UNDERWRITING AGREEMENT
AGREEMENT made as of this 24th day of November, 1985 between
XXXXXX MONEY MARKET FUND a Massachusetts business trust
(hereinafter called the "Fund"), and XXXXXX FINANCIAL SERVICES,
INC., a Delaware corporation (hereinafter called the
"Underwriter");
WITNESSETH:
In consideration of the mutual covenants hereinafter
contained, it is hereby agreed by and between the parties hereto
as follows:
1. The Fund hereby appoints the Underwriter its agent for
the distribution of shares of beneficial interest (hereinafter
called "shares") of the Fund in jurisdictions wherein shares of
the Fund may legally be offered for sale; provided, however, that
the Fund in its absolute discretion may (a) issue or sell shares
directly to holders of shares of the Fund 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 (b) issue or sell
shares at net asset value to the shareholders of any other
investment company, for which the Underwriter shall act as
exclusive distributor, who wish to exchange all or a portion of
their investment in shares of such other investment company for
shares of the Fund.
2. The Underwriter hereby accepts appointment as agent for
the distribution of the shares of the Fund and agrees that it
will use its best efforts with reasonable promptness to sell such
part of the authorized shares of the Fund remaining unissued as
from time to time shall be effectively registered under the
Securities Act of 1933 ("Securities Act"), at prices determined
as hereinafter provided and on terms hereinafter set forth, all
subject to applicable Federal and state laws and regulations and
to the Agreement and Declaration of Trust of the Fund.
3. The Fund agrees that it will use its best efforts to
keep effectively registered under the Securities Act for sale as
herein contemplated such shares as the Underwriter shall
reasonably request and as the Securities and Exchange Commission
shall permit to be so registered.
4. Notwithstanding any other provision hereof, the Fund may
terminate, suspend or withdraw the offering of shares whenever,
in its sole discretion, it deems such action to be desirable.
5. The Underwriter shall sell shares of the Fund to or
through qualified dealers or others in such manner, not
inconsistent with the provisions hereof and the then effective
registration statement of the Fund under the Securities Act (and
related prospectus), as the Underwriter may determine from time
to time, provided that no dealer or other person shall be
appointed or authorized to act as agent of the Fund without the
prior consent of the Fund. It is mutually agreed that, in
addition to sales made by it as agent of the Fund, the
Underwriter may, in its discretion, also sell shares of the Fund
as principal to persons with whom it does not have dealer selling
group agreements.
6. Shares of the Fund 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; provided, however, that any
public offering price for shares of the Fund shall be the net
value per share. 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 Fund relating to such shares.
7. The price the Fund shall receive for all shares
purchased from the Fund shall be the net asset value used in
determining the public offering price applicable to the sale of
such shares.
8. The Underwriter shall issue and deliver on behalf of the
Fund such confirmations of sales made by it as agent pursuant to
this agreement as may be required. At or prior to the time of
issuance of shares, the Underwriter will pay or cause to be paid
to the Fund the amount due the Fund for the sale of such shares.
Certificates shall be issued or shares registered on the transfer
books of the Fund in such names and denominations as the
Underwriter may specify.
9. The Fund will execute any and all documents and furnish
any and all information which may be reasonably necessary in
connection with the qualification of its shares for sale
(including the qualification of the Fund as a dealer where
necessary or advisable) in such states as the Underwriter may
reasonably request (it being understood that the Fund shall not
be required without its consent to comply with any requirement
which in its opinion is unduly burdensome).
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10. The Fund will furnish to the Underwriter from time to
time such information with respect to the Fund and its shares as
the Underwriter may reasonably request for use in connection with
the sale of shares of the Fund. The Underwriter agrees that it
will not use or distribute or authorize the use, distribution or
dissemination by its dealers or others in connection with the
sale of such shares any statements, other than those contained in
the Fund's current prospectus, except such supplemental
literature or advertising as shall be lawful under Federal and
state securities law and regulations, and that it will furnish
the Fund with copies of all such material.
11. The Underwriter shall order shares of the Fund from the
Fund only to the extent that it shall have received purchase
orders therefor. The Underwriter will not make, or authorize any
dealers or others to make any short sales of shares of the Fund.
12. The Underwriter, as agent of and for the account of the
Fund, may repurchase the shares of the Fund at such prices and
upon such terms and conditions as shall be specified in the
current prospectus of the Fund.
