Exhibit(k)(3)
RECEIVED
FEB 08 1999
BDB
ACCOUNTING SERVICES AGREEMENT
-----------------------------
THIS AGREEMENT, dated as of the 16th day of February, 1994, is made by
and between XXXXXX XXXXXXXXX, INC., an Ohio corporation (the "Fund") and MUTUAL
+ SHAREHOLDER SERVICES CORPORATION ("MSSC"), an Ohio corporation.
WITNESSETH THAT:
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WHEREAS, the Fund desires to appoint MSSC 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, MSSC 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 MSSC
as set forth below.
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 MSSC such of the
Accounts and Records previously maintained by or for it as are necessary for
MSSC to perform its functions under this Agreement. The Fund authorizes MSSC to
rely on such Accounts and Records turned over to it and hereby indemnifies and
holds MSSC, its successors and assigns, harmless of and from any and all
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 MSSC 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, MSSC 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 MSSC:
(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 Xxxxxx;
(i) Daily Expense Accruals;
(j) Daily Interest Accruals;
(k) Securities and Monies Borrowed or Loaned and Collateral
therefor;
(l) Daily Trial Balance; and
(m) Investment Income Journal;
Unless necessary information to perform the above functions and the calculation
of the Fund's net asset value, as provided below, is furnished by Written or
Oral Instructions to MSSC prior to 4:00 P.M. Eastern time (the close of trading
on the New York Stock Exchange) on the last business day of each week, MSSC
shall incur no liability, and the Fund shall indemnify and hold harmless MSSC
from and against any liability arising from any failure to provide complete
information or from any discrepancy between the information received by MSSC and
used in such calculations and any subsequent information received from the Fund
or any of its designated agents.
Section 3. MSSC shall perform the ministerial calculations necessary to
calculate the Fund's net asset value weekly, in accordance with the Fund's
current prospectus, as amended from time to time and utilizing the information
described in this Section. MSSC may, in its discretion, use an automated
financial information service to obtain market quotations. In such event,
portfolio items for which market quotations are available by MSSC's use of such
service shall be based on the closing prices quoted on such service, except
where the Fund has given or caused to be given specific Written or Oral
Instructions to utilize a different value. All other 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 use of an automated
financial information service. MSSC shall have no responsibility or liability
for the accuracy of prices quoted by the automated financial information
service; 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. MSSC
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 MSSC in usable form. Unless the necessary information to calculate the net
asset value weekly is furnished by Written or Oral Instructions from the Fund,
MSSC shall incur no liability, and the Fund shall indemnify and hold harmless
MSSC from and against any liability arising from any failure to provide
complete information or from any
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discrepancy between the information received by MSSC 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, MSSC 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 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 MSSC
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 MSSC. MSSC 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 MSSC is countermanded by a timely later Written or Oral Instruction
received by MSSC prior to acting upon such countermanded Instruction, MSSC shall
act upon such later Written or Oral Instruction. The sole obligation of MSSC
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 MSSC to act, the
Fund shall give MSSC specific Written Instruction as to the action required.
Section 5. At the end of each month, the Fund shall cause its Custodian
to forward to MSSC a monthly statement of cash and portfolio transactions, which
will be reconciled with MSSC's Accounts and Records maintained for the Fund.
MSSC will report any discrepancies to the Custodian, and report any unreconciled
items to the Fund.
Section 6. MSSC shall promptly supply daily and periodic reports of the
Fund as requested by the Fund and agreed upon by MSSC.
Section 7. The Fund shall and shall require each of its agents
(including without limitation its Transfer Agent and its Custodian) to provide
MSSC 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
MSSC by 10:00 A.M. the next following business day) containing all data and
information necessary for MSSC to maintain the Fund's Accounts and Records, and
MSSC 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 MSSC 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 MSSC 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. MSSC shall assist the Fund's independent auditors, or upon approval of
the Fund, or upon demand, any regulatory body, in any
3
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 period reviews. Upon receipt
from the Fund of the necessary information, MSSC shall supply the necessary data
for the Fund for accountant's completion of any necessary tax returns,
questionnaires, periodic reports to shareholders and such other reports and
information requests as the Fund and MSSC shall agree upon from time to time.
Section 9. MSSC and the Fund may from time to time adopt such
procedures as they agree upon in writing, and MSSC 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,
Code of Regulations, or any rule or regulation of any regulatory body or
governmental agency. The Fund shall be responsible for notifying MSSC of any
changes in regulations or rules which might necessitate changes in MSSC's
procedures, and for working out with MSSC such changes.
