Exhibit (h)(21)
Xxxxxxx Xxxxx Trust Service Agreement
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Date:
Name
RE: Xxxxxxx Sachs Trust (the "Trust")
Ladies and Gentlemen:
This Agreement is entered into by the financial institution or service provider
executing this Agreement (the "Service Organization") and Xxxxxxx Xxxxx Trust
(the "Trust"), 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000. The Trust is an
open-end management investment company that includes the Xxxxxxx Sachs Financial
Square Funds, Xxxxxxx Xxxxx--Institutional Liquid Assets Portfolios, Xxxxxxx
Sachs Fixed Income Funds, Xxxxxxx Xxxxx Domestic Equity Funds, Xxxxxxx Sachs
International Equity Funds and Xxxxxxx Xxxxx Asset Allocation Portfolios (such
Funds and Portfolios now or hereafter offered by the Trust are individually
referred to herein as a "Fund" and, collectively, as the "Funds"). Shares or
units of beneficial interest (the "Shares") of each Fund may be divided into
separate classes, including the Select Class, the Preferred Class, the
Administration Class, the Service Class and the Cash Management Class
(individually referred to herein as a "Class" and, collectively, the "Classes").
The Classes currently offered by the Funds are listed on Schedule A hereto.
You are willing to perform, and the Trust wishes to compensate you for
performing, certain support services with respect to your customers investing in
the Classes of the Funds that you have selected on Schedule A attached hereto
(the "Services"). Accordingly, the Service Organization and the Trust agree as
follows:
1. Agreement to Provide Services. The Service Organization shall act
directly or through an agent as nominee and record holder of Shares of one or
more of the Classes for its customers, who are or may become the beneficial
owners of such Shares (the "Customers").
With respect to Customers holding Shares of the Select Class, the Trust
hereby engages the Service Organization, and the Service Organization hereby
agrees, to perform the following Services: (a) act directly or through an agent
as record holder and nominee of Shares of such Class beneficially owned by the
Customers; (b) establish and maintain, or assist in establishing and
maintaining, individual accounts and records with respect to Shares of such
Class owned by each Customer; and (c) receive and transmit, or assist in
receiving and transmitting, funds representing the purchase price or redemption
proceeds of such Shares.
With respect to Customers holding Shares of the Preferred Class, the Trust
hereby engages the Service Organization, and the Service Organization hereby
agrees, to perform the following Services: (a) act directly or through an agent
as record holder and nominee of Shares of such Class beneficially owned by the
Customers; (b) establish and maintain, or assist in establishing and
maintaining, individual accounts and records with respect to Shares of such
Class owned by each Customer; (c) process or assist in processing confirmations
concerning Customer orders to purchase, redeem and exchange such Shares; and (d)
receive and transmit, or assist in receiving and transmitting, funds
representing the purchase price or redemption proceeds of such Shares.
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With respect to Customers holding Shares of the Administration Class, the
Trust hereby engages the Service Organization, and the Service Organization
hereby agrees, to perform the Services outlined in clauses (a) through (d)
above, in addition to the following Services: (d) process or assist in
processing confirmations concerning Customer orders to purchase, redeem and
exchange Shares promptly and in accordance with the then effective prospectus
for Shares of such Class; and (e) processing dividend payments on behalf of
Customers; and (f) performing other related services which do not constitute
"personal and account maintenance services" within the meaning of the National
Association of Securities Dealers, Inc.'s Conduct Rules.
With respect to Customers holding Shares of the Service Class and Cash
Management Class, the Trust hereby engages the Service Organization, and the
Service Organization hereby agrees, to perform the following Services:
(a) Personal and account maintenance services, including: (i) providing
facilities to answer inquiries and respond to correspondence with Customers and
other investors about the status of their accounts or about other aspects of the
Trust or the applicable Portfolio; (ii) acting as liaison between Customers and
the Trust, including obtaining information from the Trust and assisting the
Trust in correcting errors and resolving problems; (iii) providing such
statistical and other information as may be reasonably requested by the Trust or
necessary for the Trust to comply with applicable federal or state law; (iv)
responding to investor requests for prospectuses; (v) displaying and making
prospectuses available on the Service Organization's premises; and (vi)
assisting Customers in completing application forms, selecting dividend and
other account options and opening custody accounts with the Service
Organization.
(b) Shareholder administration services, including: (i) acting or arranging
for another party to act, as recordholder and nominee of all units of the
applicable Class beneficially owned by Customers; (ii) establishing and
maintaining individual accounts and records with respect to units of the
applicable Class owned by each Customer; (iii) processing confirmations
concerning Customer orders to purchase, redeem and exchange units of the
applicable Class; (iv) receiving and transmitting funds representing the
purchase price or redemption proceeds of such units of the applicable Class; (v)
processing dividend payments on behalf of Customers; and (vi) performing other
related services which do not constitute "any activity which is primarily
intended to result in the sale of shares" within the meaning of Rule 12b-1 under
the Investment Company Act of 1940, as amended (the "1940 Act") or "personal and
account maintenance services" within the meaning of the National Association of
Securities Dealers, Inc.'s Conduct Rules.
