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EXHIBIT (e)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made and entered into as of August 1, 2001, by and
among XXXXXXX INVESTMENTS, a Massachusetts business trust (the "Trust"), XXXXXXX
ASSET MANAGEMENT, INC., a Michigan corporation (the "Adviser") and QUASAR
DISTRIBUTORS, LLC, a Delaware limited liability company ("Distributor").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end management investment company, and
is authorized to issue shares of beneficial interests ("Shares") in separate
series with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS, the Adviser is duly registered under the Investment Advisers
Act of 1940, as amended, and any applicable state securities laws, as an
investment adviser;
WHEREAS, the Trust desires to retain the Distributor as principal
underwriter in connection with the offering and sale of the Shares of each
series listed on Schedule A (as amended from time to time) (the "Funds") to this
Agreement;
WHEREAS, the Distributor is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a member of
the National Association of Securities Dealers, Inc. (the "NASD");
WHEREAS, this Agreement has been approved by a vote of the Trust's
Board of Trustees ("Board") and its disinterested trustees in conformity with
Section 15(c) of the 1940 Act; and
WHEREAS, the Distributor is willing to act as principal underwriter for
the Trust on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
1. APPOINTMENT OF THE DISTRIBUTOR. The Trust hereby appoints the
Distributor as its agent for the sale and distribution of Shares of the Funds,
subject to the terms and for the period set forth in this Agreement. The
Distributor hereby accepts such appointment and agrees to act hereunder.
2. SERVICES AND DUTIES OF THE DISTRIBUTOR.
(a) The Distributor agrees to sell Shares of the Funds on a best
efforts basis as agent for the Trust during the term of this Agreement, upon the
terms and at the current offering price (plus sales charge, if any) described in
the Prospectus. As used in this Agreement, the term "Prospectus" shall mean the
current prospectus, including the statement of additional information, as
amended or supplemented, relating to the Funds and included in the currently
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effective registration statement or post-effective amendment thereto (the
"Registration Statement") of the Trust under the Securities Act of 1933 (the
"1933 Act") and the 0000 Xxx.
(b) During the continuous public offering of Shares of the Funds, the
Distributor will hold itself available to receive orders, satisfactory to the
Distributor, for the purchase of Shares of the Funds and will accept such orders
on behalf of the Trust. Such purchase orders shall be deemed effective at the
time and in the manner set forth in the Prospectus.
(c) The Distributor, with the operational assistance of the Trust's
transfer agent, shall make Shares available for sale and redemption through the
National Securities Clearing Corporation's Fund/SERV System.
(d) In connection with all matters relating to this Agreement, the
Distributor agrees to act in conformity with the Trust's Declaration of Trust
and By-Laws and with the instructions of the Board and to comply with the
requirements of the 1933 Act, the 1934 Act, the 1940 Act, the regulations of the
NASD and all other applicable federal or state laws and regulations. The
Distributor acknowledges and agrees that it is not authorized to provide any
information or make any representations other than as contained in the
Prospectus and any sales literature specifically approved by the Trust and the
Distributor.
(e) The Distributor agrees to cooperate with the Trust in the
development of all proposed advertisements and sales literature relating to the
Funds. The Distributor agrees to review all proposed advertisements and sales
literature for compliance with applicable laws and regulations, and shall file
with appropriate regulators those advertisements and sales literature it
believes are in compliance with such laws and regulations. The Distributor
agrees to furnish to the Trust any comments provided by regulators with respect
to such materials and to use its best efforts to obtain the approval of the
regulators to such materials.
(f) The Distributor at its sole discretion may repurchase Shares
offered for sale by shareholders of the Funds. Repurchase of Shares by the
Distributor shall be at the price determined in accordance with, and in the
manner set forth in, the current Prospectus. At the end of each business day,
the Distributor shall notify, by any appropriate means, the Trust and its
transfer agent of the orders for repurchase of Shares received by the
Distributor since the last report, the amount to be paid for such Shares, and
the identity of the shareholders offering Shares for repurchase. The Trust
reserves the right to suspend such repurchase right upon written notice to the
Distributor. The Distributor further agrees to act as agent for the Trust to
receive and transmit promptly to the Trust's transfer agent shareholder requests
for redemption of Shares.
(g) The Distributor may, in its discretion, enter into agreements with
such qualified broker-dealers as it may select, in order that such
broker-dealers also may sell Shares of the Funds. The form of any dealer
agreement shall be mutually agreed upon and approved by the Trust and the
Distributor. The Distributor may pay a portion of any applicable sales charge,
or allow a discount, to a selling broker-dealer, as described in the Prospectus
or, if not described, as agreed upon with the broker-dealer. The Distributor
shall include in the forms of agreement with selling broker-dealers a provision
for the forfeiture by them of their sales charge or discount with respect to
Shares sold by them and redeemed, repurchased or tendered for redemption within
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seven business days after the date of confirmation of such purchases.