Section 10. MSSC, in performing under the terms and conditions of this
Agreement, shall incur no liability for its status hereunder or for any actions
taken or omitted in good faith reliance upon any authorized Written or Oral
Instruction, any certified copy of any resolution of the Board of Trustees of
the Fund or any other document reasonably believed by MSSC to be genuine and to
have been executed or signed by the proper person or persons, and the Fund
hereby agrees to indemnify and hold MSSC harmless from any and all loss,
liability and expense, including any legal expenses, arising out of MSSC's
performance, or status, or any act or omission of MSSC, under this Agreement.
Without limitation of the foregoing:
(a) MSSC may rely upon the advice of the Fund or of counsel,
who may be counsel for the Fund and/or counsel for MSSC, and upon
statements of accountants, brokers and other persons reasonably
believed by it in good faith to be expert in the matters upon which
they are consulted, and, for any actions taken in good faith upon such
statements, MSSC shall not be liable to anyone.
(b) MSSC may act upon any Oral Instruction which it receives
and which it believes in good faith was transmitted by the person or
persons authorized by the Board of Trustees of the Fund to give such
Oral Instruction. MSSC shall have no duty or obligation to make any
inquiry or effort of certification of such Oral Instruction.
(c) MSSC shall not be liable for any action taken in good
faith reliance upon any Written Instruction or certified copy of any
resolution of the Board of Trustees of the Fund, and MSSC may rely upon
the genuineness of any such document or copy thereof believed in good
faith by MSSC to have been validly executed.
(d) MSSC may rely and shall be protected in acting upon any
signature, instruction, request, letter of transmittal, certificate,
opinion of counsel, statement, instrument, report, notice, consent,
order or other paper or document believed by it
4
to be genuine and to have been signed or presented by the Fund or other
proper party or parties.
Section 11. All financial data provided to, processed by, and reported
by MSSC under this Agreement shall be stated in United States dollars or
currency. MSSC 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. MSSC's compensation shall be as set forth on Schedule A
hereto attached, or as shall be set forth in amendments to such Schedule
approved in writing by the Fund and MSSC.
Section 13. Nothing contained in this Agreement is intended to or shall
require MSSC, in any capacity hereunder, to perform any functions or duties on
any holiday, day of special observance or any other day on which 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 the New York Stock Exchange is open.
Section 14. This Agreement may be executed in two or more counterparts,
each of which, when so executed shall be deemed an original, but such
counterparts shall together constitute but one and the same instrument.
Section 15. The following terms shall have the following meanings for
purposes of this Agreement:
ORAL INSTRUCTIONS: The term Oral Instructions shall mean an
authorization, instruction, approval, item or set of data, or
information of any kind transmitted to MSSC in person or by telephone,
telegram, telecopy or other mechanical or documentary means lacking
original signature, by a person or persons believed in good faith by
MSSC to be a person or persons authorized by a resolution of the Board
of Directors of the Fund to give Oral Instructions on behalf of the
Fund.
WRITTEN INSTRUCTIONS: The term Written Instructions shall mean an
authorization, instruction, approval, item or set of data, or
information of any kind transmitted to MSSC in original writing
containing original signatures or a copy of such document transmitted by
telecopy including transmission of such signature, believed in good
faith by MSSC to be the signature of a person authorized by a resolution
of the Board of Directors of the Fund to given Written Instructions on
behalf of the Fund.
Section 16. The Fund or MSSC 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 sixty (60) days after the giving of the
notice. Upon the effective termination date, subject to payment to MSSC by the
Fund of all amounts due to MSSC as of said date, MSSC shall make available to
the Fund or its designated record keeping
5
successor, all of the records of the Fund maintained under this Agreement then
in MSSC's possession.
Section 17. 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, postage prepaid, to the
respective parties as follows:
If to the Fund: Xxxxxx XxxXxxxxx, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Vice President
If to MSSC: Mutual + Shareholder Services Corporation
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Section 18. This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided, however,
that this Agreement shall not be assignable by the Fund without the written
consent of MSSC, or by MSSC without the written consent of the Fund, authorized
or approved by a resolution of its Board of Directors.
Section 19. This Agreement may be amended from time to time by
supplemental agreement executed by the Fund and MSSC.
Section 20. This Agreement shall be governed by the laws of the State of
Ohio.
IN WITNESS WHEREOF, the parties hereto 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.
