EX-99.(h)(5)
ADMINISTRATIVE AND SHAREHOLDER SERVICES AGREEMENT
THIS AGREEMENT dated and effective as of __________, 2006, is by and among
Xxxxx Fargo Funds Management, LLC, a Delaware limited liability company
("WFFM"), Xxxxx Fargo Funds Distributor, LLC, a Delaware limited liability
company ("WFFD"), and ____________, a ____________ corporation ("Company").
WITNESSETH:
WHEREAS, Company has agreed to provide accounting, record-keeping, and other
administrative and shareholder services with respect to (i) its investment
advisory, brokerage, trust department or other customers who beneficially own
shares of the Funds (as defined below) (each, a "Customer," and collectively,
the "Customers"), and/or (ii) certain separate account(s) identified in writing
to WFFD (each a "Separate Account") which fund certain variable insurance and
annuity products offered by the Company (each a "Contract") and beneficially
owned by one or more beneficial owners (each a "Contract Owner" and, together
with Customers, the "Customers");
WHEREAS, WFFD is the principal underwriter of certain open-end investment
companies (and series/portfolios thereof) listed on Exhibit A (hereinafter
individually, a "Fund" or collectively, the "Funds"), on behalf of which WFFD
is authorized pursuant to each Fund's respective Service Plan to enter into
shareholder service agreements and to pay third parties for providing
shareholder services;
WHEREAS, WFFM serves as investment adviser and administrator for the Funds;
WHEREAS, it is intended that WFFM will establish one or more master accounts
(each, an "Account") in such classes of shares of the Funds ("Shares") as set
forth on Exhibit A, on the mutual fund shareholder accounting system of each
Fund, reflecting the aggregate ownership (including shares held by a Separate
Account) by all Customers of Shares of each Fund and aggregate Share
transactions as requested by Company on behalf of the Customers;
WHEREAS, it is intended that Company will establish individual accounts on
its record-keeping system reflecting all transactions by or on behalf of each
Customer, which result in purchases or redemptions by that Customer of Shares;
WHEREAS, it is intended that Company will act as an agent solely for the
limited purpose of receiving orders of the Customers for purchases and
redemptions of Shares resulting from transactions by or on behalf of the
Customers (including any transactions which represent purchases on behalf of a
Separate Account) and recording such purchases and redemptions and making and
maintaining records concerning the Customers' (or Separate Accounts') interests
in the Funds on Company's record-keeping system; and
WHEREAS, it is intended that WFFM will furnish Company prospectuses,
shareholder reports and other information as required with respect to each
Fund, which the Company will, in turn, furnish to Customers.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, the parties hereto, intending to be legally bound, hereby agree and
declare as follows:
Section 1. Appointment as Agent
Company is hereby appointed as an agent solely for the limited purpose of
receiving Instructions (as defined below), in accordance with the procedures
outlined in Exhibit B (the "Procedures"), for purchases and redemptions by the
Customers of Shares. Such purchases and redemptions will be based on
Customer-level transactions made by or on
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behalf of Customers, which are recorded on Company's record-keeping system. For
purposes of this Agreement, "Customer-level transactions" will include:
(a) Any authorized direction to invest contributions, including new
account establishments, by or on behalf of any Customer in a Fund in
accordance with the terms and conditions established by the Company
and each Fund's then current prospectus (each, a "Prospectus" and
collectively, the "Prospectuses");
(b) Any authorized direction to transfer or exchange existing amounts
invested in a Fund on behalf of any Customer to any other investment
option, including exchanges between Funds, in accordance with the
terms and conditions established by the Company and the Funds'
Prospectuses; and
(c) Any authorized direction to pay loan, withdrawal or distribution
proceeds from the Company to a Customer, which results in a
redemption of Shares in accordance with the terms and conditions
established by the Company and the Fund's Prospectuses.
