EX99.B(h)(5)
Xxxxx Fargo Funds Trust
FORM OF SHAREHOLDER SERVICING AGREEMENT
THIS SHAREHOLDER SERVICING AGREEMENT ("Agreement"), dated as of
[____________ __, 1999], is made between Xxxxx Fargo Funds Trust (the "Trust"),
a Delaware business trust, on behalf of the classes of shares of the Funds of
the Trust listed in the attached Appendix, as it may be amended from time to
time, (each a "Class" and a "Fund" and, collectively, the "Classes" and the
"Funds"), and _______________, as shareholder servicing agent ("Servicing
Agent");
WHEREAS, shares of beneficial interest of a Fund of the Trust (the
"Shares") may be purchased or redeemed through a broker/dealer or financial
institution that has entered into a shareholder servicing agreement with the
Trust on behalf of the Fund; and
WHEREAS, the Servicing Agent wishes to facilitate purchases and
redemptions of Shares by its customers (the "Customers") and wishes to act as
the Customers' agent in performing certain administrative functions in
connection with transactions in Shares and to provide related services to the
Customers in connection with their investments in a Fund; and
WHEREAS, it is in the best interests of the Funds to make the
services of the Servicing Agent available to the Customers who are or may become
shareholders of the Funds;
NOW THEREFORE, the Trust, on behalf of its Funds, and the
Servicing Agent hereby agree as follows:
1. Appointment. The Servicing Agent hereby agrees to perform
certain shareholder services with respect to the Funds listed in the attached
Appendix. The Servicing Agent's appointment is not exclusive.
2. Services to be Performed.
2.1 Shareholder Services. The Servicing Agent shall be
responsible for:
(a) establishing and maintaining accounts and records relating
to Customers that invest in Shares;
(b) answering Customer inquiries regarding account status and
history, and the manner in which purchases, exchanges and
redemptions of Shares may be effected;
(c) assisting Customers in designating and changing dividend
options (as available), account designations and addresses;
(d) processing and verifying purchase, redemption and exchange
transactions;
(e) processing and verifying the wiring or other transfer of
funds to and from Customer accounts in connection with
Customer orders to purchase or redeem Shares;
(f) furnishing (either separately or on an integrated basis with
other reports sent to the Customer), or monitoring the
furnishing of, account statements and confirmations of
transactions in the Customer's account;
(g) providing necessary personnel and facilities to establish
and maintain Customer accounts and records and to provide
the other services contemplated hereby;
(h) providing such other shareholder liaison or related services
as the Funds or a Customer may reasonably request.
2.2 Standards. All services to be performed by the Servicing
Agent hereunder shall be performed in a
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professional, competent and timely manner, subject to the supervision of the
Board of Trustees and Officers of the Trust. Any detailed operating standards or
procedures to be followed by the Servicing Agent in performing the services
described above shall be determined from time to time by mutual agreement
between the Servicing Agent and the Trust. The Servicing Agent shall act as
agent for Customers only and shall have no authority to act as agent for the
Funds.
3. Fees. As full compensation for the services described in
Section 2 and expenses incurred by the Servicing Agent, the Servicing Agent
shall receive a fee, payable by each of the Classes of Shares of the Funds as
indicated in the attached Appendix. This fee will be payable as agreed by the
Funds and the Servicing Agent, but no more frequently than monthly.
Notwithstanding anything herein to the contrary, the Trust shall not be
obligated to make any payments under this Agreement that exceed the maximum
amounts payable under Rule 2830 of the Conduct Rules of National Association of
Securities Dealers, Inc. The fees indicated in the attached Appendix constitute
all fees to be paid to the Servicing Agent by the Trust for providing the
shareholder services contemplated hereby.
4. Information Pertaining to the Shares. The Servicing Agent and
its officers, employees and agents are not authorized to make any
representations concerning the Trust, a Fund or the Shares of any Class except
to communicate to Customers accurately factual information contained in the
relevant Fund's prospectus and statement of additional information and objective
historical performance information.
During the term of this Agreement, the Funds agree to furnish the
Servicing Agent all prospectuses, statements of additional information, proxy
statements, reports to shareholders, sales literature, or other materials the
Funds distributes generally to shareholders of the Funds or the public. The
Funds shall furnish or otherwise make available to the Servicing Agent such
other information relating to the business affairs of the Funds as the Servicing
Agent may, from time to time, reasonably request in order to discharge its
obligations hereunder.
5. Security. The Servicing Agent represents and warrants that
various procedures and systems that it has implemented with regard to
safeguarding from loss or damage attributable to fire, theft or any other cause
the Trust records and other data and the Servicing Agent'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.
6. Compliance with Laws. The Servicing Agent shall comply with all
applicable federal and state laws and regulations. The Servicing Agent
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 the Servicing Agent.
7. Force Majeure. The Servicing Agent 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
systems or power supply.
8. Indemnification. To the extent that the Servicing Agent acts in
good faith and without negligence or willful misconduct, Servicing Agent shall
not be responsible for, and the Fund shall indemnify and hold the Servicing
Agent harmless from and against, any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities arising out of and attributable
to all actions of Servicing Agent, its directors, officers and employees taken
pursuant to this Agreement. The Servicing Agent shall indemnify and hold the
Fund harmless from and against any and all losses, damages, costs, charges,
counsel fees, payments, expenses and liabilities arising out of or attributable
to the lack of good faith, negligence or willful misconduct of the Servicing
Agent, its directors, officers and employees in the performance of the Servicing
Agent's obligations under this Agreement.
9. Representations. By your written acceptance of this Agreement,
you represent, warrant and agree that: (i) the compensation payable to you in
connection with the investment of your Clients' assets in Shares will be
disclosed by you to your Clients, will be authorized by your Clients and will
not be excessive; and (ii) the services provided by you under this Agreement
will in no event be primarily intended to result in the sale of Shares.
10. Termination. Notwithstanding anything herein to the contrary,
this Agreement may be terminated at any time, without payment of any penalty, by
either party upon ninety (90) days written notice to the other party.
11. Non-Exclusivity. Nothing in this Agreement shall limit or
restrict the right of the Servicing Agent to engage in any other business or to
render services of any kind to any other corporation, firm, individual or
association. Nothing in this Agreement shall limit or restrict the right of the
Trust to engage other broker/dealers or financial institutions to perform the
same or similar services for their customers that invest in Shares.
12. Amendments. This Agreement shall become effective upon receipt
by us of a signed copy hereof, and shall cancel and supersede any and all prior
Shareholder Servicing Agreements or similar arrangements or contracts relating
to the provision of shareholder services. Any amendments to this Agreement shall
be deemed accepted by you, and will take effect with respect to, and on the date
of, any provision of shareholder services by you after the date set forth in any
notice of amendment sent by us to you.
13. Limitation of Liability. The Servicing Agent hereby agrees
that obligations assumed by the Trust pursuant to this Agreement shall be
limited in all cases to the Funds and their assets and that the Servicing Agent
shall not seek satisfaction of any such obligations from the Board of Trustees
or any individual Trustee of the Trust. The Servicing Agent further agrees that
all obligations of a Fund hereunder shall be solely the obligations of such
Fund.
14. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed as of the day and year first stated above.
XXXXX FARGO FUNDS TRUST, on behalf of the classes of shares of the Funds
listed in the attached Appendix
By: /s/
Name: [Officer of Trust]
Title: [Title or Officer]
[NAME OF SERVICING AGENT]
By: /s/
Name: [Officer of Servicing Agent]
Title: [Title of Officer]
APPENDIX
[Applicable Funds of Funds Trust to be inserted]
Approved as to Form: March 26, 1999
