Exhibit (h)(5)
SHAREHOLDER SERVICING AGREEMENT FOR
NORWEST ADVANTAGE FUNDS
THIS SHAREHOLDER SERVICING AGREEMENT ("Agreement"), dated as of
September 25, 1998, is made among Norwest Advantage Funds (the "Trust"), a
Massachusetts business trust, having its principal place of business at Two
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx 00000, on behalf of the classes of shares of
the Funds of the Trust listed in the attached Appendix, as amended from time to
time, (each a "Class" and a "Fund" and, collectively, the "Classes" and the
"Funds"), and Norwest Bank Minnesota, N.A. as shareholder servicing agent
hereunder ("Shareholder Servicing Agent");
W I T N E S S E T H:
WHEREAS, shares of beneficial interest of a Fund of the Trust
(hereinafter the "Shares") may be purchased or redeemed through a broker/dealer
or financial institution which has entered into a shareholder servicing
agreement with the Trust on behalf of its respective Funds; and
WHEREAS, the Shareholder Servicing Agent wishes to facilitate
purchases and redemptions of Shares by its customers (the "Customers") and
wishes to act as the Customers' agent in performing certain administrative
functions in connection with transactions in Shares from time to time for the
account of the Customers and to provide related services to the Customers in
connection with their investments in a Fund; and
WHEREAS, it is in the best interests of the Funds to make the
services of the Shareholder Servicing Agent available to the Customers who, from
time to time, become shareholders of a Fund;
NOW THEREFORE, the Trust, on behalf of its respective Funds, and
the Shareholder Servicing Agent hereby agree as follows:
1. Appointment. The Shareholder Servicing Agent hereby agrees to
perform certain services for Customers as hereinafter set forth. The Shareholder
Servicing Agent's appointment hereunder is not exclusive, and the Shareholder
Servicing Agent shall not be entitled to notice of or a right to consent to the
execution of a shareholder servicing agreement with any other person.
2. Services to be Performed.
2.1 Types of Services. The Shareholder Servicing Agent shall
be responsible for performing shareholder administrative and
liaison services, which shall include, without limitation:
(a) answering Customer inquiries regarding account status
and history, and the manner in which purchases, exchanges and
redemptions of Shares may be effected;
(b) assisting Customers in designating and changing dividend
options, account designations and addresses;
(c) providing necessary personnel and facilities to
establish and maintain Customer accounts and records;
(d) assisting in aggregating and transmitting purchase,
redemption and exchange transactions;
(e) arranging for the wiring of money;
(f) transferring money in connection with Customer orders to
purchase or redeem shares;
(g) verifying and guaranteeing Customer signatures in
connection with redemption and exchange orders and transfers and
changes in Customer accounts with a bank which is designated in
the Fund Account Application and which is approved by a Fund's
Transfer Agent;
(h) furnishing (either separately or on an integrated basis
with other reports sent to a Customer by the Shareholder
Servicing Agent) monthly and year-end statements and
confirmations of purchases, redemptions and exchanges;
(i) furnishing, on behalf of the Shares of a Fund, proxy
statements, annual reports, updated prospectuses and other
communications to Customers;
(j) receiving, tabulating and sending to a Fund, proxies
executed by Customers; and
(k) providing such other related services, and necessary
personnel and facilities to provide all of the shareholder
services contemplated hereby, in each case, as the Trust, or a
Customer may reasonably request.
2.2 Standard of Services. All services to be rendered by the
Shareholder Servicing Agent hereunder shall be performed in a
professional, competent and timely manner. Any detailed operating
standards and procedures to be followed by the Shareholder
Servicing Agent in performing the services described above shall
be determined from time to time by agreement between the
Shareholder Servicing Agent and the Trust. The Trust acknowledges
that the Shareholder Servicing Agent's ability to perform on a
timely basis certain of its obligations under this Agreement
depends upon a Fund's timely delivery of certain materials and/or
information to the Shareholder Servicing Agent. The Trust agrees
to use its best efforts to provide, or cause to be provided, such
materials to the Shareholder Servicing Agent in a timely manner.
2.3 Investments through Distributor. The Trust and the
Shareholder Servicing Agent each hereby agrees that all purchases
of Shares effected by the Shareholder Servicing Agent on behalf
of its Customers shall be effected by it through Forum Financial
Services, Inc. ("Distributor") in its capacity as the Funds'
principal underwriter.
