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EXHIBIT 23(h)(6)
FORM OF AGENCY TRADING AGREEMENT
AGREEMENT made as of the __________________ day of __________, 199 by
National Financial Services Corporation ("NFSC") and Longleaf Partners Small Cap
Fund ("Fund/Agent").
WITNESSETH:
WHEREAS: Fund/Agent and NFSC either have executed a form of
distribution, service or operating agreement ("Services Agreement") or have
developed unwritten trading procedures ("Procedures") pursuant to which NFSC
transmits to Fund/Agent orders for the purchase, redemption or exchange of Fund
shares, as identified in such Services Agreement or Procedures, on behalf of
customers of NFSC ("Orders"); and
WHEREAS: Fund/Agent desires that NFSC serve as limited agent to accept
orders for the purchase, exchange and redemption of shares of the Funds
("Shares") by certain employee benefit plans ("Plans");
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties hereto hereby agree as follows:
1 . Appointment of NFSC. Fund/Agent hereby appoints NFSC as its agent
for the sole and limited purpose of accepting purchase, exchange or redemption
orders for Shares purchased, exchanged or redeemed by the Plans ("Orders"). NFSC
hereby accepts its appointment on the terms and conditions set forth herein.
Notwithstanding anything in this Agreement to the contrary, NFSC shall not be
acting as agent for Fund/Agent in any manner whatsoever, except in accepting
such Orders.
2. Appointment of Agent. NFSC may appoint a third party as its Agent
("NFSC's Agent") for the purpose of receiving Orders on behalf of NFSC. Such
Orders received by NFSC's Agent shall be deemed received by NFSC, and
accordingly by Fund/Agent, simultaneously.
3. Orders and Acceptance. NFSC, as agent of Fund/Agent, shall accept on
behalf of the Plans, Orders for the purchase, exchange or redemption of Shares
of the Funds. If such Orders are received by NFSC or NFSC's Agent prior to the
close of trading on the New York Stock Exchange (the "Close of Trading") on a
day the New York Stock Exchange is open for business (a "Business Day") or such
other time as designated in writing to NFSC by Fund/Agent,
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they shall be treated as having been received by Fund/Agent on such Business Day
("Trade Date").
4. Trade Reporting. By checking the box titled 'Applies', Fund/Agent
represents that it has selected such trade reporting option and that such terms
are part of this Agreement. By checking the box titled 'Does not apply',
Fund/Agent represents that is has not selected that trade reporting option and
that such terms are not part of this Agreement.
OPTION A: [ ] APPLIES [X] DOES NOT APPLY
By 9:00 a.m. ET each Business Day following Trade Date ("TD + 1"), NFSC will
provide, via facsimile or other mutually acceptable process, to Fund/Agent
summarized trading instructions for the net purchase or net redemption of Shares
of the Funds based on Orders accepted by NFSC or NFSC's Agent prior to Close of
Trading on the prior Business Day. NFSC shall provide detailed trading
instructions to Fund/Agent on TD+1 via Fund/SERV transmission or other such
trade order process as agreed to in the Services Agreement or Procedures by NFSC
and Fund/Agent. Such instructions shall be effected at the public offering
price, or such other price as may apply to the transaction, of the Shares of the
respective Fund calculated as of the Close of Trading on the Business Day on
which the Order was accepted by NFSC or NFSC's Agent.
OPTION B: [X] APPLIES [ ] DOES NOT APPLY
By 9:00 a.m. ET each Business Day following Trade Date ("TD + 1"), NFSC will
provide, via facsimile or other mutually acceptable process, to Fund/Agent
trading instructions for the net purchase or net redemption of Shares of the
Funds based on Orders accepted by NFSC or NFSC's Agent prior to Close of Trading
on the prior Business Day. Such instructions shall be effected at the public
offering price, or such other price as may apply to the transaction, of the
Shares of the respective Fund calculated as of the Close of Trading on the
Business Day on which the Order was accepted by NFSC or NFSC's Agent.
