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Exhibit 23(h)(7)
THE COMMERCE FUNDS
AMENDED AND RESTATED SHAREHOLDER ADMINISTRATIVE SERVICES PLAN
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(Service Shares)
Section 1. Upon the recommendation of Commerce Bank, N.A., the Trust's
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investment advisor (the "Advisor"), any officer of The Commerce Funds (the
"Trust") is authorized to execute and deliver, in the name and on behalf of the
Trust, written agreements in substantially the form attached hereto or in any
other form duly approved by the Board of Trustees ("Servicing Agreements") with
securities dealers, financial institutions and other industry professionals that
are shareholders or dealers of record or which have a servicing relationship
("Service Organizations") with the beneficial owners of Series A-2, Series B-2,
Series C-2, Series D-2, Series E-2, Series F-2, Series G-2, Series H-2, Series
I-2, Series J-2 and Series K-2 shares of beneficial interest in the Trust's
Short-Term Government, Bond, Balanced, Growth, International Equity, MidCap
Growth, Value, Missouri Tax-Free Intermediate Bond, National Tax-Free
Intermediate Bond, Core Equity and Kansas Tax-Free Intermediate Bond Funds,
(such shares hereinafter called "Service Shares" and such funds hereinafter
called the "Funds"). Such Servicing Agreements shall require the Servicing
Organization to provide support services as set forth therein to their clients
who beneficially own Service Shares in one or more of the Funds in consideration
for a fee, computed daily and paid monthly in the manner set forth in the
Servicing Agreements, at the annual rate of up to 0.25% of the average daily net
asset value of Service Shares of the Funds beneficially owned by such clients.
All expenses incurred by the Trust in connection with Servicing Agreements for a
Service Share of a particular Fund shall be allocated entirely to the Service
Shares of that Fund. The fee allocated to the Service Shares of each Fund shall
be the several (and not joint or joint and several) obligation of the Service
Shares of each such Fund.
Section 2. Goldman Sachs Asset Management ("GSAM"), as administrator,
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shall monitor the arrangements pertaining to the Trust's Servicing Agreements
with the Service Organizations in accordance with the terms of their
Administration Agreement with the Trust with respect to the Service Shares. GSAM
shall not, however, be obliged by this Plan to recommend, and the Trust shall
not be obliged to execute, any Servicing Agreement with any qualifying Service
Organizations.
Section 3. So long as this Plan is in effect, the Service Organization
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shall provide to the Trust's Board of Trustees, and the Trustees shall review,
at least quarterly, a written report of the amounts expended pursuant to this
Plan and the purposes for which such expenditures were made.
Section 4. This Plan shall become effective with respect to the Service
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Shares of a particular Fund upon the approval of the Plan (and the form of
Servicing Agreement attached hereto) by a majority of the Board of Trustees,
including a majority of the Trustees who are not "interested persons" as defined
in the Investment Company Act of 1940, as amended (the "Act"),
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of the Trust and have no direct or indirect financial interest in the operation
of this Plan or in any Servicing Agreements or other agreements related to this
Plan (the "Disinterested Trustees"), pursuant to a vote cast in person at a
meeting called for the purpose of voting on the approval of this Plan (and form
of Servicing Agreement); provided however, that such effectiveness shall not
occur prior to the effective date of the Post-Effective Amendment to the Trust's
Registration Statement on Form N-1A under the Securities Act of 1933, as
amended, relating to the Service Shares.
Section 5. Unless sooner terminated, this Plan shall continue in effect
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for so long as its continuance is approved at least annually in the manner set
forth in Section 4.
Section 6. This Plan may be amended at any time by the Board of
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Trustees, provided that any material amendments of the terms of this Plan shall
become effective only upon the approvals set forth in Section 4.
Section 7. This Plan is terminable at any time by vote of a majority of
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the Disinterested Trustees.
Section 8. While this Plan is in effect, the selection and nomination of
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those Trustees who are not "interested persons" (as defined in the Act) of the
Trust shall be committed to the discretion of the Disinterested Trustees.
Section 9. The Trust has amended and restated this Shareholder
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Administrative Services Plan with respect to Service Shares of the Funds as of
October 25, 2000.
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THE COMMERCE FUNDS
AMENDED AND RESTATED SERVICING AGREEMENT
Under Shareholder Administrative Services Plan
Ladies and Gentlemen:
The Commerce Funds (the "Trust") wishes to enter into this Servicing
Agreement with you concerning the provision of administrative support services
to your customers ("Clients") who may from time to time be the record or
beneficial owners of Service Shares of one or more of the Trust's investment
portfolios (the "Funds"), which are listed on Appendix A.
