Investment Company Services Agreement between Xxxxx Xxxxxxx
Trust and FPS Services, Inc.
A:\AGREMNT.WPD; Dated November 24,1997 Page 12 of 12
FORM OF AGREEMENT
Investment Company Services Agreement
This Agreement, dated as of the day of
, 1997, made by and between Xxxxx Xxxxxxx Trust, (the
"Trust"), a business trust operating as an open-end,
management investment company registered under the
Investment Company Act of 1940, as amended (the "Act"), duly
organized and existing under the laws of the Commonwealth of
Massachusetts and FPS Services, Inc. ("FPS"), a corporation
duly organized under the laws of the State of Delaware
(collectively, the "Parties").
Witnesseth That:
Whereas, the Trust is authorized by its Trust
Instrument to issue separate series of shares representing
interests in separate investment portfolios which are
identified on Schedule "C" attached hereto and which
Schedule "C" may be amended from time to time by mutual
agreement of the Trust and FPS; and
Whereas, the Parties desire to enter into an agreement
whereby FPS will provide the services to the Trust as
specified herein and set forth in particular in Schedule "A"
which is attached hereto and made a part hereof.
Now Therefore, in consideration of the premises and
mutual covenants contained herein, and in exchange of good
and valuable consideration, the sufficiency and receipt of
which are hereby acknowledged, the Parties hereto, intending
to be legally bound, do hereby agree as follows:
General Provisions
Section 1. Appointment. The Trust hereby appoints FPS
as servicing agent and FPS hereby accepts such appointment.
In order that FPS may perform its duties under the terms of
this Agreement, the Board of Trustees of the Trust shall
direct the officers, investment adviser, legal counsel,
independent accountants and custodian of the Trust to
cooperate fully with FPS and, upon request of FPS, to
provide such information, documents and advice relating to
the Trust which FPS requires to execute its responsibilities
hereunder. In connection with its duties, FPS shall be
entitled to rely, and will be held harmless by the Trust
when acting in reasonable reliance, upon any instruction,
advice or document relating to the Trust as provided to FPS
by any of the aforementioned persons on behalf of the Trust.
All fees charged by any such persons acting on behalf of the
Trust will be deemed an expense of the Trust.
Any services performed by FPS under this Agreement will
conform to the requirements of:
(a) the provisions of the Act and the Securities Act
of 1933, as amended, and any rules or regulations in force
thereunder;
(b) any other applicable provision of state and
federal law;
(c) the provisions of the Trust Instrument and the By-
Laws as amended from time to time and delivered to FPS;
(d) any policies and determinations of the Board of
Trustees of the Trust which are communicated to FPS; and
(e) the policies of the Trust as reflected in the
Trust's registration statement as filed with the U.S.
Securities and Exchange Commission.
Nothing in this Agreement will prevent FPS or any
officer thereof from providing the same or comparable
services for or with any other person, firm or corporation.
While the services supplied to the Trust may be different
than those supplied to other persons, firms or corporations,
FPS will provide the Trust equitable treatment in supplying
services. The Trust recognizes that it will not receive
preferential treatment from FPS as compared with the
treatment provided to other FPS clients.
Section 2. Duties and Obligations of FPS.
Subject to the provisions of this Agreement, FPS will
provide to the Trust the specific services as set forth in
Schedule "A" attached hereto.
Section 3. Definitions. For purposes of this
Agreement:
"Certificate" will mean any notice, instruction, or
other instrument in writing, authorized or required by this
Agreement. To be effective, such Certificate shall be given
to and received by the custodian and shall be signed on
behalf of the Trust by any two of its designated officers,
and the term Certificate shall also include instructions
communicated to the custodian by FPS.
"Custodian" will refer to that agent which provides
safekeeping of the assets of the Trust.
"Instructions" will mean communications containing
instructions transmitted by electronic or telecommunications
media including, but not limited to, Industry
Standardization for Institutional Trade Communications,
computer-to-computer interface, dedicated transmission line,
facsimile transmission (which may be signed by an officer or
unsigned) and tested telex.
"Oral Instruction" will mean an authorization,
instruction, approval, item or set of data, or information
of any kind transmitted to FPS in person or by telephone,
telegram, telecopy or other mechanical or documentary means
lacking original signature, by a person or persons
reasonably identified to FPS to be a person or persons so
authorized by a resolution of the Board of Trustees of the
Trust to give Oral Instructions to FPS on behalf of the
Trust.
"Shareholders" will mean the registered owners of the
shares of the Trust in accordance with the share registry
records maintained by FPS for the Trust.
"Shares" will mean the issued and outstanding shares of
the Trust.
"Signature Guarantee" will mean the guarantee of
signatures by an "eligible guarantor institution" as defined
in Rule 17Ad-15 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). Eligible guarantor
institutions include banks, brokers, dealers, credit unions,
national securities exchanges, registered securities
associations, clearing agencies and savings associations.
