DISTRIBUTION AGREEMENT
BETWEEN
THE XXXXXXX TRUST
AND
XXXXXXX & CO., INC.
THIS AGREEMENT made this 15th day of September, 1998, by and
between THE XXXXXXX TRUST, a Delaware business trust (hereinafter referred to as
the "Trust"), on behalf of each of its series and classes listed on Schedule A,
and XXXXXXX & CO., INC. (hereinafter referred to as the "Distributor").
W I T N E S S E T H:
In consideration of the mutual covenants herein contained and
other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto agree as follows:
FIRST: The Trust hereby appoints the Distributor as its
underwriter to promote the sale and to arrange for the sale of shares of
beneficial interest of the Trust to the public through its sales representatives
and to investment dealers. In addition, the Distributor may receive payment for
certain distribution expenses pursuant to any Rule 12b-1 distribution plan
adopted by the Trust.
The Trust agrees to sell and deliver its shares, upon the
terms hereinafter set forth, as long as it has unissued and/or treasury shares
available for sale.
SECOND: The Trust hereby authorizes the Distributor, subject
to law and the organizational documentation of the Trust, to accept, for the
account of the Trust, orders for the purchase of its shares, satisfactory to the
Distributor, as of the time of receipt of such orders by the dealer or as
otherwise described in the then current Prospectus of the Trust.
THIRD: The Trust will determine the net asset value of its
shares of each series once daily as of the close of trading on The New York
Stock Exchange on each day that the Exchange is open for business. It is
expected that the Exchange will be closed on Saturdays and Sundays and on New
Year's Day, Xxxxxxxx Xxxxxx Xxxxxx Xxxx Xx. Day, President's Day, Good Friday,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
The net asset value of a series is determined by dividing the market value of
such series as of the close of trading plus any cash or other assets (including
dividends receivable and accrued interest) less all liabilities (including
accrued expenses) by the number of shares of the series outstanding. Securities
will be valued according to the Securities Valuation Procedures of the Trust.
FOURTH: The Distributor agrees to devote reasonable time and
effort to enlist investment dealers and otherwise promote the sale and
distribution and act as Distributor for the sale and distribution of the shares
of the Trust as such arrangements may profitably be made; but so long as it does
so, nothing herein contained shall prevent the Distributor from
entering into similar arrangements with other funds and to engage in other
activities. The Trust reserves the right to issue shares in connection with any
merger or consolidation of the Trust with any other investment company or any
personal holding company or in connection with offers of exchange exempted from
Section 22(a) of the Investment Company Act of 1940.
FIFTH: Upon receipt by the Trust at its principal place of
business of a written order from the Distributor, together with delivery
instructions, the Trust shall, as promptly as practicable, cause certificates
for the shares called for in such order to be delivered or credited in such
amounts and in such names as shall be specified by the Distributor, against
payment therefor in such manner as may be acceptable to the Trust.
SIXTH: All sales literature and advertisements used by the
Distributor in connection with sales of the shares of the Trust shall be subject
to the approval of the Trust. The Trust authorizes the Distributor in connection
with the sale or arranging for the sale of its shares to give only such
information and to make only such statement or representations as are contained
in the current Prospectus and Statement of Additional Information or in sales
literature or advertisements approved by the Trust or in such financial
statements and reports as are furnished to the Distributor pursuant to this
Agreement. The Trust shall not be responsible in any way for any information,
statements or representations given or made by the Distributor or its
representatives or agents other than such information, statements and
representations contained in the then current Prospectus and Statement of
Additional Information.
SEVENTH: The Distributor as agent of the Trust is authorized,
subject to the direction of the Trust, to accept shares for redemption at their
net asset value, determined as prescribed in the then current prospectus of the
Trust.
EIGHTH: The Trust shall bear:
(A) the expenses related to the sale of the shares in
connection with such public offerings in such states as shall be selected by the
Distributor and of continuing the qualification therein until the Distributor
notifies the Trust that it does not wish such qualification continued; and
(B) all legal expenses in connection with the foregoing.
NINTH: The Distributor shall bear:
(A) the expenses of printing and distributing prospectuses and
statements of additional information (other than those prospectuses and
statements of additional information required by applicable laws and regulations
to be distributed to the shareholders by the Trust and pursuant to any Rule
12b-1 distribution plan), and any other promotional or sales literature which
are used by the Distributor or furnished by the Distributor to purchasers or
dealers in connection with the Distributor's activities pursuant to this
Agreement; and
(B) expenses of any advertising used by the Distributor in
connection with such public offering.
TENTH: The Distributor will accept orders for shares of the
Trust only to the extent of purchase orders actually received and not in excess
of such orders, and it will not avail itself of any opportunity of making a
profit by expediting or withholding orders.
ELEVENTH: The Trust shall keep the Distributor fully informed
with regard to its affairs, shall furnish the Distributor with a certified copy
of all financial statements, and a signed copy of each report, prepared by
independent public accountants, and with such reasonable number of printed
copies of each quarterly, semi-annual and annual report of the Trust as the
Distributor may request, and shall cooperate fully in the efforts of the
Distributor to sell and arrange for the sale of its shares and in the
performance by the Distributor of all its duties under this Agreement.