Company will maintain records on behalf of each Fund for each Customer
reflecting all Shares purchased and redeemed by the Customer based on
Customer-level transactions (including the date and price for all transactions
and Share balances) and all reinvestments by the Customer of dividends and
capital gains distributions paid by the Fund. Company will reconcile on each
Business Day (defined below) (i) all transactions by each Customer involving
Shares (including purchases, redemptions and reinvestments of dividends and
capital gains distributions) with the corresponding Customer-level transactions
on Company's record-keeping system; and (ii) the aggregate position of each
Customer on Company's record-keeping system with the corresponding balance in
an Account as reflected in statements provided by WFFM for that Business Day.
Company will immediately advise WFFM by telephone, facsimile or electronic mail
of any discrepancies between Company's records and the balances in the Account
and will promptly follow up with written notice of any notice provided by
telephone. Notwithstanding Company's appointment under this Agreement as an
agent to receive Instructions (as defined below), Company will have no
authority under this Agreement or otherwise to act as an agent with respect to
or in connection with the distribution of Shares. For purposes of this
Agreement, with respect to each Fund, a "Business Day" refers to any day that a
particular Fund is open for business, determined in accordance with that Fund's
Prospectus.
In the event of any error in the determination of the price of Shares on any
day (a "pricing error"), transactions effected pursuant to this Agreement shall
be recalculated promptly using the correct price and adjustments and/or
payments shall be made to each Account consistent with such Fund's net asset
value error correction policies. To the extent any Customer account has not
been made whole for any loss arising out of such pricing error pursuant to a
Fund's policies (subject to certain de minimis losses not required to be made
whole), WFFD shall make such Customer account whole. WFFD shall not, nor shall
any Fund, be responsible for payment of any costs of reprocessing Account
holdings or values or costs of reprocessing values or amounts held by
particular Customers arising out of a pricing error if the pricing error is
discovered and corrected in five or fewer business days.
Section 2. Administrative Services Procedures
The Procedures governing the parties' responsibilities under this Agreement
with respect to instructions for the purchase or redemption of Shares
("Instructions") and communications of the net asset values of each Fund are
set forth in Exhibit B of this Agreement. (All terms defined in Exhibit B will
have the same meaning when used in this Agreement.) The Procedures will be
consistent in all material respects with the terms of each Fund's Prospectus,
applicable requirements of the Investment Company Act of 1940, as amended
("1940 Act") and the Securities Exchange Act of 1934, as amended ("Exchange
Act"), and any other applicable laws, rules and regulations. In the event of a
discrepancy between the terms of a Fund's Prospectus and the Procedures, the
particular Fund's Prospectus will govern.
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Section 3. Consideration
For the services provided by Company under this Agreement, Company may be
entitled to receive consideration as described in Exhibit C hereof.
Section 4. Shareholder Services
Company shall provide to holders of Shares in an Account such services and
other assistance as may from time to time be reasonably requested by WFFD or
its affiliates, including but not limited to answering inquiries regarding the
Funds, providing information programs regarding the Funds, assisting in
selected dividend payment options, account designations and addresses and
maintaining the investment of such customer or Customer in the Funds; provided,
however, Company shall not provide distribution services primarily intended to
result in the sale of Shares, unless Company is a broker-dealer registered with
the National Association of Securities Dealers, a "bank" as defined in the
Exchange Act or otherwise exempt from registration as a broker-dealer.
Section 5. Redemptions, Repurchases and Exchanges of Funds
(a) Company agrees that it will not make any representations to shareholders
relating to the redemption of their Shares other than the statements
contained in the applicable Prospectus and the underlying organizational
documents of the Fund to which it refers, and that Company will pay as
redemption proceeds to shareholders the net asset value, minus any
applicable redemption fee or contingent deferred sales charge,
determined after receipt of the order as discussed in the Prospectus.
Such redemption fee or contingent deferred sales charge shall be
assessed, collected, and remitted by Company to the Fund in accordance
with the Prospectus.