(h) The Distributor shall devote its best efforts to effect sales of
Shares of the Funds but shall not be obligated to sell any certain number of
Shares.
(i) The Distributor shall prepare reports for the Board regarding its
activities under this Agreement as from time to time shall be reasonably
requested by the Board, including the regarding the use of Rule 12b-1 payments
received by the Distributor, if any.
(j) The services furnished by the Distributor hereunder are not to be
deemed exclusive and the Distributor shall be free to furnish similar services
to others so long as its services under this Agreement are not impaired thereby.
The Trust recognizes that from time to time officers and employees of the
Distributor may serve as directors, trustees, officers and employees of other
entities (including investment companies), that such other entities may include
the name of the Distributor as part of their name and that the Distributor or
its affiliates may enter into distribution, administration, fund accounting,
transfer agent or other agreements with such other entities.
3. DUTIES AND REPRESENTATIONS OF THE TRUST.
(a) The Trust represents that it is duly organized and in good standing
under the law of its jurisdiction of incorporation and registered as an open-end
management investment company under the 1940 Act. The Trust agrees that it will
act in material conformity with its Declaration of Trust, By-Laws, its
Registration Statement as may be amended from time to time and resolutions and
other instructions of its Board. The Trust agrees to comply in all material
respects with the 1933 Act, the 1940 Act, and all other applicable federal and
state laws and regulations. The Trust represents and warrants that this
Agreement has been duly authorized by all necessary action by the Trust under
the 1940 Act, state law and the Trust's Declaration of Trust and By-Laws.
(b) The Trust, or its agent, shall take or cause to be taken all
necessary action to register Shares of the Funds under the 1933 Act and to
maintain an effective Registration Statement for such Shares in order to permit
the sale of Shares as herein contemplated. The Trust authorizes the Distributor
to use the Prospectus, in the form furnished to the Distributor from time to
time, in connection with the sale of Shares.
(c) The Trust represents and agrees that all Shares to be sold by it,
including those offered under this Agreement, are validly authorized and, when
issued in accordance with the description in the Prospectus, will be fully paid
and nonassessable. The Trust further agrees that it shall have the right to
suspend the sale of Shares of any Fund at any time in response to conditions in
the securities markets or otherwise, and to suspend the redemption of Shares of
any Fund at any time permitted by the 1940 Act or the rules of the Securities
and Exchange Commission ("SEC"). The Trust shall advise the Distributor promptly
of any such determination.
(d) The Trust agrees to advise the Distributor promptly in writing:
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(i) of any correspondence or other communication by the SEC or
its staff relating to the Funds, including requests by the SEC for
amendments to the Registration Statement or Prospectus;
(ii) in the event of the issuance by the SEC of any stop-order
suspending the effectiveness of the Registration Statement then in
effect or the initiation of any proceeding for that purpose;
(iii) of the happening of any event which makes untrue any
statement of material fact made in the Prospectus or which requires the
making of a change in such Prospectus in order to make the statements
therein not misleading; and
(iv) of all actions taken by the SEC with respect to any
amendments to any Registration Statement or Prospectus which may from
time to time be filed with the SEC.
(e) The Trust shall file such reports and other documents as may be
required under applicable federal and state laws and regulations. The Trust
shall notify the Distributor in writing of the states in which the Shares may be
sold and shall notify the Distributor in writing of any changes to such
information.
(f) The Trust agrees to file from time to time such amendments to its
Registration Statement and Prospectus as may be necessary in order that its
Registration Statement and Prospectus will not contain any untrue statement of
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
(g) The Trust shall fully cooperate in the efforts of the Distributor
to sell and arrange for the sale of Shares and shall make available to the
Distributor a statement of each computation of net asset value. In addition, the
Trust shall keep the Distributor fully informed of its affairs and shall provide
to the Distributor from time to time copies of all information, financial
statements, and other papers that the Distributor may reasonably request for use
in connection with the distribution of Shares, including, without limitation,
certified copies of any financial statements prepared for the Trust by its
independent public accountants and such reasonable number of copies of the most
current Prospectus, statement of additional information and annual and interim
reports to shareholders as the Distributor may request. The Trust shall forward
a copy of any SEC filings, including the Registration Statement, to the
Distributor within one business day of any such filings. The Trust represents
that it will not use or authorize the use of any advertising or sales material
unless and until such materials have been approved and authorized for use by the
Distributor.
