Exhibit 9(e)
FUND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made on the 21st day of March, 1995 between Xxxxxxx
Development Fund (the "Fund"), a registered open-end management investment
company with its principal place of business in Boston, Massachusetts and
Xxxxxxx Fund Accounting Corporation, with its principal place of business in
Boston, Massachusetts (hereinafter called "FUND ACCOUNTING").
WHEREAS, the Fund has need for certain accounting services which 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
as the Fund's fund accounting agent, and as such FUND ACCOUNTING
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 Fund, other
than those accounts, books and financial records required to be
maintained by the Fund's 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.
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 Fund's net asset value per share, and, if applicable,
its public offering price and/or its daily dividend rates and
money market yields, 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 Fund'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 Fund'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 Fund;
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 shares of beneficial interest.
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 (which may be Counsel for the Fund) at the reasonable expense
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of the Fund 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
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 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 Fund in acting in reliance
thereon.
Section 6. Standard of Care and Indemnification
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 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.
The Fund agrees to indemnify and hold harmless FUND ACCOUNTING and its
employees, agents and nominees from all taxes, charges, expenses,
assessments, claims and liabilities (including reasonable attorneys'
fees) incurred or assessed against them in connection with the
performance of this Agreement, except such as may arise from their own
negligent action, negligent failure to act or willful misconduct. The
foregoing notwithstanding, FUND ACCOUNTING will in no event be liable
for any loss resulting from the acts, omissions, lack of financial
responsibility, or failure to perform the obligations of any person or
organization designated by the Fund to be the authorized agent of the
Fund as a party to any transactions.
FUND ACCOUNTING's responsibility for damage or loss with respect to
the Fund's records arising from fire, flood, Acts of God, military
power, war, insurrection or nuclear fission, fusion or radioactivity
shall be limited to the use of FUND ACCOUNTING's best efforts to
recover the Fund's records determined to be lost, missing or
destroyed.
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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 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 ninety (90) 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 others. In acting under this
Agreement, FUND ACCOUNTING shall be an independent contractor and not
an agent of the Fund.
Section 10. Limitation of Liability for Claims
The Fund's Declaration of Trust, dated December 21, 1987, 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 "Xxxxxxx
Development Fund" refers to the Trustees under the Declaration
collectively as trustees and not as individuals or personally, and
that no shareholder of the Fund, or Trustee, officer, employee or
agent of the Fund shall be subject to claims against or obligations of
the Trust or of the Fund 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 under this Agreement shall be
limited in all cases to the Fund and its assets, and FUND ACCOUNTING
shall not seek satisfaction of any such obligation from the
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shareholders or any shareholder of the Fund 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
Fund 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: Xxxxxxx Development Fund
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: President, Secretary or Treasurer
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the date first
written above.
XXXXXXX DEVELOPMENT FUND
By: /s/Xxxxxx Xxxxxx
President
XXXXXXX FUND ACCOUNTING CORPORATION
By: /s/Xxxxxx X. XxXxxxx
Vice President
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