1
EXHIBIT (6)
MUNICIPAL FUND FOR TEMPORARY INVESTMENT
DISTRIBUTION AGREEMENT
Agreement dated January 31, l994 between Municipal Fund for
Temporary Investment, a Pennsylvania common law trust (the "Company"), and
Provident Distributors, Inc., a Delaware corporation (the "Distributor").
WHEREAS, the Company is an open-end, diversified management
investment company and is so registered under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, the Company desires to retain the Distributor as its
distributor to provide for the sale and distribution of each series and
subseries of units of beneficial interest ("shares") in each of the Company's
investment portfolios (individually, a "Fund," collectively, the "Funds") as
listed on Appendix A (as such Appendix may, from time to time, be supplemented
(or amended)), and the Distributor is willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants set forth and intending to be legally bound, the parties hereto agree
as follows:
1. APPOINTMENT OF DISTRIBUTOR. The Company hereby
appoints the Distributor as distributor of each series and subseries of shares
in each of the Company's Funds on the terms and for the period set forth in
this Agreement. The Distributor hereby accepts such appointment and agrees to
render the services and duties set forth in Section 3 below. In the event that
the Company establishes additional series or investment portfolios other than
the Funds listed on Appendix A with respect to which it desires to retain the
Distributor to act as distributor hereunder, the Company shall notify the
Distributor, whereupon such Appendix A shall be supplemented (or amended) and
such portfolio shall become a Fund hereunder and shall be subject to the
provisions of this Agreement to the same extent as the Funds (except to the
extent that said provisions may be modified in writing by the Company and
Distributor at the time).
2. DELIVERY OF DOCUMENTS. The Company has furnished the
Distributor with copies, properly certified or authenticated, of each of the
following documents and will deliver to it all future amendments and
supplements, if any:
2
a. The Company's Declaration of Trust dated
March 30, 1981, as amended (the "Charter"),
b. The Company's Code of Regulations, as amended
("Code");
c. Resolutions of the Company's Board of
Trustees authorizing the execution and delivery of this Agreement;
d. The Company's most recent amendment to its
Registration Statement under the Securities Act of 1933, as amended (the "1933
Act"), and the 1940 Act on Form N-1A as filed with the Securities and Exchange
Commission (the "Commission") relating to its Funds (the Registration
Statement, as presently in effect and as amended or supplemented from time to
time, is herein called the "Registration Statement");
e. The Company's most recent Prospectuses and
Statements of Additional Information and all amendments and supplements thereto
(such Prospectuses and Statements of Additional Information and supplements
thereto, as presently in effect and as from time to time amended and
supplemented, are herein called the "Prospectuses").
3. SERVICES AND DUTIES. The Distributor enters into the
following covenants with respect to its services and duties:
a. The Distributor agrees to sell, as agent,
from time to time during the term of this Agreement, shares upon the terms and
at the current offering price as described in the Prospectuses. The
Distributor will act only in its own behalf as principal in making agreements
with selected dealers. No broker-dealer or other person which enters into a
selling or servicing agreement with the Distributor shall be authorized to act
as agent for the Company or its Funds in connection with the offering or sale
of shares to the public or otherwise. The Distributor shall use its best
efforts to sell shares of each series or subseries of each of the Funds but
shall not be obligated to sell any certain number of shares.
b. The Distributor shall prepare or review,
provide advice with respect to, and file with the federal and state agencies or
other organization as required by federal, state, or other applicable laws and
regulations, all sales literature (advertisements, brochures and shareholder
communications) for each of the Funds and any series or subseries thereof.
-2-
3
c. In performing all of its services and duties
as Distributor, the Distributor will act in conformity with the Charter, Code,
Prospectuses and resolutions and other instructions of the Company's Board of
Trustees and will comply with the requirements of the 1933 Act, the Securities
Exchange Act of 1934, the 1940 Act and all other applicable federal or state
law.
d. The Distributor will bear the cost of (i)
printing and distributing any Prospectus (including any supplement thereto) to
persons who are not shareholders, and (ii) preparing, printing and distributing
any literature, advertisement or material which is primarily intended to result
in the sale of shares; provided, however, that the Distributor shall not be
obligated to bear the expenses incurred by the Company in connection with the
preparation and printing of any amendment to any Registration Statement or
Prospectus necessary for the continued effective registration of the shares
under the 1933 Act and state securities laws and the distribution of any such
document to existing shareholders of the Company's Funds.
e. The Company shall have the right to suspend
the sale of shares 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 and regulations of the
Commission ("Rules").
f. The Company reserves the right to reject any
order for shares but will not do so arbitrarily or without reasonable cause.
