Exhibit (h)(21)
XXX Supplemental Service Agreement
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Date
Service Organization
Address
RE: Shareholder Service Agreement for the XXX Portfolios
of Xxxxxxx Xxxxx Trust (the "Trust")
Ladies and Gentlemen:
The undersigned, Xxxxxxx Sachs Asset Management ("GSAM"), Xxx Xxx Xxxx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, is a separate operating division of Xxxxxxx, Xxxxx &
Co., a registered investment adviser. GSAM acts as investment adviser to the
Trust, which is an open-end management investment company that includes the
Xxxxxxx Sachs--Institutional Liquid Assets Portfolios (such portfolios now
existing or hereafter offered are individually referred to herein as a "Fund"
and, collectively, the "Funds"). Shares or units of beneficial interest
("Shares") of each Fund may be divided into separate classes, including the
Administration Class, the Service Class and the Cash Management Class
(individually referred to herein as a "Class" and, collectively, the "Classes").
You are a financial institution or service provider (the "Service Organization")
acting directly or through an agent as nominee and record holder of Shares for
your customers, who are or may become the beneficial owners of such Shares (the
"Customers"). You are willing to perform, and GSAM wishes to compensate you for
performing, certain services with respect to the Customers investing in the
Classes that you have selected on Schedule A attached hereto (the "Services").
Accordingly, the Service Organization and GSAM agree as follows:
1. Agreement to Provide Services. GSAM hereby engages the Service
Organization, and the Service Organization hereby agrees, to perform the
following Services: (a) provide, or assist GSAM in providing, periodic
statements to each Customer showing account balances and transactions during the
relevant period; (b) mail, or assist GSAM in promptly mailing, to Customers
reports and proxy statements issued by the Trust; and (c) provide, or assist
GSAM in providing, such statistical and other information as may be reasonably
requested by GSAM, including reports of sales of such Administration, Service
Class and Cash Management Class Shares in each state or other jurisdiction for
purposes of complying with state securities or "Blue Sky" laws. In addition,
with respect to the Cash Management Class, the Service Organization agrees to:
(a) facilitate the inclusion of the Cash Management Class in investment,
retirement, asset allocation and cash management or sweep accounts or similar
programs or services of its Customers; (b) facilitate electronic or computer
trading and/or processing in the Cash Management Class for its Customers; (c)
provide ongoing services, technology and systems support with respect to the
implementation and maintenance of the foregoing programs; and (d) provide
assistance, as reasonably requested, in connection with the distribution and
marketing of the Cash Management Class to Customers.
2. Expenses of the Service Organization. The Service Organization
shall furnish such office space, equipment, facilities and personnel as is
necessary to perform its duties hereunder. The Service Organization shall bear
all costs incurred by it in performing such duties.
3. Service Fees Payable to the Service Organization. For the
Services provided and the expenses incurred by the Service Organization
hereunder, GSAM will pay to the Service Organization a monthly fee equal on an
annual basis to the percentage specified on Schedule A based on the average
daily net asset value
of the Shares of each Fund which are owned beneficially by Customers through the
Service Organization during such period.
4. Performance of Duties. In performing its duties hereunder, the
Service Organization will act in conformity with GSAM's instructions, the terms
of its Customer agreements, the then effective prospectuses and statements of
additional information for the Administration Class, the Service Class and the
Cash Management Class, the Investment Company Act of 1940, as amended (the "1940
Act") and all other applicable federal and state laws, regulations and rulings
and the constitution, by-laws and rules of any applicable self-regulatory
organization. The Service Organization will assume sole responsibility for its
compliance with applicable federal and state laws and regulations, and shall
rely exclusively upon its own determination, or that of its legal advisers, that
the performance of its duties hereunder complies with such laws and regulations.
Under no circumstances shall the Trust, Xxxxxxx, Xxxxx & Co., GSAM or any of
their affiliates be held responsible or liable in any respect for any statements
or representations made by them or their legal advisers to the Service
Organization or any Customer of the Service Organization concerning the
applicability of any federal or state laws or regulations to the activities
described herein. The Service Organization will perform its duties hereunder in
a manner consistent with the customs and practices of other institutions that
provide similar services.
