AGREEMENT
THIS AGREEMENT, made this 11th day of December, 1995,
by and among, Prudential Securities Incorporated (the "Spon-
sor"), Alliance Capital Management L.P. ("ACM") (with respect
only to certain provisions identified on the signature page
hereto), Alliance Fund Distributors, Inc. ("AFD") and Alliance
Technology Fund, Inc., an open-end, diversified management
investment company for which AFD acts as principal underwriter.
WHEREAS, the Sponsor proposes to organize and sponsor
unit investment trusts to be known as Government Securities
Equity Trust ("GSET") or such other name as the Sponsor shall
determine (the "Trust"); and AFD proposes to offer Class A
shares (the "Mutual Fund Shares"), for deposit in the Trust, of
Alliance Technology Fund, Inc. (the "Fund") (it being under-
stood that the Sponsor, AFD and ACM may negotiate similar
arrangements with other investment companies managed by ACM in
the future) and to offer Mutual Fund Shares for inclusion in
the respective portfolios of successive series of the Trust
subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual under-
takings and agreements of the parties contained herein, the
parties hereby agree as follows:
1. Condition Precedent. If the Staff of the Secu-
rities and Exchange Commission (the "Commission") shall
request, require or advise, or should the Sponsor otherwise
deem it appropriate, that an order be obtained from the Commis-
sion in connection with the creation of the Trust or the offer-
ing of units of the Trust, the obligations of the parties
hereto are subject to the Sponsor obtaining, at its own cost
and expense, exemptive relief from the Commission for operation
of the Trust, based upon an Application to the Securities and
Exchange Commission for an Exemptive Order pursuant to Sections
6(c), 17(d) and Rule 17(d)(1) and pursuant to such other sec-
tions of the Investment Company Act of 1940 (the "1940 Act") as
deemed necessary by the Sponsor (the "Application"), including
as applicants for such order the Trust, the Sponsor, AFD, ACM
and the Fund and/or such other affiliates or entities as the
Commission may require or as may otherwise be appropriate, and
to request relief from such other sections of the 1940 Act as
mutually agreed upon by the parties or as requested by the
staff of the Commission. AFD, ACM and the Fund, if named as
applicants in such Application, shall be permitted to review
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and comment on, and shall be required to each consent to the filing of,
and, upon approval, to execute, such Application. If the Staff does not
require an order or if an order is otherwise deemed by the Sponsor as not
necessary, the parties will rely on an opinion of counsel to the Sponsor,
which opinion may refer to the position of the Staff contained in a letter
issued to Equity Securities Trust, Series 4 dated January 19, 1994, to the
effect that the Trust is registered under the 1940 Act and that the sale of
units therefrom and the deposit of Mutual Fund Shares and zero coupon
obligations in the Trust shall not constitute a violation of the 1940 Act,
including Section 12 of the 1940 Act.
2. Creation of the Trust: Obligations of the Sponsor. In
connection with the creation of the Trust, the Sponsor shall perform all
the ordinary and regular duties of a sponsor of a unit investment trust,
including, but not limited to:
a. Filing with the Commission a Notification of Registration
on Form N-8A and a Registration Statement on Form N-8B-2 for the
Trust under the 1940 Act and for each series, a registration
statement on Form S-6 ("Registration Statement"), containing a
prospectus, for registration of the units of a series of the Trust
under the Securities Act of 1933, as well as other documents
necessary to complete registration requirements under applicable
federal securities laws; and preparing and filing all documents
necessary to comply with registration requirements of the Blue Sky
authorities of various states;
b. The selection of a trustee, auditors, and an evaluator
for the Trust; and execution and delivery of a Trust Indenture and
Agreement (the "Indenture") and all other documents necessary for the
creation and operation of the Trust. Only the Sponsor, except to the
extent restricted by the Indenture, shall have the authority to
replace any of the above parties;
c. Selection of securities for inclusion in the portfolio of
the first series created after the date of the Agreement and each
subsequent series of the Trust, including the purchase and inclusion
of Mutual Fund Shares, the number of such shares of such Fund to be
determined by the Sponsor in its sole discretion;
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d. Determination of the size of each series, subject to
applicable regulatory limitations, if any, and the frequency and
timing of offering of such series;
e. Paying certain expenses of the Trust related to sales and
promotional activities, legal costs and administrative expenses, as
provided for in Section 6.b hereof and receiving reimbursement from
the Trust of all or a portion of such expenses; and
f. Although not obligated to do so, to maintain a market for
units of the Trust.
