Exhibit (h)(22)
Financial Square Funds Supplemental Service Agreement
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Date
Service Organization
Address
RE: Shareholder Service Agreement for the Financial Square Funds
of Xxxxxxx Xxxxx Trust (the "Trust")
Ladies and Gentlemen:
The undersigned, Xxxxxxx Sachs Asset Management ("GSAM"), Xxx Xxx Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx, 00000, is a separate operating division of Xxxxxxx, Xxxxx &
Co., a registered investment adviser. GSAM acts as investment adviser to the
Trust, which is an open-end management investment company that includes the
Xxxxxxx Sachs Financial Square Funds (such funds now existing or hereafter
offered are individually referred to herein as a "Fund" and, collectively, the
"Funds"). Shares or units of beneficial interest ("Shares") of each Fund may be
divided into separate classes, including the FST Shares, the FST Preferred
Shares, the FST Administration Shares and the FST Service Shares (individually
referred to herein as a "Class" and, collectively, the "Classes").
You are a financial institution or service provider (the "Service Organization")
acting directly or through an agent as nominee and record holder of Shares for
your customers, who are or may become the beneficial owners of such Shares (the
"Customers"). You are willing to perform, and GSAM wishes to compensate you for
performing, certain services with respect to the Customers investing in the
Classes that you have selected on Schedule A attached hereto (the "Services").
Accordingly, the Service Organization and GSAM agree as follows:
1. Agreement to Provide Services. GSAM hereby engages the Service
Organization, and the Service Organization hereby agrees, to perform the
following Services (which will be in addition to any other services performed
pursuant to an agreement with the Funds): (a) disburse dividends and
distributions declared on the Shares of the Classes held in the name of the
Service Organization by mailing checks or crediting Customer accounts in
accordance with the election made by each Customer and issue related Customer
accounts; (b) provide, or assist GSAM in providing, periodic statements to each
Customer showing account balances and transactions during the relevant period;
(c) promptly mail, or assist GSAM in promptly mailing, to Customers reports and
proxy statements issued by the Trust; (d) handle all tax withholding and
remittances required by federal income tax laws with respect to Customer
accounts, prepare and file with the Internal Revenue Service all required
returns and statements and prepare and mail to each Customer all statements and
reports concerning dividends and distributions to shareholders that are required
by the Investment Company Act of 1940, as amended (the "1940 Act") or federal
income tax laws; (e) provide such statistical and other information as may be
reasonably requested by GSAM, including reports of sales of the Classes in each
state or other jurisdiction for purposes of complying with state securities or
"Blue Sky" laws; (f) develop and monitor appropriate program procedures to
facilitate investments of Customers in the Funds; and (g) provide consultative
services concerning appropriate and effective means of making Funds available to
Customers.
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, GSAM will pay to the Service Organization a service fee, computed
daily and payable quarterly, at the annual rate of 0.05% of the average daily
net asset value of the Shares of the relevant Class of each Fund which are owned
beneficially by Customers through the Service Organization during such period.
4. Performance of Duties. In performing its duties hereunder, the
Service Organization will act in conformity with GSAM's instructions, the terms
of its Customer agreements, the then effective prospectuses and statements of
additional information for the relevant Classes 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 laws and regulations. Under no circumstances shall
the Trust, Xxxxxxx, Xxxxx & Co., GSAM 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.
5. Representations and Warranties. The Service Organization hereby
represents, warrants and covenants to GSAM:
A. i. That it is an investment adviser as defined under Section
202(a)(11) of the Investment Advisers Act of 1940 (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
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
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 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 3 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, Xxxxx & 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, Sachs & 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, Sachs & Co. or their affiliates.
6. Responsibilities of the Service Organization. The Service Organization
agrees that neither GSAM nor any Fund nor any of their 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. GSAM, each Fund and their agents shall be entitled to rely
conclusively on any purchase, exchange or redemption request communicated to any
of them 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. GSAM
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, including the purchase,
exchange and redemption of Shares pursuant to any such program.
7. Amendments; Termination. This Agreement may be amended by a written
instrument executed by both parties and may be terminated by GSAM or the Service
Organization at any time on 60 days' written notice mailed or delivered to the
other party at its address set forth above.
8. No Association or Agency. The Service Organization shall be deemed to
be an independent contractor and not an agent of GSAM or the Trust for all
purposes hereunder and shall have no authority to act for or represent GSAM or
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 GSAM, nor will be subject,
in any respect, to the supervision of GSAM or any affiliate thereof.
9. Indemnification. GSAM 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 GSAM or its employees or agents to
comply with GSAM's obligations under this Agreement or any other agreement
between GSAM and the Service Organization relating to the performance of
Services hereunder (a "Covered Agreement"). The Service Organization agrees to
indemnify GSAM, 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 GSAM 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 GSAM or the Service Organization may otherwise have, and shall survive
the termination of this Agreement.
10. 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 and shall be binding upon and inure to the benefit of the
parties hereto and their respective successors.
Very truly yours,
XXXXXXX XXXXX ASSET MANAGEMENT, a separate
operating division of Xxxxxxx, Sachs & Co.
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]
SCHEDULE A
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Please indicate (X) the appropriate Class(es) for which this Agreement applies:
[_] FST SHARES
[_] FST PREFERRED SHARES
[_] FST ADMINISTRATION SHARES
[_] FST SERVICE SHARES
