EXHIBIT 6(a)
XXXXXXX XXXXX TRUST
DISTRIBUTION AGREEMENT
February 1, 1993, as amended July 26, 1994
Xxxxxxx, Sachs & Co.,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Xxxxxxx Xxxxx Trust (the "Trust"), an open-end
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management investment company created under the laws of the Commonwealth of
Massachusetts, and consisting of one or more separate series, has appointed you,
the "Distributors," and that you shall be the exclusive distributors in
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connection with the offering and sale of the shares of beneficial interest, par
value $.001 per share (the "Shares"), corresponding to each of the series of the
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Trust listed in Exhibit A, as the same may be supplemented from time to time
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(each such series, a "Fund"). The organization, administration and policies of
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each Fund are described in its respective Prospectus and SAI (as those terms are
defined below). (This letter shall be referred to hereinafter as the
"Agreement".)
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1. DEFINITIONS. (a) The terms which follow, when used in this Agreement, shall
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have the meanings indicated.
"Effective Date" shall mean the date that the Registration Statement or
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any post-effective amendment thereto becomes effective.
"Preliminary Prospectus" shall mean any preliminary prospectus relating
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to the Shares of a Fund included in the Registration Statement or filed with
the Securities and Exchange Commission (the "Commission") pursuant to Rule
497(a).
"Prospectus" shall mean the prospectus relating to the Shares of a
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Fund, filed with the Commission pursuant to Rule 497 or, if no filing
pursuant to Rule 497 is required, the form of final prospectus relating to
the Shares of a Fund included in the Registration Statement, in each case
together with any amendments or supplements thereto.
"Registration Statement" shall mean the registration statement on Form
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N-1A relating to the Shares of a Fund, including all exhibits thereto, as of
the Effective Date of the most recent post-effective amendment thereto.
"Rule 497" refers to such rule (or any successor rule or rules) under
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the Securities Act (as defined in Section 2 below).
"SAI" shall mean the statement of additional information relating to
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the Shares of a Fund, filed with the Commission pursuant to Rule 497 or, if
no filing pursuant to Rule 497 is required, the final statement of
additional information included in the Registration Statement.
The "Initial Acceptance Date" of a Fund shall mean the first date on
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which the Trust sells Shares of such Fund pursuant to the Registration
Statement.
References in this Agreement to "Rules and Regulations" shall be deemed to
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be references to such rules and regulations as then in effect, and
references to this Agreement and the Fund Agreements (as defined in Section
2 below), shall be deemed to be references to such agreements as then in
effect.
2. REPRESENTATIONS AND WARRANTIES. The Trust represents and warrants to and
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agrees with you, for your benefit and the benefit of each Authorized Dealer
(as defined in Section 3 below), as set forth below in this Section 2. Each
of the representations, warranties and agreements made in this Section 2
shall be deemed made on the date hereof, on the date of any filing of any
Prospectus pursuant to Rule 497 and any Effective Date after the date
hereof, with the same effect as if made on each such date.
(a) The Trust meets the requirements for use of Form N-1A under the Securities
Act of 1933, as amended (the "Securities Act"), the Investment Company Act
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of 1940, as amended (the "Investment Company Act"), and the Rules and
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Regulations of the Commission under each such act and in respect of said
form (or of such successor form as the Commission may adopt). The Trust has
filed with the Commission a registration statement (File Number 33-17619) on
Form N-1A with respect to an indefinite number of Shares of the Funds and is
duly registered as an open-end management investment company. Prior to the
date hereof, the Trust has filed post-effective amendments to the
Registration Statement, including related Preliminary Prospectuses, for the
registration under the Securities Act and the Investment Company Act of the
offering and sale of the Shares of the Funds, each of which has previously
been furnished to you. Each such amendment has become effective and no stop
order suspending the effectiveness of any such amendment has been issued and
no proceeding for that purpose has been initiated or threatened by the
Commission.
(b) The Trust's notification of registration on Form N-8A (as amended) complies
with the applicable requirements of the Investment Company Act and the Rules
and Regulations thereunder.
(c) The Registration Statement and each Prospectus and SAI conform, and any
further amendments or supplements to the Registration Statement or any
Prospectus or SAI will conform, in all material respects, with the
Securities Act and Investment Company Act and the Rules and Regulations
thereunder; the Prospectuses and the SAIs do not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and, on each Effective Date, the
Registration Statement did not and will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading;
provided, however, that the Trust makes no representations or warranties as
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to the information contained in or omitted from the Registration Statement
or any Prospectus or SAI in reliance upon and in conformity with information
furnished in writing to the Trust by you (with respect to information
relating solely to your role as distributors of the Shares of the Funds)
expressly for use therein.
