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Exhibit 6(b)
SIERRA ASSET MANAGEMENT PORTFOLIOS
CLASS B DISTRIBUTION AGREEMENT
Entered into as of July 19, 1996
Sierra Investment Services Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Ladies and Gentlemen:
This is to confirm that, in consideration of the mutual promises and
covenants hereinafter contained, the undersigned Sierra Asset Management
Portfolios (the "Trust"), a business trust organized under the laws of the
Commonwealth of Massachusetts and registered as an open-end, management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), agrees that Sierra Investment Services Corporation ("Sierra
Services"), a corporation organized under the laws of the state of California,
shall be, for the period of this Agreement, a distributor of certain classes of
shares of beneficial interest that are identified on Schedule 1 to this
Agreement and that are issued by the Trust with respect to certain of its series
as identified on such Schedule 1 (shares of such identified classes of such
identified series, the "Shares"), each of which series is a separate investment
portfolio (a "Portfolio"), on the terms and conditions hereinafter set forth.
1. Appointment
The Trust hereby appoints Sierra Services as agent of the Trust to act,
for the period and on the terms set forth in this Agreement, as a distributor of
the Portfolios' Shares covered by the Trust's registration statement (the
"Registration Statement"), prospectuses and statements of additional information
as in effect from time to time under the Securities Act of 1933, as amended (the
"1933 Act"), and the 1940 Act, and
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Sierra Services accepts such appointment and agrees to render the services
herein described for the compensation herein provided.
As used in this Agreement, the terms "registration statement,"
"prospectus," and "statement of additional information" shall mean any
registration statement, prospectus and statement of additional information filed
by the Trust with the SEC and any amendments thereof and supplements thereto
which at any time shall have been filed with the SEC. "Prospectus" shall mean,
with respect to any Shares of any Portfolio at any time, the then-current
prospectus and statement of additional information relating to such Shares.
2. Sales of Shares
2.1 Authorization. The Trust hereby authorizes Sierra Services to sell
Shares of the Portfolios, and Sierra Services agrees to use its best efforts to
solicit orders for the sale of such Shares, at such Shares' public offering
price, as determined in accordance with the Registration Statement. Sierra
Services shall have the right to order from the Trust the Shares of the
Portfolios needed, but not more than needed (correcting for any clerical errors
or errors of transmission), to fill such orders as are unconditional.
2.2 Selling Broker-Dealers and Other Agents. Sierra Services may, as
principal and on its own behalf, enter into agreements ("Dealer Agreements"), on
such terms and conditions as Sierra Services determines are not inconsistent
with this Agreement, with (a) any broker-dealer who is (i) registered under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), (ii) registered as
required under applicable state securities or blue sky laws, and (iii) a member
in good standing of the National Association of Securities Dealers, Inc.
("NASD"); and (b) any other person (as such term is defined in the 0000 Xxx)
that is not required, for purposes of effecting transactions in securities, to
be registered under the 1934 Act, but is registered as required under applicable
state securities or blue sky laws, authorizing such broker-dealers and other
persons (collectively, "Brokers") to act as agents in connection with the sale
of the Shares of the Portfolios (which may include accepting
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orders for the purchase or redemption of Shares, responding to inquiries
regarding the Trust or the Portfolios, and performing other related functions).
Expulsion or suspension from the NASD of any Broker required to be registered
under the 1934 Act shall automatically terminate such Broker's Dealer Agreement
with Sierra Services for sales of Shares as of the effective date of such
expulsion or suspension.
2.3 Refusal and Suspension of Sales. Each of Sierra Services and the
Trust reserves the right to refuse at any time or times (a) to sell any Shares
for any reason, and (b) to accept an order for Shares for any reason. Sierra
Services acknowledges specifically that, whenever in the judgment of the Trust's
officers such action is warranted for any reason, including, without limitation,
market, economic or political conditions, The Trust may decline to accept any
orders for, or make any sales of, any Shares of any Portfolio until such time as
those officers deem it advisable to accept such orders and to make such sales.
No Shares shall be offered and no orders for the purchase or sale of
Shares under any provisions of this Agreement shall be accepted by the Trust (a)
if and so long as the effectiveness of the Registration Statement or any
necessary amendments thereto shall be suspended under any provisions of the 1933
Act, or (b) if and so long as a current prospectus as required by Section
5(b)(2) of the 1933 Act is not on file with the SEC; provided, however, that
nothing contained in this Section 2.3 shall in any way restrict or have an
application to or bearing upon the Trust's obligation to repurchase Shares from
any holder thereof in accordance with the provisions of the Prospectus or the
Trust's Agreement and Declaration of Trust dated March 26, 1996, together with
all amendments thereto (as so amended, the "Trust Agreement").
3. Distribution Services and Expenses
3.1 Distribution Expenses. Sierra Services will bear all expenses in
connection with the performance of its services and the incurring of
distribution expenses under this Agreement. For purposes of this Agreement,
"distribution expenses" of Sierra Services shall mean all expenses borne by
Sierra Services or by
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any other person with which Sierra Services has an agreement (including but not
limited to Dealer Agreements) approved by the Trust, which expenses represent
payment for activities primarily intended to result in the sale of Shares,
including, but not limited to, the following (provided, that "distribution
expenses" shall not include any expenditures in connection with services that
Sierra Services or any other person have agreed to bear or provide without
reimbursement or compensation):
(a) payments made to, and expenses of, registered
representatives and other employees of Sierra Services
or of Brokers;
(b) payments made to, and expenses of, persons providing support
services in connection with the distribution of Shares,
including but not limited to office space and equipment,
telephone facilities, answering routine inquiries regarding
the Trust, and processing transactions;
(c) costs relating to the formulation and implementation of
marketing and promotional activities, including but not
limited to direct mail promotions and television, radio,
newspaper, magazine and other mass media advertising, and
costs involved in preparing, printing and distributing
advertising and sales literature pertaining to the Trust or
the Portfolios;
(d) costs of printing and distributing Prospectuses and
reports of the Trust to prospective Shareholders of the
Portfolios;
(e) costs involved in obtaining whatever information, analyses and
reports with respect to marketing and promotional activities
that the Trust may, from time to time, deem advisable; and
(f) costs of financing any of the foregoing.
