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EX-99.6(a)
DISTRIBUTION AGREEMENT
AGREEMENT made as of the 16th day of September, 1986 between
XXXXXXX XXXXX MUNICIPAL SERIES TRUST, a Massachusetts business
trust (the "Trust"), and XXXXXXX XXXXX FUNDS DISTRIBUTOR, INC., a
Delaware corporation (the "Distributor").
W I T N E S S E T H :
WHEREAS, the Trust is registered under the Investment
Company Act of 1940, as amended to date (the "Investment Company
Act"), as a diversified open-end investment company and it is
affirmatively in the interest of the Trust to offer its shares
for sale continuously; and
WHEREAS, the Trustees of the Trust (the "Trustees") are
authorized to establish separate series ("Series") relating to
separate portfolios of securities, each of which will offer a
separate class of shares of beneficial interest, par value $0.10
per share (collectively referred to as "shares") to selected
groups of purchasers; and
WHEREAS, the Distributor is a securities firm engaged in the
business of selling shares of investment companies either
directly to purchasers or through other securities dealers; and
WHEREAS, the Trust and the Distributor wish to enter into an
agreement with each other with respect to the continuous offering
of the shares of the various Series, as the same are organized
from time to time, each offering to commence after the
effectiveness of the registration statement covering the shares
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of a particular Series filed pursuant to the Securities Act of
1933, as amended (the "Securities Act").
NOW, THEREFORE, the parties agree as follows:
Section 1. Appointment of the Distributor. The Trust
hereby appoints the Distributor as the principal underwriter and
distributor of the Trust to sell shares of beneficial interest of
each Series which may be established by the Trust (sometimes
herein referred to as "shares') to the public and hereby agrees
during the term of this Agreement to sell shares of the Trust to
the Distributor upon the terms and conditions herein set forth.
Section 2. Exclusive Nature of Duties. The Distributor
shall be the exclusive representative of the Trust to act as
principal underwriter and distributor, except that:
(a) The Trust may, upon written notice to the Distributor,
from time to time designate other principal underwriters and
distributors of shares of each Series with respect to areas other
than the United States as to which the Distributor may have
expressly waived in writing its right to act as such. If such
designation is deemed exclusive, the right of the Distributor
under this Agreement to sell shares in the areas so designated
shall terminate, but this Agreement shall remain otherwise in
full effect until terminated in accordance with the other
provisions hereof.
(b) The exclusive rights granted to the Distributor to
purchase shares from the Trust shall not apply to shares of any
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Series of the Trust issued in connection with the merger or
consolidation of any other investment company or personal holding
company with the Trust or the acquisition by purchase or
otherwise of all (or substantially all) the assets or the
outstanding shares of any such company by the Trust.
(c) Such exclusive rights shall also not apply to shares
issued by the Trust pursuant to reinvestment of dividends or
capital gains distributions.
(d) Such exclusive rights shall also not apply to shares
issued by the Trust pursuant to the reinstatement privilege
afforded redeeming' shareholders.
Section 3. Purchase of Shares from the Trust.
(a) Prior to the continuous offering of the shares of a
particular Series, commencing on a date agreed upon by the Trust
and the Distributor, it is contemplated that the Distributor will
solicit subscriptions for shares during a subscription period
which shall last for such period as may be agreed upon by the
parties hereto. The subscriptions will be payable within six
business days after the termination of the subscription period,
at which time the Trust will commence operations.
(b) After the Trust commences operations, the Trust will
commence an offering of its shares and thereafter the Distributor
shall have the right to buy from the Trust the shares needed, but
not more than the shares needed (except for clerical errors in
transmission) to fill unconditional orders for shares of the
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Trust placed with the Distributor by investors or securities
dealers. The price which the Distributor shall pay for the
shares of any Fund so purchased from the Trust shall be the net
asset value, determined as set forth in Section 3(e) hereof, used
in determining the public offering price on which such orders
were based.
(c) The shares are to be resold by the Distributor to
investors at net asset value, as set forth in Section 3(d)
hereof, or to securities dealers having agreements with the
Distributor upon the terms and conditions set forth in Section 7
hereof.
(d) The net asset value of shares of each Fund-shall be
determined by the Trust or any agent of the Trust in accordance
with the method set forth in the prospectus and statement of ad-
ditional information of each series of the Trust and guidelines
established by the Trustees.