(d) No order preventing or suspending the use of any Preliminary Prospectus has
been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of
the Securities Act and the Rules and Regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Trust by
you (with respect to information relating solely to your role as the
exclusive distributors of the Shares of the Funds) expressly for use
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therein.
(e) The Trust has been duly created and is lawfully and validly existing as a
business trust under the laws of the Commonwealth of Massachusetts, and has,
on the date hereof, and will have, on and after the date hereof, full power
and authority to own its properties and conduct its business as described in
the Registration Statement and in each Prospectus and SAI, and is duly
qualified to do business under the laws of each jurisdiction which requires
such qualification wherein it owns or leases material properties or conducts
material business.
(f) The Trust's authorized capitalization is as set forth in the Registration
Statement. Issuance of the Shares of the Funds as contemplated by this
Agreement and by each Prospectus and SAI has been duly and validly
authorized, and the Shares of the Funds, when issued and paid for as
contemplated hereby and thereby, will be fully-paid and nonassessable and
will conform to the description thereof contained in the corresponding
Prospectus and SAI. The holders of outstanding shares of each Fund are not
entitled to preemptive or other rights to subscribe for the Shares of any
Fund, other than as contemplated by the Prospectus and SAI relating to each
Fund.
(g) This Agreement has been duly authorized, executed and delivered by the
Trust.
(h) On or prior to the Initial Acceptance Date, all of the agreements described
in each Prospectus and SAI relating to the Fund or Funds whose Shares are
first being sold on such date (collectively, the "Fund Agreements") will
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have been duly authorized, executed and delivered by the Trust, and will
comply in all material respects with the Investment Company Act and the
Rules and Regulations thereunder.
(i) The Fund Agreements will constitute, on and after the Initial Acceptance
Date, assuming due authorization, execution and delivery by the parties
thereto other than the Trust, valid and legally binding instruments,
enforceable in accordance with their respective terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
(j) No consent, approval, authorization or order of any court or governmental
agency or body is or shall be required, as the case may be, for the
consummation from time to time of the transactions contemplated by this
Agreement and the Fund Agreements, except such as may be required (i) under
the Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Investment Company Act, the Rules and Regulations under
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each of the foregoing or the Rules of Fair Practice of the National
Association of Securities Dealers, Inc. (the "NASD") (any of which that were
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required before offers were made will have been obtained before such offers
were made and all of which will have been obtained, with respect to each
Fund, by the Effective Date of the post-effective amendment relating to the
Fund, except for those which become required under such acts or rules or any
other law or regulation after the Fund's Effective Date but that were not
required before such Effective Date, all of which shall be obtained in a
timely manner) or (ii) state securities laws of any jurisdiction in
connection with the issuance, offer or redemption of the Shares of each Fund
by the Trust.
(k) The operations and activities of the Trust and each Fund as contemplated by
the Prospectuses and the SAIs, the performance by the Trust and each Fund of
this Agreement and the Fund Agreements, the making of the offer or the sale
of Shares of each Fund and consummation from time to time of such sales, the
redemption of Shares of each Fund, or any other transactions contemplated
herein, in the Fund Agreements, in the Prospectuses or in the SAIs, will not
conflict with, result in a breach of, or constitute a default under, the
declaration of trust or the Trust's By-laws or, in any material respect, the
terms of any other agreement or instrument to which the Trust is a party or
by which it
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is bound, or any order or regulation applicable to the Trust of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Trust.
(l) There is not pending, or to the best knowledge of the Trust, threatened, any
action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator to which the Trust is (or, to the best
knowledge of the Trust, is threatened to be) a party, of a character
required to be described in the Registration Statement or in any Prospectus
or SAI which is not described as required.
(m) There is no franchise, contract or other document of a character required to
be described in the Registration Statement or in any Prospectus or SAI, or
to be filed as an exhibit, which is not described or filed as required.
