DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 1st day of November, 1995
by and between AMBAC Treasurers Trust (the "Trust") and 440
Financial Distributors, Inc. (the "Distributor"), a corporation
organized under the laws of the Commonwealth of Massachusetts,
having its principal place of business at 000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WHEREAS, the Trust is registered as an open-end, diversified
management investment company under the Investment Company Act of
1940, as amended, (the "1940 Act"); and is currently offering
units of beneficial interest (such units of all series are
hereinafter called the "Shares"), representing interests in
investment portfolios of the Trust identified on Schedule A hereto
(the "Funds") which are registered with the Securities and
Exchange Commission ("SEC") pursuant to the Trust's Registration
Statement on Form N-1A (the "Registration Statement"); and
WHEREAS, the Trust desires to retain the Distributor as
distributor for the Fund to provide for the sale and distribution
of the Shares of the Funds identified on Schedule A, and for such
additional classes or series as the Trust may issue, and the
Distributor is prepared to provide such services commencing on
November 1, 1995.
NOW THEREFORE, in consideration of the premises and mutual
covenants set forth herein and intending to be legally bound
hereby the parties hereto agree as follows:
1. Service as Distributor
1.1 The Distributor will act on behalf of the Trust for the
distribution of the Shares covered by the Registration Statement
under the Securities Act of 1933, as amended (the "1933 Act").
The Distributor will have no liability for payment for the
purchase of Shares sold pursuant to this Agreement or with respect
to redemptions or repurchases of Shares.
1.2 The Distributor agrees to use efforts deemed appropriate by
the Distributor to solicit orders for the sale of the Shares and
will undertake such advertising and promotion as it believes
reasonable in connection with such solicitation. The Trust
understands that the Distributor is now, and may in the future be,
the distributor of the shares of several investment companies or
series (collectively, the "Companies") including Companies having
investment objectives similar to those of the Trust. The Trust
further understands that investors and potential investors in the
Trust may invest in shares of such other Companies. The Trust
agrees that the Distributor's duties to such Companies shall not
be deemed in conflict with its duties to the Trust under this
paragraph 1.2.
1.3 The Distributor shall, at its own expense, finance
appropriate activities which it deems reasonable which are
primarily intended to result in the sale of the Shares, including,
but not limited to, the printing and mailing of prospectuses to
other than current shareholders.
1.4 All activities by the Distributor and its employees, as
distributor of the Shares, shall comply with all applicable laws,
rules and regulations, including, without limitation, all rules
and regulations made or adopted by the SEC or the National
Association of Securities Dealers.
1.5 The Distributor will transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent for the
Trust.
1.6 Whenever in its judgment such action is warranted by unusual
market, economic or political conditions, the Trust may decline to
accept any orders for, or make any sales of, the Shares until such
time as the Trust deems it advisable to accept such orders and to
make such sales.
1.7 The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to
take all actions that may be reasonably necessary in connection
with the qualification of the Shares for sale in such states as
the Distributor may designate.
1.8 The Trust shall furnish from time to time, for use in
connection with the sale of the Shares, such information with
respect to the Trust and the Shares as the Distributor may
reasonably request; and the Trust warrants that the statements
contained in any such information shall fairly show or represent
what they purport to show or represent. The Trust shall also
furnish the Distributor upon request with: (a) audited annual
statements and unaudited semi-annual statements of a Fund's books
and accounts prepared by the Trust, (b) quarterly earnings
statements prepared by the Trust, (c) a monthly itemized list of
the securities in the Funds, (d) monthly balance sheets as soon as
practicable after the end of each month, and (e) from time to time
such additional information regarding the financial condition of
the Trust as the Distributor may reasonably request.