13. In selling or reacquiring shares of the Fund for the
account of the Fund, the Underwriter will in all respects conform
to the requirements of all state and Federal laws and the Rules
of Fair Practice of the National Association of Securities
Dealers, Inc., relating to such sale or reacquisition, as the
case may be, and will indemnify and save harmless the Fund from
any damage or expense on account of any wrongful act by the
Underwriter or any employee, representative or agent of the
Underwriter. The Underwriter will observe and be bound by all
the provisions of the Agreement and Declaration of Trust of the
Fund (and of any fundamental policies adopted by the Fund
pursuant to the Investment Company Act of 1940, notice of which
shall have been given to the Underwriter) which at the time in
any way require, limit, restrict or prohibit or otherwise
regulate any action on the part of the Underwriter.
14. The Underwriter will require each dealer to conform to
the provisions hereof and the Registration Statement (and related
prospectus) at the time in effect under the Securities Act with
respect to the public offering price of the Fund's shares, and
neither the Underwriter nor any such dealers shall withhold the
placing of purchases orders so as to make a profit thereby.
15. The Fund will pay or cause to the paid expenses
(including the fees and disbursements of its own counsel) and all
taxes and fees payable to the Federal, state or other
governmental agencies on account of the registration or
qualifications of securities issued by the Fund or otherwise.
The Fund will also pay or cause to be paid expenses incident to
the issuance of shares of beneficial interest, such as the cost
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of share certificates, issue taxes, and fees for the transfer
agent. The Underwriter will pay all expenses (other than
expenses which one or more dealers may bear pursuant to any
agreement with the Underwriter) incident to the sale and
distribution of the shares issued or sold hereunder, including,
without limiting the generality of the foregoing, all expenses of
printing and distributing any prospectus and of preparing,
printing and distributing or disseminating any other literature,
advertising and selling aids in connection with the offering of
the shares for sale (except that such expenses need not include
expenses incurred by the Fund in connection with the preparation,
typesetting, printing and distribution of any registration
statement or report or other communication to stockholders in
their capacity as such) and expenses of advertising in connection
with such offering.
16. The agreement shall become effective on the date hereof
and shall continue in effect until December 1, 1986 and from year
to year thereafter, but only so long as such continuance is
approved in the manner required by the Investment Company Act of
1940. Either party hereto may terminate this agreement on any
date by giving the other party at least six months prior written
notice of such termination specifying the date fixed therefor.
Without prejudice to any other remedies of the Fund in any such
event the Fund may terminate this agreement at any time
immediately upon any failure of fulfillment of any of the
obligations of the Underwriter hereunder.
17. This agreement shall automatically terminate in the
event of its assignment.
18. Any notice under this agreement shall be in writing,
addressed and delivered or mailed, postage postpaid, to the other
party at such address as such other party may designate for the
receipt of such notice.
19. All parties hereto are expressly put on notice of the
Fund's Agreement and Declaration of Trust dated August 5, 1985
and all amendments thereto, all of which are on file with the
Secretary of The Commonwealth of Massachusetts, and the
limitation of shareholder and trustee liability contained
therein. This Agreement has been executed by and on behalf of
the Fund by its representatives as such representatives and not
individually, and the obligations of the Fund hereunder are not
binding upon any of the Trustees, officers or shareholders of the
Fund individually but are binding upon only the assets and
property of the Fund. With respect to any claim by Underwriter
for recovery of any liability of the Fund arising hereunder
allocated to a particular series or portfolio ("Portfolio") of
the Fund if there be more than one, whether in accordance with
the express terms hereof or otherwise, the Underwriter shall have
recourse solely against the assets of that Portfolio to satisfy
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such claim and shall have no recourse against the assets of any
other Portfolio for such purpose.
IN WITNESS WHEREOF, the Fund and the Underwriter have each
caused this agreement to be executed on its behalf by an officer
thereunto duly authorized and its seal to be affixed on the day
and year first above written.
XXXXXX MONEY MARKET FUND
By /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Title: President
Attest: /s/ Xxxxxx X. Xxxxxx
----------------------------
Title: Vice President
XXXXXX FINANCIAL SERVICES, INC.
By /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Title: Sr. VP & Secy
Attest: /s/ Xxxxx X. Xxxxxxxxxxx
----------------------------
Title: Assistant Secretary
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