Exhibit 5(b)
XXXXXX XXXXXXX XXXX XXXXXX DISTRIBUTORS INC.
OMNIBUS SELECTED DEALER AGREEMENT
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
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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
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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: Xxxxxx Masabus
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/
-----------------------------------------
(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:
............................
By: /s/
...................................
Address: 000 Xxxxxxx Xxxxxx
..............................
New York, N Y
..............................
Date: October 17, 1998
.................................
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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
