EXHIBIT (e)(1)
QUASAR DISTRIBUTORS, LLC
000 XXXX XXXXXXXX XXXXXX
XXXXXXXXX, XX 00000
KENSINGTON FUNDS
SELLING/SERVICE AGREEMENT
This Agreement is entered into between ____________ ("Dealer") and the
party or parties listed on the signature page to this Selling/Service Agreement
("Fund Agent(s)").
WHEREAS, the Fund Agent(s) coordinate shareholder and distribution
services and recordkeeping and administrative services for the investment
companies listed on Schedule C hereto (collectively, the "Funds" and each a
"Fund");
WHEREAS, Dealer has expressed interest in participating in the
fee-based program(s) of Fund Agent(s) described on Schedule A, Schedule B, or
both (this Selling/Service Agreement, Schedule A, Schedule B and Schedule C are
collectively referred to as the "Agreement");
NOW THEREFORE, Dealer and the Fund Agent(s) agree as follows:
ARTICLE I - PAYMENTS TO DEALER
(A) During the term of this Agreement, Fund Agent(s) or their
affiliates will make payments to Dealer as set forth in Schedule C,
respectively, as compensation for the services described herein and in Schedules
A and B, respectively.
ARTICLE II - SERVICES PROVIDED BY DEALER
(A) Dealer will transmit to the Funds purchase and redemption orders
on behalf of holders of shares of beneficial interest in the Funds
("Shareholders").
(B) Dealer will (1) maintain and preserve all records required by law
to be maintained and preserved in connection with the services; (2) upon request
by the Fund or Fund Agent(s), promptly make such records available to the Fund
or Fund Agent(s); (3) promptly notify the Fund or Fund Agent(s) if Dealer
experiences any difficulty in maintaining the records described in (1) in an
accurate and complete manner.
(C) Dealer will cause Customers to (1) ensure that Shareholders whose
shares of beneficial interest ("Shares") Customers are holding as record owners
receive prospectuses to the extent required by law and statements of additional
information upon their request; (2) effect delivery to such Shareholders of
copies of any amended prospectus or prospectus supplement as soon as reasonably
practicable upon request of Fund Agent(s); and (3) effect delivery to such
Shareholders of copies of the periodic financial reports and proxy solicitation
materials of the Funds. Fund Agent(s) agree to deliver to Customers as many
copies of the prospectuses and related statements of additional information,
periodic financial reports and proxy solicitation materials as Customers may
reasonably request in order to comply with this Subsection.
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(D) Dealer will obtain or cause to be obtained any taxpayer
identification number certification form from its Customers required under
Section 3406 of the Internal Revenue Code of 1986, as amended (the "Code"), and
any applicable regulations of the Department of Treasury, and will provide Fund
Agent(s), or their respective designees, with timely written notice of any
failure to obtain such taxpayer identification number certification in order to
enable the implementation of any required backup withholding.
ARTICLE III - SALE OF FUND SHARES
(A) Orders for the purchase, redemption and exchange of Shares
("Instructions") will be executed at net asset value ("NAV") plus the applicable
initial sales load, if any, in each case as described in the prospectus of the
Fund; provided however, that this Subsection will apply to orders for the
purchase of Shares only if the requirements of Subsection (B) below are not
satisfied. Any applicable redemption fee or deferred sales charge will be
deducted by the Fund prior to the transmission of the redemption proceeds to
Dealer or Customers. Fund Agent(s) and the Funds reserve the right to reject any
purchase request in their sole discretion. Each transaction will be confirmed on
a fully disclosed basis and, if confirmed by Fund Agent(s), a copy of each
confirmation will be sent simultaneously to Dealer if Dealer so requests.
(B) At Dealer's direction, Instructions will be executed at NAV for
Customers provided that (1) Customers do not charge a commission or other
transaction-related fee, other than a de minimis administrative fee, for placing
orders for the purchase of Shares; (2) Dealer will be the only broker or dealer,
as defined in Section 3(a)(4) or 3(a)(5) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), listed on the account for which Customer is
placing an order for the purchase of Shares.
(C) The procedures relating to all orders will be subject to the terms
of the prospectus and statement of additional information of each Fund and Fund
Agent(s)' written instructions to Dealer from time to time.
