UNDERWRITING AGREEMENT
BETWEEN
THE PARK AVENUE PORTFOLIO
AND
GUARDIAN INVESTOR SERVICES CORPORATION
AGREEMENT made this 1st day of January, 1993 between THE PARK AVENUE PORTFOLIO,
a Massachusetts business trust (the "Trust") which may offer for public sale
separate series of shares of beneficial interest (the "Shares"), and GUARDIAN
INVESTOR SERVICES CORPORATION (the "Underwriter"), a broker-dealer registered
under the Securities Exchange Act of 1934.
The Trust and the Underwriter agree as follows:
1. The Trust hereby appoints the Underwriter as its exclusive agent for
the distribution of its Shares of beneficial interest. Such Shares may be
distributed by the Underwriter in any state or jurisdiction where they may be
legally offered.
2. The Underwriter hereby accepts such appointment and agrees that it will
use its best efforts to sell the Shares. The Underwriter may offer Shares
through agents of The Guardian Life Insurance Company of America ("Guardian
Life"), or its subsidiaries, who are licensed to sell Shares, and through
registered representatives of selected broker-dealer firms which are members of
the National Association of Securities Dealers, Inc. and which have entered into
selling agreements with the Underwriter (the "Firms").
3. The Trust agrees to execute such documents and to furnish such
information as may be reasonably necessary to register or qualify the Shares for
sale in the states or jurisdictions which the Underwriter may reasonably request
(it being understood that the Trust shall not be required without its consent to
qualify to do business in any jurisdiction or to comply with any requirement
which in its opinion is unduly burdensome).
4. The Trust, on behalf of its series, will pay or cause to be paid: (a)
expenses of any registration or qualification of the Shares for sale under the
federal securities laws and the securities laws of any state or other
jurisdiction in which the Shares shall be sold; (b) the expenses of any reports
or acts required by law in connection with such registration or
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qualification; and (c) the expenses incidental to the issuance of the Shares,
such as the cost of stock certificates, issue taxes, and fees of the transfer
agent. In addition, the Trust, on behalf of its series, will pay or cause to be
paid, expenses incurred in connection with the preparation, printing and
distribution of any report or communication to Shareholders in their capacity as
such.
5. The Underwriter will pay all expenses related to its registration or
qualification as a broker-dealer under federal, state or other applicable law
and, except as set forth in Section 4 above, all expenses related to the
distribution of the Shares other than: (a) expenses which the series of the
Trust may bear pursuant to any Distribution Plan and Agreement Pursuant to Rule
12b-1 under the Investment Company Act of 1940 between the Underwriter and the
Trust; or (b) expenses which one or more of the Firms may bear pursuant to any
agreements between such Firms and the Underwriter.
6. Shares of any series offered for sale or sold by the Underwriter shall
be so offered or sold at a price per share determined in accordance with the
then current Prospectus relating to the sale of such Shares except as departure
from such prices shall be permitted by the rules and regulations of the
Securities and Exchange Commission ("SEC"); provided, however, that any public
offering price for the Shares shall be the net asset value per Share plus a
sales charge in the amount, if any, set forth in the then current Prospectus of
the Trust relating to such Shares. The net asset value per Share shall be
determined in the manner and at the times set forth in the then current
Prospectus of the Trust relating to such Shares.
The price the Trust shall receive for all Shares purchased from it
shall be the net asset value used in determining the public offering price
applicable to the sale of such Shares. The excess, if any, of the sales price
over the net asset value of the Shares sold by the Underwriter as agent shall be
retained by the Underwriter as a commission for its services hereunder. The
Underwriter may allow discounts, commissions, fees or other concessions to
Firms, and may allow them to others in its discretion, in such amounts as the
Underwriter shall determine from time to time. Except as may be otherwise
determined by the Underwriter and the Trust from time to time as provided in the
then current Prospectus, such discounts, commissions, fees or other concessions
shall be uniform to all Firms.
