SERVICING AGREEMENT
This Agency Agreement, effective January 1, 1998, by and
between Xxxxxxx Shareholder Services, Inc., a Delaware corporation
having its principal place of business in Bethesda, Maryland
("CSS"), and registered investment companies sponsored by Xxxxxxx
Group, Ltd. and its subsidiaries and set forth on Schedule A
("Xxxxxxx Group Funds" or "Funds"). The Funds have entered into a
transfer agency and service agreement with the State Street Bank and
Trust of Boston, Massachusetts ("State Street") ("State Street
Agreement").
1. Appointments. The Funds hereby appoints CSS as
servicing agent, agent and shareholder servicing agent for the
Funds, and CSS hereby accepts such appointment and agrees to perform
those duties in accordance with the terms and conditions set forth
in this Agreement.
2. Documentation. The Funds will furnish CSS with all
documents, certificates, contracts, forms, and opinions which CSS,
in its discretion, deems necessary or appropriate in connection with
the proper performance of its duties under this Agreement.
3. Services to be Performed. CSS will be responsible
for telephone servicing functions, system interface with State
Street and oversight of State Street's administering and performing
their duties pursuant to the State Street Agreement. The details of
the operating standards and procedures to be followed will be
determined from time to time by agreement between CSS and the Funds.
4. Recordkeeping and Other Information. CSS will,
commencing on the effective date of this Agreement, to the extent
necessary create and maintain all necessary shareholder accounting
records in accordance with all applicable laws, rules and
regulations, including but not limited to records required by
Section 31(a) of the Investment Company Act of 1940, as amended (the
"1940 Act"), and the rules thereunder, as amended from time to time.
All such records will be the property of the Fund and will be
available for inspection and use by such Fund.
5. Audit, Inspection and Visitation. CSS will make
available during regular business hours all records and other data
created and maintained pursuant to this Agreement for reasonable
audit and inspection by the SEC, a Fund or any person retained by a
Fund.
6. Compensation. The Funds will compensate CSS on a
monthly basis for the services performed pursuant to this Agreement,
at the rate of compensation set forth in Schedule A. Out of pocket
expenses incurred by CSS and not included in Schedule A will be
reimbursed to CSS by the Fund, as appropriate; such expenses may
include, but are not limited to, special forms and postage for
mailing the forms. These charges will be payable in full upon
receipt of a billing invoice. In lieu of reimbursing CSS for these
expenses, any Fund may, in its discretion, directly pay the expenses.
7. Use of Names. No Fund will not use the name of CSS
in any prospectus, sales literature or other material relating to
the Fund in any manner without prior approval by CSS; provided,
however, that CSS will approve all uses of its name that merely
refer in accurate terms to its appointment under this Agreement or
that are required by the SEC or a State Securities Commission; and,
provided, further, that in no event will approval be unreasonably
withheld.
8. Security. CSS represents and warrants that, to the
best of its knowledge, the various procedures and systems that CSS
proposes to implement with regard to safeguarding from loss or
damage attributable to fire, theft or any other cause (including
provision for twenty-four hour a day restricted access) the Fund's,
records and other data and CSS's records, data, equipment,
facilities and other property used in the performance of its
obligations under this Agreement are adequate and that it will
implement them in the manner proposed and make such changes from
time to time as in its judgment are required for the secure
performance of obligations under this Agreement.
9. Limitation of Liability. Each Fund will indemnify
and hold CSS harmless against any losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any claim, demand, action or suit brought
by any person (including a shareholder naming such Fund as a party)
other than such Fund not resulting from CSS's bad faith, willful
misfeasance, reckless disregard of its obligations and duties, or
negligence arising out of, or in connection with, CSS's performance
of its obligations under this Agreement.
To the extent CSS has not acted with bad faith, willful
misfeasance, reckless disregard of its obligations and duties, or
gross negligence, each Fund will also indemnify and hold CSS
harmless against any losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) resulting
from any claim, demand, action or suit resulting from the negligence
of such Fund, or CSS's acting upon any instructions reasonably
believed by it to have been executed or communicated by any person
duly authorized by such Fund, or as a result of CSS's acting in
reliance upon advice reasonably believed by CSS to have been given
by counsel for the Fund, or as a result of CSS's acting in reliance
upon any instrument reasonably believed by it to have been genuine
and signed, countersigned or executed by the proper person.
CSS's liability for any and all claims of any kind,
including negligence, for any loss or damage arising out of,
connected with, or resulting from this Agreement, or from the
performance or breach thereof, or from the design, development,
lease, repair, maintenance, operation or use of data processing
systems and the maintenance of a Funds' shareholder account records
as provided for by this Agreement will in the aggregate not exceed
the total of CSS's compensation hereunder for the six months
immediately preceding the discovery of the circumstances giving rise
to such liability.
