Exhibit (h)(4)
SUB-ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of April 1, 2000 by and between PFPC Inc., a
Massachusetts corporation ("PFPC"), and Alleghany Investment Services, an
Illinois corporation (the "Administrator").
W I T N E S S E T H :
WHEREAS, the Administrator has entered into an Administration Agreement
with the Alleghany Funds (the "Fund"), which is registered as an open-end
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Administrator wishes to retain PFPC to provide
sub-administration and accounting services to the Fund and its investment
portfolios listed on Exhibit A attached hereto and made a part hereof, as such
Exhibit A may be amended from time to time (each a "Portfolio"), and PFPC wishes
to furnish such services.
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) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934,
as amended.
(c) "Authorized Person" means any officer of the Administrator and
any other person duly authorized by the Administrator's Board
of Directors or Trustees to give Oral Instructions and Written
Instructions on behalf of the Administrator. An Authorized
Person's scope of authority may be limited by setting forth
such limitation in a written document signed by both parties
hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control
(not including transactions between wholly-owned direct or
indirect subsidiaries of a common parent) of 25% or more of
the beneficial ownership of the shares of common stock or
shares of beneficial interest of an entity or its parent(s).
(f) "Oral Instructions" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person. PFPC may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act
and the CEA. (i) "Shares" means the shares of beneficial interest of
any series or class of the Fund. (j) "Written Instructions" mean (i)
written instructions signed by an Authorized Person and
received by PFPC or (ii) trade instructions transmitted (and
received by PFPC) by means of an electronic transaction
reporting system access to which requires use of a password or
other authorized identifier. The instructions may be delivered
by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. Appointment. The Administrator hereby appoints PFPC to provide
sub-administration and accounting services to each of the Portfolios, 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 Administrator has provided or, where applicable,
will provide PFPC with the following:
(a) A copy of Fund's most recent effective registration statement;
(b) A copy of the advisory agreement with respect to each investment
Portfolio of the Fund;
(c) A copy of the distribution/underwriting agreement with respect to
each class of Shares;
(d) A copy of each additional administration agreement with respect to
a Portfolio;
(e) Copies of any distribution and/or shareholder servicing plans
and agreement made in respect of the Fund or a Portfolio;
(f) A copy of any custody agreement with respect to the Fund or
any Portfolio; and
(g) Copies (certified or authenticated, where applicable) of any
and all amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations.
PFPC undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by PFPC hereunder. Except as specifically set forth herein,
PFPC assumes no responsibility for such compliance by the Fund or any
other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
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 Instruction 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 Board of Directors or
Trustees or of the Fund's shareholders, unless and until PFPC
receives Written Instructions to the contrary.
(c) The Administrator agrees to forward to PFPC Written Instructions confirming
Oral Instructions 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
or differ from the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized by the Oral
Instructions or PFPC's ability to rely upon such Oral Instructions. Where
Oral Instructions or Written Instructions reasonably appear to have been
received from an Authorized Person, PFPC shall incur no liability to the
Administrator in acting upon such Oral Instructions or Written Instructions
provided that PFPC's actions comply with the other provisions of this
Agreement.
6. Right to Receive Advice.
(a) Advice of the Administrator. If PFPC is in doubt as to any
action it should or should not take, PFPC may request
directions or advice, including Oral Instructions or Written
Instructions, from the Administrator.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC may request advice from counsel of its own
choosing (who may be counsel for the Administrator, the Fund
or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC receives from the Administrator and the
advice it receives from counsel, PFPC may 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 or advice or Oral Instructions or
Written Instructions it receives from the Administrator or from counsel and
which PFPC believes, in good faith, to be consistent with those directions
or advice or Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon PFPC (i) to
seek such directions or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions or advice
or Oral Instructions 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; Visits.
(a) The books and records pertaining to the Fund and the
Portfolios which are in the possession or under the control of
PFPC shall be the property of the Fund. Such books and records
shall be prepared and maintained as required by the 1940 Act
and other applicable securities laws, rules and regulations.