3. Creation of the Trust: Obligations of AFD, ACM and the
Fund. In connection with the creation of the Trust:
a. AFD and the Fund agree to provide, at their own expense,
as appropriate, for inclusion in the Registration Statement on
Form S-6 and Form N-8B-2 (collectively referred to hereinafter as the
"Registration Statements") for each series of the Trust, any and all
information regarding the Fund, the Mutual Fund Shares, ACM, AFD, and
their respective affiliates as may be reasonably requested by the
Sponsor as necessary to make each Registration Statement accurate and
complete as to all material matters (it being understood that the
Fund's obligations pursuant to this Section 3(a) shall relate only to
information regarding the Fund and the Mutual Fund Shares);
b. AFD and ACM agree to use their best efforts to cooperate
with, and to cause their affiliates to cooperate with, and assist the
Sponsor in obtaining any exemptive relief necessary to create and
register the Trust and in the creation of each series of the Trust
and the advertisement, marketing and sale of units of each such
series; and
c. AFD agrees to pay certain amounts to the Sponsor of the
Trust as provided for in Section 6.b hereof.
4. Exclusive Dealing; Termination. ACM and AFD agree that
the Trust will constitute an exclusive arrangement among them and the
Sponsor and that neither ACM, AFD nor any of their respective affiliates
will enter into an agreement or in any way act with an entity not a party
to this Agreement to create, market, otherwise promote or permit Mutual
Fund Shares to be included in a potentially competitive unit investment
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trust or other product consisting of zero coupon treasury bonds and mutual
fund shares of any entity for a period of six (6) months from the date of
this Agreement. For purposes of this Section 4, a unit investment trust or
other product shall not be deemed to be competitive if it is marketed and
sold solely outside the United States. Any party may, upon the delivery of
forty-five (45) days written notice to other parties, (i) terminate the
provisions of this Agreement which provide for exclusive dealing or
(ii) terminate the entire Agreement, in either case, the termination to be
effective on the later of the forty-fifth day after delivery of such notice
or six months after the date of this Agreement, provided, however, that in
the case of (i), the parties may agree to continue to do business pursuant
to this Agreement on a non-exclusive basis. The termination of this
Agreement pursuant to this Section 4 shall in no way affect the rights and
responsibilities of the parties with respect to any series of the Trust
previously created pursuant to this Agreement.
In the event of the termination of this Agreement, the parties
agree that all expenses incurred in connection with the creation of a
Trust, regardless of whether or not an Indenture for such Trust was
executed or units of such Trust were offered for sale, shall be borne by
the parties in accordance with the provisions of Section 6.b hereof. If,
after the effective date of this Agreement, the Sponsor is unable or
unwilling to consummate the transaction contemplated by this Agreement, AFD
agrees to pay the Sponsor the amount set forth in Section 6.(b)(v) hereof.
Payment shall be made within seven (7) Business Days after the sending of
written notice to the party from whom payment is sought and shall be made
by check drawn on a New York clearing house bank or by wire transfer,
provided that the parties shall notify each other of the method of payment
to be used prior to the payment date. Anything in this Section 4 to the
contrary notwithstanding, this Agreement does not in any way restrict the
ability of the Sponsor to offer and/or sell competing products and/or other
unit investment trusts.
