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EX-99.B9(e)
FUND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made on the 31st day of December, 1997 between Xxxxxx
High Yield Series (the "Fund"), on behalf of Xxxxxx High Yield Opportunity Fund
(hereinafter called the "Portfolio"), a registered open-end management
investment company with its principal place of business in 000 Xxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx 00000 and Xxxxxxx Fund Accounting Corporation, with
its principal place of business in Boston, Massachusetts (hereinafter called
"FUND ACCOUNTING").
WHEREAS, the Portfolio has need to determine its net asset value which
service FUND ACCOUNTING is willing and able to provide;
NOW THEREFORE in consideration of the mutual promises herein made, the Fund
and FUND ACCOUNTING agree as follows:
Section 1. Duties of FUND ACCOUNTING - General
FUND ACCOUNTING is authorized to act under the terms of this
Agreement to calculate the net asset value of the Portfolio
as provided in the prospectus of the Portfolio and in
connection therewith shall:
a. Maintain and preserve all accounts, books, financial records and
other documents as are required of the Fund under Section 31 of the
Investment Company Act of 1940 (the "1940 Act") and Rules 31a-1,
31a-2 and 31a-3 thereunder, applicable federal and state laws and any
other law or administrative rules or procedures which may be
applicable to the Fund on behalf of the Portfolio, other than those
accounts, books and financial records required to be maintained by
the Fund's investment adviser, custodian or transfer agent and/or
books and records maintained by all other service providers necessary
for the Fund to conduct its business as a registered open-end
management investment company. All such books and records shall be
the property of the Fund and shall at all times during regular
business hours be open for inspection by, and shall be surrendered
promptly upon request of, duly authorized officers of the Fund. All
such books and records shall at all times during regular business
hours be open for inspection, upon request of duly authorized
officers of the Fund, by employees or agents of the Fund and
employees and agents of the Securities and Exchange Commission.
b. Record the current day's trading activity and such other proper
bookkeeping entries as are necessary for determining that day's net
asset value and net income.
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c. Render statements or copies of records as from time to time are
reasonably requested by the Fund.
d. Facilitate audits of accounts by the Fund's independent public
accountants or by any other auditors employed or engaged by the Fund
or by any regulatory body with jurisdiction over the Fund.
e. Compute the Portfolio's public offering price and/or its daily
dividend rates and money market yields, if applicable, in accordance
with Section 3 of the Agreement and notify the Fund and such other
persons as the Fund may reasonably request of the net asset value
per share, the public offering price and/or its daily dividend rates
and money market yields.
Section 2. Valuation of Securities
Securities shall be valued in accordance with (a) the Fund's
Registration Statement, as amended or supplemented from time to time
(hereinafter referred to as the "Registration Statement"); (b) the
resolutions of the Board of Trustees of the Fund at the time in force and
applicable, as they may from time to time be delivered to FUND ACCOUNTING,
and (c) Proper Instructions from such officers of the Fund or other
persons as are from time to time authorized by the Board of Trustees of
the Fund to give instructions with respect to computation and
determination of the net asset value. FUND ACCOUNTING may use one or more
external pricing services, including broker-dealers, provided that an
appropriate officer of the Fund shall have approved such use in advance.
Section 3. Computation of Net Asset Value, Public Offering Price, Daily
Dividend Rates and Yields
FUND ACCOUNTING shall compute the Portfolio's net asset value,
including net income, in a manner consistent with the specific provisions
of the Registration Statement. Such computation shall be made as of the
time or times specified in the Registration Statement.
FUND ACCOUNTING shall compute the daily dividend rates and money market
yields, if applicable, in accordance with the methodology set forth in the
Registration Statement.
Section 4. FUND ACCOUNTING's Reliance on Instructions and Advice
In maintaining the Portfolio's books of account and making the necessary
computations FUND ACCOUNTING shall be entitled to receive, and may rely
upon, information furnished it by means of Proper Instructions, including
but not limited to:
a. The manner and amount of accrual of expenses to be recorded on the
books of the Portfolio;
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b. The source of quotations to be used for such securities as may not
be available through FUND ACCOUNTING's normal pricing services;
c. The value to be assigned to any asset for which no price quotations
are readily available;
d. If applicable, the manner of computation of the public offering price
and such other computations as may be necessary;
e. Transactions in portfolio securities;
f. Transactions in capital shares.
FUND ACCOUNTING shall be entitled to receive, and shall be entitled to
rely upon, as conclusive proof of any fact or matter required to be
ascertained by it hereunder, a certificate, letter or other instrument
signed by an authorized officer of the Fund or any other person authorized
by the Fund's Board of Trustees.
FUND ACCOUNTING shall be entitled to receive and act upon advice of
Counsel for the Fund at the reasonable expense of the Portfolio and shall
be without liability for any action taken or thing done in good faith in
reliance upon such advice.
FUND ACCOUNTING shall be entitled to receive, and may rely upon,
information received from the Transfer Agent.
Section 5. Proper Instructions
"Proper Instructions" as used herein means any certificate, letter
or other instrument or telephone call reasonably believed by FUND
ACCOUNTING to be genuine and to have been properly made or signed by any
authorized officer of the Fund or person certified to FUND ACCOUNTING as
being authorized by the Board of Trustees. The Fund, on behalf of the
Portfolio, shall cause oral instructions to be confirmed in writing.
