FORM OF THE AMENDMENT TO XXXX XXXXXXX FUNDS, LLC SELLING AGREEMENT
(Broker/Dealer)
WHEREAS, Xxxx Xxxxxxx Funds, LLC and _________________ ("Participating
Broker/Dealer") are parties ("the Parties") to a Selling Agreement dated
_______________; and
WHEREAS, the Selling Agreement section entitled "Termination, Amendment,
Assignment" permits amendment of the Selling Agreement by Xxxx Xxxxxxx Funds,
LLC at any time upon written notice of such amendment and specifies that such
amendment shall be deemed to have been accepted upon Participating
Broker/Dealer's action of placing an order or accepting payments of any kind
after the effective date and receipt of notice of any such amendment; and
WHEREAS, the Parties wish to conform to the requirements of the Investment
Company Act of 1940, rule 22c-2;
NOW THEREFORE, in consideration of the foregoing and the mutual promises set
forth below, the Parties agree as follows:
1. Effective October 16, 2006, the language in the Selling Agreement
section entitled "Frequent Exchanges" shall be deleted and, in its
place shall be substituted the following:
To the extent that you are an "Intermediary" within the meaning of
Investment Company Act of 1940, rule 22c-2, the following shall apply:
1. Agreement to Provide Information. Intermediary agrees to provide the
Fund, upon written request, the taxpayer identification number
("TIN"), if known, of any or all Shareholder(s) of the account and the
amount, date, name or other identifier of any investment
professional(s) associated with the Shareholder(s) or account (if
known), and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of
Shares held through an account maintained by the Intermediary during
the period covered by the request.
A) Period Covered by Request. Requests must set forth a specific
period, not to exceed 90 days from the date of the request, for
which transaction information is sought. The Fund may request
transaction information older than 90 days from the date of the
request as it deems necessary to investigate compliance with
policies established by the Fund for the purpose of eliminating
or reducing any dilution of the value of the outstanding shares
issued by the Fund.
B) Form and Timing of Response. Intermediary agrees to transmit the
requested information that is on its books and records to the
Fund or its designee promptly, but in any event not later than
three business days, after receipt of a request. If the requested
information is not on the Intermediary's books and records,
Intermediary agrees to use reasonable efforts to: (i) promptly
obtain and transmit the requested information; (ii) obtain
assurances from the accountholder that the requested information
will be provided directly to the Fund promptly; or (iii) if
directed by the Fund, block further purchases of Fund Shares from
such accountholder. In such instance, Intermediary agrees to
inform the Fund whether it plans to perform (i), (ii) or (iii).
Responses required by this paragraph must be communicated in
writing and in a format mutually agreed upon by the parties. To
the extent practicable, the format for any transaction
information provided to the Fund should be consistent with the
NSCC Standardized Data Reporting Format.
C) Limitations on Use of Information. The Fund agrees not to use the
information received for marketing or any other similar purpose
without the prior written consent of the Intermediary.
2. Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from the Fund to restrict or prohibit further purchases
or exchanges of Shares by a Shareholder that has been identified by
the Fund as having engaged in transactions of the Fund's Shares
(directly or indirectly through the Intermediary's account) that
violate policies established by the Fund for the purpose of
eliminating or reducing any dilution of the value of the outstanding
Shares issued by the Fund.
A) Form of Instructions. Instructions must include the TIN, if
known, and the specific restriction(s) to be executed. If the TIN
is not known, the instructions must include an equivalent
identifying number of the Shareholder(s) or account(s) or other
agreed upon information to which the instruction relates.
B) Timing of Response. Intermediary agrees to execute instructions
as soon as reasonably practicable, but not later than five
business days after receipt of the instructions by the
Intermediary.
C) Confirmation by Intermediary. Intermediary must provide written
confirmation to the Fund that instructions have been executed.
Intermediary agrees to provide confirmation as soon as reasonably
practicable, but not later than ten business days after the
instructions have been executed.
3. Definitions. For purposes of this paragraph:
A) The term "Fund" includes the fund's principal underwriter and
transfer agent. The term not does include any excepted funds" as
defined in SEC Rule 22c-2(b) under the Investment Company Act of
1940. *
* As defined in SEC Rule 22c-2(b), the term "excepted fund" means any: (1) money
market fund; (2) fund that issues securities that are listed on a national
exchange; and (3) fund that affirmatively permits short-term trading of its
securities, if its prospectus clearly and prominently discloses that the fund
permits short-term trading of its securities and that such trading may result in
additional costs for the fund.
B) The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by
the Fund under the Investment Company Act of 1940 that are held
by the Intermediary.
C) The term "Shareholder" means the beneficial owner of Shares,
whether the Shares are held directly or by the Intermediary in
nominee name.
D) The term "written" includes electronic writings and facsimile
transmissions.
2. Except as specifically set forth herein, all other provisions of the
Selling Agreement shall remain in full force and effect.
Dated: XXXX XXXXXXX FUNDS, LLC
By: _________________________
Xxxxx Xxxxxxxxx, CEO
ICI/SIA
December 22, 2005