EXHIBIT NO. 9(D)(II)
FORM OF
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, by and between: (i) each of the trusts listed on the
signature page hereof or which may be added to this Agreement by execution of a
counterpart signature page hereto at a subsequent date pursuant to a vote of
such trust's Trustees (individually, the "Trust") and (ii) each federal savings
bank (individually, the "Financial Institution") listed on the signature page
hereof or which may be added to this Agreement by execution of a counterpart
signature page hereto at a subsequent date pursuant to appropriate authorization
by such Financial Institution's officers and directors, as a shareholder
servicing agent hereunder (the "Agent");
WITNESSETH:
WHEREAS, all transactions in Shares of Beneficial Interest of the Trust
or of any series now existing or later created of the Trust ("Shares") may be
made only by investors who are customers of, and using the services of, a
financial institution as defined in the then-current prospectus of the Trust,
which has entered into a shareholder servicing agreement with the Trust; and
WHEREAS, the Financial Institution wishes to make it possible for its
customers (the "Customers") to purchase Shares and wishes to act as the
Customers' agent in performing certain administrative functions in connection
with purchases, exchanges and redemptions of Shares from time to time upon the
order and for the account of Customers and to provide related services to its
Customers in connection with their investments in the Trust; and
WHEREAS, it is in the interest of the Trust to make the services of the
Agent available to Customers who are or may become shareholders of the Trust;
NOW, THEREFORE, the Trust and the Financial Institution hereby agree as
follows:
1. APPOINTMENT. The Financial Institution, as Agent, hereby agrees
to perform certain services for Customers as hereinafter set forth. The
Agent's appointment hereunder is non-exclusive, and the parties
recognize and agree that, from time to time, the Trust may enter into
other shareholder servicing agreements, in writing, with other
financial institutions.
2. SERVICE TO BE PERFORMED.
2.1 Type of Service. The Agent shall be responsible for performing
shareholder account administrative and servicing functions, which shall
include without limitation: (a) answering Customer inquiries regarding
account status and history, the manner in which purchases, exchanges
and redemptions of the Shares may be effected, and certain other
matters pertaining to the Trust; (b) assisting Customers in designating
and changing dividend options, account designations and addresses; (c)
providing necessary personnel and facilities to establish and maintain
certain shareholder accounts and records, as may reasonably be
requested from time to time by the Trust; (d) assisting in processing
purchases, exchange and redemption transactions; (e) arranging for the
wiring of funds; (f) verifying and guaranteeing Customer signatures in
connection with redemption orders, transfers among and changes in
Customer-designated accounts; (g) providing periodic statements showing
a Customer's account balances and, to the extent practicable,
integration of such information with information concerning other
client transactions otherwise effected with or through the Financial
Institution; (h) furnishing on behalf of the Trust's distributor
(either separately or on an integrated basis with other reports sent to
a Customer by the Agent) periodic statements and confirmations of all
purchases, exchanges and redemptions of Shares in a Customer's account
required by applicable federal or state law, all such confirmations and
statements to conform to Rule 10b-10 under the Securities Exchange Act
of 1934 and other applicable federal or state law; (i) transmitting
proxy statements, annual reports, updating prospectuses and other
communications from the Trust to Customers; (j) receiving, tabulating
and transmitting to the Trust proxies executed by Customers with
respect to annual and special meetings of shareholders of the Trust;
(k) providing reports (at least monthly, but more frequently if so
requested by the Trust's distributor) containing state-by-state
listings of the principal residences of the beneficial owners of the
Shares; and (l) providing such other related services as the Trust or a
Customer may reasonably request. The Agent shall provide all personnel
and facilities to perform the functions described in this paragraph
with respect to its Customers.
2.2 Standard of Services. All services to be rendered by the Agent
hereunder shall be performed in a professional, competent and timely
manner. The details of the operating standards and procedures to be
followed by the Agent in performance of the services described above
shall be determined from time to time by agreement between the Agent
and the Trust. The Trust acknowledges that the Agent's ability to
perform on a timely basis certain of its obligations under this
Agreement depends upon the Trust's timely delivery of certain materials
and/or information to the Agent. The Trust agrees to use its best
efforts to provide such materials to the Agent in a timely manner.
3. FEES.
3.1 Fees from the Trust. In consideration for the services
described in Section 2 hereof and the incurring of expenses in
connection therewith, the Agent shall receive fees to be paid in
arrears periodically (but in no event less frequently than
semi-annually) determined by agreement between the Trust and the Agent.
