XXXXXX XXXXXXX XXXX XXXXXX DISTRIBUTORS INC.
OMNIBUS SELECTED DEALER AGREEMENT, INC.
Dear Sir or Madam:
We, Xxxxxx Xxxxxxx Xxxx Xxxxxx Distributors Inc. (the "Distributor") have
a distribution agreement (the "Distribution Agreement") with each of the
open-end investment companies listed in Schedule A attached hereto (each, a
"Fund"), pursuant to which we act as the Distributor for the sale of each
Fund's shares of common stock or beneficial interest, as the case may be,
(the "Shares"). Under the Distribution Agreement, we have the right to
distribute Shares for resale.
Each Fund is an open-end management investment company registered under
the Investment Company Act of 1940, as amended, and the Shares being offered
to the public are registered under the Securities Act of 1933, as amended
(the "Securities Act"). You have received a copy of the Distribution
Agreements between us and each Fund and reference is made herein to certain
provisions of such Distribution Agreements. The terms used herein, including
"Prospectus" and "Registration Statement" of each Fund and "Selected Dealer"
shall have the same meaning in this Agreement as in the Distribution
Agreements. As principal, we offer to sell Shares to your customers, upon
the following terms and conditions:
1. In all sales of Shares to the public you shall act on behalf of your
customers which for purposes of this Agreement are limited to customers for
which Nations Banc Investments, Inc. is the Introducing Broker, and in no
transaction shall you have any authority to act as agent for a Fund, for us
or for any Selected Dealer.
2. Orders received from you will be accepted through us or on our behalf
only at the public offering price applicable to each order, as set forth in
the applicable current Prospectus. The procedure relating to the handling of
orders shall be subject to written instructions which we or the applicable
Fund shall forward from time to time to you. All orders are subject to
acceptance or rejection by us or a Fund in the sole discretion of either.
The Distributor of the Fund will promptly notify you in writing of any such
rejection.
3. You shall not place orders for any Shares unless you have already
received purchase orders for such Shares at the applicable public offering
price and subject to the terms hereof and of the applicable Distribution
Agreement and Prospectus. In connection herewith, you agree to abide by the
terms of the applicable Distribution Agreement and Prospectus to the extent
required hereunder. Furthermore, you agree that (i) you will offer or
sell any of the Shares only under circumstances that will result in
compliance with all applicable Federal and state securities laws; (ii) you
will not furnish or cause to be furnished to any person any information
relating to the Shares which is inconsistent in any respect with the
information contained in the applicable Prospectus (as then amended or
supplemented) or cause any advertisements to be published by radio or
television or in any newspaper or posted in any public place or use any sales
promotional material without our consent and the consent of the applicable
Fund; and (iii) you will endeavor to obtain proxies from purchasers of
Shares. You also agree that you will be liable to Distributor for payment of
the purchase price for Shares purchased by customers and that you shall make
payment for such shares when due.
4. We will compensate you for sales of shares of the Funds and personal
services to Fund shareholders by paying you a sales charge and/or other
commission (which may be in the form of a gross sales credit and/or an
annual residual commission) and/or a service fee, each as separately agreed
by you and us with respect to each Fund.
5. If any Shares sold to your customers under the terms of this Agreement
are repurchased by us for the account of a Fund or are tendered for
redemption within seven business days after the date of the confirmation of
the original purchase by you, it is agreed that you shall forfeit your right
to, and refund to us, any commission received by you with respect to such
Shares.
6. No person is authorized to make any representations concerning the
Shares or the Funds except those contained in the current applicable
Prospectus and in such printed information subsequently issued by us or a
Fund as information supplemental to such Prospectus. In selling Shares, you
shall rely solely on the representations contained in the applicable
Prospectus and supplemental information mentioned above. Any printed
information which we furnish you other than the Prospectus and the Funds'
periodic reports and
proxy solicitation materials are our sole responsibility and not the
responsibility of the Funds, and you agree that the Funds shall have no
liability or responsibility to you in these respects unless expressly assumed
in connection therewith.
