Exhibit 9(e)
Form of Shareholder Servicing Agreement
FORM OF
PROPOSED
SHAREHOLDER SERVICING AGREEMENT
THIS AGREEMENT, dated as of , 19 by and between, on the one
hand, Mutual Fund ____________ (the "Trust"), a Massachusetts business trust
having its principal place of business at ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ and, on other hand, The Chase Manhattan Bank, N.A., a national banking
association having its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Global Securities Services Division, 4 Chase ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and each other direct or indirect
subsidiary of The Chase Manhattan Corporation listed on Exhibit A hereto as it
may be amended from time to time hereafter, which is made a part hereof (each
such bank or other subsidiary referred to individually herein as the "Financial
Institution"), each Financial Institution on behalf of itself and each of its
components listed as an Agent on Exhibit A, each of which is a shareholder
servicing agent hereunder (each such Financial Institution and component thereof
referred to individually herein as the "Agent");
W I T N E S S E T H
WHEREAS, all transactions in Shares of Beneficial Interest (without par
value) of the Trust ("Shares") may be made only by investors who are customers
of and using the services of, a financial institution or broker-dealer which has
entered into a shareholder servicing or similar agreement with the Trust or its
distributor;
WHEREAS, the Financial Institution wishes to make it possible for its
customers (the "Customers") to purchase Shares and wishes to act as the
Customers' agent 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 in connection with their investments in the Trust;
WHEREAS, the Financial Institution may also provide certain services to
the Trust relating to shareholders and their accounts; and
WHEREAS, it is in the interest of the Trust to avail itself of the
Agent's services and make the services of the Agent available to Customers who
are or may become shareholders of the Trust.
NOW THEREFORE, the Trust and the Financial Institution hereby agree as
follows:
1. Appointment. The Financial Institution, as Agent, hereby
agrees to perform certain services for the Trust and/or Customers as hereinafter
set forth. The Agent's appointment hereunder is non-exclusive, and the parties
recognize and agree that, from time
to time, the Trust may enter into other shareholder servicing or similar
agreements, in writing, with other financial institutions.
2. Service to Be Performed.
2.1 Type of Service. To the extent directed by the Trust, the
Agent shall be responsible for performing some or all of the administrative and
servicing functions for shareholder accounts and series of the Trust, which
shall include without limitation the following Shareholder Liaison Services and
Other Services:
(a) Shareholder Liaison Services. The Agent shall
be responsible for (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; (d) arranging for the wiring of funds; (e) transmitting and
receiving funds in connection with Customer orders to purchase or redeem shares;
(f) verifying Customer signatures on check writing drafts in connection with
redemption orders, transfers among and changes in Customerdesignated accounts;
(g) furnishing (either separately or on an integrated basis with other reports
sent to a Customer by the Agent) monthly and annual statements and confirmations
of all purchases and redemptions of Shares in a Customer's account; and (h)
providing such other related services as the Trust or a Customer may reasonably
request.
(b) Other Administrative Services. The Agent shall
also be responsible for (a) assisting in processing purchase and redemption
transactions; (b) transmitting proxy statements, annual reports, updating
prospectuses and other communications from the Trust to Customers; (c)
receiving, tabulating and transmitting to the Trust proxies executed by
Customers with respect to annual and special meetings of shareholders of the
Trust; (d) provide beneficial owners with statements showing their positions in
the various series of the Trust; (e) providing periodic statements showing a
Customer's account balances and, to the extent practicable, integration of such
information with information concerning other client transactions effected with
or through the Financial Institution; and (f) processing dividend payments.
The Agent shall provide all personnel and facilities necessary
in order for it to perform the functions described in sub-paragraphs 2.1(a) and
2.1(b) above with respect to its Customers.
The Agent understands that the Trust may contract with other
parties to perform certain of the functions enumerated above.
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2.2 Standard of Services. All services to be rendered by the
Agent hereunder shall be performed in a professional, competent and timely
manner. The details of the operating standards and procedures to be followed by
the Agent in performance of the services described above shall be determined
from time to time by agreement between the Agent and the Trust.
