Exhibit 15(d)
[Letterhead of Heitman Securities Trust]
SHAREHOLDER SERVICING AGREEMENT
FOR OMNIBUS ACCOUNT ARRANGEMENTS
Chicago, Illinois
Ladies and Gentlemen:
We are hereby inviting you, subject to the terms and conditions set forth
below, to serve as the as the agent for your customers ("Customers") for
purposes of performing certain administrative functions in connection with
purchases and redemptions of Advisor Class shares of beneficial interest
("Shares") of Xxxxxxx Securities Trust (the "Trust") from time to time upon
the order and for the account of Customers, and to provide related services to
your Customers in connection with their investments in the Trust. Each series
of the Trust for which you serve as servicing agent pursuant to this Agreement
is hereafter referred to as a "Fund."
1. APPOINTMENT. You hereby agree to perform certain services for
Customers as hereinafter set forth. Your 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.
2. SERVICES TO BE PERFORMED. You shall be responsible for performing
shareholder account administrative and servicing functions, which shall
include, without limitation, one or more of the following activities:
(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 establish and maintain
certain shareholder accounts and records, as requested from time to time by
the Trust, including complete subaccounting records regarding Shares
beneficially owned by Customers; (d) assisting in processing purchase and
redemption transactions; (e) arranging for the wiring of funds;
(f) transmitting and receiving funds in connection with Customer orders to
purchase or redeem Shares; (g) verifying and guaranteeing Customer signatures
in connection with redemption orders, transfers among and changes in Customer-
designated accounts; (h) 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
you; (i) furnishing (either separately or on an integrated basis with other
reports sent to a Customer by you) monthly and annual statements and
confirmations of all purchases and redemptions of Shares in a Customer's
account; (j) transmitting proxy statements, annual reports, prospectuses and
other communications from the Trust to Customers; (k) receiving, tabulating
and transmitting to the Trust proxies executed by Customers with respect to
annual and special meetings of shareholders of the Trust; (l) aggregating and
processing Customer purchase and redemption requests for Shares and placing
net purchase and redemption orders with the Trust's transfer agent ("Transfer
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Agent") in the manner described in section 4 hereof; and (m) providing such
other related services as the Trust or a Customer may reasonably request. You
shall provide all personnel and facilities necessary in order for you to
perform one or more of the functions described in this paragraph with respect
to your Customers. You shall exercise reasonable care in performing all such
services and shall be liable for any failure to exercise such reasonable care.
3. FEES.
[ALTERNATIVE 1:
3.1. FEES FROM THE TRUST. In consideration for the services
described in section 2 hereof and the incurring of expenses in connection
therewith, you shall receive fees at an annual rate of 0.25% of the average
daily value of all Shares owned by or for all Customers with whom you maintain
a servicing relationship, such fee to be paid in arrears at the end of each
calendar quarter.
3.2. Fees from Customers. It is agreed that you may impose
certain conditions on Customers, in addition to or different from those
imposed by the Trust, such as requiring a minimum initial investment or
charging Customers direct fees for the same or similar services as are
provided hereunder by you (which fees may either relate specifically to your
services with respect to the Trust or generally cover services not limited to
those with respect to the Trust). You shall xxxx Customers directly for such
fees. In the event you charge Customers such fees, you 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 you from the Trust pursuant to
section 3.1 of this Agreement. It is understood, however, that in no event
shall you have recourse or access to the account of any shareholder of the
Trust except to the extent expressly authorized by law or by the Trust or by
such shareholder for payment of any direct fees referred to in this
section 3.2.]
[ALTERNATIVE 2:
3.1. FEES FROM THE TRUST. In consideration for the services
described in Section 2 hereof and the incurring of expenses in connection
therewith, you shall receive (i) fees at an annual rate of 0.25% of the
average daily value of all Shares owned by or for all Customers with whom you
maintain a servicing relationship (the "Base Fee") plus (ii) an amount equal
to 0.10% (per annum) of the average daily value of all Shares owned by or for
all Customers with whom you maintain a servicing relationship (the "Additional
Fee" and, together with the Base Fee, the "Total Fee"). The Total Fee shall
be paid in arrears at the end of each calendar quarter.
3.2. FEES TO BE PAID BY THE TRUST. The Trust shall be obligated
to pay the Base Fee plus an amount equal to the lesser of (i) the Additional
Fee and (ii) an amount equal to the fees that would have been charged by the
Trust's transfer agent with respect to the Shares owned by or for all
Customers with whom you maintain a servicing relationship had such shares been
held in accounts for which the Trust's transfer agent acted as transfer agent.