7. You are hereby authorized (i) to place orders directly with a Fund or
its agent for shares of the Fund to be sold by us subject to the applicable
terms and conditions governing the placement of orders for the purchase of
Fund Shares, as set forth in the Distribution Agreement, and (ii) to tender
Shares directly to the Fund or its agent for redemption subject to the
applicable terms and conditions set forth in the Distribution Agreement. We
will provide you with copies of any updates to the Distribution Agreement.
8. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Shares entirely. Each party hereto has the
right to cancel this agreement with respect to one or more Funds upon fifteen
days prior written notice to the other party.
9. I. You shall indemnify and hold us harmless from and against any and
all losses, costs, (including reasonable attorney's fees) claims, damages and
liabilities which arise as a result of action taken pursuant to instructions
from you, or on your behalf to: (a)(i) place orders for Shares of a Fund with
the Fund's transfer agent or direct the transfer agent to receive
instructions for the order of Shares, and (ii) accept monies or direct that
the transfer agent accept monies as payment for the order of such Shares, all
as contemplated by and in accordance with Section 3 of the applicable
Distribution Agreement; (b)(i) place orders for the redemption of Shares of a
Fund with the Fund's transfer agent or direct the transfer agent to receive
instruction for the redemption of such Shares and (ii) to pay redemption
proceeds or to direct that the transfer agent pay redemption proceeds in
connection with orders for the redemption of Shares, all as contemplated by
and in accordance with Section 4 of the applicable Distribution Agreement;
Distributor agrees to indemnify and hold harmless you and your affiliates,
officers, directors, control persons and employees from and against any and
all losses, costs (including reasonable attorney's fees), claims, damages and
liabilities which arise as a result of Distributor's failure to fulfill its
obligations hereunder and from any alleged inaccuracy, omission or
misrepresentation contained in any prospectus or any advertising, or sales
literature prepared by Distributor or the Fund provided, however, that in no
case, (i) is this indemnity in favor of you or us and any of other party's
such controlling persons to be deemed to protect us or any such controlling
persons against any liability to which we or any such controlling persons
would otherwise be subject by reason of willful misfeasance, bad faith or
gross negligence in the performance of our duties or by reason of reckless
disregard of our obligations and duties under this Agreement or the
applicable Distribution Agreement; or (ii) are you to be liable under the
indemnity agreement contained in this paragraph with respect to any claim
made against us or any such controlling persons, unless we or any such
controlling persons, as the case may be, shall have notified you in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon us
or such controlling persons (or after we or such controlling persons shall
have received notice of such service on any designated agent),
notwithstanding the failure to notify you of any such claim shall not relieve
you from any liability which you may have to the person against whom such
action is brought otherwise than on account of the indemnity agreement
contained in this paragraph.
II. You will be entitled to participate at your own expense in the
defense, or, if you so elect, to assume the defense, of any suit brought to
enforce any such liability, but if you elect to assume the defense, such
defense shall be conducted by counsel chosen by you and reasonably
satisfactory to us or such controlling person or persons, defendant or
defendants in the suit. In the event you elect to assume the defense of any
such suit and retain such counsel, we or such controlling person or persons,
defendant or defendants in the suit, shall bear the fees and expenses of any
additional counsel retained by them, but, in case you do not elect to assume
the defense of any such suit, you will reimburse us or such controlling
person or persons, defendant or defendants in the suit, for the reasonable
fees and expenses of any counsel retained by them. Each party shall promptly
notify the other party to this Agreement of the commencement of any
litigation or proceedings against it or any of its officers or directors in
connection with the issuance or sale of the Shares pursuant to this Agreement.
