EXHIBIT 99.6(a)
XXXXX XXXXX INCOME FUND OF BOSTON
DISTRIBUTION AGREEMENT
AGREEMENT made this twenty-second day of May, 1989 between XXXXX XXXXX
INCOME FUND OF BOSTON, a Massachusetts business trust having its principal place
of business in Boston in The Commonwealth of Massachusetts, hereinafter called
the "Fund", and XXXXX XXXXX DISTRIBUTORS, INC., a Massachusetts corporation
having its principal place of business in said Boston, hereinafter sometimes
called the "Principal Underwriter".
NOW THEREFORE, in consideration of the mutual promises and undertakings
herein contained, the parties hereto agree:
1. The Fund grants to the Principal Underwriter the right to purchase
shares of the Fund upon the terms hereinbelow set forth during the term of this
Agreement. While this Agreement is in force, the Principal Underwriter agrees to
use its best efforts to find purchasers for shares of the Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by dealers or investors as set forth in
the current Prospectus relating to shares of the Fund. The price which the
Principal Underwriter shall pay for the shares so purchased from the Fund shall
be the net asset value used in determining the public offering price on which
such orders were based. The Principal Underwriter shall notify Investors Bank &
Trust Company, Custodian of the Fund, at the end of each business day, or as
soon thereafter as the order placed with it have been compiled, of the number of
shares and the prices thereof which the Principal Underwriter is to purchase as
principal for resale. The Principal Underwriter shall take down and pay for
shares ordered from the Fund on or before the tenth business day (excluding
Saturdays) after the shares have been so ordered.
The right granted to the Principal Underwriter to buy shares from the
Fund shall be exclusive, except that said exclusive right shall not apply to
shares issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Fund or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company, by the Fund; nor shall it apply to
shares, if any, issued by the Fund in distribution of income or realized capital
gains of the Fund payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to dealers
having selling group agreements with the Principal Underwriter, and to
investors, upon the following terms and conditions.
The public offering price, i.e., the price per share at which the
Principal Underwriter or dealer purchasing shares from the Principal Underwriter
may sell shares to the public, shall be the public offering price as set forth
in the current Prospectus relating to said shares, but not to exceed the net
asset value at which the Principal Underwriter is to purchase the shares, plus a
sales charge not to exceed 8.50% of the public offering price (the net asset
value divided by .915). If the resulting public offering price does not come out
to an even cent, the public offering price shall be adjusted to the nearer cent.
The Principal Underwriter may also sell shares at the net asset value
at which the Principal Underwriter is to purchase such shares, provided such
sales are not inconsistent with the provisions of Section 22(d) of the
Investment Company Act of 1940, as amended, and the rules thereunder, including
any applicable exemptive orders or administrative interpretations or "no-action"
positions with respect thereto.
The net asset value of shares of the Fund shall be determined by the
Fund or Investors Bank & Trust Company, as the agent of the Fund, as of the
close of trading on the New York Stock Exchange on each business day on which
said Exchange is open, or as of such other time on each such business day as may
be determined by the Trustees of the Fund, in accordance with the method
referred to in Article XII of the Declaration of Trust of the Fund. The Fund may
also cause the net asset value to be determined in substantially the same manner
or estimated in such manner and as of such other time or times as may from time
to time be agreed upon by the Fund and Principal Underwriter. The Fund will
notify the Principal Underwriter each time the net asset value of the shares is
determined and when such value is so determined it shall be applicable to
transactions as set forth in the current Prospectus relating to shares.
No shares of its stock shall be sold by the Fund during any period when
the determination of net asset value is suspended pursuant to Article XII of the
Declaration of Trust of the Fund, except to the Principal Underwriter, in the
manner and upon the terms above set forth to cover contracts of sale made by the
Principal Underwriter with its customers prior to any such suspension, and
except as provided in the last paragraph of paragraph 1 hereof. The Fund shall
also have the right to suspend the sale of its shares if in the judgment of the
Fund conditions obtaining at any time render such actions advisable. The
Principal Underwriter shall have the right to suspend sales at any time, to
refuse to accept or confirm any order from an investor or dealer, or to accept
or confirm any such order in part only, if in the judgment of the Principal
Underwriter such action is in the best interests of the Fund.