4. LIMITATIONS OF LIABILITY. The Distributor shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
the Company in connection with the matters to which this Agreement relates,
except a loss resulting from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or from reckless disregard by it
of its obligations and duties under this Agreement.
5. PROPRIETARY AND CONFIDENTIAL INFORMATION. The Distributor
agrees on behalf of itself and its employees to treat confidentially and as
proprietary information of the Company all records and other information
relative to the Company and its Funds and prior, present or potential
shareholders, and not to use such records and information for any purpose other
than performance of its responsibilities and duties hereunder, except after
prior notification to and approval in writing by the Company, which approval
shall not be unreasonably withheld and may not be withheld where the
Distributor may be exposed to civil
-3-
4
or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so requested
by the Company.
6. INDEMNIFICATION.
a. The Company represents and warrants to the
Distributor that the Registration Statement contains, and that the Prospectuses
at all times will contain, all statements required by the 1933 Act and the
Rules of the Commission, will in all material respects conform to the
applicable requirements of the 1933 Act and the Rules and will not include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, except that no
representation or warranty in this Section 6 shall apply to statements or
omissions made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Distributor or either of the
Company's co-administrators expressly for use in the Registration Statement or
Prospectuses.
b. The Company on behalf of each Fund agrees
that each Fund will indemnify, defend and hold harmless the Distributor, its
several officers, and trustees, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, from and against any losses,
claims, damages or liabilities, joint or several, to which the Distributor, its
several officers, and directors, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, may become subject under the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of, or are based upon
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, the Prospectuses or in any application or other
document executed by or on behalf of the Company with respect to such Fund or
are based upon information furnished by or on behalf of the Company with
respect to such Fund filed in any state in order to qualify the shares under
the securities or blue sky laws thereof ("Blue Sky application") or arise out
of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse the Distributor, its several
officers, and directors, and any person who controls the Distributor within the
meaning of Section 15 of the 1933 Act, for any legal or other expenses
reasonably incurred by the Distributor, its several officers, and directors,
and any person who controls the Distributor within the meaning of Section 15 of
the 1933 Act, in investigating, defending or preparing to defend any such
action, proceeding or
-4-
5
claim; provided, however, that the Company shall not be liable in any case to
the extent that such loss, claim, damage or liability arises out of, or is
based upon, any untrue statement, alleged untrue statement, or omission or
alleged omission made in the Registration Statement, the Prospectus or any Blue
Sky application with respect to such Fund in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the
Distributor or either of the Company's co-administrators specifically for
inclusion therein or arising out of the failure of the Distributor to deliver a
current Prospectus.
c. The Company on behalf of each Fund shall not
indemnify any person pursuant to this Section 6 unless the court or other body
before which the proceeding was brought has rendered a final decision on the
merits that such person was not liable by reason of his or her willful
misfeasance, bad faith or gross negligence in the performance of his or her
duties, or his or her reckless disregard of any obligations and duties, under
this Agreement ("disabling conduct") or, in the absence of such a decision, a
reasonable determination (based upon a review of the facts) that such person
was not liable by reason of disabling conduct has been made by the vote of a
majority of a quorum of the trustees of the Company who are neither "interested
parties" (as defined in the 0000 Xxx) nor parties to the proceeding, or by
independent legal counsel in a written opinion.
d. The Distributor will indemnify and hold
harmless the Company and each of its Funds and its several officers and
trustees, and any person who controls the Company within the meaning of Section
15 of the 1933 Act, from and against any losses, claims, damages or
liabilities, joint or several, to which any of them may become subject under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are
based upon, any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus or any Blue Sky
application, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company or any of its several officers and directors by or on
behalf of the Distributor or either of the Company's co-administrators
specifically for inclusion therein, and will reimburse the Company and its
several officers, trustees and such controlling persons for any legal or other
expenses reasonably incurred by any of them in investigating, defending or
preparing to defend any such action, proceeding or claim.
