XXXXX XXX FUNDS
AMENDED AND RESTATED
ACCOUNTING AND BOOKKEEPING AGREEMENT
This Agreement is made this 3rd day of August, 1999 by and
between Xxxxx Xxx Trust, a Massachusetts business trust,
(hereinafter referred to as the "Trust") and Xxxxx Xxx & Xxxxxxx
Incorporated ("Xxxxx Xxx"), a Delaware corporation.
1. Appointment. The Trust hereby appoints Xxxxx Xxx to act as
its agent to perform the services described herein with respect to
each series of shares of the Trust (the "Series") identified in
and beginning on the date specified on Appendix I to this
Agreement, as may be amended from time to time. Xxxxx Xxx hereby
accepts appointment as the Trust's agent and agrees to perform the
services described herein.
2. Accounting.
(a) Pricing. For each Series of the Trust, Xxxxx Xxx shall
value all securities and other assets of the Series, and
compute the net asset value per share of such Series, at
such times and dates and in the manner and by such
methodology as is specified in the then currently
effective prospectus and statement of additional
information for such Series, and pursuant to such other
written procedures or instructions furnished to Xxxxx Xxx
by the Trust. To the extent procedures or instructions
used to value securities or other assets of a Series under
this Agreement are at any time inconsistent with any
applicable law or regulation, the Trust shall provide
Xxxxx Xxx with written instructions for valuing such
securities or assets in a manner which the Trust
represents to be consistent with applicable law and
regulation.
(b) Net Income. Xxxxx Xxx shall calculate with such frequency
as the Trust shall direct, the net income of each Series
of the Trust for dividend purposes and on a per share
basis. Such calculation shall be at such times and dates
and in such manner as the Trust shall instruct Xxxxx Xxx
in writing. For purposes of such calculation, Xxxxx Xxx
shall not be responsible for determining whether any
dividend or interest accruable to the Trust is or will be
actually paid, but will accrue such dividend and interest
unless otherwise instructed by the Trust.
(c) Capital Gains and Losses. Xxxxx Xxx shall calculate gains
or losses of each Series of the Trust from the sale or
other disposition of assets of that Series as the Trust
shall direct.
(d) Yields. At the request of the Trust, Xxxxx Xxx shall
compute yields for each Series of the Trust for such
periods and using such formula as shall be instructed by
the Trust.
(e) Communication of Information. Xxxxx Xxx shall provide the
Trust, the Trust's transfer agent and such other parties
as directed by the Trust with the net asset value per
share, the net income per share and yields for each Series
of the Trust at such time and in such manner and format
and with such frequency as the parties mutually agree.
(f) Information Furnished by the Trust. The Trust shall
furnish Xxxxx Xxx with any and all instructions,
explanations, information, specifications and
documentation deemed necessary by Xxxxx Xxx in the
performance of its duties hereunder, including, without
limitation, the amounts and/or written formula for
calculating the amounts, and times of accrual of
liabilities and expenses of each Series of the Trust. The
Trust shall also at any time and from time to time furnish
Xxxxx Xxx with bid, offer and/or market values of
securities owned by the Trust if the same are not
available to Xxxxx Xxx from a pricing or similar service
designated by the Trust for use by Xxxxx Xxx to value
securities or other assets. Xxxxx Xxx shall at no time be
required to commence or maintain any utilization of, or
subscriptions to, any such service which shall be the sole
responsibility and expense of the Trust.
3. Recordkeeping.
(a) Xxxxx Xxx shall, as agent for the Trust, maintain and keep
current and preserve the general ledger and other
accounts, books, and financial records of the Trust
relating to activities and obligations under this
Agreement in accordance with the applicable provisions of
Section 31(a) of the General Rules and Regulations under
the Investment Company Act of 1940, as amended (the
"Rules").
(b) All records maintained and preserved by Xxxxx Xxx pursuant
to this Agreement which the Trust is required to maintain
and preserve in accordance with the Rules shall be and
remain the property of the Trust and shall be surrendered
to the Trust promptly upon request in the form in which
such records have been maintained and preserved.
(c) Xxxxx Xxx shall make available on its premises during
regular business hours all records of a Trust for
reasonable audit, use and inspection by the Trust, its
agents and any regulatory agency having authority over the
Trusts.
4. Instructions, Opinion of Counsel, and Signatures.
(a) At any time Xxxxx Xxx may apply to a duly authorized agent
of the Trust for instructions regarding the Trust, and may
consult counsel for such Trust or its own counsel, in
respect of any matter arising in connection with this
Agreement, and it shall not be liable for any action taken
or omitted by it in good faith in accordance with such
instructions or with the advice or opinion of such
counsel. Xxxxx Xxx shall be protected in acting upon any
such instruction, advice, or opinion and upon any other
paper or document delivered by the Trust or such counsel
believed by Xxxxx Xxx to be genuine and to have been
signed by the proper person or persons and shall not be
held to have notice of any change of authority of any
officer or agent of the Trust, until receipt of written
notice thereof from such Trust.