3.2 Quarterly Expense Reports. Sierra Services shall prepare and
deliver quarterly reports to the Treasurer of the Trust and to the advisor,
administrator and/or sub-administrator of each Portfolio, showing distribution
expenses incurred
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pursuant to this Agreement and the relevant Plan (as defined in Section 8.1 of
this Agreement) and the purposes therefor, as well as any supplemental reports
as the Trustees, from time to time, may reasonably request.
3.3 Scope of Distribution Services. Distribution services rendered
pursuant to this Agreement with respect to any Share of any Portfolio shall be
deemed to be complete upon the issuance and sale of such Share.
3.4 Trust Expenses. Sierra Services shall not be liable to assume any
other expenses of the Trust or any Portfolio, which other expenses may include
without limitation: investment advisory fees; charges and expenses of any
registrar, custodian or depositary appointed by the Trust for safekeeping of its
cash, portfolio securities, or other property, and any transfer, dividend or
accounting agent(s) appointed by the Trust; brokers' commissions chargeable to
the Trust in connection with its portfolio securities transactions; all taxes,
including securities issuance and transfer taxes; all costs and expenses in
connection with maintenance of registration of the Trust, any Portfolio and the
Shares with the SEC, various states, and other jurisdictions (including filing
and legal fees and disbursements of counsel); expenses of printing, including
typesetting, and distributing Prospectuses to the Portfolios' shareholders; all
expenses of shareholders' and Trustees' meetings and of preparing, printing and
mailing proxy statements and reports to shareholders; fees and expenses of
Trustees; all expenses incident to the payment of any dividend, distribution,
withdrawal or redemption, whether in Shares or in cash; charges and expenses
of any outside service used for pricing of Shares; charges and expenses of legal
counsel and independent accountants, in connection with any matter relating to
the Trust; membership dues of industry associations; interest payable on
borrowings; postage; insurance premiums on property or personnel (including
officers and Trustees) of the Trust that inure to its benefit; extraordinary
expenses (including but not limited to legal claims and liabilities and
litigation costs and any indemnification related thereto); and all other charges
and costs of operations unless otherwise explicitly provided herein.
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4. Compensation
4.1 Distribution Fee. The Trust will pay Distributor in consideration
of its services in connection with the distribution of Shares of each Portfolio
its "Allocable Portion", as defined in Schedule 2 to this Agreement, of the
distribution fee allowable under the rules of fair practice of the National
Association of Securities Dealers (the "Rules of Fair Practice") in respect of
such Shares of such Portfolio, which fee shall accrue daily and be paid monthly
as promptly as possible after the last day of each month but in any event prior
to the tenth day of the following calendar month, at an annual rate of 0.75% per
annum of the average daily net asset value of the such Shares of such Portfolio,
subject to the aggregate maximum limitation on the distribution fee allowable
under the Rules of Fair Practice and the Distribution Plan in respect of such
class of Shares ("Distribution Fee").
Distributor will be deemed to have fully earned its Allocable
Portion of the Distribution Fee payable in respect of Shares of each Portfolio
upon the sale of the "Commission Shares" (as defined in Schedule 2 to this
Agreement) of such Portfolio taken into account in determining such
Distributor's Allocable Portion of such Distribution Fee.
4.2 Contingent Deferred Sales Charges. The Trust shall cause its
transfer agent (the "Transfer Agent") to withhold, from redemption proceeds
payable to holders of Shares of the Portfolios, all contingent deferred sales
charges properly payable by such holders in accordance with the terms of the
Prospectuses relating to such Shares ("CDSCs") and shall cause the Transfer
Agent to pay such amounts over as promptly as possible after the settlement date
for each redemption of such Shares. Sierra Services' Allocable Portion (as
defined in Schedule 2 to this Agreement) of such CDSC amounts shall be payable
to Sierra Services (or to persons to whom Sierra Services directs the Trust to
make payments).
4.3 Other Services; Service Fee. Upon request of the Trust's Board of
Trustees, Sierra Services may, but shall be under no duty to, perform additional
services on behalf of the Trust or any Portfolio, which services are not
required by this
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Agreement but may be performed by Sierra Services in conformity with applicable
law. Any such services will be performed on behalf of the Trust, and Sierra
Services may impose additional charges for such services, which charges may be
billed to the Trust and subject to examination by the Trust's independent
accountants. Sierra Services' payment or assumption of any expense of the Trust
that Sierra Services is not required to pay or assume under this Agreement shall
not relieve Sierra Services of any of its obligations to the Trust or obligate
Sierra Services to pay or assume any similar expense on any subsequent occasion.
The Distribution Fee payable pursuant to this Agreement shall not be
deemed to compensate Sierra Services for any shareholder services it may provide
to the Trust or any Portfolio pursuant to the relevant Plan, which services may
include processing of shareholder transactions, responding to inquiries from
shareholders concerning the status of their accounts and the operations of the
Trust or any Portfolio, communicating with the Trust and its transfer agent on
behalf of such shareholders, or providing other shareholder services, nor for
any expenses associated with the provision of such shareholder services,
including office space and equipment, and telephone facilities. Any such
shareholder services shall be provided pursuant to a separate agreement.
4.4 Directed Payment; Allocable Portion Calculations. Sierra Services
may direct the Trust to pay any part or all of the Distribution Fee or CDSCs
payable to Sierra Services in respect of any Shares of any Portfolio directly to
persons providing funds to Sierra Services to cover or otherwise enable the
incurring of expenses associated with distribution services, and the Trust
agrees to accept and to comply with such direction. Sierra Services shall, at
its own expense and not the expense of the Trust or any Portfolio, provide the
Trust with any necessary calculations of Sierra Services' Allocable Portion of
any Distribution Fee or CDSCs, and the Trust shall be entitled to rely
conclusively on such calculations, without prejudice to any claim it may have
concerning the accuracy of such calculations.
4.5 Maximum Charges. Notwithstanding anything to the contrary contained
in this Agreement or in any relevant Plan, the amount of asset-based sales
charges and CDSCs paid to Sierra
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Services by any class of shares of any Portfolio shall not exceed the amount
permitted by the Conduct Rules of the NASD ("NASD Conduct Rules"), as in effect
from time to time.
