EX-99.B(h)selasa
ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT, originally made as of the 15th day of
November, 2000, by and between Xxxxxxx & Xxxx Advisors Value Fund, Inc.
and Xxxxxxx & Xxxx Services Company, is hereby amended and restated as of
May 21, 2003 by and between Xxxxxxx & Xxxx Advisors Select Funds, Inc.
(f/k/a Xxxxxxx & Xxxx Advisors Value Fund, Inc.) ("Corporation"), a
Maryland Corporation, and Xxxxxxx & Xxxx Services Company, a Missouri
Corporation ("Agent"),
WITNESSETH:
WHEREAS, the Corporation wishes to appoint the Agent
to be its Accounting Services Agent with respect to each of its series
(each a "Fund") upon and subject to the terms and provisions of this
Agreement;
NOW THEREFORE, in consideration of the mutual
covenants contained in this Agreement, the parties agree as follows:
A. Appointment of the Agent as Accounting Services
Agent for each Fund; Acceptance.
(1) The Corporation hereby appoints the Agent to
act as Accounting Services Agent for each Fund upon and subject to the
terms and provisions of this Agreement.
(2) Agent hereby accepts the appointment as
Accounting Services Agent for each Fund and agrees to act as such upon and
subject to the terms and provisions of this Agreement.
B. Duties of the Agent.
The Agent shall perform such duties as set forth
in this Section B as agent for and on behalf of each Fund.
(1) Agent shall provide bookkeeping and
accounting services and assistance by providing to each Fund the necessary
personnel and facilities to maintain the Fund's portfolio records and
general accounting records, to price daily the value of shares of the
Fund, and with the assistance and advice of the Fund's attorneys and
independent accountants, to prepare or assist the Fund's attorneys and
independent accountants to prepare, as may be applicable, reports required
to be filed by the Fund with regulatory agencies including the preparation
of proxy statements, prospectuses, shareholder reports and other reports
as required by law.
(2) Agent shall maintain and keep current the
accounts, books, records and other documents relating to each Fund's
financial and portfolio transactions as may be required by rules and
regulations of the Securities and Exchange Commission adopted under
Section 31(a) of the Investment Company Act of 1940 as amended (the
"Act").
(3) Agent shall cause the subject records of the
Funds to be maintained and preserved pursuant to the requirements under
the Act.
(4) In pricing daily the value of shares of each
Fund, Agent may make arrangements to and obtain the value of portfolio
securities from pricing services or quotation services that are
compensated by the Fund directly or indirectly through the placement of
portfolio transactions with broker-dealers who provide such valuation or
quotation services to the Agent.
(5) The Agent shall maintain duplicate copies,
or information from which copies may be made, of the records necessary for
the preparation of each Fund's financial statements and valuations of its
assets. Such duplicate copies or information shall be maintained at a
location other than where the Agent performs its normal duties hereunder
so that in the event the records established and maintained pursuant to
the foregoing provisions of this Section B are damaged or destroyed, the
Agent shall be able to provide the bookkeeping and accounting services and
assistance specified in this Section B.
(6) In the event any of the Agent's facilities
or equipment necessary for the performance of its duties hereunder is
damaged, destroyed or rendered inoperable by reason of fire, vandalism,
riot, natural disaster, terrorist attacks or otherwise, Agent will use its
best efforts to restore all services hereunder to the Funds and will not
seek from the Corporation additional compensation to repair or replace
damaged or destroyed facilities or equipment. The Agent shall also make
and maintain arrangements for emergency use of alternative facilities for
use in the event of the aforesaid destruction of or damage to its
facilities.
C. Compensation of the Agent.
With respect to each Fund, the Corporation agrees
to pay the Agent for its services under this Agreement, an amount payable
on the first day of the month as shown in the table below, pertinent to
the average daily net assets of the Fund during the prior month:
Fund's Average Daily Net Asset for the Month
Monthly Fee
$ 0 - $ 10 million $ 0
$ 10 - $ 25 million $ 833
$ 25 - $ 50 million $1,667
$ 50 - $100 million $2,500
$100 - $200 million $3,333
$200 - $350 million $4,167
$350 - $550 million $5,000
$550 - $750 million $5,833
$750 - $1.0 billion $7,083
$1.0 billion and over $8,333
D. Right of Corporation to Inspect and Ownership of
Records.
The Corporation will have the right under this
Agreement to perform on-site inspection of records and accounts, and
audits directly pertaining to the Corporation's accounting and portfolio
records maintained by the Agent hereunder at the Agent's facilities. The
Agent will cooperate with the Corporation's independent accountants or
representatives of appropriate regulatory agencies and furnish all
reasonably requested records and data. Agent acknowledges that these
records are the property of the Corporation, and that it will surrender to
the Corporation all such records promptly on request.
E. Standard of Care; Indemnification.
The Agent will at all times exercise due
diligence and good faith in performing its duties hereunder. The Agent
will make every reasonable effort and take all reasonably available
measures to assure the adequacy of its personnel, facilities and equipment
as well as assure the accurate performance of all services to be performed
by it hereunder within, at a minimum, the time requirements of any
applicable statutes, rules or regulations and in conformity with the
Corporation's Articles of Incorporation, Bylaws and representations made
in the Corporation's current registration statement as filed with the
Securities and Exchange Commission.