(n) Except as stated or contemplated in the Registration Statement,
Prospectuses and SAIs, (i) the Trust has not incurred any liabilities or
obligations, direct or contingent, or entered into any transactions, whether
or not in the ordinary course of business, that are material to the Trust,
(ii) there has not been any material adverse change, or, any development
involving a prospective material adverse change, in the condition (financial
or other) of the Trust, (iii) there has been no dividend or distribution
paid or declared in respect of the Trust, and (iv) the Trust has not
incurred any indebtedness for borrowed money.
(o) Each Fund will elect or has elected to be treated as a regulated investment
company as defined in Section 851(a) of the Internal Revenue Code of 1986
for its first taxable year and will operate so as to qualify as such in its
current and all subsequent taxable years.
(p) Except as stated or contemplated in any Prospectus or SAI, the Trust owns
all of its assets free and clear in all material respects of all liens,
security interests, pledges, mortgages, charges and other encumbrances or
defects.
3. SELECTION OF AUTHORIZED DEALERS; OTHER SERVICES AS DISTRIBUTORS.
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(a) The Distributors shall have the right on the basis of the representations,
warranties and agreements herein contained and subject to the terms and
conditions herein set forth, to make arrangements for (i) securities dealers
(including bank-affiliated dealers) that are members in good standing of the
NASD, (ii) foreign securities dealers which are not eligible for membership
in the NASD who have agreed to comply as though they were NASD members with
the provisions of Sections 8, 24, and 36 of Article III of the Rules of Fair
Practice of the NASD and with Section 25 thereof as that Section applies to
a non-NASD member broker or dealer in a foreign country, or (iii) banks, as
defined in Section 3(a)(6) of the Exchange Act, which are duly organized and
validly existing in good standing under the laws of the jurisdiction in
which they are organized, to solicit from the public orders to purchase
Shares of the Funds. Such securities dealers and banks ("Authorized
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Dealers") selected by you in accordance with dealer agreements with you
("Dealer Agreements") shall solicit such orders pursuant to their respective
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Dealer Agreements. You will act only on your own behalf as principals in
entering into each such Dealer Agreement.
(b) You acknowledge that the only information provided to you by the Trust is
that contained in the Registration Statement and in each Prospectus and SAI.
Neither you nor any Authorized Dealer nor any other person is authorized by
the Trust to give any information or to make any representations, other than
those contained in the Registration Statement or in the relevant Prospectus
and SAI and any sales literature approved by appropriate representatives of
the Trust. You may undertake or
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arrange for such advertising and promotion as you believe is reasonable in
connection with the solicitation of orders to purchase Shares of a Fund;
provided, however, that you will provide the Trust with and obtain the
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Trust's approval of copies of any advertising and promotional materials
approved, produced or used by you prior to their use. You will file such
materials with the Commission and the NASD as may be required by the
Exchange Act and the Investment Company Act and the Rules and Regulations
thereunder and by the rules of the NASD.
(c) You agree to perform such services as are described in the Registration
Statement and in each Prospectus and SAI as to be performed by the
Distributors including, without limitation, distributing Account Information
Forms.
(d) All of your activities as distributors of the Shares of the Funds shall
comply, in all material respects, with all applicable laws, Rules and
Regulations, including, without limitation, all rules and regulations made
or adopted by the Commission or by any securities association registered
under the Exchange Act, including the NASD, as in effect from time to time.
4. OFFERING BY THE DISTRIBUTORS.
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(a) You will act as agent for the Trust in the distribution of Shares of the
Funds and you agree to use your best efforts to offer and sell Shares of the
Funds to the public at the public offering price as set forth in the
Prospectus, subject to any waivers or reductions of any applicable sales
charges, dealer allowances and fees as you and each of the Authorized
Dealers, if any, shall have agreed to in writing. You may also subscribe
for Shares of a Fund as principals for resale to the public or for resale to
Authorized Dealers. You shall devote reasonable time and effort to effect
sales of Shares of the Funds, but you shall not be obligated to sell any
specific number of Shares. Nothing contained herein shall prevent you from
entering into like distribution arrangements with other investment
companies.
(b) The Distributors are authorized to purchase Shares of any Fund presented to
them by Authorized Dealers at the price determined in accordance with, and
in the manner set forth in, the Prospectus for such Fund.
(c) Unless you are otherwise notified by the Trust, any right granted to you to
accept orders for Shares of any Fund or to make sales on behalf of the Trust
or to purchase Shares of any Fund for resale will not apply to (i) Shares
issued in connection with the merger or consolidation of any other
investment company with the Trust or its acquisition, by purchase or
otherwise, of all or substantially all of the assets of any investment
company or substantially all the outstanding securities of any such company,
and (ii) Shares that may be offered by the Trust to shareholders by virtue
of their being such shareholders.