For purposes of determining the fees payable to the Agent hereunder,
the value of the Trust's net assets shall be computed in the manner
specified in the Trust's then-current prospectus for computation of the
net asset value of the Trust's Shares. The above fees constitute all
fees to be paid to the Agent by the Trust with respect to the
transactions contemplated hereby.
3.2 Fees from Customers. It is agreed that the Financial
Institution may impose certain conditions on Customers, in addition to
or different from those imposed by the Trust, such as requiring a
minimum initial investment or charging Customers direct fees for the
same or similar services as are provided hereunder by the Financial
Institution as Agent (which fees may either relate specifically to the
Financial Institution's services with respect to the Trust or generally
cover services not limited to those with respect to the Trust). The
Financial Institution shall xxxx Customers directly for such fees. In
the event the Financial Institution charges Customers such fees, it
shall notify the Trust in advance and make appropriate prior written
disclosure (such disclosure to be in accordance with all applicable
laws) to Customers of any such fees charged to the Customer. To the
extent required by applicable rules and regulations of the Securities
and Exchange Commission, the Trust shall make written disclosure of the
fees paid or to be paid to the Agent pursuant to Section 3.1 of this
Agreement. It is understood, however, that in no event shall the
Financial Institution have recourse or access as Agent or otherwise to
the account of any shareholder of the Trust except to the extent
expressly authorized by law or by such shareholder, or to any assets of
the Trust, for payment of any direct fees referred to in this Section
3.2.
4. INFORMATION PERTAINING TO THE SHARES. The Agent and its
officers, employees and agents are not authorized to make any
representations concerning the Trust or the Shares to Customers or
prospective Customers, excepting only accurate communication of any
information provided by or on behalf of any administrator of the Trust
or any distributor of the Shares or any factual information contained
in the then-current prospectus relating to the Trust or to any series
of the Trust. In furnishing such information regarding the Trust or the
Shares, the Agent shall act as agent for the Customer only and shall
have no authority to act as agent for the Trust. Advance copies or
proofs of all materials which are generally circulated or disseminated
by the Agent to Customers or prospective Customers which identify or
describe the Trust shall be provided to the Trust at least 10 days
prior to such circulation or dissemination (unless the Trust consents
in writing to a shorter period), and such materials shall not be
circulated or disseminated or further circulated or disseminated at any
time after the Trust shall have given written notice within such 10 day
period to the Agent of any objection thereto.
Nothing in this Section 4 shall be construed to make the
Trust liable for the use (as opposed to the accuracy) of any
information about the Trust which is disseminated by the Agent.
5. USE OF THE AGENT'S NAME. The Trust shall not use the name of
the Agent, (the Financial Institution or any of its affiliates or
subsidiaries) in any prospectus, sales literature or other material
relating to the Trust in a manner not approved by the Agent prior
thereto in writing; provided, however, that the approval of the Agent
shall not be required for any use of its name which merely refers in
accurate and factual terms to its appointment hereunder or which is
required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental
or judicial authority; provided, further, that in no event shall such
approval be unreasonably withheld or delayed.
6. USE OF THE TRUST'S NAME. The Agent 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 in connection
with communications permitted by Section 4 hereof or (subject to
Section 4, to the extent the same may be applicable) for any use of the
Trust's name which merely refers in accurate and factual terms to the
Trust in connection with the Agent's role hereunder or which is
required by the Securities and Exchange Commission or any state
securities authority or any other appropriate regulatory, governmental
or judicial authority; provided, further, that in no event shall such
approval be unreasonably withheld or delayed.
7. SECURITY. The Agent represents and warrants that to the best
of its knowledge, the various procedures and systems which it has
implemented (including provision for twenty-four hours a day restricted
access) with regard to safeguarding from loss or damage attributable to
fire, theft or any other cause the Trust's records and other data and
the 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. The parties shall review such systems and procedures on a
periodic basis, and the Trust shall from time to time specify the types
of records and other data of the Trust to be safeguarded in accordance
with this Section 7.
8. COMPLIANCE WITH LAWS. The Agent shall comply with all
applicable federal and state laws and regulations, including securities
laws. The 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 Agent. The Agent furthermore undertakes that it will promptly,
after the Agent becomes so aware, inform the Trust of any change in
applicable laws or regulations (or interpretations thereof) or in its
charter or by-laws or material contracts which would prevent or impair
full performance of any of its obligations hereunder.
9. REPORTS. To the extent requested by the Trust from time to
time, the Agent agrees that it will provide the Treasurer of the Trust
with a written report of the amounts expended by the Agent pursuant to
this Agreement and the purposes for which such expenditures were made.
Such written reports shall be in a form satisfactory to the Trust and
shall supply all information necessary for the Trust to discharge its
responsibilities under applicable laws and regulations.
