Third has not yet acted.
(c) Written Instructions mean (i) written communications
actually received by Fifth Third and signed by one or more persons as the
Board of Trustees shall have from time to time authorized, or (ii)
communications by fax or any other such system from a person or persons
reasonably believed by Fifth Third to be Authorized or (iii) communications
transmitted electronically through the Institutional Delivery System (IDS),
or any other similar electronic instruction system acceptable to Fifth
Third and approved by resolutions of the Board of Trustees, a copy of
which, certified by the Secretary, shall have been delivered to Fifth
Third.
(d) Shares mean the shares of beneficial interest of either
series of the Trust.
2. APPOINTMENT. The Trust hereby appoints Fifth Third to provide fund
accounting and other specified services to each of the Portfolios set forth in
Exhibit A, as may be amended from time to time, in accordance with the terms set
forth in this Agreement. Fifth Third accepts such appointment and agrees to
furnish such specified services.
3. DELIVERY OF DOCUMENTS. The Trust has provided or, where applicable,
will provide Fifth Third with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, approving the appointment of Fifth Third or its
affiliates to provide services to each Portfolio and approving this
Agreement;
(b) a copy of the Trust's most recent effective registration
statement;
(c) a copy of the Trust's advisory agreement or agreements;
(d) a copy of any distribution agreement or similar agreement made
with respect to each class of Shares;
(e) a copy of any management agreement and any administration
agreements or similar agreements with respect to the Trust;
(f) a copy of any shareholder servicing agreement made in respect of
the Trust; and
(g) copies (certified or authenticated, where applicable) of any and
all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. Fifth Third undertakes to
comply with all applicable requirements of the Investment Company Act, and any
laws, rules and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by Fifth Third hereunder. Except as
specifically set forth herein, Fifth Third assumes no responsibility for such
compliance by the Trust or any Portfolio.
5. INSTRUCTIONS. Fifth Third will provide fund accounting and such other
services as is agreed hereunder.
(a) With respect to other services Fifth Third shall act only upon
Oral or Written Instructions.
(b) Fifth Third shall be entitled to rely upon any Oral and Written
Instructions it receives from an Authorized Person (or from a person
reasonably believed by Fifth Third to be an Authorized Person) pursuant to
this Agreement. Fifth Third may assume that any Oral or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of organizational documents or this Agreement or of any vote,
resolution or proceeding of the Trust's Board of Trustees or of the Fund's
shareholders, unless and until Fifth Third receives Written Instructions to
the contrary.
(c) The Trust agrees to forward to Fifth Third, Written Instructions
confirming Oral Instructions so that Fifth Third receives the Written
Instructions by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written
Instructions are not received by Fifth Third shall in no way invalidate the
transactions or enforceability of the transactions authorized by the Oral
Instructions. Where Oral or Written Instructions reasonably appear to have
been received from an Authorized Person, Fifth Third shall incur no
liability to the Trust in acting upon such Oral or Written Instructions.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE TRUST. If Fifth Third is in doubt as to any action
it should or should not take, Fifth Third shall request directions or
advice, including Oral or Written Instructions, from the Trust.
(b) ADVICE OF COUNSEL. If Fifth Third shall be in doubt as to any
question of law pertaining to any action it should or should not take,
Fifth Third shall request advice from such counsel of its own choosing and
the Trust shall reimburse such reasonable cost.
(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice or Oral or Written Instructions Fifth Third receives
from the Trust and the advice Fifth Third receives from counsel, Fifth
Third shall inform the Trust of the conflict and seek resolution.
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(d) PROTECTION OF FIFTH THIRD. Fifth Third shall be protected in any
action it takes or does not take in reliance upon directions, advice or
Oral or Written Instructions it receives from the Trust or counsel and
which Fifth Third believes, in good faith, to be consistent with those
directions, advice or Oral or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon Fifth Third
(i) to seek such directions, advice or Oral or Written Instructions, or
(ii) to act in accordance with such directions, advice or Oral or Written
Instructions unless, under the terms of other provisions of this Agreement.
