X.X. XXXXXX FUNDS
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, dated as of _________ ___, 2001, by and between X.X.
XXXXXX FUNDS, a business trust organized under the laws of the Commonwealth of
Massachusetts (the "Trust"), and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a
New York trust company ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, the Trust is a diversified open-end investment management
company registered under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, transactions in shares of the Trust ("Shares") may be made by
investors who are using the services of a financial institution or broker-dealer
which is acting as shareholder servicing agent pursuant to an agreement with the
Trust or its distributor; and
WHEREAS, Xxxxxx wishes to act as the shareholder servicing agent for
its customers and for other investors in the Trust who are customers of an
Eligible Institution as contemplated by the currently effective prospectus of
the respective Series of the Trust (the "Customers") in performing certain
administrative functions in connection with purchases and redemptions of Shares
from time to time upon the order and for the account of Customers and to provide
related services to Customers in connection with their investments in the Trust;
and
WHEREAS, it is in the interest of the Trust to make the shareholder
services of Xxxxxx available to Customers who are or may become shareholders of
the Trust; and
NOW, THEREFORE, the Trust and Xxxxxx hereby agree as follows:
1. APPOINTMENT. Xxxxxx hereby agrees to perform certain shareholder
services as agent for Customers with respect to each Fund (as defined in the
next sentence) as hereinafter set forth. As used herein, a "Fund" means the
assets and liabilities of the Trust attributable to any series of Shares as may
be created from time to time by the Trustees of the Trust and to which the Trust
and Xxxxxx agree this Agreement shall apply. The Trust may enter into other
shareholder servicing or similar agreement, in writing, with other financial
institutions.
2. SERVICES TO BE PERFORMED.
2.1. SHAREHOLDER SERVICES. Xxxxxx shall be responsible for performing
shareholder account administrative and servicing functions, which shall include
without limitation:
(a) answering Customer inquiries regarding account status and history,
the manner
in which purchases and redemptions of the Shares may be effected, and certain
other matters pertaining to the Trust; (b) assisting Customers in designating
and changing dividend options, account designations and addresses; (c) providing
necessary personnel and facilities to coordinate the establishment and
maintenance of shareholder accounts and records with the Trust's transfer agent;
(d) receiving Customers' purchase and redemption orders on behalf of, and
transmitting such orders to the Trust's transfer agent; (e) arranging for the
wiring or other transfer of funds to and from Customer accounts in connection
with Customer orders to purchase or redeem Shares; (f) verifying purchase and
redemption orders, transfers among and changes in Customer-designated accounts;
(g) informing the distributor of the Trust of the gross amount of purchase and
redemption orders for Shares; (h) monitoring the activities of the Trust's
transfer agent related to Customers' accounts, and to statements, confirmations
or other reports furnished to Customers by the Trust's transfer agent; and (i)
providing such other related services as the Trust or a Customer may reasonably
request, to the extent permitted by applicable law. Xxxxxx shall provide all
personnel and facilities necessary in order for it to perform the functions
contemplated by this paragraph with respect to Customers.
2.2 STANDARD OF SERVICES. All services to be rendered by Xxxxxx
hereunder shall be performed in a professional, competent and timely manner
subject to the supervision of the Trustees of the Trust. The details of the
operating standards and procedures to be followed by Xxxxxx in the performance
of the services described above shall be determined from time to time by
agreement between Xxxxxx and the Trust.
3. FEES. As full compensation for the services described in Section 2
hereof and expenses incurred by Xxxxxx, the Trust shall pay Xxxxxx a fee at an
annual rate of the daily net asset values of each Fund's shares owned by or for
Customers and attributable to the Trust as set forth on Schedule A attached
hereto. This fee will be computed daily and will be payable as agreed by the
Trust and Xxxxxx, but no more frequently than monthly.
4. INFORMATION PERTAINING TO THE SHARES; ETC. Xxxxxx and its officers,
employees and agents are not authorized to make any representations concerning
the Trust or the Shares except to communicate to Customers accurately factual
information contained in the Fund's Prospectus and Statement of Additional
Information and objective historical performance information. Xxxxxx shall act
as agent for Customers only in furnishing information regarding the Trust or the
Shares and shall have no authority to act as agent for the Trust in its capacity
as shareholder servicing agent hereunder.