3.3. FEES TO BE PAID BY ACG CAPITAL CORPORATION. At all times
during the term of the Agreement and after the termination of the Agreement,
ACG Capital Corporation shall be responsible for payment of the Total Fee less
any amounts payable by the Trust pursuant to Section 3.2 hereof.
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3.4. FEES FROM CUSTOMERS. It is agreed that you may impose
certain conditions on Customers, in addition to or different from those
imposed by the Trust, such as requiring a minimum initial investment or
charging Customers direct fees for the same or similar services as are
provided hereunder by you (which fees may either relate specifically to your
services with respect to the Trust or generally cover services not limited to
those with respect to the Trust). You shall xxxx Customers directly for such
fees. In the event you charge Customers such fees, you 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 you from the Trust or ACG
Capital Corporation pursuant to section 3.2 or 3.3 of this Agreement,
respectively. It is understood, however, that in no event shall you have
recourse or access to the account of any shareholder of the Trust except to
the extent expressly authorized by law or by the Trust or by such shareholder
for payment of any direct fees referred to in this section 3.4.]
4. PURCHASE AND REDEMPTION ORDERS.
4.1. OMNIBUS ACCOUNTS. It is agreed that you will open with the
Transfer Agent a minimum of two omnibus accounts per Fund: capital gains and
dividend distributions payable with respect to Shares held in one account
shall be paid in cash, and capital gains and dividend distributions payable
with respect to Shares held in another account shall be paid in additional
Shares of the Fund.
4.2. AGGREGATION OF ORDERS. For each business day on which any
Customer places with you a purchase or redemption order for Shares of a Fund,
you 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 be received by Transfer Agent in accordance
with the terms set forth in the current prospectus and statement of additional
information for the Trust.
4.3. NOTIFICATION OF NET ASSET VALUE. After 4:00 p.m. Eastern
Time and prior to ___ p.m. Eastern Time on each business day, the Trust shall
notify you of the net asset value per share of each Share of each Fund for
that business day.
4.4. PAYMENT OF REDEMPTION PROCEEDS. In the case of a redemption
order, federal funds, in the amount of the redemption order shall be wired by
[DATE/TIME] to you at __________. Each party shall bear the cost of any
wire transfer that it sends.
4.5. NET ASSET VALUE ADJUSTMENTS. 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 you 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 you shall make corresponding adjustments to the accounts of
your Customers. If as a result of such error Customers have received accounts
in excess of the amounts to which they otherwise would have been entitled
prior to an adjustment, at the request of the Trust you will make a good faith
effort to collect such excess amounts from such Customers.
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4.6. SUSPENSION OF SALES OR REDEMPTIONS. 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").
4.7. DEFINITION. 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. As to each Fund, as soon
as practicable after the announcement of a distribution, you 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. On the payable
date, the Trust shall wire the cash distribution from the appropriate Fund to
you at _______________________________ For annual tax reporting purposes, the
Trust shall inform you 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.
6. PREPARATION AND DISTRIBUTION OF WRITTEN MATERIALS.
6.1. PROSPECTUSES AND STATEMENTS OF ADDITIONAL INFORMATION. The
Trust shall provide you with such number of copies of each Fund's prospectus
and statement of additional information ("SAI") relating to the Shares as is
necessary for delivery to Customers in connection with the purchase of Shares,
and you shall be responsible for making timely delivery of Prospectuses and
SAIs to Customers in compliance with applicable law. As soon as practicable
following the filing under the Securities Act of 1933, as amended, of a
definitive prospectus or SAI of any Fund or a supplement to the prospectus of
SAI of any Fund, the Trust shall provide copies of the prospectus and SAI of
each Fund affected by the amendment or a copy of such supplement. You 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 request by the Trust or any of the Trust's service
providers, you 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.
6.2. FORWARDING OF STATEMENTS AND REPORTS. You shall timely
provide copies of the following materials to Customers: proxy statements,
annual reports and semi-annual reports. At no expense to you, the Trust shall
provide you with as many copies of such materials as you may reasonably
request. Such materials shall be sent to you at the following address:
_______________.
7. COMPLIANCE WITH BLUE SKY LAWS. You will only place purchase orders
for Shares of a Fund on behalf of Customers whose addresses recorded on your
books are in jurisdictions in which the Trust has notified you in writing that
the Shares of the Fund are registered or qualified for sale under applicable
law. You shall immediately cease offering Shares of a Fund in any
jurisdiction where the Trust notifies you in writing that the Fund's
registration or qualification has terminated or if the Trust otherwise wishes
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you to cease offering Shares of such Fund in such jurisdiction. You shall
furnish the Trust or its designee with monthly written statements of the
number of Shares of each Fund purchased on behalf of Customers resident in
each jurisdiction.
