Exhibit No. 99.9(a)
FORM OF
MFS INSTITUTIONAL TRUST
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
November 30, 1995
MFS Service Center, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Amended and Restated Shareholder Servicing Agent Agreement
Dear Sir:
MFS Institutional Trust, which is a Massachusetts business trust
(referred to as the "Trust"), currently with seven series (MFS Institutional
Emerging Equities Fund, MFS Institutional Worldwide Fixed Income Fund, MFS
Institutional Emerging Markets Fixed Income Fund, MFS Institutional Research
Fund, MFS Institutional International Equity Fund, MFS Institutional Mid-Cap
Growth Fund and MFS Institutional Broad Market Fixed Income Fund) is an open-end
registered investment company. The Trust has selected you to act as the
Shareholder Servicing Agent for each of its seven series and any other series
created by the Trust from time to time 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 Trust as well as for other investment
companies (such investment companies, together with the Trust, 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 the 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 Trust.
4. Standard of Service. As Agent for the Trust, 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 Trust'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 Trust; and
(f) Prompt reconciliation of all bank accounts under your control
belonging to the Trust 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 Trust 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 Trust 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
Trust and that all such records and other data shall be furnished without
additional charge, except for actual processing costs, to the Trust in machine
readable as well as printed form immediately upon termination of this Agreement
or at the Trust's request. You shall safeguard and maintain the confidentiality
of the Trust's data and information supplied to you by the Trust and you shall
not transfer or disclose the Trust's data to any third party without the Trust'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 Trust 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 Trust
for out-of-pocket expenses reasonably incurred by you on behalf of the Trust,
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.
8. Record Keeping. You will maintain records in a form acceptable to
the Trust 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 Trust and will be
available for inspection and use by the Trust.
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 Trust 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 Trust
hereunder. In addition, the Trust 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 Trust 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 Trust, 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 Trust may be asked to indemnify you or hold you harmless, the Trust
shall be advised of all pertinent facts concerning the situation in question and
you will 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 you
against any claim which may be the subject of this indemnification, and in the
event that the Trust so elects such defense shall be conducted by counsel chosen
by the Trust and satisfactory to you and it will so notify you, and thereupon
the Trust 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 Trust will be asked to indemnify you except
with the Trust'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 Trust shall no longer be vested with authority to
sign for the Trust, written notice thereof shall forthwith be given to you by
the Trust and until receipt of such notice by it, you shall be fully indemnified
and held harmless by the Trust in recognizing and acting upon certificates or
other instruments bearing the signatures or facsimile signatures of such
officer.
10. Insurance. You will notify the Trust 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
Trust to you or by you to the Trust. Upon termination hereof, the Trust 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 Trust 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 Trust by written notice to you, you will, promptly upon such termination and
at the expense of the Trust, transfer to such successor a certified list of the
shareholders of the Trust (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 Trust (if such form differs from the form in which
you have maintained the same, the Trust 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 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 INSTITUTIONAL TRUST
on behalf of its various series
Chairman
The foregoing is hereby accepted as of the date thereof.
MFS SERVICE CENTER, INC.
--------------------------
President
As of January 1, 1995
EXHIBIT A TO SHAREHOLDER SERVICING AGENT AGREEMENT (THE "AGREEMENT")
MFS INSTITUTIONAL 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 INSTITUTIONAL TRUST
By: __________________________
A. Xxxxx Xxxxxxx
Chairman and President
MFS SERVICE CENTER, INC.
By: __________________________
Xxxxxx X. Xxxxxxxxxx
President
