Exhibit 99.B(h)(5)
Xxxxx Fargo Funds Trust
FORM OF SHAREHOLDER SERVICING AGREEMENT
THIS SHAREHOLDER SERVICING AGREEMENT ("Agreement"), dated as of
[____________ __, 1999], is made between Xxxxx Fargo Funds Trust (the "Trust"),
a Delaware business trust, on behalf of the classes of shares of the Funds of
the Trust listed in the attached Appendix, as it may be amended from time to
time, (each a "Class" and a "Fund" and, collectively, the "Classes" and the
"Funds"), and _______________, as shareholder servicing agent ("Servicing
Agent");
WHEREAS, shares of beneficial interest of a Fund of the Trust (the
"Shares") may be purchased or redeemed through a broker/dealer or financial
institution that has entered into a shareholder servicing agreement with the
Trust on behalf of the Fund; and
WHEREAS, the Servicing Agent wishes to facilitate purchases and
redemptions of Shares by its customers (the "Customers") and wishes to act as
the Customers' agent in performing certain administrative functions in
connection with transactions in Shares and to provide related services to the
Customers in connection with their investments in a Fund; and
WHEREAS, it is in the best interests of the Funds to make the services of
the Servicing Agent available to the Customers who are or may become
shareholders of the Funds;
NOW THEREFORE, the Trust, on behalf of its Funds, and the Servicing Agent
hereby agree as follows:
1. Appointment. The Servicing Agent hereby agrees to perform certain
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shareholder services with respect to the Funds listed in the attached Appendix.
The Servicing Agent's appointment is not exclusive.
2. Services to be Performed.
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2.1 Shareholder Services. The Servicing Agent shall be responsible
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for:
(a) establishing and maintaining accounts and records relating
to Customers that invest in Shares;
(b) answering Customer inquiries regarding account status and
history, and the manner in which purchases, exchanges and
redemptions of Shares may be effected;
(c) assisting Customers in designating and changing dividend
options (as available), account designations and addresses;
(d) processing and verifying purchase, redemption and exchange
transactions;
(e) processing and verifying the wiring or other transfer of
funds to and from Customer accounts in connection with
Customer orders to purchase or redeem Shares;
(f) furnishing (either separately or on an integrated basis with
other reports sent to the Customer), or monitoring the
furnishing of, account statements and confirmations of
transactions in the Customer's account;
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(g) providing necessary personnel and facilities to establish
and maintain Customer accounts and records and to provide
the other services contemplated hereby;
(h) providing such other shareholder liaison or related services
as the Funds or a Customer may reasonably request.
2.2 Standards. All services to be performed by the Servicing Agent
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hereunder shall be performed in a professional, competent and timely manner,
subject to the supervision of the Board of Trustees and Officers of the Trust.
Any detailed operating standards or procedures to be followed by the Servicing
Agent in performing the services described above shall be determined from time
to time by mutual agreement between the Servicing Agent and the Trust. The
Servicing Agent shall act as agent for Customers only and shall have no
authority to act as agent for the Funds.
3. Fees. As full compensation for the services described in Section 2
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and expenses incurred by the Servicing Agent, the Servicing Agent shall receive
a fee, payable by each of the Classes of Shares of the Funds as indicated in the
attached Appendix. This fee will be payable as agreed by the Funds and the
Servicing Agent, but no more frequently than monthly. Notwithstanding anything
herein to the contrary, the Trust shall not be obligated to make any payments
under this Agreement that exceed the maximum amounts payable under Rule 2830 of
the Conduct Rules of National Association of Securities Dealers, Inc. The fees
indicated in the attached Appendix constitute all fees to be paid to the
Servicing Agent by the Trust for providing the shareholder services contemplated
hereby.
4. Information Pertaining to the Shares. The Servicing Agent and its
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officers, employees and agents are not authorized to make any representations
concerning the Trust, a Fund or the Shares of any Class except to communicate to
Customers accurately factual information contained in the relevant Fund's
prospectus and statement of additional information and objective historical
performance information.