3. The Fund agrees that it will, from time to time, but subject to the
necessary approval of the shareholders, take such steps as may be necessary to
register its shares under the federal Securities Act of 1933 (as amended from
time to time) to the end that there will be available for sale such number of
shares as the Principal Underwriter may reasonably be expected to sell. The Fund
agrees to indemnify and hold harmless the Principal Underwriter and each person,
if any, who controls the Principal Underwriter within the meaning of Section 15
of the Securities Act of 1933 against any loss, liability, claim, damages or
expense (including the reasonable cost of investigating or defending any alleged
loss, liability, claim, damages or expense and reasonable counsel fees incurred
in connection therewith), arising by reason of any person acquiring any shares,
which may be based upon the Securities Act of 1933 or on any other statute or at
common law, on the ground that the Registration Statement or Prospectus, as from
time to time amended and supplemented, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, unless such
statement or omission was made in reliance upon, and in conformity with,
information furnished in writing to the Fund in connection therewith by or on
behalf of the Principal Underwriter; provided, however, that in no case (i) is
the indemnity of the Fund in favor of the Principal Underwriter and any such
controlling person to be deemed to protect such Principal Underwriter or any
such controlling person against any liability to the Fund or its security
holders to which such Principal Underwriter or any such controlling person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties or by reason of its reckless
disregard of its obligations and duties under this Agreement, or (ii) is the
Fund to be liable under its indemnity agreement contained in this paragraph with
respect to any claim made against the Principal Underwriter or any such
controlling person unless the Principal Underwriter or such controlling person,
as the case may be, shall have notified the Fund in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Principal Underwriter or
upon such controlling person (or after the Principal Underwriter or such
controlling persons shall have received notice of such service on any designated
agent), but failure to notify the Fund of any such claim shall not relieve it
from any liability which it may have to the person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
paragraph. The Fund shall be entitled to participate, at its own expense, in the
defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but if the Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the
Principal Underwriter or controlling person or persons, defendant or defendants
in the suit. In the event the Fund elects to assume the defense of any such suit
and retains such counsel, the Principal Underwriter or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by them, but, in case the Fund does not elect
to assume the defense of any such suit, it shall reimburse the Principal
Underwriter or controlling person or persons, defendant or defendants in the
suit, for the reasonable fees and expenses of any counsel retained by them. The
Fund agrees promptly to notify the Principal Underwriter of the commencement of
any litigation or proceedings against it or any of its officers or Trustees in
connection with the issuance or sale of any of the shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
securities, and will indemnify and hold harmless the Fund and each of its
Trustees and officers and each person, if any, who controls the Fund within the
meaning of Section 15 of the Securities Act of 1933, against any loss,
liability, damages, claim or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, damages, claim or
expense and reasonable counsel fees incurred in connection therewith), arising
by reason of any person acquiring any shares, which may be based upon the
Securities Act of 1933 or any other statute or at common law, on account of any
wrongful act of the Principal Underwriter or any of its employees (including any
failure to conform with any requirement of any state or federal law relating to
the sale of such securities) or on the ground that the Registration Statement or
Prospectus, as from time to time amended and supplemented, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, insofar as any such statement or omission was made in reliance upon,
and in conformity with, information furnished in writing to the Fund in
connection therewith by or on behalf of the Principal Underwriter, provided,
however, that in no case (i) is the indemnity of the Principal Underwriter in
favor of any person indemnified to be deemed to protect the Fund or any such
person against any liability to which the Fund or any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its or his duties or by reason of its or his
reckless disregard of its obligations and duties under this Agreement, or (ii)
is the Principal Underwriter to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made against the Fund or
any person indemnified unless the Fund or such person, as the case may be, shall
have notified the Principal Underwriter in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon the Fund or upon such person (or after
the Fund or such person shall have received notice of such service on any
designated agent), but failure to notify the Principal Underwriter of any such
claim shall not relieve it from any liability which it may have to the Fund or
any person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this paragraph. The Principal Underwriter shall
be entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the defense of any suit brought to enforce any such liability,
but if the Principal Underwriter elects to assume the defense, such defense
shall be conducted by counsel chosen by it and satisfactory to the Fund, or to
its officers or Trustees, or to any controlling person or persons, defendant or
defendants in the suit. In the event that the Principal Underwriter elects to
assume the defense of any such suit and retain such counsel, the Fund or such
officers or Trustees or controlling person or persons, defendant or defendants
in the suit, shall bear the fees and expenses of any additional counsel retained
by them, but, in case the Principal Underwriter does not elect to assume the
defense of any such suit, it shall reimburse the Fund, any such officers, and
Trustees or controlling person or persons, defendant or defendants in such suit,
for the reasonable fees and expenses of any counsel retained by them. The
Principal Underwriter agrees promptly to notify the Fund of the commencement of
any litigation or proceedings against it in connection with the issue and sale
of any of the shares.