1.9 The Trust represents to the Distributor that all
Registration Statements and prospectuses filed by the Trust with
the SEC under the 1933 Act with respect to the Shares have been
prepared in conformity with the requirements of said Act and the
rules and regulations of the SEC thereunder. As used in this
Agreement, the term "Registration Statement" shall mean any
Registration Statement and any prospectus and any statement of
additional information relating to the Trust filed with the SEC
and any amendments or supplements thereto at any time filed with
said Commission. Except as to information included in the
Registration Statement in reliance upon information provided to
the Trust by the Distributor or any affiliate of the Distributor,
the Trust represents and warrants to the Distributor that any
Registration Statement, when such Registration Statement becomes
effective, will contain statements required to be stated therein
in conformity with the 1933 Act and the rules and regulations of
the SEC; that all statements of fact contained in any such
Registration Statement will be true and correct when such
Registration Statement becomes effective; and that no Registration
Statement when such Registration Statement becomes effective will
include an 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 the
Shares. The Trust may but shall not be obligated to propose from
time to time such amendment or amendments to any Registration
Statement and such supplement or supplements to any prospectus as,
in the light of future developments, may, in the opinion of the
Trust's counsel, be necessary or advisable. The Trust shall
promptly notify the Distributor of any advice given to it by its
counsel regarding the necessity or advisability of amending or
supplementing such Registration Statement. If the Trust shall not
propose such amendment or amendments and/or supplement or
supplements within fifteen days after receipt by the Trust of a
written request from the Distributor to do so, the Distributor
may, at its option, terminate this Agreement. The Trust shall not
file any amendment to any Registration Statement or supplement to
any prospectus without giving the Distributor 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 amendments to any Registration Statements and/or
supplements to any prospectus, of whatever character, as the Trust
may deem advisable, such right being in all respects absolute and
unconditional.
1.10 The Trust authorizes the Distributor to use any prospectus
or statement of additional information in the form furnished from
time to time in connection with the sale of the Shares. The Trust
agrees to indemnify and hold harmless the Distributor, its
officers, directors, and employees, and any person who controls
the Distributor within the meaning of Section 15 of the 1933 Act,
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 legal fees
incurred in connection therewith) which the Distributor, its
officers, directors, employees or any such controlling person may
incur under the 1933 Act, under any other statute, at common law
or otherwise, arising out of or based upon:
(a) any untrue statement, or alleged untrue statement, of a
material fact contained in the Trust's Registration Statement,
prospectus, statement of additional information, or sales
literature (including amendments and supplements thereto), or
(b) any omission, or alleged omission, to state a material fact
required to be stated in the Trust's Registration Statement,
prospectus, statement of additional information or sales
literature (including amendments or supplements thereto),
necessary to make the statements therein not misleading, provided,
however, that insofar as losses, claims, damages, liabilities or
expenses arise out of or are based upon any such untrue statement
or omission or alleged untrue statement or omission made in
reliance on and in conformity with information furnished to the
Trust by the Distributor or its affiliated persons for use in the
Trust's Registration Statement, prospectus, or statement of
additional information or sales literature (including amendments
or supplements thereto), such indemnification is not applicable.
The Distributor, its officers, directors, and employees, and
any such controlling person, as aforesaid, shall notify the Trust
of any action brought against the Distributor, its officers,
directors or employees, or any such controlling person, such
notification to be given by letter or by telegram addressed to the
Trust and sent to the Trust by the person against whom such action
is brought, within 10 days after the summons or other first legal
process shall have been served. The failure to notify the Trust
of any such action shall not relieve the Trust from any liability
which the Trust may have to the person against whom such action is
brought by reason of any such untrue, or allegedly untrue,
statement or omission, or alleged omission, otherwise than on
account of the Trust's indemnity agreement contained in this
paragraph 1.10. The Trust 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 Trust and approved by the
Distributor, which approval shall not unreasonably be withheld.
In the event the Trust elects to assume the defense of any such
suit and retain counsel of good standing approved by the
Distributor, 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 Trust does not elect to assume the defense
of any such suit, or in case the Distributor reasonably does not
approve of counsel chosen by the Trust, or in case there is a
conflict of interest between the Trust or the Distributor, the
Trust will reimburse the Distributor, its officers, directors and
employees, or the controlling person or persons named as defendant
or defendants in such suit, for the fees and expenses of any
counsel retained by the Distributor or them. The Trust's
indemnification agreement contained in this paragraph 1.10 and the
Trust's 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 the Distributor, its
officers, directors and employees, or any controlling person, and
shall survive the delivery of any Shares. This agreement of
indemnity will inure exclusively to the Distributor's benefit, to
the benefit of its several officers, directors and employees, and
their respective estates, and to the benefit of the controlling
persons and their successors. The Trust agrees promptly to notify
the Distributor of the commencement of any litigation or
proceedings against the Trust or any of its officers or trustees
in connection with the issue and sale of any Shares.