3. Fees.
3.1 Fees from the Trust. In consideration for the services
described in Section 2.1(a) hereof relating to acting as liaison to shareholders
and providing personal services to shareholders, the Agent shall receive fees to
be paid in arrears periodically (but in no event less frequently than
semi-annually) at an annual rate of the average daily net assets set forth with
respect to the applicable Fund and Class of Shares so indicated on Schedule A
attached hereto represented by Shares owned during the period for which payment
is being made by Customers for whom the Agent is the holder or Agent of record
or with whom it maintains a servicing relationship. In consideration for the
services described in Section 2.1(b) hereof relating to other administrative
services and the incurring of expenses in connection therewith, the Agent shall
receive fees to be paid in arrears periodically (but in no event less frequently
than semi-annually) at an annual rate of the average daily net assets set forth
with respect to the applicable Fund and Class of Shares so indicated on Schedule
A attached hereto represented by Shares owned during the period for which
payment is being made by Customers for whom the Agent is the holder or Agent of
record or with whom it maintains a servicing relationship. For purposes of
determining the fees payable to the Agent hereunder, the value of the Trust's
net assets shall be computed in the manner specified in the Trust's then-current
prospectus and statement of additional information for computation of the net
asset value of the Trust's Shares. Any Agent may direct the Trust in writing
that its fees from the Trust for the services rendered hereunder and incurring
of expenses in connection therewith be paid to another Agent on a consolidated
basis. Any such consolidated payment to a designated Agent by the Trust shall
relieve the Trust of responsibility for payment of compensation it owes to any
other individual Agent and shall satisfy the Trust's fee payment obligations
hereunder with respect to all Agents.
3.2 Fees from Customers. It is agreed that the Financial
Institution 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 the Financial Institution as Agent (which fees may
either relate specifically to the Financial Institution's services with respect
to the Trust or generally over services not limited to those with respect to the
Trust). The Financial Institution shall ▇▇▇▇ Customers directly for such fees.
In the event the Financial Institution charges Customers such fees, it shall
make appropriate prior written disclosure (such disclosure to be in accordance
with
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all applicable laws) to Customers both of any direct fees charged to the
Customer and of the fees received or to be received by it from the Trust
pursuant to Section 3.1 of this Agreement. It is understood, however, that in no
event shall the Financial Institution have recourse or access as Agent or
otherwise to the account of any shareholder of the Trust except to the extent
expressly authorized by law or by such shareholder, or to any assets of the
Trust, for payment of any direct fees referred to in this Section 3.2.
4. Information Pertaining to the Shares; Etc. The Agent and its
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 (i) factual information contained in
the then-current Trust prospectus and statement or additional information, (ii)
current and historical yield and other performance information for any or all of
the Trust portfolios, calculated by the Administrator of the Funds in accordance
with then-current rules and regulations of the Securities and Exchange
Commission (the "SEC"), and furnished to the Agent by the Trust and (iii) any
other factual information permitted to be communicated by the Agent and its
officers, employees and agents under then-current rules and regulations of the
SEC, National Association of Securities Dealers, Inc. and any other appropriate
regulatory, governmental or judicial authority. The Agent shall act as agent for
the Customer only in furnishing information regarding the Trust or the Shares
and shall have no authority to act as agent for the Trust.
Advance copies or proofs of all materials which are to be
generally circulated or disseminated by the Agent to Customers or prospective
Customers which identify or describe the Trust shall be provided to the Trust
(or its designee) at least 10 days prior to such circulation or dissemination
(unless the Trust consents in writing to a shorter period), and such materials
shall not be circulated or disseminated or further circulated or disseminated at
any time after the Trust shall have given written notice to the Agent of any
objection thereto.
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
the Agent.
5. Use of the Agent's Name. The Trust shall not use the name of the
Agent, in any prospectus, sales literature or other material relating to the
Trust in a manner not approved by the Agent prior thereto in writing; provided,
however, that the approval of the Agent shall not be required for any use of its
name which merely refers in accurate and factual terms to its appointment
hereunder or which is required by the SEC 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.