Broker-dealers guaranteeing signatures must be members of a
clearing corporation or maintain net capital of at least
$100,000. Signature guarantees will be accepted from any
eligible guarantor institution which participates in a
signature guarantee program.
"Written Instruction" will mean an authorization,
instruction, approval, item or set of data or information of
any kind transmitted to FPS in an original writing
containing an original signature or a copy of such document
transmitted by telecopy including transmission of such
signature reasonably identified to FPS to be the signature
of a person or persons so authorized by a resolution of the
Board of Trustees of the Trust, or so identified by the
Trust to give Written Instructions to FPS on behalf of the
Trust.
Concerning Oral and Written Instructions For all
purposes under this Agreement, FPS is authorized
to act upon receipt of the first of any Written or
Oral Instruction it receives from the Trust or its
agents. In cases where the first instruction is
an Oral Instruction that is not in the form of a
document or written record, a confirmatory Written
Instruction or Oral Instruction in the form of a
document or written record shall be delivered. In
cases where FPS receives an Instruction, whether
Written or Oral, to enter a portfolio transaction
onto the Trust's records, the Trust shall cause
the broker/dealer executing such transaction to
send a written confirmation to the Custodian.
FPS shall be entitled to rely on the first
Instruction received. For any act or omission
undertaken by FPS in compliance therewith, it
shall be free of liability and fully indemnified
and held harmless by the Trust, provided however,
that in the event a Written or Oral Instruction
received by FPS is countermanded by a subsequent
Written or Oral Instruction received prior to
acting upon such countermanded Instruction, FPS
shall act upon such subsequent Written or Oral
Instruction. The sole obligation of FPS with
respect to any follow-up or confirmatory Written
Instruction or Oral Instruction in documentary or
written form shall be to make reasonable efforts
to detect any such discrepancy between the
original Instruction and such confirmation and to
report such discrepancy to the Trust. The Trust
shall be responsible and bear the expense of its
taking any action, including any reprocessing,
necessary to correct any discrepancy or error. To
the extent such action requires FPS to act, the
Trust shall give FPS specific Written Instruction
as to the action required.
The Trust will file with FPS a certified copy of each
resolution of the Trust's Board of Trustees authorizing
execution of Written Instructions or the transmittal of Oral
Instructions as provided above.
Section 4. Indemnification.
(a) FPS, its directors, officers, employees,
shareholders, and agents will be liable for any loss
suffered by the Trust resulting from the willful
misfeasance, bad faith, negligence or reckless disregard on
the part of FPS in the performance of its obligations and
duties under this Agreement. FPS agrees to indemnify and
hold the Trust harmless, together with its trustees,
officers, employees, shareholders and agents, from and
against any and all claims, demands, expenses and
liabilities (whether with or without basis in fact or law)
of any and every nature which the Trust may sustain or incur
or which may be asserted against the Trust by any person
arising directly or indirectly out of or in any way relating
to the willful misfeasance, bad faith, negligence or
reckless disregard on the part of FPS in the performance of
its obligations and duties under this Agreement.
(b) Any director, officer, employee, shareholder or
agent of FPS, who may be or become an officer, director,
employee or agent of the Trust, will be deemed, when
rendering services to the Trust, or acting on any business
of the Trust (other than services or business in connection
with FPS' duties hereunder), to be rendering such services
to or acting solely for the Trust and not as a director,
officer, employee, shareholder or agent of, or under the
control or direction of FPS even though such person may be
receiving compensation from FPS.
(c) The Trust agrees to indemnify and hold FPS
harmless, together with its directors, officers, employees,
shareholders and agents from and against any and all claims,
demands, expenses and liabilities (whether with or without
basis in fact or law) of any and every nature which FPS may
sustain or incur or which may be asserted against FPS by any
person by reason of, or as a result of:
(i) any action taken or omitted to be taken by
FPS except claims, demands, expenses and liabilities arising
from willful misfeasance, bad faith, negligence or reckless
disregard on the part of FPS in the performance of its
obligations and duties under this Agreement; or
(ii) any action taken or omitted to be taken by
FPS in reliance upon any Certificate, instrument, order or
stock certificate or other document reasonably believed by
FPS to be genuine and signed, countersigned or executed by
any duly authorized person, upon the Oral Instructions or
Written Instructions of an authorized person of the Trust,
or upon the written opinion of legal counsel for the Trust
or FPS; or
(iii) the offer or sale of shares of the Trust
to any person, natural or otherwise, which is in violation
of any state or federal law.