XXXXXX FUNSHARES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Vice President
MUTUAL + SHAREHOLDER SERVICES
CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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EXHIBIT "A"
MUTUAL + SHAREHOLDER SERVICES CORP
PROCESSING FEE SCHEDULE
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Account Annual Effective Annual Monthly
Value Fee Rate Fee Fee
Rate
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$1,000,000 0.250% 0.250% 2,500 208
1,250,000 0.250% 0.250% 3,125 260
1,500,000 0.250% 0.250% 3,750 313
1,750,000 0.250% 0.250% 4,375 365
2,000,000 0.250% 0.250% 5,000 417
2,250,000 0.250% 0.250% 5,625 469
2,500,000 0.250% 0.250% 6,250 521
2,750,000 0.200% 0.245% 6,750 583
3,000,000 0.200% 0.242% 7,250 604
3,250,000 0.200% 0.238% 7,750 648
3,500,000 0.200% 0.236% 8,250 688
3,750,000 0.200% 0.233% 8,750 729
4,000,000 0.200% 0.231% 9,250 771
4,250,000 0.200% 0.229% 9,750 813
4,500,000 0.200% 0.228% 10,250 854
4,750,000 0.200% 0.226% 10,750 896
5,000,000 0.200% 0.225% 11,250 938
5,250,000 0.150% 0.221% 11,625 969
5,500,000 0.150% 0.218% 12,000 1,000
5,750,000 0.150% 0.215% 12,375 1,031
6,000,000 0.150% 0.213% 12,750 1,063
6,250,000 0.150% 0.210% 13,125 1,094
6,500,000 0.150% 0.208% 13,500 1,125
6,750,000 0.150% 0.206% 13,875 1,156
7,000,000 0.150% 0.204% 14,250 1,188
7,250,000 0.150% 0.202% 14,625 1,219
7,500,000 0.150% 0.200% 15,000 1,250
7,750,000 0.100% 0.197% 15,250 1,271
8,000,000 0.100% 0.194% 15,500 1,292
8,250,000 0.100% 0.191% 15,750 1,313
8,500,000 0.100% 0.188% 16,000 1,333
8,750,000 0.100% 0.186% 16,250 1,354
9,000,000 0.100% 0.183% 16,500 1,375
*9,250,000 0.100% 0.181% 16,750 1,396
9,500,000 0,100% 0.179% 17,000 1,417
9,750,000 0.100% 0.177% 17,250 1,438
10,000,000 0.100% 0.175% 17,500 1,458
10,250,000 0.100% 0.173% 17,750 1,479
10,500,000 0.100% 0.171% 18,000 1,500
10,750,000 0.100% 0.170% 18,250 1,521
11,000,000 0.100% 0.168% 18,500 1,542
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Account Annual Effective Annual Monthly
Value Fee Rate Fee Fee
Rate
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$11,250,000 0.100% 0.167% 18,750 1,583
11,500,000 0.100% 0.165% 19,000 1,583
11,750,000 0.100% 0.164% 19,250 1,604
12,000,000 0.100% 0.163% 19,500 1,625
12,250,000 0.100% 0.161% 19,750 1,646
12,500,000 0.100% 0.160% 20,000 1,667
12,750,000 0.100% 0.159% 20,250 1,688
13,000,000 0.100% 0.158% 20,500 1,708
13,250,000 0.100% 0.157% 20,750 1,729
13,500,000 0.100% 0.158% 21,000 1,750
13,750,000 0.100% 0.156% 21,250 1,771
14,000,000 0.100% 0.154% 21,500 1,792
14,250,000 0.100% 0.153% 21,750 1,813
14,500,000 0.100% 0.152% 22,000 1,833
14,750,000 0.100% 0.151% 22,250 1,854
15,000,000 0.100% 0.150% 22,500 1,875
15,250,000 0.100% 0.149% 22,750 1,896
15,500,000 0.100% 0.148% 23,000 1,917
15,750,000 0,100% 0.148% 23,250 1,938
16,000,000 0,100% 0.147% 23,500 1,958
16,250,000 0.100% 0.146% 23,750 1,979
16,500,000 0.100% 0.145% 24,000 2,000
16,750,000 0.100% 0.145% 24,250 2,021
17,000,000 0.100% 0.144% 24,500 2,042
17,250,000 0.100% 0.143% 24,750 2,063
17,500,000 0,100% 0.143% 25,000 2,083
17,750,000 0.100% 0.142% 25,250 2,104
18,000,000 0.100% 0.142% 25,500 2,125
18,250,000 0.100% 0.141% 25,750 2,146
18,500,000 0.100% 0.141% 26,000 2,167
18,750,000 0.100% 0.140% 26,250 2,188
19,000,000 0.100% 0.139% 26,500 2,208
19,250,000 0.100% 0.139% 26,750 2,229
19,500,000 0.100% 0.138% 27,000 2,250
19,750,000 0.100% 0.138% 27,250 2,271
20,000,000 0.100% 0.138% 27,500 2,292
