EXHIBIT 6
SERVICES AGREEMENT
This Agreement is made as of the day of March, 2002 between: (1) the Fidelity
Brokerage Services LLC ("FBS") and National Financial Services LLC ("NFS")
(together "Fidelity"), and (2) the undersigned ("Fund/Agent").
RECITALS
A. Fund/Agent is either (i) an open-end investment company with one or more
series or classes of shares (each such series or class of shares a "Fund"), (ii)
an investment adviser to or administrator for the Funds, (iii) the principal
underwriter or distributor for the Funds, or (iv) the transfer agent for the
Funds.
B. Fund/Agent wishes to have Fidelity provide to Fund/Agent or on its behalf
certain administrative services with respect to beneficial owners of shares
("Shareholder(s)") of such Funds which Fidelity makes available to Shareholders
through securities brokerage accounts carried by NFS on behalf of FBS or
Correspondents of NFS ("Correspondents").
C. Fidelity agrees to provide such services on the terms and conditions set
forth herein.
AGREEMENT
THEREFORE, in consideration of the mutual promises set forth herein, the parties
agree as follows:
I. SHAREHOLDER SERVICES
A. Shareholder Account Set-Up and Maintenance - Fidelity shall maintain and
provide to FBS and Correspondents adequate facilities and procedures to: (1)
establish and maintain Fund investments on behalf of Shareholders within a
consolidated brokerage account(s) on the Fidelity transaction processing and
recordkeeping system, and (2) access Shareholders' current Fund information
including, but not limited to, share balances, dividend information and
transaction history.
B. Shareholder Assistance - Fidelity shall make available to FBS and
Correspondents any information maintained by Fidelity as may be necessary for
Correspondents to support and resolve Shareholder servicing inquiries. Fidelity
personnel will assist FBS in the investigation of Shareholder inquiries when
necessary. FBS will support Shareholder service inquiries from Shareholders who
maintain brokerage accounts with FBS.
C. Transaction Processing and Settlement - The Fidelity transaction processing
system shall enable Shareholders to purchase, redeem and exchange shares of
Funds available through Fidelity. NFS shall facilitate settlement with each Fund
of Shareholder transactions in such Fund insofar as such transactions are
transmitted to NFS by FBS or Correspondents on behalf of Shareholders.
Fund/Agent agrees that it shall either: (1) make arrangements for all
transactions processed pursuant to this Agreement to be processed through the
National Securities Clearing Corporation Fund/SERV
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system, or (2) obtain proper authority for NFS to transmit to the Fund or its
Agent daily manual trades until 5:00 p.m. Eastern Time, or such other times as
set forth on Exhibit B, which trades shall remain eligible for that day's public
offering price provided Fidelity received the order by the close of trading that
day.
D. Shareholder Account Statement Preparation and Distribution - With respect to
each Shareholder holding Fund investments through Fidelity, Fidelity shall
deliver or cause to be delivered to such Shareholder monthly statements when
there has been activity in such Shareholder's brokerage account during such
month, or quarterly statements during periods when there has been no monthly
account activity. Statements will include transaction detail for the statement
period for each Fund in which shares were purchased, redeemed or exchanged, and
a summary of the number of Fund shares owned and share value thereof as of the
statement date to the extent such value is provided by the Fund.
E. Confirmation Preparation and Distribution - Fidelity shall generate a written
confirmation for each purchase, redemption and exchange transaction affecting
each Shareholder's Fund investments held through Fidelity to the extent such
confirmation is required, and such confirmation shall be distributed to
Shareholders through or on behalf of FBS or Correspondents.
F. Payment of Fund Distributions - NFS shall distribute to Shareholders all
dividend, capital gain or other payments authorized by the Fund and distributed
to and received by NFS, and such distributions shall be credited to Shareholders
in accordance with the instructions provided by each Shareholder, including but
not limited to dividend reinvestment into the Fund, or cash payments of
distributions.
G. Prospectus Fulfillment - Subsequent to any Shareholder's acquisition of
shares of a Fund by purchase or exchange, Fidelity shall provide to such
Shareholder a confirming prospectus for such Fund to the extent such prospectus
is required with respect to such acquisition and is provided by the Fund to
Fidelity or its designee.
Fund/Agent acknowledges and agrees that Fidelity is not responsible for (i) the
compliance of any prospectus or supplement thereto, annual report, proxy
statement or item of advertising or marketing material of or relating to any
Fund, with any applicable laws, rules or regulations, (ii) the registration or
qualification of any shares of any Fund under any federal or applicable state
laws or (iii) the compliance by any Fund or Fund/Agent or any "affiliated
person" (as that term is defined in the rules under the Investment Company Act
of 1940, as amended), with any applicable federal or state law, rule, or
regulation or the rules and regulations of any self-regulatory organization with
jurisdiction over such Fund, Fund/Agent or affiliated person.