(h) The Trust represents and warrants that its Registration Statement
and any advertisements and sales literature of the Trust (excluding statements
relating to the Distributor and the services it provides that are based upon
written information furnished by the Distributor expressly for inclusion
therein) shall not contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and that all statements or information
furnished to the Distributor pursuant to this
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Agreement shall be true and correct in all material respects.
4. COMPENSATION. As compensation for the services performed and the
expenses assumed by Distributor under this Agreement including, but not limited
to, any commissions paid for sales of Shares, Distributor shall be entitled to
the fees and expenses set forth in Schedule B to this Agreement which are
payable promptly after the last day of each month. Such fees shall be paid to
Distributor by the Trust pursuant to its Rule 12b-1 plan or, if Rule 12b-1
payments are not sufficient to pay such fees and expenses, or if the Rule 12b-1
plan is discontinued, or if the Fund's sponsor, the Adviser, otherwise
determines that Rule 12b-1 fees shall not, in whole or in part, be used to pay
Distributor, the Adviser shall be responsible for the payment of the amount of
such fees not covered by Rule 12b-1 payments.
5. EXPENSES.
(a) The Trust shall bear all costs and expenses in connection with
registration of the Shares with the SEC and related compliance with state
securities laws, as well as all costs and expenses in connection with the
offering of the Shares and communications with shareholders of its Funds,
including but not limited to (i) fees and disbursements of its counsel and
independent public accountants; (ii) costs and expenses of the preparation,
filing, printing and mailing of Registration Statements and Prospectuses and
amendments thereto, as well as related advertising and sales literature, (iii)
costs and expenses of the preparation, printing and mailing of annual and
interim reports, proxy materials and other communications to shareholders of the
Funds; and (iv) fees required in connection with the offer and sale of Shares in
such jurisdictions as shall be selected by the Trust pursuant to Section 3(e)
hereof.
(b) The Distributor shall bear the expenses of registration or
qualification of the Distributor as a dealer or broker under federal or state
laws and the expenses of continuing such registration or qualification. The
Distributor does not assume responsibility for any expenses not expressly
assumed hereunder.
6. INDEMNIFICATION.
(a) The Trust shall indemnify, defend and hold the Distributor, and
each of its present or former members, officers, employees, representatives and
any person who controls or previously controlled the Distributor within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all losses, claims, demands, liabilities, damages and expenses (including
the costs of investigating or defending any alleged losses, claims, demands,
liabilities, damages or expenses and any reasonable counsel fee incurred in
connection therewith) which the Distributor, each of its present and former
members, officers, employees or representatives or any such controlling person,
may incur under the 1933 Act, the 1934 Act, any other statute (including Blue
Sky laws) or any rule or regulation thereunder, or under common law or
otherwise, arising out of or based upon any untrue statement, or alleged untrue
statement of a material fact contained in the Registration Statement or any
Prospectus, as from time to time amended or supplemented, or in any annual or
interim report to shareholders, or in any advertisement or sales literature, or
arising out of or based upon any omission, or alleged omission, to state therein
a material fact required to be stated therein or necessary to make the
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statements therein not misleading; provided, however, that the Trust's
obligation to indemnify the Distributor and any of the foregoing indemnitees
shall not be deemed to cover any losses, claims, demands, liabilities, damages
or expenses arising out of any untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, Prospectus,
annual or interim report, or any such advertisement or sales literature in
reliance upon and in conformity with information relating to the Distributor and
furnished to the Trust or its counsel by the Distributor in writing and
acknowledging the purpose of its use for the purpose of, and used in, the
preparation thereof. The Trust' agreement to indemnify the Distributor, and any
of the foregoing indemnitees, as the case may be, with respect to any action, is
expressly conditioned upon the Trust being notified of such action brought
against the Distributor, or any of the foregoing indemnitees, 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 the
Distributor, or such person, unless the failure to give notice does not
prejudice the Trust. Such notification shall be given by letter or by telegram
addressed to the Trust's President, but the failure so to notify the Trust of
any such action shall not relieve the Trust from any liability which the Trust
may have to the person against whom such action is brought by reason of any such
untrue, or alleged untrue, statement or omission, or alleged omission, otherwise
than on account of the Trust's indemnity agreement contained in this Section
6(a).