(b) Company agrees not to repurchase any Shares from its customers at a
price below that next quoted by a Fund for redemption or repurchase,
i.e., at the net asset value of such Shares, less any applicable
redemption fee, in accordance with the Fund's Prospectus. Company shall,
however, be permitted to sell Shares for the account of the customer or
record owner to a Fund at the repurchase price then currently in effect
for such Shares and may charge the customer or record owner a fair
service fee or commission for handling the transaction, provided Company
discloses the fee or commission to the customer or record owner.
Nevertheless, Company agrees that it shall not maintain a secondary
market in such repurchased Shares.
(c) Company agrees that it will comply with any restrictions and limitations
on exchanges described in each Fund's Prospectus, including any
restrictions or prohibitions relating to frequent purchases and
redemptions (i.e., market timing).
Section 6. Representations and Warranties
(a) Representations and Warranties of WFFM and WFFD - WFFM and WFFD
represent and warrant that (i) this Agreement has been duly authorized
by WFFM and WFFD, and when executed and delivered, will constitute the
valid, legal and binding obligations, enforceable in accordance with its
terms; and (ii) the Shares are registered or otherwise authorized for
issuance and sale in compliance with the Securities Act of 1933, as
amended (the "1933 Act") and all other applicable federal and state
securities laws.
(b) Representations and Warranties of Company - Company represents and
warrants that (i) this Agreement has been duly authorized by Company
and, when executed and delivered, will constitute the valid, legal and
binding obligation of Company, enforceable in accordance with its terms;
(ii) it has all licenses, registrations, or other governmental or
regulatory approvals required to perform the services to be performed by
it or them hereunder and that all such services will be performed in
conformity with all federal and state laws, rules and regulations;
(iii) it has and will continue to have the necessary facilities,
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equipment and personnel to perform its duties and obligations under this
Agreement; and (iv) to the extent that Company transmits purchase and
redemption instructions using Fund/SERV as provided in Option B of the
Procedures, it is a member in good standing of the National Securities
Clearing Corporation and will abide by its rules and regulations; (v) to
the extent that Shares are sold to a Separate Account, (A) Company has
duly informed each Separate Account that shares of the Fund may be sold
to the general public and are not restricted for sale to separate
accounts of insurance companies or qualified plans under the Internal
Revenue Code of 1986, as amended (the "Code"), (B) Company has duly
informed each Separate Account that no Fund has agreed to comply with
817(h) of the Code or Treasury Regulations 1.817-5, as each may be
amended from time to time, relating to the diversification requirements
for variable annuity, endowment or life contracts, (C) the Contracts
will be issued and sold, in all material respects, in compliance with
all applicable federal and state laws, and (D) the sale of Contracts
shall comply in all material respects with state insurance suitability
requirements.
(c) Notification - WFFM, WFFD and Company each agrees to promptly notify the
other parties of any facts or circumstances that may cause any of the
representations and warranties under this Section 6 to no longer be
valid.
Section 7. Instructions
All Instructions communicated by Company to WFFM with respect to the
Customers on any Business Day in accordance with the Procedures will be based
on Instructions that Company received and accepted as being in good order from
persons authorized to give such Instructions for or on behalf of a Customer no
later than the time as of which net asset value is determined for each Fund as
specified in such Fund's Prospectus ("Close of Trading") on the trade date.
Such receipt by Company will be deemed to be receipt of the same by the Fund.
Under no circumstances will Company change, alter or manipulate any Instruction
received by it in good order.