2. Expenses of the Service Organization. The Service Organization shall
furnish such office space, equipment, facilities and personnel as is necessary
to perform its duties hereunder. The Service Organization shall bear all costs
incurred by it in performing such duties.
3. Fees Payable to the Service Organization. For the Services provided and
the expenses incurred by the Service Organization hereunder, the Trust on behalf
of the Fund(s) will pay to the Service Organization a monthly fee equal on an
annual basis to the percentage specified on Schedule A of the average daily net
asset value of the Shares of the Select Class, the Preferred Class, the
Administration Class, the Service Class and the Cash Management Class, of such
Funds of the Trust which are owned beneficially by Customers through the Service
Organization during such period. However, with respect to the XXX Portfolios and
the Financial Square Funds, if the total fees to be accrued by any Fund on any
day with respect to such Shares of the Fund exceed the net income, exclusive of
such fees, to be accrued by the Fund on such Shares, the fee payable by the Fund
to the Service Organization on such day will be reduced by an amount equal to
the Service Organization's proportionate share of such excess with respect to
such Class,
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in order to avoid adversely affecting the net asset value per Share of that
Class.
4. Representations and Warranties. The Service Organization hereby
represents, warrants and covenants to the Trust:
(a)(i) That it is an investment adviser as defined under Section
202(a)(11) of the Investment Advisers Act of 1940, as amended
(the "Advisers Act"); it is registered and in good standing, and
will during the term of this Agreement remain in good standing,
as an investment adviser with the United States Securities and
Exchange Commission (the "Commission") or with the securities
commission of any state, territory or possession of the United
States, and is in full compliance with the rules, regulations and
policies of the aforesaid commissions, particularly those rules,
regulations and policies governing capital requirements,
financial reporting, bonding, fiduciary standards and supervisory
concerns; and its entering into and performing its obligations
under this Agreement does not and will not violate any laws,
rules or regulations (including Rule 206(4)-2 under the Advisers
Act and rules or regulations of any self-regulatory
organization); or
(ii) That it is a broker or dealer as defined in Section 3(a)(4) or
3(a)(5) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); that it is registered and in good standing, and
will during the term of this Agreement remain in good standing
(A) as a broker-dealer with the Commission pursuant to Section 15
of the Exchange Act and with the securities commission of any
state, territory or possession of the United States and (B) as a
member of the NASD and/or any stock exchange or other
self-regulatory organization in which the Service Organization's
membership is necessary for the conduct of its business under
this Agreement, and is in full compliance with the rules,
regulations and policies of the aforesaid commissions and
organizations, particularly those rules, regulations and policies
governing capital requirements, financial reporting, bonding,
fiduciary standards and supervisory concerns; and its entering
into and performing its obligations under this Agreement does not
and will not violate any laws, rules or regulations (including
the net capital and customer protection rules of the Commission
and the rules or regulations of the NASD or any self-regulatory
organization or any so-called "restriction" letter with the
NASD); or
(iii) That it is a depository institution (A) organized, chartered or
holding an authorization certificate under the laws of a state or
of the United States, which authorizes the Service Organization
to receive deposits, including a savings, share, certificate or
deposit account, and which is regulated, supervised and examined
for the protection of depositors by an official or agency of a
state or the United States and is insured by the Federal Deposit
Insurance Corporation, the Federal Savings and Loan Insurance
Corporation or the National Credit Union Share Insurance Fund, or
(B) is a trust company or other institution that is authorized by
federal or state law to exercise fiduciary powers of a type a
national bank is permitted to exercise under the authority of the
United States Office of the Comptroller of the Currency, and is
regulated, supervised and examined by an official or agency of a
state or the United States; and its entering into and performing
its obligations under this Agreement does not and will not
violate any laws, rules or regulations or require its
registration as a broker or dealer under federal or state law.