3. Fees.
3.1 Fees from the Funds. In consideration of the services
described in Section 2 hereof ------------------- and the
incurring of expenses in connection therewith, the Shareholder
Servicing Agent shall receive a fee, from each of the Classes of
Shares of the Funds identified in the attached Appendix, which
shall be paid in arrears periodically or on a periodic basis to
be agreed between the Trust and the Shareholder Servicing Agent,
from time to time (but in no event less frequently than
semi-annually) determined by a formula based upon the number of
accounts of the particular Class in a particular Fund serviced by
the Shareholder Servicing Agent during the period for which
payment is being made, the level of assets or activity in such
accounts during such period, and/or the expenses incurred by the
Shareholder Servicing Agent. In no event will the fees charged to
a Class of Shares of a Fund exceed the amount set forth opposite
such Class of Shares of such Fund in the Appendix attached
hereto. In addition, all fees paid by Classes of Shares of the
Funds hereunder shall be calculated based on the average daily
net assets of the particular Class of Shares of such Fund owned
of record by the Shareholder Servicing Agent on behalf of the
Customers during the period for which payment is being made. For
purposes of determining the fees payable to the Shareholder
Servicing Agent hereunder, the per share value of a Class of a
Fund shall be computed in the manner specified in the Fund's
then-current prospectus. Notwithstanding the foregoing, if
applicable laws, regulations or rules impose a maximum fee amount
(a "cap") with respect to shareholder servicing fees and/or fees
for distribution-related services that may be paid by the Shares
of a Fund, the amount payable hereunder shall be reduced to an
amount which, when considered in conjunction with the fees
payable by a Fund for the Shares' distribution-related
activities, is the maximum amount payable to the Shareholder
Servicing Agent under applicable laws, regulations or rules.
Notwithstanding anything herein to the contrary, the Trust shall
not be obligated to make any payments under this Agreement that
exceed the maximum amounts payable under Rule 2830 of the Conduct
Rules of the National Association of Securities Dealers, Inc. The
above fee constitutes all fees to be paid to the Shareholder
Servicing Agent by a Class of Shares of a Fund of the Trust with
respect to the shareholder services contemplated hereby.
3.2 Fees from Customers. It is agreed that the Shareholder
Servicing Agent may impose certain conditions on Customers,
subject to the terms of the relevant Fund's then-current
prospectus, in addition to or different from those imposed by the
Fund, such as requiring a minimum initial investment or the
payment of additional fees directly by the Customer for
additional services offered by the Shareholder Servicing Agent to
the Customer; provided, however, that the Shareholder Servicing
Agent may not charge Customers any direct fee which would
constitute a "sales load" within the meaning of Section 2(a)(35)
of the Investment Company Act of 1940, as amended (the "1940
Act"). The Shareholder Servicing Agent shall xxxx Customers
directly for any such additional fees. In the event the
Shareholder Servicing Agent charges Customers such additional
fees, it shall notify the Trust in advance and make appropriate
prior written disclosure (such disclosure to be in accordance
with all applicable laws) to Customers of any such additional
fees charged directly to the Customer. To the extent required by
applicable rules and regulations of the Securities and Exchange
Commission ("SEC"), the Trust shall make written disclosure of
the fees paid or to be paid by a Fund to the Shareholder
Servicing Agent pursuant to Section 3.1 of this Agreement. In no
event shall the Shareholder Servicing Agent have recourse or
access, as Shareholder Servicing Agent or otherwise, to the
assets in the Customer's account, except to the extent expressly
authorized by law or by such Customer, or to any assets of a
Fund, the Trust, for payment of any additional direct fees
referred to in this Section 3.2.
4. Information Pertaining to the Shares. The Shareholder Servicing
Agent and its officers, employees and agents are not authorized to make any
representations concerning the Trust, a Fund or the Shares of any Class thereof
to Customers or prospective Customers, excepting only accurate communication of
any information provided by or on behalf of any administrator of the Trust or
the Distributor of information contained in the relevant Fund's then-current
prospectus. In furnishing such information regarding the Trust, a Fund or the
Shares, the Shareholder Servicing Agent shall act as agent for the Customer only
and shall have no authority to act as agent for the the Trust, a Fund or the
Shares. Advance copies or proofs of all materials which are proposed to be
circulated or disseminated by the Shareholder Servicing Agent to Customers or
prospective Customers and which identify or describe the Trust, a Fund or the
Shares shall be provided to the Trust, at least 10 days prior to such
circulation or dissemination (unless the Trust consents in writing to a shorter
period), and such materials shall not be circulated or disseminated or further
circulated or disseminated at any time after the Trust, shall have given written
notice to the Shareholder Servicing Agent of any objection thereto.