1.11 The Distributor agrees to indemnify and hold harmless the
Trust, its several officers and trustees and each person, if any,
who controls a Fund within the meaning of Section 15 of the 1933
Act against any loss, claims, damages, liabilities and expenses
(including the cost of any reasonable legal fees incurred in
connection therewith) which the Trust, its officers, trustees or
any such controlling person may incur under the 1933 Act, under
any other statute, at common law or otherwise, but only to the
extent that such liability or expense incurred by the Trust, its
officers or trustees, or any controlling person resulting from
such claims or demands arose out of the acquisition of any Shares
by any person which may be based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Trust's Registration Statement, prospectus or statement of
additional information (including amendments and supplements
thereto), or any omission, or alleged omission, to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, if such statement or
omission was made in reliance upon information furnished or
confirmed in writing to the Trust by the Distributor or its
affiliated persons (as defined in the 1940 Act).
The agreement of the Distributor to indemnify the Trust, its
officers and trustees, and any such controlling person, as
aforesaid, is expressly conditioned upon the Distributor being
notified of any action brought against the Trust, its officers or
trustees, or any such controlling person, such notification to be
given by letter or telegram addressed to the Distributor at its
principal office in Marlboro, Massachusetts, and sent to the
Distributor by the person against whom such action is brought,
within 10 days after the summons or other first legal process
shall have been served. The Distributor shall have the right of
first control of the defense of such action, with counsel of its
own choosing, satisfactory to the Trust, if such action is based
solely upon such alleged misstatement or omission on the
Distributor's part, and in any other event the Trust, it officers
or trustees or such controlling person shall each have the right
to participate in the defense or preparation of the defense of any
such action. The failure so to notify the Distributor of any such
action shall not relieve the Distributor from any liability that
the Distributor may have to the Trust, its officers or trustees,
or to such controlling person by reason of any such untrue, or
alleged untrue, statement or omission, or alleged omission,
otherwise than on account of the Distributor's indemnity agreement
contained in this paragraph 1.11.
1.12 No Shares shall be offered by either the Distributor or the
Trust under any of the provisions of this Agreement and no orders
for the purchase or sale of Shares hereunder shall be accepted by
the Trust if and so long as effectiveness of the Registration
Statement then in effect or any necessary amendments thereto shall
be suspended under any of the provisions of the 1933 Act, or if
and so long as a current prospectus as required by Section 5(b)(2)
of said Act is not on file with the SEC; provided, however, that
nothing contained in this paragraph 1.12 shall in any way restrict
or have any application to or bearing upon the Trust's obligation
to redeem Shares tendered for redemption by any shareholder in
accordance with the provisions of the Trust's Registration
Statement, Declaration of Trust, or bylaws.
1.13 The Trust agrees to advise the Distributor as soon as
reasonably practical by a notice in writing delivered to the
Distributor:
(a) of any request by the SEC for amendments to the Registration
Statement, prospectus or statement of additional information 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,
prospectus or statement of additional information then in effect
or the initiation by service of process on the Trust 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,
prospectus or statement of additional information then in effect
or that requires the making of a change in such Registration
Statement, prospectus or statement of additional information in
order to make the statements therein not misleading; and
(d) of all actions of the SEC with respect to any amendments to
any Registration Statement, prospectus or statement of additional
information which may from time to time be filed with the SEC.
For purposes of this section, informal requests by or acts
of the Staff of the SEC shall not be deemed actions of or requests
by the SEC.
1.14 The Distributor agrees on behalf of itself and its
directors, officers and employees to treat confidentially and as
proprietary information of the Trust all records and other
information relative to the Trust and its 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 as specifically
authorized by the Trust or as may be required by law.
