FUND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made on the 15th day of November, 1996 between Xxxxxxx Pathway
Series (the "Fund"), on behalf of Growth Portfolio (hereinafter called the
"Portfolio"), a registered open-end management investment company with its
principal place of business in Boston, Massachusetts and Xxxxxxx Fund Accounting
Corporation, with its principal place of business in Boston, Massachusetts
(hereinafter called "FUND ACCOUNTING").
WHEREAS, the Portfolio has need for certain accounting services which FUND
ACCOUNTING is willing and able to provide;
NOW THEREFORE in consideration of the mutual promises herein made, the Fund and
FUND ACCOUNTING agree as follows:
Section 1. Duties of FUND ACCOUNTING - General
FUND ACCOUNTING is authorized to act under the terms of this Agreement
as the Portfolio's fund accounting agent, and as such FUND ACCOUNTING
shall:
a. Maintain and preserve all accounts, books, financial records and
other documents as are required of the Fund under Section 31 of
the Investment Company Act of 1940 (the "1940 Act") and Rules
31a-1, 31a-2 and 31a-3 thereunder, applicable federal and state
laws and any other law or administrative rules or procedures
which may be applicable to the Fund on behalf of the Portfolio,
other than those accounts, books and financial records required
to be maintained by the Fund's custodian or transfer agent and/or
books and records maintained by all other service providers
necessary for the Fund to conduct its business as a registered
open-end management investment company. All such books and
records shall be the property of the Fund and shall at all times
during regular business hours be open for inspection by, and
shall be surrendered promptly upon request of, duly authorized
officers of the Fund. All such books and records shall at all
times during regular business hours be open for inspection, upon
request of duly authorized officers of the Fund, by employees or
agents of the Fund and employees and agents of the Securities and
Exchange Commission.
b. Record the current day's trading activity and such other proper
bookkeeping entries as are necessary for determining that day's
net asset value and net income.
c. Render statements or copies of records as from time to time are
reasonably requested by the Fund.
d. Facilitate audits of accounts by the Fund's independent public
accountants or by any other auditors employed or engaged by the
Fund or by any regulatory body with jurisdiction over the Fund.
e. Compute the Portfolio's net asset value per share, and, if
applicable, its public offering price and/or its daily dividend
rates and money market yields, in accordance with Section 3 of
the Agreement and notify the Fund and such other persons as the
Fund may reasonably request of the net asset value per share, the
public offering price and/or its daily dividend rates and money
market yields.
Section 2. Calculation of Fees for Other Service Providers
Pursuant to the Special Servicing Agreement dated November 15, 1996,
among the Portfolio, Xxxxxxx Service Corporation, Xxxxxxx, Xxxxxxx &
Xxxxx, Inc., FUND ACCOUNTING, Xxxxxxx Trust Company, Xxxxxxx Investor
Services, Inc. and the various funds in which the Portfolio may invest
(the "Underlying Funds") (the "Special Servicing Agreement"), FUND
ACCOUNTING shall calculate the amount of the Portfolio's fees and
expenses due to the Fund's custodian, underwriter, accounting agent,
transfer and dividend disbursing agent pursuant to agreements in place
between the Fund and each respective service provider, as well as any
other amounts due persons as a result of the Fund's operations under
any other agreement or otherwise ("Expenses"), excluding, however,
non-recurring and extraordinary expenses (such non-recurring and
extraordinary expenses include: the fees and costs of actions, suits
or proceedings and any penalties or damages in connection therewith,
to which the Fund and/or Portfolio may incur directly, or may incur as
a result of its legal obligation to provide indemnification to its
officers, directors and agents; the fees and costs of any governmental
investigation and any fines or penalties in connection therewith; and
any federal, state or local tax, or related interest penalties or
additions to tax, incurred, for example, as a result of the Fund's
failure to distribute all of its earnings, failure to qualify under
subchapter M of the Internal Revenue Code, or failure to timely file
any required tax returns or other filings). FUND ACCOUNTING shall also
calculate the estimated savings to the Underlying Funds as a result of
the Fund's operation ("Savings") and determine the level of excess
savings with respect to each Underlying Fund ("Savings less
Expenses"). FUND ACCOUNTING shall then deliver proper instructions to
each of the Underlying Funds and/or Xxxxxxx, Xxxxxxx & Xxxxx, Inc. as
to the amount of payments to be made to the Fund's service providers
or other persons pursuant to the Special Servicing Agreement.