(b) Xxxxx Xxx may receive and accept a certified copy of a
vote of the Board of Trustees of the Trust as conclusive
evidence of (i) the authority of any person to act in
accordance with such vote or (ii) any determination or any
action by the Board of Trustees pursuant to its Agreement
and Declaration of Trust as described in such vote, and
such vote may be considered as in full force and effect
until receipt by Xxxxx Xxx of written notice to the
contrary.
5. Compensation. The Trust shall reimburse Xxxxx Xxx from the
assets of the respective applicable Series of the Trust, for any
and all out-of-pocket expenses and charges in performing services
under this Agreement and such compensation as is provided in
Appendix II to this Agreement, as amended from time to time.
Xxxxx Xxx shall invoice the Trust as soon as practicable after the
end of each calendar month, with allocation among the respective
Series and full detail, and the Trust shall promptly pay Xxxxx Xxx
the invoiced amount.
6. Confidentiality of Records. Xxxxx Xxx agrees not to disclose
any information received from the Trust to any other client of
Xxxxx Xxx or to any other person except its employees and agents,
and shall use its best efforts to maintain such information as
confidential. Upon termination of this Agreement, Xxxxx Xxx shall
return to the Trust all records in the possession and control of
Xxxxx Xxx related to such Trust's activities, other than Xxxxx
Xxx'x own business records, it being also understood and agreed
that any programs and systems used by Xxxxx Xxx to provide the
services rendered hereunder will not be given to any Trust.
7. Liability and Indemnification.
(a) Xxxxx Xxx shall not be liable to any Trust for any action
taken or thing done by it or its employees or agents on
behalf of the Trust in carrying out the terms and
provisions of this Agreement if done in good faith and
without negligence or misconduct on the part of Xxxxx Xxx,
its employees or agents.
(b) The Trust shall indemnify and hold Xxxxx Xxx, and its
controlling persons, if any, harmless from any and all
claims, actions, suits, losses, costs, damages, and
expenses, including reasonable expenses for counsel,
incurred by it in connection with its acceptance of this
Agreement, in connection with any action or omission by it
or its employees or agents in the performance of its
duties hereunder to the Trust, or as a result of acting
upon instructions believed by it to have been executed by
a duly authorized agent of the Trust or as a result of
acting upon information provided by the Trust in form and
under policies agreed to by Xxxxx Xxx and the Trust,
provided that: (i) to the extent such claims, actions,
suits, losses, costs, damages, or expenses relate solely
to one or more Series, such indemnification shall be only
out of the assets of that Series or group of Series; (ii)
this indemnification shall not apply to actions or
omissions constituting negligence or misconduct on the
part of Xxxxx Xxx or its employees or agents, including
but not limited to willful misfeasance, bad faith, or
gross negligence in the performance of their duties, or
reckless disregard of their obligations and duties under
this Agreement; and (iii) Xxxxx Xxx shall give the Trust
prompt notice and reasonable opportunity to defend against
any such claim or action in its own name or in the name of
Xxxxx Xxx.
(c) Xxxxx Xxx shall indemnify and hold harmless the Trust from
and against any and all claims, demands, expenses and
liabilities which such Trust may sustain or incur arising
out of, or incurred because of, the negligence or
misconduct of Xxxxx Xxx or its agents or contractors, or
the breach by Xxxxx Xxx of its obligations under this
Agreement, provided that: (i) this indemnification shall
not apply to actions or omissions constituting negligence
or misconduct on the part of such Trust or its other
agents or contractors and (ii) such Trust shall give Xxxxx
Xxx prompt notice and reasonable opportunity to defend
against any such claim or action in its own name or in the
name of such Trust.
8. Further Assurances. Each party agrees to perform such further
acts and execute such further documents as are necessary to
effectuate the purposes hereof.
9. Dual Interests. It is understood and agreed that some person
or persons may be trustees, officers, or shareholders of both the
Trusts and Xxxxx Xxx, and that the existence of any such dual
interest shall not affect the validity hereof or of any
transactions hereunder except as otherwise provided by specific
provision of applicable law.