8. CAPACITY AND AUTHORITY TO ACT. You and your 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 statement of additional information or such other communications as may be
expressly authorized by the Trust. In performing your services under this
Agreement, you shall act as agent for the Customer and shall have no authority
to act as agent for the Trust. Upon request by the Trust, you shall provide
the Trust with copies of any materials which are generally circulated by you
to your Customers or prospective Customers.
9. USE OF THE AGENT'S NAME. The Trust shall not use your name in any
prospectus, sales literature or other material relating to the Trust in a
manner not approved by you prior thereto in writing; PROVIDED, HOWEVER, that
your approval shall not be required for any use of its name which merely
refers accurately to your 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. USE OF THE TRUST'S NAME. You shall not use the name of the Trust
(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 in connection with communications
permitted by section 4 hereof or for any use of the Trust's name which merely
refers accurately to your role 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.
11. SECURITY. You represent and warrant that, to the best of your
knowledge, the various procedures and systems which you have 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's records and other data and your records, data,
equipment, facilities and other property used in the performance of your
obligations hereunder are adequate and that you will make such changes therein
from time to time as in its judgment are required for the secure performance
of your obligations hereunder. The parties shall review such systems and
procedures on a periodic basis, and the Trust may from time to time specify
the types of records and other data of the Trust to be safeguarded in
accordance with this section 11.
12. COMPLIANCE WITH LAWS; ETC. You shall comply with all applicable
federal and state laws and regulations, including securities laws. You hereby
agree to maintain all records required by law relating to transactions on the
Shares, and upon our request, or of the Trust, promptly make such of these
records available to us or the Trust's administrator as are requested. In
addition, you hereby agree to establish appropriate procedures and reporting
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forms and/or mechanisms and schedules in conjunction with us and the Trust's
administrator, to enable the Trust to identify the location, type of, and
sales to all accounts opened and maintained by your customers or by you on
behalf of your customers. You represent and warrant to the Trust that the
performance of all its obligations hereunder will comply with all applicable
laws and regulations, the provisions of your charter documents and by-laws and
all material contractual obligations binding upon you. You furthermore
undertakes that you will promptly inform the Trust of any change in applicable
laws or regulations (or interpretations thereof) or in your charter or by-laws
or material contracts which would prevent or impair full performance of any of
your obligations hereunder.
13. REPORTS. To the extent requested by the Trust from time to time,
you agree that you will provide the Trust with a written report of the amounts
expended by you 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.
14. RECORD KEEPING.
14.1. SECTION 31(A), ETC. You 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 reasonable request, for
inspection and use by the Trust, representatives of the Trust and governmental
authorities. You agree that, for so long as you retain any records of the
Trust, you will meet all reporting requirements pursuant to the 1940 Act with
respect to such records.
14.2. TRANSFER OF CUSTOMER DATA. In the event this Agreement is
terminated or a successor to you are appointed, you 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 you (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 you under
this Agreement. In the event this Agreement is terminated, you will use your
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.
14.3. SURVIVAL OF RECORD KEEPING OBLIGATIONS. The record keeping
obligations imposed in this section 14 shall survive the termination of this
Agreement.
15. FORCE MAJEURE. You 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.
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16. INDEMNIFICATION.
16.1. INDEMNIFICATION OF THE AGENT. The Trust shall indemnify and
hold you harmless from and against any and all losses, claims, damages,
liabilities and expenses incurred by you and resulting from any claim, demand,
action or suit (collectively, "Claims") brought against you and arising out of
or in connection with the performance of your obligations hereunder, other
than any Claim resulting from (i) the bad faith or negligence of you, your
officers, employees or agents, or (ii) any breach of your obligation under
this Agreement or applicable law by you, your officers, employees or agents,
or (iii) any false or misleading statement contained in any communication by
you to any Customer or prospective Customer not prepared by or expressly
authorized by the Trust for your use.
In any case in which the Trust may be asked to indemnify or hold you
harmless, the Trust shall be advised of all pertinent facts concerning the
situation in question and you 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 you 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 you. You may retain additional counsel at its
expense. Except with the prior written consent of the Trust, you shall not
confess any Claim or make any compromise in any case in which the Trust will
be asked to indemnify you.