During the term of this Agreement, the Trust agrees to furnish Xxxxxx
all prospectuses, statements of additional information, proxy statements,
reports to shareholders, sales literature, or other material the Trust will
distribute to shareholders of each Fund or the public, which refer in any way to
Xxxxxx, and Xxxxxx agrees to furnish the Trust all material prepared for
Customers, in each case prior to use thereof, and not to use such material if
the other party reasonably objects in writing within five business days
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(or such other time as may be mutually agreed in writing) after receipt thereof.
In the event of termination of this Agreement, the Trust will continue to
furnish to Xxxxxx copies of any of the above-mentioned materials which refer in
any way to Xxxxxx. The Trust shall furnish or otherwise make available to Xxxxxx
such other information relating to the business affairs of the Trust as Xxxxxx
at any time, or from time to time, reasonably requests in order to discharge its
obligations hereunder.
Nothing in this Section 4 shall be construed to make the Trust liable
for the use of any information about the Trust which is disseminated by Xxxxxx.
5. USE OF XXXXXX'X NAME. The Trust shall not use the name of Xxxxxx in
any prospectus, sales literature or other material relating to the Trust in a
manner not approved by Xxxxxx prior thereto in writing; PROVIDED, HOWEVER, that
the approval of Xxxxxx shall not be required for any use of its name which
merely refers in accurate and factual terms to its appointment hereunder or as
investment advisor to the Trust 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.
6. USE OF THE TRUST'S NAME. Xxxxxx shall not use the name of the Trust
or Fund on any checks, bank drafts, bank statements or forms for other than
internal use 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 in connection with communications permitted by Sections
2 and 4 hereof or for any use of the Trust's name which merely refers in
accurate and factual terms to Xxxxxx'x role hereunder or as investment advisor
to the Trust 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.
7. SECURITY. Xxxxxx represents and warrants that the various procedures
and systems which it has implemented with regard to safeguarding from loss or
damage attributable to fire, theft or any other cause any Trust records and
other data and Xxxxxx'x 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 to be
safeguarded in accordance with this Section 7.
8. COMPLIANCE WITH LAWS; ETC. Xxxxxx shall comply with all applicable
federal and state laws and regulations. Xxxxxx represents and warrants to the
Trust that the performance of all its obligations hereunder will comply with all
applicable laws and
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regulations, the provisions of its charter documents and by-laws and all
material contractual obligations binding upon Xxxxxx. Xxxxxx furthermore
undertakes that it will promptly inform the Trust of any change in applicable
laws or regulations (or interpretations thereof) which would prevent or impair
full performance of any of its obligations hereunder.
9. FORCE MAJEURE. Xxxxxx 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.
10. INDEMNIFICATION.
10.1. INDEMNIFICATION OF XXXXXX. The Trust will indemnify and hold
Xxxxxx harmless, from all losses, claims, damages, liabilities or expenses
(including reasonable fees and disbursements of counsel) from any claim, demand,
action or suit (collectively, "Claims") (a) arising in connection with
misstatements or omissions in each Fund's Prospectus, actions or inactions by
the Trust or any of its agents or contractors or the performance of Xxxxxx'x
obligations hereunder and (b) not resulting from the willful misfeasance, bad
faith, or gross negligence of Xxxxxx, its officers, employees or agents, in the
performance of Xxxxxx'x duties or from reckless disregard by Xxxxxx, its
officers, employees or agents of Xxxxxx'x obligations and duties under this
Agreement. Notwithstanding anything herein to the contrary, the Trust will
indemnify and hold Xxxxxx 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 Xxxxxx'x acting in accordance with any
written instructions reasonably believed by Xxxxxx 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 Xxxxxx 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 Xxxxxx.
In any case in which the Trust may be asked to indemnify or hold Xxxxxx
harmless, the Trust shall be advised of all pertinent facts concerning the
situation in question and Xxxxxx 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 Xxxxxx against any Claim which may be the subject of
indemnification under this Section 10.1. In the event that the Trust elects to
defend against such Claim, the defense shall be conducted by counsel chosen by
the Trust and reasonably satisfactory to Xxxxxx. Xxxxxx may retain additional
counsel at its expense. Except with the prior written consent of the Trust,
Xxxxxx shall not confess any Claim or make any compromise in any case in which
the Trust will be asked to indemnify Xxxxxx.