Neither the Principal Underwriter nor any dealer nor any other person
is authorized by the Fund to give any information or to make any
representations, other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (as said Registration Statement and
Prospectus may be amended or supplemented from time to time), covering the
shares of the Fund. Neither the Principal Underwriter nor any dealer nor any
other person is authorized to act as agent for the Fund in connection with the
offering or sale of shares of the Fund to the public or otherwise. All such
sales made by the Principal Underwriter shall be made by it as principal, for
its own account. The Principal Underwriter may, however, act as agent in
connection with the repurchase of shares as provided in paragraph 6 below, or in
connection with "exchanges" between investment companies for which the Principal
Underwriter acts as Principal Underwriter or investment manager as provided in
the agreement among such companies as from time to time in effect.
5. (a) The Fund will pay, or cause to be paid -
(i) all the costs and expenses of the Fund, including fees and
disbursements of its counsel, in connection with the preparation and filing of
any required Registration Statement and/or Prospectus under the Securities Act
of 1933, as amended, covering its shares and all amendments and supplements
thereto, and preparing and mailing periodic reports to shareholders (including
the expense of setting up in type any such Registration Statement, Prospectus or
periodic report);
(ii) the cost of preparing temporary and permanent stock
certificates (if any) for shares of the Fund;
(iii) The cost and expenses of delivering to the Principal
Underwriter at its office in Boston, Massachusetts, all shares purchased by it
as principal hereunder; and
(iv) all the federal and state (if any) issue and/or transfer taxes
payable upon the issue by or (in the case of treasury shares) transfer from the
Fund to the Principal Underwriter of any and all shares purchased by the
Principal Underwriter hereunder.
(b) The Principal Underwriter agrees that, after the Prospectus and
periodic reports have been set up in type, it will bear the expense of printing
and distributing any copies thereof which are to be used in connection with the
offering of shares to dealers or investors. The Principal Underwriter further
agrees that it will bear the expenses of preparing, printing and distributing
any other literature used by the Principal Underwriter or furnished by it for
use by dealers in connection with the offering of the shares for sale to the
public and any expenses of advertising in connection with such offering. The
Fund agrees to pay the expenses of registration and maintaining registration of
the shares for sale under Federal and state securities laws, and, if necessary
or advisable in connection therewith, of qualifying the Fund as a dealer or
broker, in such states as shall be selected by the Principal Underwriter and the
fees payable to each such state for continuing the qualification therein until
the Principal Underwriter notifies the Fund that if does not wish such
qualifications continued.
6. The Fund hereby authorizes the Principal Underwriter to repurchase,
upon the terms and conditions set forth in written instruction given by the Fund
to the Principal Underwriter from time to time, as agent of the Fund and for its
account, such shares of the Fund as may be offered for sale to the Fund from
time to time.
(a) The Principal Underwriter shall notify in writing Investors Bank &
Trust Company, Custodian of the Fund, at the end of each business day, or as
soon thereafter as the repurchases in each pricing period have been compiled, of
the number of shares repurchased for the account of the Fund since the last
previous report, together with the prices at which such repurchases were made,
and upon the request of any officer or Trustee of the Fund shall furnish similar
information with respect to all repurchases made up to the time of the request
on any day.
(b) The Fund reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by an
officer of the Principal Underwriter, by telegraph or by written instrument from
an officer of the Fund duly authorized by its Trustees. In the event that the
authorization of the Principal Underwriter is, by the terms of such notice,
suspended for more than twenty-four hours or until further notice, the
authorization given by this paragraph 6 shall not be revived except by action of
a majority of the Trustees of the Fund.
(c) The Principal Underwriter shall have the right to terminate the
operation of this paragraph 6 upon giving to the Fund thirty (30) days' written
notice thereof.
(d) The Fund agrees to authorize and direct Investors Bank & Trust
Company, Custodian, to pay, for the account of the Fund, the purchase price of
any shares so repurchased against delivery of the certificates in proper form
for transfer to the Fund or for cancellation by the Fund.
(e) The Principal Underwriter shall receive no commission in respect of
any repurchase of shares under the foregoing authorization and appointment as
agent.
(f) The Fund agrees to reimburse the Principal Underwriter, from time
to time on demand, for any reasonable expenses incurred in connection with the
repurchase of shares pursuant to this paragraph 6.