(D) Dealer may cancel or correct any previously placed orders without
the prior approval of Fund Agent(s); provided however, that Dealer will fund any
resulting dilution if notified of such dilution by Fund Agent(s).
(E) In the event of overpayment to a Customer's account upon redemption
for any reason, Dealer will use its best efforts to collect such overpayment.
If, after such efforts, Dealer is not able to recover all of such overpayment,
Dealer will cooperate with the attempts of Fund Agent(s) or the Fund to recover
any portion of the overpayment, including providing Fund Agent(s) or the Fund
with information reasonably available to Dealer as to the identity of a
Shareholder from whom such remainder has not been recovered.
(F) Dealer will, in satisfaction of a purchase order placed via
Fund/SERV on behalf of a Customer, forward or cause to be forwarded such payment
to Fund Agent(s) no later than the Business Day next following the date on which
the purchase order is effected under the ordinary settlement methods of the
National Securities Clearing Corporation (the "NSCC").
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(G) Dealer will, upon receipt of the monies paid to it by Fund Agent
for the redemption of Shares, pay such monies to the appropriate Customer's
account. Dealer will not process or affect any redemption with respect to Shares
of a certain Fund after receipt by Dealer of notification of the suspension of
the determination of the NAV of such Fund.
(H) Payments for Shares will be made as specified in the applicable
Fund prospectus and statement of additional information. If payment for any
purchase order is not received in accordance with the terms of the applicable
Fund prospectus and statement of additional information, Fund Agent(s) reserve
the right, without notice, to cancel the sale and to hold Dealer responsible for
any loss sustained as a result thereof.
(I) Each Fund will have full authority to take such action as it deems
advisable in respect of all matters pertaining to the continuous offering of
Shares, including the right, in its discretion, to reject any specific purchase
order for Shares, to suspend the settlement of redemptions in accordance with
the Investment Company Act of 1940, as amended (the "1940 Act"), and without
notice, to suspend sales or withdraw the offering of Shares of any and all
classes entirely.
(J) Dealer shall forfeit any sales charge or discount due to them with
respect to any Shares sold by Dealer and redeemed, repurchased or tendered for
redemption within seven (7) business days.
(K) The following will apply unless Fund Agent(s) execute Schedule B,
in which case Exhibit B-1 will supersede this Subsection and govern with respect
to late day trading.
1. On any day on which the New York Stock Exchange ("NYSE") is
open for business ("Business Day"), Instructions received in proper form by
Dealer prior to the close of regular trading on the NYSE, which generally is
4:00 p.m. Eastern Time ("Close of Trading"), and with respect to which Dealer
transmits orders to Fund Agent(s) via Fund/SERV up to the latest time accepted
by Fund/SERV on a given Business Day, will be deemed to have occurred, and will
be credited to the respective account, at the per share NAV next calculated
after the Close of Trading on that Business Day. Dealer will not transmit orders
based on Instructions received from Shareholders after the Close of Trading on
any Business Day for that Business Day's NAV.
2. On any Business Day, Instructions that Dealer transmits to
Fund Agent(s) via Fund/SERV after the latest time accepted by Fund/SERV on a
given Business Day will not be accepted at an NAV calculated prior to the Close
of Trading on that Business Day, without the prior approval of Fund Agent(s).
Fund Agent(s) will have complete and sole discretion as to whether to grant such
approval.
3. Instructions received in proper form by Dealer after the
Close of Trading on any Business Day will be treated as if received on the next
following Business Day, and orders based upon such Instructions will be
processed at the NAV next calculated after that following Business Day's Close
of Trading. Dealer warrants that all orders that Dealer transmits to the Funds
for processing as of a particular Business Day will relate only to Instructions
received by Dealer prior to the Close of Trading on that Business Day.
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4. Dealer will process all Instructions in accordance with the
procedures set forth in each Fund's then current prospectus and statement of
additional information.
ARTICLE IV - FUND/SERV; NETWORKING, MATRIX LEVEL III
(A) Dealer and Fund Agent(s) will be bound by the terms of the
Fund/SERV; NETWORKING Agreements filed by each with the NSCC. Without limiting
the generality of the following provisions of this section, Dealer and Fund
Agent(s) each will perform any and all duties, functions, procedures and
responsibilities assigned to it and as otherwise established by the NSCC
applicable to Fund/SERV and NETWORKING Matrix Level III, or to any other
mutually agreeable Matrix Level utilized in the future.