If a claim is made against either party as to which
such party may seek indemnity under this Section (the
"Indemnified Party"). The Indemnified Party will notify the
party required to provide such indemnity (the "Indemnifying
Party") promptly after receipt of any written assertion of
such claim threatening to institute an action or proceeding
with respect thereto and will notify the Indemnifying Party
promptly of any action commenced against the Indemnified
Party within ten (10) days after the Indemnified Party has
been served with a summons or other legal process. Failure
to notify the Indemnifying Party will not, however, relieve
the Indemnifying Party from any liability which it may have
on account of the indemnity under this Section so long as
the Indemnifying Party has not been prejudiced in any
material respect by such failure.
The Parties will cooperate in the control of the
defense of any action, suit or proceeding in which the
Indemnified Party is involved and for which indemnity is
being provided by the Indemnifying Party to the Indemnified
Party. The Indemnifying Party may negotiate the settlement
of any action, suit or proceeding subject to approval, which
will not be unreasonably withheld. The Indemnified Party
reserves the right, but not the obligation, to participate
in the defense or settlement of a claim, action or
proceeding with its own counsel. Costs or expenses incurred
by the Indemnified Party in connection with, or as a result
of such participation, will be borne solely by the
Indemnifying Party if:
(i) the Indemnified Party has received an opinion
of counsel from counsel to the Indemnifying Party stating
that the use of counsel to the Indemnifying Party by the
Indemnified Party would present an impermissible conflict of
interest;
(ii) the defendants in, or targets of, any such
action or proceeding include both the Indemnified Party and
the Indemnifying Party, and legal counsel to the Indemnified
Party has reasonably concluded that there are legal defenses
available to it which are different from or additional to
those available to the Trust or which may be adverse to or
inconsistent with defenses available to the Indemnifying
Party (in which case the Indemnifying Party will not have
the right to direct the defense of such action on behalf of
the Indemnified Party); or
(iii) the Indemnifying Party authorizes the
Indemnified Party to employ separate counsel at the expense
of the Indemnifying Party.
(d) The terms of this Section will survive the
termination of this Agreement.
Section 5. Representations and Warranties.
(a) FPS represents and warrants that:
(i) it is a corporation duly organized and
existing and in good standing under the laws of Delaware;
(ii) it is empowered under applicable laws
and by its Certificate of Incorporation and By-Laws to enter
into and perform this Agreement;
(iii) all requisite corporate proceedings
have been taken to authorize FPS to enter into and perform
this Agreement;
(iv) it has and will continue to have access to
the facilities, personnel and equipment required to fully
perform its duties and obligations hereunder;
(v) no legal or administrative proceeding have
been instituted or threatened which would impair FPS'
ability to perform its duties and obligations under this
Agreement;
(vi) its entrance into this Agreement shall not
cause a material breach or be in material conflict with any
other agreement or obligation of FPS or any law or
regulation applicable to it;
(vii) it is registered as a transfer agent
under Section 17A(c)(2) of the Exchange Act;
(viii) this Agreement has been duly authorized
by FPS and, when executed and delivered, will constitute
valid, legal and binding obligation of FPS, enforceable in
accordance with its terms.
(b) The Trust represents and warrants that:
(i) it is a business trust duly organized and
existing and in good standing under the laws of the
Commonwealth of Massachusetts;
(ii) it is empowered under applicable laws and by
its Trust Instrument and By-Laws to enter into and perform
this Agreement;
(iii) all requisite proceedings have been
taken to authorize the Trust to enter into and perform this
Agreement;
(iv) no legal or administrative proceedings have
been instituted or threatened which would impair the Trust's
ability to perform its duties and obligations under this
Agreement;
(v) the Trust's entrance into this Agreement
shall not cause a material breach or be in material conflict
with any other agreement or obligations of the Trust, or any
law or regulation applicable to either;
(vi) the Shares are properly registered or
otherwise authorized for issuance and sale;
(vii) this Agreement has been duly authorized
by the Trust and, when executed and delivered, will
constitute valid, legal and binding obligation of the Trust,
enforceable in accordance with its terms.
(c) Delivery of Documents
The Trust will furnish or cause to be furnished to
FPS the following documents;
(i) current Prospectus and Statement of
Additional Information;
(ii) most recent Annual Report;
(iii) most recent Semi-Annual Report for
registered investment companies on Form N-SAR;
(iv) certified copies of resolutions of the
Trust's Board of Trustees authorizing the execution of
Written Instructions or the transmittal of Oral Instructions
and those persons authorized to give those Instructions.
(d) Record Keeping and Other Information
FPS will create and maintain all records required of it
pursuant to its duties hereunder and as set forth in
Schedule "A" in accordance with all applicable laws, rules
and regulations, including records required by Section 31(a)
of the Act. All such records will be the property of the
Trust and will be available during regular business hours
for inspection, copying and use by the Trust. Where
applicable, such records will be maintained by FPS for the
periods and in the places required by Rule 31a-2 under the
Act. Upon termination of this Agreement, FPS will deliver
all such records to the Trust or such person as the Trust
may designate.