Nothing in this Section 4 shall be construed to make the Trust
liable for the use (as opposed to the accuracy) of any information about, the
Trust, a Fund or the Shares which is disseminated by the Shareholder Servicing
Agent.
5. Use of the Shareholder Servicing Agent's Name. The Trust not
use the name of the Shareholder Servicing Agent, or any of its affiliates or
subsidiaries, in any prospectus, sales literature or other materials relating
to, the Trust, a Fund or the Shares in a manner not approved by the Shareholder
Servicing Agent prior thereto in writing; provided, however, that the approval
of the Shareholder Servicing Agent shall not be required for any use of its name
which merely refers in accurate and factual terms to its appointment hereunder
or which is required by the SEC 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.
6. Use of the Name of the Trust or a Fund. The Shareholder
Servicing Agent shall not use the name of, the Trust, a Fund or any Class of
Shares on any checks, bank drafts, bank statements or forms for other than
internal use in a manner not approved by Trust, prior thereto in writing;
provided, however, that the approval of the Trust, shall not be required for (i)
the use of the Trust's name, or the name of a Fund, in connection with
communications permitted by Section 4 hereof, or (ii) (subject to Section 4, to
the extent the same may be applicable) for any use of the Trust's name or a
Fund's name which merely identifies the Trust or a Fund, in connection with the
Shareholder Servicing Agent's role hereunder or which is required by the SEC 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.
7. Security. The Shareholder Servicing 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 Trust records and other data within its
possession or control and the Shareholder Servicing 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. The parties shall review such systems and procedures
on a periodic basis, and the Trust shall, from time to time, specify the types
of records and other data of the Trust, respectively, to be safeguarded in
accordance with this Section 7.
8. Compliance with Laws. The Shareholder Servicing Agent shall
comply with all applicable federal and state laws and regulations, including
securities laws. The Shareholder Servicing 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 Shareholder
Servicing Agent. The Shareholder Servicing Agent furthermore undertakes that it
will promptly, after the Shareholder Servicing Agent becomes so aware, 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.
9. Reports. To the extent requested by the Trust from time to
time, but at least quarterly, the Shareholder Servicing Agent will provide the
Treasurer of the Trust with a written report of the amounts expended by the
Shareholder Servicing 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.
In addition, the Shareholder Servicing Agent shall have a duty to furnish to the
Trust's Board of Trustees such information as may reasonably be necessary to an
informed determination of whether this Agreement should be implemented or
continued pursuant to Section 16.
10. Recordkeeping.
10.1 Each party shall maintain and preserve records as
required by law to be maintained and preserved by it in
connection with providing the services contemplated by this
Agreement. The Shareholder Servicing Agent's recordkeeping
responsibilities shall include those relating to establishing and
maintaining sub-accounts and records on behalf of Customers, and
recording Customers' sub-account balances and changes thereto.
10.2. Upon the request of the Trust, the Shareholder Servicing
Agent shall provide copies of all records relating to the transactions
between the Funds and the Customers as are maintained by the
Shareholder Servicing Agent in the ordinary course of its business and
in compliance with laws and regulations as may reasonably be requested
to enable the Trust to comply with any applicable laws or regulations
or request of a governmental body or self-regulatory organization.
10.3. The recordkeeping and access obligations imposed in this
Section 10 shall survive the termination of this Agreement for the
shorter of a period of six years or that minimum period required by
applicable rules or regulations of the SEC.
11. Force Majeure. The Shareholder Servicing Agent shall not be
liable or responsible for delays or errors by reason of circumstances beyond its
reasonable 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 systems or power supply.
