EXHIBIT (h)(4)
Form of Shareholder Servicing Agreement between BB&T Funds and the
Pershing Division of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation dated
September 10, 2002.
Exhibit (h)(4)
FORM OF SHAREHOLDER SERVICING AGREEMENT
This Agreement dated September 10, 2002, is entered into by and between
Pershing Division of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
("Pershing") with an office in Jersey City, New Jersey and BB&T Funds (the
"Fund"), on behalf of its respective series identified on Schedule A to this
Agreement, with its primary office in Columbus, OH (the "Parties").
NOW THEREFORE, the Parties agree as follows:
PART I
RESPONSIBILITIES OF XXXXXXXX
Xxxxxxxx will perform the following functions:
* Prepare and mail periodic statements to all Shareholders which detail
purchases and redemptions of shares of the Funds. Such statements shall
include opening balances, closing balances, purchase and sales and yield
information, as reported by the Trust.
* Provide account research and telephone services to Shareholders and
introducing broker dealers that have entered into appropriate contractual
arrangements with Pershing ("Introducing Brokers").
* Send shareholder name and address information to the Trust or third-party
vendor designated by the Trust, when requested by the Trust, in order for
the Trust or third-party vendor to send prospectus updates, semi-annual
reports, annual reports and other required notifications to Shareholders at
the expense of the Trust, which shall be paid by the applicable Fund and
billed to the Fund.
PART II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF THE PARTIES
Each party represents and warrants to each other that, at all times during the
term of this Agreement, it will remain in compliance with its duties and
obligations pursuant to all applicable law or regulation, including, without
limitation, any record keeping obligations or obligations concerning disclosure
to Shareholders, and with the Fund Prospectus.
PART III
PAYMENT
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The Trust agrees to pay all reasonable costs associated with
the distribution of Shareholder materials including prospectuses, semi-annual
reports, annual reports and any other required notifications related to the
Funds. UNDER THIS AGREEMENT, costs attributable to a particular Fund SHALL BE
DISCHARGED ONLY OUT OF THE ASSETS OF THAT FUND.
The Trust agrees to remit payment within ten (10) business days following
the end of each calendar month.
PART IV
TERM AND TERMINATION OF THE AGREEMENT
This Agreement will begin at the time Pershing establishes Master Omnibus
Account(s) on the books of the Trust and purchases shares of the Funds for
Shareholders. Unless terminated, this Agreement shall continue in effect
thereafter as long as shares of the Funds shall remain in one or more of
Pershing's Master Omnibus Account(s). Either party may terminate this Agreement
by giving the other party at least one hundred eighty (180) days prior written
notice.
PART V
INDEMNIFICATION
Each of the parties agrees to indemnify and hold harmless the other from
and against any losses, costs, penalties, fines or other damages, including
attorney's fees, arising from such party's performance of these services,
provided such losses, costs, penalties, fines or other damages do not arise out
of the other party's negligence, willful misconduct, or reckless disregard of
its obligations under this Agreement.
PART VI
NOTICE PROCEDURE
Notice when required hereunder, shall be sent by Certified Mail, Return
Receipt Requested, postage paid, to the respective parties as set out below:
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As to Pershing: Pershing Division of Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
And a copy to the Office of the General Counsel, same address
As to: BB&T Funds
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Trip Xxxxxxx
PART VII
CONFIDENTIALITY
Neither Party shall disclose the terms of this Agreement or information
obtained as a result thereof to any outside party except to regulatory or
self-regulatory organizations with appropriate jurisdiction, pursuant to
judicial process or to authorized employees. Any other publication or disclosure
of the terms of this Agreement may be made only with the prior written consent
of the other party. Each Party shall each maintain the confidentiality of
documents and information received from the other party pursuant to this
Agreement.
The Trust has been advised that the services Pershing provides hereunder
involve access to proprietary technology, trading and other systems, and that
techniques, algorithms and process contained in such systems may constitute
trade secrets and shall be safeguarded by the Trust, who shall exercise
reasonable care to protect Pershing's interest in such trade secrets. The Trust
agrees to make the proprietary nature of such systems known to those of its
consultants, staff, agents or clients who may reasonably be expected to come
into contact with such systems. The Trust agrees that any breach of this
confidentiality provision may result in its being liable for damages as provided
by law.
This Part VII shall not apply to information which (i) is or becomes
generally available to the public other than as a result of disclosure by a
Party or their respective officers and agents; or (ii) becomes available to a
Party or their respective officers and agents on a non-confidential basis from a
third party which is entitled to disclose such information; or (iii) was known
to a Party or their respective officers and agents on a non-confidential basis
prior to its disclosure by the other party.
PART VIII
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OTHER MATTERS
Except as agreed to by the Parties, the Parties shall, at all times during
the term of this Agreement, remain independent contractors. Nothing herein shall
be construed to create a relationship between the parties, including but not
limited to an affiliation, partnership or joint venture. This Agreement is
between the parties hereto and is not intended to confer any benefits on third
parties, including, but not limited to, shareholders of the Fund.
This Agreement and all the rights and obligations of the parties shall be
governed by and construed under the laws of the State of New York without giving
effect to its principles of conflicts of laws.
THE NAMES "BB&T FUNDS" AND "TRUSTEES OF THE BB&T FUNDS" REFER RESPECTIVELY
TO THE TRUST CREATED AND THE DECLARATION OF TRUST TO WHICH REFERENCE IS HEREBY
MADE AND A COPY OF WHICH IS ON FILE AT THE OFFICE OF THE SECRETARY OF THE
COMMONWEALTH OF MASSACHUSETTS AND ELSEWHERE AS REQUIRED BY LAW, AND TO ANY AND
ALL AMENDMENTS THERETO SO FILED OR HEREAFTER FILED. THE OBLIGATIONS OF THE BB&T
FUNDS' ENTERED INTO IN THE NAME OR ON BEHALF THEREOF BY ANY OF THE TRUSTEES,
REPRESENTATIVES OR AGENTS ARE MADE NOT INDIVIDUALLY, BUT IN SUCH CAPACITIES, AND
ARE NOT BINDING UPON ANY OF THE TRUSTEES, SHAREHOLDERS OR REPRESENTATIVES OF THE
TRUST PERSONALLY, BUT BIND ONLY THE ASSETS OF THE TRUST, AND ALL PERSONS DEALING
WITH ANY SERIES OF SHARES OF THE TRUST MUST LOOK SOLELY TO THE ASSETS OF THE
TRUST BELONGING TO SUCH SERIES FOR THE ENFORCEMENT OF ANY CLAIMS AGAINST THE
TRUST.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the date first written above.
PERSHING DIVISION OF XXXXXXXXX,
XXXXXX & XXXXXXXX SECURITIES CORPORATION
By: ___________________________
Name: _________________________
Title: ________________________
BB&T FUNDS
By: ____________________________
Name: _________________________
Title: ________________________
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