Exhibit 9(g)
ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT, dated as of the 1st day of June, 1988 made by and between
Xxxxxxxx Growth Fund, Inc. (the "Fund") a corporation operating as an open-end
management investment company, duly organized and existing under the laws of the
State of Maryland, and Fund/Plan Services, Inc. (the "Company") a corporation
duly organized and existing under the laws of the State of Delaware.
WITNESSETH THAT:
WHEREAS, the Fund desires to appoint the Company as its Accounting Services
Agent to maintain and keep current the books, accounts, records, journals or
other records of original entry relating to the business of the ("Fund") as set
forth in Section 2 of this Agreement (the "Accounts and Records") and to perform
certain other functions in connection with such accounts and records; and
WHEREAS, the Company is willing to perform such functions upon the terms and
conditions set forth below; and
WHEREAS, the Fund will cause to be provided certain information to the Company
as set forth below; and
WHEREAS, the Company shall perform the duties of transfer agent, and dividend
disbursing agent pursuant to a separate agreement ("Shareholder Services
Agreement").
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, the parties hereto, intending to be legally bound, do hereby agree as
follows:
Section 1. The Fund shall promptly turn over to the Company such of the Accounts
and Records previously maintained by or for it as are necessary
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for the Company to perform its functions under this Agreement. The Fund
authorizes the Company to rely on such Accounts and Records turned over to it
and hereby indemnifies and holds the Company, its successors and assigns,
harmless of and from any and ale expenses, damages, claims, suits, liabilities,
actions, demands and losses whatsoever arising out of or in connection with any
error, omission, inaccuracy or other deficiency of such Accounts and Records or
in the failure of the Fund to provide any portion of such or to provide any
information needed by the Company to knowledgeably perform its functions.
Section 2. To the extent it receives the necessary information from the
Fund or its agents by Written or Oral Instructions, the Company shall maintain
and keep current the following Accounts and Records relating to the business of
the Fund, in such form as may be mutually agreed to between the Fund and the
Company:
(a) Cash Receipts Journal
(b) Cash Disbursements Journal
(c) Dividends Paid Record
(d) Purchase and Sales Journals - Portfolio Securities
(e) Subscription and Redemption Journals
(f) Security Ledgers
(g) Broker Ledger
(h) General Ledger
(i) Daily Expense Accruals
(j) Daily Interest Accruals
(k) Securities and Monies borrowed or loaned and
collateral therefore
(l) Daily Trial Balance
(m) Investment Income Journal
Unless necessary information to perform the above functions is furnished by
Written or Oral Instructions to the Company daily prior to 4:00 PM Eastern time
(the close of trading on the New York Stock Exchange) and the calculation of the
Fund's net asset value, as provided below, the Company
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shall incur no liability, and the Fund shall indemnify and hold harmless the
Company from and against any liability arising from any failure to provide
complete information or from any discrepancy between the information received by
the Company and used in such calculations and any subsequent information
received from the Fund or any of its designated Agents.
Section 3. The Company shall perform the ministerial calculations necessary
to calculate the Fund's net asset value daily, in accordance with the Fund's
current prospectus and utilizing the information described in this Section.
Portfolio items for which market quotations are available by the Company's use
of an automated financial information ("Service") shall be based on the closing
prices of such Service except where the Fund has given or caused to be given
specific Written or Oral Instructions to utilize a different value. All of the
portfolio securities shall be given such values as the Fund provides by Written
or Oral Instructions including all foreign securities, restricted securities and
other securities requiring valuation not readily ascertainable solely by such
Service. The Company shall have no responsibility or liability for the accuracy
of prices quoted by such Services; for the accuracy of the information supplied
by the Fund; or for any loss, liability, damage, or cost arising out of any
inaccuracy of such data. The Company shall have no responsibility or duty to
include information or valuations to be provided by the Fund in any computation
unless and until it is timely supplied to the Company in usable form. Unless the
necessary information to calculate the net asset value daily is furnished by
Written or Oral Instructions from the Fund, the Company shall incur no
liability, and the Fund shall indemnify and hold harmless the Company from and
against any liability arising from any failure to provide complete information
or from any discrepancy between the information received by the Company and used
in such calculation and any subsequent information received from the Fund or any
of its designated agents.