(e) The Trust shall have the right to suspend the sale of
its shares at times when redemption is suspended pursuant to the
conditions set forth in Section 4(b) hereof. The Trust shall
also have the right to suspend the sale of its shares if trading
on the New York Stock Exchange shall have been suspended, if a
banking moratorium shall have been declared by Federal or New
York authorities, or if there shall have been some other event,
which, in the judgment of the Trust, makes it impracticable or
inadvisable to sell the shares.
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(f) The Trust, or any agent of the Trust designated in
writing by the Trust, shall be promptly advised of all purchase
orders for shares received by the Distributor. Any order may be
rejected by the Trust; provided, however, that the Trust will not
arbitrarily or without reasonable cause refuse to accept or
confirm orders for the purchase of shares. The Trust (or its
agent) will confirm orders upon their receipt, will make
appropriate book entries and upon receipt by the Trust (or its
agent) of payment therefor-,, will deliver deposit receipts or
certificates for such shares pursuant to the instructions of the
Distributor. Payment shall be made to the Trust in New York
Clearing House funds. The Distributor agrees to cause such
payment and such instructions to be delivered promptly to the
Trust (or its agent).
Section 4. Repurchase or Redemption of Shares by the Trust.
(a) Any of the outstanding shares may be tendered for
redemption at any time, and the Trust agrees to repurchase or
redeem the shares so-tendered in accordance with its obligations
as set forth in Article VIII of its Declaration of Trust, as
amended from time to time, and in accordance with the applicable
provisions set forth in the prospectus and statement of
additional information of the Trust. The price to be paid to
redeem or repurchase the shares shall be equal to the net asset
value calculated in accordance with the provisions of Section
3(e) hereof, less the redemption fee or other charge, if any, set
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forth in the prospectus and statement of additional information
of the Trust. All payments by the Trust hereunder shall be made
in the manner set forth below.
The Trust shall pay the total amount of the redemption price
as defined in the above paragraph pursuant to the instructions of
the Distributor on or before the seventh business day subsequent
to its having received the notice of redemption in proper form.
The proceeds of any redemption of shares shall be paid by each
Series as follows: (i) any-applicable contingent deferred sales
charge shall be paid to the Distributor and (ii) the balance
shall be paid to or for the account of the shareholders, in each
case in accordance with the applicable provisions of the prospec-
tus and statement of additional information of each Series.
(b) Redemption of shares or payment may be suspended at
times when the New York Stock Exchange is closed, when trading
on said Exchange is closed, when trading on said Exchange is
restricted, when an emergency exists as a result of which dis-
posal by the Trust of securities owned by it is not reasonably
practicable or it is not reasonably practicable for the Trust
fairly to determine the value of the net assets of its Series, or
during any other period when the Securities and Exchange
Commission, by order, so permits.
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Section S. Duties of the Trust.
(a) The Trust I shall furnish to the Distributor copies of
all information, financial statements and other papers which the
Distributor may reasonably request for use in connection with the
distribution of shares of the Trust, and this shall include one
certified copy, upon request by the Distributor, of all financial
statements of each Series prepared for the Trust by independent
public accountants. The Trust shall make available to the
Distributor such number of -copies of the prospectus and statement
of additional information for each Series as the Distributor
shall reasonably request.
(b) The Trust shall take, from time to time, but subject to
the necessary approval of the shareholders, all necessary action
to fix the number of authorized shares of each Series and such
steps as may be necessary to register the same under the
Securities Act, to the end that there will be available for sale
such number of shares as the Distributor reasonably may be
expected to sell.
(c) The Trust shall use its best efforts to qualify and
maintain the qualification of an appropriate number of shares of
each Series for sale under the securities laws of such states as
the Distributor and the Trust may approve. Any such
qualification may be withheld, terminated or withdrawn by the
Trust at any time in its discretion. As provided in Section 8(c)
hereof, the expense of qualification and maintenance of
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qualification shall be borne by the Trust. The Distributor shall
furnish such information and other material relating to its
affairs and activities as may be required by the Trust in
connection with such qualification.
(d) The Trust will furnish, in reasonable quantities upon
request by the Distributor, copies of annual and interim reports
of each Series.
Section 6. Duties of the Distributor.
(a) The Distributor shall devote reasonable-time and effort
to effect sales of shares of the Trust, but shall not be
obligated to sell any specific number of shares. The services of
the Distributor to the Trust hereunder are not to be deemed
exclusive and nothing herein contained shall prevent the
Distributor from entering into like arrangements with other
investment companies so long as the performance of its
obligations hereunder is not impaired thereby.
