1
Exhibit 9(b)
ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 19th day of February,
1998, by and between Maxus Income Fund, an Ohio business trust (the "Fund"), and
Maxus Information Systems, Inc., an Ohio corporation ("MIS").
RECITALS:
A. The Fund is a diversified, open-end management investment company
registered with the United States Securities and Exchange Commission under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
B. MIS is a corporation experienced in providing accounting services to
mutual funds and possesses facilities sufficient to provide such services; and
C. The Fund desires to avail itself of the experience, assistance and
facilities of MIS and to have MIS perform the Fund certain services appropriate
to the operations of the Fund, and MIS is willing to furnish such services in
accordance with the terms hereinafter set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereby agree as follows:
1. DUTIES OF MIS.
MIS will provide the Fund with the necessary office space,
communication facilities and personnel to perform the following services for the
Fund:
(a) Timely calculate and transmit to NASDAQ the daily net
asset value of each class of shares of each portfolio of the Fund, and
communicate such value to the Fund and its transfer agent;
(b) Maintain and keep current all books and records of the
Fund as required by Rule 31a-1 under the 1940 Act, as such rule or any
successor rule may be amended from time to time ("Rule 31a-1"), that
are applicable to the fulfillment of MIS's duties hereunder, as well as
any other documents necessary or advisable for compliance with
applicable
2
regulations as may be mutually agreed to between the Fund and MIS.
Without limiting the generality of the foregoing, MIS will prepare and
maintain the following records upon receipt of information in proper
form from the Fund or its authorized agents:
- Cash receipts journal
- Cash disbursements journal
- Dividend record
- Purchase and sales - portfolio securities
journals
- Subscription and redemption journals
- Security ledgers
- Broker ledger
- General ledger
- Daily expense accruals
- Daily income accruals
- Securities and monies borrowed or loaned and
collateral therefore
- Foreign currency journals
- Trial balances
(c) Provide the Fund and its investment adviser with daily
portfolio valuation, net asset value calculation and other standard
operational reports as requested from time to time.
(d) Provide all raw data available from its fund accounting
system for the preparation by the Fund or its investment advisor of the
following:
1. Semi-annual financial statements;
2. Semi-annual form N-SAR;
3. Annual tax returns;
4. Financial data necessary to update form
N-1A;
5. Annual proxy statement.
(e) Provide facilities to accommodate annual audit and any
audits or examinations conducted by the Securities and Exchange
Commission or any other governmental or quasi-governmental entities
with jurisdiction.
MIS shall for all purposes herein be deemed to be an independent contractor and
shall, unless otherwise expressly provided or authorized, have no authority to
act for or represent the Fund in any way or otherwise be deemed an agent of the
Fund.
2. FEES AND EXPENSES.
(a) In consideration of the services to be performed by MIS
pursuant to this Agreement, the Fund agrees to pay MIS the fees set
forth in the fee schedule attached hereto as Exhibit A.
2
3
(b) In addition to the fees paid under paragraph (a) above,
the Fund agrees to reimburse MIS for out-of-pocket expenses or advances
incurred by MIS in connection with the performance of its obligations
under this Agreement. In addition, any other expenses incurred by MIS
at the request or with the consent of the Fund will be reimbursed by
the Fund.
(c) The Fund agrees to pay all fees and reimburseable expenses
within five days following the receipt of the respective billing
notice.
3. LIMITATION OF LIABILITY OF MIS.
(a) MIS shall be held to the exercise of reasonable care in
carrying out the provisions of the Agreement, but shall not be liable
to the Fund for any action taken or omitted by it in good faith without
gross negligence, bad faith, willful misconduct or reckless disregard
of its duties hereunder. It shall be entitled to rely upon and may act
upon the accounting records and reports generated by the Fund, advice
of the Fund, or of counsel for the Fund and upon statements of the
Fund's independent accountants, and shall not be liable for any action
reasonably taken or omitted pursuant to such records and reports or
advice, provided that such action is not, to the knowledge of MIS, in
violation of applicable federal or state laws or regulations, and
provided further that such action is taken without gross negligence,
bad faith, willful misconduct or reckless disregard of its duties.
(b) Nothing herein contained shall be construed to protect MIS
against any liability to the Fund to which MIS shall otherwise be
subject by reason of willful misfeasance, bad faith, gross negligence
in the performance of its duties to the Fund, reckless disregard of its
obligations and duties under this Agreement or the willful violation of
any applicable law.