The Administrator and 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
Administrator, copies of any such books and records shall be
provided by PFPC to the Administrator or to an Authorized
Person, at the Administrator's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each
Portfolio's books of account;
(ii) records of each Portfolio's securities transactions;
and
(iii) all other books and records as PFPC is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Administrator or PFPC, their respective subsidiaries and
affiliated companies and the customers, clients and suppliers of any of
them; (b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret
in the sense that its confidentiality affords the Administrator or PFPC a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential. Notwithstanding
the foregoing, information shall not be subject to such confidentiality
obligations if it: (a) is already known to the receiving party at the time
it is obtained; (b) is or becomes publicly known or available through no
wrongful act of the receiving party; (c) is rightfully received from a
third party who, to the best of the receiving party's knowledge, is not
under a duty of confidentiality; (d) is released by the protected party to
a third party without restriction; (e) is required to be disclosed by the
receiving party pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency or law (provided the receiving party will
provide the other party written notice of such requirement, to the extent
such notice is permitted); (f) is relevant to the defense of any claim or
cause of action asserted against the receiving party; or (g) has been or is
independently developed or obtained by the receiving party.
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 with respect
to each Portfolio. PFPC shall take all reasonable action in the
performance of its duties under this Agreement to assure that the
necessary information is made available to such accountants for the
expression of their opinion, as required by the Administrator.
10. PFPC System. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC to
the Administrator.
11. Disaster Recovery. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
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 Administrator, take reasonable
steps to minimize service interruptions. PFPC shall be obligated to
exercise care and diligence in the performance of its duties hereunder and
to act in good faith in performing services provided for under this
Agreement. With respect to the loss of data or service interruptions caused
by equipment failure, PFPC shall be liable only if such loss or
interruption is caused by PFPC's own willful misfeasance, bad faith,
negligence or reckless disregard of its duties or obligations under this
Agreement.
12. Compensation. As compensation for services rendered by PFPC during the
term of this Agreement, the Administrator will pay to PFPC a fee or
fees as may be agreed to from time to time in writing by the
Administrator and PFPC.
13. Indemnification.
(a) The Administrator agrees to indemnify and hold harmless PFPC and its
affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC takes in
connection with the provision of services to the Administrator. Neither
PFPC, nor any of its affiliates, shall be indemnified against any liability
(or any expenses incident to such liability) caused by PFPC's or its
affiliates' own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
(c) PFPC agrees to indemnify and hold harmless the Administrator
and its affiliates from all taxes, charges, expenses,
assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities
arising under the Securities Laws and any state and foreign
securities and blue sky laws) provided that such liability was
caused by PFPC's or its affiliates" own willful misfeasance,
bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of the
Administrator, the Fund or any Portfolio except as specifically set forth
herein or as may be specifically agreed to by PFPC and the Administrator in
a written amendment hereto. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to act in good
faith in performing services provided for under this Agreement. PFPC shall
be liable only for any damages arising out of PFPC's failure to perform its
duties under this Agreement to the extent such damages arise out of PFPC's
willful misfeasance, bad faith, negligence or reckless disregard of its
duties under this Agreement.
(b) Without limiting the generality of the foregoing or of any other provision
of this Agreement, (i) PFPC shall not be liable for losses beyond its
control, including without limitation (subject to Section 11), delays or
errors or loss of data occurring by reason of circumstances beyond PFPC's
control, provided that PFPC has acted in accordance with the standard set
forth in Section 14(a) above; and (ii) PFPC shall not be under any duty or
obligation to inquire into and shall not be liable for the validity or
invalidity or authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to the applicable
requirements of this Agreement, and which PFPC reasonably believes to be
genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither party to this Agreement nor its affiliates shall be
liable for any consequential damages.
(d) No party may assert a cause of action against the other party
or any of its affiliates that allegedly occurred more than
three (3) years immediately prior to the filing of the suit
(or, if applicable, commencement of arbitration proceedings)
alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
15. Description of Accounting Services on a Continuous Basis.
PFPC will perform the following accounting services with respect to
each Portfolio:
(i) Journalize investment, capital share and income and
expense activities;
(ii) Verify investment buy/sell trade tickets when received from
the investment adviser for a Portfolio (the "Adviser") and
transmit trades to the Fund's custodian (the "Custodian") for
proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash
balance available for investment purposes;
(vi) Update the cash availability throughout the day as required
by the Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities and
the Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and
custody fees);
(ix) Monitor the expense accruals and notify an officer of the Fund of
any proposed adjustments;
(x) Control all disbursements and authorize such disbursements
upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing
services approved by the Adviser, or if such quotes are
unavailable, then obtain such prices from the Adviser, and in
either case calculate the market value of each Portfolio's
Investments;
(xiv) Transmit or mail a copy of the daily portfolio valuation to the
Adviser;
(xv) Compute net asset value;
(xvi) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity; and
(xvii) 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.
