THE XXXXXX TRUST
SHAREHOLDER SERVICE AGREEMENT
AGREEMENT made this________day of _____________,2001, between Forum
Administrative Services, LLC ("Forum"), a limited liability company organized
under the laws of State of Delaware with its principal place of business at Two
Portland Square, Portland, ME 04101 and the institution executing this document
below (the "Institution").
WHEREAS, Forum acts as administrator of The Xxxxxx Trust (the "Trust"),
a Delaware business trust registered under the Investment Company Act of 1940,
as amended (the "Act") as an open-end management investment company, which may
issue its shares of beneficial interest in separate series; and
WHEREAS, the Trust has adopted a Shareholder Service Plan with respect
to each series of the Trust (the "Service Plan") that authorizes Forum to pay
fees to qualified financial institutions for maintaining and providing services
to shareholder accounts of each series of the Trust; and
WHEREAS, Forum desires that Institution perform certain service
activities on behalf of Forum and the Trust with respect to each series of the
Trust listed in Schedule A to this Agreement (each a "Fund," and collectively,
the "Funds") and Institution is willing to perform those services on the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the representations,
covenants and agreements contained herein and other valuable consideration, the
undersigned parties do hereby agree as follows:
SECTION 1. SERVICE ACTIVITIES
In connection with providing services and maintaining shareholder
accounts of each Fund with respect to its various customers, Institution may
provide services including: (a) establishing and maintaining accounts and
records relating to clients of Institution; (b) answering shareholder inquiries
regarding the manner in which purchases, exchanges and redemptions of shares of
the Trust may be effected and other matters pertaining to the Trust's services;
(c) providing necessary personnel and facilities to establish and maintain
shareholder accounts and records; (d) assisting shareholders in arranging for
processing purchase, exchange and redemption transactions; (e) arranging for the
wiring of funds; (f) guaranteeing shareholder signatures in connection with
redemption orders and transfers and changes in shareholder-designated accounts;
(g) integrating periodic statements with other shareholder transactions; and (h)
providing such other related services as the shareholder may request.
Institution shall not be obligated to perform any specific service for its
clients. Institution's appointment shall be nonexclusive and Forum may enter
into similar agreements with other persons.
SECTION 2. COMPENSATION
(a) As compensation for Institution's service activities with respect
to each Fund, Forum shall pay Institution fees in the amounts listed on Schedule
B to this Agreement (the "Payments"); provided, however, that in no event will
Forum be required to make any payments for service activities in an amount
greater than that which Forum is paid by the respective Fund for such services.
(b) The Payments shall be accrued daily and paid monthly or at such
other interval as Forum and Institution shall agree.
(c) On behalf of each Fund, Institution may spend such amounts and
incur such expenses as it deems appropriate or necessary on any service
activities. Such expenses may include compensation to employees and expenses,
including overhead and telephone and other communication expenses, of
Institution. Institution shall be solely liable for any expenses it incurs.
SECTION 3. REPRESENTATIONS OF INSTITUTION
Institution represents that:
(a) the compensation payable to it under this Agreement in connection
with the investment in any Fund of the assets of its customers (i) will be
disclosed by the Institution to its customers, (ii) will be authorized by its
customers, and (iii) will not result in an excessive fee to Institution;
(b) if it is a member of the National Association of Securities
Dealers, Inc. ("NASD"), it shall abide by the Rules of Fair Practice of the
NASD;
(c) it will, in connection with sales and offers to sell shares,
furnish to or otherwise insure that each person to whom any such sale or offer
is made receives a copy of the appropriate Fund's or Funds' then current
prospectus, as applicable;
(d) it will purchase shares only from Forum as agent of the Trust and
that it will purchase shares only for the purpose of covering purchase orders
already received or for its own bona fide investment purposes;
(e) the performance of all its obligations hereunder will comply with
all applicable laws and regulations, including any applicable Federal securities
laws and any requirements to deliver confirmations to its customers, the
provisions of its charter documents and bylaws and all material contractual
obligations binding upon the Institution; and
(f) it will promptly inform the Trust of any change in applicable laws
or regulations (or interpretations thereof) or in its charter or bylaws or
material contracts which would prevent or impair full performance of any of its
obligations hereunder.