Section 8. Covenants
Company covenants that (i) it is and will be responsible for preparing and
submitting all necessary reports to each Customer whether daily, periodic,
year-end, annual and/or special basis, and will assist the Customers in
reporting to applicable federal and state regulatory authorities; (ii) it is
and will be solely responsible for the actual delivery to the Customers all
proceeds of, and the collection of all required withholding taxes from, all
redemptions and the payment of all sums withheld from such redemptions to the
applicable federal or state taxation authority; (iii) it will transmit
Instructions for a Business Day, in accordance with the Procedures that are
based only on those Instructions and Customer-level transactions that Company
received and accepted as being in good order (from persons authorized to give
such Instructions for or on behalf of the Customers) no later than the Close of
Trading for that Business Day; (iv) it will promptly review all Account
information provided to it or made available by WFFM in accordance with the
Procedures and will immediately notify WFFM in writing of any discrepancies
between the records it maintains and the balances in an Account; (v) it will
not make any representations to Customers concerning Shares other than those
contained in the applicable Fund's Prospectus or any supplemental material to
such Prospectus provided or approved in writing by WFFD or its designee;
(vi) it will, upon request, provide WFFM with information about each Customer
that beneficially owns more than five percent of a Fund's then-outstanding
Shares; and (vii) it will abide by all present and future applicable anti-money
laundering and anti-terrorist financing laws, regulations, related Securities
and Exchange Commission ("SEC") rules and government guidance, including, but
not limited to the USA PATRIOT Act of 2001 and the reporting, recordkeeping and
compliance requirements thereunder.
Section 9. Payment for Orders
(a) Payment for Net Purchases - Payment for net purchases of Shares will be
wired in accordance with the Procedures by the Company's custodian or
other designated agent to a custodial account designated by WFFM.
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(b) Payment for Net Redemptions - Payment for net redemptions of Shares will
be wired in accordance with the Procedures from a Fund's custodial
account to the Company's custodian or other designated agent.
Section 10. Fund Communications
WFFM will supply or cause to be supplied to Company the following materials
and information with respect to the Funds, which Company will furnish to the
Customers where appropriate and as required by applicable law:
(a) Fund Prospectuses, Annual Reports, Proxies and Related Materials -
Company will be responsible for the timely delivery of all prospectuses,
shareholder reports, proxies, and related materials, provided to it by
WFFM, to each Customer to the extent required by applicable law.
(b) Notice of Dividends and Other Distribution Reports - WFFM shall furnish
Company notice of any dividends or other distributions payable on the
Shares in accordance with the Procedures. Dividends and distributions
shall be automatically reinvested in additional Shares held by the
Customers, and WFFM shall notify Company as to the number of Shares so
issued. Company will be responsible for providing such information to
the Customers.
(c) Review of Customer Communications Materials - Company may prepare
communications or disclosure materials, based on a Fund's Prospectus and
information supplied by WFFM under Section 10(a) above, for Customers
that describe such Fund in the same format as that used for the other
investment options offered by the Company. Company will supply WFFM with
copies of such materials within a reasonable period of time in advance
of their intended distribution to Customers. Company agrees not to use
any such materials without prior written approval from WFFM and will be
responsible for filing such materials with, and obtaining any necessary
approvals from, all appropriate regulatory authorities in connection
with such use.
(d) Customer Communications - Company will be responsible for maintaining
and responding to all Customer communications and inquiries.
Section 11. Records of Company
(a) Maintenance of Records - Company will maintain records sufficient to
identify the date and time of receipt of all Instructions and
Customer-level transactions involving a Fund. Company will also maintain
records for each Customer reflecting all Shares purchased and redeemed
by the Customer based on Customer-level transactions (including the date
and price for all transactions and share balances) and all reinvestments
by the Customer of dividends and capital gain distributions paid by a
Fund. Company will maintain records sufficient to demonstrate that each
Customer-level transaction was received in good order, was placed by a
person authorized to do so, and, when applicable, was accompanied by
required supporting documentation and payment. Company will maintain
records sufficient to demonstrate that purchases and redemptions have
been made in accordance with the policies in the applicable Fund
Prospectus.