5. Settlement. Settlements shall be made for the aggregate net purchase
or redemption for each Fund on each Business Day by wire transfer in accordance
with the procedures set forth in the Services Agreement or Procedures. Under
option A above, the respective parties shall settle transactions on the second
Business Day following Trade Date ("TD+2"). Under Option B above the respective
parties shall settle transactions during the Business Day following Trade Date
("TD+1").
6. Representations by NFSC. NFSC represents that:
(a) It has full power and authority to enter into and perform
this Agreement;
(b) it is registered as a broker/dealer pursuant to Section
15 of the Securities Exchange Act of 1934, as amended (the "1934 Act");
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(c) it will promptly notify Fund/Agent in the event that NFSC
is for any reason unable to perform any of its obligations under this Agreement.
7. Representations of Fund/Agent. Fund/Agent represents that:
(a) it has full power and authority to enter into and perform
this Agreement and is duly authorized to appoint NFSC as agent for the Fund and
to authorize NFSC to designate further agents;
(b) it will promptly notify NFSC in the event that it is for
any reason unable to perform any of its obligations under this Agreement.
8. Indemnification. Each party shall indemnify and hold harmless the
other, and the other's affiliates, agents, control persons, and employees, from
any claim, demand, loss, expense, or cause of action resulting from (a) the
misconduct or negligence, as measured by industry standards, of the indemnifying
party or its affiliates, agents, control persons, or employees in carrying out
their obligations under this Agreement, or (b) breach at any time of its
representations hereunder by the indemnifying party. Such indemnification will
survive the termination of this Agreement.
9. Termination of Agreement. This Agreement may be terminated at any
time by either party upon ninety (90) days written notice to the other party.
Notwithstanding the foregoing, this Agreement may be terminated immediately upon
a material breach by either party not cured within thirty (30) days after notice
from the other. The provisions of Section 8 shall survive any termination of
this Agreement.
10. Notices. Unless otherwise specified, all notices and other
communications (except those described in paragraph 4) hereunder shall be in
writing and shall be hand delivered or mailed by certified mail to the other
party at the following address or such other address as each party may give
notice to the other:
If to Fund/Agent:
Southeastern Asset Management, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn.: Xxxx XxXxxxxxx
If to NFSC: With a copy to:
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National Financial Services Corporation Fidelity Investments
000 Xxxxxxx Xxxxxx, 0xx Xxxxx 00 Xxxxxxxxxx Xx. X0X
One World Financial Center, Tower A Boston, MA 02109-3614
Xxx Xxxx, XX 00000 Att: Mutual Fund Product Mgmt
Att: Xxx Xxxxx Xxxxxxx Xxxxxx - L4A
Mutual Funds, MZ NY5C
11. Amendment, Assignment and Other Matters. This Agreement may not be
amended except by a writing signed by each of the parties hereto. This Agreement
shall not be assigned, except to affiliates, by either party without the written
consent of the other party. This Agreement may be executed in several
counterparts, each of which shall be an original but all of which together shall
constitute one and the same instrument. The headings in this Agreement are for
reference only and shall not affect the interpretation or construction of this
Agreement. This Agreement, including any Exhibits attached hereto, and including
the Services Agreement or Procedures, contains the entire agreement of the
parties as to the subject matter hereof and supersedes any prior agreements,
written or oral. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, without giving effect to the
principles of conflicts of law thereof.
12. Massachusetts Business Trust Provisions. NFSC acknowledges that
Fund/Agent is a series of a business trust organized under the laws of the
Commonwealth of Massachusetts. In recognition of such acknowledgement and in
order to place Fund/Agent in the same economic situation as would be the
situation if Fund/Agent were a corporation instead of a Massachusetts business
trust, NFSC hereby agrees that only the trust assets of Fund/Agent shall be
available to satisfy any liabilities incurred under this Agreement, and further
agrees that there shall be no personal liability on the part of and no resort to
the assets of any of the Trustees, officers, or shareholders of Fund/Agent for
any liabilities incurred under this Agreement, nor shall there be any liability
on the part of and no resort to the assets of any other series in the same fund
family as Fund/Agent for the liabilities of Fund/Agent incurred under this
Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
FUND/AGENT NATIONAL FINANCIAL SERVICES
CORPORATION
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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