(B) For each account opened or maintained with a Fund by Dealer on
behalf of Customers, Fund Agent(s) or their agents will accept, and effect
changes in its records upon receipt of instructions, communications and actions
from Dealer electronically through NETWORKING without supporting documentation
from Customers. Fund Agent(s) or their agents will be responsible for processing
any such instructions, communications or actions from Dealer and for executing
Dealer's instructions in a timely manner.
(C) Any information transmitted through NETWORKING by any party to the
other through NETWORKING and pursuant to this Agreement will be accurate,
complete, and in the format prescribed by the NSCC. Each party will adopt,
implement and maintain procedures reasonably designed to ensure the accuracy of
all transmissions through NETWORKING and to limit the access to, and the
inputting of data into, NETWORKING to persons specifically authorized by such
party.
(D) For each Customer account, Dealer will provide the Funds and Fund
Agent(s) with all information necessary or appropriate to establish and maintain
each account (and any subsequent changes to such information).
(E) All information that is received by Dealer from the Funds or Fund
Agent(s) for inclusion in tax statements relating to an account will be reported
to the Customer accurately, completely and in a timely manner by Dealer.
(F) The official records of each account will be as determined by Fund
Agent(s) or their agents. Dealer and Fund Agent(s) will reconcile any
differences between their records. Dealer and Fund Agent(s) will each designate
liaison personnel to communicate, control and execute any required corrections
or reconciliations with respect to any account. In the event of any discrepancy
between the records of Dealer and Fund Agent(s) regarding an account, the
records of Fund Agent(s) will control pending resolution of the discrepancy.
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ARTICLE V - DIVIDENDS
(A) Upon declaration of each dividend and each capital gain
distribution by the Funds' Boards of Trustees/Directors with respect to Shares,
Fund Agent(s) will furnish or cause the Funds to furnish to Dealer information
setting forth the date of the declaration of such dividend or distribution, the
ex-dividend date, the date of payment thereof, the record date as of which
Shareholders entitled to payment will be determined, the amount payable per
Share to the Shareholders of record as of that date, and whether such dividend
or distribution is to be paid in Shares at the then-current NAV per Share or in
cash. On or before the payment date specified in a resolution of the Funds'
Board of Trustees/Directors, Fund Agent(s) will furnish or cause the Funds to
furnish the total amount payable to Dealer (as agent) on the payment date and
will pay to Dealer sufficient cash to make payment to the Customers of dividends
or, if applicable, other distributions payable in cash.
(B) Dealer will provide to Customers automated dividends and dividend
options, which will be included in the net settlement proceeds.
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF DEALER
Dealer represents and warrants to Fund Agent(s) that:
(A) It will comply, and ensure that its Customers comply, with all
applicable laws, rules and regulations, including the regulations promulgated by
self-regulatory organizations such as the National Association of Securities
Dealers, Inc. (the "NASD"), if applicable.
(B) It has full power and authority under applicable laws and has taken
all actions and received all requisite authorizations from third parties to
enter into and perform this Agreement;
(C) It is a broker-dealer as defined in Section 3(a)(4) and 3(a)(5) of
the Exchange Act; it is registered with the Securities and Exchange Commission
("SEC") pursuant to Section 15 of the Exchange Act; it is a member of the NASD;
its Customers' accounts are insured by the Securities Investors Protection
Corporation ("SIPC"); and, during the term of this Agreement, it will abide by
all of the rules and regulations of the NASD including, without limitation, the
NASD Conduct Rules. Dealer agrees to notify Fund Agent(s) immediately in the
event of (i) the termination of its coverage by the SIPC; (ii) its expulsion or
suspension from the NASD; or (iii) its being found to have violated any
applicable federal or state law, rule or regulation arising out of its
activities as a broker-dealer or in connection with this Agreement, or which may
otherwise affect in any material way its ability to act in accordance with the
terms of this Agreement. Dealer's expulsion or suspension from the NASD will
automatically terminate this Agreement immediately without notice;
(D) It is registered with the appropriate securities authorities in all
states in which its activities make such registration necessary;
(E) It is not required to be a registered transfer agent and will not
be required to be so registered in order to perform this Agreement; and
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(F) The arrangements and fees provided for in this Agreement and the
Schedules hereto will be disclosed to its Customers, or where the Customer is a
plan as defined in Section 4975 of the Code ("Plan"), to the investment adviser,
trustee, sponsor or administrative committee of the Plan.