5. Representations and Warranties. The Service Organization hereby
represents, warrants and covenants to GSAM:
A. i. That it is an investment adviser as defined under Section
202(a)(11) of the Investment Advisers Act of 1940 (the
"Advisers Act"); it is registered and in good standing,
and will during the term of this Agreement remain in good
standing, as an investment adviser with the United States
Securities and Exchange Commission (the "Commission") or
with the securities commission of any state, territory or
possession of the United States and is in full compliance
with the rules, regulations and policies of the aforesaid
commissions, particularly those rules, regulations and
policies governing capital requirements, financial
reporting, bonding, fiduciary standards and supervisory
concerns; and its entering into and performing its
obligations under this Agreement does not and will not
violate any laws, rules or regulations (including Rule
206(4)-2 under the Advisers Act and rules or regulations
of any self-regulatory organization); or
ii. That it is a broker or dealer as defined in Section
3(a)(4) or 3(a)(5) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); that it is registered and
in good standing, and will during the term of this
Agreement remain in good standing (a) as a broker-dealer
with the Commission pursuant to Section 15 of the Exchange
Act and with the securities commission of any state,
territory or possession of the United States and (b) as a
member of the National Association of Securities Dealers,
Inc. (the "NASD") and/or any stock exchange or other self-
regulatory organization in which the Service
Organization's membership is necessary for the conduct of
its business under this Agreement, and is in full
compliance with the rules, regulations and policies of the
aforesaid commissions and organizations, particularly
those rules, regulations and policies governing capital
requirements, financial reporting, bonding, fiduciary
standards and supervisory concerns; and its entering into
and performing its obligations under this Agreement does
not and will not violate any laws, rules or regulations
(including the net capital and customer protection rules
of the Commission and the rules or regulations of the NASD
or any self-regulatory organization or any so-called
"restriction" letter with the NASD); or
iii. That it is a depository institution (a) organized,
chartered or holding an authorization certificate under
the laws of a state or of the United States, which
authorizes the Service Organization to receive deposits,
including a savings, share, certificate or deposit
account, and which is regulated, supervised and examined
for the protection of
depositors by an official or agency of a state or the
United States and is insured by the Federal Deposit
Insurance Corporation, the Federal Savings and Loan
Insurance Corporation or the National Credit Union Share
Insurance Fund, or (b) is a trust company or other
institution that is authorized by federal or state law to
exercise fiduciary powers of a type a national bank is
permitted to exercise under the authority of the United
States Office of the Comptroller of the Currency, and is
regulated, supervised and examined by an official or
agency of a state or the United States; and its entering
into and performing its obligations under this Agreement
does not and will not violate any laws, rules or
regulations.
B. That it is a corporation, association or partnership duly
organized, validly existing, and in good standing under the
laws of the state of its organization;
C. That entering into and performing its obligations under this
Agreement does not and will not violate (i) its charter or by-
laws; or (ii) any agreements to which it is a party;
D. If the Service Organization is a depository institution or
broker or dealer, in processing Customer orders to purchase,
redeem and exchange Shares, (i) it shall act solely as agent
upon the order, and for the account, of its Customer; (ii) the
Customer will have full beneficial ownership of any Shares
purchased upon its authorization order; and (iii) under no
circumstances will any transactions be for the account of the
Service Organization. Under no circumstances will the Service
Organization make any oral or written representations to the
contrary;
E. With respect to the purchase, redemption or exchange of Fund
Shares for Customer accounts with respect to which the Service
Organization is a fiduciary under state or federal trust or
comparable fiduciary requirements, or, in the case of any such
accounts which are subject to the Employee Retirement Income
Security Act of 1974, as amended, the Service Organization is a
fiduciary or party in interest, the Service Organization
represents that the purchase, redemption or exchange of such
Shares, and the Service Organization's receipt of the relevant
fee described in Section 3 hereof, is permissible under all
such applicable requirements and complies with any
restrictions, limitations or procedures under such
requirements;
F. It will keep confidential any information acquired as a result
of this Agreement regarding the business and affairs of the
Trust and Xxxxxxx, Xxxxx & Co., which requirement shall survive
the term of this Agreement; and
G. It will not, without written consent of the Trust in each
instance, use in advertising, publicity or otherwise the name
of the Trust, Xxxxxxx, Sachs & Co., or any of their affiliates
nor any trade name, trademark, trade device, service xxxx,
symbol or any abbreviation, contraction or simulation thereof
of the Trust, Xxxxxxx, Sachs & Co. or their affiliates.