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6. Use of the Trust's Name. Without limiting the effect of Section 4
hereof, the Agent shall not use the name of the Trust 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 Section 4 hereof or subject to
Section 4, to the extent the same may be applicable for any use of the Trust's
name which merely refers in accurate and factual terms to the Agent's role
hereunder or which is required by the SEC, 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. The Agent represents and warrants that the various
procedures and systems which it has 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 that Trust's records
and other data and the 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. 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. The Agent shall comply with all
applicable federal and state laws and regulations, including securities laws.
The 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 Agent. The Agent furthermore undertakes that it
will promptly inform the Trust of any change in applicable laws or regulations
(or interpretations thereof) or in its charter or by-laws or material contracts
which would prevent or impair full performance of any of its obligations
hereunder.
9. Reports. To the extent requested by the Trust from time to time, the
Agent agrees that it will provide the Treasurer of the Trust with a written
report of the amounts expended by the Agent 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 and the Trustees of the Trust to discharge their respective
responsibilities under applicable laws and regulations.
10. Record-Keeping.
10.1 Section 31(a), Etc. The Agent shall maintain
records in form acceptable to, and as directed by, the Trust in
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compliance with applicable laws and the rules and regulations of the SEC,
including but not limited to the record-keeping requirements of Section 31(a) of
the Investment Company Act of 1940, as amended (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 request, for inspection and used by the
Trust, representatives of the Trust and governmental authorities. The Agent
agrees that, for so long as it retains any records of the Trust, it will meet
all reporting requirements, if any, pursuant to the 1940 Act with respect to
such records, as may be specified by the Trust from time to time.
10.2 Rules 17a-3 and 17a-4. The Agent shall maintain accurate
and complete records with respect to services performed by the Agent in
connection with the purchase and redemption of Shares. The Agent hereby
undertakes to permit examination of such records at any time or from time to
time during business hours by examiners or other representatives of the SEC or
other authorities and offices having regulatory authority over the Trust or any
dealer of the Shares, and to furnish to such authorities and offices or the SEC
at the location specified by any of them copies of any or all of such records as
may be requested by any of them. Such records shall include the data and be
maintained in the form and for the time periods specified in Schedule A attached
hereto and incorporated herein by reference ("Schedule A"). Compliance by the
Agent with the record keeping requirements specified in Schedule A and such
reporting requirements, if any, as may be specified by the Trust, from time to
time, shall be deemed to satisfy fully any obligation of the Agent hereunder to
comply with Rules 17a-3 and 17a-4 under the Securities Exchange Act of 1934
pursuant to which any dealer of the Shares must maintain certain records and
file reports or other documents. All such records maintained by the Agent
pursuant to this Section 10.2 of this Agreement shall be the property of such
dealer and will be made available for inspection and use by the Trust or such
dealer upon the request of either of them. If so requested by any such dealer,
the Agent shall confirm to such dealer its obligations under this Section 10.2
by a writing reasonably satisfactory to such dealer.
10.3 Identification, Etc. of Records. The Trust shall
from time to time specify to the Agent, and the Trust and the Agent shall
periodically review, the records to be maintained and the procedures to be
followed by the Agent in complying with the foregoing Sections 10.1 and 10.2.
10.4 Transfer of Customer Data. In the event this
Agreement is terminated or a successor to the Agent is appointed, or another
party is engaged by the Trust to provide some or all of the services enumerated
in Section 2 of this Agreement, the Agent shall, at the expense of the Trust,
transfer to such designee as the Trust may direct a certified list of
shareholders of the Trust as to whom the Agent provides services hereunder (with
name, address and tax identification or Social Security number), a complete
record of the account of each such shareholder and the
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status thereof, and all other relevant books, records, correspondence, and other
data established or maintained by the Agent under this Agreement. In the event
this Agreement is terminated, the Agent will use its 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.
