AMENDED AND RESTATED
ACCOUNTING AND BOOKKEEPING AGREEMENT
This Agreement is made this 3rd day of August, 1999, by and
between Xxxxx Xxx Floating Rate Limited Liability Company, a
Massachusetts business trust, (hereinafter referred to as the
"Fund") and Xxxxx Xxx & Farnham Incorporated ("Xxxxx Xxx"), a
Delaware corporation.
1. Appointment. The Fund hereby appoints Xxxxx Xxx to act as its
agent to perform the services described herein with respect to the
Fund. Xxxxx Xxx hereby accepts appointment as the Fund's agent
and agrees to perform the services described herein.
2. Accounting.
(a) Pricing. Xxxxx Xxx shall value all securities and other
assets of the Fund, and compute the net asset value per
share of the Fund, 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 the Fund, and pursuant to such other
written procedures or instructions furnished to Xxxxx Xxx
by the Fund. To the extent procedures or instructions
used to value securities or other assets of the Fund under
this Agreement are at any time inconsistent with any
applicable law or regulation, the Fund shall provide Xxxxx
Xxx with written instructions for valuing such securities
or assets in a manner which the Fund represents to be
consistent with applicable law and regulation.
(b) Net Income. Xxxxx Xxx shall calculate with such frequency
as the Fund shall direct, the net income of the Fund for
dividend purposes and on a per share basis. Such
calculation shall be at such times and dates and in such
manner as the Fund 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 Fund is or will be actually
paid, but will accrue such dividend and interest unless
otherwise instructed by the Fund.
(c) Capital Gains and Losses. Xxxxx Xxx shall calculate gains
or losses of the Fund from the sale or other disposition
of assets as the Fund shall direct.
(d) Yields. At the request of the Fund, Xxxxx Xxx shall
compute yield for the Fund for such periods and using such
formula as shall be instructed by the Fund.
(e) Communication of Information. Xxxxx Xxx shall provide the
Fund, the Fund's transfer agent and such other parties as
directed by the Fund with the net asset value per share,
the net income per share and yields for the Fund at such
time and in such manner and format and with such frequency
as the parties mutually agree.
(f) Information Furnished by the Fund. The Fund 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 the Fund.
The Fund 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 Fund if the same are not available
to Xxxxx Xxx from a pricing or similar service designated
by the Fund 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 Fund.
3. Recordkeeping.
(a) Xxxxx Xxx shall, as agent for the Fund, maintain and keep
current and preserve the general ledger and other
accounts, books, and financial records of the Fund
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 Fund is required to maintain
and preserve in accordance with the Rules shall be and
remain the property of the Fund and shall be surrendered
to the Fund 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 the Fund for
reasonable audit, use and inspection by the Fund, its
agents and any regulatory agency having authority over the
Fund.
4. Instructions, Opinion of Counsel, and Signatures.
(a) At any time Xxxxx Xxx may apply to a duly authorized agent
of the Fund for instructions regarding the Fund, and may
consult counsel for the Fund 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 Fund 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 Fund, until receipt of written
notice thereof from the Fund.
(b) Xxxxx Xxx may receive and accept a certified copy of a
vote of the Board of Trustees of the Fund 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 Fund 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 Fund shall reimburse Xxxxx Xxx for any and
all out-of-pocket expenses and charges in performing services
under this Agreement. For the services provided under this
Agreement, the Fund shall pay Xxxxx Xxx an annual fee, calculated
and paid monthly, equal to $25,000 plus .0025 percent per annum of
the average daily net assets in excess of $50 million. Such fee
shall be paid within thirty days after receipt of monthly invoice.
Xxxxx Xxx shall invoice the Fund as soon as practicable after the
end of each calendar month, and the Fund shall promptly pay Xxxxx
Xxx the invoiced amount.
6. Confidentiality of Records. Xxxxx Xxx agrees not to disclose
any information received from the Fund 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 Fund all records in the possession and control of
Xxxxx Xxx related to the Fund'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 the Fund.
7. Liability and Indemnification.
(a) Xxxxx Xxx shall not be liable to the Fund for any action
taken or thing done by it or its employees or agents on
behalf of the Fund 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 Fund 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 Fund, or as a result of acting
upon instructions believed by it to have been executed by
a duly authorized agent of the Fund or as a result of
acting upon information provided by the Fund in form and
under policies agreed to by Xxxxx Xxx and the Fund,
provided that: (i) 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 (ii) Xxxxx Xxx shall give
the Fund 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 Fund from
and against any and all claims, demands, expenses and
liabilities which the Fund 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 the Fund or its other agents
or contractors and (ii) the Fund 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
the Fund.
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
Fund 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 Fund 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 the Fund by written notice to Xxxxx
Xxx, Xxxxx Xxx shall promptly upon such termination and at the
expense of the Fund, 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 the
Fund, 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 Fund.
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 Fund
and Xxxxx Xxx is Xxx Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Secretary.
14. Non-Liability of Trustees and Shareholders. Any obligation of
the Fund hereunder shall be binding only upon the assets of the
Fund, as provided in the Agreement and Declaration of Fund of the
Fund, and shall not be binding upon any trustee, officer,
employee, agent or shareholder of the Fund. Neither the
authorization of any action by the Trustees or the shareholders of
the Fund, nor the execution of this Agreement on behalf of the
Fund 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.
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 FLOATING RATE LIMITED
LIABILITY COMPANY
Attest: By: XXXXXX X. XXXXX
Xxxxxx W. Xxxxx
XXXXXXXXX X. XXXXXXX President
Xxxxxxxxx X. Xxxxxxx
Assistant Secretary
XXXXX XXX & XXXXXXX INCORPORATED
By: XXXXXX X. XXXXX
Attest: Xxxxxx X. Xxxxx
President, Mutual Funds
XXXXXXXXX X. XXXXXXX Division
Xxxxxxxxx X. Xxxxxxx
Assistant Secretary
