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EXHIBIT 99(m-3)
FORM OF
SHAREHOLDER SERVICING AGREEMENT
AGREEMENT dated as of by and between Lend Lease Funds
(the "Trust"), a Delaware business trust, having its principal place of business
at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, and
(the "Agent"). The Agent wishes to act as the agent of
its customers (the "Customers") in performing certain administrative functions
in connection with purchases and redemptions of shares of beneficial interest of
certain series of the Trust described in Section 1 hereof ("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. 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.
In consideration of the foregoing recitals and the mutual covenants
herein contained, the Trust and the Agent hereby agree as follows:
1. Appointment. The Agent hereby agrees to perform the services set
forth below for Customers. Each series of the Trust for which the Agent acts as
a servicing agent pursuant to this Agreement is hereinafter referred to as a
"Fund." 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, with other financial institutions. As used in
this Agreement, "Shares" shall mean: (i) with respect to a Fund whose shares
have no class designation, all shares of beneficial interest in that Fund, and
(ii) with respect to a Fund whose shares do have class designations, the
shares of that Fund.
2. Services to be Performed. The Agent shall be responsible for
performing shareholder account servicing functions, which shall include without
limitation:
(a) assisting in processing Customer purchase and redemption
requests;
(b) answering Customer inquiries regarding account status and
history, the manner in which purchase and redemptions of the Shares may be
effected, and certain other matters pertaining to the Trust;
(c) providing necessary personnel and facilities to establish
and maintain certain shareholder accounts and records, as requested from time to
time by the Trust;
(d) arranging for the wiring of funds;
(e) transmitting and receiving funds in connection with
Customer orders to purchase or redeem Shares;
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(f) providing periodic statements showing a Customer's account
balances and, to the extent practicable, integration of such information with
other client transactions otherwise effected with or through the Agent;
(g) furnishing (either separately or on an integrated basis with
other reports sent to a Customer by the Agent) monthly and annual statements and
confirmations of all purchases and redemptions of Shares in a Customer's
account;
(h) aggregating and processing Customer purchase and redemption
requests for Shares and placing net purchase and redemption orders with the
Trust's transfer agent (currently Sunstone Financial Group, Inc. ("Sunstone"),
including any designee of Sunstone, "Transfer Agent") in the manner described in
Section 4 hereof;
(i) providing complete subaccounting services and maintaining
complete subaccounting records regarding Shares beneficially owned by Customers;
(j) processing dividend payments;
(k) transmitting proxy statements, annual and semi-annual
reports, prospectuses and other communications from the Trust to Customers;
(l) receiving, tabulating and transmitting to the Trust proxies
executed by Customers with respect to annual and special meetings of
shareholders of the Trust;
(m) preparing and filing U.S. Treasury Department Forms 1099 and
other appropriate forms required with respect to dividends and distributions by
federal authorities; and
(n) providing such other related services as the Trust or a
Customer may reasonably request.
The Agent shall provide all personnel, facilities and equipment necessary in
order for it to perform the functions described in this paragraph with respect
to its Customers. The Agent shall exercise reasonable care in performing all
such services and shall be liable for any failure to exercise such reasonable
care.
3. Fees.
(a) Fees from the Trust. In consideration for the services
described in Section 2 hereof, the Trust shall pay the Agent a fee as described
in Attachment A hereto. All fees shall be paid quarterly in arrears.
(b) Fees from Customers. It is agreed that the Agent may impose
certain conditions on Customers, in addition to or different from those imposed
by the Trust, such as
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requiring a minimum initial investment or charging Customers direct fees for the
same or similar services as are provided hereunder by the Agent as Agent (which
fees may either relate specifically to the Agent's services with respect to the
Trust or generally cover services not limited to those with respect to the
Trust). The Agent shall xxxx Customers directly for such fees. In the event the
Agent charges Customers such fees, it shall make appropriate prior written
disclosure (such disclosure to be in accordance with all applicable laws) to
Customers both of any direct fees charged to the Customer and of the fees
received or to be received by it from the Trust pursuant to Section 3(a) of this
Agreement. It is understood, however, that in no event shall the Agent have
recourse or access to the account of any shareholder of the Trust except to the
extent expressly authorized: (i) by law; (ii) by the Trust; or (iii) by such
shareholder for payment of any direct fees referred to in this Section 3(b).
4. Purchase and Redemption Orders.
(a) Agent will open with Transfer Agent an omnibus account.