(b) That it is a corporation, association or partnership duly organized,
validly existing, and in good standing
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under the laws of the state of its organization;
(c) That entering into and performing its obligations under this Agreement
does not and will not violate (i) its charter or by-laws; or (ii) any
agreements to which it is a party;
(d) If the Service Organization is a depository institution or a broker or
dealer, in processing Customer orders to purchase, redeem and exchange
Shares, (i) it shall act solely for the account of its Customer; (ii)
the Customer will have full beneficial ownership of any Shares
purchased upon its authorization and order; and (iii) under no
circumstances will any transactions be for the account of the Service
Organization. Under no circumstances will the Service Organization
make any oral or written representations to the contrary;
(e) With respect to the purchase, redemption or exchange of Fund Shares
for Customer accounts with respect to which the Service Organization
is a fiduciary under state or federal trust or comparable fiduciary
requirements, or, in the case of any such accounts which are subject
to the Employee Retirement Income Security Act of 1974, as amended,
the Service Organization is a fiduciary or party in interest, the
Service Organization represents that the purchase, redemption or
exchange of such Shares, and the Service Organization's receipt of the
relevant fee described in Section 4 hereof, is permissible under all
such applicable requirements and complies with any restrictions,
limitations or procedures under such requirements;
(f) It will keep confidential any information acquired as a result of this
Agreement regarding the business and affairs of the Trust and Xxxxxxx,
Sachs & Co., which requirement shall survive the term of this
Agreement; and
(g) It will not, without written consent of the Trust in each instance,
use in advertising, publicity, administering and servicing the Funds
or otherwise the name of the Trust, Xxxxxxx, Xxxxx & Co., or any of
their affiliates nor any trade name, trademark, trade device, service
xxxx, symbol or any abbreviation, contraction or simulation thereof
(the "Xxxx") of the Trust, Xxxxxxx, Sachs & Co. or their affiliates.
Service Organization acknowledges that Xxxxxxx Xxxxx owns all right,
title and interest in and to the Xxxx and the registration thereof.
Upon termination of this Agreement, the Service Organization or its
successor, (to the extent and as soon as it lawfully can), will cease
the use of the Xxxx.
5. Performance of Duties. In performing its duties hereunder, the Service
Organization will act in conformity with the Trust's instructions, the terms of
its Customer agreement, the then effective prospectuses and statements of
additional information for the relevant Classes of Funds selected on Schedule A,
the 1940 Act and all other applicable federal and state laws, regulations and
rulings and the constitution, by-laws and rules of any applicable
self-regulatory organization. The Service Organization will assume sole
responsibility for its compliance with applicable federal and state laws and
regulations, and shall rely exclusively upon its own determination, or that of
its legal advisers, that the performance of its duties hereunder complies with
such laws and regulations. Under no circumstances shall the Trust, Xxxxxxx,
Sachs & Co. or any of their affiliates be held responsible or liable in any
respect for any statements or representations made by them or their legal
advisers to the Service Organization or any Customer of the Service Organization
concerning the applicability of any federal or state laws or regulations to the
activities described herein. The Service Organization will perform its duties
hereunder in a manner consistent with the
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customs and practices of other institutions that provide similar services.
6. Responsibilities of the Service Organization. The Service Organization
agrees that neither the Trust nor its agents shall have any responsibility or
liability to review any purchase, exchange or redemption request which is
presented by the Service Organization (A) to determine whether such request is
genuine or authorized by the Customer of the Service Organization; or (B) to
determine the suitability of the selected Class or Fund for such Customer. The
Trust and its agents shall be entitled to rely conclusively on any purchase,
exchange or redemption request communicated to it by the Service Organization,
and shall have no liability whatsoever for any losses, claims or damages to or
against the Service Organization or any Customer resulting from a failure of the
Service Organization to transmit any such request, or from any errors contained
in any request. Any such failure or error shall be the responsibility of the
Service Organization. In addition, the Service Organization shall have exclusive
responsibility for the operation of any cash sweep or other investment or cash
management program established by it for its Customers, including the provision
of all electronic data processing facilities as are necessary for any such
program and the proper transmission of appropriate instructions and funds to the
Trust in connection therewith. The Trust and the Service Organization agree that
the procedures for the purchase, exchange and redemption of Shares, including
all relevant time and notification requirements, specified in the then-effective
prospectuses of the relevant Class, shall govern the purchase, exchange and
redemption of Shares for the accounts of the Service Organization's Customers
under the Agreement, including the purchase, exchange and redemption of Shares
pursuant to any such program.
7. Termination. This Agreement shall continue in effect until June 30 of
the year following the date first set forth above, and shall continue in effect
from year to year thereafter only if it is approved annually by a vote of a
majority of the Trustees of the Trust, including a majority of those Trustees
who are not interested persons of the Trust and who have no direct or indirect
financial interest in the operation of the relevant Select Plan, Preferred
Administration Plan, Administration Plan, Service and Shareholder Administration
Plans and/or Distribution Plans, this Agreement or any related agreements (the
"Independent Trustees"), cast in person at a meeting called for the purpose of
voting on this Agreement. This Agreement may be terminated at any time, on not
less than 60 days' notice to the Service Organization and without the payment of
any penalty, by vote of a majority of the Independent Trustees or, with respect
to any Class of any Fund, by vote of a majority of the outstanding voting
securities of that Class of the Fund. This Agreement may also be terminated by
the Service Organization at any time on 60 days' notice to the Trust and will
terminate automatically in the event of its assignment. All material amendments
to this Agreement must be in writing and must be approved by the Independent
Trustees in the manner described above for continuing this Agreement. The terms
"majority of the outstanding voting securities" and "assignment" shall have the
meanings given to them in the 1940 Act. Any notice furnished hereunder shall be
in writing and shall be mailed or delivered to the other party at its address
set forth above.