ARTICLE VII - REPRESENTATIONS AND WARRANTIES OF FUND AGENT(s)
(A) Each Fund Agent represents and warrants to Dealer that it is duly
registered, as required, with all regulatory agencies, and is a member in good
standing of any requisite associations and self-regulatory organizations.
(B) The Fund Services Agent responsible for distribution of shares of
beneficial interest ("Shares") of the Funds represents and warrants to Dealer
that (1) each Fund has filed a registration statement ("Registration Statement")
with the SEC relating to its Shares under the Securities Act of 1933, as amended
("1933 Act"), on Form N-1A, including a prospectus and statement of additional
information. The Registration Statement conforms in all respects to the
requirements of the 1933 Act, the 1940 Act and the rules there under; (2) to the
extent required by law, each Fund is registered and its Shares are qualified for
sale in all states and other jurisdictions in the United States unless Dealer is
notified in writing to the contrary; (3) the then current prospectus for each of
the Funds contains such disclosure with respect to fees paid and charges imposed
in connection with the sale of the Fund Shares as is necessary to comply with
the rules and regulations of the NASD, including, without limitations,
disclosure of all compensation of the type described in Schedule C as required
by Rule 2830 of the NASD Conduct Rules; (4) each investment adviser of each Fund
is registered as an investment adviser under the Investment Advisers Act of 1940
(5) the Registration Statement and any sales materials relating to the Fund
provided by Fund Services Agent to Dealer do not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading; and (6) all sales materials will comply in
all material respects with the rules and regulations of the SEC, the NASD and
any states having applicable rules and regulations and will be filed with the
NASD or SEC and the relevant states as required by the rules and regulations of
the NASD, the SEC and such states, respectively.
ARTICLE VIII - DEALER ACTS AS AGENT FOR ITS CUSTOMERS
(A) The parties agree that in each transaction in the Shares of any
Fund pursuant to this Selling/Service Agreement: (1) Dealer is acting as agent
for its Customers; (2) each transaction is initiated solely upon the order of
the Customers; (3) as between Dealer and Customers, Customers will have record
ownership of all Shares of the Funds; (4) each transaction will be for the
account of Customers and not for Dealer's account; and (5) each transaction will
be without recourse to Dealer provided that Dealer acts in accordance with the
terms of this Agreement. Dealer will not have any authority in any transaction
to act as agent for the Fund Agent(s) or the Funds.
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(B) Dealer will not make any representation concerning the Funds except
those contained in the relevant prospectus and related statement of additional
information and in such printed information as Fund Agent(s) or their affiliates
may subsequently prepare or as will be approved by Fund Agent(s) in writing
prior to its use. Dealer will not distribute any sales literature or
advertisements as those terms are defined under Section 2210 of the NASD Conduct
Rules relating to the Funds without Fund Agent(s)' prior written approval.
ARTICLE IX - FIDUCIARY STATUS
Dealer will not perform or provide any duties, which would cause it to
be a fiduciary under Section 3(21)(A) of ERISA or Section 4975 of the Code. For
purposes of those Sections, Dealer understands that any person who exercises any
discretionary authority or discretionary control with respect to any Plan or its
assets, or who renders investment advice for a fee, or has any authority or
responsibility to do so, or has any discretionary authority or discretionary
responsibility in the administration of such an account, is a fiduciary.
ARTICLE X - INDEMNIFICATION
(A) Dealer will indemnify and hold harmless the Fund Agent(s), the
Funds, and their respective officers, directors, trustees, employees, and agents
(collectively, "Fund Indemnitees") against any direct or indirect liabilities,
losses or costs (including legal fees) (collectively, "Loss") arising from,
related to or otherwise connected with (1) any breach by Dealer of any provision
of this Agreement; or (2) any acts or omissions of Fund Indemnitees in reliance
upon any oral, written or computer or electronically transmitted instructions
believed to be genuine and given by or on behalf of Dealer; provided, however,
that Dealer will not be liable for indemnification hereunder of any Fund
Indemnitee to the extent that any Loss results from the negligence or bad faith
of such Fund Indemnitee.