(b) The Trust shall be entitled to participate at its own expense in
the defense or, if it so elects, to assume the defense of any suit brought to
enforce any such loss, claim, demand, liability, damage or expense, but if the
Trust elects to assume the defense, such defense shall be conducted by counsel
chosen by the Trust and approved by the Distributor, which approval shall not be
unreasonably withheld. In the event the Trust elects to assume the defense of
any such suit and retain such counsel, the indemnified defendant or defendants
in such suit shall bear the fees and expenses of any additional counsel retained
by them. If the Trust does not elect to assume the defense of any such suit, or
in case the Distributor does not, in the exercise of reasonable judgment,
approve of counsel chosen by the Trust or, if under prevailing law or legal
codes of ethics, the same counsel cannot effectively represent the interests of
both the Trust and the Distributor, and each of its present or former members,
officers, employees, representatives or any controlling person, the Trust will
reimburse the indemnified person or persons named as defendant or defendants in
such suit, for the fees and expenses of any counsel retained by Distributor and
them. The Trust's indemnification agreement contained in Sections 6(a) and 6(b)
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Distributor, and each of its present
or former members, officers, employees, representatives or any controlling
person, and shall survive the delivery of any Shares and the termination of this
Agreement. This agreement of indemnity will inure exclusively to the
Distributor's benefit, to the benefit of each of its present or former members,
officers, employees or representatives or to the benefit of any controlling
persons and their successors. The Trust agrees promptly to notify the
Distributor of the commencement of any litigation or proceedings against the
Trust or any of its officers or directors in connection with the issue and sale
of any of the Shares.
(c) The Trust shall advance attorney's fees and other expenses incurred
by any person in defending any claim, demand, action or suit which is the
subject of a claim for indemnification pursuant to this Section 6 to the maximum
extent permissible under applicable law.
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(d) The Distributor shall indemnify, defend and hold the Trust, and
each of its present or former trustees, officers, employees, representatives,
and any person who controls or previously controlled the Trust within the
meaning of Section 15 of the 1933 Act, free and harmless from and against any
and all losses, claims, demands, liabilities, damages and expenses (including
the costs of investigation or defending any alleged losses, claims, demands,
liabilities, damages or expenses, and any reasonable counsel fee incurred in
connection therewith) which the Trust, and each of its present or former
trustees, officers, employees, representatives, or any such controlling person,
may incur under the 1933 Act, the 1934 Act, any other statute (including Blue
Sky laws) or any rule or regulation thereunder, or under common law or
otherwise, arising out of or based upon any untrue, or alleged untrue, statement
of a material fact contained in the Trust's Registration Statement or any
Prospectus, as from time to time amended or supplemented, or arising out of or
based upon the omission, or alleged omission, to state therein a material fact
required to be stated therein or necessary to make the statement not misleading,
but only if such statement or omission was made in reliance upon, and in
conformity with, written information relating to the Distributor and furnished
to the Trust or its counsel by the Distributor for the purpose of, and used in,
the preparation thereof. The Distributor's agreement to indemnify the Trust, and
any of the foregoing indemnitees, is expressly conditioned upon the
Distributor's being notified of any action brought against the Trust, and any of
the foregoing indemnitees, such notification to be given by letter or telegram
addressed to the Distributor's President, 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 the Trust or such person unless the failure to
give notice does not prejudice the Distributor, but the failure so to notify the
Distributor of any such action shall not relieve the Distributor from any
liability which the Distributor may have to the person against whom such action
is brought by reason of any such untrue, or alleged untrue, statement or
omission, otherwise than on account of the Distributor's indemnity agreement
contained in this Section 6(d).
(e) The Distributor shall be entitled to participate at its own expense
in the defense or, if it so elects, to assume the defense of any suit brought to
enforce any such loss, claim, demand, liability, damage or expense, but if the
Distributor elects to assume the defense, such defense shall be conducted by
counsel chosen by the Distributor and approved by the Trust, which approval
shall not be unreasonably withheld. In the event the Distributor elects to
assume the defense of any such suit and retain such counsel, the indemnified
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by them. If the Distributor does not elect to assume
the defense of any such suit, or in case the Trust does not, in the exercise of
reasonable judgment, approve of counsel chosen by the Distributor or, if under
prevailing law or legal codes of ethics, the same counsel cannot effectively
represent the interests of both the Trust and the Distributor, and each of its
present or former members, officers, employees, representatives or any
controlling person, the Distributor will reimburse the indemnified person or
persons named as defendant or defendants in such suit, for the fees and expenses
of any counsel retained by the Trust and them. The Distributor's indemnification
agreement contained in Sections 6(d) and (e) shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Trust, and each of its present or former directors, officers, employees,
representatives or any controlling person, and shall survive the delivery of any
Shares and the termination of this Agreement. This Agreement of indemnity
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will inure exclusively to the Trust's benefit, to the benefit of each of its
present or former directors, officers, employees or representatives or to the
benefit of any controlling persons and their successors. The Distributor agrees
promptly to notify the Trust of the commencement of any litigation or
proceedings against the Distributor or any of its officers or directors in
connection with the issue and sale of any of the Shares.