Capital gains and dividend distributions payable with respect to Shares held in
the account shall be paid in additional Shares of the Fund. Agent may also open
a second omnibus account with Transfer Agent whose shares' capital gains and
dividend distributions shall be paid to Agent for distribution to Customers.
Transfer Agent shall designate an account number for each omnibus account.
(b) For each business day on which any Customer places with Agent
a purchase or redemption order for Shares of a Fund, Agent shall aggregate all
such purchase orders and aggregate all such redemption orders and communicate to
Transfer Agent, by facsimile or, where feasible, by direct or indirect systems
access, an aggregate purchase order and an aggregate redemption order for each
omnibus account. To be effective on the date received, all orders must:
(i) be received by Agent from Customers prior to the close
of trading on the New York Stock Exchange (typically 4:00 p.m. Eastern time) and
transmitted to Transfer Agent prior to 8:00 a.m. Eastern Time on the next
succeeding business day; and
(ii) in the case of an aggregate purchase request, federal
funds in the amount of the purchase request must be wired from the custodial
account of the Customer to Transfer Agent prior to 4:00 p.m. Eastern time on the
next succeeding business day. Funds should be wired to Transfer Agent at
.
(c) Transfer Agent shall use its best efforts to provide Agent
with the NAV per share prior to 7:00 p.m. Eastern time each business day.
(d) In the case of a redemption order, Transfer Agent will
initiate a wire via federal funds in the amount of the redemption order shall be
wired by 11:00 a.m. Eastern time on the settlement date to the Agent at
. Each party shall bear the cost of any wire
transfer that it sends.
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If Agent fails to provide payment to the Fund by the close of business
on the applicable settlement date, then, at the option of the Fund, (A) the
transaction may be cancelled or (B) the transaction may be processed at the next
determined NAV for the applicable Fund after purchase and/or funds are received.
In either event, Agent shall be liable to the Fund for all losses suffered or a
result of, its failure to provide payment as required thereon.
(e) In the event adjustments are required to correct any error in
the computation of the net asset value or public offering price of Fund Shares,
the Trust shall notify Agent prior to making any adjustments and describe the
need for such adjustments (including the date of the error, the incorrect price
and the correct price). In such case, an appropriate adjustment shall be made to
the relevant omnibus account(s) and Agent shall make corresponding adjustments
to the accounts of its Customers.
(f) The Trust may cease offering Shares at any time, and in its
sole discretion may refuse any purchase order. Further, the Trust shall not be
required to accept orders for redemption of Shares of a Fund under this Section
4 if the Trust has suspended redemptions with respect to such Fund in
accordance with Section 22(e) of the Investment Company Act of 1940, as amended
(the "1940 Act").
(g) For the purposes of this Agreement, "business day" shall mean
each day that the New York Stock Exchange is open for business.
5. Dividends and Capital Gains Distributions.
(a) As to each Fund, as soon as practicable after the
announcement of a distribution, Agent shall be notified of the ex-date, record
date, payable date, distribution rate per Share, record date Share balances and
cash and reinvestment payment amounts.
(b) On the payable date, the Trust shall wire the cash
distribution from the appropriate Fund to Agent at .
(c) For each Fund that pays daily dividends, the Trust shall
provide on a daily basis, the following record date information: daily rate,
account share balance, account accrual dividend amount (for that day), account
accrual dividend amount (for period to date), and account transfers and
period-to-date accrual amounts. Such information shall be provided by facsimile
to .
(d) For annual tax reporting purposes, the Trust shall inform
Agent of the portion of distributions that include any of the following: foreign
source income, tax exempt income by state of origin, or return of capital.
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6. Preparation and Distribution of Written Materials.
(a) The Trust shall provide Agent with sufficient numbers of each
Fund's prospectus as requested by Agent and a master copy of each Fund's
Statement of Additional Information ("SAI") offering Shares. As soon as
practicable following the filing under the Securities Act of 1933, as amended,
of an amendment to the Trust's Registration Statement or a definitive Prospectus
or SAI of any Fund or a supplement to the Prospectus or SAI of any Fund, the
Trust shall provide a master copy of the Prospectus and SAI of each Fund
affected by the amendment or a copy of such supplement. Agent shall not be
responsible for the preparing or filing with any governmental authority any
Registration Statement, Prospectus, SAI or Supplement for the Trust or any Fund.
However, upon reasonable request by the Trust or any of the Trust's service
providers, Agent shall timely provide information necessary for the Trust or any
of the Trust's service providers to: (i) prepare and file any of the written
materials mentioned in this Section 6 or (ii) otherwise comply with applicable
law regarding the Trust.