10.2. INDEMNIFICATION OF THE TRUST. Without limiting the rights of the
Trust under
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applicable law, Xxxxxx will indemnify and hold the Trust harmless from all
losses, claims, damages, liabilities or expenses (including reasonable fees and
disbursements of counsel) from any Claim (a) resulting from the willful
misfeasance, bad faith or gross negligence of Xxxxxx, its officers, employees,
or agents, in the performance of Xxxxxx'x duties or from reckless disregard by
Xxxxxx, its officers, employees or agents of Xxxxxx'x obligations and duties
under this Agreement, and (b) not resulting from Xxxxxx'x actions in accordance
with written instructions reasonably believed by Xxxxxx to have been executed by
any person duly authorized by the Trust, or in reliance upon any instrument or
stock certificate reasonably believed by Xxxxxx to have been genuine and signed,
countersigned or executed by a person authorized by the Trust.
In any case in which Xxxxxx may be asked to indemnify or hold the Trust
harmless, Xxxxxx shall be advised of all pertinent facts concerning the
situation in question and the Trust shall use reasonable care to identify and
notify Xxxxxx promptly concerning any situation which presents or appears likely
to present a claim for indemnification against Xxxxxx. Xxxxxx shall have the
option to defend the Trust against any Claim which may be the subject of
indemnification under this Section 10.2. In the event that Xxxxxx elects to
defend against such Claim, the defense shall be conducted by counsel chosen by
Xxxxxx and reasonably satisfactory to the Trust. The Trust may retain additional
counsel at its expense. Except with the prior written consent of Xxxxxx, the
Trust shall not confess any Claim or make any compromise in any case in which
Xxxxxx will be asked to indemnify the Trust.
10.3. SURVIVAL OF INDEMNITIES. The indemnities granted by the parties
in this Section 10 shall survive the termination of this Agreement.
11. INSURANCE. Xxxxxx shall maintain reasonable insurance coverage
against any and all liabilities which may arise in connection with the
performance of its duties hereunder.
12. FURTHER ASSURANCES. Each party agrees to perform such further acts
and execute further documents as are necessary to effectuate the purposes
hereof.
13. TERMINATION. This Agreement shall continue in effect for a period
of one year and may thereafter be renewed by the Trustees of the Trust;
PROVIDED, however, that this Agreement may be terminated by the Trust at any
time without the payment of any penalty, by the Trustees of the Trust or by vote
of a majority of the outstanding voting securities (as defined in the 0000 Xxx)
of the Trust, upon not less than six (6) months' written notice to Xxxxxx or by
Xxxxxx at any time, without the payment of any penalty, on not less than ninety
(90) days' written notice to the Trust. This Agreement shall terminate
automatically in the event of its assignment (as defined in the 1940 Act).
14. SUBCONTRACTING BY XXXXXX. Xxxxxx may subcontract for the
performance of its
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obligations hereunder with any one or more persons, including but not limited to
any one or more persons which is an affiliate of Xxxxxx; PROVIDED HOWEVER,
unless the Trust otherwise expressly agrees in writing, Xxxxxx 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.
15. Nothing in this Agreement shall limit or restrict the right of
Xxxxxx to engage in any other business or to render services of any kind to any
other corporation, firm, individual or association.
16. CHANGES; AMENDMENTS. This Agreement may be amended only by mutual
written consent.
17. NOTICES. Any notice or other communication required to be given
pursuant to this Agreement shall be deemed duly given if delivered or mailed by
registered mail, postage prepaid, (1) to Xxxxxx at Xxxxxx Guaranty Trust Company
of New York, Attention: Managing Director, Funds Management Division, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000 or (2) to the Trust at X.X. Xxxxxx Xxxxxxx Asset
Management, 0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxx Xxxxxxxx, President and Treasurer, or at such other address as
either party may designate by notice to the other party.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first
written.
X.X. XXXXXX FUNDS
By:
----------------------------
Name: Xxxxx Xxxxxxxx
Title: President and Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:
----------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
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