Exhibit 9(c)(1)
[LOGO of The First National Bank of Boston]
FUND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT made as of August 22, 1988, between Xxxxxxx Mutual Funds, Inc., a
corporation under the laws of Maryland with its principal place of business at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter called the "Fund"), and the
First National Bank of Boston, a national banking association with its principal
place of business in Boston, Massachusetts (hereinafter called the "Bank").
WHEREAS, pursuant to an agreement dated as of August 22, 1988, the cash and
securities for the Fund's Xxxxxxx Gold Fund portfolio are held and administered
by the Bank as custodian;
WHEREAS, the Fund has need for certain accounting and pricing services which the
Bank is willing and able to provide in conjunction with the services as
Custodian as aforesaid;
NOW THEREFORE in consideration of the mutual promises herein made, the Fund and
the Bank agree as follows:
Section 1. Duties of Bank - General
The Bank is authorized to act under the terms of this Agreement as the
Fund's agent, and as such the Bank will:
a. Maintain and preserve accounts, books, records and other documents as
are required of the Fund under Section 31 of the Investment company
Act of 1940 and Rules 31a-1 and 31a-2 thereunder;
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;
c. Render such statements or copies of records as are listed in Exhibit
A hereto as from time to time are reasonably requested by the Fund;
and such other information as the Fund may reasonably request and that
the Bank is in a position to reasonably provide.
d. Facilitate audits of accounts by the Fund's auditors or by any other
auditors employed or engaged by the Fund or by any regulatory body
with jurisdiction over the Fund;
e. Compute the Fund's net asset value per share on each day the New
York Stock Exchange is open for trading and, if applicable, its public
offering price and/or its rates and yields, 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 the yield.
The Bank acknowledges that additional portfolios of the Fund may be
established and that such portfolios, including the Portfolio, may be
terminated, from time to time by action of the Board of Directors of the
Fund. If the context requires and unless otherwise specifically provided
herein, the term "fund" as used in this Agreement shall mean, in addition
to the Portfolio, each subsequently created separate portfolio, as the
Board of Directors of the Fund shall designate at its discretion and as to
which such Board shall have appointed the Bank as custodian and as to which
the Bank shall have accepted such appointment. To the extent the Fund shall
include portfolios other than the Portfolio, such other portfolios also
shall be subject to this Agreement.
Section 2. Valuation of Securities
Securities will be valued in accordance with the specific provisions of the
Fund's Registration Statement on Form N-lA, as amended from time to time
(the "Fund's Registration Statement, such term also to include, if
applicable each separate portfolio's registration statement").
Quotations will be taken from the exchange where the security is primarily
traded. Over-the-counter securities for which market quotations are readily
available will be valued at the mean between the current bid and asked
prices. Securities for which market quotations are not readily available
will be valued at fair market value as determined by the Fund which will
immediately notify the Bank of such value. The Bank will use one or more
external pricing services as selected and authorized by the Fund on the
Pricing Authorization Form attached hereto as Exhibit B. The Bank shall not
be liable for any loss, cost, damage, claim or other matter incurred by or
asseted against the Fund regardless of how characterized, based on or
resulting from the inaccuracy or other deficiency in any information or
data provided to the Bank by such vendor and used by the Bank in the
performance of its services hereunder so long as the Bank will use
reasonable efforts to assess the accuracy of such information or data by
using the tests set out on such Pricing Authorization Form.
Section 3. Computation of Net Asset Value, Public Offering Price Performance
Information
The Bank will compute the Fund's net asset value in a manner consistent
with the specific provisions of the Fund's Registration Statement. In
general, such computation will be made by dividing the value of the Fund's
portfolio securities, cash and any other assets, less its liabilities, by
the number of shares of the Fund outstanding. Such computation will be made
as of the close of business on the New York Stock Exchange each day, Monday
through Friday, exclusive of national business holidays and other days on
which the New York Stock Exchange is not open for business. If applicable,
the Bank will also compute the public offering price by dividing the net
asset value per share by the appropriate factor as provided by the Fund.
The Bank will compute the Fund's rate and yield, if applicable, in
accordance with the methodology set forth in the Fund's Prospectus and
Statement of Additional Information.