5. Sale of Mutual Fund Shares to the Trust. As long as this
Agreement remains in effect with respect to the sale of Mutual Fund Shares
to the Trust:
a. AFD and the Fund agree to make available to the Sponsor,
from time to time, as requested by the Sponsor, information regarding
the size of the Fund in order to enable the Sponsor to comply with
terms and conditions of
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any exemptive order issued by the Commission concerning limitations
on the number of Mutual Fund Shares to be included in each series;
b. AFD and the Fund agree to waive or cause to be waived any
and all sales loads and sales fees on the sale of Mutual Fund Shares
to the Trust and to waive, or cause to be waived, any sale loads or
sale fees on purchase of Mutual Fund Shares by unitholders with the
proceeds of distributions received from the Trust; and
c. AFD agrees that, on the date(s) of deposit of Mutual Fund
Shares into the portfolio (each, a "Date of Deposit") for each series
of the Trust, it will enter into and deliver to the Trust or to the
Sponsor a contract for sale of Mutual Fund Shares, in such amounts
as the Sponsor shall request, such request to be made within a rea-
sonable period of time prior to each Date of Deposit; and, if
requested by the Sponsor, to enter into supplemental contracts for
the sale of Mutual Fund Shares to the Trust subsequent to the Date of
Deposit, as the Sponsor, in its sole discretion, may determine.
d. AFD and the Fund agree to comply with such conditions as
may be imposed by the Commission on it in connection with an
Application to the Commission, if any.
6. Continuing Obligations. During the life of the Trust,
the parties hereto shall have the following obligations:
a. (i) The Sponsor, AFD and the Fund shall mutually agree
upon the designation of shares for inclusion in each series of the
Trust. The Sponsor shall determine the procedures for the marketing
and sales of units of each series of the Trust. The Sponsor will
allow the sale of units of the Trust through unaffiliated dealers and
will offer such dealers sales load concessions, both as it may
determine in its sole discretion.
(ii) The names "Prudential Securities Incorporated" and
Government Securities Equity Trust ("GSET") or such other name as the
parties hereto shall mutually determine or any name or title derived
therefrom or intended to be similar thereto and the logo for the
Trust and any logo customarily used by the Sponsor or any of its
affiliates shall be the sole property of the Sponsor. The Fund, ACM
and AFD shall have no right to use said names or logos in
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any manner, for any product without the prior written permission of
the Sponsor. The name of the Fund or any name or title derived
therefrom or intended to be similar thereto and any logo customarily
used by any Alliance entity or Alliance Fund shall be the sole
property of the particular Alliance entity or Fund. The Sponsor
shall have no rights to use said names or logos in any manner for any
product without the prior written permission of such entity or Fund
other than in connection with the Trust.
b. The Sponsor and AFD agree as follows:
(i) Upon the sale by the Sponsor of units with an
aggregate public offering price, net of the redemption price of units
redeemed, as set forth in the Schedule below, AFD agrees to pay to
the Sponsor the payment due under the Schedule, such amount to be
paid within thirty (30) business days after notice is given that such
event has occurred;
Schedule
Total Net Unit Sales Payment Due
$ 10,000,000 $20,000
$ 20,000,000 $20,000
$ 30,000,000 $20,000
$ 40,000,000 $20,000
$ 50,000,000 $20,000
$ 75,000,000 $50,000
$100,000,000 $50,000
(ii) The Sponsor will bear the expenses related to
(x) preparation and printing of the initial and subsequent prospectus
and (y) all advertising, marketing, sales and promotional material
for the Trust. AFD will bear the expenses related to prospectuses
and all advertising, marketing, sales and promotional material
relating solely to the Fund and which in no way reference the Trust,
the Units or the Sponsor which material and/or prospectuses may be
used by the Sponsor as part of promotional material for the Trust (it
being understood that nothing in this Section 6(b)(ii) shall be
deemed to supercede any contract or agreement between AFD and the
Fund concerning the payment of such expenses);
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(iii) The Sponsor shall bear all costs incurred in
connection with the creation, maintenance and operation of the Trust,
to the extent not paid for by the Trust, including legal fees and
expenses, auditing costs and evaluator's fees and federal and state
securities laws filing fees; and
(iv) The Sponsor shall be responsible for all its costs
and expenses associated with the administration of the Trust,
including the cost of maintaining a secondary market in units of the
Trust, except for those costs and expenses incurred as a result of
actions of AFD, affiliates thereof or the Fund which costs shall be
payable by AFD, provided, however, that AFD shall consent to the
incurrence of such costs, such consent not to be unreasonably
withheld. To the extent that such costs and expenses incurred as a
result of actions of AFD, affiliates thereof or the Fund are incurred
by the Sponsor at a time when costs and expenses would otherwise be
incurred, AFD shall reimburse the Sponsor only for the incremental
costs and expenses incurred by the Sponsor arising as a result of the
actions of AFD, the Fund or affiliates thereof. Notwithstanding the
foregoing, the Sponsor shall not be responsible for the costs of AFD
or affiliates incurred in connection with activities of its
"wholesalers" including salaries and travel and entertainment
expenses of such entities and individuals.
