Exhibit 6(b)
DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of AUGUST 19, 1994, by and between
LANDMARK FIXED INCOME FUNDS, a Massachusetts business trust (the "Trust"), and
THE LANDMARK FUNDS BROKER-DEALER SERVICES, INC., a Massachusetts corporation
("LFBDS" or the "Distributor") with respect to Shares of Beneficial Interest to
be designated "Class B".
WITNESSETH:
WHEREAS, the Trust is engaged in business as an open-end investment company
registered under the Investment Company Act of 1940 (collectively with the rules
and regulations promulgated thereunder, the "1940 Act");
WHEREAS, the Shares of Beneficial Interest of the Trust are divided into
one or more separate series (together with any series which may in the future be
established, the "Funds");
WHEREAS, the Board of Trustees of the Trust has adopted a Distribution
Plan, dated as of August 19, 1994 (the "Distribution Plan"), which is
incorporated herein by reference and pursuant to which the Trust desires to
enter into this Distribution Agreement; and
WHEREAS, the Trust wishes to engage LFBDS to provide certain services with
respect to the distribution of shares designated Class B Shares (the "Shares")
of each Fund, and LFBDS is willing to provide such services to the Trust on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of
the parties hereto as herein set forth, the parties covenant and agree as
follows:
1. The Trust grants to the Distributor the right, as agent of the Trust,
to sell Shares of each Fund upon the terms hereinbelow set forth during the
term of this Agreement. While this Agreement is in force, the Distributor
agrees to use its best efforts to find purchasers for Shares of each Fund.
The Distributor shall have the right, as agent of the Trust, to order
from the Trust the Shares needed, but not more than the Shares needed
(except for clerical errors and errors of transmission), to fill
unconditional orders for Shares of each Fund placed with the Distributor by
any dealer, all such orders to be made in the manner set forth in the
Trust's then-current prospectus (the "Prospectus") and then-current
statement of additional information (the "Statement of Additional
Information") relating to such Shares. The price which shall be paid to the
Trust for the Shares of each Fund so purchased shall be the net asset value
per Share as determined in accordance with the provisions of the Trust's
Declaration of Trust and By-Laws, as each may from time to time be amended
(collectively, the "Governing Instruments"). The Distributor shall notify
the Custodian of the Trust, at the end of each business day, or as soon
thereafter as the orders placed with the Distributor have been compiled, of
the number of Shares of each Fund and the prices thereof which have been
ordered through the Distributor since the end of the previous business day.
The right granted to the Distributor to place orders for Shares with the
Trust shall be exclusive, except that this exclusive right shall not apply
to Shares issued in the event that an investment company (whether a
regulated or private investment company or a personal holding company) is
merged with and into or consolidated with the Trust or any Fund or in the
event that the Trust or any Fund acquires, by purchase or otherwise, all
(or substantially all) the assets or the outstanding shares of any such
company; nor shall it apply to Shares issued by the Trust as a dividend or
stock split. The exclusive right to place orders for Shares granted to the
Distributor may be waived by the Distributor by notice to the Trust in
writing, either unconditionally or subject to such conditions and
limitations as may be set forth in such notice to the Trust. The Trust
hereby acknowledges that the Distributor may render distribution and other
services to other parties, including other investment companies. In
connection with its duties hereunder, the Distributor shall also arrange
for computation of performance statistics with respect to each Fund and
arrange for publication of current price information in newspapers and
other publications.
2. The Shares may be sold by the Distributor on behalf of the Trust to
or through any dealer having a sales agreement with the Distributor upon
the following terms and conditions:
The public offering price of the Shares, including the Shares of each
Fund, i.e., the price per Share at which the Distributor or dealer
purchasing Shares through the Distributor may sell shares to the public,
shall be the net asset value of such Shares.
The net asset value of Shares of each Fund shall be determined by the
Trust, or by an agent of the Trust, as of the close of trading on the New
York Stock Exchange on each day on which the New York Stock Exchange is
open for trading (and on such other days as the Trustees deem necessary in
order to comply with Rule 22c-1 under the 1940 Act), in accordance with the
method established pursuant to the Governing Instruments. The Trust shall
have the right to suspend the sale of Shares of any Fund if, because of
some extraordinary condition, the New York Stock Exchange shall be closed,
or if conditions existing during the hours when the Exchange is open render
such action advisable or for any other reason deemed adequate by the Trust.
3. The Trust agrees that it will, from time to time, but subject to the
necessary approval, if any, of its shareholders, take all necessary action
to register such number of Shares of each Fund under the Securities Act of
1933, as amended (the "1933 Act"), as the Distributor may reasonably be
expected to sell.