(c) Except as may otherwise be provided by applicable law,
neither MIS nor its stockholders, officers, directors, employees or
agents shall be subject to, and the Fund shall indemnify and hold such
persons harmless from and against, any liability for and any damages,
expenses or losses incurred by reason of the inaccuracy of information
furnished to MIS by the Fund or its authorized agents.
4. REPORTS.
(a) The Fund shall provide to MIS on a quarterly basis a
report of a duly authorized officer of the Fund representing that all
information furnished to MIS during the preceding quarter was true,
complete and correct in all material respects. MIS shall not be
responsible for the accuracy of any information furnished to it by the
Fund or its authorized agents, and the Fund shall hold MIS harmless in
regard to any liability incurred by reason of the inaccuracy of such
information.
(b) Whenever, in the course of performing its duties under
this Agreement, MIS determines, on the basis of information supplied to
MIS by the Fund or its authorized agents,
3
4
that a violation of applicable law has occurred or that, to its
knowledge, a possible violation of applicable law may have occurred or,
with the passage of time, would occur, MIS shall promptly notify the
Fund and its counsel of such violation.
5. ACTIVITIES OF MIS.
The services of MIS under this Agreement are not to be deemed
exclusive, and MIS shall be free to render similar services to others so long as
its services hereunder are not impaired thereby.
6. ACCOUNTS AND RECORDS.
The accounts and records maintained by MIS shall be the property of the
Fund, and shall be surrendered to the Fund promptly upon request by the Fund in
the form in which such accounts and records have been maintained or preserved.
MIS agrees to maintain a back-up set of accounts and records of the Fund (which
back-up set shall be updated on at least a weekly basis) at a location other
than that where the original accounts and records are stored. MIS shall assist
the Fund's independent auditors, or, upon approval of the Fund, any regulatory
body, in any requested review of the Fund's accounts and records. MIS shall
preserve the accounts and records as they are required to be maintained and
preserved by Rule 31a-1.
7. CONFIDENTIALITY.
MIS agrees that it will, on behalf of itself and its officers and
employees, treat all transactions contemplated by this Agreement, and all other
information germane thereto, as confidential and not to be disclosed to any
person except as may be authorized by the Fund.
8. TERM OF AGREEMENT.
(a) This Agreement shall become effective as of the date hereof and
shall remain in force for a period of three years; provided, however, that each
party to this Agreement have the option to terminate the Agreement, without
penalty, upon 90 days prior written notice.
(b) Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movements of records and material will be borne by
the Fund. Additionally, MIS reserves the right to charge for any other
reasonable expenses associated with such termination.
9. MISCELLANEOUS.
(a) Neither this Agreement nor any rights or obligations hereunder may
be assigned by either party without the written consent of the other party. This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns.
(b) The provisions of this Agreement shall be construed and interpreted
in accordance with the laws of the State of Ohio as at the time in effect and
the applicable provisions of the 1940
4
5
Act. To the extent that the applicable law of the State of Ohio, or any of the
provisions herein, conflict with the applicable provisions of the 1940 Act, the
latter shall control.
(c) This Agreement may be amended by the parties hereto only if such
amendment is in writing and signed by both parties.
(d) This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof whether oral or written.
(e) All notices and other communications hereunder shall be in writing,
shall be deemed to have been given when received or when sent by telex or
facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is given):
To the Fund: To MIS:
Maxus Income Fund Maxus Information Systems, Inc.
The Tower at Erieview, 36th Floor The Tower at Erieview, 36th Floor
0000 Xxxx Xxxxx Xxxxxx 0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
MAXUS INCOME FUND MAXUS INFORMATION
SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxxx,
President Its: President
5
6
EXHIBIT A
FEE SCHEDULE
The following fees will be paid in respect of each portfolio of the Fund:
ANNUAL FEE
AVERAGE PORTFOLIO (payable monthly at
NET ASSETS the end of each month)
First $25 Million in Assets $17,400.00*
Next $25 Million in Assets 8,500.00
Each Additional $25 Million in Assets 4,750.00
*Notwithstanding the foregoing, if the average net asset value of the portfolio
for the month is less than $10,000,000, the portfolio will pay an annual fee
(payable monthly) equal to .174% of average net assets for the month.