8. Indemnification. The Trust agrees to indemnify the Service Organization
and each person who controls (as defined in Section 2(a)(9) of the 0000 Xxx) the
Service Organization from and against any losses, claims, damages, expenses
(including reasonable fees and expenses of counsel) or liabilities ("Damages")
to which the Service Organization or such person may become subject in so far as
such Damages arise out of the failure of the Trust or its employees or agents to
comply with the Trust's obligations under this Agreement or any other agreement
between the Trust and the Service Organization relating to the performance of
Services hereunder (a "Covered Agreement"). The Service Organization agrees to
indemnify the Trust, the Funds, their agents and each person who controls (as
defined in Section 2(a)(9) of the 0000 Xxx) any of them from and against any
Damages to which any of them may become subject in so far as such Damages arise
out of the purchase, redemption, transfer or registration of Shares by the
Service Organization's Customers, any request related thereto communicated by
the Service Organization or its employees or
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agents, or the failure of the Service Organization or its employees, agents or
Customers to comply with the Service Organization's obligations under a Covered
Agreement. Notwithstanding the foregoing, neither the Trust nor the Service
Organization shall be entitled to be indemnified for Damages arising out of its
or its agent's or employee's gross negligence. The foregoing indemnity
agreements shall be in addition to any liability the Trust or the Service
Organization may otherwise have, and shall survive the termination of this
Agreement.
9. No Association or Agency. The Service Organization shall be deemed to be
an independent contractor and not an agent of the Trust for all purposes
hereunder and shall have no authority to act for or represent the Trust. In
addition, no officer or employee of the Service Organization shall be deemed to
be an employee or agent of the Trust or Xxxxxxx Xxxxx Asset Management ("GSAM"),
nor will be subject, in any respect, to the supervision of GSAM or any affiliate
thereof.
10. Obligations Not Binding on Trustees. The obligations of the Trust under
this Agreement are not binding upon any of the Trustees, officers or
shareholders of the Trust individually but are binding only upon the Trust and
its assets. No Class or Fund of the Trust shall be liable for the obligations of
any other Class or Fund hereunder.
11. Applicable Law. If any provision of this Agreement shall be held or
made invalid by a decision in a judicial or administrative proceeding, statute,
rule or otherwise, the enforceability of the remainder of this Agreement will
not be impaired thereby. This Agreement shall be governed by the laws of the
State of New York (except with respect to Section 11, which will be governed by
the laws of the State of Delaware) and shall be binding upon and inure to the
benefit of the parties hereto and their respective successors.
Very truly yours,
XXXXXXX SACHS TRUST
By:
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[Authorized Officer]
Accepted and agreed to as of the date first above written.
[Name]
By:
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[Authorized Officer]
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SCHEDULE A
XXXXXXX XXXXX TRUST FUNDS
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Please indicate (|X|) the appropriate Classes of Funds for which this Agreement
applies:
XXX Portfolios:
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[ ] Administration Class: 0.15%
[ ] Service Class: 0.25% NASD personal and
account maintenance, plus 0.15% Non-NASD Shareholder
Administration Fee
[ ] Cash Management Class 0.25% NASD personal and
account maintenance, plus 0.25% Non-NASD Shareholder
Administration Fee
Financial Square Funds:
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[ ] Select Class: 0.03%
[ ] Preferred Class: 0.10%
[ ] Administration Class: 0.25%
[ ] Service Class: 0.25% NASD personal and
account maintenance, plus 0.25% Non-NASD Shareholder
Administration Fee
Fixed Income Funds:
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[ ] Administration Class: 0.25%*
[ ] Service Class: 0.25% NASD personal and
account maintenance, plus 0.25% Non-NASD Shareholder
Administration Fee
Domestic and International Equity Funds:
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[ ] Service Class: 0.25% NASD personal and
account maintenance, plus 0.25% Non-NASD Shareholder
Administration Fee
Asset Allocation Portfolios:
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[ ] Service Class: 0.25% NASD personal and
account maintenance, plus 0.25% Non-NASD Shareholder
Administration Fee
* Xxxxxxx Xxxxx Enhanced Income Fund only.
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