(v) In the event the Sponsor is unable or unwilling to
consummate the transaction contemplated hereby resulting from actions
taken or failed to be taken by ACM, AFD, the Fund or affiliates
thereof, AFD agrees to reimburse the Sponsor for its costs incurred
relating to the Trust but such reimbursement shall not exceed
$200,000. In the event the Sponsor is unable or unwilling to
consummate the transaction contemplated hereby resulting from events
relating to ACM, AFD, the Fund or affiliates thereof or other market
events, AFD agrees to reimburse the Sponsor for one-half of the
Sponsor's costs incurred relating to the Trust but such reimbursement
shall not exceed $100,000. In the event the Sponsor is unable or
unwilling to consummate the transaction contemplated hereby for
reasons not relating to actions taken or failed to be taken or other
events relating to ACM, AFD, the Fund or affiliates thereof, neither
AFD, ACM nor the Fund shall have any obligation to reimburse the
Sponsor for any expenses incurred by the Sponsor.
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c. This Agreement shall not prevent AFD and its
"wholesalers" from promoting any investment products to sales
representatives of the Sponsor provided promotion of such products
has been approved by Prudential Securities Incorporated.
d. The Fund agrees to calculate its net asset value per
share of the Mutual Fund Shares daily on the basis of their net asset
value as of the close of regular trading on the New York Stock
Exchange (ordinarily 4:00 p.m. New York time) and every day that the
Fund computes its net asset value per Class A share it shall, as
promptly as reasonably practical, supply such net asset value per
share to the evaluator of the Trust, provided, that the name and
address of such person shall be designated to the Fund by the
Sponsor.
e. ACM, AFD and the Fund will use their best efforts to
comply with all applicable regulatory and disclosure requirements
under the federal securities laws concerning the Fund.
f. No advertising material containing the name of ACM, AFD
or the Fund will be used by the Sponsor in connection with the Trust
without the written consent of such entity. Similarly, no
advertising material containing the name of the Sponsor or any of its
affiliates or funds or trusts will be used by ACM or AFD or the Fund
or affiliates thereof without the Sponsor's written consent.
g. AFD and the Fund agree, at their own expense, as
appropriate, to provide the Sponsor, from time to time, any
information consistent with that originally provided pursuant to
Section 3.a hereof as may be necessary in order to update the
information concerning ACM, AFD, affiliates thereof, the Fund and the
Mutual Fund Shares contained in the Registration Statement on Form
S-6 and any post-effective amendments or supplements thereto and
related prospectus and advertisements.
h. AFD will provide the Sponsor from time to time with all
information in its possession concerning the sale of units of the
Trust that may be necessary in order for the Sponsor to comply with
applicable Blue Sky requirements in the various states.
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i. In connection with investment in Fund shares, if any, by
unit holders of the Trust of distributions received from the Trust,
AFD agrees to deliver the amount of Mutual Fund Shares necessary to
satisfy such investment requests by Trust unit holders and, the Fund
agrees to waive any and all sales loads and fees which would other-
wise be paid or payable upon a purchase or disposition of such Mutual
Fund Shares. Notwithstanding the termination of this Agreement, the
Fund agrees not to terminate Trust unit holders' accounts created in
connection with the investment of Trust distributions should such
accounts be smaller than the minimum fund account size during the
life of the Trust.
j. AFD and the Fund and their affiliates agree to keep
confidential the names and identification of all Trust unit holders
participating in the reinvestment of Trust distributions in Fund
shares, to make no use of such names or identification, not to
solicit in any manner such Trust unit holders, and not to sell,
assign, convey or otherwise transfer such list of Trust unit holders
without the prior written approval of the Sponsor provided however
that routine shareholder communications made by AFD or the Fund shall
be permitted.
k. AFD agrees to pay to the Trust for as long as such series
remains outstanding, the 12b-1 fees (not including any service fee)
received with respect to the Mutual Fund Shares contained in each
series of the Trust. Such rebate shall be made to the Trust on the
payment date of such fees.
l. The Sponsor agrees that upon the exchange of units of the
Trust by a unit holder for units of any other series of Government
Securities Equity Trust, any uncollected deferred sales charge on
units of the Trust will reduce the amount payable to such exchanging
unit holder.