(b) In selling the shares of the Trust, the Distributor
shall use its best efforts in all respects duly to conform with
the requirements of all Federal and state laws relating to the
sale of such securities. Neither the Distributor nor any
selected dealer nor any other person is authorized by the Trust
to give any information or to make any representations, other
than those contained in the registration statement or related
prospectus and statement of additional information for each
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Series and any sales literature specifically approved by the
Trust for use with respect to a particular Series.
(c) The Distributor shall adopt and follow procedures, as
approved by the officers of the Trust, for the confirmation of
sales to investors and selected dealers, the collection of
amounts payable by investors and selected dealers on such sales,
and the cancellation of unsettled transactions, as may be
necessary to comply with the -requirements of the National
Association of Securities Dealers, Inc. (the "NASD"), as such
requirements may from time to time exist.
Section 7. Selected Dealers Agreements.
(a) The Distributor shall have the right to enter into
selected dealers agreements with securities dealers of its choice
selected dealers') for the sale of shares; provided that the
Trust shall approve the forms of agreements with dealers. Shares
sold to selected dealers shall be for resale by such dealers only
at net asset value determined as set forth in Section 3(d)
hereof. The form of agreement with selected dealers to be used
during the subscription period described in Section 3(a) with
respect to shares of the first Series of the Trust, designated
Xxxxxxx Xxxxx Municipal Income Fund is attached hereto as Exhibit
A and the initial form of agreement with selected dealers to be
used in the continuous offering of such shares is attached hereto
as Exhibit B.
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(b) Within the United States, the Distributor shall offer
and sell shares only to such selected dealers as are members in
good standing of the NASD.
Section 8. Payment of Expenses.
(a) The Trust shall bear all costs and expenses of the
Trust, including fees and disbursements of its counsel and
auditors, in connection with the preparation and filing of any
required registration statements and/or prospectuses and
statements of additional information under the Investment Company
Act, the Securities Act, and all amendments and supplements
thereto,and preparing and mailing annual and interim reports and
proxy materials to shareholders (including but not limited to the
expense of setting in type any such registration statements,
prospectuses, statements of additional information, annual or
interim reports or proxy materials).
(b) The Distributor shall be responsible for any payments
made to selected dealers as reimbursement for their expenses
associated with payments of sales commissions to account execu-
tives. In addition, after the prospectuses, statements of
additional information and annual and interim reports have-been
prepared and set in type, the Distributor shall bear the costs
and expenses of printing and distributing any copies thereof
which are to be used in connection with the offering of shares to
selected dealers or investors pursuant to this Agreement. The
Distributor shall bear the costs and expenses of preparing,
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printing and distributing any other literature used by the
Distributor or furnished by it for use by selected dealers in
connection with the offering of the shares for sale to the public
and any expenses of advertising incurred by the Distributor in
connection with such offering. It is understood and agreed that,
so long as the Trust's Distribution Plan pursuant to Rule 12b-1
under the Investment Company Act remains in effect, any expenses
incurred by the Distributor hereunder may be paid from amounts
recovered by it from the Fund under such Plan.
(c) The Trust shall bear the cost and expenses of qualifi-
cation of the shares for sale pursuant to this Agreement, and, if
necessary or advisable in connection therewith, of-qualifying the
Trust as a broker or dealer, in such states of the United States
or other jurisdictions as shall be selected by the Trust and the
Distributor pursuant to Section 5(c) hereof and the cost and
expenses payable to each such state for continuing qualification
therein until the Trust decides to discontinue such qualification
pursuant to Section 5(c) hereof.-
Section 9. Indemnification.