The Distributor shall be an independent contractor and neither the
Distributor nor any of its Directors, officers or employees as such, is or
shall be an employee of the Trust. It is understood that Trustees, officers
and shareholders of the Trust are or may become interested in the
Distributor, as Directors, officers, employees, or otherwise and that
Directors, officers and employees of the Distributor are or may become
similarly interested in the Trust and that the Distributor may be or become
interested in the Trust as a shareholder or otherwise. The Distributor is
responsible for its own conduct and the employment, control and conduct
(but only with respect to the duties and obligations of the Distributor
hereunder) of its agents and employees and for any injury to any of such
agents or employees or to others through its agents or employees. The
Distributor assumes full responsibility for its agents and employees under
applicable statutes and agrees to pay all employer taxes thereunder.
4. The Distributor covenants and agrees that, in selling Shares, it will
use its best efforts in all respects duly to conform with the requirements
of all state and federal laws and the Rules of Fair Practice of the
National Association of Securities Dealers, Inc. relating to the sale of
Shares, and will indemnify and hold harmless the Trust and each of its
Trustees and officers and each person, if any, who controls the Trust
within the meaning of Section 15 of the 1933 Act (the "Indemnified
Parties") against all losses, liabilities, damages or expenses (including
the reasonable cost of investigating or defending any alleged loss,
liability, damages, claim or expense and reasonable counsel fees incurred
in connection therewith) arising from any claim, demand, action or suit
(collectively, "Claims"), arising by reason of any person's acquiring any
of the Shares through the Distributor, which may be based upon the 1933 Act
or any other statute or common law, on account of any wrongful act of the
Distributor or any of its employees (including any failure to conform with
any requirement of any state or federal law or the Rules of Fair Practice
of the National Association of Securities Dealers, Inc. relating to the
sale of Shares) or on the ground that the registration statement under the
1933 Act, including all amendments thereto (the "Registration Statement"),
or Prospectus or previous prospectus or Statement of Additional Information
or previous statement of additional information, with respect to such
Shares, includes or included an untrue statement of a material fact or
omits or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, if and
only if any such act, statement or omission was made in reliance upon
information furnished by the Distributor to the Trust; provided, however,
that in no case (i) is the indemnity of the Distributor in favor of any
Indemnified Party to be deemed to protect any such Indemnified Party
against liability to which such Indemnified Party would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence in
the performance of its or his duties or by reason of its or his reckless
disregard of its or his obligations and duties under this Agreement, or
(ii) is the Distributor to be liable under its indemnity agreement
contained in this Section 4 with respect to any Claim made against any
Indemnified Party unless such Indemnified Party shall have notified the
Distributor 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 such Indemnified Party (or after such Indemnified
Party shall have received notice of such service on any designated agent),
but failure to notify the Distributor of any such Claim shall not relieve
it from any liability which it may have to any Indemnified Party otherwise
than on account of its indemnity agreement contained in this Section 4. 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 Claim, and, if the Distributor elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to each Indemnified Party. In the event that the Distributor
elects to assume the defense of any such suit and retain such counsel, each
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it but, in case the Distributor does not elect to
assume the defense of any such suit, it shall reimburse the Indemnified
Parties for the reasonable fees and expenses of any counsel retained by
them. Except with the prior written consent of the Distributor, no
Indemnified Party shall confess any CLAIM OR MAKE any compromise in any
case in which the Distributor will be asked to indemnify such Indemnified
Party. The Distributor agrees promptly to notify the Trust of the
commencement of any litigation or proceeding against it in connection with
the issuance and sale of any of the Shares.
Neither the Distributor nor any dealer nor any other person is
authorized to give any information or to make any representation on behalf
of the Trust in connection with the sale of Shares of any Fund, other than
those contained in the Registration Statement or Prospectus or Statement of
Additional Information relating to such Fund.