Nothing in this subsection shall excuse Fifth Third when an action or
omission on the part of Fifth Third constitutes willful misfeasance, lack
of good faith, or reckless disregard by Fifth Third of its duties,
obligation or responsibilities set forth in this Agreement.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Trust and the Portfolios
which are in the possession or under the control of Fifth Third shall be
the property of the Trust. Such books and records shall be prepared,
maintained and preserved as required by the Investment Company Act and
other applicable Securities Laws, rules and regulations. The Trust and
Authorized Persons shall have access to such books and records at all times
during Fifth Third's normal business hours. Upon the reasonable request of
the Trust, copies of any such books and records shall be provided by Fifth
Third to the Trust or to an Authorized Person, at the Trust's expense.
(b) Fifth Third shall keep the following records:
(i) all books and records relating to the services it performs
hereunder with respect to a Portfolio's books of account;
(ii) records relating to the services it performs hereunder
with respect to a Portfolio's securities transactions; and
(iii) all other books and records as Fifth Third is required to
maintain pursuant to Rule 31a-1 of the Investment Company Act in
connection with the services provided hereunder.
8. CONFIDENTIALITY. Fifth Third agrees to keep confidential all records
of the Trust and information relating to the Trust and its shareholders (past,
present and future), unless the release of such records of information is
otherwise consented to, in writing, by the Trust. The Trust agrees that such
consent shall not be unreasonably withheld and may not be withheld where Fifth
Third may be exposed to civil or criminal contempt proceedings or when required
to divulge such information or records to duly constituted authorities.
9. LIAISON WITH ACCOUNTANTS. Fifth Third shall act as liaison with the
Trust's independent public accountants and shall provide account analysis,
fiscal year summaries, and other audit-related schedules with respect to the
services provided to each Portfolio. Fifth Third shall take all reasonable
action in the performance of its duties under this Agreement to assure that the
necessary information in Fifth Third's control is made available to such
accountants for the expression of their opinion, as required by the Trust.
10. DISASTER RECOVERY. Fifth Third shall maintain in effect a disaster
recovery plan, and enter into any agreement necessary with appropriate parties
making reasonable provisions for emergency use of electronic data processing
equipment customary in the industry. In the event of equipment failures, Fifth
Third shall, at no additional expense to the Trust, take reasonable steps to
minimize service interruptions. Fifth Third shall have no liability with
respect to the loss of data or service interruptions caused by equipment failure
provided such loss or interruption is not caused by Fifth Third's own willful
misfeasance or gross negligence.
11. COMPENSATION. As compensation for services rendered by Fifth Third
during the term of this Agreement, the Trust will pay to Fifth Third a fee or
fees set forth in Exhibit B, as may be amended from time to time. It is agreed
that fees set forth in Exhibit B may be increased with not less than ninety (90)
days written notice. In the event that Exhibit C is amended such that
additional services as requested by the Trust are required from Fifth Third on
an ongoing basis, with the approval of the Trust, additional fees may be charged
as applicable. The fee for the period from the day of the year this Agreement
is entered into until the end of that year shall be prorated according to the
proportion that such period bears to the full annual period.
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12. INDEMNIFICATION.
(a) The Trust agrees to indemnify and hold harmless Fifth Third and
its agents or subcontractor from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, liabilities arising
under the Securities Laws and any state or foreign securities and blue sky
laws, and amendments thereto), and expenses, including (without limitation)
attorneys' fees and disbursements arising directly or indirectly from any
action or omission to act which Fifth Third takes in reasonable reliance on
Oral or Written Instructions from the Trust. Fifth Third, shall not be
indemnified against any liability (or any expenses incident to such
liability) arising out of Fifth Third's own willful misfeasance, lack of
good faith or reckless disregard of its duties and obligations under this
Agreement. For any legal proceedings giving rise to this indemnification,
the Trust shall be entitled to defend or prosecute any claim in the name
of Fifth Third at the Trust's own expense through counsel of its own
choosing if it gives written notice to Fifth Third within ten (10) business
days of receiving notice of such claim.
(b) Fifth Third agrees to indemnify and hold harmless the Trust from
all taxes, charges, expenses, assessments, claims and liabilities
(excluding, liabilities arising under the Securities Laws and any state or
foreign securities and blue sky laws, and amendments thereto), and
expenses, including (without limitation) attorneys' fees and disbursements
arising directly from any action or omission of Fifth Third's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties and obligations under this Agreement. For any legal proceedings
giving rise to this indemnification, Fifth Third shall be entitled to
defend or prosecute any claim in the name of the Trust at Fifth Third's own
expense through counsel of its own choosing if it gives written notice to
the Trust within ten (10) business days of receiving notice of such claim.