7. Indemnifications. a. AFD agrees to indemnify and hold
harmless the Sponsor from and against any and all losses, claims, damages
and liabilities of the Sponsor and expenses related thereto arising from or
relating to this Agreement, as follows:
(i) Any untrue statement or alleged untrue statement of a
material fact contained in the prospectus of the Fund
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or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(ii) Any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, prospectus or
sales literature of a particular series of the Trust or any 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 that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon or in conformity with information furnished to the
Sponsor by ACM, AFD or the Fund for use in the Trust's Registration
Statement, prospectus or sales literature, or any amendment or sup-
plement thereto;
(iii) Any action of ACM, mutual AFD or the Fund which is illegal
or which constitutes a breach of this Agreement;
(iv) AFD's and the Fund's failure to provide, on a
timely basis, accurate net asset value determinations relating to the
Mutual Funds Shares as provided for in Section 6.d hereof;
(v) The inability, as a result of its or its affiliates
own acts or omissions, of ACM and its affiliates to continue to act
as investment adviser to the Fund, or in any other capacity presently
contemplated with respect to the Fund or the Trust, for any reason
whatsoever, including but not limited to sanctions imposed upon ACM
or any of its affiliates by the Commission pursuant to provisions of
the Investment Advisers Act or other applicable federal securities
laws; and
(vi) The voluntary or involuntary termination and liquidation
of the Fund except where such termination is accompanied by the
creation of a successor fund with substantially similar investment
objectives and policies as the Fund.
If any action is brought against the Sponsor alleging claims
described in subsections (i) through (vi) hereof, the Sponsor shall
promptly notify AFD in writing of the institution of such action and AFD
shall assume the defense of such action,
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including the employment of counsel and payment of expenses. The Sponsor
shall have the right to employ its own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of the Sponsor
unless (1) the employment of such counsel shall have been authorized in
writing by AFD in connection with the defense of such action, or (2) AFD
shall not have employed counsel agreeable to the Sponsor to have charge of
the defense of such action or (3) the Sponsor shall have concluded that
there are defenses available to it which are different from or additional
to those available to AFD (in which case AFD shall not have the right to
direct the defense of such action on behalf of the Sponsor), in any of
which three events such fees and expenses shall be borne by AFD (it being
understood, however, that AFD shall not be liable for the expenses of more
than one separate counsel in any one action or series of related actions in
the same jurisdiction representing the Sponsor). Anything in this
paragraph to the contrary notwithstanding, AFD shall not be liable for any
settlement of such claim or action effected without its written consent.
b. The Sponsor agrees to indemnify and hold harmless the Fund,
ACM and AFD from and against any and all losses, claims, damages and
liabilities of the Fund, ACM or AFD and expenses relating thereto arising
from or related to this Agreement as follows:
(i) Any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the prospectus of
a particular series of the Trust or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except to the extent that such
an untrue statement or alleged untrue statement or alleged omission was
made in reliance upon and in conformity with information furnished to the
Sponsor by ACM, AFD, the Fund, any other Alliance entity or affiliate or a
party unrelated to the Sponsor for use in the Registration Statement or the
prospectus, or any amendment or supplement thereto;
(ii) Any action of the Sponsor in connection with consummation
of the transactions contemplated by this Agreement which is illegal or
which constitutes a material breach of this Agreement or of the trust
indenture.