5. Disclosure and Sales Materials
5.1 Portfolio Governing Documents. The Trust shall have furnished
Sierra Services with copies, properly certified or authenticated as Sierra
Services may reasonably request, of the following documents and of all
amendments or supplements thereto (such documents as so amended or supplemented,
with respect to any Portfolio, that Portfolio's "Governing Documents"):
(a) The Trust Agreement;
(b) The Trust's Bylaws, as amended and in effect as of the date of
this Agreement (such Bylaws, as they may be amended from time
to time hereafter, the "Bylaws");
(c) Resolutions of the Trust's Board of Trustees
authorizing the appointment of Sierra Services as a
Distributor of the Shares of the Portfolio and
authorizing this Agreement;
(d) The Trust's Notification of Registration filed pursuant to
Section 8(a) of the 1940 Act on Form N-8A under the 1940 Act,
as filed with the Securities and Exchange Commission (the
"SEC") on March 27, 1996;
(e) The Trust's registration statement on Form N-1A under the
Securities Act of 1933, as amended (the "1933 Act"), and under
the 1940 Act as filed with the XXX xx Xxxxx 00, 0000 (Xxxx
Nos. 333-01999 and 811-07577) relating to the Shares of the
Portfolio, and all amendments thereto;
(f) The most recent Prospectus relating to Shares of the
Portfolio; and
(g) All documents, notices and reports filed with the SEC.
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5.2 The Trust authorizes Sierra Services and any Broker with whom
Sierra Services has entered into Dealer Agreements to use, in connection with
the sale of Shares, any Prospectus furnished by the Trust from time to time.
Sierra Services shall not, and shall take reasonable steps to ensure that no
Broker will, give any information nor make any representations, concerning any
aspect of the Shares, the Portfolios or the Trust to any persons or entity
unless such information or representations are contained in the Registration
Statement and/or the pertinent Prospectus, or are contained in sales or
promotional literature approved by the Trust. Sierra Services shall not use, and
shall take reasonable steps to ensure that no Broker will, use any sales
promotion material or advertising that has not been previously approved by the
Trust.
6. Duties of the Trust
6.1 The Trust agrees at its own expense to execute any and all
documents, to furnish any and all information and to take any other actions that
may be reasonably necessary in connection with (a) the registration of Shares
under the 1933 Act and (b) the qualification, pursuant to state securities laws,
of the Shares for sale in those states that Sierra Services may designate.
6.2 Information Reports; Financial Data. The Trust shall furnish to
Sierra Services from time to time, for use in connection with the sale of the
Shares, such information reports with respect to the Trust and the Shares as
Sierra Services may reasonably request. Such reports shall be signed by officers
of the Trust duly authorized; the Trust warrants the statements contained in any
reports so signed to be true and correct. The Trust shall furnish to Sierra
Services, upon its request, (a) annual audits of the Trust's books and accounts
made by independent public accountants regularly retained by the Trust, (b)
semiannual unaudited financial statements pertaining to the Trust, (c) quarterly
earnings statements prepared by the Trust, (d) a monthly itemized list of the
securities in the portfolios of all Portfolios, (e) monthly balance sheets as
soon as practicable after the end of each month and (f) such additional
information regarding the Trust's financial condition as Sierra Services may
reasonably request from time to time.
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7. Compliance; Standard of Care
7.1 Compliance. In performing any activity as distributor
for Shares of any Portfolio pursuant to this Agreement, Sierra
Services shall comply with:
(a) all applicable provisions of the 1940 Act and any rules
and regulations thereunder;
(b) all provisions of the Registration Statement relating
to the Portfolio;
(c) all provisions of the Portfolio's Governing Documents;
(d) all rules and regulations of the NASD and all other
self-regulatory organizations applicable to the sale of
investment company shares; and
(e) any other applicable provisions of federal and state
law.
Sierra Services shall use its best efforts to maintain all required
licenses and registrations for itself as a broker or dealer, and for its
registered representatives or other associated persons, under the 1934 Act and
applicable state securities or blue sky laws. Sierra Services shall be
responsible for ensuring that each Broker and its representatives engaged in
selling Shares of the Portfolios shall be duly and appropriately licensed,
registered and otherwise qualified to do so under the 1934 Act and any
applicable blue sky laws of each state or other jurisdiction in which such
Shares may be sold. Sierra Services shall be responsible for ensuring that each
Broker supervises its representatives. Expulsion or suspension of Sierra
Services from the NASD shall automatically terminate this Agreement on the
effective date of such expulsion or suspension.
7.2 Direction of the Board. Any distribution activities undertaken by
Sierra Services pursuant to this Agreement or any other services undertaken by
Sierra Services on behalf of the
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Trust or any Portfolio, shall at all times be subject to any directives of the
Board of Trustees of the Trust.
7.3 Standard of Care. In performing its duties under this Agreement,
Sierra Services shall be obligated to exercise care and diligence and to act in
good faith and to use its best efforts within reasonable limits in performing
all services provided for under this Agreement, but shall not be liable for any
act or omission not constituting Sierra Services' willful misfeasance, bad faith
or gross negligence, or Sierra Services' reckless disregard of its duties under
this Agreement.
8. Representations and Warranties
8.1 Distribution Plan. The Trust represents and warrants to Sierra
Services that the payment by the Trust of fees under this Agreement for
distribution services rendered with respect to any Shares of any Portfolio is
authorized pursuant to the Trust's Class B Distribution Plan, as amended,
pertaining to such Shares of such Portfolio, adopted in accordance with Rule
12b-1 under the 1940 Act (a "Plan").