12. Indemnification.
12.1 Indemnification of the Shareholder Servicing Agent by the
Trust. The Trust will indemnify and hold the Shareholder Servicing
Agent harmless from all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) from any
claim, demand, action or suit (collectively, "Claims") (a) arising in
connection with misstatements or omissions in the Funds' prospectus,
actions or inactions by the Trust or any of its agents or contractors
or the performance of the Shareholder Servicing Agent's obligations
hereunder and (b) not resulting from (i) the bad faith or negligence
of the Shareholder Servicing Agent, its officers, employees or agents,
or (ii) any breach of applicable law by the Shareholder Servicing
Agent, its officers, employees or agents, or (iii) any action of the
Shareholder Servicing Agent, its officers, employees or agents which
exceeds the legal authority of the Shareholder Servicing Agent or its
authority hereunder, or (iv) any error or omission of the Shareholder
Servicing Agent, its officers, employees or agents with respect to the
purchase, redemption and transfer of Customers' Shares or the
Shareholder Servicing Agent's verification or guarantee of any
Customer signature. Notwithstanding anything herein to the contrary,
the Trust will indemnify and hold the Shareholder Servicing Agent
harmless from any and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) resulting
from any Claim as a result of its acting in accordance with any
written instructions reasonably believed by the Shareholder Servicing
Agent to have been executed by any person duly authorized by the Trust
or as a result of acting in reliance upon any instrument or stock
certificate reasonably believed by the Shareholder Servicing Agent to
have been genuine and signed, countersigned or executed by a person
duly authorized by the Trust excepting only the gross negligence or
bad faith of the Shareholder Servicing Agent.
In any case in which the Trust may be asked to indemnify or hold
the Shareholder Servicing Agent harmless, the Trust shall be advised of all
pertinent facts concerning the situation in question and the Shareholder
Servicing 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 Shareholder Servicing Agent against any Claim which may be the
subject of indemnification hereunder. In the event that the Trust may be, elects
to defend against such Claim, the defense shall be conducted by counsel chosen
by the Trust and reasonably satisfactory to the Shareholder Servicing Agent. The
Shareholder Servicing Agent may retain additional counsel at its expense. Except
with the prior written consent of the Trust the Shareholder Servicing Agent
shall not confess any Claim or make any compromise in any case in which the
Trust will be asked to indemnify the Shareholder Servicing Agent.
12.2 Indemnification of the Trust by the Shareholder Servicing
Agent. Without limiting the rights of the Trust under applicable law,
the Shareholder Servicing Agent will indemnify and hold the Trust
harmless from all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) from any Claim (a)
resulting from (i) the bad faith or negligence of the Shareholder
Servicing Agent, its officers, employees or agents, or (ii) any breach
of applicable law by the Shareholder Servicing Agent, its officers,
employees or agents, or (iii) any action of the Shareholder Servicing
Agent, its officers, employees or agents which exceeds the legal
authority of the Shareholder Servicing Agent or its authority
hereunder, or (iv) any error or omission of the Shareholder Servicing
Agent, its officers, employees or agents with respect to the purchase,
redemption and transfer of Customers' Shares or the Shareholder
Servicing Agent's verification or guarantee of any Customer signature,
and (b) not resulting from the Shareholder Servicing Agent's actions
in accordance with written instructions reasonably believed by the
Shareholder Servicing Agent to have been executed by any person duly
authorized by the Trust or in reliance upon any instrument or stock
certificate reasonably believed by the Shareholder Servicing Agent to
have been genuine and signed, countersigned or executed by a person
duly authorized by the Trust.
In any case in which the Shareholder Servicing Agent may be asked
to indemnify or hold the Trust harmless, the Shareholder Servicing Agent shall
be advised of all pertinent facts concerning the situation in question and the
Trust shall use reasonable care to identify and notify the Shareholder Servicing
Agent promptly concerning any situation which presents or appears likely to
present a claim for indemnification against the Shareholder Servicing Agent. The
Shareholder Servicing 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 Shareholder Servicing Agent elects to defend against such Claim, the
defense shall be conducted by counsel chosen by the Shareholder Servicing Agent
and satisfactory to the Trust. The Trust may retain additional counsel at its
expense. Except with the prior written consent of the Shareholder Servicing
Agent, the Trust shall not confess any Claim or make any compromise in any case
in which the Shareholder Servicing Agent will be asked to indemnify the Trust.
12.3 Survival of Indemnities. The indemnities granted by the
parties in this Section 12 ----------------------- shall survive the
termination of this Agreement.
13. Insurance. The Shareholder Servicing Agent shall maintain
reasonable insurance coverage against any and all liabilities which may arise in
connection with the performance of its duties hereunder.
14. Notices. All notices or other communications hereunder shall
be in writing and shall be deemed sufficient if mailed to the other 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.