Section 4. For all purposes under this Agreement, the Company is authorized
to act upon receipt of the first of any Written or Oral Instruction it receives
from the Fund or its agents on behalf of the Fund. In cases where the first
instruction is an Oral Instruction that is not in the form of a
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document or written record, a confirmatory Written Instruction or Oral
Instruction in the form of a document or written record shall be delivered, and
in cases where the Company receives an Instruction, whether Written or Oral, to
enter a portfolio transaction on the records, the Fund shall cause the Broker-
Dealer to send a written confirmation to the Company. The Company shall be
entitled to rely-on the first Instruction received, and for any act or omission
undertaken in compliance therewith shall be free of liability and fully
indemnified and held harmless by the Fund, provided however, that in the event a
Written or Oral Instruction received by the Company is countermanded by a timely
later Written or Oral Instruction received by the Company prior to acting upon
such countermanded Instruction, the Company shall act upon such later Written or
Oral Instruction. The sole obligation of the Company with respect to any follow-
up or confirmatory Written Instruction, Oral Instruction in documentary or
written form, or Broker-Dealer written confirmation shall be to make reasonable
efforts to detect any discrepancy between the original Instruction and such
confirmation and to report such discrepancy to the Fund. The Fund shall be
responsible, at the Fund's expense, for taking any action, including any
reprocessing, necessary to correct any discrepancy or error, and to the extent
such action requires the Company to act the Fund shall give the Company specific
Written Instruction as to the action required.
Section 5. At the end of each month, the Fund shall cause the Custodian to
forward to the Company a monthly statement of cash and portfolio transactions
and a list of assets, which will be reconciled with the Company's Accounts and
Records maintained for the Fund. The Company will report any discrepancies to
the Custodian, and report any unreconciled items to the Fund.
Section 6. The Company shall promptly supply daily and periodic reports of
the Fund as requested by the Fund and agreed upon by the Company.
Section 7. The Fund shall and shall require each of its agents (including
without limitation its Transfer Agent and its Custodian) to provide the company
as of the close of each Business Day, or on such other schedule as the Fund
determines is necessary, with Written or Oral Instructions (to be delivered to
the Company by 10:00 AM the next following business day)
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containing all data and information necessary for the Company to maintain the
Fund's Accounts and Records and the Company may conclusively assume that the
information it receives by Written or Oral Instructions is complete and
accurate. The Fund is responsible to provide or cause to be provided to the
Company reports of share purchases, redemptions, and total shares outstanding on
the next business day after each net asset valuation.
Section 8. The Accounts and Records, in the agreed upon format, maintained
by the Company shall be the property of the Fund, and shall be made available to
the Fund promptly upon request and shall be maintained for the periods
prescribed in Rule 31(a)-2 of the Investment Company Act of 1940, as amended.
The Company shall assist the Fund's independent auditors, or upon approval of
the Fund, or upon demand, any regulatory body, in any requested review of the
Fund's Accounts and Records but shall be reimbursed for all expenses and
employee time invested in any such review of the Fund's Accounts and Records
outside of routine and normal periodic reviews. ~Jpon receipt from the Fund of
the necessary information, the Company shall supply the necessary data for the
Fund or accountant's completion of any necessary tax returns, questionnaires,
periodic reports to shareholders and such other reports and information requests
as the Fund and the Company shall agree upon from time to time.
Section 9. The Company and the Fund may from time to time adopt such
procedures as they agree upon in writing, and the Company may conclusively
assume that any procedure approved by the Fund or directed by the Fund, does not
conflict with or violate any requirements of its Prospectus, Articles of
Incorporation, By-Laws, or any rule or regulation of any regulatory body or
governmental agency. The Fund shall be responsible for notifying the Companv of
any changes in regulations or rules which might necessitate changes in the
Company's procedures, and for working out with the Company such changes.
Section 10. (a) The Company, its directors, officers, emDlovees,
shareholders and agents shall not be liable for any error of judgment or mistake
of law or for any loss suffered by the Fund in connection with the performance
of this Agreement, except a loss resulting from willful
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misfeasance, bad faith or gross negligence on the part of the Company in the
performance of its obligations and duties under this Agreement.
(b) Any person, even though also a director, officer, employee,
shareholder or agent of the Company, who may be or become an officer, trustee,
employee or agent of the Fund, shall be deemed, when rendering services to the
Fund or acting on any business of the Fund (other than services or business in
connection with the Company's duties hereunder), to be rendering such services
to or acting solely for the Fund and not as a director, officer, employee,
shareholder or agent of, or one under the control or direction of the Company
even though paid by it.
(c) Nothwithstanding any other provision of this Agreement, the Fund
shall indemnify and hold harmless the Company, its directors, officers,
employees, shareholders and agents from and against any and all claims, demands,
expenses and liabilities (whether with or without basis in fact or law) of any
and every nature which the Company may sustain or incur or which may be asserted
against the Company by any person by reason of, or as a result of: (i) any
action taken or omitted to be taken by the Company in good faith hereunder; (ii)
in reliance upon any certificate, instrument, order or stock certificate or
other document reasonably believed by it to be genuine and to be signed,
countersigned or executed by any duly authorized person, upon the Oral
Instructions or Written Instructions of an authorized person of the Fund or upon
the opinion of legal counsel for the Fund or its own counsel; or (iii) any
action taken or omitted to be taken by the Company in connection with its
appointment in good faith in reliance upon any law, act, regulation or
interpretation of the same even though the same may thereafter have been
altered, changed, amended or repealed. However, indemnification under this
subparagraph shall not apply to actions or omissions of the Company or its
directors, officers, employees, shareholders or agents in cases of its or their
own negligence, willful misconduct, bad faith, or reckless disregard of its or
their own duties hereunder.
