Exhibit 9(e)(1)
FUND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made on the 19th day of October, 1994 between Xxxxxxx Equity
Trust (the "Fund"), on behalf of Xxxxxxx Capital Growth Fund (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.
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Section 2. 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 3. 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.
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 4. 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.
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FUND ACCOUNTING shall be entitled to receive, and may rely upon,
information received from the Transfer Agent.
Section 5. 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 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 6. 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.
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Section 7. 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.
Section 8. 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 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 9. 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 10. Limitation of Liability for Claims
The Fund's Amended and Restated Declaration of Trust, dated March 17, 1988
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 Equity
Trust" 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 Trust or of
the Portfolio to any extent whatsoever, but that the Trust 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
ACCOUNTNG shall not seek satisfaction of any such obligation
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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 11. 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
If to the Fund - Portfolio: Xxxxxxx Equity Trust -
Xxxxxxx Capital Growth Fund
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: President, Secretary or Treasurer
Section 12. 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.
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.
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This Agreement constitutes the entire agreement between the parties
concerning the subject hereof, and supersedes 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 EQUITY TRUST, on behalf of
Xxxxxxx Capital Growth Fund
By: /s/ Xxxxxx Xxxxxx
-------------------------------
President
[SEAL] XXXXXXX FUND ACCOUNTING CORPORATION
By: /s/ Xxxxxx X. XxXxxxx
-------------------------------
Vice President
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