The Underwriter will require each Firm to conform to the provisions
hereof and the Registration Statement (and related Prospectus) at the time in
effect with respect to the public offering price of the Shares, and neither the
Underwriter nor any such Firms shall withhold the placing of purchase orders so
as to make a profit thereby.
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7 a. The Trust agrees, as long as the Shares of any series may legally be
issued, to fill all orders confirmed by the Underwriter in accordance with the
provisions of this Agreement. However, the Trust reserves the right to suspend
or withdraw the offering of Shares of any series of the Trust at any time in its
absolute discretion, subject to applicable laws, rules and regulations.
b. The Underwriter shall order Shares from the Trust only to the extent
that it shall have received purchase orders therefor. The Underwriter will not
make, or authorize any Firms or others to make, any short sales of the Shares.
c. The Underwriter, as agent of and for the account of the Trust, may
repurchase Shares at such prices and upon such terms and conditions as shall be
specified in the current Prospectus of the Trust.
d. The Underwriter shall comply with all applicable laws, rules and
regulations, and with the Trust's Declaration of Trust, Bylaws and Registration
Statement insofar as any of the foregoing relate to its activities hereunder.
e. The Trust and the Underwriter shall agree upon procedures relating
to the sale of Shares, payment therefor, delivery of confirmations and stock
certificates and other related matters.
8. Notwithstanding the Underwriter's appointment as exclusive agent for
distribution of the Shares, the Trust in its absolute discretion may: (a) issue
Shares in connection with the acquisition of assets or shares or securities of
another corporation or entity, or in connection with a merger or consolidation
with any other corporation or entity, as and to the extent permitted by the
Declaration of Trust and any applicable laws; (b) issue or sell Shares directly
to the shareholders of its series upon such terms and conditions and for such
consideration, if any, as it may determine, whether in connection with the
distribution of subscription or purchase rights, the payment or reinvestment of
dividends or distributions, or otherwise; or (c) issue or sell Shares at net
asset value to the shareholders of any other investment company, for which the
Underwriter shall act as a distributor, who wish to exchange all or a portion of
their investment in shares of such other investment company for Shares of any
series of the Trust.
9 a. The Trust agrees to file from time to time such registration
statements and amendments thereto as may be required under the federal
securities laws or by the rules and regulations of the SEC thereunder. Any such
registration
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statement, as from time to time amended, relating to the Trust which may be
declared effective by the SEC is herein referred to as the "Registration
Statement", and any prospectus and statement of additional information relating
to the Trust as a part of the Registration Statement are referred to as the
"Prospectus" and "SAI", respectively.
b. The Trust will furnish to the Underwriter from time to time its
current Prospectus, SAI and such other information with respect to the Trust,
its series or its Shares as the Underwriter may reasonably request for use in
connection with the sale of the Shares.
c. The Trust authorizes the Underwriter in connection with the sale or
arranging for the sale of the Shares to give only such information and to make
only such statements or representations as are contained in the Trust's current
Prospectus or SAI or in sales literature or advertisements furnished or approved
by the Trust. The Trust shall not be responsible in any way for any other
information, statements or representations given or made by the Underwriter, its
employees, agents or representatives, or any of the selected broker-dealer firms
which have entered into selling agreements with the Underwriter.
10 a. The Trust agrees to indemnify and hold harmless the Underwriter, and
any person who controls the Underwriter within the meaning of Section 15 of the
Securities Act of 1933 (the "1933 Act"), against any and all losses, claims,
damages and liabilities (including reasonable legal and other expenses of
defending any actions) arising out of: (i) any untrue or alleged untrue
statement of a material fact contained in its Registration Statement,
Prospectus, SAI or in any sales literature or advertisements furnished or
approved by the Trust, and utilized by the Underwriter; or (ii) any omission or
alleged omission to state in the foregoing documents the material facts required
to be stated or necessary to make the statements therein not misleading, unless
such untrue or alleged untrue statement or omission or alleged omission of fact
was made in conformity with information given to the Trust by the Underwriter
specifically for use in such documents.
