EXHIBIT NO. 99.9(a)
MFS UNION STANDARD TRUST
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
November 17, 1995
MFS Service Center, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
AMENDED AND RESTATED SHAREHOLDER SERVICING AGENT AGREEMENT
Dear Sir:
MFS Union Standard Trust, which is a Massachusetts business trust
(referred to as the "Trust") with two series, MFS Union Standard Equity Fund
and MFS Union Standard Research Fund (each a "Fund"), is an open-end
registered investment company. The Trust has selected you to act as its
Shareholder Servicing Agent and you hereby agree to act as such Agent and to
perform the duties and functions thereof in the manner and on the conditions
hereinafter set forth. Accordingly, the Trust hereby agrees with you as
follows:
1. THE FACILITY. You represent that you have the necessary computer
equipment, software and other office equipment ("Facility") adequate to
perform the services contemplated hereby for the Fund as well as for other
investment companies (such investment companies, together with the Fund, are
herein collectively referred to as the "MFS Funds") for which Massachusetts
Financial Services Company ("MFS") acts as investment adviser. The Facility
is presently located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, and is to
be dedicated solely to the performance of services for the MFS Funds,
provided that the Facility may be utilized to perform services for others
with the permission of the MFS Funds.
2. NAME. Unless otherwise directed in writing by MFS, you shall
perform the services contemplated hereby under the name "MFS Service Center,
Inc.", which name and any similar names and any logos of which shall remain
the property and under the control of MFS. Upon termination of this
Agreement, you shall cease to use such name or any similar name within a
reasonable period of time.
3. SERVICES TO BE PERFORMED. As Shareholder Servicing Agent
("Agent"), you shall be responsible for administering and performing transfer
and dividend and distribution disbursing functions in connection with the
issuance, transfer and redemption of various classes of shares of beneficial
interest of the various series of the Trust existing from time to time
("Shares"). The details of the operating standards and procedures to be
followed by you shall be determined from time to time by agreement between
you and the Fund.
4. STANDARD OF SERVICE. As Agent for the Fund, you agree to provide
service equal to or better than that provided by you or others furnishing
shareholder services to other open-end investment companies ("Standard") at a
fee comparable to the fee paid you for your services hereunder. The Standard
shall include at least the following:
(a) Prompt reconciliation of any differences as to the number of
outstanding shares between various Facility records or between Facility
records and records of the Fund's custodian;
(b) Prompt processing of shareholder correspondence and of other
matters requiring action by you;
(c) Prompt clearance of any daily volume backlog;
(d) Providing innovative services and technological improvements;
(e) Meeting the requirements of any governmental authority having
jurisdiction over you or the Fund; and
(f) Prompt reconciliation of all bank accounts under your control
belonging to the Fund or MFS.
If any MFS Fund serviced by you is reasonably of the view that the
service provided by you does not meet the Standard, it shall give you written
notice specifying the particulars, and you then shall have 120 days in which
to restore the service so that it meets the Standard, except that such period
shall be 180 days with respect to meeting that portion of the Standard
described above in item (d) of this paragraph 4. If at the end of such
period the Fund remains reasonably of the view that the service provided by
you, in the particulars specified, does not meet the Standard, then the MFS
Fund or Funds having a majority of the accounts for which you are then Agent
may, by appropriate action (including the concurrence of a majority of the
Trustees of such MFS Fund or Funds, who are not interested persons of MFS),
elect to terminate this Agreement for cause as to all such Funds upon 90 days
notice to you. Upon termination hereof, the Fund shall pay you such
compensation as may be due to you as of the date of such termination, and
shall likewise reimburse you for any costs, expenses, and disbursements
reasonably incurred by you to such date in the performance of your duties
hereunder.
5. PURCHASE OF FACILITY. In the event that you have given notice of
termination of this Agreement pursuant to the provisions of paragraph 14
hereof, or for cause as provided in paragraph 4 hereof, the MFS Funds shall
have the right, but shall not be required (a) to purchase the Facility and
assume the unexpired portion of any leases of equipment or real estate
relating to the Facility from you at a price equal to your estimated
unrecovered acquisition value (as supported by the schedules and records used
in determining monthly xxxxxxxx) of the machinery, equipment, software,
furniture, fixtures and leasehold improvements included in the Facility, and
(b) to negotiate with persons then employed by you in the operation of the
Facility and to hire all of them in connection with the purchase of the
Facility from you by the MFS Funds. You agree to release each such employee
from any contractual obligations such persons may have to you that may
interfere with such person's being hired at such time by the MFS Funds and
agree not to interfere with the negotiation and hiring of any such persons at
any such time. In the event that the MFS Funds have given notice of
termination of this Agreement pursuant to the provisions of paragraph 14
hereof, for reasons other than cause as defined in paragraph 4 hereof, the
MFS Funds shall purchase the Facility under the terms and conditions set
forth in subsections (a) and (b) of this paragraph 5.