Section 3. Valuation of Securities
Securities shall be valued in accordance with (a) the Fund's
Registration Statement, as amended or supplemented from time to time
(hereinafter referred to as the "Registration Statement"); (b) the
resolutions of the Board of Trustees of the Fund at the time in force
and applicable, as they may from time to time be delivered to FUND
ACCOUNTING, and (c) Proper Instructions from such officers of the Fund
or other persons as are from time to time authorized by the Board of
Trustees of the Fund to give instructions with respect to computation
and determination of the net asset value. FUND ACCOUNTING may use one
or more external pricing services, including broker-dealers, provided
that an appropriate officer of the Fund shall have approved such use
in advance.
Section 4. Computation of Net Asset Value, Public Offering Price, Daily Dividend
Rates and Yields
FUND ACCOUNTING shall compute the Portfolio's net asset value,
including net income, in a manner consistent with the specific
provisions of the Registration Statement. Such computation shall be
made as of the time or times specified in the Registration Statement.
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FUND ACCOUNTING shall compute the daily dividend rates and money
market yields, if applicable, in accordance with the methodology set
forth in the Registration Statement.
Section 5. FUND ACCOUNTING's Reliance on Instructions and Advice
In maintaining the Portfolio's books of account and making the
necessary computations FUND ACCOUNTING shall be entitled to receive,
and may rely upon, information furnished it by means of Proper
Instructions, including but not limited to:
a. The manner and amount of accrual of expenses to be recorded on
the books of the Portfolio;
b. The source of quotations to be used for such securities as may
not be available through FUND ACCOUNTING's normal pricing
services;
c. The value to be assigned to any asset for which no price
quotations are readily available;
d. If applicable, the manner of computation of the public offering
price and such other computations as may be necessary;
e. Transactions in portfolio securities;
f. Transactions in shares of beneficial interest.
FUND ACCOUNTING shall be entitled to receive, and shall be entitled to
rely upon, as conclusive proof of any fact or matter required to be
ascertained by it hereunder, a certificate, letter or other instrument
signed by an authorized officer of the Fund or any other person
authorized by the Fund's Board of Trustees.
FUND ACCOUNTING shall be entitled to receive and act upon advice of
Counsel (which may be Counsel for the Fund) at the reasonable expense
of the Portfolio and shall be without liability for any action taken
or thing done in good faith in reliance upon such advice.
FUND ACCOUNTING shall be entitled to receive, and may rely upon,
information received from the Transfer Agent.
Section 6. Proper Instructions
"Proper Instructions" as used herein means any certificate, letter or
other instrument or telephone call reasonably believed by FUND
ACCOUNTING to be genuine and to have been properly made or signed by
any authorized officer of the Fund or person certified to FUND
ACCOUNTING as being authorized by the Board of Trustees. The Fund, on
behalf of the Portfolio, shall cause oral instructions to be confirmed
in writing. Proper Instructions may include communications effected
directly between electro-mechanical or electronic devices as from time
to time agreed to by an authorized officer of the Fund and FUND
ACCOUNTING.
The Fund, on behalf of the Portfolio, agrees to furnish to the
appropriate person(s) within FUND ACCOUNTING a copy of the
Registration Statement as in effect from time to time. FUND ACCOUNTING
may conclusively rely on the Fund's most recently delivered
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Registration Statement for all purposes under this Agreement and shall
not be liable to the Portfolio or the Fund in acting in reliance
thereon.
Section 7. Standard of Care and Indemnification
FUND ACCOUNTING shall exercise reasonable care and diligence in the
performance of its duties hereunder. The Fund agrees that FUND
ACCOUNTING shall not be liable under this Agreement for any error of
judgment or mistake of law made in good faith and consistent with the
foregoing standard of care, provided that nothing in this Agreement
shall be deemed to protect or purport to protect FUND ACCOUNTING
against any liability to the Fund, the Portfolio or its shareholders
to which FUND ACCOUNTING would otherwise be subject by reason of
willful misfeasance, bad faith or negligence in the performance of its
duties, or by reason of its reckless disregard of its obligations and
duties hereunder.
The Fund agrees, on behalf of the Portfolio, to indemnify and hold
harmless FUND ACCOUNTING and its employees, agents and nominees from
all taxes, charges, expenses, assessments, claims and liabilities
(including reasonable attorneys' fees) incurred or assessed against
them in connection with the performance of this Agreement, except such
as may arise from their own negligent action, negligent failure to act
or willful misconduct. The foregoing notwithstanding, FUND ACCOUNTING
will in no event be liable for any loss resulting from the acts,
omissions, lack of financial responsibility, or failure to perform the
obligations of any person or organization designated by the Fund to be
the authorized agent of the Portfolio as a party to any transactions.
FUND ACCOUNTING's responsibility for damage or loss with respect to
the Portfolio's records arising from fire, flood, Acts of God,
military power, war, insurrection or nuclear fission, fusion or
radioactivity shall be limited to the use of FUND ACCOUNTING's best
efforts to recover the Portfolio's records determined to be lost,
missing or destroyed.