8.2 Registration Statements and Prospectuses. The Trust represents to
Sierra Services that all Registration Statements and Prospectuses filed by the
Trust with the SEC under the 1933 Act and the 1940 Act with respect to the
Shares are in conformity with the requirements of the 1933 Act, the 1940 Act and
the rules and regulations of the SEC thereunder. The Trust represents and
warrants to Sierra Services that any Registration Statement or Prospectus, when
it becomes effective, will include all statements required to be contained
therein in conformity with the 1933 Act, the 1940 Act and the rules and
regulations of the SEC; that all statements of fact contained in any
Registration Statement or Prospectus will be true and correct when such
Registration Statement or Prospectus becomes effective; and that no Registration
Statement nor any Prospectus, when the same shall become effective, will include
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading to a purchaser of Shares. Sierra Services may, but shall not be
obligated to, propose from time to time such
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amendment(s) to any Registration Statement and such supplement(s) to any
Prospectus as, in the light of future developments, may, in the opinion of
Sierra Services or its counsel, be necessary or advisable. The Trust shall not
file any amendment to any Registration Statement or supplement to any Prospectus
without giving Sierra Services reasonable notice thereof in advance; provided,
however, that nothing contained in this Agreement shall in any way limit the
Trust's right to file at any time such amendment(s) to any Registration
Statement and supplement(s) to any Prospectus, of whatever character, as the
Trust may deem advisable, such right being in all respects absolute and
unconditional.
8.3 Charter. The Trust represents that a copy of its Trust Agreement,
together with all amendments thereto, is on file in the office of the Secretary
of the Commonwealth of Massachusetts and the office of the City Clerk of Boston,
Massachusetts.
8.4 Authorization. Sierra Services represents to the Trust that it is
authorized to perform the services described herein.
8.5 NASD. Sierra Services represents to the Trust that it is a member
in good standing of the NASD.
9. Indemnification
9.1 Indemnification by the Trust. The Trust agrees to indemnify, defend
and hold Sierra Services, its officers, directors, agents, employees, and any
person who controls Sierra Services within the meaning of Section 15 of the 1933
Act (Sierra Services and such persons, collectively, "SISC Indemnified
Persons"), free and harmless from and against any and all claims, demands,
liabilities and expenses (including the cost of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) that any SISC Indemnified Person may incur under the 1933 Act, the
1940 Act or common law or otherwise, arising out of or based upon any untrue
statement (or alleged untrue statement) of a material fact contained in any
Registration Statement or Prospectus relating to Shares of the Trust, or arising
out of or based upon any omission (or alleged omission) to state a material fact
required to be
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stated in any Registration Statement or Prospectus relating to Shares of the
Trust, or necessary to make the statements in such Registration Statement or
Prospectus not misleading, or arising out of or based upon the Trust's material
breach of this Agreement; provided, however, that the Trust's agreement to
indemnify SISC Indemnified Persons shall not be deemed to cover any claims,
demands, liabilities or expenses arising out of or based upon any statements or
representations made by Sierra Services or its representatives or agents other
than such statements and representations as are contained in any Registration
Statement or Prospectus and in such financial and other statements regarding
Shares of the Portfolios as are furnished to Sierra Services pursuant to
Sections 5.1 and 6.2 of this Agreement; and provided further, that the Trust's
agreement to indemnify Sierra Services and the Trust's representations and
warranties hereinbefore set forth in Section 8 of this Agreement shall not be
deemed to cover any liability to the Trust or its shareholders to which Sierra
Services would otherwise be subject by reason of Sierra Services' willful
misfeasance, bad faith or gross negligence in the performance of its duties, or
by reason of Sierra Services' reckless disregard of its obligations and duties
under this Agreement.
The Trust's agreement to indemnify SISC Indemnified Persons is
expressly conditioned upon such SISC Indemnified Person's notifying the Trust,
or causing the Trust to be notified, of any action brought against such SISC
Indemnified Person, such notification to be given by letter, telegram, telecopy
or facsimile addressed to the Trust at its principal office, within ten (10)
days after the summons or other first legal process shall be served; provided
that the failure to provide such notification within such time limit shall limit
the Trust's obligation to indemnify such persons only to the extent such failure
causes prejudice to the interests of the Trust with respect to such action. The
failure so to notify the Trust of any such action shall not relieve the Trust
from any liability that 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 9.1. The Trust's indemnification
agreement contained in this Section 9.1 and the Trust's representations and
warranties in this Agreement shall remain operative and in full force and
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effect regardless of any investigation made by or on behalf of any SISC
Indemnified Person, and shall survive the delivery of any Shares and, to the
extent permitted by law, the termination of this Agreement. This agreement of
indemnity will inure exclusively to the benefit of SISC Indemnified Persons and
their respective estates or successors, as applicable.
9.2 Indemnification by Sierra Services. Sierra Services agrees to
indemnify, defend and hold the Trust, its officers, directors, agents,
employees, and any person who controls the Trust within the meaning of Section
15 of the 1933 Act (the Trust and such persons, collectively, "Trust Indemnified
Persons"), free and harmless from and against any and all claims, demands,
liabilities and expenses (including the costs of investigating or defending such
claims, demands or liabilities and any counsel fees incurred in connection
therewith) that any Trust Indemnified Person may incur under the 1933 Act, the
1940 Act or common law or otherwise, but only to the extent that such liability
or expense incurred by such Trust Indemnified Person shall arise out of or be
based upon (a) any unauthorized sales literature, advertisements, information,
statements or representations or (b) any untrue statement (or alleged untrue
statement) of a material fact contained in information furnished in writing by
Sierra Services to the Trust and used in the answers to any of the items of the
Registration Statement or in the corresponding statements made in any
Prospectus, or shall arise out of or be based upon any omission (or alleged
omission) to state a material fact in connection with such information furnished
in writing by Sierra Services to the Trust and required to be stated in such
answers or necessary to make such information not misleading, or shall arise out
of or be based upon SISC's material breach of this Agreement.
Sierra Services' agreement to indemnify Trust Indemnified Persons is
expressly conditioned upon such Trust Indemnified Person's notifying Sierra
Services, or causing Sierra Services to be notified, of any action brought
against such Trust Indemnified Person, such notification to be given by letter,
telegram, telecopy or facsimile addressed to Sierra Services at its principal
office, within ten (10) days after the summons or other first legal process
shall be served; provided that the failure to provide such notification within
such time limit shall limit Sierra Services' obligation to indemnify such
persons only to the
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extent such failure causes prejudice to the interests of Sierra Services with
respect to such action. The failure so to notify Sierra Services of any such
action shall not relieve Sierra Services from any liability that Sierra Services
may have to the Trust Indemnified Person by reason of any such untrue (or
alleged untrue) statement or omission (or alleged omission) otherwise than on
account of Sierra Services' indemnity agreement contained in this Section 9.2.