15. Further Assurances. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
16. Implementation and Duration of Agreement. This Agreement is
effective upon the date first written above and shall continue in effect with
respect to a Class of Shares of a Fund of the Trust for a period of more than
one year from the date hereof so long as the Servicing Plan adopted for such
Class and related form of agreement or this Agreement is not specifically
terminated by a vote of the Board of Trustees and of the Trustees 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 the relevant Servicing
Plan (the "Plan") pursuant to which the fees are paid, this Agreement, or any
other agreement related to such Plan, cast in person at a meeting called for the
purpose of voting on this Agreement.
17. Termination. This Agreement may be terminated with respect to
the Trust, or one or more Funds of the Trust, by the Trust without the payment
of any penalty, 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 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 the relevant Plan, this
Agreement or any other agreement related to such Plan, including the Amended
Distribution Agreement, or by "a vote of a majority of the outstanding voting
securities" (as defined in the 0000 Xxx) of the relevant class of shares of the
Fund. The Shareholder Servicing Agent may terminate this Agreement with respect
to either the Trust upon not more than 60 days' nor less than 30 days' notice to
the Trust. The Trust or the Shareholder Servicing Agent may assign this
Agreement provided that such assigning party obtains the prior written consent
of the other party hereto. Upon termination hereof, a Fund shall pay such
compensation as may be due the Shareholder Servicing Agent as of the date of
such termination.
18. Changes; Amendments. Except as otherwise provided in this
Section 18, this Agreement may be supplemented or amended only by written
instrument signed by all parties, but may not be amended to increase materially
the maximum amount payable by a Class of Shares of a Fund without the approval
of "a vote of a majority of the outstanding voting securities" (as defined in
the 0000 Xxx) of such Class of Shares of such Fund, and all material amendments
must be approved in the manner described in Section 16. From time to time, the
Trust may, by written notice to the Shareholder Servicing Agent, amend the
Appendix attached hereto to add or delete Funds and/or classes of Shares as
available investment options hereunder. Any such notice shall be effective upon
receipt by the Shareholder Servicing Agent.
19. Limitation of Liability. The Shareholder Servicing Agent
hereby agrees that obligations assumed by the Trust pursuant to this Agreement
shall be limited in all cases to the Funds and their assets and that the
Shareholder Servicing Agent shall not seek satisfaction of any such obligations
from the Board of Trustees or any individual Trustee of the Trust. The
Shareholder Servicing Agent further agrees that all obligations of a Fund
hereunder shall be solely the obligations of such Fund and that in no case will
any Fund of the Trust be liable for the obligations of any other Fund of the
Trust.
20. Subcontracting by Shareholder Servicing Agent. The Shareholder
Servicing Agent may, with the written approval of the Trust (such approval not
to be unreasonably withheld or delayed), subcontract for the performance of the
Shareholder Servicing Agent's obligations hereunder with any one or more
persons, including but not limited to any one or more persons which is an
affiliate of the Shareholder Servicing Agent; provided, however, that the
Shareholder Servicing Agent shall be as fully responsible to the Trust for the
acts and omissions of any subcontractor as it would be for its own acts or
omissions.
21. Authority to Vote. The Trust hereby confirms that nothing
contained in its Declaration of Trust would preclude the Shareholder Servicing
Agent, at any meeting of shareholders of the Trust or of a Fund, from voting any
Shares held in accounts serviced by the Shareholder Servicing Agent and which
are otherwise not represented in person or by proxy at the meeting,
proportionately in accordance with the votes cast by holders of all Shares
otherwise represented at the meeting in person or by proxy and held in accounts
serviced by the Shareholder Servicing Agent.
22. Compliance with Laws and Policies; Cooperation. The Trust
hereby agrees that it will comply with all laws and regulations applicable to
operations of Funds thereof and the Shareholder Servicing Agent agrees that it
will comply with all laws and regulations applicable to providing the services
contemplated hereby.
23. Miscellaneous. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of __________. The
captions in this Agreement are 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 three
or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
Norwest Advantage Funds on behalf of the classes of
shares of the Funds listed in the attached Appendix
By: ________________________________________________
Name: ______________________________________________
Title: ____________________________________________
Norwest Bank Minnesota, N.A.
By: ______________________________________
Name: _____________________________________
Title: __________________________________
By: ______________________________________
Name: ______________________________________
Title: ___________________________________
APPENDIX
__________________ Maximum
Annual
Fund and Share Class(es)___ Fee Rate
Growth Balanced Fund
Class A .25%
Large Company Growth Fund
Class A .25%
Diversified Small Cap Fund
Class A .25%
Approved: September 25, 1998