(B) Fund Agent agrees to indemnify and hold harmless Dealer and its
officers, directors, trustees, employees, and agents, (collectively, "Dealer
Indemnitees") against any Loss arising from, related to otherwise connected with
(1) any breach by Fund Agent of any provision of this Agreement; or (2) any
alleged untrue statement of a material fact contained in any Fund's Registration
Statement, or as a result of or based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
contained therein not misleading; provided, however, that Fund Agent will not be
liable for indemnification hereunder of any Dealer Indemnitee to the extent that
any Loss results from the negligence or bad faith of such Dealer Indemnitee.
(C) If any third party threatens to commence or commences any action
for which one party (the "Indemnifying Party") may be required to indemnify the
other party (the "Indemnified Party"), the Indemnified Party will promptly give
notice thereof to the Indemnifying Party. The Indemnifying Party will be
entitled, at its own expense and without limiting its obligations to indemnify
the Indemnified Party, to assume control of the defense of such action with
counsel selected by the Indemnifying Party which counsel
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will be reasonably satisfactory to the Indemnified Party. If the Indemnifying
Party assumes the control of the defense, the Indemnified Party may participate
in the defense of such claim at its own expense. Without the prior written
consent of the Indemnified Party, which consent will not be unreasonably
withheld, the Indemnifying Party may not settle or compromise the liability of
the Indemnitee in such action or consent to or permit the entry of any judgment
in respect thereof unless in connection with such settlement, compromise or
consent each Indemnified Party receives from such claimant an unconditional
release from all liability in respect of such claim.
(D) The provisions of this Article X will survive the termination of
this Agreement.
ARTICLE XI - TERM AND TERMINATION OF AGREEMENT
(A) This Agreement will become effective in this form as of the date
set forth below or as of the first date thereafter upon which Dealer executes
any transaction, performs any services, or receives any payment pursuant hereto.
(B) This Agreement may be terminated by either party upon sixty (60)
days' prior written notice to the other party, or upon such shorter notice as is
required by law (including "automatic termination in the event of an assignment"
to the extent the payments under one or more of the Schedules are governed by
Rule 12b-1 under the Investment Company Act of 1940), order, or instruction from
a court of competent jurisdiction, regulatory body, or self regulatory
organization with jurisdiction over the terminating party.
(C) After termination of this Agreement by Fund Agent(s), no fee will
be due with respect to any Shares that are purchased and held by the accounts
after the date of termination. However, notwithstanding any such termination,
Fund Agent(s) will remain obligated to pay Dealer the fee as to each Share that
was considered in the calculation of the fees as of the date of termination for
so long as such Shares are held by the accounts and Dealer continues to provide
the services to the accounts. This Agreement, or any provision thereof, will
survive the termination to the extent necessary for each party to perform its
obligations with respect to Shares for which a fee continues to be due
subsequent to such termination.
ARTICLE XII - AMENDMENTS; WAIVERS
This Agreement may be amended by Fund Agent(s) from time to time by the
following procedure: Fund Agent(s) will send a copy of the amendment to Dealer.
If Dealer does not object to the amendment within thirty (30) days after its
receipt, the amendment will become part of the Agreement. Dealer's objection
must be in writing and received by Fund Agent(s) within such thirty (30) days.
Provided, however, that any amendment to Schedule C of this Agreement to add
additional Fund(s) may be made by either party and will be deemed effective and
part of this Agreement upon the day of the first transaction by Dealer with
respect to Shares of such Fund(s).
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ARTICLE XIII - DEFINED TERMS
Capitalized terms used but not defined herein will have the meanings
given them in Schedule A or Schedule B.
ARTICLE XIV - NOTICES
Except as otherwise specifically provided in this Agreement, all
notices required or permitted to be given pursuant to this Agreement will be
given in writing and delivered by personal delivery or by postage prepaid,
registered or certified United States first class mail, return receipt
requested, overnight courier services, or by facsimile or similar electronic
means of delivery (with a confirming copy by mail as provided herein). Unless
otherwise notified in writing, all notices to will be given or sent to Fund
Agent or to Dealer at the address set forth beneath their respective signatures
below.
ARTICLE XV - GOVERNING LAW
This Agreement will be governed by, and construed and enforced
in accordance with, the laws of the State of Wisconsin.