Sierra Services' indemnification agreement contained in this Section 9.2 and its
representations and warranties in this Agreement shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Trust Indemnified Person, and shall survive the delivery of any Shares and,
to the extent permitted by law, the termination of this Agreement. This
agreement of indemnity will inure exclusively to the benefit of Trust
Indemnified Persons and their respective estates or successors, as applicable.
9.3 Assumption of Defense. An indemnifying party will be entitled to
assume the defense of any suit brought to enforce any such claim, demand or
liability, but, in such case, such defense shall be conducted by counsel of good
standing chosen by the indemnifying party and approved by the indemnified party
(provided that such counsel shall not, except with the consent of an indemnified
party that is a SISC Indemnified Person, be counsel to any investment portfolio
of the Trust); provided that the indemnified party shall be entitled to conduct
its own defense with counsel selected by it if such indemnified party is advised
by counsel that there may be a conflict of interest between the indemnified
party and the indemnifying party with respect to such defense. In the event the
indemnifying party elects to assume the defense of any such suit and retain
counsel of good standing approved by the indemnified party, the defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by any of them; but in case the indemnifying party does not
elect or is not permitted to assume the defense of any such suit, or in case the
indemnified party does not approve of counsel chosen by the indemnifying party,
the indemnifying party will reimburse the indemnified party named as defendant
or defendants in such suit, for the fees and expenses of any counsel retained by
such indemnified party.
9.4 Notice. Each of Sierra Services and the Trust agrees to notify the
other promptly of the commencement of any
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litigation or proceedings against it or any of its officers or directors or
Trustees, as applicable, in connection with the issuance and sale of any Shares.
9.5 Contribution. If the indemnification provided for in this Section
shall for any reason be unavailable to or insufficient to hold harmless a party
indemnified hereunder in respect of any claim, demand, liability or expense, or
any action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such claim, demand,
liability or expense, or action in respect thereof, (a) in such proportion as
shall be appropriate to reflect the relative benefits received by the Trust on
the one hand and Sierra Services on the other from the offering of the Shares or
(b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but also the relative fault of
the Trust (and its agents other than Sierra Services) on the one hand and Sierra
Services on the other with respect to the statements or omissions which resulted
in such claim, demand, liability or expense, or action in respect thereof, as
well as any other relevant equitable considerations. The relative benefits
received by the Trust on the one hand and Sierra Services on the other with
respect to the offering of the Shares shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares purchased
under this agreement (before deducting expenses) received by the Trust bear to
the total net underwriting discounts and commissions received by Sierra Services
with respect to the Shares purchased under this Agreement and retained by Sierra
Services after payments to the selling agents retained by it. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Trust (or any of its agents other
than Sierra Services) or by Sierra Services, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Trust and Sierra Services agree that it would
not be just and equitable if contributions pursuant to this Section were to be
determined by pro rata allocation or by any other method of allocation which
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does not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the claim, demand,
liability or expense, or action in respect thereof, referred to above in this
Section shall be deemed to include, for purposes of this Section, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section, Sierra Services shall not be required to contribute
any amount in excess of the amount by which the total net underwriting discounts
and commissions received by Sierra Services with respect to the Shares purchased
under this Agreement and retained by Sierra Services after payments to the
selling agents retained by it exceed the amount of any damages which Sierra
Services has otherwise paid or become liable to pay by reason of any 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 0000
Xxx) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
10. Notice to Sierra Services.
The Trust agrees to advise Sierra Services immediately in writing:
(a) of any request by the SEC for amendments to the
Registration Statement or Prospectus then in effect or
for additional information;
(b) in the event of the issuance by the SEC of any stop
order suspending the effectiveness of the Registration
Statement or Prospectus then in effect or the
initiation of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any statement
of a material fact made in the Registration Statement or
Prospectus then in effect or that requires the making of a
change in such Registration Statement or Prospectus in order
to make the statements therein not misleading; and
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(d) of all actions of the SEC with respect to any amendment to any
Registration Statement or Prospectus that may from time to
time be filed with the SEC.
11. Term of Agreement.
This Agreement shall become effective as of the date first set forth
above, shall remain in effect for an initial period of two years, and shall
continue thereafter from year to year for so long as such continuance is
specifically approved at least annually by
(a) the Trust's Board of Trustees or a vote of a "majority
of the outstanding voting securities" (as defined in
the 0000 Xxx) of the Trust; and
(b) a vote of a majority of the Trustees who are not
"interested persons" (as defined in the 0000 Xxx) of
the Trust and who have no direct or indirect financial
interest in the operation of the Plan, in this
Agreement or any other agreement related to the Plan
(the "Qualified Trustees"), such vote cast in person at
a meeting called for the purpose of the voting on such
approval.
12. Termination.
12.1 Termination on Assignment. This Agreement shall terminate
automatically in the event of its "assignment" (as defined in the 1940 Act), it
being understood that this Agreement has been approved by the Trustees,
including the Qualified Trustees in contemplation of a Purchase and Sale
Agreement to be entered into by Sierra Services, Corporate Asset Funding
Company, Inc. and Citicorp North America, Inc., which provides for a transfer of
receivables relating to the Distribution Fees and CDSCs payable to Sierra
Services under this Agreement. Sierra Services agrees to notify the Trust of any
circumstances that might result in this Agreement being deemed to be assigned.
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12.2 Voluntary Termination. The Trust may terminate this Agreement with
respect to any Portfolio, or in its entirety, without penalty, on 60 days'
written notice to Sierra Services, by vote of a majority of the Qualified
Trustees or by vote of a "majority of the outstanding voting securities" of such
Portfolio or the Trust, as the case may be. Sierra Services may terminate this
Agreement, with respect to any Portfolio, or in its entirety, on 90 days'
written notice to the Trust. Termination of this Agreement with respect to any
class of shares of any Portfolio shall not cause this Agreement to terminate
with respect to any other class of shares of such Portfolio or any Shares of any
other Portfolio. Notice of termination as provided for in this Section may be
waived by either party, such waiver to be in writing.