5. COMPENSATION. With respect to any Fund whose Shares are to be sold to
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the public subject to a sales charge, you will be entitled to receive
that portion of the sales charges applicable to sales of Shares of such
Fund and not reallocated to Authorized Dealers as set forth in the
relevant Prospectus, subject to any waivers or reductions of such sales
charges, if any, in accordance with Section 4 of this Agreement. In
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addition, you shall be entitled to receive the entire amount of any
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contingent deferred sales charge imposed and paid by shareholders upon
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the redemption or repurchase of any Fund's Shares as set forth in the
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relevant Prospectus, subject to any waivers or reductions of such sales
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charges that may be disclosed in such Prospectus. In connection with
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each transaction in which you are acting as an Authorized Dealer, you
also will be entitled to that portion of the sales charges, if any,
payable to an Authorized Dealer in such transaction.
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6. UNDERTAKINGS. The Trust agrees with you, for your benefit, that:
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(a) The Trust shall sell Shares of the Funds so long as it has such Shares
available for sale and shall cause the transfer agent (the "Transfer Agent")
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to record on its books the ownership of such Shares registered in such names
and amounts as you have requested in writing or other means, as promptly as
practicable after receipt by the Trust of the payment therefor. The Trust
will make such filings under the Investment Company Act with, and pay such
fees to, the Commission as are necessary to register Shares of any Fund sold
by you on behalf of the Trust. Prior to the termination of this Agreement,
the Trust will not file any amendment to the Registration Statement or
amendment or supplement to any Prospectus or SAI (whether pursuant to the
Securities Act, the Investment Company Act, or otherwise) without prior
notice to you; provided, however, that nothing contained in this Agreement
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shall in any way limit the Trust's right to file such amendments to the
Registration Statement, or amendments or supplements to any Prospectus or
SAI as the Trust may deem advisable, such right being in all respects
absolute and unconditional, it being understood that this proviso shall not
relieve the Trust of its obligation to give prior notice of any such
amendment or supplement to you. Subject to the foregoing sentence, if the
filing of any Prospectus or SAI, as the case may be, contained in the
Registration Statement at the relevant Effective Date, or any amendment or
supplement thereto, is required under Rule 497, the Trust will cause such
Prospectus or SAI, and any amendment or supplement thereto, to be filed with
the Commission pursuant to the applicable paragraph of Rule 497 within the
time period prescribed and will, if requested, provide evidence satisfactory
to you of such timely filing. The Trust will promptly advise you (i) when
such Prospectus or SAI shall have been filed (if required) with the
Commission pursuant to Rule 497, (ii) when, prior to termination of this
Agreement, any amendment to the Registration Statement shall have been filed
or become effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment or supplement to any
Prospectus or SAI or for any additional information relating to or that
could affect disclosure in any of the foregoing, (iv) of the issuance by the
Commission of any order suspending the effectiveness of the Registration
Statement, or suspending the registration of the Trust under the Investment
Company Act, or the institution or (to the best knowledge of the Trust)
threatening of any proceeding for that purpose, and (v) of the receipt by
the Trust of any notification with respect to the suspension of the
qualification of the offer or sale of Shares of a Fund in any jurisdiction
or the initiation or (to the best knowledge of the Trust) threatening of any
proceeding for such purpose. The Trust will use its best efforts to prevent
the issuance of any such order or suspension and, if issued, to obtain as
soon as possible the withdrawal or suspension thereof.
(b) If, at any time when a Prospectus or SAI is required to be delivered under
the Securities Act, any event occurs as a result of which such Prospectus or
SAI would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or amend or supplement any
Prospectus or SAI to comply with the Securities Act, the Investment Company
Act or the Rules and Regulations thereunder, the Trust will notify you
promptly of any such circumstance and promptly will prepare and file with
the Commission, subject to the third sentence of Section 6(a), an amendment
or supplement which will correct such statement or omission or effect such
compliance.
(c) As soon as practicable (giving effect to the normal periodic reporting
requirements under the Investment Company Act and the Rules and Regulations
thereunder), the Trust will make generally available to its shareholders
and, subject to Section 8 of this Agreement, to you (with sufficient copies
for the Authorized Dealers), a report containing the financial statements
required to be included in such reports under Section 30(d) of the
Investment Company Act and Rule 30d-1 thereunder.