(b) Access to Company Records - At the request of WFFM or the Funds, and
subject to any confidentiality obligations of Company, Company will make
available copies of all records of Customer-level transactions
maintained by Company as may be reasonably requested by WFFM or the
Funds to ensure compliance with applicable law and the provisions of
this Agreement. Company agrees that such records will be made available
to the SEC in accordance with the requirements of Rule 17Ad-7(g) under
the Exchange Act or to any other regulatory authority requesting such
information.
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(c) Access to Fund Records - At the request of Company, and subject to any
confidentiality obligations of WFFM, WFFM will make available copies of
records maintained by it relating to investment in the Funds by the
Customers as may be reasonably requested by Company to ensure compliance
with applicable law.
Section 12. Reporting Obligations of Company
For reports, Company shall maintain all Customers accounts, prepare meeting,
proxy, and mailing lists, withhold taxes on U.S. resident and non-resident
alien accounts, prepare and file U.S. Treasury Department reports required with
respect to interest, dividends and distributions by federal authorities for all
Customers, prepare confirmation forms and statements of account to the
Customers for all purchases and redemptions of Shares and other confirmable
transactions in the Customer accounts.
Section 13. Expenses
Company shall be responsible for paying any expenses it incurs in connection
with the performance of its obligations under this Agreement. The costs will
include, but are not limited to, transaction processing and any requested and
required corrections thereto. The costs of distributing proxy materials,
shareholder reports and other materials provided to Company pursuant to
Section 10 of this Agreement will be paid by Company and not by WFFM.
Section 14. Cross Indemnification of Parties
WFFM and WFFD, their affiliates, the Funds, and their officers, directors,
trustees, employees, agents and persons, if any, who control them within the
meaning of the 1933 Act, ("Indemnified Persons") will not be held responsible
for, and Company will indemnify and hold the Indemnified Persons harmless from
and against, any and all losses, damages, costs, charges, counsel fees,
payments, expenses, and liabilities directly or indirectly arising out of or
relating to: (i) Company's lack of good faith, negligence, or willful
misconduct in carrying out its duties and responsibilities under this
Agreement; (ii) any breach by Company of this Agreement; (iii) the failure of
Company or the Customers to comply with any applicable law, rule or regulation
in connection with the discharge of duties under this Agreement; (iv) any
breach by Company of any obligation to a Customer, including any breach arising
out of a failure to comply with applicable laws and regulations governing the
issuance and sale of the Contracts; (v) any failure by Company to communicate
Instructions within the time period set forth in the Procedures or to comply
with any obligations or duties imposed by the Procedures; (vi) any
communications of Instructions by Company, which has not been, or is claimed
not to have been, authorized by or on behalf of a Customer; or (vii) any error
or omission in, or cancellation of, any Instruction communicated by Company to
WFFM, including any error resulting from erroneous Instructions communicated by
or on behalf of a Customer to Company. Company, its affiliates, and their
officers, directors, employees, and agents ("Company Indemnified Persons") will
not be held responsible for, and WFFD and WFFM will indemnify and hold Company
Indemnified Persons harmless from and against, any and all losses, damages,
costs, charges, counsel fees, payments, expenses, and liabilities directly or
indirectly arising out of or attributable to: (i) their respective lack of good
faith, gross negligence, or willful misconduct in carrying out its duties and
responsibilities under this Agreement; (ii) their respective breach of this
Agreement; or (iii) their respective failure to comply with any applicable law,
rule or regulation in connection with the discharge of its duties under this
Agreement.
Section 15. Confidentiality and Proprietary Information
(a) All books, records, information and data pertaining to the business of
the other party that are exchanged or received in connection with this
Agreement, unless publicly available, shall be kept confidential and
shall not be voluntarily disclosed to any other person, except as may be
required hereunder or by law or court order.