In case of any request or demand for the inspection of
the Share records of the Trust, FPS shall notify the Trust
and secure instructions as to permitting or refusing such
inspection. FPS may, however, exhibit such records to any
person in any case where it is advised by its counsel that
it may be held liable for failure to do so.
Section 6. Compensation. The Trust agrees to pay FPS
compensation for its services, and to reimburse it for
expenses at the rates, times, manner and amounts as set
forth in Schedule "B" attached hereto and incorporated
herein by reference and as will be set forth in any
amendments to such Schedule "B" agreed upon in writing by
the Parties. Upon receipt of an invoice therefor, FPS is
authorized to collect such fees by debiting the Trust's
custody account. In addition, the Trust agrees to reimburse
FPS for any out-of-pocket expenses paid by FPS on behalf of
the Trust within ten (10) calendar days of the Trust's
receipt of an invoice therefor.
For the purpose of determining fees payable to FPS, the
value of the Trust's net assets will be computed at the
times and in the manner specified in the Trust's Prospectus
and Statement of Additional Information then in effect.
During the term of this Agreement, should the Trust
seek services or functions in addition to those outlined
below or in Schedule "A" attached hereto, a written
amendment to this Agreement specifying the additional
services and corresponding compensation will be executed by
the Parties.
In the event that the Trust is more than sixty (60)
days delinquent in its payments of monthly xxxxxxxx in
connection with this Agreement (with the exception of
specific amounts which may be contested in good faith by the
Trust), this Agreement may be terminated upon thirty (30)
days' written notice to the Trust by FPS. The Trust must
notify FPS in writing of any contested amounts within thirty
(30) days of receipt of a billing for such amounts.
Disputed amounts are not due and payable while they are
being disputed.
Section 7. Days of Operation. Nothing contained in
this Agreement is intended to or will require FPS, in any
capacity hereunder, to perform any functions or duties on
any holiday, day of special observance or any other day on
which the New York Stock Exchange ("NYSE") is closed.
Functions or duties normally scheduled to be performed on
such days will be performed on and as of the next succeeding
business day on which the NYSE is open. Notwithstanding the
foregoing, FPS will compute the net asset value of the Trust
on each day required pursuant to Rule 22c-1 promulgated
under the Act.
Section 8. Acts of God, etc. FPS will not be liable
or responsible for delays or errors caused by acts of God or
by reason of circumstances beyond its control including,
acts of civil or military authority, national emergencies,
labor difficulties, mechanical breakdown, insurrection, war,
riots, or failure or unavailability of transportation,
communication or power supply, fire, flood or other
catastrophe.
In the event of equipment failures beyond FPS' control,
FPS will, at no additional expense to the Trust, take
reasonable steps to minimize service interruptions but will
have no liability with respect thereto. The foregoing
obligation will not extend to computer terminals located
outside of premises maintained by FPS. FPS has entered into
and maintains in effect agreements making reasonable
provision for emergency use of electronic data processing
equipment to the extent appropriate equipment is available.
Section 9. Inspection and Ownership of Records. In
the event of a request or demand for the inspection of the
records of the Trust, FPS will use its best efforts to
notify the Trust and to secure instructions as to permitting
or refusing such inspection. FPS may, however, make such
records available for inspection to any person in any case
where it is advised in writing by its counsel that it may be
held liable for failure to do so after notice to the Trust.
FPS recognizes that the records it maintains for the
Trust are the property of the Trust and will be surrendered
to the Trust upon written notice to FPS as outlined under
Section 10(c) below. The Trust is responsible for the
payment in advance of any fees owed to FPS. FPS agrees to
maintain the records and all other information of the Trust
in a confidential manner and will not use such information
for any purpose other than the performance of FPS' duties
under this Agreement.
Section 10. Duration and Termination.
(a) The initial term of this Agreement will be for the
period of one (1) year, commencing on the date hereinabove
first written (the "Effective Date") and will continue
thereafter subject to termination by either Party as set
forth in subsection (c) below.
(b) The fee schedules set forth in Schedule "B"
attached hereto will be fixed for the initial term
commencing on the Effective Date of this Agreement and will
continue thereafter subject to their review and any
adjustment.
(c) Either Party may give written notice to the other
(the day on which the notice is received by the Party
against which the notice is made shall be the "Notice Date")
of a date on which this Agreement shall be terminated
("Termination Date"). The Termination Date shall be set on
a day not less than ninety (90) days after the Notice Date.
The period of time between the Notice Date and the
Termination Date is hereby identified as the "Notice
Period". Any time up to, but not later than fifteen (15)
days prior to the Termination Date, the Trust will pay to
FPS such compensation as may be due as of the Termination
Date and will likewise reimburse FPS for any out-of-pocket
expenses and disbursements reasonably incurred or expected
to by incurred by FPS up to and including the Termination
Date.