5. The Trust will pay, or cause to be paid--
(i) all costs and expenses of the Trust, including fees and
disbursements of its counsel, in connection with the preparation and
filing of the Registration Statement, Prospectus and Statement of
Additional Information with respect to Shares of each Fund, and
preparing and mailing to shareholders Prospectuses, Statements of
Additional Information, statements and confirmations and periodic
reports (including the expense of setting in type the Registration
Statement, Prospectus and Statement of Additional Information or any
periodic report with respect to Shares of each Fund);
(ii) the cost of preparing temporary or permanent certificates for
Shares;
(iii) the cost and expenses of delivering to the Distributor at its
office in Boston, Massachusetts all Shares purchased through it as
agent hereunder;
(iv) a distribution fee periodically at an annual rate equal to
0.75% of the portion of the average daily net assets of such Fund
that is represented by Shares for its then-current fiscal year,
subject to the Distribution Plan, and, under certain circumstances,
the Distributor may impose certain deferred sales charges in
connection with the repurchase of Shares of each Fund and the
Distributor may retain (or receive from each Fund, as the case may
be) all such deferred sales charges;
(v) at such time as may be agreed upon by the Trust and the
Distributor, a service fee from the assets of such Fund to the
Distributor at an annual rate not to exceed 0.25% of the portion of
the average daily net assets of such Fund that is represented by
Shares that are owned by investors for whom a broker-dealer who has
performed personal services and/or account maintenance services under
a dealer agreement with the Distributor is the holder or dealer of
record, subject to the Distribution Plan; and the Distributor shall
be entitled to be paid any fees payable under this paragraph (v)
hereof with respect to Shares for which no broker-dealer of record
exists or qualification standards have not been met as partial
consideration for personal services and/or account maintenance
services provided by the Distributor with respect to the Shares;
(vi) all fees and disbursements of the Transfer Agent and Custodian
with respect to each Fund, subject to the Trust's Administrative
Services Plan;
(vii) a fee to each Shareholder Servicing Agent (pursuant to a
shareholder servicing agreement with each such Agent), subject to the
Trust's Administrative Services Plan;
(viii) a fee to the Administrator of the Trust (pursuant to the
Administrative Services Agreement), subject to the Trust's
Administrative Services Plan; and
(ix) a fee to the investment adviser of each Fund, if any (pursuant
to the Investment Advisory Agreement with any such Adviser)
The Distributor agrees that, with respect to the sale of Shares of each
Fund, after the Prospectus and Statement of Additional Information and
periodic reports with respect to such Fund have been set in type, it will
bear the expense (other than the cost of mailing to shareholders of the
Trust) of printing and distributing any copies thereof which are to be used
in connection with the offering or sale of Shares of such Fund to any
dealer or prospective investor. The Distributor further agrees that it will
bear the expenses of preparing, printing and distributing any other
literature used by the Distributor or furnished by it for use by any dealer
in connection with the offering of the Shares of such Fund for sale to the
public and any expense of sending confirmations and statements to any
dealer having a sales agreement with the Distributor. The Distributor will
also bear the cost of any compensation paid to dealers in connection with
the sale of Shares of such Fund. The Distributor also agrees to bear the
expenses of qualification of Shares of such Fund for sale in the various
states and, if necessary or advisable in connection therewith, of
qualifying the Trust as a broker or dealer in any such state.
6. If, at any time during the term of this Agreement, the Trust shall
deem it necessary or advisable in the best interests of the Trust that any
amendment of this Agreement be made in order to comply with any
recommendation or requirement of the Securities and Exchange Commission or
other governmental authority or to obtain any advantage under Massachusetts
or federal tax laws, it shall notify the Distributor of the form of
amendment which it deems necessary or advisable and the reasons therefor.
If the Distributor declines to assent to such amendment (after a reasonable
time), the Trust may terminate this Agreement forthwith by written notice
to the Distributor without payment of any penalty. If, at any time during
the term of this Agreement, the Distributor requests the Trust to make any
change in its Governing Instruments or in its methods of doing business
which are necessary in order to comply with any requirement of federal law
or regulations of the Securities and Exchange Commission or of a national
securities association of which the Distributor is or may become a member,
relating to the sale of Shares, and the Trust fails (after a reasonable
time) to make any such change as requested, the Distributor may terminate
this Agreement forthwith by written notice to the Trust without payment of
any penalty.
7. The Distributor agrees that it will not take any long or short
position in the Shares of any Fund and that, so far as it can control the
situation, it will prevent any of its Directors or officers from taking any
long or short position in the Shares of such Fund, except as permitted by
the Governing Instruments.
8. This Agreement shall become effective upon its execution and shall
continue in force until August 19, 1996, on which date it will terminate
unless its continuance thereafter is specifically approved at least
annually (i) by the vote of a majority of the Trustees of the Trust who are
not "interested persons" of the Trust or of the Distributor at a meeting
specifically called for the purpose of voting on such approval, and (ii) by
the Board of Trustees of the Trust, or by the "vote of a majority of the
outstanding voting securities" of the Shares of each Fund as to which this
Agreement is to continue. The aforesaid requirement that continuance of
this Agreement be "specifically approved at least annually" shall be
construed in a manner consistent with the 1940 Act.