(a) The Trust shall indemnify and hold harmless the
Distributor and each person, if any, who controls the Distributor
against any loss, liability, claim, damage or expense (including
the reasonable cost of investigating or defending any alleged
loss, liability, claim, damage or expense and reasonable counsel
fees incurred in connection therewith), arising by reason of any
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person acquiring any shares, which may be based upon the
Securities Act, or on any other statute or at common law, on the
ground that the registration statement or related prospectus and
statement of additional information, as from time to time amended
and supplemented, or an annual or interim report to shareholders
of any Series of the Trust, 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 to the Trust in connection therewith by or on behalf of
the Distributor; provided, however, that in no case (i) is the
indemnity of the Trust in favor of the Distributor and any such
controlling persons to be deemed to protect such Distributor or
any such controlling persons thereof against any liability to the
Trust or its security holders to which the Distributor or any
such controlling persons would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the
performance of their duties or by reason of the reckless
disregard of their obligations and duties under this Agreement;
or (ii) is the Trust to be liable under its indemnity agreement
contained in this paragraph with respect to any claim made
against the Distributor or any such controlling persons, unless
the Distributor or such controlling persons, as the case may be,
shall have notified the Trust in writing within a reasonable time
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after the summons or other first legal process giving information
of the nature of the claim shall have been served upon the
Distributor or such controlling persons (or after the Distributor
or such controlling persons shall have received notice of such
service on any designated agent), but failure to notify the Trust
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 Trust will 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 Trust elects to assume the defense, such defense shall be
conducted by counsel chosen by it and satisfactory :to the
Distributor or such controlling person or persons, defendant or
defendants in the suit. In the event the Trust elects to assume
the defense of any such suit and retain such counsel, the
Distributor or such 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 Trust does
not elect to assume the defense of any such suit, it will
reimburse the Distributor or such controlling person or persons,
defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Trust shall
promptly notify the Distributor of the commencement of any
litigation or proceedings against it or any of its officers or
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trustees in connection with the issuance or sale of any of the
shares.
(b) The Distributor shall indemnify and hold harmless the
Trust and each of its trustees and officers and each person, if
any, who controls the Trust against any loss, liability, claim,
damage or expense described in the foregoing indemnity contained
in subsection (a) of this Section, but only with respect to
statements or omissions made in reliance upon, and in conformity
with, information furnished to the Trust in writing by or on
behalf of the Distributor for use in connection with the
registration statement or related prospectus and statement of
additional information, as from time to time amended, or the
annual or interim reports to shareholders. In case any action
shall be brought against the Trust or any person so indemnified,
in respect of which indemnity may be sought against the
Distributor, the Distributor shall have the rights and duties
given to the Trust, and the Trust and each person so indemnified
shall have the rights and duties given to the Distributor by the
provisions of subsection (a) of this Section 9.
Section 10. Duration and Termination of this Agreement.
This Agreement shall become effective as of the date first above
written and shall remain in force until August 31, 1988 and
thereafter, but only so long as such continuance is specifically
approved at least annually by (i) the Trustees, or by the vote of
a majority of the outstanding voting securities of each Series,
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and (ii) by the vote of a majority of those Trustees who are not
parties to this Agreement or interested persons of any such party
cast in person at a meeting called for the purpose of voting on
such approval.
This Agreement may be terminated at any time, without the
payment of any penalty, by the Trustees or by vote of a majority
of the outstanding voting securities of the Trust, or by the
Distributor, on sixty days written notice to the other party.
This Agreement shall automatically terminate in the event of its
assigment.
The terms "vote of a majority of the outstanding voting
securities", "assignment". "affiliated person" and "interested
person", when used in this Agreement, shall have the respective
meanings specified in the Investment Company Act.
Section 11. Amendments of this Agreement. This Agreement
may be amended by the parties only if such amendment is specific-
ally approved by (i) the Trustees, or by the vote of a majority
of outstanding voting securities of each Series, and (ii) by the
vote of a majority of those Trustees who are not parties to this
Agreement or interested persons of any such party cast in person
at a meeting called for the purpose of voting on such approval.
Section 12. Governing Law. The provisions of this
Agreement shall be construed and interpreted in accordance with
the laws of the State of New York as at the time in effect and
the applicable provisions of the Investment Company Act. To the
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extent that the applicable law of the State of New York, or any
of the provisions herein, conflict with the applicable provisions
of the Investment Company Act, the latter shall control.
Section 13. Personal Liability. The Declaration of Trust
establishing Xxxxxxx Xxxxx Municipal Series Trust, dated August
14, 1986, a copy of which, together with all amendments thereto
(the "Declaration"), is on file in the office of the Secretary of
the Commonwealth of Massachusetts, provides that the name
"Xxxxxxx Xxxxx Municipal Series Trust" refers to the trustees
under the Declaration collectively as Trustees, but not as
individuals or personally; and no Trustee, shareholder, officer,
employee or agent of said Trust shall be held to any persona
liability, nor shall resort be had to their private property for
the satisfaction of any obligation or claim or otherwise in con-
nection with the affairs of said Trust, but the "Trust Property"
only shall be liable.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
XXXXXXX XXXXX MUNICIPAL SERIES TRUST
By /s/
XXXXXX XXXXX FUNDS DISTRIBUTOR, INC.
By /s/
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