H. Account Level Tax Reporting - NFS shall provide to Shareholders through FBS
or Correspondents such reports and information as may be required by the
then-prevailing laws and regulations under the Internal Revenue Code for
non-retirement accounts and qualified and non-qualified retirement plan
accounts.
II. REPRESENTATIONS AND WARRANTIES
A. Fund/Agent represents and warrants that:
(1) it has the requisite authority to enter into this agreement on its
own behalf and on behalf of the Fund(s), and
(2) that the payment to NFS of any fees pursuant hereto:
(a) has been duly authorized by the Fund(s), the Board of Trustees of
the Fund(s), or any other persons to the extent such
authorization is required to properly make such payment;
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(b) is properly disclosed in the relevant Fund prospectus to the
extent such disclosure may be required, and
(c) is in conformity with all federal, state and industry laws or
regulations to which the Fund or its agents are subject.
B. FBS and NFS each represent and warrant that:
(1)it is a corporation duly organized under the laws of the Commonwealth
of Massachusetts and is duly registered and/or qualified as a broker/dealer with
the SEC, NASD and in every state or territory of the United States of America
(including the District of Columbia) where such registration or qualification is
required and has the requisite authority to enter into this Agreement and to
carry out the services contemplated herein;
(2)the execution and delivery of this Agreement and the performance of the
services contemplated herein have been duly authorized by all necessary
corporate action in its part, and this Agreement constitutes the valid and
binding obligations of FBS and NFS; and
(3)it is in material conformity with all federal, state and industry laws
or regulations to which it is subject.
C. Each party hereto represents and warrants that it shall provide to the others
such information or documentation necessary for such party to fulfill its
obligations hereunder, such other information or documentation as any party may
reasonably request, and that it shall comply with such operating policies and
procedures as the parties may adopt from time to time.
III. FEES
A. CUSIP Fee
Fund/Agent shall pay to NFS a fee ("CUSIP Fee") to add any Fund to Fidelity's
computer system in order to make such Fund available to Fidelity's customers.
The amount of the CUSIP Fee is set forth on Exhibit A, and shall be due and
payable to NFS upon the earlier of the addition of the Fund to Exhibit B, or the
availability of such Fund to Fidelity's customers.
B. Asset Based Fee
For the services provided by Fidelity hereunder, Fund/Agent shall pay to NFS a
fee with respect to each Fund, which fee shall be based upon a percentage per
annum of the average daily value of the aggregate number of shares of the Fund
held by NFS for the accounts of customers of FBS and Correspondents. Such fee
shall be calculated and paid in accordance with Exhibit A hereto.
C. Maintenance Fee
Fund/Agent shall pay to NFS an annual maintenance fee ("Maintenance Fee") with
respect to certain Funds as set forth on Exhibit A.
In the event the parties agree to material changes to the scope of services
provided hereunder, the parties agree to negotiate in good faith as to the
appropriate amendment to the fees due NFS.
IV. INDEMNIFICATION
Fund/Agent shall indemnify and hold harmless Fidelity and each officer, employee
and agent of Fidelity from and against any and all claims, demands, actions,
losses, damages, liabilities, or costs, charges,
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counsel fees, and expenses of any nature ("Losses") arising out of (i) any
inaccuracy or omission in any prospectus or supplement thereto, registration
statement, annual report or proxy statement, of any Fund or Fund/Agent or any
advertising or promotional material generated by any Fund or Fund/Agent, (ii)
any breach by Fund/Agent of any representation, warranty, covenant, or agreement
contained in this Agreement and (iii ) any action taken or omitted to be taken
by Fidelity pursuant to this Agreement, except to the extent such Losses result
from Fidelity's breach of this Agreement, willful misconduct, or gross
negligence.
Fidelity shall indemnify and hold harmless Fund/Agent and each director,
officer, employee and agent of Fund/Agent from and against any and all claims,
demands, actions, losses, damages, liabilities, or costs, charges, counsel fees,
and expenses of any nature ("Losses") arising out of (i) Fidelity's
dissemination of information regarding Fund/Agent or any Fund that contains any
inaccuracy or omission unless such information was provided or approved by
Fund/Agent or any Fund, (ii) any breach by Fidelity of any representation,
warranty, covenant, or agreement contained in this Agreement and (iii) any
Losses resulting from Fidelity's willful misconduct or negligence.