This Agreement may be terminated as to any Fund at any time by either
party without payment of any penalty on not more than 60 days' nor less
than 30 days' written notice to the other party.
This Agreement shall automatically terminate in the event of its
assignment.
9. LFBDS may subcontract for the performance of LFBDS' obligations
hereunder with any one or more persons; provided, however, that LFBDS shall
not enter into any such subcontract unless the Trustees of the Trust shall
have found the subcontracting parry lo be qualified to perform the
obligations sought to be subcontracted; and provided, further, that, unless
the Trust otherwise expressly agrees in writing, LFBDS shall be as fully
responsible to the Trust for the acts and omissions of any subcontractor as
it would be for its own acts or omissions.
10. The terms "vote of a majority of the outstanding voting securities",
"interested person", "assignment" and "specifically approved at least
annually" shall have the respective meanings specified in, and shall be
construed in a manner consistent with, the 1940 Act, subject, however, to
such exemptions as may be granted by the Securities and Exchange Commission
thereunder, and provided, however, that the term "assignment" shall include
(without limitation) any sale, transfer or conversion of a controlling
interest of any class of voting stock of I,FBDS or of any entity which
holds a controlling interest of any class of voting stock of LFBDS or
another such entity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered in their names on their behalf by the undersigned,
thereunto duly authorized, and their respective seals to be hereto affixed, all
as of the day and year first above written. The undersigned Trustee of the Trust
has executed this Agreement not individually, but as Trustee under the Trust's
Declaration of Trust dated June 23, 1986, and the obligations of this Agreement
are not binding upon any of the Trustees or shareholders of the Trust
individually, but bind only the Trust estate.
LANDMARK FIXED INCOME FUNDS THE LANDMARK FUNDS BROKER-
DEALER SERVICES, INC.
By: Xxxxxx Xxxxxxxx By: Xxxxxx Xxxxxxxx
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Title: President Title: Chief Executive Officer
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FIRST AMENDMENT TO DISTRIBUTION AGREEMENT
THIS FIRST AMENDMENT TO DISTRIBUTION AGREEMENT, dated as of May 5, 1995
(this "Amendment"), by and between Landmark Fixed Income Funds, a Massachusetts
business trust (the "Trust"), and THE LANDMARK FUNDS BROKER-DEALER SERVICES,
INC., a Massachusetts corporation (the "Distributor");
WITNESSETH:
WHEREAS, the Shares of Beneficial Interest of the Trust are divided into
one or more separate series (together with any series which may in the future be
established, the "Funds");
WHEREAS, pursuant to that certain Distribution Agreement dated as of
August 19, 1994 (the "Original Agreement") between the Trust and the
Distributor, the Trust has granted the Distributor the right, as agent of the
Trust, to sell Shares of Beneficial Interest of each Fund to be designated
"Class B"; and
WHEREAS, the Trust and the Distributor desire to amend the Original
Agreement to provide for the payment to the Distributor of a service fee on the
terms and conditions specified below;
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual covenants and agreements set forth below,
the parties hereto do hereby amend the Original Agreement as follows:
1. DEFINITIONS.
Capitalized terms used in this Amendment without definition shall have
the respective meanings assigned to them in the Original Agreement.
2. AMENDMENT.
Section 5(v) of the Original Agreement is hereby deleted in its entirety
and replaced with the following:
(v) a service fee from the assets of such Fund to the Distributor at an
annual rate not to exceed 0.25% of the portion of the average daily net assets
of such Fund that is represented by Shares, such fee to be (A) paid to the
Distributor in consideration of personal services and/or the maintenance of
shareholder accounts as provided or arranged by the Distributor, including the
maintenance of a telephone inquiry service for Fund investors, (B) paid to the
Distributor for its own account subject to
3. CONFIRMATION AGREEMENT
As amended hereby, the Original Agreement is confirmed and reaffirmed in
every particular.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered in their names and on their behalf by the undersigned
thereunto duly authorized, and their seals to be hereto affixed, all as of the
day and year first above written. The undersigned Trustee of the Trust has
executed this Amendment not individually but as Trustee under the Trust's
Declaration of Trust dated June 23, 1986, and the obligations of this Amendment
or of the Original Agreement, as amended hereby, are not binding upon any of the
Trustees or shareholders of the Trust individually, but bind only the Trust
estate.
LANDMARK FIXED INCOME FUNDS
By: Xxxxxx Xxxxxxxx
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THE LANDMARK FUNDS
BROKER-DEALER SERVICES, INC.
By: Xxxxxx Xxxxxxxx
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