During the term of this Agreement, the Funds agree to furnish the
Servicing Agent all prospectuses, statements of additional information, proxy
statements, reports to shareholders, sales literature, or other materials the
Funds distributes generally to shareholders of the Funds or the public. The
Funds shall furnish or otherwise make available to the Servicing Agent such
other information relating to the business affairs of the Funds as the Servicing
Agent may, from time to time, reasonably request in order to discharge its
obligations hereunder.
5. Security. The Servicing Agent represents and warrants that various
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procedures and systems that it has implemented with regard to safeguarding from
loss or damage attributable to fire, theft or any other cause the Trust records
and other data and the Servicing Agent's records, data, equipment, facilities
and other property used in the performance of its obligations hereunder are
adequate; and that it will make such changes therein from time to time as in its
judgment are required for the secure performance of its obligations hereunder.
6. Compliance with Laws. The Servicing Agent shall comply with all
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applicable federal and state laws and regulations. The Servicing Agent
represents and warrants to the Trust that the performance of all its obligations
hereunder will comply with all applicable laws and regulations, the provisions
of its charter documents and by-laws and all material contractual obligations
binding upon the Servicing Agent.
7. Force Majeure. The Servicing Agent shall not be liable or
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responsible for delays or errors by reason of circumstances beyond its control,
including, but not limited to, acts of civil or military authority, national
emergencies, labor difficulties, fire, mechanical breakdown, flood or
catastrophe, acts of God, insurrection, war, riots or failure of communication
systems or power supply.
8. Indemnification. To the extent that the Servicing Agent acts in
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good faith and without negligence or willful misconduct, Servicing Agent shall
not be responsible for, and the Fund shall indemnify and hold the Servicing
Agent harmless from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities arising out of and attributable
to all actions of Servicing Agent, its directors,
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officers and employees taken pursuant to this Agreement. The Servicing Agent
shall indemnify and hold the Fund harmless from and against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liabilities
arising out of or attributable to the lack of good faith, negligence or willful
misconduct of the Servicing Agent, its directors, officers and employees in the
performance of the Servicing Agent's obligations under this Agreement.
9. Representations. By your written acceptance of this Agreement, you
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represent, warrant and agree that: (i) the compensation payable to you in
connection with the investment of your Clients' assets in Shares will be
disclosed by you to your Clients, will be authorized by your Clients and will
not be excessive; and (ii) the services provided by you under this Agreement
will in no event be primarily intended to result in the sale of Shares.
10. Termination. Notwithstanding anything herein to the contrary, this
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Agreement may be terminated at any time, without payment of any penalty, by
either party upon ninety (90) days written notice to the other party.
11. Non-Exclusivity. Nothing in this Agreement shall limit or restrict
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the right of the Servicing Agent to engage in any other business or to render
services of any kind to any other corporation, firm, individual or association.
Nothing in this Agreement shall limit or restrict the right of the Trust to
engage other broker/dealers or financial institutions to perform the same or
similar services for their customers that invest in Shares.
12. Amendments. This Agreement shall become effective upon receipt by
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us of a signed copy hereof, and shall cancel and supersede any and all prior
Shareholder Servicing Agreements or similar arrangements or contracts relating
to the provision of shareholder services. Any amendments to this Agreement
shall be deemed accepted by you, and will take effect with respect to, and on
the date of, any provision of shareholder services by you after the date set
forth in any notice of amendment sent by us to you.
13. Limitation of Liability. The Servicing Agent hereby agrees that
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obligations assumed by the Trust pursuant to this Agreement shall be limited in
all cases to the Funds and their assets and that the Servicing Agent shall not
seek satisfaction of any such obligations from the Board of Trustees or any
individual Trustee of the Trust. The Servicing Agent further agrees that all
obligations of a Fund hereunder shall be solely the obligations of such Fund.
14. Governing Law. This Agreement shall be construed and enforced in
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accordance with and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed as of the day and year first stated above.
XXXXX FARGO FUNDS TRUST, on behalf of the
classes of shares of the Funds listed in the
attached Appendix
By:_______________________________________
Name: [Officer of Trust]
Title: [Title or Officer]
[NAME OF SERVICING AGENT]
By:________________________________
Name: [Officer of Servicing Agent]
Title: [Title of Officer]
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APPENDIX
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[Applicable Funds of Funds Trust to be inserted]
Approved as to Form: March 26, 1999
A-1