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(d) Subject to Section 8 of this Agreement, the Trust will furnish to you as
many conformed copies of the Registration Statement including exhibits
thereto, on each Effective Date, as you may reasonably request for
yourselves and for delivery to the Authorized Dealers and, so long as
delivery of a Prospectus or SAI by you or any Authorized Dealer may be
required by law, the number of copies of each Prospectus and each SAI as
you may reasonably request for yourself and for delivery to the Authorized
Dealers.
(e) The Trust will use its best efforts to arrange for the qualification of an
appropriate number of the Shares of the Funds for sale under the laws of
such of the 00 xxxxxx xx xxx Xxxxxx Xxxxxx, the District of Columbia, the
Commonwealth of Puerto Rico, the Territory of Guam, and such other
jurisdiction as you and the Trust may approve, and will maintain such
qualifications in effect as long as may be reasonably requested by you,
provided that the Trust shall not be required in connection herewith or as a
condition hereto to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction. You shall furnish such
information and other material relating to your affairs and activities as
may be required by the Trust in connection with such qualifications.
(f) The Trust shall keep you fully informed with respect to its affairs and,
subject to Section 8 of this Agreement, the Trust, if so requested, will
furnish to you, as soon as they are available (with sufficient copies for
the Authorized Dealers), copies of all reports, communications and financial
statements sent by the Trust to its shareholders or filed by, or on behalf
of, the Trust with the Commission.
(g) The Trust agrees that on each date the Trust is required to file with the
Commission a notice under paragraph (b)(1) of Rule 24f-2 under the
Investment Company Act, the Trust, if so requested, shall furnish to you a
copy of the opinion of counsel for the Trust required by such Rule to the
effect that the Shares covered by the notice were legally issued, fully paid
and nonassessable. The Trust further agrees that if, in connection with the
filing of any post-effective amendment to the Registration Statement after
the date of this Agreement:
(i) a change is made to the statements under the caption "Shares of the Fund"
in any Prospectus or SAI that is deemed material by you, the Trust, if so
requested, shall furnish to you an opinion of counsel for the Trust, dated
the date of such post-effective amendment, to the effect of paragraph 2 (to
the extent it relates to the description of the Shares) of the form of
opinion of counsel to the Trust attached hereto as Exhibit B;
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(ii) the Fund Agreements are amended or modified in any manner, the Trust, if
so requested, shall furnish to you an opinion of counsel for the Trust,
dated the date of such post-effective amendment, to the effect of paragraph
12 of the form of opinion of counsel to the Trust attached hereto as Exhibit
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B; or
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(iii) any change is made to the statements under the caption "Taxation" in any
Prospectus or SAI, the Trust, if so requested, shall furnish to you an
opinion of counsel for the Trust, dated the date of such post-effective
amendment, to the effect of paragraph 14 of the form opinion of counsel to
the Trust attached hereto as Exhibit B.
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Any opinion or statement furnished pursuant to this Section 6(g) shall be
modified as necessary to relate to this Agreement and the Fund Agreements
and the Rules and Regulations as then in effect and shall state that the
Authorized Dealers may rely on it.
(h) The Trust, if so requested, shall furnish to you on each subsequent
Effective Date with respect to an amendment of the Registration Statement
which first includes certified financial statements for the preceding fiscal
year, in respect of a Fund, a copy of the report of the Trust's independent
public
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accountants with respect to the financial statements and selected per share
data and ratios relating to such Fund, addressed to you. The Trust further
agrees that the Trust, if so requested, shall furnish to you (i) on each
date on which the Trust, pursuant to the preceding sentence, furnishes to
you a report of its independent public accountants, a certificate of its
treasurer or assistant treasurer in a form reasonably satisfactory to you
describing in reasonable detail how the figures included under the captions
"Portfolio Transactions" and "Performance Information" (or similar captions)
in the Prospectus or SAI of such Fund and the figures relating to the
aggregate amounts of remuneration paid to officers, trustees and members of
the advisory board and affiliated persons thereof (as required by Section
30(d)(5) of the Investment Company Act) were calculated and confirming that
such calculations are in conformity with the Rules and Regulations under the
Investment Company Act and (ii) on each date the Trust files with the
Commission the Trust's required semi-annual financial statements, a
certificate of its treasurer or assistant treasurer in a form reasonably
satisfactory to you, describing the manner in which such financial
statements were prepared and confirming that such financial statements have
been prepared in conformity with the Rules and Regulations under the
Investment Company Act.