(b) Agent shall timely provide copies of the following materials
to Customers: proxy statements, annual reports and semi-annual reports. At no
expense to Agent, the Trust shall provide Agent with as many copies of such
materials as Agent may reasonably request. Such materials shall be sent to Agent
at the following address: . [Agent agrees to
reimburse the Trust for the cost of materials if and to the extent required by
Attachment B to this Agreement.]
7. Capacity and Authority to Act. 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 factual information contained in the then-current
Prospectus and SAI offering Shares of the relevant Fund or such other
communications as may be expressly authorized by the Trust. In performing its
services under this Agreement, the Agent shall act as agent for the Customer and
shall have no authority to act as agent for the Trust. Upon request by the
Trust, the Agent shall provide the Trust with copies of any materials which are
generally circulated by the Agent to its Customers or prospective Customers. The
Agent and its officers and employees shall be available during normal business
hours to consult with the Trust and the Trust's other service providers
concerning the performance of the Agent's responsibilities under this Agreement.
8. Use of Trust and Fund Names. The Agent shall not use the name of
the Trust or any Fund (other than for internal use in connection with performing
its duties under this agreement) 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 or the name of any Fund in
connection with communications permitted by Section 7 hereof or for any use of
the Trust's name or which is required by the Securities and Exchange Commission
or any state securities authority or any other appropriate regulatory,
governmental or judicial
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authority provided, further, that in no event shall such approval be
unreasonably withheld or delayed.
9. Use of the Agent's Name. The Trust shall not use the name of the
Agent 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 accurately 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.
10. 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 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. From time to time and upon
request, Agent shall permit the Trust or its designees to make a reasonable
inspection of Agent's security systems and procedures.
11. Compliance with Laws; Etc. 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 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.
12. Reports. To the extent requested by the Trust from time to time,
the Agent agrees that it will provide 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.
13. Record Keeping; Reporting.
(a) Section 31(a), Etc. The Agent shall maintain records in a form
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 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.
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Agent shall permit the Trust and the Trust's other service providers reasonable
access to such information when necessary for the Trust or any such person to
comply with applicable law. In such case, the Trust shall cause such information
to remain confidential and shall not permit such information to be used by any
party or disclosed to any additional party except with Agent's written consent
or as required by applicable law or judicial process. 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 with respect to such records. The
record-keeping obligations imposed in this Section 13(a) shall survive the
termination of this Agreement.
(b) Reporting of Payments. From time to time, and upon reasonable
notice from the Trust, the Agent shall provide the Trust a written accounting of
all payments that the Agent receives under this Agreement.
(c) 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), 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.
14. Force Majeure. The Agent shall not be liable or responsible for
delays or errors by reason of circumstances beyond its 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.
15. Indemnity.
(a) Indemnification of the Trust. The Agent shall indemnify and
hold the Trust harmless from and against any and all losses, claims, damages,
judgments, assessments, costs and other liabilities ("Trust Liabilities") and
will reimburse all fees and expenses (including the fees and expenses of
counsel) incurred by the Trust, provided such Trust Liabilities and expenses
result from a claim, action or proceeding brought or threatened to be brought
against the Trust arising out of (i) the bad faith or negligence of the Agent,
its officers, employees or agents, or (ii) any breach of its obligations under
this Agreement or applicable law by the Agent, its officers, employees or
agents, or (iii) any false or misleading statement contained in any
communication by the Agent to any Customer or prospective Customer not prepared
by or expressly authorized by the Trust for use of the Agent.
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
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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.
(b) Indemnification of the Agent. The Trust shall indemnify and
hold the Agent harmless from and against any and all losses, claims, damages,
judgments, assessments, costs and other liabilities ("Agent Liabilities") and
will reimburse all fees and expenses (including the fees and expenses of
counsel) incurred by the Agent, provided such Agent Liabilities and expenses
result from a claim, action or proceeding brought or threatened to be brought
against the Agent arising out of (i) the bad faith or negligence of the Trust,
its officers, employees or agents, or (ii) any breach of its obligations under
this Agreement or applicable law by the Trust, its officers, employees or
agents, or (iii) any untrue statement, or alleged untrue statement of a material
fact including, without limitation, any such statement or omission made in the
Trust's Registration Statement or any Fund's Prospectus or SAI, or arising out
of or based upon any omission, or alleged omission, to state a material fact
required to be stated in either the Registration Statement or any Prospectus, or
necessary to make the statements in any thereof not misleading; provided,
however, that the Trust's agreement to indemnify such persons shall not be
deemed to cover any losses, claims, demands, liabilities or expenses arising out
of any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or any Prospectus or SAI in reliance
upon and in conformity with information furnished to the Trust by Agent
specifically for use in the preparation thereof.