If any action is brought against ACM, AFD or the Fund alleging
claims described in subsections (i) and (ii) hereof, ACM or AFD or the
Fund shall promptly notify the Sponsor in
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writing of the institution of such action and the Sponsor shall assume the
defense of such action, including the employment of counsel and payment of
expenses. ACM or AFD or the Fund shall have the right to employ their own
counsel in any such case, but the fees and expenses of such counsel shall
be at the expense of ACM or AFD or the Fund unless (1) the employment of
such counsel shall have been authorized in writing by the Sponsor in
connection with the defense of such action, or (2) the Sponsor shall not
have employed counsel agreeable to ACM and AFD to have charge of the
defense of such action or (3) ACM or AFD or the Fund shall have reasonably
concluded that there are defenses available to them which are different
from or additional to those available to the Sponsor (in which case the
Sponsor shall not have the right to direct the defense of such action on
behalf of ACM or AFD or the Fund), in any of which three events such fees
and expenses shall be borne by the Sponsor (it being understood, however,
that the Sponsor shall not be liable for the expenses of more than one
separate counsel in any one action or series of related actions in the same
jurisdiction representing ACM or AFD or the Fund). Anything in this
paragraph to the contrary notwithstanding, the Sponsor shall not be liable
for any settlement of any such claim of action effected without its written
consent.
c. If the indemnification provided for in this Section 7 is
unavailable to the indemnified party under subsections a(i), a(ii) or b(i)
of this Section 7 in respect of any losses, expenses, liabilities or claims
referred to therein, then each party shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnified party on one hand and the
indemnifying party on the other from the offering of the Units of the Trust
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the indemnified party on one hand and of the indemnifying party on
the other in connection with the statements or omissions that resulted in
such losses, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative fault of the indemnified party on
the one hand and of the indemnifying party on the other shall be determined
by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the indemnified party or by the
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indemnifying party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages and liabilities referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any claim or action.
8. Representations and Warranties of ACM, AFD and the Fund.
ACM, AFD and the Fund hereby represent and warrant, respectively, to the
Sponsor that (it being understood that the representations and warranties
of the Fund contained in this Section 8 shall apply only with respect to
matters relating to the Fund or the Mutual Fund Shares):
a. The Fund is a diversified, open-end management investment
company validly existing and in good standing under the laws of the
State of Maryland and properly registered under the 1940 Act; ACM is
a limited partnership duly organized, validly existing and in good
standing under the laws of Delaware and AFD is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware. Each of the Fund, ACM and AFD is qualified to
do business in each jurisdiction where it is legally required to be,
except where failure to qualify is not material;
b. Each of ACM, AFD and the Fund has full power, authority
and legal right to execute and deliver this Agreement and have each
authorized the execution and delivery of this Agreement and the
performance thereof and such Agreement is legally binding on each
such entity;
c. There is no provision of any existing contract, agreement
or indenture binding on ACM or AFD or the Fund or to which either of
them is a party, which would be contravened by the execution and
delivery on the part of either of them of this Agreement or by the
performance or observance of any of the terms thereof;
d. The officers executing and delivering this Agreement and
all documents and certificates connected therewith have proper
authority therefor and no consent of the holders of any obligations
of ACM, AFD or the Fund is required for the due execution, delivery
or performance of this Agreement; and
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e. To the best of their knowledge and belief, no consent,
authorization or approval of any governmental agency or commission or
any other public or quasi-public body is necessary to the due
execution and performance by the Fund, ACM or AFD of this Agreement,
the validity or enforceability hereof or the consummation of the
transactions contemplated hereby.
9. Representations and Warranties of the Sponsor.
The Sponsor hereby represents and warrants to ACM, AFD and the Fund that:
a. The Sponsor is a corporation, duly formed, existing and
in good standing under the laws of the State of Delaware, and is duly
qualified to do business as a foreign corporation in each
jurisdiction where it is legally required to be except where failure
to qualify is not material;
b. The Sponsor has full corporate power, authority and legal
right to execute and deliver this Agreement and to perform and
observe the terms thereof;
c. There is no provision of any existing contract, agreement
or indenture binding on the Sponsor or to which it is a party which
would be contravened by the execution and delivery on the part of the
Sponsor of this Agreement or by the performance or observance of any
of the terms thereof;
d. The officers executing and delivering this Agreement and
all documents and certificates connected therewith have proper
authority therefor and no consent of the holders of any obligations
of the Sponsor is required for the due execution, delivery or
performance of this Agreement; and
e. No consent, authorization or approval of any governmental
agency or commission or any other public or quasi-public body is
necessary for the due execution and performance by the Sponsor of
this Agreement, the validity or enforceability thereof or the
consummation of the transactions contemplated thereby, other than the
registration of the Trust under the 1940 Act, the registration of
Units of the Trust under the Securities Act of 1933 and the approval
of the Blue Sky authorities of the various states.