(d) The Company shall give written notice to the Fund within twenty
(20) business days of receipt by the Company of a written
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assertion or claim of any threatened or pending legal proceeding which may be
subject to this indemnification. However, the failure to notify the Fund of such
written assertion or claim shall not operate in any manner whatsoever to relieve
the Fund of any liability arising from this Section or otherwise.
(e) For any legal proceeding giving rise to this indemnification, the
Fund shall be entitled to defend or prosecute any claim in the name of the
Company at it own expense and through counsel of its own choosing if it gives
written notice to the Company within twenty (20) business days of receiving
notice of such claim. Nothwithstanding the foregoing, the Company may
participate in the litigation at its own expense through counsel of its own
choosing. If the Fund does choose to defend or prosecute such claim, then the
parties shall cooperate in the defense or prosecution thereof and shall furnish
such records and other information as are reasonably necessary.
(f) The Fund shall not settle any claim without the Company's express
written consent which shall not be unreasonably withheld. The Company shall not
settle any claim without the Fund's express written consent which shall not be
unreasonably withheld.
Section 11. All financial data provided to, processed by, and reported by
the Company under this Agreement shall be stated in United States dollars or
currency. The Company shall have no obligation to convert to, equate, or deal in
foreign currencies or values, and expressly assumes no liability for any
currency conversion or equation computations relating to the affairs of the
Fund.
Section 12. The Fund agrees to pay Company, within 15 days from the
execution date of this Agreement, an amount equal to reasonable costs and
expenses (including counsel fees), incurred by the Company in connection with
the transfer of the services subject to this Agreement to the Company from the
Fund.
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Section 13. The Fund agrees to pay company compensation for its services
and to reimburse it for expenses, as set forth in Schedule A attached hereto, or
as shall be set forth in amendments to such Schedule approved bv the Fund and
Company. The Fund authorizes the Company to debit the Fund's custody account for
invoices which are rendered for the services performed for the accounting agent
function. The invoices for the service will-be sent to the Fund after the
debiting with the indication that payment has been made.
Section 14. Nothing contained in this Agreement is intended to or shall
require the Company, in any capacity hereunder, to perform any functions or
duties on any holiday, day of special observance or any other day on which the
Custodian or the New York Stock Exchange is closed. Functions or duties normally
scheduled to be performed on such days shall be performed on, and as of, the
next succeeding business day on which both the New York Stock Exchange and the
Custodian are open. Not withstanding the foregoing, the Company shall compute
the net asset value of the Fund on each day required pursuant to Rule 22c-1
promulgated under the Investment Act of 1940.
Section 15. This Agreement may be executed in two or more counterparts,
each of which, when so executed shall be deemed to be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 16. The terms defined in Section 1 of the Shareholder Services
Agreement shall have the same meanings wherever used in this Agreement.
The Fund shall file with the Company a certified copy of each resolution of its
Board of Directors authorizing execution of Written Instructions or the
transmittal of Oral Instructions as provided in Section 1 of the Shareholder
Services Agreement.
Section 17. The Fund or the Company may give written notice to the other of
the termination of this Agreement, such termination to take effect at the time
specified in the notice not less than 1?0 days after the giving of the notice.
Upon the effective termination date, subject to payment to the Company by the
Fund of all amounts due to the Company as of said date, the
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Company shall make available to the Fund or its designated recordkeeping
successor, ale of the records of the Fund maintained under this Agreement then
in the Company's possession.
Section 18. Any notice or other communication required by or permitted to
be given in connection with this Agreement shall be in writing, and shall be
delivered in person or sent by first class mail, Hostage Drepaid to the
respective parties as follows:
If to the Fund:
Xxxxxxxx Growth Fund
Plymouth Meeting Executive Campus
000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
Attention Xxxxx X. Xxxxxxxx, Chairman
If to the Company:
Fund/Plan Services, Inc.
P.0. Xxx 000
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, President
Section 19. This Agreement may be amended from time to time by supplemental
agreement executed by the Fund and the Company.
Section 20. This Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
duly authorized officers and their corporate seals hereunto duly affixed and
attested, as of the day and year first above written.
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XXXXXXXX XXXXXX XXXX
Xx /s/ Xxxxx X. Xxxxxxxx
Title: Chairman
(SEAL)
Attest: /s/ Xxxxxx X. Xxxxxx
FUND/PLAN SERVICES, Inc.
By /s/ Xxxx Xxxxxxxxx
Title: President
(SEAL)
Attest /s/ X.X. Xxxxxx
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