ARTICLE XVI - ARBITRATION
Any controversy or claim arising out of or relating to this Agreement,
or any breach, thereof, shall be settled by arbitration in accordance with the
then existing NASD Code of Arbitration Procedure. Any arbitration shall be
conducted in Milwaukee, Wisconsin and each arbitrator shall be from the
securities industry. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
ARTICLE XVII - SEVERABILITY; CONFLICTS
If any provision or portion of this Agreement will be determined to be
invalid or unenforceable for any reason, the remaining provisions and portions
of this Agreement will be unaffected thereby and will remain in full force and
effect to the fullest extent permitted by law.
ARTICLE XVIII - CONFIDENTIALITY
Fund Agent and Dealer agree to preserve the confidentiality of any and
all materials and information furnished by either party in connection with this
Agreement. The provisions of this Paragraph shall not apply to any information
which is: (a) independently developed by the receiving party, provided the
receiving party can satisfactorily demonstrate such independent development with
appropriate documentation; (b) known to the receiving party prior to disclosure
by the disclosing party; (c) lawfully disclosed to the receiving party by a
third party not under a separate duty of confidentiality with respect thereto to
the disclosing party; or (d) otherwise publicly available through no fault or
breach by the receiving party.
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In accordance with Regulation S-P, the parties hereto will not disclose any
non-public personal information, as defined in Regulation S-P, regarding any
Customer; provided, however, that Dealer or Fund Agent may disclose such
information to any party as necessary in the ordinary course of business to
carry out the purposes for which such information was disclosed to Dealer or
Fund Agent, or as may be required by law. Both parties agree to use reasonable
precautions to protect and prevent the unintentional disclosure of such
non-public personal information.
ARTICLE XIX - ANTI-MONEY LAUNDERING
Dealer represents and warrants that it has adopted an anti-money
laundering program ("AML Program") that complies with the Bank Secrecy Act, as
amended by the USA PATRIOT Act, and any future amendments (the "PATRIOT Act,"
and together with the Bank Secrecy Act, the "Act"), the rules and regulations
under the Act, and the rules, regulations and regulatory guidance of the SEC,
the NASD or any other applicable self-regulatory organization (collectively,
"AML Rules and Regulations"). Dealer further represents that its AML Program, at
a minimum, (1) designates a compliance officer to administer and oversee the AML
Program, (2) provides ongoing employee training, (3) includes an independent
audit function to test the effectiveness of the AML Program, (4) establishes
internal policies, procedures, and controls that are tailored to its particular
business, (5) will include a customer identification program consistent with the
rules under section 326 of the Act, (6) provides for the filing of all necessary
anti-money laundering reports including, but not limited to, currency
transaction reports and suspicious activity reports, (7) provides for screening
all new and existing customers against the Office of Foreign Asset Control
("OFAC") list and any other government list that is or becomes required under
the Act, and (8) allows for appropriate regulators to examine Dealer's AML books
and records.
ARTICLE XX - MARKET TIMING
Dealer represents that it has and will maintain policies and procedures
to detect and prevent any market timing transaction that contravenes the
restrictions or prohibitions on market timing, if any, as found in the then
current Funds' prospectus and/or statement of additional information. Dealer
acknowledges that it is responsible for the sales activities of its licensed
representatives including, among other things, improper trading activity in
violation of the terms and conditions of the Funds' then current prospectus.
ARTICLE XXI - ENTIRE AGREEMENT
This Agreement, including the Selling/Service Agreement, its Schedules
and Exhibits, constitutes the entire agreement between the parties with respect
to the matters dealt with herein, and supersedes any previous recordkeeping,
administrative service, sales, distribution, shareholder service, or other
agreements and documents with respect to such matters.
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ARTICLE XXII - ASSIGNMENTS
Neither this Agreement nor any rights or obligations hereunder may be
assigned by any party without the prior written consent of the other parties;
provided, however, that, to the extent permitted by the federal securities laws,
this Agreement may be assigned without prior consent by Dealer to any company
that acquires all or substantially all of Dealer's assets, or any company or
entity into which Dealer is merged or otherwise reorganized.
ARTICLE XXIII - TRADEMARK/SERVICEMARK
(A) Neither party will use the name, logo, trademarks or servicemarks
of the other party in any manner without the other party's written consent,
except (i) as required by any applicable federal or state law, rule or
regulation; and (ii) pursuant to any mutually agreed upon promotional programs.
(B) The provisions of this Article XXIII will survive the termination
of this Agreement.