7. CONDITIONS TO YOUR OBLIGATIONS AS DISTRIBUTORS. Your obligations as
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distributors of the Shares of the Funds shall be subject to the accuracy of
the representations and warranties on the part of the Trust contained herein
as of the dates when made or deemed to have been made, to the accuracy in
all material respects of the statements made in any certificates, letters or
opinions delivered pursuant to the provisions of Sections 6 or 7 of this
Agreement, to the performance by the Trust of its obligations hereunder and
to the following additional conditions:
(a) If filing of any Prospectus or SAI, or any amendment or supplement to any
Prospectus or SAI, or any other document is required pursuant to any
applicable provision of Rule 497, such Prospectus or SAI, or any such
amendment or supplement and other document will be filed in the manner and
within the time period required by the applicable provision of Rule 497; and
no order suspending the effectiveness of the amendment shall have been
issued and no proceedings for that purpose shall have been instituted or, to
the best knowledge of the Trust, threatened and the Trust shall have
complied with any request of the Commission for additional information (to
be included in the Registration Statement, the Prospectus, the SAI or as the
Commission otherwise shall have requested).
(b) At the Initial Acceptance Date with respect to each Fund, the Trust shall
have furnished to you the opinion of counsel for the Trust, dated the
Initial Acceptance Date and addressed to you, substantially in the form of
Exhibit B to this Agreement. Such opinion shall state that the Authorized
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Dealers may rely on it.
(c) At the Initial Acceptance Date with respect to each Fund, you shall have
received from counsel to the Distributors, if so requested, such opinion or
opinions, dated the Initial Acceptance Date, with respect to the issuance
and sale of the Shares, the Registration Statement, the Prospectus and SAI
and other related matters as you may reasonably require, and the Trust shall
have furnished to such counsel such documents as they may request for the
purpose of enabling them to pass upon such matters. Each such opinion shall
state that the Authorized Dealers may rely on it.
(d) There shall not have been any change, or any development involving a
prospective change, in or affecting the Trust the effect of which in any
case is, in your good faith judgment, so material and adverse as to make it
impractical or inadvisable to proceed with the offering of Shares of the
Funds as contemplated by this Agreement.
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(e) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a general moratorium on
commercial banking activities in New York declared by either Federal or New
York State authorities; (iii) the outbreak or escalation of hostilities
involving the United States or the declaration of a national emergency or
war if the effect of any such event specified in this Clause (iii) in your
judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares of a Fund on the terms and in the
manner contemplated in any Prospectus.
(f) The Trust shall have furnished to you such further information, certificates
and documents as you may have reasonably requested.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions, certificates or letters mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to you, this Agreement and all your
obligations hereunder may be cancelled by you. In the event of such
cancellation, the Trust shall remain liable for the expenses set forth in
Section 8.
8. EXPENSES.
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(a) The Trust will pay (or will enter into arrangements providing that parties
other than you will pay) all fees and expenses:
(1) in connection with the preparation, setting in type and filing of the
Registration Statement (including Prospectuses and SAIs) under the
Securities Act or the Investment Company Act, or both, and any
amendments or supplements thereto that may be made from time to time;
(2) in connection with the registration and qualification of Shares of the
Funds for sale in the various jurisdictions in which it is determined
to be advisable to qualify such Shares of the Funds for sale (including
registering the Trust as a broker or dealer or any officer of the Trust
or other person as agent or salesman of the Trust in any such
jurisdictions);
(3) of preparing, setting in type, printing and mailing any notice, proxy
statement, report, Prospectus, SAI or other communication to
shareholders in their capacity as such;
(4) of preparing, setting in type, printing and mailing Prospectuses
annually, and any supplements thereto, to existing shareholders;
(5) in connection with the issue and transfer of Shares of the Funds
resulting from the acceptance by you of orders to purchase Shares of
the Funds placed with you by investors, including the expenses of
printing and mailing confirmations of such purchase orders and the
expenses of printing and mailing a Prospectus included with the
confirmation of such orders and, if requested by the purchaser, an SAI;
(6) of any issue taxes or any initial transfer taxes;
(7) of WATS (or equivalent) telephone lines other than the portion
allocated to you in this Section 8;
(8) of wiring funds in payment of Share purchases or in satisfaction of
redemption or repurchase
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requests, unless such expenses are paid for by the investor or
shareholder who initiates the transaction;
(9) of the cost of printing and postage of business reply envelopes sent to
shareholders;
(10) of one of more CRT terminals connected with the computer facilities of
the Transfer Agent other than the portion allocated to you in this
Section 8;
(11) permitted to be paid or assumed by any Fund or Funds pursuant to a plan
("12b-1 Plan"), if any, adopted by such Fund or Funds in conformity
----------
with the requirements of Rule 12b-1 under the Investment Company Act
("Rule 12b-1") or any successor rule, notwithstanding any other
------------
provision to the contrary herein;
(12) of the expense of setting in type, printing and postage of any periodic
newsletter to shareholders other than the portion allocated to you in
this Section 8; and
(13) of the salaries and overhead of persons employed by you as shareholder
representatives other than the portion allocated to you in this Section
8.