10.5 Survival of Record-Keeping Obligations. The
record-keeping obligations imposed in this Section 10 shall survive the
termination of this Agreement.
10.6 Obligations Pursuant to Agreement Only. Nothing in
this Section 10 shall be construed to mean that the Agent would, by virtue of
its role hereunder, be required under applicable law to maintain the records
required to be maintained by it under this Section 10, but it is understood that
the Agent has agreed to do so in order to enable the Trust and its dealer or
dealers to comply with laws and regulations applicable to them.
11. Force Majeure. The 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 or power supply.
12. Indemnification.
12.1 Indemnification of the Agent. Without limiting the
rights of the Agent under applicable law, the Trust will indemnify and hold the
Agent 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 the Trust's Prospectus, actions or inactions by
the Trust or any of its agents or contractors or the performance of the Agent's
obligations hereunder and (b) not resulting from (i) the bad faith or negligence
of the Agent, its directors, officers, employees or agents, or (ii) any breach
of applicable law by the Agent, its directors, officers, employees or agents,
other than any breach of applicable law due solely and directly to the Agent's
proper reliance upon an action or omission by the Trust or any of its agents or
contractors which constitutes a breach of applicable law by the Trust or any of
agents or contractors, or (iii) any action of the Agent, its directors,
officers, employees or agents which exceeds the legal authority of the Agent or
its authority hereunder, or (iv) any error or omission of the Agent, its
directors, officers, employees or agents with respect to the purchase,
redemption and transfer of Customer's Shares or the Agent's verification of any
Customer signature on check writing drafts. Notwithstanding anything herein to
the contrary, the Trust will indemnify and hold the Agent harmless from
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any and all losses, claims, damages, liabilities or expenses (including
reasonable counsel fees and expenses) resulting from any Claim as a result of
its acting in accordance with any written instructions reasonably believed by
the Agent 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 the Agent 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 the Agent.
In any case in which the Trust may be asked to indemnify or
hold the Agent harmless, the Trust shall be advised of all pertinent facts
concerning the situation in question and the Agent 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 the Agent 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 the Agent. The Agent may retain additional counsel
at its expense. Except with the prior written consent of the Trust, the Agent
shall not confess any Claim or make any compromise in any case in which the
Trust will be asked to indemnify the Agent.
12.2 Indemnification of the Trust. Without limiting the
rights of the Trust under applicable law, the Agent will indemnify and hold the
Trust harmless from all losses, claims, damages, liabilities or expenses
(including reasonable fees and disbursements or counsel) from any Claim (a)
resulting from (i) the bad faith or negligence of the Agent, its directors,
officers, employees or agents, or (ii) any breach of applicable law by the
Agent, its directors, officers, employees or agents, other than any breach of
applicable law due solely and directly to the Agent's proper reliance upon an
action or omission by the Trust or its agents or contractors which constitutes a
breach of applicable law by the Trust or its agents or contractors or (iii) any
action of the Agent, its directors, officers, employees or agents which exceeds
the legal authority of the Agent or its authority hereunder, or (iv) any error
or omission of the Agent, its directors, officers, employees or agents with
respect to the purchase, redemption and transfer of Customers' Shares or the
Agent's verification of any Customer signature on check writing drafts, and (b)
not resulting from the Agent's actions in accordance with written instructions
reasonably believed by the Agent to have been executed by any person duly
authorized by the Trust, or in reliance upon any instrument or stock certificate
reasonably believed by the Agent to have been genuine and signed, countersigned
or executed by a person duly authorized by the Trust.
In any case in which the Agent may be asked to indemnify or
hold the Trust harmless, the Agent shall be advised of all pertinent facts
concerning the situation in question and the Trust shall use reasonable care to
identify and notify the Agent promptly
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concerning any situation which presents or appears likely to present a claim for
indemnification against the Agent. The Agent shall have the option to defend the
Trust against any Claim which may be the subject of indemnification hereunder.
In the event that the Agent elects to defend against such Claim, the defense
shall be conducted by counsel chosen by the Agent and reasonably 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 the Agent will be asked to indemnify
the Trust.