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DEALER
By:
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Name:
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Title:
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Address:
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Date:
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FUND RECORDKEEPING AGENT
By:
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Name: Xxxx XxXxx
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Title: Senior Vice President
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Entity: US Bancorp Fund Services, LLC
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Address: 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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Date:
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FUND SERVICES AGENT
By:
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Name: Xxxxx Xxxxxxxxx
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Title: President
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Entity: Quasar Distributors, LLC
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Address: 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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Date:
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SCHEDULE A
SHAREHOLDER AND DISTRIBUTION SERVICES AGREEMENT
This Agreement is entered into between Dealer and the party or parties
listed on the signature page to this Schedule A ("Fund Services Agent"), on
behalf of the Funds.
Dealer will provide or cause to be provided the shareholder and
distribution services enumerated in Article XXIV herein. In exchange, Dealer
will receive a shareholder and distribution services fee described in Schedule
C.
ARTICLE XXIV - SHAREHOLDER AND DISTRIBUTION SERVICES
(A) Dealer will render or cause to be rendered (i) personal services to
Shareholders and/or the maintenance of accounts of Shareholders ("Shareholder
Services"); (ii) distribution and sales services to the Funds and their
shareholders ("Sales Services"); or (iii) services which, in the opinion of Fund
Services Agent, contribute to the distribution of shares of Funds which have
adopted Distribution Plans pursuant to Rule 12b-1 of the 1940 Act ("Support
Services").
(B) Sales Services may include, but are not limited to, (i) training
and supervision of its personnel; (ii) maintaining and distributing current
copies of prospectuses and shareholder reports; (iii) advertising the
availability of its services and products; (iv) providing assistance and review
in designing materials to send to Shareholders and potential Shareholders and
developing methods of making such materials accessible to Shareholders and
potential Shareholders; and (v) responding to Shareholders' and potential
Shareholders' questions about the Funds.
(C) Support Services may include, but are not limited to, the following
functions: (i) account openings; (ii) account closings; (iii) account
maintenance; (iv) interest posting; (v) prospectus and shareholder reports; (vi)
advertisement of its services; (vii) customer lists; (viii) design services; and
(ix) consultation services.
(D) Dealer agrees to provide Fund Services Agent, upon request, a
written description of the Shareholder Services, Sales Services, and Support
Services, which Dealer is providing hereunder.
ARTICLE XXV - DEFINED TERMS
Capitalized terms used herein but not defined will have the meanings
given them in the Selling/Service Agreement or Schedule B.
DEALER FUND SERVICES AGENT
By: By:
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Name: Name: Xxxxx Xxxxxxxxx
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Title: Title: President
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Date: Entity: Quasar Distributors, LLC
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Date:
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SCHEDULE B
RECORDKEEPING AND ADMINISTRATIVE SERVICES AGREEMENT
This Agreement is entered into between Dealer and the party or parties
listed on the signature page to this Schedule B ("Fund Recordkeeping Agent"), on
behalf of the Funds.
Dealer will provide or cause to be provided the recordkeeping and
administrative services enumerated in Article XXVI herein in accordance with the
operational guidelines set forth on Exhibit B-1. Dealer will maintain or cause
to be maintained Sub-Accounts in the Funds in connection with the purchase and
redemption of Shares of the Funds through one or more omnibus or master accounts
("Accounts") in each Fund. In exchange, Dealer will receive a recordkeeping and
administrative services fee described in Schedule C.
ARTICLE XXVI - RECORDKEEPING AND ADMINISTRATIVE SERVICES
(A) Dealer will maintain or cause to
be maintained a record of the Shares held in the Accounts on behalf of each
Customer or Shareholder, which will include the name, residence or company
address and taxpayer identification number of each Customer or Shareholder.
(B) Dealer will perform or cause to be performed such other services as
Fund Recordkeeping Agent may reasonably request.
ARTICLE XXVII - NATURE OF SERVICES
The Fund Recordkeeping Agent and Dealer agree that the payment of the
recordkeeping and administrative services fee is for recordkeeping and
administrative services only and not for legal, investment advisory, or
distribution services.
ARTICLE XXVIII - DEFINED TERMS
Capitalized terms used herein but not defined will have the meanings
given them in the Selling/Service Agreement or Schedule A.