(b) You shall pay or arrange for the payment of all fees and expenses:
(1) of printing and distributing any Prospectuses or reports prepared for
your use in connection with the offering of Shares of the Funds to the
public;
(2) of preparing, setting in type, printing and mailing any other
literature used by you in connection with the offering of Shares of the
Funds to the public;
(3) of advertising in connection with the offering of Shares of the Funds
to the public;
(4) incurred in connection with your registration as a broker or dealer or
the registration or qualification of your officers, partners,
directors, agents or representatives under Federal and state laws;
(5) of that portion of WATS (or equivalent) telephone lines allocated to
you on the basis of use by investors (but not shareholders) who request
information or Prospectuses;
(6) of that portion of the expense of setting in type, printing and postage
of any periodic newsletter to shareholders attributable to promotional
material included in such newsletter at your request concerning
investment companies other than the Trust or concerning the Trust to
the extent you are required to assume the expense thereof pursuant to
this Section 8, except such material which is limited to information,
such as listings of other investment companies and their investment
objectives, given in connection with the exchange privilege as from
time to time described in the Prospectuses;
(7) of that portion of the salaries and overhead of persons employed by you
as shareholder representatives attributable to the time spent by such
persons in responding to requests from investors, but not shareholders,
for information about the Trust;
(8) of any activity which is primarily intended to result in the sale of
Shares of the Funds, unless a 12b-1 Plan shall be in effect which
provides that a Fund or Funds shall bear some or all of such expenses,
in which case such Fund or Funds shall bear such expenses in accordance
with such Plan; and
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(9) of that portion of one or more CRT terminals connected with the
computer facilities of the Transfer Agent attributable to your use of
such terminal(s) to gain access to such of the Transfer Agent's records
as also serve as your records.
Expenses which are to be allocated between you and the Trust shall be
allocated pursuant to reasonable procedures or formulae mutually agreed upon
from time to time, which procedures or formulae shall to the extent
practicable reflect studies of relevant empirical data.
9. INDEMNIFICATION AND CONTRIBUTION.
--------------------------------
(a) The Trust will indemnify you and hold you harmless against any losses,
claims, damages or liabilities, to which you may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement, the Prospectus,
or the SAI or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement therein not misleading, and will reimburse
you for any legal or other expenses reasonably incurred by you in connection
with investigating or defending any such action or claim; provided, however,
-------- -------
that the Trust shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, or any
Prospectus or SAI in reliance upon and in conformity with written
information furnished to the Trust by you expressly for use therein.
(b) You will indemnify and hold harmless the Trust against any losses, claims,
damages or liabilities to which the Trust may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof), arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, any Preliminary Prospectus, or any Prospectus
or SAI, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, any Preliminary Prospectus, or any Prospectus or SAI in reliance
upon and in conformity with written information furnished to the Trust by
you expressly for use therein; and will reimburse the Trust for any legal or
other expenses reasonably incurred by the Trust in connection with
investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b)
above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred
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by such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation.
(d) If the indemnification provided for in this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions
in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Trust on the one hand and you on the other
from the offering of the Shares of the Fund or Funds in respect of which
such losses, claims, damages or liabilities (or actions in respect thereof)
arose. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c) above, then each
indemnifying party 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 the relative fault of the Trust on the one
hand and you on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relative equitable considerations.