V. CONFIDENTIALITY
Each party acknowledges and understands that any and all technical, trade
secret, or business information, including, without limitation, financial
information, business or marketing strategies or plans, product development or
customer information, which is disclosed to the other or is otherwise obtained
by the other, its affiliates, agent or representatives during the term of this
Agreement (the "Proprietary Information") is confidential and proprietary,
constitutes trade secrets of the owner, and is of great value and importance to
the success of the owner's business. Each party agrees to use its best efforts
(the same being not less than that employed to protect his own proprietary
information) to safeguard the Proprietary Information and to prevent the
unauthorized, negligent or inadvertent use or disclosure thereof. Neither party
shall, without the prior written approval of any officer of the other, directly
or indirectly, disclose the Proprietary Information to any person or business
entity except for a limited number of employees, attorneys, accountants and
other advisors of the other on a need-to-know basis or as may be required by law
or regulation. Each party shall promptly notify the other in writing of any
unauthorized, negligent or inadvertent use or disclosure of Proprietary
Information. Each party shall be liable under this Agreement to the other for
any use or disclosure in violation of this Agreement by its employees,
attorneys, accountants, or other advisors or agents. This Section V shall
continue in full force and effect notwithstanding the termination of this
Agreement.
VI. DURATION AND TERMINATION OF AGREEMENT
With respect to any Fund, this Agreement shall become effective upon the date
such Fund is identified on Exhibit B, and this Agreement is approved by the Fund
or its Board of Trustees if such approval is required, and shall continue in
force for one year, and shall thereafter continue automatically for successive
annual periods unless earlier terminated and subject to any periodic approval
required by the Fund or its Board of Trustees. This Agreement is terminable as
to any Fund by any party upon 90 days written notice thereof to the other
parties or upon default hereof provided that such default shall not terminate
this Agreement to the extent the defaulting party has been notified of such
default by the non-defaulting party and the defaulting party cures such default
within 10 business days of notice of such default.
After the date of termination as to any Fund, no fee will be due with respect to
any shares of such Fund that are first placed or purchased in FBS or
Correspondents customer accounts after the date of such termination. However,
notwithstanding any such termination, Fund/Agent will remain obligated to pay
NFS the fee as to each share of such Fund that was considered in the calculation
of the fee as of the date of such termination, for so long as such share is held
in the FBS or Correspondents account. This Agreement, or any provision hereof,
shall survive termination to the extent necessary for each party to
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perform its obligations with respect to shares for which a fee continues to be
due subsequent to such termination.
VII. MISCELLANEOUS
A. Custody - Fund/Agent acknowledges that Fund shares maintained by the Fund for
Shareholders hereunder are held in custody for the exclusive benefit of
customers of NFS and shall be held free of any right, charge, security interest,
lien or claim against NFS in favor of the Fund or its agents acting on behalf of
the Fund.
B. Transaction Charges - During the term of this Agreement, FBS shall not assess
against or collect from its brokerage customers any transaction fee upon the
purchase or redemption of any Fund's shares that are considered in calculating
the fee due pursuant to Section III hereof. The parties acknowledge and agree
that FBS reserves the right to collect such transaction fees from certain
customers (including "Short-Term Traders," as FBS may define that term) for
certain special trading services and from other customers upon such other
customers' redemption of certain shares.
C. Use of Fidelity Investments Name - Fund/Agent will not, nor will Fund/Agent
cause or permit any Fund to, describe or refer to the name "Fidelity
Investments" or any derivation thereof, or to FMR Corp. or any affiliate
thereof, or to the services or relationship contemplated by this Agreement in
any advertisement or promotional materials or activities without the prior
written consent of an authorized officer of Fidelity.
D. Nonexclusivity - Fund/Agent acknowledges that Fidelity may perform services
similar to those to be provided under this Agreement to other investment
companies, investment company sponsors, or service providers to investment
companies.
E. Force Majeure - Neither Fidelity nor its affiliates shall be liable to
Fund/Agent or any Fund for any damage, claim or other loss whatsoever caused by
circumstances or events beyond its reasonable control.
F. Notices - All notices and communications required or permitted by this
Agreement shall be in writing and delivered personally or sent by first class
mail unless otherwise agreed. All such notices and other communications shall be
made:
if to Fidelity, to: Fidelity Investments
00 Xxxxxxxxxx Xxxxxx, X0X
Xxxxxx, XX 00000
Attn: Xxxxx Xxxx
if to Fund/Agent, to:
GMO Trust
x/x Xxxxxxxx, Xxxx, Xxx Xxxxxxxx & Co. LLC
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxxxxxx
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G. This Agreement and any Exhibits hereto may be amended only upon the written
agreement of the parties.