-5-
6
e. The obligations of each Fund under this
Section 6 shall be the several (and not the joint or joint and several)
obligation of each Fund.
7. DURATION AND TERMINATION. This Agreement shall
become effective upon its execution as of the date first written above and,
unless sooner terminated as provided herein, shall continue until March 31,
1995. Thereafter, if not terminated, this Agreement shall continue
automatically for successive terms of one year, provided that such continuance
is specifically approved at least annually (a) by a vote of a majority of those
members of the Company's Board of Trustees who are not parties to this
Agreement or "interested persons" of any such party, cast in person at a
meeting called for the purpose of voting on such approval, and (b) by the
Company's Board of Trustees or by vote of a "majority of the outstanding voting
securities" of the Company; provided, however, that this Agreement may be
terminated by the Company at any time, without the payment of any penalty, by
vote of a majority of the entire Board of Trustees or by a vote of a "majority
of the outstanding voting securities" of the Company on 60-days' written notice
to the Distributor, or by the Distributor at any time, without the payment of
any penalty, on 90-days' written notice to the Company. This Agreement will
automatically and immediately terminate in the event of its "assignment." (As
used in this Agreement, the terms "majority of the outstanding voting
securities," "interested person" and "assignment" shall have the same meanings
as such terms have in the 1940 Act.)
8. AMENDMENT OF THIS AGREEMENT. No provision of this
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against which an enforcement of
the change, waiver, discharge or termination is sought.
9. NOTICES. Notices of any kind to be given to the
Company hereunder by the Distributor shall be in writing and shall be duly
given if mailed or delivered to the Company at Bellevue Park Corporate Center,
Suite 152, 103 Bellevue Parkway, Wilmington, Delaware 19809, Attention: Xx.
Xxxxxx X. Xxxxx, Treasurer, with a copy to Philadelphia National Bank Building,
0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx Xxxxxxxxxxxx 00000-0000, Attention: Xxxxxx
X. Xxxxx, Secretary, or at such other address or to such individual as shall be
so specified by the Company to the Distributor. Notices of any kind to be
given to the Distributor hereunder by the Company shall be in writing and shall
be duly given if mailed or delivered to Provident Distributors, Inc., 000
Xxxxxx-Xxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
-0-
0
Xxxxxxxxxxxx 19087, Attention: Xxxxxx X. Xxxxxxx or at such other address or
to such other individual as shall be so specified by the Distributor to the
Company.
10. MISCELLANEOUS. a. 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. If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors.
b. The names "Municipal Fund for Temporary
Investment" and "Trustees of Municipal Fund for Temporary Investment" refer
specifically to the trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under a Declaration of
Trust dated March 30, 1981, which is hereby referred to and a copy of which is
on file at the principal office of the Company. The obligations of "Municipal
Fund for Temporary Investment" entered into in the name or on behalf thereof by
any of the Trustees, officers, representatives or agents are not made
individually, but in such capacities, and are not binding upon any of the
Trustees, shareholders, representatives or agents of the Company personally,
but bind only the Trust property (as defined in the Declaration of Trust), and
all persons dealing with any Fund or series of shares of the Company must look
solely to the Trust property belonging to such Fund or series for the
enforcement of any claims against the Company.
11. COUNTERPARTS. This Agreement may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
-7-
8
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
MUNICIPAL FUND FOR TEMPORARY
INVESTMENT
By
-----------------------------
President
PROVIDENT DISTRIBUTORS, INC.
By
-----------------------------
Title
-8-
9
APPENDIX A
to the
DISTRIBUTION AGREEMENT
between
Municipal Fund for Temporary Investment
and
Provident Distributors, Inc.
--------------------------------------------------------------------------------
MuniFund (MuniFund shares and MuniFund Dollar shares)
MuniCash (MuniCash shares and MuniCash Dollar shares)
Intermediate Municipal Fund (Intermediate Municipal shares and Intermediate
Dollar shares)
A-1
