EXHIBIT (h)(5)
XXXXXX INSTITUTIONAL MONEY MARKET FUND AMENDED
SHAREHOLDER SERVICING AGREEMENT
This agreement (the "Agreement") is made as of September 1, 1998, as
amended August 23, 2000, by and between Xxxxxx Series Trust (the "Trust"), on
behalf of its portfolio known as Xxxxxx Institutional Money Market Fund (the
"Fund"), and Xxxxxx Associates LLC ("HA").
W I T N E S S E T H:
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended (the "1940 Act"), as an open-end, management investment
company; and
WHEREAS, the Trust and HA wish to enter into an agreement with each
other with respect to the furnishing of account related services to certain
shareholders of the Fund ("Shareholder Services");
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Appointment. The Trust hereby appoints HA to serve as shareholder
servicing agent of the Fund with respect to the shares of the Fund (the
"Shares") on the terms set forth in this Agreement, and HA accepts such
appointment and agrees to render the services herein.
2. Duties as Shareholder Servicing Agent. Subject to the supervision and
direction of the Board of Trustees of the Trust, HA, as a shareholder servicing
agent, undertakes to perform the following services:
(a) Receive and accept orders placed by employee benefit plans as to
which HA provides recordkeeping services to purchase and redeem the Shares that
are transmitted to HA in accordance with procedures established by the plans
with HA;
(b) Maintain records showing the number of Shares allocable to
individual participant accounts in the plans; and
(c) Send, or arrange to be sent, all shareholder communications of the
Fund to the plans and plan participants.
In performing its duties as shareholder servicing agent of the Fund, HA
will act in accordance with the instructions and directions of the Board of
Trustees of the Trust and will comply with the requirements of the 1940 Act and
the rules thereunder and all other applicable federal or state laws and
regulations.
3. Allocation of Expenses. HA shall bear all expenses in connection with
the performance of its services under this Agreement, except that the Trust
shall reimburse HA for
out-of-pocket costs incurred in transmitting shareholder communications to
shareholders of the Fund and plan participants.
4. Fees.
(a) For the services rendered pursuant to this Agreement, the Trust
shall on behalf of the Fund pay HA the fees set forth in Schedule A, annexed
hereto.
(b) HA will xxxx the Trust as soon as practicable after the end of
each calendar month. The Trust will promptly pay to HA the amount of such
billing.
5. Limitation of Liability.
(a) HA shall not be liable to the Fund or the Trust for any error of
judgment or mistake of law or for any loss suffered by the Trust in connection
with the performance of its obligations and duties under this Agreement, except
a loss resulting from HA's willful misfeasance, bad faith or gross negligence in
the performance of such obligations and duties, or by reason of its reckless
disregard thereof. The Fund and the Trust will indemnify HA against and hold it
harmless from any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) resulting from any claim,
demand, action or suit not resulting from the willful misfeasance, bad faith or
gross negligence of HA in the performance of such obligations and duties or by
reason of its reckless disregard thereof.
(b) The Trust and HA agree that the obligations of the Trust under
this Agreement shall not be binding upon any of the members of the Board of
Trustees, shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Trust, individually, but are binding only upon the
assets and property of the Fund, as provided in the Declaration of Trust.
(b) In no event and under no circumstances shall either party to this
Agreement be liable to the other party for consequential or indirect loss of
profits, reputation or business or any other special damages under any provision
of this Agreement or for any act or failure to act hereunder.
6. Term and Termination.
(a) This Agreement as amended shall become effective on the date
hereof and shall continue for a period of two (2) years (the "Initial Term")
from the effective date of this amendment of the Agreement unless earlier
terminated pursuant to the terms of this Agreement. Thereafter this Agreement
may be renewed for successive terms of one (1) year ("Renewal Term") each,
provided, that each such Renewal Term is approved by the Board of Trustees of
the Trust, including the vote of a majority of the Trustees who are not
"interested persons," as defined by the 1940 Act and the rules thereunder, of
the Trust.
(b) Either party may terminate this Agreement, without penalty, at any
time upon not than less than sixty (60) days' prior written notice to the other
party.
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(c) This Agreement shall terminate automatically in the event of its
"assignment," as such term is defined by the 1940 Act and the rules thereunder
unless such automatic termination shall not be required as a result of an
exemptive rule or order of the Securities and Exchange Commission.
7. Amendment to this Agreement. No provision of this Agreement may be
changed, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, discharge or
termination is bought.
8. Miscellaneous.
(a) This Agreement shall be construed in accordance with the laws of
the State of Illinois.
(b) This Agreement may be executed in any number of counterparts each
of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
(c) The captions of this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
(d) This Agreement constitutes the entire agreement between the
parties hereto with respect to the matters described herein.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
XXXXXX ASSOCIATES LLC
By: /s/ X.X. Xxxxxxxx, III
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Name: X.X. Xxxxxxxx, III
Title: Principal
XXXXXX SERIES TRUST, on behalf of
Xxxxxx Institutional Money Market Fund
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
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SCHEDULE A
FEE SCHEDULE
The fee payable to HA under this Agreement shall be computed at the annual rate
of 0.20% of the average daily net assets of the Fund, and shall be paid monthly.
