ACCOUNTING SERVICES AGREEMENT
TERMS AND CONDITIONS
This Agreement is made as of December 31, 1997 by and between PFPC Inc., a
Delaware corporation, which is an indirect wholly-owned subsidiary of PNC Bank
Corp. ("PFPC") and PIC MIDCAP PORTFOLIO, a Delaware business trust (the "Fund").
The Fund wishes to retain PFPC to provide accounting services, and PFPC
wishes to furnish such services.
In consideration of the premises and mutual covenants herein contained, the
parties agree as follow:
1. Definitions.
(a) "Authorized Person". The term "Authorized Person" shall mean any
officer of the Fund and any other person, who is duly authorized by the
Fund's Governing Board, to give Oral and Written Instructions on behalf of
the Fund. Such persons are listed in the Certificate attached hereto as the
Authorized Persons Appendix to each Services Attachment to this Agreement.
If PFPC provides more than one service hereunder, the Fund's designation of
Authorized Persons may vary by service.
(b) "CFTC". The term "CFTC" shall mean the Commodities Futures Trading
Commission.
(c) "Governing Board". The term "Governing Board" shall mean the
Fund's Board of Directors if the Fund is a corporation or the Fund's Board
of Trustees if the Fund is a trust, or, where duly authorized, a competent
committee thereof.
(d) "Oral Instructions". The term "Oral Instructions" shall mean oral
instructions received by PFPC from Authorized Person or from a person
reasonably believed by PFPC to be an Authorized Person.
(e) "SEC". The term "SEC" shall mean the Securities and Exchange
Commission.
(f) "Securities and Commodities Laws". The term "Securities and
Commodities Laws" shall mean the "1933 Act" which shall mean the Securities
Act of 1933, the term "1934 Act" which shall mean the Securities Exchange
Act of 1934, as amended, and the term "CEA" which shall mean the
Commodities Exchange Act, as amended.
(g) "Shares". The terms "Shares" shall mean the shares of stock of any
series or class of the Fund, or, where appropriate, units of beneficial
interest in a trust where the Fund is organized as a Trust.
(h) "Written Instructions". The term "Written Instructions" shall mean
written instructions signed by one Authorized Person and received by PFPC.
The instructions may be delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC to provide accounting
services, in accordance with the terms set forth in this Agreement. PFPC accepts
such appointment and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) certified or authenticated copies of the resolutions of the Fund's
Governing Board, approving the appointment of PFPC or its affiliates to
provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of the Fund's advisory agreement or agreements;
(d) a copy of the Fund's distribution agreement or agreements;
(e) a copy of the Fund's administration agreement if PFPC is not
providing the Fund with such services;
(f) copies of any shareholder servicing agreements made in respect of
the Fund; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing
4. Compliance with Government Rules and Regulations.
PFPC undertakes to comply with all applicable requirements of the 1933 Act,
the 1934 Act, the 1940 Act, and the CEA, and any laws, rules and regulations of
state and federal governmental authorities having jurisdiction with respect to
all duties to be performed by PFPC hereunder. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the Fund.
5. Instructions. Unless otherwise provided in this Agreement, PFPC shall
act only upon Oral and Written Instructions.
PFPC shall be entitle to rely upon any Oral and Written Instruction it
receives from an Authorized Person (or from a person reasonably believed by PFPC
to be an Authorized Person) pursuant to this Agreement. PFPC 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 Fund's Governing Board or of the Fund's
shareholders.
The Fund agrees to forward to PFPC Written Instructions confirming Oral
Instruction so that PFPC 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 PFPC shall in no way
invalidate the transactions or enforceability of the transactions authorized by
the Oral Instructions. The Fund further agrees that PFPC shall incur no
liability to the Fund in acting upon Oral or Written Instructions provided such
instructions reasonably appear to have been received from an Authorized Person.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC is in doubt as to any action it should
or should not take, PFPC may request directions or advice, including Oral
or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any questions
of law pertaining to any action it should or should not take, PFPC may
request advice at its own cost form such counsel of its own choosing (who
may be counsel for the Fund, the Fund's advisor or PFPC, at the option of
PFPC).
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Oral or Written Instructions PFPC receives from the Fund, and the
advice it receives from counsel, PFPC shall be entitled to rely upon and
follow the advice of counsel.
(d) Protection of PFPC. PFPC 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 Fund or from counsel and which PFPC
believes, in good faith, to be consistent with lose directions, advice and
Oral or Written Instructions.
Nothing in this paragraph shall be construed so as to impose an obligation
upon PFPC (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, the
same is a condition of PFPC's properly taking or not taking such action.
7. Records. The book and records pertaining to the Fund, which are in the
possession of PFPC, shall be the property of the Fund. The Fund, or the Fund's
Authorized Persons, shall have access to such books and records at all times
during PFPC's normal business hours. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by PFPC to the Fund or to
and Authorized Person of the Fund, at the Fund's expense.
PFPC shall keep the following records:
(a) all books and records with respect to the Fund's books of account;
(b) records of the Fund's securities transaction.
8. Confidentiality. PFPC agrees to keep confidential all records of the
Fund and information relative to the Fund and its shareholders (past, present
and potential), unless the release of such records or information is otherwise
consented to, in writing, by the Fund. The Fund agrees that such consent shall
not be unreasonably withheld. The Fund further agrees that, should PFPC be
required to provide such information or records to duly constituted authorities
(who may institute civil or criminal contempt proceedings for failure to
comply), PFPC shall not be required to seek the Fund's consent prior to
disclosing such information.
