EXHIBIT 9.3
RECORDKEEPING AND PRICING AGENT AGREEMENT
__________________________________________
THIS AGREEMENT made effective as of this 1st day of January,
1997, by and between XXXXXX OMNI INVESTMENT TRUST, a
Massachusetts business trust (the "Fund"), which consists of
separate portfolios represented by separate series of shares, and
each series of which may be comprised of one or more classes of
shares of beneficial interest, (each such class, and each
portfolio that has only one class being referred to herein,
together with any such portfolios and classes hereafter
constituted, where appropriate, individually as a "Portfolio,"
and collectively as the "Portfolios"), having its place of
business at 00 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, 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. INSTRUCTIONS. Fund shall 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 Commonwealth of
Massachusetts;
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 "System") is suitable for its needs;
D. Fund acknowledges that IFTC has licensed the System
from a third party and that both IFTC and the licensor have
proprietary rights in and to the System and that the System
and the programs, documentation, books, records, lists,
pricing schedules, designs, plans and other information
relating to the 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 the 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 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.
-2-
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 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, of cause to
___________________ be turned 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 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
-3-
to time under the Act relating to the activities
performed by IFTC pursuant to Schedule A (the
"Records"); preserve the Records in an 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 ("SEC"), 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 the Portfolios 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 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
-4-
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 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 IFTC 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 charter, bylaws, or any law,
rule or regulation applicable to IFTC. IFTC shall be
responsible to notify the Fund of any changes in its
charter, bylaws, or policies which may affect the
Fund's responsibilities or procedures.
7. IFTC will calculate Portfolio's daily closing net
asset value, in accordance with the Fund's 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.
-5-
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.
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
-6-
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.
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; provided, however, that the
Fund may terminate this Agreement forthwith if the Fund does not
receive shareholder approval to enter into an investment advisory
agreement with Xxxxxx Associates, Inc. and a sub-advisory
agreement with Perkins, Wolf, XxXxxxxxx & Company on or before
February ____, 1997. Upon termination of this Agreement,
-7-
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 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 offices 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 00 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxx, 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 laws of the Commonwealth of Massachusetts pursuant to a
Declaration of Trust filed in the office of the Secretary of
State of the Commonwealth of Massachusetts. 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
-8-
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.
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.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their respective and duly authorized corporate
or trust officers.
XXXXXX OMNI INVESTMENT TRUST
By: ______________________________
Title: ____________________________
INVESTORS FIDUCIARY TRUST COMPANY
By: _______________________________
Xxxxx X. Xxxxxx, Executive Vice
President
-9-
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. Post Fund share 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.
2. Reconcile ending share balance from transfer agent
reports to general ledger; report differences to fund and
resolve with the transfer agent.
3. Post manual journal entries to the general ledger.
4. Prepare Net Asset Value rollforward.
5. Review individual components of the change in each
Portfolio's Net Asset Value for accuracy and reasonableness.
6. Review income and expense accruals and posting of gains
and losses for proper recording. Send Fund complete pricing
sheet for the Portfolios preferably by 3:30 p.m. Mountain
time but in no event later than 8:00 a.m. Mountain time the
next day.
7. Communicate required pricing information to Fund,
quotation/publication services and to transfer agents.
Communicate NAV to newspapers and quotation services in time
for publication and to the transfer agent in time to run the
shareowner accounts by the beginning of the next day.
Communicate the NAV and corresponding worksheet to the Fund
preferably by 3:30 p.m. Mountain time but in no event later
than 8:00 a.m. Mountain time the next day.
8. Attend to routine matters in connection with the
calculation of the net asset value and aggregate asset
value of each Portfolio.
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 June 30th and December
31st 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 shall be borne by IFTC; costs other than routine
information, including microfiche, shall be borne by the Fund.