12.3 Continued Payment. With respect to Shares of any Portfolio sold
pursuant to this Agreement, the Trust shall continue payment to Sierra Services
of (a) Sierra Services' Allocable Portion, as defined in Schedule 2 to this
Agreement, of the Contingent Deferred Sales Charges attributable to such Shares
of such Portfolio, and (b) so long as there has been no Complete Termination (as
defined in the applicable Plan), Sierra Services' Allocable Portion of the
Distribution Fee attributable to such Shares of such Portfolio, in either case
notwithstanding termination of this Agreement according to its terms.
13. Miscellaneous.
13.1 Non-Exclusivity. The Trust recognizes that Sierra Services and its
affiliates shall be free to render distribution or other services to others
(including other investment companies) and to engage in other activities. The
Trust agrees that the directors, officers and employees of Sierra Services shall
not be prohibited by reason of this Agreement from engaging in any other
business activity or from rendering services to any other person, or from
serving as partners, directors, trustees or officers of any other firm or
corporation, including the Trust and other investment companies. Sierra Services
acknowledges that its appointment as distributor pursuant to this Agreement is
not exclusive, and that the Trust may appoint one or more other
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persons to act as distributor for the Shares of one or more Portfolios.
13.2 Independent Contractor. Sierra Services and any Broker shall be
independent contractors and none of them nor any of their directors, officers or
employees shall, as such, be deemed employees of the Trust.
13.3 Notices. Any notices under this Agreement shall be in writing,
mailed postage paid or sent by telegram, telecopy, or facsimile to the other
party at such address as such other party may designate from time to time for
the receipt of such notice.
13.4 Integration; Amendment; Counterparts; Governing Law.
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and may not be modified,
amended, or waived except by a written instrument duly executed by the party
against whom such modification, amendment, or waiver is sought to be enforced.
If any provisions 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 subject to the provisions of the 1940 Act and
the 1934 Act and the rules, regulations and rulings thereunder, and of the
applicable rules and regulations of the NASD, from time to time in effect, and
the terms hereof shall be interpreted and construed in accordance therewith.
This Agreement may be executed in any number of counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
This Agreement shall be governed in accordance with the internal
substantive laws of the Commonwealth of Massachusetts.
It is expressly agreed that the obligations of the Trust hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Trust personally, but bind only the trust property of
the Trust, as provided in the Trust Agreement. The execution and delivery of
this Agreement have been authorized by the Trustees and
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effected by an authorized officer of the Trust, acting as such, and neither such
authorization nor such execution and delivery shall be deemed to have been made
by any Trustee or officer individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided in
the Trust Agreement.
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Please confirm that the foregoing accurately sets forth our agreement
by indicating your acceptance hereof at the place below indicated, whereupon it
shall become a binding agreement between us as of the date first set forth
above.
Very truly yours,
SIERRA ASSET MANAGEMENT PORTFOLIOS
By /s/ F. Xxxxx Xxxxxx
-----------------------------------
Name: F. Xxxxx Xxxxxx
Title: President
ACCEPTED:
SIERRA INVESTMENT SERVICES CORPORATION
By /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President and Secretary
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23
SIERRA ASSET MANAGEMENT PORTFOLIOS
CLASS B DISTRIBUTION AGREEMENT
Schedule 1
Date of Agreement: July 19, 1996
Date of this Schedule: July 19, 1996
NAME OF PORTFOLIO CLASS(ES) COVERED
----------------- -----------------
1. Income Portfolio Class B
2. Value Portfolio Class B
3. Balanced Portfolio Class B
4. Growth Portfolio Class B
5. Capital Growth Portfolio Class B
24
SIERRA ASSET MANAGEMENT PORTFOLIOS
CLASS B DISTRIBUTION AGREEMENT
Schedule 2
Date of Agreement: July 19, 1996
Date of this Schedule: July 19, 1996
ALLOCABLE PORTIONS
Sierra Services' "Allocable Portion" of the Distribution Fee payable on
any class of Shares of any Portfolio, or of the CDSC in respect of any Shares of
any Portfolio shall be that percentage allocated to Sierra Services in
accordance with the allocation formulas set forth in Parts C and D below, and
the rules of attribution set forth in Part B below.
Capitalized terms used in this Schedule without definition and defined
in the Agreement shall have the same meanings herein as therein.
PART A: DEFINITIONS
"Commencement Date" means, in respect of any class of Shares of any
Portfolio, the date of the first sale of a Commission Share of such class of
such Portfolio during the term of the Agreement.
"Commission Share" means, in respect of any Portfolio, each Share of
such Portfolio issued under circumstances that would normally give rise to an
obligation of the holder of such Share to pay a CDSC upon redemption of such
Share, including, without limitation, any Share of such Portfolio issued in
connection with a "Permitted Free Exchange" (as such term is defined in that
certain Purchase and Sale Agreement dated as of December 20, 1995 by and among
Sierra Services, Citicorp North America, Inc. and Corporate Asset Funding
Company, Inc. as the same shall be amended from time to time (the "Purchase
Agreement")), provided that no such Share shall cease to be a Commission Share
prior to its redemption (including a redemption in connection with a Permitted
Free Exchange) or conversion even though the obligation of such holder to pay a
CDSC shall have expired or the CDSC on such Share shall have been waived.
25
"Cutoff Date" means, in respect of any class of Shares of any
Portfolio, the date of the last sale of a Commission Share of such class of such
Portfolio during the term of the Agreement.
"Distribution Fee" has the meaning given to the term "asset-based sales
charge" in Rule 2830(b)(8)(A) of the NASD Conduct Rules.
"Free Exchange Share" means, with respect to any Portfolio, any Free
Share of such Portfolio issued in connection with a Permitted Free Exchange.
"Free New Share" means, in respect of any Portfolio, any Free Share
that is not an Free Exchange Share.
"Free Share" means, in respect of any Portfolio, each Share of such
Portfolio other than a Commission Share, including, without limitation, any
Share issued in connection with the reinvestment of dividends.