10. Amendment and Termination. This Agreement may be modified or
amended from time to time, or terminated, by mutual agreement
between the parties hereto and may be terminated by at least one
hundred eighty (180) days' written notice given by one party to
the other. Upon termination hereof, the Trust shall pay to Xxxxx
Xxx such compensation as may be due from it as of the date of such
termination, and shall reimburse Xxxxx Xxx for its costs,
expenses, and disbursements payable under this Agreement to such
date. In the event that, in connection with termination, a
successor to any of the duties or responsibilities of Xxxxx Xxx
hereunder is designated by a Trust by written notice to Xxxxx Xxx,
Xxxxx Xxx shall promptly upon such termination and at the expense
of such Trust, deliver to such successor all relevant books,
records, and data established or maintained by Xxxxx Xxx under
this Agreement and shall cooperate in the transfer of such duties
and responsibilities, including provision, at the expense of such
Trust, for assistance from Xxxxx Xxx personnel in the
establishment of books, records, and other data by such successor.
11. Assignment. Any interest of Xxxxx Xxx under this Agreement
shall not be assigned or transferred either voluntarily or
involuntarily, by operation of law or otherwise, without prior
written notice to the Trust.
12. Use of Affiliated Companies and Subcontractors. In connection
with the services to be provided by Xxxxx Xxx under this
Agreement, Xxxxx Xxx may, to the extent it deems appropriate, and
subject to compliance with the requirements of applicable laws and
regulations and upon receipt of approval of the Trustees, make use
of (i) its affiliated companies and their directors, trustees,
officers, and employees and (ii) subcontractors selected by Xxxxx
Xxx, provided that Xxxxx Xxx shall supervise and remain fully
responsible for the services of all such third parties in
accordance with and to the extent provided by this Agreement. All
costs and expenses associated with services provided by any such
third parties shall be borne by Xxxxx Xxx or such parties.
13. Notice. Any notice under this Agreement shall be in writing,
addressed and delivered or sent by registered mail, postage
prepaid to the other party at such address as such other party may
designate for the receipt of such notices. Until further notice
to the other parties, it is agreed that the address of the Trust
and Xxxxx Xxx is Xxx Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Secretary.
14. Non-Liability of Trustees and Shareholders. Any obligation of
the Trust hereunder shall be binding only upon the assets of that
Trust (or the applicable Series thereof), as provided in the
Agreement and Declaration of Trust of that Trust, and shall not be
binding upon any Trustee, officer, employee, agent or shareholder
of the Trust or upon any other Trust. Neither the authorization
of any action by the Trustees or the shareholders of the Trust,
nor the execution of this Agreement on behalf of the Trust shall
impose any liability upon any Trustee or any shareholder. Nothing
in this Agreement shall protect any Trustee against any liability
to which such Trustee would otherwise be subject by willful
misfeasance, bad faith or gross negligence in the performance of
his duties, or reckless disregard of his obligations and duties
under this Agreement. In connection with the discharge and
satisfaction of any claim made by Xxxxx Xxx against the Trust
involving more than one Series, the Trust shall have the exclusive
right to determine the appropriate allocations of liability for
any such claim between or among the Series.
15. References and Headings. In this Agreement and in any such
amendment, references to this Agreement and all expressions such
as "herein," "hereof," and "hereunder," shall be deemed to refer
to this Agreement as amended or affected by any such amendments.
Headings are placed herein for convenience of reference only and
shall not be taken as part hereof or control or affect the
meaning, construction or effect of this Agreement. This Agreement
may be executed in any number of counterparts, each of which shall
be deemed an original.
16. Governing Law. This Agreement shall be governed by the laws
of the State of Illinois.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed as of the day and year first above written.
XXXXX XXX TRUST
Attest: By: XXXXXX X. XXXXX
XXXXXXXXX X. XXXXXXX Xxxxxx X. Xxxxx,
Xxxxxxxxx X. Xxxxxxx President
Assistant Secretary
XXXXX XXX & FARNHAM INCORPORATED
Attest: By: XXXXXX X. XXXXX
XXXXXXXXX X. XXXXXXX Xxxxxx X. Xxxxx,
Xxxxxxxxx X. Xxxxxxx President, Mutual Funds
Division
XXXXX XXX TRUST
ACCOUNTING & BOOKKEEPING AGREEMENT
APPENDIX I
The series of the Trust currently subject to this Agreement are as
follows:
Series Effective Date
Xxxxx Xxx Institutional Client High Yield Fund August 3, 1999
Dated: August 3, 1999
XXXXX XXX TRUST
ACCOUNTING & BOOKKEEPING AGREEMENT
APPENDIX II
For the services provided under the Accounting & Bookkeeping
Agreement (the "Agreement"), the Trust shall pay Xxxxx Xxx an
annual fee with respect to each series, calculated and paid
monthly, equal to $25,000 plus .0025 percent per annum of the
average daily net assets of the series in excess of $50 million.
Such fee shall be paid within thirty days after receipt of monthly
invoice.
