Exhibit (h)(19)
Xxxxxxx Xxxxx Trust Retail Service Agreement
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Date
Service Organization
Address
RE: Xxxxxxx Sachs Trust (the "Trust") Retail Service Agreement
Ladies and Gentlemen:
The undersigned, Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs"), 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, is the principal distributor of the shares of beneficial
interest of each Fund. Xxxxxxx Xxxxx Asset Management, a separate operating
division of Xxxxxxx Sachs, or an affiliate thereof, acts as an investment
adviser to the Trust, which is an open-end management investment company that
includes the Xxxxxxx Xxxxx Asset Allocation Portfolios, Xxxxxxx Sachs Fixed
Income Funds, Xxxxxxx Xxxxx Domestic Equity Funds and Xxxxxxx Sachs
International Equity Funds (such Funds 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 are divided
into separate classes. This Agreement relates to Class A Shares of the Funds.
You are a financial institution or other service provider (the "Service
Organization") acting on behalf of your customers who purchase, hold, exchange
and redeem Shares of the Funds (the "Customers"). You are willing to perform,
and Xxxxxxx Xxxxx wishes to compensate you for performing, certain support
services with respect to the Customers (the "Services"). Accordingly, the
Service Organization and Xxxxxxx Sachs agree as follows:
1. Agreement to Provide Services. Xxxxxxx Xxxxx hereby engages the
Service Organization, and the Service Organization hereby agrees, to perform the
following Services: (a) establish and maintain (or assist in establishing and
maintaining) individual accounts and records with respect to those Shares of the
Funds which the Service Organization directly or through an agent holds as
nominee for the benefit of Customers; (b) process Customer orders to purchase,
redeem and exchange Shares promptly and in accordance with the effective
prospectus relating to such Shares; (c) assist in receiving and transmitting
funds representing the purchase price or redemption proceeds of such Shares; (d)
provide periodic statements to each Customer showing account balances and
transactions during the relevant period; (e) disburse dividends and
distributions declared on Shares of the Funds 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 statements to Customers;
(f) promptly mail to Customers reports and proxy statements issued by the Trust;
(g) 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 (the "1940
Act") or federal income tax laws; and (h) provide such statistical and other
information as may be reasonably requested by Xxxxxxx Sachs or necessary for
Xxxxxxx Xxxxx or the Funds to comply with applicable federal or state laws,
including reports of sales of the Classes of the Funds in each state or other
jurisdiction for purposes of complying with state securities or "Blue Sky" laws.
2. Expenses of the Service Organization. The Service Organization shall
furnish such office space, equipment, facilities and personnel as may be
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,
Xxxxxxx Sachs will pay to the Service Organization a quarterly service fee
equal on an annual basis to 0.25% of the average daily net asset value of the
Shares 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 Xxxxxxx Xxxxx' instructions, the terms
of its Customer agreements, the then effective prospectuses and statements of
additional information for the Shares of each Fund, 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, any
Fund, Xxxxxxx Sachs 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 Xxxxxxx Xxxxx:
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,
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.
6. Responsibilities of the Service Organization. The Service Organization
agrees that neither Xxxxxxx Sachs nor any Fund nor any of 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. Xxxxxxx Xxxxx, each Fund and their agents shall be entitled
to rely conclusively on any purchase 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. Xxxxxxx Sachs 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 their then-effective prospectuses, shall govern the
purchase, exchange and redemption of Shares for the accounts of the Service
Organization's Customers.
7. Amendment; Termination. This Agreement may be amended by a written
instrument executed by both parties and may be terminated by Xxxxxxx Xxxxx 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. Indemnification. Xxxxxxx Sachs 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 Xxxxxxx Xxxxx or its
employees or agents to comply with Xxxxxxx Sachs' obligations under this
Agreement or any other agreement between Xxxxxxx Xxxxx and the Service
Organization relating to the performance of Services hereunder (a "Covered
Agreement"). The Service Organization agrees to indemnify Xxxxxxx Sachs, 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 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
Xxxxxxx Xxxxx 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 Xxxxxxx
Xxxxx 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 an
independent contractor and not an agent of Xxxxxxx Sachs or any Fund for all
purposes hereunder and shall have no authority to act for or represent Xxxxxxx
Xxxxx or any Fund. In addition, no officer or employee of the Service
Organization shall be deemed to be an employee or agent of the Funds or Xxxxxxx
Sachs or be subject, in any respect, to the supervision of Xxxxxxx Xxxxx or any
affiliate thereof.
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, 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]