You shall effect the transfer of the Facility pursuant to this
paragraph 5 upon the termination date specified in the notice, or at such
other time as shall be agreed upon by the parties hereto.
6. RIGHTS IN DATA AND CONFIDENTIALITY. You agree that all records,
data, files, input materials, reports, forms and other data received,
computed or stored in the performance of this Agreement are the exclusive
property of the Fund and that all such records and other data shall be
furnished without additional charge, except for actual processing costs, to
the Fund in machine readable as well as printed form immediately upon
termination of this Agreement or at the Fund's request. You shall safeguard
and maintain the confidentiality of the Fund's data and information supplied
to you by the Fund and you shall not transfer or disclose the Fund's data to
any third party without the Fund's prior written consent unless compelled to
do so by order of a court or regulatory authority.
7. FEES. The fee for your services hereunder shall not be in excess
of such amount as shall be agreed in writing between us (see Exhibit A
attached hereto). Such fee shall be payable in monthly installments of
one-twelfth of the annual fee. Such fee shall be subject to review at least
annually and fixed by the parties in good faith negotiation on the basis of a
statement of the expenses of the Facility prepared by you, which either you
or the Fund may require to be certified by a major accounting firm
acceptable to the parties. The party or parties requesting such
certification shall bear all expenses thereof. In addition to the foregoing
fee, you will be reimbursed by the Fund for out-of-pocket expenses reasonably
incurred by you on behalf of the Fund, including but not limited to expenses
for stationery (including business forms and checks), postage, telephone and
telegraph line and toll charges, and premiums for negotiable instrument
insurance and similar items.
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8. RECORD KEEPING. You will maintain records in a form acceptable to
the Fund and in compliance with the rules and regulations of the Securities
and Exchange Commission, including but not limited to records required to be
maintained by Section 31(a) of the Investment Company Act of 1940 and the
rules thereunder, which at all times will be the property of the Fund and
will be available for inspection and use by the Fund.
9. DUTY OF CARE AND INDEMNIFICATION. You will at all times act in
good faith in performing your duties hereunder. You will not be liable or
responsible for delays or errors by reason of circumstances beyond your
control, including acts of civil or military authority, national emergencies,
labor difficulties, fire, mechanical breakdown beyond your control, flood or
catastrophe, acts of God, insurrection, war, riots or failure beyond your
control of transportation, communication or power supply. The Fund will
indemnify you against and hold you harmless from any and all losses, claims,
damages, liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any claim, demand, action or suit not resulting from
your bad faith or negligence, and arising out of, or in connection with, your
duties on behalf of the Fund hereunder. In addition, the Fund will indemnify
you against and hold you harmless from any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and expenses)
resulting from any claim, demand, action or suit as a result of your acting
in accordance with any instructions reasonably believed by you to have been
executed or orally communicated by any person duly authorized by the Fund or
its Principal Underwriter, or as a result of acting in accordance with
written or oral advice reasonably believed by you to have been given by
counsel for the Fund, or as a result of acting in accordance with any
instrument or share certificate reasonably believed by you to have been
genuine and signed, countersigned or executed by any person or persons
authorized to sign, countersign or execute the same (unless contributed to by
your gross negligence or bad faith). In any case in which the Fund may be
asked to indemnify you or hold you harmless, the Fund shall be advised of all
pertinent facts concerning the situation in question and you will use
reasonable care to identify and notify the Fund promptly concerning any
situation which presents or appears likely to present a claim for
indemnification against the Fund. The Fund shall have the option to defend
you against any claim which may be the subject of this indemnification, and
in the event that the Fund so elects such defense shall be conducted by
counsel chosen by the Fund and satisfactory to you and it will so notify you,
and thereupon the Fund shall take over complete defense of the claim and you
shall sustain no further legal or other expenses in such situation for which
you seek indemnification under this paragraph, except the expense of any
additional counsel retained by you. You will in no case confess any claim or
make any compromise in any case in which the Fund will be asked to indemnify
you except with the Fund's prior written consent. The obligations of the
parties hereto under this paragraph shall survive the termination of this
Agreement.
