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
customers which for purposes of this Agreement are limited to customers for
which Nations Banc Investments, Inc. is the Introducing Broker, and in no
transaction shall you have any authority to act as agent for a Fund, for us
or for any Selected Dealer.
2. Orders received from you will be accepted through us or on our
behalf only at the public offering price applicable to each order, as set
forth in the applicable current Prospectus. The procedure relating to the
handling of orders shall be subject to written instructions which we or
the applicable Fund shall forward from time to time to you. All orders
are subject to acceptance or rejection by us or a Fund in the sole
discretion of either. The Distributor of the Fund will promptly notify you in
writing of any such rejection.
3. You shall not place orders for any Shares unless you have
already received purchase orders for such Shares at the applicable public
offering price and subject to the terms hereof and of the applicable
Distribution Agreement and Prospectus. In connection herewith, you agree
to abide by the terms of the applicable Distribution Agreement and
Prospectus to the extent required hereunder. Furthermore, you agree that
(i) you will offer or sell any of the Shares only under circumstances that
will result in compliance with all applicable Federal and state securities
laws; (ii) you will not furnish or cause to be furnished to any person any
information relating to the Shares which is inconsistent in any respect
with the information contained in the applicable Prospectus (as then
amended or supplemented) or cause any advertisements to be published by
radio or television or in any newspaper or posted in any public place or
use any sales promotional material without our consent and the consent of
the applicable Fund; and (iii) you will endeavor to obtain proxies from
purchasers of Shares. You also agree that you will be liable to Distributor
for payment of the purchase price for Shares purchased by customers and
that you shall make payment for such shares when due.
4. We will compensate you for sales of shares of the Funds and
personal services to Fund shareholders by paying you a sales charge
and/or other commission (which may be in the form of a gross sales credit
and/or an annual residual commission) and/or a service fee, each as
separately agreed by you and us with respect to each Fund.
5. If any Shares sold to your customers under the terms of this Agreement
are repurchased by us for the account of a Fund or are tendered for
redemption within seven business days after the date of the confirmation of
the original purchase by you, it is agreed that you shall forfeit your
right to, and refund to us, any commission received by you with respect to
such Shares.
6. No person is authorized to make any representations concerning
the Shares or the Funds except those contained in the current
applicable Prospectus and in such printed information subsequently issued by
us or a Fund as information supplemental to such Prospectus. In selling
Shares, you shall rely solely on the representations contained in the
applicable Prospectus and supplemental information mentioned above. Any
printed information which we furnish you other than the Prospectus and the
Funds' periodic reports and
proxy solicitation materials are our sole responsibility and not the
responsibility of the Funds, and you agree that the Funds shall have no
liability or responsibility to you in these respects unless expressly assumed
in connection therewith.
7. You are hereby authorized (i) to place orders directly with a Fund or
its agent for shares of the Fund to be sold by us subject to the applicable
terms and conditions governing the placement of orders for the
purchase of Fund Shares, as set forth in the Distribution Agreement, and
(ii) to tender Shares directly to the Fund or its agent for redemption
subject to the applicable terms and conditions set forth in the Distribution
Agreement. We will provide you with copies of any updates to the Distribution
Agreement.
8. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Shares entirely. Each party hereto has the
right to cancel this agreement with respect to one or more Funds upon
fifteen days prior written notice to the other party.