(f) No person shall be obligated to provide indemnification under this
Section 6 if such indemnification would be impermissible under the 1940 Act, the
1933 Act, the 1934 Act or the rules of the NASD; provided, however, in such
event indemnification shall be provided under this Section 6 to the maximum
extent so permissible.
7. OBLIGATIONS OF THE TRUST. This Agreement is executed by and on
behalf of the Trust and the obligations of the Trust hereunder are not binding
upon any of the trustees, officers or shareholders of the Trust individually but
are binding only upon the Trust and with respect to the Funds to which such
obligations pertain.
8. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original agreement but all
of which counterparts shall together constitute but one and the same instrument.
9. GOVERNING LAW.
This Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. To the extent that the
applicable laws of the State of Wisconsin, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with the
1940 Act or any rule or order of the SEC thereunder.
10. DURATION AND TERMINATION.
(a) This Agreement shall become effective with respect to each Fund
listed on Schedule A hereof as of the date hereof and, with respect to each Fund
not in existence on that date, on the date an amendment to Schedule A to this
Agreement relating to that Fund is executed. Unless sooner terminated as
provided herein, this Agreement shall continue in effect for two years from the
date hereof. Thereafter, if not terminated, this Agreement shall continue
automatically in effect as to each Fund for successive one-year periods,
provided such continuance is specifically approved at least annually by (i) the
Trust's Board or (ii) the vote of a "majority of the outstanding voting
securities" of a Fund, and provided that in either event the continuance is also
approved by a majority of the Trust's Board who are not "interested persons" of
any party to this Agreement, by vote cast in person at a meeting called for the
purpose of voting on such approval.
(b) Notwithstanding the foregoing, this Agreement may be terminated,
without the payment of any penalty, with respect to a particular Fund (i)
through a failure to renew this Agreement at the end of a term, (ii) upon mutual
consent of the parties, or (iii) upon no less than 60 days' written notice, by
either the Trust through a vote of a majority of the members of the
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Board who are not "interested persons" of the Trust and have no direct or
indirect financial interest in the operation of this Agreement or by vote of a
"majority of the outstanding voting securities" of a Fund, or by the
Distributor. The terms of this Agreement shall not be waived, altered, modified,
amended or supplemented in any manner whatsoever except by a written instrument
signed by the Distributor and the Trust. If required under the 1940 Act, any
such amendment must be approved by the Trust's Board, including a majority of
the Trust's Board who are not "interested persons" of any party to this
Agreement, by vote cast in person at a meeting for the purpose of voting on such
amendment. In the event that such amendment affects the Adviser, the written
instrument shall also be signed by the Adviser. This Agreement will
automatically terminate in the event of its assignment.
11. CONFIDENTIALITY. The Distributor agrees on behalf of its employees
to treat all records relative to the Trust and prior, present or potential
shareholders of the Trust as confidential, and not to use such records for any
purpose other than performance of the Distributor's responsibilities and duties
under this Agreement, except after notification and prior approval by the Trust,
which approval shall not be unreasonably withheld, and may not be withheld where
the Distributor may be exposed to civil or criminal proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, when subject to governmental or regulatory audit or investigation,
or when so requested by the Trust. Records and information which have become
known to the public through no wrongful act of the Distributor or any of its
employees, agents or representatives shall not be subject to this paragraph.
12. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. Any
provision of this Agreement which may be determined by competent authority to be
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors. As used in this Agreement, the terms "majority of the outstanding
voting securities," "interested person," and "assignment" shall have the same
meaning as such terms have in the 1940 Act.
13. NOTICE. Any notice required or permitted to be given by any party
to the others shall be in writing and shall be deemed to have been given on the
date delivered personally or by courier service or 3 days after sent by
registered or certified mail, postage prepaid, return receipt requested or on
the date sent and confirmed received by facsimile transmission to the other
parties' respective addresses set forth below:
Notice to the Distributor shall be sent to:
Quasar Distributors, LLC
Attn: President
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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Notice to the Trust or the Adviser shall be sent to:
Xxxxxxx Investments
Attention: Vice President
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated as of the day and year first above
written.
XXXXXXX INVESTMENTS QUASAR DISTRIBUTORS, LLC
By: ________________________________ By: __________________________
Xxxxxx X. Xxxxxx, Vice President Xxxxx Xxxxxxxxx, President
XXXXXXX ASSET MANAGEMENT, INC.
By: ________________________________
Xxxx X. Xxxxxxxx, Chairman
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