(b) All information relating to past, present and prospective "consumers"
and "customers" as such terms are defined in the SEC's Regulation S-P
("SP Customers") must be maintained in strict confidence. Each party
covenants and agrees that it will neither use nor disclose any
information about the other's
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SP Customers except as necessary to fulfill its obligations under this
Agreement or as otherwise permitted by law; provided however, the
forgoing reciprocal promises to safeguard SP Customer information shall
not apply to information about a party's own SP Customers, which
information shall be subject only to that party's obligations under
applicable laws.
(c) Each party hereto acknowledges that the databases, computer programs,
screen formats, report formats, interactive design techniques, and
documentation manuals furnished to it by the other party hereto are the
proprietary information of such other party and are of a confidential
nature, except to the extent that such information is (a) proprietary
information of the receiving party or its affiliates, (b) in the public
domain, or (c) already in the possession of the receiving party at the
time of receipt. The receiving party shall use commercially reasonable
measures to prevent unauthorized persons from gaining access to,
distributing, or otherwise using such proprietary information.
(d) Each party shall use commercially reasonable measures to advise its
employees of their obligations in connection with this Section 15.
(e) The parties acknowledge that a breach of the provisions of this
Section 15 may cause irreparable harm for which money damages would not
be adequate compensation, and the parties agree that injunctive relief
will be appropriate for redress of any such breach. The provisions of
this Section 15 shall survive termination of this Agreement.
Section 16. Insurance
Company agrees to maintain errors and omissions or other professional
liability insurance coverage with coverage limits in amounts standard in the
industry, covering its activities as contemplated by this Agreement. If
requested, Company shall provide WFFM with a certificate of insurance
evidencing said coverage at the inception of operations and prior to expiration
of any insurance. The mere purchase and existence of insurance does not reduce
or release Company from liability incurred and/or assumed within the scope of
this Agreement. Company's failure to maintain insurance shall not relieve it of
liability under this Agreement.
Section 17. Due Diligence
Company acknowledges that it has provided certain information to WFFM
regarding, among other things, its financial condition and ability to perform
the services described herein. Company agrees that during the term of this
Agreement, Company will, upon application by WFFM, verify the continued
accuracy of such information originally provided and, to the extent such
information is no longer accurate, to provide WFFM with revised information
within 30 days of WFFM's request. Within seven days of WFFM's written request
(due to adverse events disclosed pursuant to Sections 8 or 16, or otherwise),
Company shall provide a written explanation and assurances to WFFM. In any
event, without application by WFFM, Company agrees to promptly notify WFFM of
any material adverse change in any of the information previously provided or
requested by WFFM.
Section 18. Notices
Every notice required by this Agreement will be deemed given when sent in
accordance with the Procedures or, as to any matter not addressed by the
Procedures, (i) the next Business Day if sent by a nationally recognized
overnight courier service that provides evidence of receipt, or (ii) on the
third Business Day if sent by certified mail, return receipt requested. Notices
required by the Agreement should be sent as follows:
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If to Company: ___________________________________________
___________________________________________
___________________________________________
___________________________________________
Attn: _____________________________________
Company Phone: ____________________________
Company Facsimile: ________________________
If to WFFM or: Xxxxx Fargo Funds
WFFD Management, LLC
Xxxxx Fargo Funds
Distributor, LLC
000 Xxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000
Attn: National Accounts
Section 19. Delegation and Assignment
(a) Each party hereto may delegate any of its rights, powers or duties under
this Agreement to any person; provided that such person is qualified and
able to provide the services contemplated herein. Delegation by any
party shall not relieve such party from any obligation or duty under
this Agreement.
(b) Company may not assign any of its rights, powers or duties under this
Agreement without WFFD's and WFFM's written consent and any purported
assignment in violation of this Agreement shall be void.
Section 20. Amendment or Termination of Agreement
(a) The parties to this Agreement may agree in writing to amend this
Agreement at any time in whole or in part.
(b) Either party may terminate this Agreement at any time on 30 days'
written notice to the other party (which notice may be waived by the
other party).
