FORM OF
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, dated as of May 1, 2003, by and between X.X. XXXXXX XXXXXXX
MUTUAL FUND GROUP, a business trust organized under the laws of the Commonwealth
of Massachusetts (the "Trust"), and JPMORGAN CHASE BANK, a New York bank
("Service Organization").
WITNESSETH:
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, Service Organization 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 Service Organization available to Customers who are or may become
shareholders of the Trust; and
NOW, THEREFORE, the Trust and Service Organization hereby agree as follows:
1. APPOINTMENT. Service Organization 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 Service Organization 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. Service Organization 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. Service Organization 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 Service
Organization 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 Service
Organization in the performance of the services described above shall be
determined from time to time by agreement between Service Organization and the
Trust.
3. FEES. As full compensation for the services described in Section 2
hereof and expenses incurred by Service Organization, the Trust shall pay
Service Organization 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 Service Organization, but no more
frequently than monthly
4. INFORMATION PERTAINING TO THE SHARES; ETC. Service Organization 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. Service
Organization 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 Service
Organization 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 Service
Organization, and Service Organization 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 (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 Service Organization copies of any of the above-mentioned
materials which refer in any way to Service Organization. The Trust shall
furnish or otherwise make available to Service Organization such other
information relating to the business affairs of the Trust as Service
Organization 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 Service
Organization.
5. USE OF SERVICE ORGANIZATION'S NAME. The Trust shall not use the name of
Service Organization in any prospectus, sales literature or other material
relating to the Trust in a manner not approved by Service Organization prior
thereto in writing; PROVIDED, HOWEVER, that the approval of Service Organization
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. Service Organization 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 Service Organization's 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. Service Organization 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 Service Organization'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 to be safeguarded in accordance with this Section 7.
8. COMPLIANCE WITH LAWS; ETC. Service Organization shall comply with all
applicable federal and state laws and regulations. Service Organization
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 Service Organization. Service Organization 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. Service Organization 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 SERVICE ORGANIZATION. The Trust will indemnify and
hold Service Organization 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
Service Organization's obligations hereunder and (b) not resulting from the
willful misfeasance, bad faith, or gross negligence of Service Organization, its
officers, employees or agents, in the performance of Service Organization's
duties or from reckless disregard by Service Organization, its officers,
employees or agents of Service Organization's obligations and duties under this
Agreement. Notwithstanding anything herein to the contrary, the Trust will
indemnify and hold Service Organization 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 Service Organization's acting
in accordance with any written instructions reasonably believed by Service
Organization 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 Service Organization 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 Service Organization.
In any case in which the Trust may be asked to indemnify or hold Service
Organization harmless, the Trust shall be advised of all pertinent facts
concerning the situation in question and Service Organization 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 Service Organization 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 Service Organization. Service
Organization may retain additional counsel at its expense. Except with the prior
written consent of the Trust, Service Organization shall not confess any Claim
or make any compromise in any case in which the Trust will be asked to indemnify
Service Organization.
10.2. INDEMNIFICATION OF THE TRUST. Without limiting the rights of the
Trust under applicable law, Service Organization 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 Service
Organization, its officers, employees, or agents, in the performance of Service
Organization's duties or from reckless disregard by Service Organization, its
officers, employees or agents of Service Organization's obligations and duties
under this Agreement, and (b) not resulting from Service Organization's actions
in accordance with written instructions reasonably believed by Service
Organization to have been executed by any person duly authorized by the Trust,
or in reliance upon any instrument or stock certificate reasonably believed by
Service Organization to have been genuine and signed, countersigned or executed
by a person authorized by the Trust.
In any case in which Service Organization may be asked to indemnify or hold
the Trust harmless, Service Organization shall be advised of all pertinent facts
concerning the situation in question and the Trust shall use reasonable care to
identify and notify Service Organization promptly concerning any situation which
presents or appears likely to present a claim for indemnification against
Service Organization. Service Organization 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 Service Organization elects to defend against
such Claim, the defense shall be conducted by counsel chosen by Service
Organization and reasonably satisfactory to the Trust. The Trust may retain
additional counsel at its expense. Except with the prior written consent of
Service Organization, the Trust shall not confess any Claim or make any
compromise in any case in which Service Organization 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. Service Organization 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 Service
Organization or by Service Organization 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 SERVICE ORGANIZATION. Service Organization may
subcontract for the performance of its obligations hereunder with any one or
more persons, including but not limited to any one or more persons which is an
affiliate of Service Organization; PROVIDED HOWEVER, unless the Trust otherwise
expressly agrees in writing, Service Organization 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 Service
Organization 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 Service Organization at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or (2) to the Trust at 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, 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.
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 XXXXXXX MUTUAL FUND GROUP
By:
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Name: Xxxxxx Xxxxx
Title: President
JPMORGAN CHASE BANK
By:
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Name: Xxxxxxx Xxxxx
Title: Vice President and Assistant Treasurer