7. If, at any time during the existence of this Agreement, the Fund
shall deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Securities and Exchange Commission or other governmental
authority or to obtain any advantage under Massachusetts or federal tax laws,
and shall notify the Principal Underwriter of the form of amendment which it
deems necessary or advisable and the reasons therefor, and, if the Principal
Underwriter declines to assent to such amendment, the Fund may terminate this
Agreement forthwith by written notice to the Principal Underwriter. If, at any
time during the existence of this agreement upon request by the Principal
Underwriter, the Fund fails (after a reasonable time) to make any changes in its
Declaration of Trust, as amended, or in its methods of doing business which are
necessary in order to comply with any requirement of federal law or regulations
of the Securities and Exchange Commission or of a national securities
association of which the Principal Underwriter is or may be a member, relating
to the sale of the shares of the Fund, the Principal Underwriter may terminate
this Agreement forthwith by written notice to the Fund.
8. In connection with purchases or sales of portfolio securities for
the account of the Fund, neither the Principal Underwriter nor any officer or
director of the Principal Underwriter shall act as a principal. The Principal
Underwriter covenants that it and its officers and directors shall comply with
the provisions of Article XIV of the Fund's By-Laws applicable to them.
9. The Principal Underwriter agrees that it will not take any long or
short positions in the shares of the Fund except as permitted by paragraphs 1
and 6 hereof, and that, so far as it can control the situation, it will prevent
any officer, Director or owner of voting common stock of the Principal
Underwriter from taking any long or short position in the shares of the Fund,
except as permitted by the By-Laws of the Fund as from time to time in effect.
10. The term "net asset value" as used in this Agreement with reference
to the shares of the Fund shall have the same meaning as the term "asset value"
as used in the Declaration of Trust of the Fund, as amended, and as defined in
Article XII thereof.
11. (a) The Principal Underwriter is a corporation in the United
States, organized under the laws of Massachusetts and holding membership in the
National Association of Securities Dealers, Inc., a securities association
registered under Section 15A of the Securities Exchange Act of 1934, and during
the life of this Agreement will continue to be so resident in the United States,
so organized and a member in good standing of said Association. The Principal
Underwriter will comply with the Fund's Declaration of Trust and By-Laws, and
the Investment Company Act of 1940 and the rules promulgated thereunder, insofar
as they are applicable to the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United States
and preserve therein for such period or periods as the Commission shall
prescribe by rules and regulations applicable to it as Principal Underwriter of
an open-end investment company registered under the 1940 Act such accounts,
books and other documents as are necessary or appropriate to record its
transactions with the Fund. Such accounts, books and other documents shall be
subject at any time and from time to time to such reasonable periodic, special
and other examinations by the Commission or any member or representative thereof
as the Commission may prescribe. The Principal Underwriter shall furnish to the
Commission within such reasonable time as the Commission may prescribe copies of
or extracts from such records which may be prepared without effort, expense or
delay as the Commission may by order require.
12. This Agreement shall continue in force indefinitely until
terminated as in this Agreement above provided, except that:
(a) this Agreement shall continue in effect for a period which
terminates on a date subsequent to April 28, 1990 only so long as such
continuance is specifically approved at least annually (i) by the vote of a
majority of the Trustees of the Fund who are not interested persons (as defined
in Section 2(a)(19) of the Investment Company Act of 1940) of the Fund or of the
Principal Underwriter cast in person at a meeting called for the purpose of
voting on such approval, and (ii) by the Trustees of the Fund or by vote of a
majority of the outstanding voting securities (as defined in Section 2(a)(42) of
the Investment Company Act of 1940) of the Fund;
(b) either shall have the right to terminate this Agreement on six
(6) months' written notice thereof given in writing to the other; and
(c) the Fund shall have the right to terminate this Agreement
forthwith in the event that it shall have been established by a court of
competent jurisdiction that the Principal Underwriter or any director or officer
of the Principal Underwriter has taken any action which results in a breach of
the covenants set out in Section 8 hereof.
13. In the event of the assignment (as defined in Section 2(a)(4) of
the Investment Company Act of 1940) of this Agreement by the Principal
Underwriter, this Agreement shall automatically terminate.
14. Any notice under this Agreement shall be in writing, addressed and
delivered, or mailed postage paid, to the other party, at such address as such
other party may designate for the receipt of such notices. Until further notice
to the other party, it is agreed that the record address of the Fund, and that
of the Principal Underwriter, shall be 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
15. The services of the Principal Underwriter to the Fund hereunder are
not to be deemed to be exclusive, the Principal Underwriter being free to (a)
render similar services to, and to act as Principal Underwriter in connection
with the distribution of shares of, other investment companies, and (b) engage
in other business and activities from time to time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
XXXXX XXXXX INCOME FUND OF BOSTON
By/s/ X. Xxxxxx Xxxxxxx
-------------------------------------
President
XXXXX XXXXX DISTRIBUTORS, INC.
By/s/ Xxxxx X. Xxxxxxxxxx
-------------------------------------
President