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.
(c) Survival of Indemnities. The indemnities granted by the
parties in this Section 15 shall survive the termination of this Agreement.
16. Insurance. The Agent shall maintain reasonable insurance coverage
against any and all liabilities which may arise in connection with the
performance of its duties hereunder.
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Upon request, Agent shall produce certificates of coverage satisfactory to the
Trust demonstrating compliance with this Section 16.
17. 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.
18. Further Assurances. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
19. Termination. This Agreement may be terminated by either party,
without the payment of any penalty, by the Trust 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 any Plan of Distribution pursuant to Rule 12b-1 to which this
Agreement is related (a "Plan"), this Agreement or any other agreement related
to any such Plan (the "Qualified Trustees"), or (as to a particular Fund) by the
affirmative vote of the holders of a majority of the outstanding Shares (as
defined in the 0000 Xxx) of the Fund. The Agent may terminate this Agreement
upon not more than 60 days' nor less than 30 days' notice to the Trust.
Notwithstanding anything herein to the contrary, 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. Upon and following
termination the parties shall take such steps as may be necessary or expedient
for the parties and the Trust to comply with applicable law.
20. Changes; Amendments. This Agreement may be changed or amended only
by written instrument signed by both parties.
21. Limitation of Liability. The Trust's Master Trust Agreement, dated
October 28, 1999 (the "Master Trust Agreement"), as amended from time to time,
establishing the Trust, provides that the Trustees from time to time serving (as
Trustees but not personally) under said Master Trust Agreement and it is
expressly acknowledged and agreed that, any and all obligations of the Trust
hereunder shall not be binding upon any of the Shareholders, Trustees, officers,
employees or agents of the Trust, personally, but shall bind only the assets and
property of the Trust, as provided in its Master Trust Agreement. The execution
and delivery of this Agreement have been authorized by the Trustees of the Trust
and signed by an officer of the Trust, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, but shall bind only the assets and property
of the Trust as provided in its Master Trust Agreement.
22. Miscellaneous. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware. The captions
in this Agreement are
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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.
23. Continuation. Unless sooner terminated pursuant to Section 19
hereof, this Agreement shall continue in effect with respect to each Fund
subsequent to the initial terms specified herein for so long as such continuance
is specifically approved at least annually by votes of a majority of both (i)
the Board of Trustees of the Trust, and (ii) the Qualified Trustees who are not
interested persons (as defined in the 0000 Xxx) of the Agent, cast in person at
a meeting called for the purpose of voting on this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first set forth above.
TRUST:
Lend Lease Funds
By:
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AGENT:
By:
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ATTACHMENT A
TO
SHAREHOLDER SERVICING AGREEMENT
Each of the following series of Lend Lease Funds shall be considered a
"Fund" under Section 1 of the Shareholder Servicing Agreement, dated as of
and between Lend Lease Funds and . The fees
to be paid pursuant to Section 3 of this Agreement are indicated opposite the
Fund name.
---------------------------------------- ------------------------------------- -------------------------------------
PORTFOLIO NAME FEE FROM THE TRUST, BASED ON THE FEE FROM THE TRUST, BASED ON THE
AVERAGE DAILY VALUE OF ALL CLASS A AVERAGE DAILY VALUE OF ALL CLASS K
SHARES OF EACH FUND OWNED BY SHARES OF EACH FUND OWNED BY
CUSTOMERS: CUSTOMERS:
---------------------------------------- ------------------------------------- -------------------------------------
Lend Lease U.S. Real Estate of 1% of 1%
Securities Fund ---- ----
---------------------------------------- ------------------------------------- -------------------------------------
And such other Funds, as may be established from time to time.
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ATTACHMENT B
TO
SHAREHOLDER SERVICING AGREEMENT
Agent agrees to reimburse Trust as follows:
Prospectuses:
Cost Units
@ Cost* per unit in excess of 1,000
Statements of Additional Information:
Cost Units
@ Cost** per unit in excess of 1
Supplemental Sales Literature
As may be agreed upon in writing from time to time.
-----------------------
* Est. __(cent) per copy.
** Est. __(cent) per copy.
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