The relative benefits received by the Trust on the one hand and you on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares of the relevant Funds (before deducting
expenses) received by the Trust bear to the total compensation received by
you in selling Shares of such Funds under this Agreement, including any
sales charge as set forth in the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Trust on the one hand or you on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Trust and you agree that it would not be just
and equitable if the contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party as
a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), you shall not
be required to contribute any amount in excess of the amount by which the
total price at which the Shares of the relevant Funds sold by you and
distributed 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.
(e) The obligations of the Trust under this Section 9 shall be in addition to
any liability which the Trust may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls you within
the meaning of the Securities Act; and your obligations under this Section 9
shall be in addition to any liability which you may otherwise have and shall
extend, upon the same terms and conditions, to each trustee or officer of
the Trust (including any person who, with his consent, is named in the
Registration Statement as about to become a trustee of the Trust) and to
each person, if any, who controls the Trust within the meaning of the
Securities Act.
-12-
10. TERM. (a) This Agreement shall commence on the date first set forth above
----
and continue in effect until June 30, 1994 and then for successive annual
periods after June 30, 1994, provided such continuance is specifically
approved at least annually by (i) the Trustees of the Trust or (ii) a vote
of a majority (as defined in the Investment Company Act) of the Fund's
outstanding voting securities, provided that in either event the continuance
is also approved by a vote of a majority of the Trustees of the Trust who
are not interested persons (as defined in the Investment Company Act) of the
Trust or any party to this Agreement, by vote cast in person at a meeting
called for the purpose of voting on such approval.
(b) The sale of Shares of the Funds in accordance with the terms of this
Agreement shall be subject to termination or suspension in the absolute
discretion of the Trust, by notice given to you as set forth in Section 12
hereof.
(c) This Agreement will terminate automatically in the event of its assignment
(as defined in the Investment Company Act).
11. REPRESENTATION AND INDEMNITIES TO SURVIVE. The respective agreements,
-----------------------------------------
representations, warranties, indemnities and other statements of the Trust
and you set forth in or made pursuant to this Agreement will, to the extent
permitted by applicable law, remain in full force and effect, regardless of
any investigation made by or on behalf of you, any Authorized Dealer or the
Trust, or any of the controlling persons referred to in Section 9 hereof,
and will survive the offer of the Shares of the Funds. The provisions of
Section 8, 9 and 11 hereof shall, to the extent permitted by applicable law,
survive the termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and effective only
-------
on receipt, and, if sent to you, mailed, delivered or telegraphed and
confirmed to you at Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxxx, Xxx Xxxx
00000, Attention: Registration Department (Distributors - Xxxxxxx Sachs
Family of Funds) or, if sent to the Trust, mailed, delivered or telegraphed
and confirmed to it at Xxxxxxx Xxxxx Trust, 0000 Xxxxx Xxxxx, Xxxxxxx, Xxx.
00000, Attention: Secretary.
13. AFFILIATES. The Trust recognizes that your partners, officers and employees
----------
may from time to time serve as directors, trustees, officers and employees
of corporations and business entities (including other investment
companies), and that you or your affiliates may enter into distribution or
other agreements with other corporations and business entities.
14. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon
----------
the parties hereto and their respective successors and, to the extent set
forth herein, each of the officers, trustees and controlling persons
referred to in Section 9 hereof, and no other person will have any right or
obligation hereunder.
15. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
-13-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between you and
the Trust, and, to the extent set forth herein, shall be for the benefit of each
Authorized Dealer.
Very truly yours,
XXXXXXX SACHS TRUST
By: Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President of the Trust
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
Xxxxxxx, Xxxxx & Co.
-----------------------------------------------
(Xxxxxxx, Sachs & Co.)
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EXHIBIT A
---------
SERIES OF THE TRUST ("FUNDS")
-----------------------------
GS Adjustable Rate Government Agency Fund
Xxxxxxx Xxxxx Adjustable Rate Mortgage Fund
Xxxxxxx Sachs California Municipal Income Fund
GS Core Fixed Income Fund
Xxxxxxx Xxxxx Emerging Markets Income Fund
Xxxxxxx Sachs Global Income Fund
GS Government Agency Portfolio
Xxxxxxx Xxxxx Government Income Fund
Xxxxxxx Sachs Municipal Income Fund
Xxxxxxx Xxxxx New York Municipal Income Fund
GS Short Duration Tax-Free Fund
GS Short-Term Government Agency Fund
-15-
EXHIBIT B
---------
FORM OF OPINION OF COUNSEL TO THE TRUST
---------------------------------------
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