16.2. INDEMNIFICATION OF THE TRUST. You shall indemnify and hold
the Trust harmless from and against any and all losses, claims, damages,
liabilities and expenses incurred by the Trust and resulting from any Claim
brought against the Trust and resulting from (i) the bad faith or negligence
of you, your officers, employees or agents, or (ii) any breach of your
obligations under this Agreement or applicable law by you, your officers,
employees or agents, or (iii) any false or misleading statement contained in
any communication by you to any Customer or prospective Customer not prepared
by or expressly authorized by the Trust for your use.
In any case in which you may be asked to indemnify or hold the Trust
harmless, you shall be advised of all pertinent facts concerning the situation
in question and the Trust shall use reasonable care to identify and notify you
promptly concerning any situation which presents or appears likely to present
a claim for indemnification against you. You shall have the option to defend
the Trust against any Claim which may be the subject of indemnification
hereunder. In the event that you elect to defend against such Claim, the
defense shall be conducted by counsel chosen by you 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 you will be asked to indemnify the
Trust.
16.3. SURVIVAL OF INDEMNITIES. The indemnities granted by the
parties in this section 16 shall survive the termination of this Agreement.
17. INSURANCE. You shall maintain reasonable insurance coverage against
any and all liabilities which may arise in connection with the performance of
its duties hereunder. You shall provide information with respect to the
extent of such coverage upon our request.
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18. 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 this Agreement or at such
other address as such party may have designated by written notice to the
other.
19. FURTHER ASSURANCES. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
20. TERMINATION. This Agreement may be terminated by the Trust, without
the payment of any penalty, at any time upon not more than 60 days' nor less
than 30 days' notice to you, 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 the Trust's Shareholder Servicing Plan (the "Plan"), this Agreement or any
other agreement related to such Plan or by "a vote of a majority of the
outstanding voting securities" (as defined in the 0000 Xxx) of the Trust. You
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. [TO BE USED WITH ALTERNATIVE 1:
Upon termination hereof, the Trust shall pay such compensation as may be due
you as of the date of such termination.] [TO BE USED WITH ALTERNATIVE 2:
Upon termination hereof, ACG Capital Corporation shall continue to pay you the
compensation contemplated hereby, and you shall continue to render the
services contemplated hereby, in respect of Shares held by you as of the date
of termination for so long as such Shares are held and the Trust shall have no
obligation to pay any compensation to you with respect to such Shares.]
21. CHANGES; AMENDMENTS. This Agreement may be changed or amended only
by written instrument signed by both parties.
22. LIMITATION OF LIABILITY. The First Amended and Restated Master
Trust Agreement dated February 28, 1995, as amended from time to time,
establishing the Trust, which is hereby referred to and a copy of which is on
file with the Secretary of The Commonwealth of Massachusetts, provides that
the name of the Trust means the Trustees from time to time serving (as
Trustees but not personally) under said Master Trust Agreement. It is
expressly acknowledged and agreed that the 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 trust
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
trust property of the Trust as provided in its Master Trust Agreement.
23. MISCELLANEOUS. This Agreement shall be construed and enforced in
accordance with and governed by the laws of The Commonwealth of Massachusetts
without giving effect to the conflicts of laws provisions thereof. 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 has been executed on behalf of
the Trust by the undersigned not individually, but in the capacity indicated.
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This Agreement shall be effective when accepted by you below.
Please confirm your agreement hereto by signing and returning the
enclosed counterpart of this Agreement at once to: Heitman Securities Trust,
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
President. Upon receipt thereof, this Agreement and such signed duplicate
copy will evidence the agreement between us.
HEITMAN SECURITIES TRUST
By: /s/____________________
NAME:
TITLE:
ATTEST:
ACCEPTED:
[ ]
(Shareholder Servicing Agent)
By: /s/
NAME:
TITLE:
ATTEST:
_______________________________________
_______________________________________
_______________________________________
(ADDRESS TO WHICH ALL COMMUNICATIONS ARE
TO BE SENT)
Dated:___________________________
[TO BE USED WITH ALTERNATIVE 2:
ACKNOWLEDGED AND AGREED, SOLELY
WITH RESPECT TO SECTION 3.3 AND THE
LAST SENTENCE OF SECTION 20 HEREOF, BY:
ACG CAPITAL CORPORATION
By:/s/________________________
NAME:
TITLE: ]
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