Section 4. Bank's Reliance on Instructions and Advice
In maintaining the Fund's books of account and making the necessary
computations, the Bank shall be entitled to receive, and may rely upon,
information furnished it by any person certified to the Bank as being
authorized by the Board of Directors of the Fund relating to:
a. The manner and amount of accrual of expenses other than management
fees to be recorded on the books of the Fund;
b. The source of quotations to be used for such securities as may not be
available through the Bank'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. Notification of transactions in portfolio securities.
The Bank shall be entitled to rely upon any certificate, letter or other
instrument or telephone call reasonably believed by the Bank to be genuine
and to have been properly made or signed by an officer or other authorized
agent of the Fund, and shall be entitled to received as conclusive proof of
any fact or matter required to be ascertained by it hereunder a certificate
signed by an officer of the Fund or any other person authorized by the
Fund's Board of Directors.
The Bank shall be entitled to receive and act upon advice of Counsel (which
may be Counsel for the Fund) and shall be without liability for any action
taken or thing done in good faith in reliance upon such advice.
The Fund agrees promptly to furnish the Bank with a copy of the Fund's
Registration Statement in effect from time to time. The Bank may
conclusively rely on the most recently delivered Fund's Registration
Statement (including relevant amendments) for all purposes under this
Agreement and shall not be liable to the Fund in acting in reliance
thereon.
Section 5. Indemnification
The Fund agrees to indemnify and hold harmless the Bank and its employees,
agents and nominee from all taxes, charges, expenses, assessments, claims
and liabilities (including attorney's 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, the Bank 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 Fund as a party to any transaction.
The Bank's responsibility - for damage or loss arising from military power,
war, insurrection, or nuclear fission, fusion or radioactivity shall be
limited to the use of the Bank's best efforts to recover the Fund's records
determined to be lost, missing or destroyed.
Section 6. Compensation and Bank's Expenses
The Bank 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 between the two parties. The Bank shall be entitled to recover its
telephone, delivery and all other out-of-pocket expenses as incurred,
including without limitation reasonable attorney's fees.
Section 7. Termination
Either the Bank or the Fund may terminate this Agreement by giving 90 days'
written notice in advance to the other. Any termination date is to be no
earlier than four months from the effective date hereof. Upon termination
the Bank will turn over to me Fund and cease to retain in the Bank's files,
records of the calculations of net asset value and all other records
pertaining to its services hereunder; provided, however, the Bank 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 8. Miscellaneous
This Agreement may not be assigned by the Bank without the consent of the
Fund as authorized or approved by resolution of its Board of Directors.
In connection with the operation of this Agreement, the Fund and the Bank
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 the general tenor of this Agreement. Any such
interpretive or additional provisions are to be signed by both parties and
annexed hereto.
Nothing in this Agreement shall give or be construed to give any
shareholder of the Fund any rights against the Bank.
This Agreement shall be governed and construed in accordance with the laws
of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the
date first written above.
Executed in several counterparts, each of which is an original,
XXXXXXX MUTUAL FUNDS, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxx Xxxxxxxxxxx
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Name: Xxxxxx Xxxxxxxxxxx
Title: Senior Manager
EXHIBIT A to
Fund Accounting Services Agreement
Standard Reports and Availability
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The following reports will be provided to the Fund on a regular basis with
availability as indicated:
A. Daily
1. Printed Trial Balance
2. Net Asset Value Worksheet
3. Cash Forecast
4. Rate/Yield Computation, if applicable
B. Weekly - Tax Lot Ledgers
C. Monthly
1. Tax Lot Ledgers as of month-end
2. Working Appraisal as of month-end
3. Purchase and Sale Journal for the month
4. Summary of Gains and Losses on Securities for the month
5. Dividend Ledger for the month (Receivable as of month-end and
earned)
6. Interest Income Analysis for the month (receivable as of month-end
and earned)
7. Trial Balance as of month-end
8. Net Asset Value Worksheet as of month-end
9. Open Trades (payable and receivables for unsettled securities
transactions)
D. Annually
1. Purchase and Sale Journal for the year
2. Summary of Gains and Losses on Securities for the year
3. Broker Allocation Report for the year
Availability of Reports
1. Daily reports should be available for facsimile transmission, if
desired, by 9:00 a.m. Boston time; messenger delivery to local
clients may be expected by 10:00 a.m.
2. Monthly and annual reports, except for Interest Income Analysis
should be sent by overnight delivery (remote clients) or by messenger
(local clients) by the tenth day of the following month; the Interest
Income Analysis should be sent in the same manner by the fifteenth
business of the following month.