13. RESPONSIBILITIES OF FIFTH THIRD.
(a) Fifth Third shall be under no duty to take any action on behalf
of the Trust or any Portfolio except as specifically set forth herein or as
may be specifically agreed to by Fifth Third in writing. Fifth Third shall
be obligated to exercise commercially reasonable care and diligence in the
performance of its duties hereunder, to act in good faith and act within
reasonable limits, in performing services provided for under this
Agreement. Fifth Third shall only be liable for actual damages arising out
of Fifth Third's failure to perform its duties under this Agreement to the
extent such damages arise out of Fifth Third's willful misfeasance, bad
faith, gross negligence or reckless disregard of such duties.
(b) In no event shall Fifth Third be liable for any special,
consequential, extraordinary or punitive damages, arising from the
performance or non-performance of Fifth Third under this Agreement, or
Fifth Third's failure to comply with any of the terms of this Agreement.
Fifth Third 's cumulative liability within a calendar year shall be limited
to the Trust or any party claiming by, through or on behalf of the Trust
for the initial and all subsequent renewal terms of this Agreement, to the
lesser of (a) the actual damages sustained by the Trust; or (b) one-half of
the net fees paid to Fifth Third, but not to exceed one half of the net
fees paid to Fifth Third within the prior twelve calendar months as in
accordance with Agreement.
(c) Without limiting the generality of the foregoing or of any other
provision of this Agreement,
(i) Fifth Third shall not be liable for losses beyond its
reasonable control, provided that Fifth Third has acted in
accordance with the standard of care set forth above; and
(ii) Fifth Third shall not be liable for:
(A) the validity or invalidity or authority or lack
thereof of any Oral or Written Instruction, notice or other
instrument which conforms to the applicable requirements of this
Agreement, and which Fifth Third reasonably believes to be
genuine; or
(B) subject to Section 10, delays or errors or loss of
data occurring by reason of circumstances beyond Fifth Third's
control, including acts of civil or military authority, national
emergencies, non-Fifth Third labor difficulties, fire, flood,
catastrophe, acts of God,
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insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS. Fifth Third
will perform accounting services as deemed industry standard and/or agreed upon
with Customer at the time of conversion.
15. DESCRIPTION OF OTHER SERVICES ON A CONTINUOUS BASIS. Fifth Third will
perform other services at the request of the Customer, documented previous to
conversion.
16. DURATION AND TERMINATION. This Agreement shall continue until
terminated by either the Trust or Fifth Third on ninety (90) days' prior written
notice to the other party.
17. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. If notice is sent by confirming telegram, cable,
telex or facsimile sending device, it shall be deemed to have been given
immediately. If notice is sent by first class mail, it shall be deemed to have
been given three days after it has been mailed. If notice is sent by messenger,
it shall be deemed to have been given on the day it is delivered. Notices shall
be addressed
(a) if to Fifth Third:
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Fund Accounting Manager
(b) if to the Trust:
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Stonebridge Funds
(c) if to none of the foregoing, at such other address as shall have
been provided by like notice to the sender of any such notice or other
communication by the receiving party.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. Fifth Third may assign its rights and
delegate its duties hereunder upon prior written consent of the Trust to any
wholly-owned direct or indirect subsidiary of Fifth Third, provided that:
(a) Fifth Third gives the Trust sixty (60) days' prior written
notice;
(b) the delegate (or assignee) agrees with Fifth Third and the Trust
to comply with all relevant provisions of the Securities Laws; and
(c) Fifth Third and such delegate (or assignee) promptly provide such
information as the Trust may request, and respond to such questions as the
Trust may ask, relative to the delegation (or assignment), including
(without limitation) the capabilities of the delegate (or assignee).
20. COUNTERPARTS. This Agreement may be executed 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.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
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22. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding among the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the
Fund and Fifth Third may embody in one or more separate documents their
agreement, if any, with respect to delegated duties and Oral Instructions.
(b) CAPTIONS. 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.
(c) GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of Ohio without regard to principles
or conflicts of law. The parties agree that venue for any action or
proceeding brought pursuant to this Agreement shall be in the state or
federal courts located in the State of Ohio.