10. RECORD KEEPING.
10.1 Section 31(a). The Agent shall maintain records in a form
reasonably acceptable to the Trust and in compliance with applicable
laws and the rules and regulations of the Securities and Exchange
Commission, including but not limited to the record-keeping
requirements of Section 31(a) of the Investment Company Act of 1940, as
amended (the "1940 Act") and the rules thereunder. Such records shall
be deemed to be the property of the Trust and will be made available,
at the Trust's request, for inspection and use by the Trust,
representatives of the Trust and governmental authorities. The Agent
agrees that, for so long as it retains any records of the Trust, it
will meet all reporting requirements pursuant to the 1940 Act and
applicable to the Agent with respect to such records.
10.2 Rules 17a-3 and 17a-4. The Agent shall maintain accurate
and complete records with respect to services performed by the Agent in
connection with the purchase and redemption of Shares. Such records
shall be maintained in form reasonably acceptable to the Trust and in
compliance with the requirements of Rules 17a-3 and 17a-4 under the
Securities Exchange Act of 1934, as amended, pursuant to which any
dealer of the Shares must maintain certain records. All such records
maintained by the Agent shall be the property of such dealer and will
be made available for inspection and use by the Trust or such dealer
upon the request of either. The Agent shall file with the Securities
and Exchange Commission and other appropriate governmental authorities,
and furnish to the Trust and any such dealer copies of, all reports and
undertakings as may be reasonably requested by the Trust or such dealer
in order to comply with the said rules. If so requested by any such
dealer, the Agent shall confirm to such dealer its obligations under
this Section 10.2 by a writing reasonably satisfactory to such dealer.
10.3 Identification, Etc. of Records. The Trust shall from
time to time instruct the Agent in writing as to, and the Trust and the
Agent shall periodically review, the records to be maintained and the
procedures to be followed by the Agent in complying with the foregoing
Sections 10.1 and 10.2 and Section 8 to the extent it relates to
record-keeping required under federal securities laws and regulations.
Notwithstanding the provisions of Section 8, the Agent shall be
entitled to rely on such instructions.
10.4 Transfer of Customer Data. In the event this Agreement is
terminated or a successor to the Agent is appointed, the Agent shall,
at the expense of the Trust, transfer to such designee as the Trust may
direct a certified list of the shareholders of the Trust serviced by
the Agent (with name, address and tax identification or Social Security
number, if any), a complete record of the account of each such
shareholder and the status thereof, and all other relevant books,
records, correspondence, and other data established or maintained by
the Agent under this Agreement. In the event this Agreement is
terminated, the Agent will use its best efforts to cooperate in the
orderly transfer of such duties and responsibilities, including
assistance in the establishment of books, records and other data by the
successor.
10.5 Survival of Record-Keeping Obligations. The
record-keeping obligations imposed in this Section 10 shall survive the
termination of this Agreement for a period of three years.
10.6 Obligations Pursuant to Agreement Only. Nothing in this
Section 10 shall be construed to mean that the Agent would, by virtue
of its role hereunder, be required under applicable law to maintain the
records required to be maintained by it under this Section 10, but it
is understood that the Agent has agreed to do so in order to enable the
Trust and its dealer or dealers to comply with laws and regulations
applicable to them.
10.7 Agent's Rights to Copy Records. Anything in this Section 10
to the contrary notwithstanding, except to the extent otherwise
prohibited by law, the Agent shall have the right to copy, maintain and
use any records maintained by the Agent pursuant to this Section 10,
except as otherwise prohibited by Sections 4 and 6 hereof.
11. FORCE MAJEURE. The Agent shall not be liable or
responsible for delays or errors by reason of circumstances beyond its
reasonable 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 or power supply.
12. INDEMNIFICATION.
12.1 Indemnification of the Agent. The Trust will indemnify and
hold the Agent harmless from all losses, claims, damages, liabilities
or expenses (including reasonable counsel fees and expenses) from any
claim, demand, action or suit (collectively, "Claims") (a) arising in
connection with misstatements or omissions in the Trust's Prospectus,
actions or inactions by the Trust or any of its agents or contractors
or the performance of the Agent's obligations hereunder and (b) not
resulting from (i) the bad faith or negligence of the Agent, its
officers, employees or agents, (ii) any breach of applicable law by the
Agent, its officers, employees or agents, (iii) any action of the
Agent, its officers, employees or agents which exceeds the legal
authority of the Agent or its authority hereunder, or (iv) any error or
omission of the Agent, its officers, employees or agents with respect
to the purchase, redemption and transfer of Customers' Shares or the
Agent's verification or guarantee of any Customer signature.
