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EXHIBIT-99.B9(d)
FUND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made on the 31st day of December, 1997 between
▇▇▇▇▇▇ Total Return Fund (the "Fund"), on behalf of the Initial
Portfolio (hereinafter called the "Portfolio"), a registered open-end
management investment company with its principal place of business in
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ Fund
Accounting Corporation, with its principal place of business in
Boston, Massachusetts (hereinafter called "FUND ACCOUNTING").
WHEREAS, the Portfolio has need to determine its net asset value
which service 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 to calculate the net asset value of the Portfolio as
provided in the prospectus of the Portfolio and in connection
therewith 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 investment adviser, 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.
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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 public offering price and/or its
daily dividend rates and money market yields, if
applicable, 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. 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;
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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 capital shares.
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 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 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.
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Section 6. Standard of Care
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.
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, if agreed to by the Fund on behalf
of the Portfolio, 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 sixty
(60) 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
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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, 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 "▇▇▇▇▇▇ Total Return Fund" 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 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 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: ▇▇▇▇▇▇▇ Fund Accounting Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President
If to the Fund - Portfolio: ▇▇▇▇▇▇ Total Return Fund
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President, Secretary
or Treasurer
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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.
This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof, and supersedes any
and all prior understandings.
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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] ▇▇▇▇▇▇ TOTAL RETURN FUND
on behalf of the Initial Portfolio
By:
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President
[SEAL] ▇▇▇▇▇▇▇ FUND ACCOUNTING CORPORATION
By:
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Vice President
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