(d) PARTIAL INVALIDITY. If any provision of this Agreement shall be
held or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and biding execution hereof by
such party.
(g) DECLARATION OF TRUST. Fifth Third acknowledges that the
Declaration of Trust of the Trust provides that the obligations of the Trust
under this Agreement are not binding on any officers, trustees or shareholders
of the Trust individually, but are binding only upon the assets and properties
of the various Portfolios. Fifth Third further acknowledges and agrees that its
liabilities, obligations and expenses incurred hereunder with respect to a
particular Portfolio shall be enforceable against the assets and property of
such Portfolio only, and not against the assets or property of the other
Portfolio or any other series of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
THE FIFTH THIRD BANK STONEBRIDGE FUNDS TRUST
By: By:
-------------------------- ------------------------------
Its: Its:
-------------------------- ------------------------------
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EXHIBIT A
PORTFOLIOS OF TRUST
THIS EXHIBIT A, dated as of ______________, 1998, is Exhibit A to the Fund
Accounting and Services Agreement dated as of ________________, 1998 by and
among the Fifth Third Bank and the Trust. This Exhibit A shall supersede all
previous forms of Exhibit A.
STONEBRIDGE AGRESSIVE GROWTH FUND
STONEBRIDGE GROWTH FUND
THE FIFTH THIRD BANK STONEBRIDGE FUNDS TRUST
By: By:
-------------------------- ------------------------------
Its: Its:
-------------------------- ------------------------------
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EXHIBIT B
FEE SCHEDULE
THIS EXHIBIT B, dated as of ______________, 1998, is Exhibit B to the Fund
Accounting and Services Agreement dated as of ________________, 1998 by and
among the Fifth Third Bank and the Trust for each Portfolio. This Exhibit B
shall supersede all previous forms of Exhibit B.
The Trust will pay Fifth Third an annual fund accounting and service fee (the
"Fee"), to be calculated daily and paid monthly. The annual Fee for each
Portfolio shall be an asset based fee, exclusive of out-of-pocket expenses, with
a minimum monthly payment as set forth below:
Asset Monthly Additional Other Services
Based Fees Minimum Class Monthly Monthly
---------- ------- ------------- -------
FUNDS
The Trust will also reimburse Fifth Third for its out-of-pocket expenses
incurred in performing its services under this Agreement, including, but not
limited to: postage and mailing, telephone, telex, overnight courier services
and outside independent pricing service charges, and record retention/storage.
THE FIFTH THIRD BANK STONEBRIDGE FUNDS TRUST
By: By:
-------------------------- ------------------------------
Its: Its:
-------------------------- ------------------------------
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EXHIBIT C
FIFTH THIRD WILL PERFORM THE ACCOUNTING SERVICES WITH RESPECT TO EACH PORTFOLIO:
(a) Journalize investment, capital share and income and expense activities;
(b) Verify investment buy/sell trade tickets when received from the investment
adviser for a Portfolio (the "Money Manager") and transmit trades to the Fund's
custodian (the "Custodian") for proper settlement;
(c) Maintain individual ledgers for investment securities;
(d) Maintain historical tax lots for each security;
(e) Reconcile cash and investment balances with the Custodian, and provide the
Money Manager with the beginning cash balance available for investment purposes;
(f) Update the cash availability daily;
(g) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations;
(h) Calculate the various contractual expenses (e.g., advisory and custody
fees);
(i) Monitor the expense accruals and notify an officer of the Trust of any
proposed adjustments;
(j) Control all disbursements and authorize such disbursements upon Written
Instructions;
(k) Calculate capital gains and losses and only upon Written Instructions from
the Trust transmit such information to the Trust's transfer agent (or other
agreed upon procedures);
(l) Determine net income;
(m) Obtain security market quotes from independent pricing services, if
available, approved by the Money Manager, or if such quotes are unavailable,
then obtain such prices from the Money manager, and in either case calculate the
market value of each Portfolio's investments;
(n) Transmit or mail a copy of the daily portfolio valuation to the Money
Manager;
(o) Compute net asset value;
(p) As appropriate, compute yields, total return, expense ratios, portfolio
turnover rate, and, if required, portfolio average dollar-weighted maturity; and
(q) Prepare a monthly financial statement, 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.
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