In no event will CSS be liable for indirect, special, or
consequential damages (even if CSS has been advised of the
possibility of such damages) arising from the obligations assumed
hereunder and the services provided for by this Agreement, including
but not limited to lost profits, loss of use of the shareholder
accounting system, cost of capital, cost of substitute facilities,
programs or services, downtime costs, or claims of shareholders for
such damage.
10. Limitation of Liability of the Fund. CSS
acknowledges that it accepts the limitations upon the liability of
the Funds. CSS agrees that each Fund's obligations under this
Agreement in any case will be limited to such Fund and to its assets
and that CSS will not seek satisfaction of any obligation from the
shareholders of the Fund nor from any director, trustee, officer,
employee or agent of such Fund.
11. Force Majeure. CSS will not be liable for delays or
errors occurring by reason of circumstances beyond its control,
including but not limited to acts of civil or military authority,
national emergencies, work stoppages, fire, flood, catastrophe, acts
of God, insurrection, war, riot, or failure of communication or
power supply. In the event of equipment breakdowns beyond its
control, CSS will take reasonable steps to minimize service
interruptions but will have no liability with respect thereto.
12. Amendments. CSS and each Fund will regularly
consult with each other regarding CSS's performance of its
obligations under this Agreement. Any change in a Fund's
registration statements under the Securities Act of 1933, as
amended, or the 1940 Act or in the forms relating to any plan,
program or service offered by the current prospectus which would
require a change in CSS's obligations under this Agreement will be
subject to CSS's approval, which will not be unreasonably withheld.
Neither this Agreement nor any of its provisions may be changed,
waived, discharged, or terminated orally, but only by written
instrument which will make specific reference to this Agreement and
which will be signed by the party against which enforcement of such
change, waiver, discharge or termination is sought.
13. Termination. This Agreement will continue in effect
until January 1, 1999, and thereafter as the parties may mutually
agree; provided, however, that this Agreement may be terminated at
any time by either party upon at least sixty days' prior written
notice to the other party; and provided further that this Agreement
may be terminated immediately at any time for cause either by any
Fund or CSS in the event that such cause remains unremedied for no
less than ninety days after receipt of written specification of such
cause. Any such termination will not affect the rights and
obligations of the parties under Paragraphs 9 and 10 hereof. In the
event that a Fund designates a successor to any of CSS's obligations
hereunder, CSS will, at the expense and direction of such Fund,
transfer to such successor all relevant books, records and other
data of such Fund established or maintained by CSS under this
Agreement.
15. Miscellaneous. Each party agrees to perform such
further acts and execute such further documents as are necessary to
effectuate the purposes of this Agreement. This Agreement will be
construed and enforced in accordance with and governed by the laws
of the State of Maryland. The captions in this Agreement are
included for convenience only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the day and year first above written.
XXXXXXX GROUP FUNDS
By:/s/ Xxxxxxx X. Xxxxxxxxx
XXXXXXX SHAREHOLDER SERVICES, INC.
By:/s/ Xxxxxx X. Xxxxxxxxxxx
SERVICING AGREEMENT
SCHEDULE A
For its services under this Servicing Agreement, Xxxxxxx
Shareholder Services, Inc., is entitled to receive from the Xxxxxxx
Funds (Except Acacia Capital Corporation) fees as set forth below:
Annual
Transaction
Fund and Portfolio Account Fee* Fee
FIRST VARIABLE RATE FUND
First Variable Rate Fund (d/b/a Xxxxxxx First $11.59 $.84
Government Money Market)
Xxxxxxx Florida Municipal Intermediate Fund 2.23 .26
XXXXXXX TAX-FREE RESERVES
Money Market 13.35 .97
Limited-Term 3.37 .42
Long-Term 2.67 .31
California Money Market 12.74 .93
Vermont Municipal 3.40 .39
XXXXXXX MUNICIPAL FUND, INC
California Intermediate 3.48 .40
National Intermediate 3.31 .38
Maryland Intermediate 4.64 .53
Michigan Intermediate 3.88 .44
New York Intermediate 4.23 .48
Virginia Intermediate 3.35 .38
Arizona Intermediate 2.10 .24
Pennsylvania Intermediate 2.82 .32
THE XXXXXXX FUND
Income 4.22 .48
New Vision Small Cap 5.90 .67
XXXXXXX SOCIAL INVESTMENT FUND
Money Market 11.92 .87
Bond 4.85 .55
Managed Growth 4.63 .72
Equity 5.24 .60
XXXXXXX WORLD VALUES FUND, INC.
International Equity 5.36 .61
Capital Accumulation 6.26 .72
XXXXXXX NEW WORLD FUND
New Africa Fund 3.91 .45
* Account fees are charged monthly based on the highest number of
non-zero balance accounts outstanding during the month.
Acacia Capital Corporation fee is as follows:
.03% (three basis points) on the first $500 million of average
net assets and .02% (two basis points) over $500 million of average
net assets, minus the fees paid by Acacia Capital Corporation to
State Street Bank and Trust pursuant to the State Street Agreement
(except for out of pocket expenses).