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10. Miscellaneous.
a. In cases where the approval of the Board of Directors of
the Fund is required in order for the transactions contemplated by
this Agreement to be effectuated, AFD agrees to use its best efforts
to recommend and obtain such approval. Anything in this Agreement to
the contrary notwithstanding, the Fund shall not be held liable for
any breach of representation or warranty of ACM or AFD, or the
failure of ACM or AFD to perform any obligation of ACM or AFD
pursuant to this Agreement.
b. (i) As a condition precedent to the effectiveness of
this Agreement, counsel for each of AFD and ACM and the Fund shall
deliver opinions to the Sponsor as to the matters set forth in
sections 8.a through 8.e hereof as well as such other matters as the
Sponsor may reasonably request.
(ii) Counsel for the Sponsor shall deliver an opinion to AFD
and the Fund as to the matters set forth in Sections 9.a through 9.e
hereof as well as to such matters as AFD may reasonably request.
c. As a condition precedent to the effectiveness of this
Agreement, ACM, AFD and the Fund agree to provide such documents for
review by the Sponsor or its counsel, as counsel for the Sponsor may
reasonably request. Following completion of the due diligence review
of such documents, the Sponsor shall be permitted, in its sole dis-
cretion, for a period of up to seven days, to terminate this
Agreement upon written notice to the other parties.
d. The indemnity agreements and the representations and
warranties contained herein shall remain operative and in full force
and effect regardless of the termination or expiration of this
Agreement.
e. In addition to the termination of this Agreement provided
for in Section 4 hereof, the Sponsor may terminate this Agreement at
its discretion upon written notice if the Board of Directors and/or
the shareholders, as the case may be, of the Fund, shares of which
have been deposited in any series of the Trust, approve material
changes in the investment objectives or basic characteristics of such
fund, the determination as to materiality being in the sole
discretion of the Sponsor; provided, however,
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that the respective rights and responsibilities of the Sponsor, ACM,
AFD and the Fund with the respect to any series of the Trust already
created pursuant to this Agreement shall be as described in this
Agreement. AFD and the Fund agree to notify the Sponsor in writing
on a timely basis of any changes made in investment objectives or
other characteristics of any of its affiliated mutual funds shares of
which have been deposited in any series of the Trust.
f. This Agreement may not be changed orally, but only by an
agreement in writing and signed by the party against whom enforcement
of any waiver, change, modification or discharge is sought.
g. Neither the Sponsor, ACM, AFD nor the Fund may assign,
convey or transfer (by way of merger, sale, gift or otherwise) its
rights or obligations under this Agreement, without the express prior
written permission of the other parties. In the event that a party
does purport to assign its rights hereunder without the prior written
permission of the other parties, the purported assignment shall be
deemed to have terminated this Agreement unilaterally.
h. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York.
i. The parties hereto covenant and agree that they will
execute any further instruments and they will perform any acts which
are or may become necessary to effectuate and carry out this
Agreement.
j. Nothing in this Agreement shall be construed to create an
agency, partnership, joint trading or other similar relationship
between the parties hereto.
k. This Agreement may be executed in any number of
counterparts each of which shall be deemed an original and all of
which together shall constitute one and same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed the day and year first above written.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Title: Senior Vice President
ALLIANCE FUND DISTRIBUTORS, INC.
By: /s/ Xxxxxxxx X. Xxxx
Xxxxxxxx X. Xxxx
Title: Senior Vice President
ALLIANCE TECHNOLOGY FUND INC.
By:
Title: Secretary
ALLIANCE CAPITAL MANAGEMENT
L.P.
By: Alliance Capital Management Corporation,
its General Partner
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Title: President
Agreed and Accepted with respect
to Sections 1, 3(b), 4, 6(a)(ii),
6(e), 6(f), 7(b), 7(c), 8, 10(c)
and 10(g)