16. Description of Sub-Administration Services on a Continuous Basis.
PFPC will perform the following sub-administration services with
respect to each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund
statistical data as requested on an ongoing basis;
(iv) Prepare for execution and file the Fund's Federal and state
tax returns;
(v) Prepare and file the Fund's Semi-Annual Reports with the SEC on
Form N-SAR;
(vi) Prepare and file with the SEC the Fund's annual, semi-annual,
and quarterly shareholder reports;
(vii) Assist in the preparation of registration statements and other
filings relating to the registration of Shares;
(viii) Monitor each Portfolio's status as a regulated investment
company under Sub-chapter M of the Internal Revenue Code of
1986, as amended;
(ix) Coordinate contractual relationships and communications
between the Fund and its contractual service providers; and
(x) Monitor the Fund's compliance with the amounts and conditions of
each state qualification.
17. Duration and Termination. This Agreement shall continue until
terminated by the Administrator or by PFPC on ninety (90) days' prior
written notice to the other party. In the event the Administrator gives
notice of termination, all expenses associated with movement (or
duplication) of records and materials and conversion thereof to a
successor accounting and sub-administration services agent(s) or other
service provider will be borne by the Administrator.
18. Change of Control. Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a transaction
that would result in a Change of Control of the Administrator, the
Administrator's ability to terminate the Agreement pursuant to Section
17 will be suspended from the time of such agreement until one year
after the Change of Control.
19. Notices. Notices shall be addressed
(a) if to PFPC, at 400 Bellevue Parkway, Wilmington, Delaware
19809, Attention: President;
(b) if to the Administrator, at 171 North Clark Street, Chicago,
Illinois 60601 Attention: President or
(c) if to neither of the foregoing, at such other address as shall have been
given by like notice to the sender of any such notice or other
communication by the other party. 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.
20. Amendments. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
21. Delegation; Assignment. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or PNC Bank Corp., provided that PFPC gives the Administrator 30
days prior written notice of such assignment or delegation.
22. Non-Solicitation. During the term of this Agreement and for a period of one
year afterward, the Administrator shall not recruit or solicit, for the
Administrator or any other person, any of PFPC's employees.
23. 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.
24. Further Actions. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
25. Miscellaneous.
(a) Entire Agreement. 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, with respect to
delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(c) 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.
(d) Governing Law. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
(e) 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.
(f) 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.
(g) No Representations or Warranties. Except as expressly provided
in this Agreement, PFPC hereby disclaims all representations
and warranties, express or implied, made to the Administrator
or any other person, including, without limitation, any
warranties regarding quality, suitability, merchantability,
fitness for a particular purpose or otherwise (irrespective of
any course of dealing, custom or usage of trade), of any
services or any goods provided incidental to services provided
under this Agreement. PFPC disclaims any warranty of title or
non-infringement except as otherwise set forth in this
Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: /s/ Stephen M. Wynne
Title: Executive Vice President
ALLEGHANY INVESTMENT SERVICES
By: /s/ Gerald F. Dillenburg
Title: Sr. Vice President
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Business Approval
By:________________
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Date:__________
Legal Approval
By:___________________
Date:__________
EXHIBIT A
THIS EXHIBIT A, dated as of April 1, 2000 is Exhibit A to that certain
Sub-Administration and Accounting Services Agreement dated as of April 1, 2000
between PFPC Inc. and Alleghany Investment Services.
PORTFOLIOS
Alleghany/Chicago Trust Money Market Fund
Alleghany/Chicago Trust Municipal Bond Fund
Alleghany/Chicago Trust Bond Fund
Alleghany/Chicago Trust Balanced Fund
Alleghany/Chicago Trust Talon Fund
Alleghany/Chicago Trust Growth & Income Fund
Alleghany/Chicago Trust Small Cap Value Fund
Alleghany/Veredus Aggressive Growth Fund
Alleghany/Montag & Caldwell Balanced Fund
Alleghany/Montag & Caldwell Growth Fund
Alleghany/Blairlogie International Developed Fund
Alleghany/Blairlogie Emerging Markets Fund