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III. If the indemnification provided for in this Section 9 is unavailable
or insufficient to hold harmless the Distributor, as provided above in
respect of any losses, claims, damages, liabilities or expenses (or actions
in respect thereof) referred to herein, then you shall contribute to the
amount paid or payable by us as a result of such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by you on the one
hand and us on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then you shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not
only such relative benefits but also your relative fault on the one hand and
our relative fault on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses (or actions in respect thereof), as well as any other relevant
equitable considerations. You and we agree that it would not be just and
equitable if contribution were determined by pro rata allocation or by any
other method of allocation which does not take into account the equitable
considerations referred to above. The amount paid or payable by us as a
result of the losses, claims, damages, liabilities or expenses (or actions in
respect thereof) referred to above shall be deemed to include any legal or
other expenses reasonably incurred by us in connection with investigating or
defending any such claim. Notwithstanding the provisions of this subsection
(III), you shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares distributed by you to the
public were offered to the public exceeds the amount of any damages which you
have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
IV. Notwithstanding the provisions of subsections (I), (II) and (III), we
shall indemnify, defend and hold harmless you and your officers, directors,
employees, affiliates, agents, successors and assigns from and against any
and all claims and all related losses, expenses, damages, cost and
liabilities including reasonable attorneys' fees and expenses incurred in
investigation or defense, arising out of or related to any breach of any
representation, warranty or covenant by us contained in Section 15 of this
Agreement.
11. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the distribution and
redemption of Shares. Neither party shall be under any liability to the
other party except for lack of good faith and for obligations expressly
assumed herein. Nothing contained in this paragraph is intended to operate
as, and the provisions of this paragraph shall not in any way whatsoever
constitute, a waiver by you of compliance with any provision of the
Securities Act, or of the rules and regulations of the Securities and
Exchange Commission issued thereunder.
12. Each party represents that it is a member in good standing of the
National Association of Securities Dealers, Inc. and, with respect to any
sales in the United States, each party hereby agrees to abide by the Rules of
Fair Practice of such Association relating to the performance of the
obligations hereunder.
13. We will inform you in writing as to the states in which we believe
the Shares have been qualified for sale under, or are exempt from the
requirements of, the respective securities laws of such states, but we assume
no responsibility or obligation as to your right to sell Shares in any
jurisdiction.
14. Notwithstanding any other provision of this Agreement to the
contrary, we represent and warrant that the names and addresses of your
customers (or customers of your affiliates) which have or which may come to
our attention in connection with this Agreement are confidential and are your
exclusive property and shall not be utilized by us except in connection with
the functions performed by us in connection with this Agreement.
Notwithstanding the foregoing, should a customer request, that we or an
organization affiliated with us, provide services to such customer, we or
such affiliated organization shall in no way violate this representation and
warranty, nor be considered in breach of this Agreement.
15. We represent, warrant, and covenant to you that the marketing
materials, any communications distributed to the public and training
materials designed by us or our agents relating to the product sold under
this Agreement are true and accurate and do not omit to state a fact
necessary to make the
3
information contained therein not misleading and comply with applicable
federal and state laws. We further represent, warrant, and covenant to you
that the performance by us of our obligations under this Agreement in no way
constitutes an infringement on or other violation of copyright, trade secret,
trademark, proprietary information or non-disclosure rights of any other
party.
16. We shall maintain a contingency disaster recovery plan, and, in the
event you are so required by any regulatory or governmental agency, we shall
make such plan available to you for inspection at your office upon reasonable
advance notice by you. Each party agrees that it will at all times conduct
its activities under this Agreement in an equitable, legal and professional
manner.
17. We understand that the performance of your and our obligations under
this Agreement is subject to examination during business hours by your
authorized representatives and auditors and by federal and state regulatory
agencies, and we agree that upon being given reasonable notice and proper
identification we shall submit or furnish at a reasonable time and place to
any such representative or regulatory agency reports, information, or other
data relating to this Agreement as may reasonably be required or requested by
you. We shall maintain and make available to you upon reasonable notice all
material, data, files, and records relating to this Agreement for a period of
not less than three years after the termination of this Agreement.
18. The sales, advertising and promotional materials designed by either
party or its agents relating to products sold under this Agreement shall
comply with applicable federal and state laws. Each party agrees that the
sales, advertising and promotional materials shall be made available to the
other party prior to distribution to your employees or customers.