2. Term
This Agreement shall become effective on November 1, 1995
and, unless sooner terminated as provided herein, shall continue
for an initial two-year term and thereafter shall be renewed for
successive one-year terms, provided such continuance is
specifically approved at least annually by (i) the Trust's Board
of Trustees or (ii) by a vote of a majority (as defined in the
1940 Act and Rule 18f-2 thereunder) of the outstanding voting
securities of the Trust, provided that in either event the
continuance is also approved by a majority of the Trustees who are
not parties to this Agreement and who are not interested persons
(as defined in the 0000 Xxx) of any party to this Agreement, by
vote cast in person at a meeting called for the purpose of voting
on such approval. This Agreement is terminable without penalty,
on at least sixty days' written notice, by the Trust's Board of
Trustees, by vote of a majority (as defined in the 1940 Act and
Rule 18f-2 thereunder) of the outstanding voting securities of the
Trust, or by the Distributor. This Agreement will also terminate
automatically in the event of its assignment (as defined in the
1940 Act and the rules thereunder).
3. Limitation of Liability
(a) The Distributor shall not be liable to the Trust for any
error of judgment or mistake of law or for any loss suffered by
the Trust in connection with the performance of its obligations
and duties under this Agreement, except a loss resulting from the
Distributor's willful misfeasance, bad faith or gross negligence
in the performance of such obligations and duties, or by reason of
its reckless disregard thereof. The Trust will indemnify the
Distributor against and hold it harmless from any and all losses,
claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand,
action or suit not resulting from the willful misfeasance, bad
faith or gross negligence of the Distributor in the performance of
such obligations and duties or by reason of its reckless disregard
thereof.
(b) In no event and under no circumstances shall either party to
this Agreement be liable to the other party for consequential or
indirect loss of profits, reputation or business or any other
special damages under any provision of this Agreement or for any
act or failure to act hereunder.
4. Notices
All notices and other communications (collectively referred
to as a "Notice" or "Notices" in this paragraph) hereunder shall
be in writing or by telegram, cable, telex or facsimile sending
device. Notices shall be addressed (a) if to the Distributor at
its address, 000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000; (b) if to the Trust, at its principal place of business,
000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 or (c) if to
neither of the foregoing, at such other address as to which the
sender shall have been notified by any such Notice or other
communication. The Notice may be sent by first-class mail, in
which case it shall be deemed to have been given three days after
it is sent, or if sent by telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately.
5. Further Actions
Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes
hereof.
6. Amendments
This Agreement or any part hereof may be changed or waived
only by an instrument in writing signed by the party against which
enforcement of such change or waiver is sought.
7. Governing State Law
This Agreement shall be governed by and its provisions shall
be construed in accordance with the laws of the Commonwealth of
Massachusetts and the applicable provisions of the 1940 Act. To
the extent the provisions of Massachusetts law or the provisions
hereof conflict with the 1940 Act, the latter shall control.
8. Matters Relating to the Trust as a Delaware Business Trust
The names "AMBAC Treasurers Trust" and "Trustees of AMBAC
Treasurers Trust" refer respectively 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 as of June
27, 1995 to which reference is hereby made and the Trust's
Certificate of Trust, a copy of which is on file at the office of
the Secretary of the State of Delaware, and to any and all
amendments to such documents. The obligations of "AMBAC
Treasurers Trust" entered into in the name or on behalf thereof by
any of the Trustees, representatives or agents are made not
individually, but in such capacities, and are not binding upon any
of the Trustees, Shareholders or representatives of the Trust
personally, but bind only the assets of the Trust, and all persons
dealing with the Trust must look solely to the assets of the Trust
for the enforcement of any claims against the Trust.
9. Miscellaneous
This Agreement embodies the entire agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings relating to the subject matter
thereof. 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 and shall inure to the benefit of the
parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first
above written.
AMBAC TREASURERS TRUST
By: /s/ W. Xxxxx Xxxxxxxx
W. Xxxxx Xxxxxxxx
Title:President
440 FINANCIAL DISTRIBUTORS, INC.
By: /s/ Xxxxx Xxxx
Xxxxx Xxxx
Title:President
SCHEDULE A
to the Distribution Agreement
between AMBAC Treasurers Trust and
440 Financial Distributors, Inc.
Name of Series
* AMBAC U.S. Treasury Money Market Fund
* AMBAC U.S. Government Money Market Fund
* AMBAC Short-Term U.S. Government Income Fund
AMBAC TREASURERS TRUST 440 FINANCIAL DISTRIBUTORS, INC.
By: /s/ W. Xxxxx Xxxxxxxx By: /s/ Xxxxx Xxxx
W. Xxxxx Xxxxxxxx Xxxxx Xxxx
Title: President Title: President
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