Notwithstanding anything herein to the contrary, the Trust will
indemnify and hold the Agent harmless from any and all losses, claims,
damages, liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any Claim as a result of its acting in
accordance with any written instructions reasonably believed by the
Agent to have been executed by any person duly authorized by the Trust,
or as a result of acting in reliance upon any instrument or stock
certificate reasonably believed by the Agent to have been genuine and
signed, countersigned or executed by a person duly authorized by the
Trust, excepting only the gross negligence or bad faith of the Agent.
In any case in which the Trust may be asked to indemnify or
hold the Agent harmless, the Trust shall be advised of all pertinent
facts concerning the situation in question and the Agent shall use
reasonable care to identify and notify the Trust promptly concerning
any situation which presents or appears likely to present a claim for
indemnification against the Trust. The Trust shall have the option to
defend the Agent against any Claim which may be the subject of
indemnification hereunder. In the event that the Trust elects to defend
against such Claim, the defense shall be conducted by counsel chosen by
the Trust and satisfactory to the Agent. The Agent may retain
additional counsel at its expense. Except with the prior written
consent of the Trust, the Agent shall not confess any Claim or make any
compromise in any case in which the Trust will be asked to indemnify
the Agent.
12.2 Indemnification of the Trust. Without limiting the rights of
the Trust under applicable law, the Agent will indemnify and hold the
Trust harmless from all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) from any
Claim (a) resulting from (i) the bad faith or negligence of the Agent,
its officers, employees or agents, (ii) any breach of applicable law by
the Agent, its officers, employees or agents, (iii) any action of the
Agent, its officers, employees or agents which exceeds the legal
authority of the Agent or its authority hereunder, or (iv) any error or
omission of the Agent, its officers, employees or agents with respect
to the purchase, redemption and transfer of Customers' Shares or the
Agent's verification or guarantee of any Customer signature, and (b)
not resulting from the Agent's actions in accordance with written
instructions reasonably believed by the Agent to have been executed by
any person duly authorized by the Trust, or in reliance upon any
instrument or stock certificate reasonably believed by the Agent to
have been genuine and signed, countersigned or executed by a person
duly authorized by the Trust.
In any case in which the Agent may be asked to indemnify or
hold the Trust harmless, the Agent shall be advised of all pertinent
facts concerning the situation in question and the Trust shall use
reasonable care to identify and notify the Agent promptly concerning
any situation which presents or appears likely to present a claim for
indemnification against the Agent. The Agent shall have the option to
defend the Trust against any Claim which may be the subject of
indemnification hereunder. In the event that the Agent elects to defend
against such Claim, the defense shall be conducted by counsel chosen by
the Agent and satisfactory to the Trust. The Trust may retain
additional counsel at its expense. Except with the prior written
consent of the Agent, the Trust shall not confess any Claim or make any
compromise in any case in which the Agent will be asked to indemnify
the Trust.
12.3 Survival of Indemnities. The indemnities granted by the
parties in this Section 12 shall survive the termination of this
Agreement.
13. NOTICES. All notices or other communications hereunder to
either party shall be in writing and shall be deemed sufficient if
mailed to such party at the address of such party set forth in the
preamble of this Agreement or at such other address as such party may
have designated by written notice to the other.
14. FURTHER ASSURANCES. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate
the purposes hereof.
15. TERMINATION. This Agreement may be terminated by the Trust,
without the payment of any penalty, at any time upon not more than 60
days' nor less than 30 days' notice, by a vote of a majority of the
Board of Trustees of the Trust who are not "interested persons" of the
Trust (as defined in the 0000 Xxx) and have no direct or indirect
financial interest in the operation of the Administrative Services Plan
(the "Plan"), to which this Agreement is related, this Agreement or any
other agreement related to such Plan, or by "a vote of a majority of
the outstanding voting securities" (as defined in the 0000 Xxx) of the
Trust. The Agent may terminate this Agreement upon not more than 60
days' nor less than 30 days' notice to the Trust. The period of prior
notice of termination shall be reduced to the extent necessary to
comply with the effective date of any change in applicable laws or
regulations (or interpretations thereof) which prevents or impairs full
performance of the obligations set forth herein. Provided, however, in
the event such period of prior notice is reduced, the terminating party
shall give prompt notice of termination. Notwithstanding anything
herein to the contrary, but except as provided in Section 19 of this
Agreement, this Agreement may not be assigned and shall terminate
automatically without notice to either party upon any assignment. Upon
termination hereof, the Trust shall pay such compensation as may be due
the Agent as of the date of such termination.
16. CHANGES; AMENDMENTS. This Agreement may be changed or
amended only by written instrument signed by both parties.