19. Any controversy or claim between or among the parties hereto arising
out of or relating to this Agreement, including any claim based on or arising
from an alleged tort, shall be determined by binding arbitration in
accordance with the rules of the National Association of Securities Dealers,
Inc. Judgment upon any arbitration award may be entered in any court having
jurisdiction. Any party to this Agreement may bring an action, including a
summary or expedited proceeding, to compel arbitration of any controversy or
claim to which this Agreement applies in any court having jurisdiction over
such action.
20. All notices or other communications under this Agreement shall be in
writing and given as follows:
If to us: Xxxxxx Xxxxxxx Xxxx Xxxxxx Distributors
Inc.
Attn: Xxxxx Xxxx,
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to you: National Financial
Services Corporation
Attn: [Illegible]
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX
or such other address as the parties may hereafter specify in writing. Each
such notice to any party shall be either hand-delivered or transmitted,
postage prepaid, by registered or certified United States mail with return
receipt requested, and shall be deemed effective only upon receipt.
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21. This Agreement shall become effective as of the date of your
acceptance hereof, provided that you return to us promptly a signed and dated
copy.
XXXXXX XXXXXXX XXXX XXXXXX DISTRIBUTORS INC.
By /s/ [Illegible]
-----------------------------------------
(Authorized Signature)
Please return one signed copy
of this agreement to:
Xxxxxx Xxxxxxx Xxxx Xxxxxx Distributors Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Accepted:
Firm Name: National Financial Services Corp.
---------------------------------------
By: /s/ [Illegible]
----------------------------------------------
Address: 000 Xxxxxxx Xxxxxx
-----------------------------------------
New York, New York
-----------------------------------------
Date: October 17, 1998
--------------------------------------------
5
SCHEDULE A
Xxxx Xxxxxx Global Asset Allocation Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx American Value Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Balanced Growth Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Balanced Income Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx California Tax-Free Income Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital Appreciation Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital Growth Securities
Xxxxxx Xxxxxxx Xxxx Xxxxxx Competitive Edge Fund, "Best Ideas" Portfolio
Xxxxxx Xxxxxxx Xxxx Xxxxxx Convertible Securities Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Developing Growth Securities Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Diversified Income Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Dividend Growth Securities Inc.
Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx European Growth Fund Inc.
Xxxxxx Xxxxxxx Xxxx Xxxxxx Federal Securities Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Financial Services Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Fund of Funds
Xxxxxx Xxxxxxx Xxxx Xxxxxx Global Dividend Growth Securities
Xxxxxx Xxxxxxx Xxxx Xxxxxx Global Short-Term Income Fund Inc.
Xxxxxx Xxxxxxx Xxxx Xxxxxx Global Utilities Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Growth Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Hawaii Municipal Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Health Sciences Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx High Yield Securities Inc.
Xxxxxx Xxxxxxx Xxxx Xxxxxx Income Builder Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Information Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Intermediate Income Securities Inc.
Xxxxxx Xxxxxxx Xxxx Xxxxxx International SmallCap Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Japan Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Limited Term Municipal Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Market Leader Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Mid-Cap Dividend Growth Securities
Xxxxxx Xxxxxxx Xxxx Xxxxxx Mid-Cap Growth Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Multi-State Municipal Series Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Natural Resource Development Securities Inc.
Xxxxxx Xxxxxxx Xxxx Xxxxxx New York Tax-Free Income Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Pacific Growth Fund Inc.
Xxxxxx Xxxxxxx Xxxx Xxxxxx Xxxxxxxx Metals and Minerals Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx S&P 500 Index Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx S&P 500 Select Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Short-Term Bond Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Short-Term U.S. Treasury Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Special Value Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Strategist Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Tax-Exempt Securities Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx U.S. Government Securities Trust
Xxxxxx Xxxxxxx Xxxx Xxxxxx Utilities Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx Value-Added Market Series
Xxxxxx Xxxxxxx Xxxx Xxxxxx Value Fund
Xxxxxx Xxxxxxx Xxxx Xxxxxx World Wide Income Trust
A-1