9. I. You shall indemnify and hold us harmless from and against any and
all losses, costs, (including reasonable attorney's fees) claims,
damages and liabilities which arise as a result of action taken pursuant
to instructions from you, or on your behalf to: (a)(i) place orders for
Shares of a Fund with the Fund's transfer agent or direct the transfer agent
to receive instructions for the order of Shares, and (ii) accept monies
or direct that the transfer agent accept monies as payment for the order of
such Shares, all as contemplated by and in accordance with Section 3 of the
applicable Distribution Agreement; (b)(i) place orders for the redemption
of Shares of a Fund with the Fund's transfer agent or direct the
transfer agent to receive instruction for the redemption of such Shares
and (ii) to pay redemption proceeds or to direct that the transfer agent pay
redemption proceeds in connection with orders for the redemption of
Shares, all as contemplated by and in accordance with Section 4 of the
applicable Distribution Agreement; Distributor agrees to indemnify and hold
harmless you and your affiliates, officers, directors, control persons
and employees from and against any and all losses, costs (including
reasonable attorney's fees), claims, damages and liabilities which arise as
a result of Distributor's failure to fulfill its obligations hereunder and
from any alleged inaccuracy, omission or misrepresentation contained in any
prospectus or any advertising, or sales literature prepared by
Distributor or the Fund provided, however, that in no case, (i) is this
indemnity in favor of you or us and any of other party's such controlling
persons to be deemed to protect us or any such controlling persons
against any liability to which we or any such controlling persons would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of our duties or by reason of reckless
disregard of our obligations and duties under this Agreement or the
applicable Distribution Agreement; or (ii) are you to be liable under
the indemnity agreement contained in this paragraph with respect to any claim
made against us or any such controlling persons, unless we or any such
controlling persons, as the case may be, shall have notified you in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon
us or such controlling persons (or after we or such controlling persons
shall have received notice of such service on any designated agent),
notwithstanding the failure to notify you of any such claim shall not
relieve you from any liability which you may have to the person against whom
such action is brought otherwise than on account of the indemnity agreement
contained in this paragraph.
II. You will be entitled to participate at your own expense in the
defense, or, if you so elect, to assume the defense, of any suit brought to
enforce any such liability, but if you elect to assume the defense, such
defense shall be conducted by counsel chosen by you and reasonably
satisfactory to us or such controlling person or persons, defendant or
defendants in the suit. In the event you elect to assume the defense of any
such suit and retain such counsel, we or such controlling person or persons,
defendant or defendants in the suit, shall bear the fees and expenses of
any additional counsel retained by them, but, in case you do not elect to
assume the defense of any such suit, you will reimburse us or such
controlling person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained by them. Each party
shall promptly notify the other party to this Agreement of the commencement
of any litigation or proceedings against it or any of its officers or
directors in connection with the issuance or sale of the Shares pursuant to
this Agreement.
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III. If the indemnification provided for in this Section 9 is unavailable
or insufficient to hold harmless the Distributor, as provided above in
respect of any losses, claims, damages, liabilities or expenses (or
actions in respect thereof) referred to herein, then you shall contribute
to the amount paid or payable by us as a result of such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by
you on the one hand and us on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law, then you shall contribute to such amount
paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also your relative
fault on the one hand and our relative fault on the other, in connection
with the statements or omissions which resulted in such losses, claims,
damages, liabilities or expenses (or actions in respect thereof), as well
as any other relevant equitable considerations. You and we agree that it
would not be just and equitable if contribution were determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to above. The amount paid or
payable by us as a result of the losses, claims, damages, liabilities or
expenses (or actions in respect thereof) referred to above shall be deemed
to include any legal or other expenses reasonably incurred by us in
connection with investigating or defending any such claim. Notwithstanding
the provisions of this subsection (III), you shall not be required to
contribute any amount in excess of the amount by which the total price at
which the Shares distributed by you to the public were offered to the
public exceeds the amount of any damages which you have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
IV. Notwithstanding the provisions of subsections (I), (II) and (III),
we shall indemnify, defend and hold harmless you and your officers,
directors, employees, affiliates, agents, successors and assigns from and
against any and all claims and all related losses, expenses, damages,
cost and liabilities including reasonable attorneys' fees and expenses
incurred in investigation or defense, arising out of or related to any
breach of any representation, warranty or covenant by us contained in Section
15 of this Agreement.
11. We shall have full authority to take such action as we may
deem advisable in respect of all matters pertaining to the
distribution and redemption of Shares. Neither party shall be under any
liability to the other party except for lack of good faith and for
obligations expressly assumed herein. Nothing contained in this paragraph
is intended to operate as, and the provisions of this paragraph shall not
in anyway 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 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 Masabuy
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
...................................
(Authorized Signature)
Please return one signed copy
of this agreement to:
Xxxxxx Xxxxxxx Xxxx Xxxxxx
Distributors Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Accepted:
Firm Name: National Financial Services Corp.
.................................
By:
........................................
Address: 000 Xxxxxxx Xxxxxx
....................................
New York, New York
....................................
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