17. LIMITATION OF SHAREHOLDER LIABILITY. The Agent hereby agrees
that obligations assumed by the Trust pursuant to this Agreement shall
be limited in all cases to the Trust and its assets and that the Agent
shall not seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust. It is further agreed that
the Agent shall not seek satisfaction of any such obligations from the
Board of Trustees or any individual Trustee of the Trust.
18. DIVIDEND PAYMENT DATES. The Trust hereby agrees, with respect
to any Trust that is a money market fund, that dividends otherwise
payable to any Customer on the last business day of each month shall,
to the extent required by the Agent, be distributed on such other date
in each month as the Agent may designate as the dividend distribution
date with respect to such Customer.
19. SUBCONTRACTING BY AGENT. The Agent may, with the written
approval of the Trust (such approval not to be unreasonably withheld or
delayed), subcontract for the performance of the Agent's obligations
hereunder with any one or more persons, including but not limited to
any one or more persons which is an affiliate of the Agent; provided,
however, that the Agent shall be as fully responsible to the Trust for
the acts and omissions of any subcontractor as it would be for its own
acts or omissions.
20. AUTHORITY TO VOTE. The Trust hereby confirms that, pursuant to
the Declaration of Trust of the Trust, at any meeting of shareholders
of the Trust or of any series of the Trust, the Agent is authorized to
vote any Shares held in accounts serviced by the Agent and which are
otherwise not represented in person or by proxy at the meeting,
proportionately in accordance with the votes cast by holders of all
Shares otherwise represented at the meeting in person or by proxy and
held in accounts serviced by the Agent.
21. COMPLIANCE WITH LAWS AND POLICIES; COOPERATION. The Trust
hereby agrees that it will comply with all laws and regulations
applicable to its operations and the Agent agrees that it will comply
with all laws and regulations applicable to its operations hereunder
and each party agrees from time to time to provide such certificates,
information and access to its books, records and personnel as the other
may reasonably request to confirm the foregoing. Each party understands
that the other may from time to time adopt or modify policies relating
to the subject matter of this Agreement, in which case the party
adopting or modifying such a policy shall notify the other thereof and
the parties shall consider the applicability thereof and endeavor to
comply therewith to the extent not impracticable or unreasonably
burdensome. Each of the parties agrees to cooperate with the other in
connection with the performance of this Agreement and the resolution of
any problems, questions or disagreements in connection herewith.
21.1 Audit. The Trust shall maintain or arrange to be maintained
complete and accurate accounting records, in accordance with generally
accepted accounting principles. The Trust shall retain or arrange to be
retained such records for a period of three years from the termination
of this Agreement. The Agent and its designated certified public
accountants shall have access to such records based on reasonable cause
and professional judgment during normal business hours upon reasonable
notice to the Trust.
21.2 Annual Financial Reports. At least once a year, the Trust
shall send to the owners of its shares and to the Agent the Trust's
audited financial statements.
21.3 Shareholder Updates. The Trust shall give the Agent advance
written notice of any change in the Trust's place of incorporation,
mailing address, management, investment objectives, fees or redemption
rights. The Trust shall give such advance notice to the owners of its
shares to the extent required by federal securities laws or the rules
and regulations of the Securities and Exchange Commission.
21.4. Annual Certification. At least once a year, the parties
shall certify to each other in writing that the certifying party is
conducting its business in accordance with the terms and conditions of
the Agreement and in the case of the Trust, in accordance with the
representations set forth in its then current prospectus.
22. 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 limit any of 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.
Although this Agreement has been executed by multiple parties, it shall
be construed and enforced as a separate agreement between each Trust
and each Financial Institution acting as Agent for such Trust. The
terms of this Agreement shall become effective with respect to each
Trust and each Financial Institution listed on a signature page hereof
as of the date set forth thereon.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed and delivered in their names and on their behalf by the
undersigned, thereunto duly authorized, all as of the day and year set
forth below. The undersigned Trustee of the Trust has executed this
Agreement not individually, but as Trustee under the Trust's
Declaration of Trust, as from time to time amended, and the obligations
of this Agreement are not binding upon any of the Trustees or
shareholders of the Trust individually, but bind only the Trust estate.
Dated as of:
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[NAME OF TRUST] CITIBANK, N.A.
[NAME OF SERIES, IF ANY]
By: By:
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Name: Xxxxxx X. Xxxxxxxx Name:
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Title: President Title:
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Principal Place of Business: Principal Place of Business:
0 Xx. Xxxxx Xxxxxx ---------------------------
Xxxxxx, Xxxxxxxxxxxxx 00000 ---------------------------
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SSA/FSB