(c) Notwithstanding the 30 day notice requirement of paragraph (b) of this
Section 21, either party may terminate this Agreement effective
immediately on written notice to the other party (the "Breaching Party")
in the event of any material violation or material breach of any of the
provisions of this Agreement by the Breaching Party which is not cured
within thirty (30) days after written notice has been given to the
Breaching Party specifying the nature of the material violation or
material breach.
(d) Notwithstanding anything to the contrary in this Agreement, WFFM or WFFD
may in its sole discretion terminate this Agreement effective
immediately if it determines that Company is unable to fulfill its
obligations hereunder (based on information received pursuant to
Sections 8, 16 or 17, or otherwise), regardless of whether or not
Company has given assurances to the contrary.
(e) Notwithstanding anything to the contrary in this Agreement, WFFM or WFFD
may in its sole discretion terminate this Agreement effective
immediately if within one month of the date of this Agreement Company
does not have the necessary facilities or equipment to or refuses to
transmit Instructions to WFFM in accordance with the Procedures.
(f) This Agreement will automatically terminate (i) upon the discontinuance
of the Funds as an investment option offered by the Company; (ii) if, at
any time, the authorizations, licenses, qualifications or registrations
required to be maintained by any of the parties to this Agreement in
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connection with the performance of their respective duties under this
Agreement lapse or cease to remain in full force and effect; (iii) if,
due to changes in the laws or for other reasons, any action to be taken
or service to be provided under this Agreement should become unlawful;
or (iv) if the continuation of this Agreement results in a material
adverse effect upon WFFM or WFFD.
(g) Upon termination of this Agreement for any reason, Shares will no longer
be permitted to be purchased pursuant to this Agreement, but Shares may
continue to be redeemed pursuant to this Agreement. In such event,
Company shall continue to serve as an agent for the limited purpose of
receiving redemption Instructions for Shares and transmitting such
Instructions in accordance with the Procedures.
(h) WFFM may also terminate this Agreement as described in Exhibit B,
paragraph (c).
Section 21. Force Majeure
In the event a party is unable to perform its obligations under the terms of
this Agreement because of acts of God, strikes, equipment failure or damage
reasonably beyond its control, or other causes reasonably beyond its control,
such party shall not be liable for damages resulting from such failure to
perform or otherwise from such causes.
Section 22. Survival
If any provision of this Agreement is or becomes inconsistent with any
applicable law, rule or regulation, the provisions will be deemed rescinded or
modified to the extent necessary to comply with such law or rule. In all other
respects this Agreement will continue in full force and effect.
Section 23. Waiver
Except as provided in Section 21, no term of this Agreement may be waived or
changed except in writing signed by both parties. Failure to insist on strict
compliance with this Agreement or with any of its terms or any continued
conduct will not be considered a waiver by either party of its rights under
this Agreement. This Agreement contains the entire understanding between the
parties.
Section 24. Counterparts
This Agreement may be executed in one or more counterparts, each of which
will be an original and all of which together will be deemed one and the same
document.
Section 25. Exhibits
All Exhibits to this Agreement, as they may be amended or included from time
to time, are by this reference incorporated into and made a part of this
Agreement.
Section 26. Governing Law
This Agreement will be governed exclusively by the laws of the State of
California, without reference to the conflicts of law principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by duly authorized officers as of the day and year
first above written.
COMPANY:
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Authorized Signature Title
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Printed Name Date
XXXXX FARGO FUNDS MANAGEMENT, LLC
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Authorized Signature Title
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Printed Name Date
XXXXX FARGO FUNDS DISTRIBUTOR, LLC
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Authorized Signature Title
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Printed Name Date
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EXHIBIT A
FUNDS PARTICIPATING
All Funds, and all classes thereof, for which WFFD acts as principal
underwriter. For a current and complete list of the Funds, please see the
Funds' Web site at xxx.xxxxxxxxxx.xxx/xxxxxxxxxxxxxx.