ARTICLE XXIX - INSURANCE
Dealer will maintain insurance, including errors and omissions
insurance, and if necessary, bonding, issued by a qualified insurance carrier,
of the types ordinarily maintained by like agents servicing mutual funds or
their agents, and in commercially recognizable amounts.
DEALER FUND RECORDKEEPING AGENT
By: By:
------------------------------- -----------------------------------------
Name: Name: Xxxx XxXxx
------------------------------- -----------------------------------------
Title: Title: Senior Vice President
------------------------------- -----------------------------------------
Date: Entity: US Bancorp Fund Services, LLC
------------------------------- -----------------------------------------
Date:
-----------------------------------------
14
EXHIBIT B-1
LATE DAY TRADING
OPERATIONAL GUIDELINES
ARTICLE I
If Instructions are transmitted to the Fund Recordkeeping Agent after
the Close of Trading, then Dealer or Customer will be considered the Fund's
agent for purposes of Rule 22c-1 of the 1940 Act and the following procedures
will apply:
(A) Fund Recordkeeping Agent will furnish Dealer, for each Fund, (1)
confirmed NAV information as of the Close of Trading on each Business Day; (2)
dividend and capital gains information as it arises; and (3) in the case of
income Funds, the daily accrual or interest rate factor (mil rate) by means of
electronic transmission or other mutually acceptable means by 7:00 p.m. Eastern
Time on each Business Day.
(B) Dealer will communicate to Fund Recordkeeping Agent, by means of
electronic transmission or other mutually acceptable means, Instructions with
respect to each Account in any of the Funds for the most recent Business Day
("Trade Date") by the later of 9:00 a.m. Eastern Time or the latest time
accepted by Fund/SERV on the Business Day one day after the Trade Date. The
number of Shares to be purchased or redeemed for a Sub-Account will be
determined based upon the NAV at the Close of Trading on the Trade Date,
provided that, if Fund Recordkeeping Agent receives the Instructions after the
later of 9:00 a.m. Eastern Time or the latest time accepted by Fund/SERV on the
Business Day one day after the Trade Date, Fund Recordkeeping Agent will use its
best efforts to enter an Account's purchase or redemption order at the NAV at
the Close of Trading on the Trade Date, but if Fund Recordkeeping Agent is
unable to do so, the transaction will be entered at the NAV next determined
after Fund Recordkeeping Agent receives the Instructions.
ARTICLE II
Dealer will in no event transmit orders based on Instructions that it
or its Customers receive from Shareholders after the Close of Trading on any
Business Day for that Business Day's NAV. Instructions received in proper form
from Shareholders after the Close of Trading on any Business Day will be treated
as if received on the next following Business Day, and orders based upon such
Instructions will be processed at the NAV next calculated after that following
Business Day's Close of Trading. Dealer warrants, and will cause Customer to
warrant, that all orders that Dealer transmits to the Funds for processing as of
a particular Business Day will relate only to Instructions received by Dealer or
Customer prior to the Close of Trading on that Business Day.
15
SCHEDULE C
PAYMENT OF FEES PURSUANT TO
SHAREHOLDER AND DISTRIBUTION SERVICES AGREEMENT AND
RECORDKEEPING AND ADMINISTRATIVE SERVICES AGREEMENT
As compensation for the services rendered by Dealer under Schedule A
and Schedule B, respectively, Fund Services Agent and Fund Recordkeeping Agent,
respectively, will pay to Dealer a fee as set forth below based on the total
assets held by Dealer Customers in each Fund listed herein, calculated daily and
paid monthly. Fund Services Agent and Fund Recordkeeping Agent will calculate
the fee at the end of each month and will make such payment to Dealer. Fund
Services Agent and Fund Recordkeeping Agent will send Dealer a check in the
amount calculated and will provide a statement showing the calculation of the
monthly amounts payable by Fund Services Agent and Fund Recordkeeping Agent and
other supporting documentation as may be reasonably requested by Dealer. Dealer
will not commingle assets with respect to which it receives different payments
under Schedule A and Schedule B.
PAYMENT UNDER PAYMENT UNDER
FUND NAME SCHEDULE A SCHEDULE B
--------- ------------- -------------
Kensington Strategic Realty Fund .25 bp None
Kensington Select Income Fund .25 bp None
Kensington Real Estate Securities Fund .25 bp None
16
