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Exhibit 99.h(1)
ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 26th day of May, 2000 by
and between The Prairie Fund, a registered management investment company (the
"Fund") and Mutual Shareholder Services LLC ("MSS"), an Ohio corporation.
RECITALS:
A. The Fund is a diversified, open-end management investment
company registered with the United States Securities and Exchange Commission
("SEC") under the Investment Company Act of 1940, as amended (the "1940 Act");
and
B. MSS is a corporation experienced in providing accounting
services to mutual funds and possesses facilities sufficient to provide such
services; and
C. The Fund desires to avail itself of the experience,
assistance and facilities of MSS and to have MSS perform for the Fund certain
services appropriate to the operations of the Fund and MSS is willing to
furnish such services in accordance with the terms hereinafter set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. DUTIES OF MSS.
MSS will provide the Fund with the necessary office space,
communication facilities and personnel to perform the following services for
the Fund:
(a) Timely calculate and transmit to the Fund the daily
net asset value of the shares of the Fund and maintain accurate
records of such valuation for the Fund and report the daily net asset
value of the shares of the Fund to NASDAQ, or other quotation system
or exchange on which the shares are quoted or listed, once the Fund
shares have been registered under the Securities Act of 1933 (the
"1933 Act");
(b) Maintain and keep current all books and records of
the Fund as required by Rule 31a-1 under the 1940 Act, as such rule or
any successor rule may be amended from time to time ("Rule 31a-1"),
that are applicable to the fulfillment of MSS's duties hereunder, as
well as any other documents necessary or advisable for compliance with
applicable regulations as may be mutually agreed to between the Fund
and MSS. Without limiting the generality of the foregoing, MSS will
prepare and maintain the following records upon receipt of information
in proper form from the Fund or its authorized agents:
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[ ] Cash receipts journal
[ ] Cash disbursements journal
[ ] Dividend
[ ] Purchase and sales - portfolio securities journals
including net capital gains records
[ ] Subscription and redemption journals
[ ] Security ledgers
[ ] Broker ledger
[ ] General ledger
[ ] Daily expense accruals
[ ] Daily income accruals
[ ] Securities and monies borrowed or loaned and
collateral therefore
[ ] Foreign currency journals
[ ] Trial balances
(c) Provide the Fund and its investment adviser with
daily portfolio valuation and other standard operational reports as
requested from time to time.
(d) Provide all data available from its fund accounting
system in an organized manner to assist the Fund in the preparation of
the following reports, as needed, and send to shareholders the
following on behalf of the Fund and its investment advisor:
1. Semi-annual financial statements;
2. Semi-annual form N-SAR;
3. Annual tax returns;
4. Financial data necessary to update form N-1A;
5. Annual proxy statement.
(e) Provide facilities to accommodate annual audit and
any audits or examinations conducted by the SEC or any other
governmental or quasi-governmental entities with jurisdiction.
MSS shall for all purposes herein be deemed to be an independent contractor and
shall, unless otherwise expressly provided or authorized, have no authority to
act for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
2. FEES AND EXPENSES.
(a) In consideration of the services to be performed by
MSS pursuant to this Agreement, the Fund agrees to pay MSS the fee of
$250.00 per month on the first of each month.
(b) In addition to the fees paid under paragraph (a)
above, the Fund agrees to reimburse MSS for reasonable out-of-pocket
expenses or advances incurred by MSS in connection with the
performance of its obligations under this Agreement. In addition, any
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other expenses incurred by MSS at the request or with the consent of
the Fund will be reimbursed by the Fund.
(c) The Fund agrees to pay all such fees and reimbursable
expenses within five days following the receipt of the respective
billing notice.
3. LIMITATION OF LIABILITY OF MSS.
(a) MSS shall be held to the exercise of reasonable care
in carrying out the provisions of the Agreement, but shall not be
liable to the Fund for any action taken or omitted by it in good faith
without gross negligence, bad faith, willful misconduct or reckless
disregard of its duties hereunder. It shall be entitled to rely upon
and may act upon the accounting records and reports generated by the
Fund, advice of the Fund, or of counsel for the Fund and upon
statements of the Fund's independent accountants, and shall not be
liable for any action reasonably taken or omitted pursuant to such
records and reports or advice, provided that such action is not, to
the knowledge of MSS, in violation of applicable federal or state laws
or regulations and provided further that such action is taken without
gross negligence, bad faith, willful misconduct or reckless disregard
of its duties.
