Exhibit (h)(20)
Xxxxxxx Xxxxx Trust Service Agreement
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Date
Service Organization
Address
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 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 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; 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 Administration Class, the
Trust hereby engages the Service Organization, and the Service Organization
hereby agrees, to perform the Services outlined in clauses (a) through (c)
above, in addition to the following Services: (d) provide 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 Funds;
and (e) process and issue, or assist in processing and issuing, confirmations
concerning Customer orders to purchase, redeem and exchange Shares promptly and
in accordance with the then effective prospectus for Shares of such Class.
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 Services outlined in clauses
(a) through (e) above, in addition to the following Services: (f) respond to
investor requests for prospectuses and statements of additional information; (g)
display and make prospectuses available on the Service Organization's
premises; (h) assist Customers in completing application forms, selecting
dividend and other account options and opening custody accounts with the Service
Organization; (i) act as liaison between Customers and the Trust, including
obtaining information from the Trust, assisting the Trust in correcting errors
and resolving problems; and (j) provide 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 laws.
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. Service 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 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, 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 National Association of Securities Dealers, Inc.
(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
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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.
B. That it is a corporation, association or partnership duly organized,
validly existing, and in good standing 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 as agent upon the order, and 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 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 of the Trust, Xxxxxxx, Xxxxx & Co.
or their affiliates.
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 Investment Company Act of 1940, as amended (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
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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 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 (i) to determine whether
such request is genuine or authorized by the Customer of the Service
Organization; or (ii) 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 Preferred Administration
Plan, Administration Plan, Service Plan and/or Distribution Plan, 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 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
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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 10, 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.
[SERVICE ORGANIZATION]
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: 0.40%
[_] Cash Management Class 0.50%
Financial Square Funds:
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[_] Preferred Class: 0.10%
[_] Administration Class: 0.25%
[_] Service Class: 0.50%
Fixed Income Funds:
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[_] Administration Class: 0.25%1
[_] Service Class: 0.50%
Domestic and International Equity Funds:
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[_] Service Class: 0.50%
Asset Allocation Portfolios:
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[_] Service Class: 0.50%
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1 Not offered by all Fixed Income Funds.