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SECTION 4. TRUST LITERATURE
Institution is not authorized to make any representations concerning
shares of any Fund except those contained in the Fund's then current prospectus
and statement of additional information ("SAI") and printed information issued
by the Trust or by Forum as information supplemental to the prospectus. Forum
will supply Institution upon its request with prospectuses, SAIs, reasonable
quantities of supplemental sales literature and additional information.
Institution agrees not to use other advertising or sales material relating to a
Fund unless approved in writing by Forum in advance of such use. Any printed
information furnished by Forum other than the then current prospectus and SAI,
periodic reports and proxy solicitation materials are Forum's sole
responsibility and are not the responsibility of the Trust and the Trust shall
have no liability or responsibility to Institution in these respects unless
expressly assumed in connection therewith. Institution shall have no
responsibility with regard to the accuracy or completeness of any of the printed
information furnished by Forum and shall be held harmless by Forum from and
against any cost or loss arising therefrom.
SECTION 5. REPORTS
Institution shall prepare and furnish to Forum, at Forum's request,
written reports setting forth all amounts expended by Institution and
identifying the activities for which the expenditures were made.
SECTION 6. INDEMNIFICATION
Institution agrees to indemnify and hold harmless Forum and the Trust
from any claims, expenses, or liabilities incurred by Forum or the Trust as a
result of any act or omission of the Institution in connection with its services
under this Agreement.
SECTION 7. EFFECTIVENESS, DURATION AND TERMINATION
(a) This Agreement shall become effective on the date hereof and, upon
its effectiveness, shall supersede all previous agreements between the parties
covering the subject matter hereof.
(b) This Agreement may be terminated as follows:
(i) at any time, without the payment of any penalty, by the
vote of a majority of the Trustees of the Trust;
(ii) automatically in the event of the termination of the
Administration or Distribution agreements between the Trust and Forum
or the Service Plan;
(iii) automatically in the event of the assignment of this
Agreement as defined in the Act; and
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(iv) by either party to the Agreement without cause by giving
the other party at least sixty (60) days' written notice of its
intention to terminate.
SECTION 8. NOTICES
Any notice under this Agreement shall be in writing and shall be
addressed and delivered, or mailed postage prepaid, to the other party's
principal place of business, or to such other place as shall have been
previously specified by written notice given to the other party.
SECTION 9. AMENDMENTS
Subject to approval of material amendments to the form of this
Agreement by the Trust's Board of Trustees, this Agreement may be amended by the
parties at any time. In addition, this Agreement may be amended by Forum from
time to time by the following procedure: Forum will mail a copy of the amendment
to Institution at its principal place of business or such other address as
Institution shall in writing provide to Forum. If Institution does not object to
the amendment within thirty (30) days after its receipt, the amendment will
become part of the Agreement. The Institution's objection must be in writing and
be received by Forum within the thirty days.
SECTION 10. USE OF THE TRUST'S NAME
Institution shall not use the name of the Trust on any checks, bank
drafts, bank statements or forms for other than internal use in a manner not
approved by the Trust prior thereto in writing; provided however, that the
approval of the Trust shall not be required for the use of the Trust's name
which merely refers in accurate and factual terms to the Trust in connection
with the Institution's role hereunder or which is required by any appropriate
regulatory, governmental or judicial authority; and further provided that in no
event shall such approval be unreasonably withheld or delayed.
SECTION 11. MISCELLANEOUS
(a) This Agreement shall be construed in accordance with the laws of
the State of New York.
(b) If any provision of this Agreement shall be held invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement shall not
be affected thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
INSTITUTION:
Name of Institution
By:
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Name:
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Title:
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FORUM ADMINISTRATIVE SERVICES, LLC
By:
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THE XXXXXX TRUST
SHAREHOLDER SERVICE AGREEMENT
SCHEDULE A
SERIES OF THE XXXXXX TRUST
Xxxxxx Value Fund
A-1
THE XXXXXX TRUST
SHAREHOLDER SERVICE AGREEMENT
SCHEDULE B
PAYMENTS PURSUANT TO THE SERVICE PLAN
0.25% of the average annual daily net assets of each Fund represented by shares
owned by investors for which Institution provides services pursuant to this
Agreement.
B-1
