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 INVESTMENT 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 INVESTMENT TRUST
By: XXXXXX X. XXXXX
President
Attest:
XXXXXXXXX X. XXXXXXX
Xxxxxxxxx X. Xxxxxxx
Assistant Secretary
XXXXX XXX & FARNHAM INCORPORATED
By: XXXXXX X. XXXXX
Xxxxxx X. Xxxxx
Attest: President, Mutual Funds Division
XXXXXXXXX X. XXXXXXX
Xxxxxxxxx X. Xxxxxxx
Assistant Secretary
XXXXX XXX INVESTMENT TRUST
ACCOUNTING & BOOKKEEPING AGREEMENT
APPENDIX I
The series of the Trust currently subject to this Agreement are as follows:
Series Effective Date
Xxxxx Xxx Growth & Income Fund August 3, 1999
Xxxxx Xxx International Fund August 3, 1999
Xxxxx Xxx Xxxxx Investor Fund August 3, 1999
Xxxxx Xxx Midcap Growth Fund August 3, 1999
Xxxxx Xxx Large Company Focus Fund August 3, 1999
Xxxxx Xxx Asia Pacific Fund August 3, 1999
Xxxxx Xxx Small Company Growth Fund August 3, 1999
Xxxxx Xxx Growth Investor Fund August 3, 1999
Xxxxx Xxx Balanced Fund August 3, 1999
Xxxxx Xxx Growth Stock Fund August 3, 1999
Xxxxx Xxx Capital Opportunities Fund August 3, 1999
Xxxxx Xxx Disciplined Stock Fund August 3, 1999
Xxxxx Xxx Global Thematic Equity Fund January 2, 2001
Xxxxx Xxx European Thematic Equity Fund January 2, 2001
Dated: January 2, 2001
XXXXX XXX INVESTMENT 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.