TWELFTH: The Trust agrees to register, from time to time as
necessary, additional shares with the Securities and Exchange Commission, state
and other regulatory bodies and to pay the related filing fees therefor and to
file such amendments, reports and other documents as may be necessary in order
that there may be no untrue statement of a material fact in the Registration
Statement, Prospectus or necessary in order that there may be no omission to
state a material fact therein necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. As
used in this Agreement, the term "Registration Statement" shall mean from time
to time the Registration Statement most recently filed by the Trust with the
Securities and Exchange Commission and effective under the Securities Act of
1933, as amended, as such Registration Statement is amended at such time, and
the term "Prospectus" shall mean for the purposes of this Agreement from time to
time the form of prospectus and statement of additional information authorized
by the Trust for use by the Underwriter and by dealers.
THIRTEENTH:
(A) The Trust and the Distributor shall each comply with all
applicable provisions of the Investment Company Act of 1940, the Securities Act
of 1933, and of all other Federal and state laws, rules and regulations
governing the issuance and sale of shares of the Trust.
(B) In absence of willful misfeasance, bad faith, gross
negligence or reckless disregard of obligations or duties hereunder on the part
of the Distributor, the Trust agrees to indemnify the Distributor against any
and all claims, demands, liabilities and expenses which the Distributor may
incur under the Securities Act of 1933, or common law or otherwise, arising out
of or based upon any alleged untrue statement of a material fact contained in
any registration statement, statement of additional information or prospectus of
the Trust, or any omission to state a material fact therein, the omission of
which makes any statement contained therein misleading, unless such statement or
omission was made in reliance upon, and in conformity with information furnished
to the Trust in connection therewith by or on behalf of the Distributor. The
Distributor agrees to indemnify the Trust against any and all claims, demands,
liabilities and expenses which the Trust may incur arising out of or based upon
any act or deed of sales representatives of the Distributor which is outside the
scope of their authority.
(C) The Distributor agrees to indemnify the Trust against any
and all claims, demands, liabilities and expenses which the Trust may incur
under the Securities Act of 1933, or common law or otherwise, arising out of or
based upon any alleged untrue statement of a material fact contained in any
registration statement, or Prospectus of the Trust, or any omission to state a
material fact therein if such statement or omission was made in reliance upon,
and in conformity with, information furnished to the Trust in connection
therewith by or on behalf of the Distributor.
FOURTEENTH: Nothing herein contained shall require the Trust
to take any action contrary to any provision of its trust agreement or to any
applicable statute or regulation.
FIFTEENTH: This Agreement has been approved by the Trustees of
the Trust and shall become effective at the close of business on the date
hereof, and shall remain in effect for two years from the date hereof and shall
continue in force and effect for successive annual periods thereafter, provided
that such continuance is specifically approved at least annually (a)(i) by the
Board of Trustees of the Trust, or (ii) by vote of a majority of the Trust's
outstanding voting securities (as defined in Section 2(a)(42) of the Investment
Company Act), and (b) by vote of a majority of the Trust's Trustees who are not
interested persons (as defined in Section 2(a)(19) of the Investment Company
Act) of the Distributor by votes cast in person at a meeting called for such
purpose.
SIXTEENTH: A copy of the Certificate of Formation of the Trust
is on file with the Secretary of the State of Delaware, and notice is hereby
given that this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of this instrument are
not binding upon any of the Trustees or shareholders individually but are
binding only upon the assets and property of the Trust.
SEVENTEENTH:
(A) This Agreement may be terminated at any time, without the
payment of any penalty, by vote of the Board of Trustees of the Trust or by vote
of a majority of the outstanding voting securities of the Trust, or by the
Distributor, on sixty (60) days written notice to the other party.
(B) This Agreement shall automatically terminate in the event
of its assignment, the term "assignment" for this purpose having the meaning
defined in Section 2(a)(4) of the Investment Company Act.
EIGHTEENTH: 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 address of the
Trust shall be 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and the address of the
Distributor shall be 00 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed in duplicate on the day and year first above written.
ATTEST: THE XXXXXXX TRUST,
on behalf of each of its series listed on
Schedule A
/s/ Xxxx Kick By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------- -------------------------------
Xxxx Kick, Chief Financial Officer Xxxxxx X. Xxxxxxx, Chairman
ATTEST: XXXXXXX ASSET MANAGEMENT, INC.
/s/ Xxxx Kick By: /s/ Xxxxxxxxx Xxxxxxxxx, Xx.
---------------------------------- ----------------------------
Xxxx Kick, Chief Financial Officer Xxxxxxxxx Xxxxxxxxx, Xx.,
Secretary
SCHEDULE A
Ramirez Cash Management Money Market Fund
Xxxxxxx New York Tax-Free Money Market Fund
Xxxxxxx U.S. Treasury Money Market Fund