If any officer of the Fund shall no longer be vested with authority to
sign for the Fund, written notice thereof shall forthwith be given to you by
the Fund and until receipt of such notice by it, you shall be fully
indemnified and held harmless by the Fund in recognizing and acting upon
certificates or other instruments bearing the signatures or facsimile
signatures of such officer.
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10. INSURANCE. You will notify the Fund should any of your insurance
coverage, as set forth on Exhibit A hereto, be changed for any reason, such
notification to include the date of change and reason or reasons therefor.
11. NOTICES. All notices or other communications hereunder shall be
in writing and shall be deemed sufficient if mailed to either party at the
addresses set forth in this Agreement, or at such other addresses as the
parties hereto may designate by notice to each other.
12. FURTHER ASSURANCES. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
13. USE OF A SUB- OR CO-TRANSFER AGENT. Notwithstanding any other
provision of this Agreement, it is expressly understood and agreed that you
are authorized in the performance of your duties hereunder to employ, from
time to time, one or more Sub-Transfer Agents and/or Co-Transfer Agents.
14. AMENDMENT AND TERMINATION. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only by an instrument in writing, which, except in the case of termination,
shall be signed by the party against which enforcement of such change, waiver
or discharge is sought. Except as otherwise provided in paragraph 4 hereof,
this Agreement shall continue indefinitely until terminated by 90 days'
written notice given by the Fund to you or by you to the Fund. Upon
termination hereof, the Fund shall pay you such compensation as may be due to
you as of the date of such termination, and shall likewise reimburse you for
any costs, expenses, and disbursements reasonably incurred by you to such
date in the performance of your duties hereunder. You agree to cooperate
with the Fund and provide all necessary assistance in effectuating an orderly
transition upon termination of this Agreement.
15. SUCCESSOR. In the event that in connection with termination a
successor to any of your duties or responsibilities hereunder is designated
by the Fund by written notice to you, you will, promptly upon such
termination and at the expense of the Fund, transfer to such successor a
certified list of the shareholders of the Fund (with name, address and tax
identification or Social Security number), an historical record of the
account of each shareholder and the status thereof, and all other relevant
books, records, correspondence, and other data established or maintained by
you under this Agreement in form reasonably acceptable to the Fund (if such
form differs from the form in which you have maintained the same, the Fund
shall pay any expenses associated with transferring the same to such form),
and will cooperate in the transfer of such duties and responsibilities,
including provision for assistance from your cognizant personnel in the
establishment of books, records and other data by such successor.
16. MISCELLANEOUS. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the Commonwealth of
Massachusetts. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of
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the provisions hereof or otherwise affect their construction or effect. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
17. TRUST ONLY. A copy of the Declaration of Trust of the Trust is on
file with the Secretary of State of The Commonwealth of Massachusetts. You
acknowledge that the obligations of or arising out of this instrument are not
binding upon any of the Trust's trustees, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and
property of the Trust in accordance with its proportionate interest
hereunder. If this instrument is executed by the Trust on behalf of one or
more series of the Trust, you further acknowledge that the assets and
liabilities of each series of the Trust are separate and distinct and that
the obligations of or arising out of this instrument are binding solely upon
the assets or property of the series on whose behalf the Trust has executed
this instrument on behalf of more than one series of the Trust, you also
agree that the obligations of each series hereunder shall be several and not
joint, in accordance with its proportionate interest hereunder, and you agree
not to proceed against any series for the obligations of another series.
Very truly yours,
MFS UNION STANDARD TRUST
on behalf of its various series
A. XXXXX XXXXXXX
--------------------------------------
A. Xxxxx Xxxxxxx
Chairman
The foregoing is hereby accepted as of the date thereof.
MFS SERVICE CENTER, INC.
XXXXX X. XXXXXXXX
------------------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
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As of January 1, 1995
EXHIBIT A TO SHAREHOLDER SERVICING AGENT AGREEMENT (THE
"AGREEMENT")
MFS UNION STANDARD TRUST
Pursuant to Section 7 of the Agreement, the fees to be paid by each
Fund to MFS Service Center, Inc. ("MFSC"), for MFSC's services as shareholder
servicing agent under the Agreement, are 0.0075% per annum of each Fund's
average daily net assets.
MFS UNION STANDARD TRUST
By: A. XXXXX XXXXXXX
-----------------------------------
A. Xxxxx Xxxxxxx
Chairman and President
MFS SERVICE CENTER, INC.
By: XXXXXX X. XXXXXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxxxxx
President
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