"Non-Omnibus Shares" means, in respect of any Portfolio, all Shares of
such Portfolio other than Omnibus Shares.
"Omnibus Shares" means, in respect of any Portfolio, the Shares of such
Portfolio in any Omnibus Account on the records of a Portfolio maintained by the
Transfer Agent, for which account such broker-dealer provides subtransfer agency
services for that Portfolio.
"Sub-Transfer Agent" means, in respect of any Portfolio, the
record owner of any Omnibus Account.
PART B: ATTRIBUTION
Shares of each class of Shares of each Portfolio, which Shares are
outstanding from time to time, shall be attributed to either Sierra Services or
to any other person named as a distributor of Shares of such class of such
Portfolio (such person, an "Other Distributor") in accordance with the following
rules:
(1) Commission Shares: Each Commission Share of a Portfolio is
specifically tracked, on the records maintained by the Transfer Agent or
Sub-Transfer Agents for such Portfolio with
26
reference to an "original issuance date" (a) of the Commission Share in question
or (b) of the Commission Share from which the Commission Share in question
derived through one or more Permitted Free Exchanges.
The Commission Shares of each class of Shares of each Portfolio
outstanding from time to time attributed to Sierra Services shall be: (a) those
Commission Shares of such class of such Portfolio issued, on or after the
Commencement Date and on or prior to the Cutoff Date for such class of such
Portfolio, other than in a Permitted Free Exchange, and (b) those Commission
Shares of such class of such Portfolio that are (i) issued in a Permitted Free
Exchange in exchange for (ii) Shares of another Portfolio that had been
attributed to Sierra Services in accordance with the preceding clause (a) of
this paragraph, in each case determined in accordance with the records
maintained by the Transfer Agent or Sub-Transfer Agents for such Portfolio.
The Commission Shares of each class of Shares of each Portfolio
outstanding from time to time attributed to Other Distributors shall be: (a)
those Commission Shares of such class of Shares of such Portfolio issued, prior
to the Commencement Date or after the Cutoff Date for such class of Shares of
such Portfolio, other than in a Permitted Free Exchange, and (b) those
Commission Shares of such class of such Portfolio that are (i) issued in a
Permitted Free Exchange in exchange for (ii) Shares of another Portfolio that
were attributed to an Other Distributor in accordance with the immediately
preceding clause (a) of this paragraph, in each case determined in accordance
with the records maintained by the Transfer Agent or Sub-Transfer Agents for
such Portfolio.
(2) Free Shares. Free Shares of each class of Shares of each Portfolio
are not specifically tracked by the Transfer Agent or Sub-Transfer Agents for
such Portfolio. The number of Free Shares of each class of Shares of each
Portfolio outstanding from time to time shall be attributed to either Sierra
Services or an Other Distributor in accordance with records maintained by Sierra
Services in accordance with this paragraph (2).
(a) The number of Non-Omnibus Free New Shares, of a class of any
Portfolio, that are issued on or after the Commencement Date
for such class of such Portfolio and that are attributed to
Sierra Services shall be determined pursuant to the following
formula.
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For such Shares issued during any calendar month:
FNS x [(PCS + PFS)/(TCS + TFS)]
where:
FNS = Non-Omnibus Free New Shares of such class
of such Portfolio that are issued during such
calendar month
PCS = Non-Omnibus Commission Shares of such class
of such Portfolio that have been attributed
to Sierra Services and that were outstanding
as of the close of business on the last
business day of the immediately preceding
calendar month
PFS = Non-Omnibus Free Shares of such class of
such Portfolio that have been attributed to
Sierra Services and that were outstanding as
of the close of business on the last business
day of the immediately preceding calendar
month
TCS = Non-Omnibus Commission Shares of such class
of such Portfolio that were outstanding as of
the close of business on the last business
day of the immediately preceding calendar
month
TFS = Non-Omnibus Free Shares of such class of
such Portfolio that were outstanding as of
the close of business on the last business
day of the immediately preceding calendar
month
The balance of such Non-Omnibus Free New Shares issued during
such calendar month shall be attributed to Other Distributors.
(b) The number of Omnibus Free New Shares, of a class of any
Portfolio, that are issued on or after the Commencement Date
for such class of such Portfolio and that are attributed to
Sierra Services shall be determined pursuant to the following
formula.
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For such Shares issued during any calendar month:
OFNS x [(POCS + POFS)/(TOCS + TOFS)]
where:
OFS = Omnibus Free New Shares of such class of
such Portfolio that are issued during such
calendar month
POCS = Omnibus Commission Shares of such class of
such Portfolio that have been attributed to
Sierra Services and that were outstanding as
of the close of business on the last business
day of the immediately preceding calendar
month.
POFS = Omnibus Free Shares of such class of such
Portfolio that have been attributed to Sierra
Services and that were outstanding as of the
close of business on the last business day of
the immediately preceding calendar month.
TOCS = Omnibus Commission Shares of such class of
such Portfolio that were outstanding as of
the close of business on the last business
day of the immediately preceding calendar
month.
TOFS = Omnibus Free Shares of such class of such
Portfolio that were outstanding as of the
close of business on the last business day of
the immediately preceding calendar month.
The balance of such Omnibus Free New Shares issued during such
calendar month shall be attributed to Other Distributors.
(c) The number of Non-Omnibus Free Exchange Shares, of a class of
any Portfolio (the "New Portfolio"), that are issued on or
after the Commencement Date for such class of such New
Portfolio and that are attributed to Sierra Services shall be
determined pursuant to the following formula.
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For such Shares issued during any calendar month in
exchange for Shares of any other Portfolio (each, an "Old
Portfolio"):
FES x (PFS(o)/TFS(o))
where:
FES = Non-Omnibus Free Exchange Shares of such
class of the New Portfolio that are issued
during such calendar month
PFS(o) = Non-Omnibus Free Shares of such class of
the Old Portfolio that had been attributed to
Sierra Services and that were outstanding as
of the close of business on the last business
day of the immediately preceding calendar
month
TFS(o) = Non-Omnibus Free Shares of such class of
the Old Portfolio that were outstanding as of
the close of business on the last business
day of the immediately preceding calendar
month
The balance of such Non-Omnibus Free Exchange Shares of the
New Portfolio issued during such calendar month shall be
attributed to Other Distributors.