(b) Nothing herein contained shall be construed to
protect MSS against any liability to the Fund to which MSS shall
otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence in the performance of its duties to the Fund,
reckless disregard of its obligations and duties under this Agreement
or the willful violation of any applicable law.
(c) Except as may otherwise be provided by applicable
law, neither MSS nor its stockholders, officers, directors, employees
or agents shall be subject to, and the Fund shall indemnify and hold
such persons harmless from and against, any liability for and any
damages, expenses or losses incurred by reason of the inaccuracy of
information furnished to MSS by the Fund or its authorized agents.
4. REPORTS.
(a) The Fund shall provide to MSS on a quarterly basis a
report of a duly authorized officer of the Fund representing that all
information furnished to MSS during the preceding quarter was true,
complete and correct in all material respects. MSS shall not be
responsible for the accuracy of any information furnished to it by the
Fund or its authorized agents, and the Fund shall hold MSS harmless in
regard to any liability incurred by reason of the inaccuracy of such
information.
(b) Whenever, in the course of performing its duties
under this Agreement, MSS determines, on the basis of information
supplied to MSS by the Fund or its authorized agents, that a violation
of applicable law has occurred or that, to its knowledge, a possible
violation of applicable law may have occurred or, with the passage of
time, would occur, MSS shall promptly notify the Fund and its counsel
of such violation.
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5. ACTIVITIES OF MSS.
The services of MSS under this Agreement are not to be deemed
exclusive, and MSS shall be free to render similar services to others so long
as its services hereunder are not impaired thereby.
6. ACCOUNTS AND RECORDS.
The accounts and records maintained by MSS shall be the property of
the Fund and shall be surrendered to the Fund promptly upon request by the Fund
in the form in which such accounts and records have been maintained or
preserved. MSS agrees to maintain a back-up set of accounts and records of the
Fund (which back-up set shall be updated on at least a weekly basis) at a
location other than that where the original accounts and records are stored.
MSS shall assist the Fund's independent auditors, or, upon approval of the
Fund, any regulatory body, in any requested review of the Fund's accounts and
records. MSS shall preserve the accounts and records as they are required to be
maintained and preserved by Rule 31a-1.
7. CONFIDENTIALITY.
MSS agrees that it will, on behalf of itself and its officers and
employees, treat all transactions contemplated by this Agreement, and all other
information germane thereto, as confidential and not to be disclosed to any
person except as may be authorized by the Fund.
8. TERM OF AGREEMENT.
(a) This Agreement shall become effective as of the date hereof
and shall remain in force for a period of three years; provided, however, that
each party to this Agreement have the option to terminate the Agreement,
without penalty, upon 90 days prior written notice.
(b) Should the Fund exercise its right to terminate, all
reasonable out-of-pocket expenses associated with the movements of records and
material will be borne by the Fund. Additionally, MSS reserves the right to
charge for any other reasonable expenses associated with such termination.
9. MISCELLANEOUS.
(a) Neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of the other party.
This Agreement shall inure to the benefit of and be binding upon the parties
and their respective permitted successors and assigns.
(b) The provisions of this Agreement shall be construed and
interpreted in accordance with the laws of the State of Ohio as at the time in
effect and the applicable provisions of the 1940 Act. To the extent that the
applicable law of the State of Ohio, or any of the provisions herein, conflict
with the applicable provisions of the 1940 Act, the latter shall control.
(c) This Agreement may be amended by the parties hereto only if
such amendment is in writing and signed by both parties.
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(d) This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written.
(e) All notices and other communications hereunder shall be in
writing, shall be deemed to have been given when received or when sent by telex
or facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
To the Fund: To MSS:
The Prairie Fund Mutual Shareholder Services
1111 Lincoln Road, Suite 740 1301 East Ninth Street, Suite 1005
Miami Beach, FL 33139 Cleveland, OH 44114
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
The Prairie Fund Mutual Shareholder Services, LLC
By: /s/ Matthew M. Zuckerman By: /s/ Greg Getts
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Its: President Its: President
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