The terms and conditions of this Servicing Agreement are as follows:
Section 1. You agree to provide one or more of the following support
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services to Clients who may from time to time beneficially own Service Shares:
(i) establishing and maintaining accounts and records relating to Clients that
invest in Service Shares; (ii) aggregating and processing purchase, redemption
and exchange requests for Service Shares from Clients and placing net purchase,
redemption and exchange orders with the Trust's distributor; (iii) providing
Clients with a service that invests the assets of their accounts in Service
Shares pursuant to specific or pre-authorized instructions; (iv) processing
dividend and distribution payments from the Trust on behalf of Clients; (v)
providing information periodically to Clients showing their positions in Service
Shares; (vi) arranging for bank wires; (vii) responding to routine inquiries
from Clients concerning their investments in Service Shares; (viii) responding
to Client inquiries relating to the services performed by you; (ix) providing
subaccounting with respect to Service Shares beneficially owned by Clients or
the information to the Trust necessary for subaccounting; (x) if required by
law, forwarding shareholder communications from the Trust (such as proxies,
shareholder reports, annual and semi-annual financial statements and dividend,
distribution and tax notices) to Clients; (xi) assisting Clients in changing
dividend options, account designations and addresses; and (xii) providing such
other similar services as the Trust may reasonably request to the extent you are
permitted to do so under applicable statutes, rules or regulations. You will
provide to Clients a schedule of any fees that you may charge to them relating
to the investment of their assets in Service Shares.
Section 2. You will provide such office space and equipment, telephone
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facilities and personnel (which may be any part of the space, equipment and
facilities currently used in your business, or any personnel employed by you) as
may be reasonably necessary or beneficial in order to provide the aforementioned
services to Clients.
Section 3. Neither you nor any of your officers, employees or agents are
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authorized to make any representations concerning the Trust, a Fund or Service
Shares except those contained in the Trust's then current prospectus(es) for
such Service Shares, copies of which will be supplied by the Trust to you, or in
such supplemental literature or advertising as may be authorized by the Trust in
writing.
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Section 4. For all purposes of this Agreement you will be deemed to be an
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independent contractor, and will have no authority to act as agent for the Trust
in any matter or in any respect. You will not engage in activities pursuant to
this Agreement which constitute acting as a broker or dealer under state law
unless you have obtained the licenses required by law. By your written
acceptance of this Agreement, you agree to and do release, indemnify and hold
the Trust harmless from and against any and all direct or indirect liabilities
or losses resulting from requests, directions, actions or inactions of or by you
or your officers, employees or agents regarding your responsibilities hereunder
or the purchase, redemption, transfer or registration of Service Shares by or on
behalf of Clients. You and your employees will, upon request, be available
during normal business hours to consult with the Trust or its designees
concerning the performance of your responsibilities under this Agreement.
Section 5. In consideration of the services and facilities provided by you
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hereunder, the Trust will pay to you, and you will accept as full payment
therefor, a fee at the annual rate of up to .25 of 1% of the average daily net
asset value of the Service Shares of each Fund owned of record or beneficially
by Clients from time to time for whom you are the dealer of record or holder of
record or with whom you have a servicing relationship (the "Clients' Service
Shares"), which fee will be computed daily and payable monthly. For purposes of
determining the fees payable under this Section 5, the average daily net asset
value of the Clients' Service Shares will be computed in the manner specified in
the Trust's registration statement (as the same is in effect from time to time)
in connection with the computation of the net asset value of Service Shares for
purposes of purchases and redemptions. By your written acceptance of this
Agreement, you agree to and do waive such portion of the fee payable under this
Section 5 as is necessary to assure that the amount of such fee together with
any other expenses of the Funds which are required to be accrued on any day with
respect to your Clients does not exceed the income to be accrued to your
Clients' Service Shares on that day. The fee rate stated above may be
prospectively increased or decreased by the Trust, in its sole discretion, at
any time upon notice to you. Further, the Trust may, in its discretion and
without notice, suspend or withdraw the sale of Service Shares, including the
sale of such Service Shares to you for the account of any Client or Clients.