H. This Agreement shall inure to the parties' successors (whether by merger,
consolidation or otherwise) and may not be transferred or assigned by either
Fund/Agent or Fidelity, provided however, that either party may assign the
Agreement to an affiliate without the consent of the other party. This Agreement
shall be construed in accordance with the laws of the Commonwealth of
Massachusetts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
GMO TRUST*, ON BEHALF OF EACH FUND LISTED ON FIDELITY BROKERAGE SERVICES LLC
EXHIBIT B, SEVERALLY AND NOT JOINTLY
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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NATIONAL FINANCIAL SERVICES LLC
By:
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Name:
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Title:
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Date:
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* GMO Trust is a Massachusetts business trust and a copy of the Agreement and
Declaration of Trust of GMO Trust is on file with the Secretary of The
Commonwealth of Massachusetts. Notice is hereby given that this Agreement is
executed on behalf of the Trustees of the Trust as Trustees and not
individually, and that the obligations of or arising out of this Agreement with
respect to each Fund are not binding upon any of the Trustees or shareholders
individually or any other series of the Trust, but are binding only upon the
assets and property of the Fund.
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EXHIBIT A
FEE SCHEDULE
1. Fund Addition Fee: $4,000 per fund
2. Asset Based Fee
(a). For the services provided by Fidelity hereunder, Fund/Agent shall pay to
NFS a fee with respect to each Fund, calculated daily and paid monthly in
arrears, equal to 0.35 percent per annum of the daily market value of the total
number of shares of such Fund held in accounts at NFS (determined by multiplying
the number of such shares times the publicly-reported net asset value of each
share), excluding the value of (i) shares held in a brokerage account prior to
the effective date of the Agreement as to the Fund issuing such shares
("Pre-Participating Assets"), and (ii) shares first placed or purchased in a
brokerage account after the termination of the Agreement as to the Fund/Agent
issuing such shares. The total number of shares of all Funds with respect to
which a fee will be due to Fidelity hereunder shall be referred to in this
Exhibit A as "Participating Assets".
(b). Subsequent to each month-end, NFS shall send to Fund/Agent a statement of
the market value of shares of the Fund for which the fee is calculated for the
preceding month, together with a statement of the amount of such fee. In the
calculation of such fee, NFS' records shall govern unless Fund/Agent can
demonstrate that the number of shares or Fund price(s) used in such calculation
is inaccurate.
(c). Fund/Agent shall pay to NFS such fee within 30 days after Fund/Agent's
receipt of such statement. Such payment shall be by wire transfer or other form
acceptable to NFS and shall be separate from payments related to redemption
proceeds and distributions.
3. Maintenance Fees:
(a) For each Fund which participates in the NSCC Fund/SERV networking level 3
system Fund/Agent shall pay to NFS an annual fee of $6.00 for each separate Fund
position held in any Fidelity customer account which fee shall be payable
quarterly in arrears at a rate of $1.50 per Fund position.
or
(b) Each Fund which does not participate in the NSCC Fund/SERV networking level
3 system will be subject to a per Fund annual fee based on December brokerage
month-end assets in accordance with the following schedule:
Fund Assets Annual Fee
less than $2.5 million $4,500.00
$2.5 million - $5.0 million $3,000.00
greater than $5.0 million -0-
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EXHIBIT A (CONTINUED)
The annual Maintenance Fee for a Fund not participating in the NSCC
Fund/SERV networking level 3 shall be waived if such Fund has been included on
Exhibit B and subject to the terms of this Agreement for less than 12 months
prior to the fee calculation date. NFS will not charge Fund/Agent an annual
Maintenance Fee for any Fund not participating in the NSCC Fund/SERV networking
level 3 if the average assets per Fund exceeds $5 million (as measured by
dividing the total market value of all Fund shares subject to this Agreement as
of December month-end by the total number of Funds subject to this Agreement).
Upon written notice to Fund/Agent, Fidelity may change, amend or waive any fee
or the method of payment thereof under this Agreement. Fidelity may issue to
Fund/Agent a new or replacement Agreement or Exhibit A. Such change, amendment
or waiver shall be effective on the date stated in such notice. The acceptance
by Fund/Agent of any order after the date stated in such notice shall represent
Fund/Agent's agreement to pay such fees to Fidelity.
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EXHIBIT B
FUNDS PARTICIPATING IN SERVICES AGREEMENT
FUND NAME CUSIP TRADING SYMBOL
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1. GMO U.S. Core Fund - Class M 362008559
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2.
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3.
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4.
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5.
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6.
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7.
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8.
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9.
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10.
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11.
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12.
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13.
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14.
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15.
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16.
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17.
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18.
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19.
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20.
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