The Agent shall not be responsible for, and the
Corporation agrees to indemnify the Agent for, any losses, damages or
expenses (including reasonable counsel fees and expenses) (i) resulting
from any claim, demand, action or suit not resulting from the Agent's
failure to exercise good faith or due diligence and arising out of or in
connection with the Agent's duties on behalf of a Fund hereunder; (ii) for
any delay, error or omission by reason of circumstances beyond its
control, including acts of civil or military authority, national
emergencies, labor difficulties (except with respect to the Agent's
employees), fire, mechanical breakdown beyond its control, flood
catastrophe, acts of God, insurrection, war, riots, terrorist attacks or
failure beyond its control of transportation, communication or power
supply; or (iii) for any action taken or omitted to be taken by the Agent
in good faith in reliance on the accuracy of any information provided to
it by the Corporation or its directors or in reliance on any advice of
counsel who may be internally employed counsel or outside counsel for the
Corporation or advice of any independent accountant or expert employed by
the Corporation with respect to the preparation and filing of any document
with a governmental agency or authority.
In order for the rights to indemnification to apply,
it is understood that if in any case the Corporation may be asked to
indemnify or hold the Agent harmless, the Corporation shall be advised of
all pertinent facts concerning the situation in question, and it is
further understood that the Agent will use reasonable care to identify and
notify the Corporation promptly concerning any situation which presents or
appears likely to present a claim for indemnification against the
Corporation. The Corporation shall have the option to defend the Agent
against any claim which may be the subject of this indemnification and, in
the event that the Corporation so elects, it will so notify the Agent, and
thereupon the Corporation shall take over complete defense of the claim,
and the Agent shall sustain no further legal or other expenses in such
situation for which the Agent shall seek indemnification under this
paragraph. The Agent will in no case confess any claim or make any
compromise in any case in which the Corporation will be asked to indemnify
the Agent except with the Corporation's prior written consent.
F. Term of the Agreement; Taking Effect; Amendments.
This Agreement shall become effective at the
start of business on the date hereof and shall continue, unless terminated
as hereinafter provided, for a period of one (1) year and from year-to-
year thereafter, provided that such continuance shall be specifically
approved as provided below.
This Agreement shall go into effect, or may be
continued, or may be amended, or a new agreement covering the same topics
between the Corporation and the Agent may be entered into only if the
terms of this Agreement, such continuance, the terms of such amendment or
the terms of such new agreement have been approved by the Board of
Directors of the Corporation, including the vote of a majority of the
directors who are not "interested persons," as defined in the Act, of
either party to this Agreement, the agreement to be continued, amendment
or new agreement, cast in person at a meeting called for the purpose of
voting on such approval. Such a vote is hereinafter referred to as a
"disinterested director vote."
Any disinterested director's vote shall, in favor of
continuance, amendment or execution of a new agreement, include a
determination that (i) the Agreement, amendment, new agreement or
continuance in question is in the best interests of each Fund and its
shareholders; (ii) the services to be performed under the Agreement, the
Agreement as amended, new agreement or agreement to be continued, are
services required for the operation of the Funds; (iii) the Agent can
provide services, the nature and quality of which are at least equal to
those provided by others offering the same or similar services; and (iv)
the fees for such services are fair and reasonable in the light of the
usual and customary charges made by others for services of the same nature
and quality.
Nothing herein contained shall prevent any
disinterested director vote from being conditioned on the favorable vote
of the holders of a majority (as defined in or under the Act) of the
outstanding shares of the Funds.
G. Termination.
(1) This Agreement may be terminated by the
Agent at any time without penalty upon giving the Corporation at least one
hundred twenty (120) days' written notice (which notice may be waived by
the Corporation) and may be terminated by the Corporation at any time
without penalty upon giving the Agent at least sixty (60) days' written
notice (which notice may be waived by the Agent), provided that such
termination by the Corporation shall be directed or approved by the vote
of a majority of the Board of Directors of the Corporation in office at
the time or by the vote of the holders of a majority (as defined in or
under the Act) of the outstanding shares of the Funds.
(2) On termination, the Agent will deliver to
the Corporation or its designee all files, documents and records of the
Funds used, kept or maintained by the Agent in the performance of its
services hereunder, including such of the Funds' records in machine
readable form as may be maintained by the Agent, as well as such summary
and/or control data relating thereto used by or available to the Agent.
(3) In addition, on such termination or in
preparation therefore at the request of the Corporation and at the Funds'
expense, the Agent shall provide, to the extent that its capabilities then
permit, such documentation, personnel and equipment as may be reasonably
necessary in order for a new agent or the Corporation to fully assume and
commence to perform the agency functions described in this Agreement with
a minimum disruption to the Funds' activities.
(4) This Agreement shall automatically terminate
in the event of its assignment, the term "assignment" for this purpose
having the meaning defined in Section 2(a)(4) of the Investment Company
Act of 1940 and the rules and regulations thereunder of the Securities and
Exchange Commission.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed on the date and year first above
written.
XXXXXXX & XXXX ADVISORS
SELECT FUNDS, INC.
By: ____________________________
Xxxxx X. Xxxxxxxx
ATTEST:
___________________
Xxxxxxx X. Xxxxxxxx
Secretary
XXXXXXX & XXXX SERVICES COMPANY
By: ____________________________
Xxxxxxx X. Xxxxxx
ATTEST:
____________________
Xxxxxx X. Xxxxxxx
Secretary