Section 6. Any person authorized to direct the disposition of monies paid
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or payable by the Trust pursuant to this Agreement will provide to the Trust's
Board of Trustees, and the Trustees will review, at least quarterly, a written
report of the amounts so expended and the purposes for which such expenditures
were made. In addition, you will furnish the Trust or its designees with such
information as the Trust or they may reasonably request (including, without
limitation, periodic certifications confirming the provision to Clients of the
services described herein), and will otherwise cooperate with the Trust and its
designees (including, without limitation, any auditors designated by the Trust),
in connection with the preparation of reports to the Trust's Board of Trustees
concerning this Agreement and the monies paid or payable by the Trust pursuant
hereto, as well as any other reports or filings that may be required by law.
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Section 7. The Trust may enter into other similar Servicing Agreements
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with any other person or persons without your consent.
Section 8. By your written acceptance of this Agreement, you represent,
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warrant and agree that: (i) in no event will any of the services provided by
you hereunder be primarily intended to result in the sale of any Service Shares
issued by the Trust; (ii) the compensation payable to you hereunder, together
with any other compensation you receive from Clients for services contemplated
by this Agreement, will not be excessive or unreasonable under the laws and
instruments governing your relationships with Clients; and (iii) in the event an
issue pertaining to the Trust's Shareholder Administrative Services Plan for
Service Shares is submitted for shareholder approval, you will vote any shares
held for your own account in the same proportion as the vote of those shares
held for your Client's accounts.
Section 9. This Agreement will become effective on the date a fully
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executed copy of this Agreement is received by the Trust or its designee. Unless
sooner terminated, this Agreement will continue until December 1, 2001, and
thereafter will continue automatically for successive annual periods ending on
December 1, provided such continuance is specifically approved at least annually
by the Trust in the manner described in Section 12 hereof. This Agreement is
terminable, without penalty, at any time by the Trust (which termination may be
by vote of a majority of the Trust's Disinterested Trustees as defined in
Section 12 hereof) or by you upon notice to the Trust.
Section 10. All notices and other communications to either you or the Trust
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will be duly given if mailed, telegraphed, telexed or transmitted by similar
telecommunications device to the appropriate address shown below.
Section 11. This Agreement will be construed in accordance with the laws of
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the State of Delaware and is non-assignable by the parties hereto.
Section 12. This Agreement has been approved by vote of a majority of (i)
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the Trust's Board of Trustees and (ii) those Trustees who are not "interested
persons" (as defined in the Investment Company Act of 1940, as amended) of the
Trust and have no direct or indirect financial interest in the operation of the
Shareholder Administrative Services Plan adopted by the Trust regarding the
provision of support services to the record or beneficial owners of Service
Shares or in any agreements related thereto ("Disinterested Trustees"), cast in
person at a meeting called for the purpose of voting on such approval.
Section 13. The Trust Instrument establishing the Trust dated February 7,
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1994 a copy of which is on file in the office of the Secretary of the State of
Delaware, provides that the term "Trustees of The Commerce Funds" refers to the
individual Trustees in their capacity as Trustees under the Trust Instrument and
no Trustee, when acting in such capacity, shall be personally
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liable to any person other than the Trust or a beneficial owner for any act,
omission or obligation of the Trust or any Trustee. All persons extending credit
to, contracting with or having any claim against the Trust or the Trustees may
satisfy or enforce any debt, liability, obligation or expense incurred,
contracted for or otherwise existing with respect to the Trust from the assets
of the Trust only; and neither the shareholders nor Trustees nor any of their
agents, whether past, present or future, shall be personally liable for any
claim against the Trust or its Trustees.
If you agree to be legally bound by the provisions of this Agreement,
please sign a copy of this letter where indicated below and promptly return it
to the Trust, c/o Goldman, Sachs & Co., 32 Old Slip, New York, New York 10005.
Very truly yours,
THE COMMERCE FUNDS
Date: ________________________________ By:____________________________
Authorized Officer
Accepted and Agreed to:
[Name and Address of Service
Organization]
Date: ________________________________ By:____________________________
Authorized Officer
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APPENDIX A
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Please check the appropriate boxes to indicate the Funds of The Commerce
Funds for which you wish to act as a Service Organization with respect to
Service Shares.
[_] Short-Term Government Fund
[_] Bond Fund
[_] Balanced Fund
[_] Growth Fund
[_] MidCap Growth Fund
[_] International Equity Fund
[_] Value Fund
[_] National Tax-Free Intermediate Bond Fund
[_] Missouri Tax-Free Intermediate Bond Fund
[_] Core Equity Fund
[_] Kansas Tax-Free Intermediate Bond Fund