Proper Instructions may include communications effected directly between
electro-mechanical or electronic devices as from time to time agreed to by
an authorized officer of the Fund and FUND ACCOUNTING.
The Fund, on behalf of the Portfolio, agrees to furnish to the appropriate
person(s) within FUND ACCOUNTING a copy of the Registration Statement as
in effect from time to time. FUND ACCOUNTING may conclusively rely on the
Fund's most recently delivered Registration Statement for all purposes
under this Agreement and shall not be liable to the Portfolio or the Fund
in acting in reliance thereon.
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Section 6. Standard of Care
FUND ACCOUNTING shall exercise reasonable care and diligence in the
performance of its duties hereunder. The Fund agrees that FUND ACCOUNTING
shall not be liable under this Agreement for any error of judgment or
mistake of law made in good faith and consistent with the foregoing
standard of care, provided that nothing in this Agreement shall be deemed
to protect or purport to protect FUND ACCOUNTING against any liability to
the Fund, the Portfolio or its shareholders to which FUND ACCOUNTING would
otherwise be subject by reason of willful misfeasance, bad faith or
negligence in the performance of its duties, or by reason of its reckless
disregard of its obligations and duties hereunder.
Section 7. Compensation and FUND ACCOUNTING Expenses
FUND ACCOUNTING shall be paid as compensation for its services
pursuant to this Agreement such compensation as may from time to time be
agreed upon in writing by the two parties. FUND ACCOUNTING shall be
entitled, if agreed to by the Fund on behalf of the Portfolio, to recover
its reasonable telephone, courier or delivery service, and all other
reasonable out-of-pocket, expenses as incurred, including, without
limitation, reasonable attorneys' fees and reasonable fees for pricing
services.
Section 8. Amendment and Termination
This Agreement shall continue in full force and effect until
terminated as hereinafter provided, may be amended at any time by mutual
agreement of the parties hereto and may be terminated by an instrument in
writing delivered or mailed to the other party. Such termination shall
take effect not sooner than sixty (60) days after the date of delivery or
mailing of such notice of termination. Any termination date is to be no
earlier than four months from the effective date hereof. Upon
termination, FUND ACCOUNTING will turn over to the Fund or its designee
and cease to retain in FUND ACCOUNTING files, records of the calculations
of net asset value and all other records pertaining to its services
hereunder; provided, however, FUND ACCOUNTING in its discretion may make
and retain copies of any and all such records and documents which it
determines appropriate or for its protection.
Section 9. Services Not Exclusive
FUND ACCOUNTING's services pursuant to this Agreement are not to be
deemed to be exclusive, and it is understood that FUND ACCOUNTING may
perform fund accounting services for
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others. In acting under this Agreement, FUND ACCOUNTING shall be an
independent contractor and not an agent of the Fund or the Portfolio.
Section 10. Limitation of Liability for Claims
The Fund's Amended and Restated Declaration of Trust, as amended to date
(the "Declaration"), a copy of which, together with all amendments
thereto, is on file in the Office of the Secretary of State of the
Commonwealth of Massachusetts, provides that the name "Xxxxxx High Yield
Series" refers to the Trustees under the Declaration collectively as
trustees and not as individuals or personally, and that no shareholder of
the Fund or the Portfolio, or Trustee, officer, employee or agent of the
Fund shall be subject to claims against or obligations of the Trust or of
the Portfolio to any extent whatsoever, but that the Trust estate only
shall be liable.
FUND ACCOUNTING is expressly put on notice of the limitation of
liability as set forth in the Declaration and FUND ACCOUNTING agrees that
the obligations assumed by the Fund and/or the Portfolio under this
Agreement shall be limited in all cases to the Portfolio and its assets,
and FUND ACCOUNTING shall not seek satisfaction of any such obligation
from the shareholders or any shareholder of the Fund or the Portfolio or
any other series of the Fund, or from any Trustee, officer, employee or
agent of the Fund. FUND ACCOUNTING understands that the rights and
obligations of the Portfolio under the Declaration are separate and
distinct from those of any and all other series of the Fund.
Section 11. Notices
Any notice shall be sufficiently given when delivered or mailed to the
other party at the address of such party set forth below or to such other
person or at such other address as such party may from time to time
specify in writing to the other party.
If to FUND ACCOUNTING: Xxxxxxx Fund Accounting Corporation
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Vice President
If to the Fund - Portfolio: Xxxxxx High Yield Series
000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: President, Secretary
or Treasurer
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Section 12. Miscellaneous
This Agreement may not be assigned by FUND ACCOUNTING without the consent
of the Fund as authorized or approved by resolution of its Board of
Trustees.
In connection with the operation of this Agreement, the Fund and
FUND ACCOUNTING may agree from time to time on such provisions
interpretive of or in addition to the provisions of this Agreement as in
their joint opinions may be consistent with this Agreement. Any such
interpretive or additional provisions shall be in writing, signed by both
parties and annexed hereto, but no such provisions shall be deemed to be
an amendment of this Agreement.
This Agreement shall be governed and construed in accordance with the laws
of the Commonwealth of Massachusetts.
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.
This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof, and supersedes any and all prior
understandings.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized and its seal to
be hereunder affixed as of the date first written above.
[SEAL] XXXXXX HIGH YIELD SERIES
on behalf of Xxxxxx High Yield
Opportunity Fund
By:
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President
[SEAL] XXXXXXX FUND ACCOUNTING CORPORATION
By:
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Vice President
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