9. Liaison with Accountants. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal year
summaries, and other audit-related schedules. PFPC shall take all reasonable
action in the performance of its obligations under this Agreement to assure that
the necessary information is made available to such accountants for the
expression of their opinion, as such may be required by the Fund from time to
time.
10. Disaster Recovery. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provision of
emergency use of electronic data processing equipment to the extent appropriate
equipment is available. In the event of equipment failures, PFPC shall, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions but shall have not liability with respect thereto.
11. Compensation. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may be agreed
to in writing by the Fund and PFPC.
12. Indemnification. The Fund agrees to indemnify and hold harmless PFPC
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 and any state and foreign securities
and blue sky laws, and amendments thereto), and expenses, including (without
limitation) attorney's fees and disbursements, arising directly or indirectly
from any action which PFPC takes or does not take (i) at the request or on the
direction of or in reliance on the advice of the Fund or (ii) upon Oral or
Written Instructions. Neither PFPC, nor any of its nominees, shall be
indemnified against any liability to the Fund or to its shareholders (or any
expenses incident to such liability) arising out of PFPC's own willful
misfeasance, negligence or reckless disregard of its duties and obligations
under this Agreement.
13. Responsibility of PFPC. PFPC shall be under no duty to take any action
on behalf of the Fund except as specially set forth herein or as may be
specifically agreed to by PFPC, in writing. PFPC shall be obligated to exercise
care and diligence in the performance of its duties hereunder, to act in good
faith and to use its best efforts, within reasonable limits, in performing
services provided for under this Agreement. PFPC shall be responsible for
failure to perform its duties under this Agreement arising out of PFPC's gross
negligence. Notwithstanding the foregoing, PFPC shall not be responsible for
losses beyond its control, provided that PFPC has acted in accordance with the
standard of care set forth above; and provided further that PFPC shall only be
responsible for that portion of losses or damages suffered by the Fund that are
attributable to the gross negligence of PFPC.
Without limiting the generality of the foregoing or of any other provision
of this Agreement, PFPC, in connection with its duties under this Agreement,
shall bot 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 PFPC
reasonably believes to be genuine; or (b) delays or errors or loss of data
occurring by reason of circumstances beyond PFPC's control, including acts of
civil or military authority, national emergencies, labor difficulties, fire,
flood or catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
Notwithstanding anything in this Agreement to the contrary, PFPC have no
liability to the Fund for any consequential, special or indirect losses or
damages which the Fund may incur or suffer by or as a consequence of PFPC's
performance of the services provided hereunder, whether or not likelihood of
such losses or damages was known by PFPC.
14. Description of Accounting Services.
(a) Services on a Continuing Basis. PFPC will perform the following
accounting functions if required:
(i) Journalize the Fund's investment, capital share and income
and expense activities;
(ii) Verify investment buy/sell trade tickets when received from
the Fund's investment advisor and transmit trades to the
Fund's custodian for proper settlement;
(iii)Maintain individual ledgers for investment securities in
both U.S. dollar and foreign currency terms;
(iv) Maintain historical tax lots for each security and foreign
currency;
(v) Reconcile cash and investment balances of the Fund with the
custodian, and provide the Fund's investment advisor with
the beginning cash balance available for investment purpose
in both U.S. dollar and foreign currency terms;
(vi) Update the cash availability throughout the day required by
the Fund's advisor;
(vii)Post to and prepare the Fund's Statement of Assets and
Liabilities and the Statement of Operations in U.S. dollar
terms;
(viii) Calculate various contractual expenses (e.g., advisory and
custody fee);
(ix) Monitor the expense accruals and notify Fund management of
any proposed adjustments;
(x) Control all disbursements from the Fund and authorize such
disbursements upon Written Instructions;
(xi) Calculate capital gains and losses and foreign exchange
gains and losses;
(xii)Determine the Fund' net income in both U.S. dollar and
foreign currency terms;
(xiii) Obtain security market quotes and foreign exchanged rates
from independent pricing services approved by the Advisor,
or if such quotes are unavailable, then obtain them from the
Advisor, and in either case calculate the market value of
the Fund's investments in both U.S. dollar and foreign
currency terms;
(xiv)Transmit or mail copy of the daily portfolio valuation to
the Advisor;
(xv) Compute the net asset value of the Fund in U.S. dollars;
(xvi)As appropriate, compute the Fund's yields, total return,
expense ratios, portfolio turnover rate, and, if required,
portfolio average dollar-weighted maturity; and
(xvii) Prepare a monthly financial statement in U.S. dollars,
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.
15. Duration and Termination. This Agreement shall continue until
terminated by the Fund or by PFPC on sixty (60) days prior written notice to the
other party.
16. 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 send 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 PFPC at PFPC's address, 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000; (b) if the Fund, at the address of the Fund; 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.
17. Amendments. This Agreement, or any term thereof, may be changed or
waived only written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
18. Delegation. PFPC may assign it rights and delegate its duties hereunder
to any wholly-owned direct or indirect subsidiary of PNC Bank, National
Association or PNC Bank Corp., provided that (i) PFPC gives the Fund thirty (30)
days prior written notice; (ii) the delegate agrees with PFPC to comply with all
relevant provisions of the 1940 Act; and (iii) PFPC and such delegate promptly
provide such information as the Fund may request, and respond to such questions
as the Fund may ask, relative to the delegation, including (without limitation)
the capabilities of the delegate.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all which together
shall constitute one and the same instrument.
20. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purpose
hereof.
21. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody in one or more separate documents their agreement, if any, respect to
delegated and/or Oral 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 Delaware and
governed by Delaware law. 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 effected 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.
PFPC
By: __________________________________________
Title: _______________________________________
PIC MIDCAP PORTFOLIO
By: __________________________________________
Title: _______________________________________