12.3 Survival of Indemnities. The indemnities granted by
the parties in this Section 12 shall survive the termination of this Agreement.
13. Insurance. The Agent shall maintain reasonable insurance
coverage against any and all liabilities which may arise in
connection with the performance of its duties hereunder.
14. Notices. All notices or other communication 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 the preamble of this
Agreement or at such other address as such party may have designated by written
notice to the other.
15. Further Assurances. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
16. Termination. This Agreement may be terminated by the Trust,
without payment of any penalty, at any time upon not more than 60 days' nor less
than 30 days' notice, 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 ▇▇▇▇ ▇▇▇)
and have no direct or indirect financial interest in the operation of the
Administrative Services Plan pursuant to which the Trust has entered into this
Agreement (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 int he ▇▇▇▇ ▇▇▇) of the Trust. The Agent 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, but except as provided in
Section 19 of this Agreement, this Agreement may not be assigned and shall
terminate automatically without notice to either party upon any assignment. Upon
termination hereof, the Trust shall pay such compensation as may be due the
Agent as of the date of such termination.
17. Changes; Amendments. This Agreement may be changed or amended
only by written instrument signed by both parties.
18. Limitation of Shareholder Liability; Etc. The Agent hereby
agrees that obligations assumed by the Trust pursuant to
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this Agreement shall be limited in all cases to the Trust and its assets and
that the Agent shall not seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust. It is further agreed that the
Agent shall not seek satisfaction of any such obligations from the Board of
Trustees or any individual Trustee of the Trust.
19. Subcontracting by Agent. The Agent may, with the written
approval of the Trust (such approval not be unreasonably withheld or delayed),
subcontract for the performance of the Agent's obligations hereunder with any
one or more persons, including but not limited to any one or more persons which
is an affiliate of the Agent; provided, however, that the Agent 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.
20. Authority to Vote. The Trust hereby confirms that, pursuant to
the Declaration of Trust of the Trust, at any meeting of shareholders of the
Trust or of any series of the Trust, the Agent is authorized to vote any Shares
held in accounts as to which the Agent provides services hereunder, and which
are otherwise not represented in person or by proxy at the meeting,
proportionately in accordance with the votes cast by holders of all Shares
otherwise represented at the meeting in person or by proxy and held in accounts
as to which the Agent provides services hereunder.
21. Several Nature of Agent's Obligation. Except as may be
otherwise provided in this Agreement, each entity names as an Agent in Exhibit A
hereto shall perform the services and other obligations required to be performed
for the Trust by an Agent hereunder to the extent that they relate to that Agent
and its Customers, and the Trust shall perform its responsibilities hereunder to
the extent that they apply to the Agent or its customers. Each Agent may
separately exercise any of its rights under this Agreement or may, from time to
time, with written notice to the Trust, allow another Agent to exercise these
rights on its behalf. In no event shall any Agent be liable for performance or
payment of all or any portion of another Agent's duties and obligations under
this Agreement.
22. Miscellaneous. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the Commonwealth of
Massachusetts. 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 may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. This Agreement has been executed on behalf of the Trust by the
undersigned not individually, but in the capacity indicated.
23. Disclosure to Customers; etc. The Agent hereby represents that
any compensation payable to it pursuant to this
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Agreement in connection with investment of Customers' assets in Shares (a) will
be disclosed by the Agent to its Customers, (b) will be authorized by such
Customers, and (c) will not result in an excessive fee to the Agent.
MUTUAL FUND_____________
[Signature on Exhibit A]
FINANCIAL INSTITUTIONS
[Signatures on Exhibit A]
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Schedule A
RECORDS ON SHARE TRANSACTIONS
I. With respect to the services to be performed by the Agent under this
Agreement, other than those services to be performed by DST Systems,
Inc. pursuant to the Transfer Agency Agreement, dated as of February 1,
1995, the Agent shall maintain records in compliance with applicable
requirements of Rules 17a-3 and 17a-4 under the Securities Exchange Act
of 1934.