b. The Underwriter agrees to indemnify and hold harmless the Trust and
any person who controls the Trust within the meaning of Section 15 of the 1933
Act and each officer and Trustee of the Trust to the same extent and in the same
manner as the Trust has agreed to indemnify the Underwriter as outlined in the
preceding paragraph, but only with respect to information given to the Trust by
the Underwriter specifically for use in the Trust's Registration Statement,
Prospectus, SAI,
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sales literature or advertising. The Underwriter also agrees to indemnify and
hold harmless the Trust against any and all losses, claims, damages and
liabilities (including reasonable legal and other expenses of defending any
actions) arising out of or based upon any acts or deeds of the Underwriter
(including any employee, agent or sales representative of the Underwriter) which
are outside the scope of the Underwriter's authority pursuant to this Agreement.
c. The indemnity agreements in this Section 10 shall remain operative
and in full force and effect regardless of the expiration or termination of this
Agreement but only with respect to statements made, omissions or actions
occurring prior to such expiration or termination.
d. Nothing contained herein shall relieve either party of any liability
to the other or to the Trust's shareholders to which they would otherwise be
subject by reason of willful misfeasance, bad faith or gross negligence, in the
performance of their duties or by reason of their reckless disregard of their
obligations and duties under this Agreement.
11. This Agreement, which supersedes and replaces any other agreement
between the parties regarding the subject matter hereof, shall become effective
on the day that it was made and shall remain in full force and effect until
December 31, 1994. It may be continued thereafter from year to year provided
that such continuance is specifically approved at least annually in a manner
consistent with the Investment Company Act of 1940, as amended from time to time
(the "1940 Act").
12 a. Either party may terminate this Agreement with respect to any or all
series of the Trust at any time, without the payment of any penalty, on not less
than 30 nor more than 60 days written notice to the other party. The Trust's
decision to terminate this Agreement may be reached by vote of a majority of the
Board of Trustees, including a majority of the Trustees who are not "interested
persons" of the Trust, as that term is defined by the 1940 Act, or by vote of a
"majority of the outstanding voting securities" of the affected series, as that
term is defined by the 1940 Act. In addition, without prejudice to any other
remedies of the Trust, the Trust may terminate this Agreement with respect to
any or all series of the Trust at any time in its absolute discretion
immediately upon any failure by the Underwriter to fulfill its obligations
hereunder.
b. Termination of this Agreement with respect to any series shall in no
way affect the continued validity of this Agreement or the performance
thereunder with respect to any other series.
c. This Agreement shall automatically terminate in the event of its
assignment (as defined in the 1940 Act).
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13 a. This Agreement may be amended by mutual consent of the parties.
b. Where the effect of a requirement of the 1940 Act which is reflected
in any provision of this Agreement is relaxed by a rule, regulation, order or
change of interpretive position by the SEC, whether of special or general
application, such provision shall be deemed to incorporate the effect of such
rule, regulation, order or change of interpretive position.
14. Any notice under this Agreement shall be given in writing,
addressed and delivered, or mailed postpaid, to the other party at the principal
office of such party. Until further notice to the other party, it is agreed that
the address of both the Trust and the Underwriter is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
15. Nothing contained in this Agreement shall prevent the Underwriter, or
any affiliated person of the Underwriter, from: rendering distribution services
to other investment companies; acting as distributor to other persons, firms or
corporations; or engaging in other business activities.
16. The Trustees of the Trust and the shareholders of each series shall
not be liable for any obligations of the Trust or any series under this
Agreement, and the Underwriter or any other person, in asserting rights or
claims under this Agreement, shall look only to the assets and property of the
Trust or such series in settlement of such right or claim, and not to such
Trustees or shareholders.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
IN WITNESS WHEREOF, the Trust and the Underwriter have executed this
Agreement in the City and State of New York on the date set forth above.
Attest: THE PARK AVENUE PORTFOLIO
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
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Secretary
Attest: GUARDIAN INVESTOR SERVICES CORPORATION
/s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------------ ------------------------------------
Secretary
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