A-1
EXHIBIT B
OPERATING PROCEDURES
WFFM understands and agrees that orders for purchases and redemptions
pursuant to this Agreement may be placed by use of the National Securities
Clearing Corporation's ("NSCC") NSCC-Fund/SERV system. Orders may also be
placed outside of the Fund/SERV system. The procedures to be followed by the
Company are as set forth below. Unless otherwise defined below, all capitalized
terms have the meanings specified in the Agreement of which this Exhibit is a
part.
1. Procedures for Transactions Conducted via NSCC-Fund/SERV:
(a) On each Business Day, Company will receive Instructions from Customers
for the purchase, redemption and exchange of Shares. Instructions
received by Company after Close of Trading on any Business Day will be
treated as if received on the next following Business Day.
(b) Company will use its best efforts to provide advance notify WFFM, either
verbally or by facsimile, of aggregate purchases and redemptions of
$1,000,000 or more for each Fund.
(c) On each Business Day on which Company receives Instructions, Company
shall transmit to WFFM via the NSCC Fund/SERV system prior to the NSCC's
trade cutoff time (currently 8:00 p.m. Eastern Time on trade date)
purchase and redemption Instructions for all Customers of each
registered representative of the Company. In situations where the
Company is unable to meet that cutoff time due to system malfunctions,
the Company may call in the Instructions by no later than 8:00 a.m.
Eastern Time on the Business Day following the trade date for such
orders, such Instructions will still be effected at the net asset value
for the previous Business Day on an "as of" basis. In "as of" cases
where a Fund experiences a loss, Company agrees to reimburse each Fund
for any loss incurred by that Fund or dilution caused to that Fund
promptly upon demand. If Company utilizes the extension permitted by
this paragraph more than twice in any three month period, WFFM reserves
the right to terminate this Agreement and revoke the trading
arrangements described herein.
(d) The Fund reserves the right, in its sole discretion, to reject, reverse
or reprice the orders (notwithstanding that Company may have received
Fund/SERV confirmation of the orders) and Company will be responsible
for reimbursement of any loss sustained by the Fund that may arise out
of the improper transmittal of such orders.
(e) With respect to purchase Instructions, such Instructions should be
segregated by sales charge discount category consistent with the terms
of the Funds' Prospectuses. In applying sales charges, the Company shall
take into account other assets eligible for linking pursuant to rights
of accumulation, concurrent purchases, aggregating accounts and
statement of intention, each as described in the Funds' Prospectuses. In
the case of redemption Instructions, Company shall transmit to WFFM, in
accordance with the above, one aggregate Instruction reflecting all
redemption orders received on behalf of all Customers. The Company shall
disburse or credit to Customers all proceeds of redemptions of Shares of
each Fund and all dividends and other distributions not reinvested in
Shares of each Fund.
(f) Company shall perform all applicable redemption fee and CDSC tracking,
collection, and reporting (e.g., Distributor Liability Reports) and
provide that information to WFFM on a monthly basis.
2. Procedures for Orders Transmitted Outside of Fund/Serv:
(a) Company agrees that (i) orders derived from Instructions received by it
prior to the time as of which Fund's net asset value is determined must
be transmitted by Company to WFFM via facsimile or any other
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agreed upon method of communication by 8:00 a.m. Eastern Time on the day
after trade date ("TD+1"), and (ii) orders derived from Instructions
received at or after the time as of which Fund's net asset value is
determined on a specific trade date must be received by WFFM or its
designee by 8:00 a.m. Eastern Time on the business day after TD+1.
(b) WFFM agrees that (i) orders specified in Paragraph 2(a)(i) shall be
effected at the Fund's net asset value calculated as of the close of
trading on trade date, and (ii) orders specified in Paragraph 2(a)(ii)
will be effected at the Fund's net asset value as calculated as of the
close of the market on TD+1.
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