6. Responsibilities of the Service Organization. The Service
Organization agrees that neither GSAM nor any Fund nor any of their agents shall
have any responsibility or liability to review any purchase, exchange or
redemption request which is presented by the Service Organization (i) to
determine whether such request is genuine or authorized by the Customer of the
Service Organization; or (ii) to determine the suitability of the selected Class
or Fund for such Customer. GSAM, each Fund and their agents shall be entitled to
rely conclusively on any purchase, exchange or redemption request communicated
to any of them by the Service Organization, and shall have no liability
whatsoever for any losses, claims or damages to or against the Service
Organization or any Customer resulting from a failure of the Service
Organization to transmit any such request, or from any errors contained in any
request. Any such failure or error shall be the responsibility of the Service
Organization. In addition, the Service Organization shall have exclusive
responsibility for the operation of any cash sweep or other investment or cash
management program established by it for its Customers, including the provision
of all electronic data processing facilities as are
necessary for any such program and the proper transmission of appropriate
instructions and funds to the Trust in connection therewith. GSAM and the
Service Organization agree that the procedures for the purchase, exchange and
redemption of Shares, including all relevant time and notification requirements,
specified in the then-effective prospectuses of the relevant Class, shall govern
the purchase, exchange and redemption of Shares for the accounts of the Service
Organization's Customers, including the purchase, exchange and redemption of
Shares pursuant to any such program.
7. Amendments; Termination. This Agreement may be amended by a
written instrument executed by both parties and may be terminated by GSAM or the
Service Organization at any time on 60 days' written notice mailed or delivered
to the other party at its address set forth above.
8. No Association or Agency. The Service Organization shall be
deemed to be an independent contractor and not an agent of GSAM or the Trust for
all purposes hereunder and shall have no authority to act for or represent GSAM
or the Trust. In addition, no officer or employee of the Service Organization
shall be deemed to be an employee or agent of the Trust or GSAM, nor will be
subject, in any respect, to the supervision of GSAM or any affiliate thereof.
9. Indemnification. GSAM agrees to indemnify the Service
Organization and each person who controls (as defined in Section 2(a)(9) of the
0000 Xxx) the Service Organization from and against any losses, claims, damages,
expenses (including reasonable fees and expenses of counsel) or liabilities
("Damages") to which the Service Organization or such person may become subject
in so far as such Damages arise out of failure of GSAM or its employees or
agents to comply with GSAM's obligations under this Agreement or any other
agreement between GSAM and the Service Organization relating to the performance
of Services hereunder (a "Covered Agreement"). The Service Organization agrees
to indemnify GSAM, the Funds, their agents and each person who controls (as
defined in Section 2(a)(9) of the 0000 Xxx) any of them from and against any
Damages to which any of them may become subject in so far as such Damages arise
out of the purchase, redemption, transfer or registration of Shares by the
Service Organization's Customers, any request related thereto communicated by
the Service Organization or its employees or agents, or the failure of the
Service Organization or its employees, agents or Customers to comply with the
Service Organization's obligations under a Covered Agreement. Notwithstanding
the foregoing, neither GSAM nor the Service Organization shall be entitled to be
indemnified for Damages arising out of its or its agent's or employee's gross
negligence. The foregoing indemnity agreements shall be in addition to any
liability GSAM or the Service Organization may otherwise have, and shall survive
the termination of this Agreement.
10. Applicable Law. If any provision of this Agreement shall be
held or made invalid by a decision in a judicial or administrative proceeding,
statute, rule or otherwise, the enforceability of the remainder of this
Agreement will not be impaired thereby. This Agreement shall be governed by the
laws of the State of New York and shall be binding upon and inure to the benefit
of the parties hereto and their respective successors.
Very truly yours,
XXXXXXX XXXXX ASSET MANAGEMENT, a separate
operating division of Xxxxxxx, Sachs & Co.
By:
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[Authorized Officer]
Accepted and agreed to as of the date first above written:
SERVICE ORGANIZATION
By:
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[Authorized Officer]
SCHEDULE A
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Please indicate (X) the appropriate Class(es) for which this Agreement applies:
[_] XXXXXXX XXXXX-XXX ADMINISTRATION CLASS: 0.10%
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[_] XXXXXXX SACHS-XXX SERVICE CLASS: 0.10%
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[_] XXXXXXX SACHS-XXX XXXX MANAGEMENT CLASS:
For total investments in the Cash Management Class, the applicable fee
shall be paid on the entire Cash Management Class balance once a fee
threshold has been reached:
(i)
(a) during 1998:
$ 0 - $5 million 0.10%
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$ 5 - $10 million 0.25%
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Over $50 million 0.30%
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or;
(b) 1999 and thereafter:
$ 25 - $100 million 0.10%
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$ 100 - $250 million 0.25%
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Over $250 million 0.30%
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or;
(ii) If aggregate investment in all Classes of the Funds (excluding
the Cash Management Class) exceeds $1 billion, the fee on the
entire balance in the Cash Management Class will be:
0.30%
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