(d) The number of Omnibus Free Exchange Shares, of a class of any
Portfolio (the "New Portfolio"), that are issued on or after
the Commencement Date for such class of such New Portfolio and
that are attributed to Sierra Services shall be determined
pursuant to the following formula.
For such Shares issued during any calendar month in
exchange for Shares of any other Portfolio (each, an "Old
Portfolio"):
OFES x (POFS(o)/TOFS(o))
where:
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OFES = Omnibus Free Exchange Shares of such class
of the New Portfolio that are issued during
such calendar month
POFS(o) = Omnibus Free Shares of such class of the
Old Portfolio that had been attributed
to Sierra Services and that were
outstanding as of the close of business
on the last business day of the
immediately preceding calendar month
TOFS(o) = Omnibus Free Shares of such class
of the Old Portfolio that were
outstanding as of the close of
business on the last business day of
the immediately preceding calendar
month
The balance of such Omnibus Free Exchange Shares of the New
Portfolio issued during such calendar month shall be
attributed to Other Distributors.
(e) The number of Non-Omnibus Free Shares, of a class of any
Portfolio, that are redeemed or converted and that are
attributed to Sierra Services shall be determined pursuant to
the following formula.
For such Shares redeemed or converted during any calendar
month:
FSR x (PFS/TFS)
where:
FSR = Non-Omnibus Free Shares of such class of
such Portfolio that are redeemed or converted
during such calendar month
PFS = Non-Omnibus Free Shares of such class of
such Portfolio that have been attributed to
Sierra Services and that were outstanding as
of the close of business on the last business
day of the immediately preceding calendar
month
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TFS = Non-Omnibus Free Shares of such class of
such Portfolio that were outstanding as of
the close of business on the last business
day of the immediately preceding calendar
month
The balance of such Non-Omnibus Free Shares redeemed or
converted during such calendar month shall be attributed to
Other Distributors.
(f) The number of Omnibus Free Shares, of a class of any
Portfolio, that are redeemed or converted and that are
attributed to Sierra Services shall be determined pursuant to
the following formula.
For such Shares redeemed or converted during any calendar
month:
OFSR x (POFS/TOFS)
where:
OFSR = Omnibus Free Shares of such class of such
Portfolio that are redeemed or converted
during such calendar month
POFS = Omnibus Free Shares of such class of such
Portfolio that have been attributed to Sierra
Services and that were outstanding as of the
close of business on the last business day of
the immediately preceding calendar month
TOFS = Omnibus Free Shares of such class of such
Portfolio that were outstanding as of the
close of business on the last business day of
the immediately preceding calendar month
The balance of such Omnibus Free Shares redeemed or converted
during such calendar month shall be attributed to Other
Distributors.
(3) Timing of Attributions and Distributions.
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(a) The attributions of all Non-Omnibus Shares of each class of
Shares of each Portfolio shall be made on a daily basis. The
attribution of all Omnibus Shares of each class of Shares of
each Portfolio shall be made monthly, for each calendar month
no later than five (5) days following the last day of such
month.
(b) The parties to the Agreement acknowledge, expressly,
that the procedures for determining Sierra Services'
Allocable Portion of Free Shares of any Portfolio
implicitly assume that Free Shares issued in respect of
dividends or other distributions made for any calendar
month will be issued not earlier than the first
business day of the following calendar month. Said
parties agree that such procedures shall be modified in
the event Free Shares attributable to reinvestment of
such dividends or distributions are issued in the same
calendar month for which such dividends are earned or
distributions made.
PART C: ALLOCATION OF CDSCs
CDSCs will be allocated to either Sierra Services or an Other
Distributor depending upon whether the related redeemed Shares were attributed
to, respectively, Sierra Services or such Other Distributor in accordance with
Part B, Paragraph (1) above. CDSCs relating to Non-Omnibus Shares shall be
allocated to either Sierra Services or an Other Distributor on or prior to the
third business day of the calendar week immediately succeeding the calendar week
during which the Transfer Agent has paid such CDSC amount. CDSCs relating to
Omnibus Shares shall be allocated to either Sierra Services or an Other
Distributor on or prior to the tenth (10th) day of the calendar month
immediately succeeding the calendar month in which they are remitted by the
Transfer Agent to the "Collection Account" as such term is defined in that
certain Amended and Restated Collection Agency Agreement dated as of December
20, 1995 among Corporate Asset Funding Company, Inc., Citicorp North America,
Inc., Sierra Services, and Bankers Trust Company as the same may be amended from
time to time (the "Collection Agency Agreement"), unless in accordance with the
Collection Agency Agreement more frequent allocations are required.
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PART D: ALLOCATION OF DISTRIBUTION FEE
The Distribution Fee accruing in respect of each class of Shares of
each Portfolio during any calendar month and that is allocated to Sierra
Services shall be determined pursuant to the following formula:
A x [(B + C)/(D + E)]
where:
A = Distribution Fee accrued in respect of such class
of Shares of such Portfolio during such calendar
month.
B = Shares of such class of such Portfolio attributed
to Sierra Services and outstanding as of the close
of business on the last business day of the
immediately preceding calendar month times the net
asset value per share of such Shares as of such
time.
C = Shares of such class of such Portfolio attributed
to Sierra Services and outstanding as of the close
of business on the last business day of such
calendar month times the net asset value per share
of such Shares as of such time.
D = Total Shares of such class of such Portfolio
outstanding as of the close of business on the last
business day of the immediately preceding calendar
month times the net asset value per share of such
Shares as of such time.
E = Total Shares of such class of such Portfolio
outstanding as of the close of business on the last
business day of such calendar month times the net
asset value per share of such Shares as of such
time.
The balance of the Distribution Fee in respect of such class of Shares
of such Portfolio accruing during such calendar month shall be allocated to
Other Distributors.
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The allocations contemplated by this Part D of Distribution Fees
accruing during any calendar month shall be made on or prior to the tenth (10th)
day of the immediately following calendar month and in all cases prior to the
payment of such Fees pursuant to the terms of the Agreement.