Section 8. Compensation and FUND ACCOUNTING Expenses
FUND ACCOUNTING shall be paid as compensation for its services
pursuant to this Agreement such compensation as may from time to time
be agreed upon in writing by the two parties. FUND ACCOUNTING shall be
entitled to recover its reasonable telephone, courier or delivery
service, and all other reasonable out-of-pocket, expenses as incurred,
including, without limitation, reasonable attorneys' fees and
reasonable fees for pricing services.
The payment of amounts due and payable hereunder shall be subject to
the terms of the Special Servicing Agreement.
Section 9. Amendment and Termination
This Agreement shall continue in full force and effect until
terminated as hereinafter provided, may be amended at any time by
mutual agreement of the parties hereto and may
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be terminated by an instrument in writing delivered or mailed to the
other party. Such termination shall take effect not sooner than ninety
(90) days after the date of delivery or mailing of such notice of
termination. Any termination date is to be no earlier than four months
from the effective date hereof. Upon termination, FUND ACCOUNTING will
turn over to the Fund or its designee and cease to retain in FUND
ACCOUNTING files, records of the calculations of net asset value and
all other records pertaining to its services hereunder; provided,
however, FUND ACCOUNTING in its discretion may make and retain copies
of any and all such records and documents which it determines
appropriate or for its protection.
Section 10. Services Not Exclusive
FUND ACCOUNTING's services pursuant to this Agreement are not to be
deemed to be exclusive, and it is understood that FUND ACCOUNTING may
perform fund accounting services for others. In acting under this
Agreement, FUND ACCOUNTING shall be an independent contractor and not
an agent of the Fund or the Portfolio.
Section 11. Limitation of Liability for Claims
The Fund's Declaration of Trust, dated July 1, 1994, as amended to
date (the "Declaration"), a copy of which, together with all
amendments thereto, is on file in the Office of the Secretary of State
of the Commonwealth of Massachusetts, provides that the name "Xxxxxxx
Pathway Series" refers to the Trustees under the Declaration
collectively as trustees and not as individuals or personally, and
that no shareholder of the Fund or the Portfolio, or Trustee, officer,
employee or agent of the Fund shall be subject to claims against or
obligations of the Fund or of the Portfolio to any extent whatsoever,
but that the Fund estate only shall be liable.
FUND ACCOUNTING is expressly put on notice of the limitation of
liability as set forth in the Declaration and FUND ACCOUNTING agrees
that the obligations assumed by the Fund and/or the Portfolio under
this Agreement shall be limited in all cases to the Portfolio and its
assets, and FUND ACCOUNTING shall not seek satisfaction of any such
obligation from the shareholders or any shareholder of the Fund or the
Portfolio or any other series of the Fund, or from any Trustee,
officer, employee or agent of the Fund. FUND ACCOUNTING understands
that the rights and obligations of the Portfolio under the Declaration
are separate and distinct from those of any and all other series of
the Fund.
Section 12. Notices
Any notice shall be sufficiently given when delivered or mailed to the
other party at the address of such party set forth below or to such
other person or at such other address as such party may from time to
time specify in writing to the other party.
If to FUND ACCOUNTING: Xxxxxxx Fund Accounting Corporation
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Vice President
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If to the Fund - Portfolio: Xxxxxxx Pathway Series
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: President, Secretary or Treasurer
Section 13. Miscellaneous
This Agreement may not be assigned by FUND ACCOUNTING without the
consent of the Fund as authorized or approved by resolution of its
Board of Trustees. The parties agree that the Special Servicing
Agreement does not constitute an assignment for purposes of this
Section.
In connection with the operation of this Agreement, the Fund and FUND
ACCOUNTING may agree from time to time on such provisions interpretive
of or in addition to the provisions of this Agreement as in their
joint opinions may be consistent with this Agreement. Any such
interpretive or additional provisions shall be in writing, signed by
both parties and annexed hereto, but no such provisions shall be
deemed to be an amendment of this Agreement.
This Agreement shall be governed and construed in accordance with the
laws of the Commonwealth of Massachusetts.
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
This Agreement and the Special Servicing Agreement constitute the
entire agreement between the parties concerning the subject matter
hereof, and supersede any and all prior understandings.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized and its seal to be
hereunder affixed as of the date first written above.
[SEAL] XXXXXXX PATHWAY SERIES,
on behalf of Growth Portfolio
By:
--------------------------------
President
[SEAL] XXXXXXX FUND ACCOUNTING CORPORATION
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By:
--------------------------------
Vice President
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