DISTRIBUTION AGREEMENT
This Agreement is made as of July 2, 1993, between Xxxxxxxxx
& Xxxxxx Income Funds, a Delaware business trust ("Trust"), and Xxxxxxxxx
& Xxxxxx Management Incorporated, a New York corporation (the
"Distributor").
WHEREAS, the Trust is registered under the Investment Company Act of
1940, as amended ("1940 Act"), as an open-end, diversified management
investment company and has established several separate series of shares
("Series"), with each Series having its own assets and investment
policies; and
WHEREAS, the Trust desires to retain the Distributor to furnish
distribution services to each Series listed in Schedule A attached hereto,
and to such other Series of the Trust hereinafter established as agreed to
from time to time by the parties, evidenced by an addendum to Schedule A
(hereinafter "Series" shall refer to each Series which is subject to this
Agreement and all agreements and actions described herein to be made or
taken by a Series shall be made or taken by the Trust on behalf of the
Series), and the Distributor is willing to furnish such services,
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties agree as follows:
1. The Trust hereby appoints the Distributor as agent to
sell the shares of beneficial interest of each Series (the "Shares") and
the Distributor hereby accepts such appointment. All sales by the
Distributor shall be expressly subject to acceptance by the Trust, acting
on behalf of the Series.
2. (a) The Distributor agrees that (i) all Shares sold
by the Distributor shall be sold at the net asset value ("NAV") thereof as
described in Section 3 hereof, and (ii) the Series shall receive 100% of
such NAV.
(b) The Distributor may enter into agreements, in
form and substance satisfactory to the Trust, with dealers selected by the
Distributor, providing for the sale to such dealers and resale by such
dealers of Shares at their NAV.
3. The Trust agrees to supply to the Distributor, promptly
after the time or times at which NAV is determined, on each day on which
the New York Stock Exchange is open for business and on such other days as
the Board of Trustees of the Trust ("Trustees") may from time to time
determine (each such day being hereinafter called a "business day"), a
statement of the NAV of each Series having been determined in the manner
set forth in the then-current Prospectus and Statement of Additional
Information ("SAI") of each Series. Each determination of NAV shall take
effect as of such time or times on each business day as set forth in the
then-current Prospectus of each Series and shall prevail until the time as
of which the next determination is made.
4. 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, if it elects to accept such order, as
promptly as practicable, cause the Shares purchased by such order to be
delivered in such amounts and in such names as the Distributor shall
specify, against payment therefor in such manner as may be acceptable to
the Trust. The Trust may, in its discretion, refuse to accept any order
for the purchase of Shares that the Distributor may tender to it.
5. (a) All sales literature and advertisements used by
the Distributor in connection with sales of Shares shall be subject to
approval by the Trust. The Trust authorizes the Distributor, in
connection with the sale or arranging for the sale of Shares of any
Series, to provide only such information and to make only such statements
or representations as are contained in the Series's then-current
Prospectus and SAI or in such financial and other statements furnished to
the Distributor pursuant to the next paragraph or as may properly be
included in sales literature or advertisements in accordance with the
provisions of the Securities Act of 1933 (the "1933 Act"), the 1940 Act
and applicable rules of self-regulatory organizations. Neither the Trust
nor any Series shall be responsible in any way for any information
provided or statements or representations made by the Distributor or its
representatives or agents other than the information, statements and
representations described in the preceding sentence.
(b) Each Series shall keep the Distributor fully
informed with regard to its affairs, shall furnish the Distributor with a
certified copy of all of its financial statements and a signed copy of
each report prepared for it by its independent auditors, and shall
cooperate fully in the efforts of the Distributor to negotiate and sell
Shares of such Series and in the Distributor's performance of all its
duties under this Agreement.
6. The Distributor, as agent of each Series and for the
account and risk of each Series, is authorized, subject to the direction
of the Trust, to redeem outstanding Shares of such Series when properly
tendered by shareholders pursuant to the redemption right granted to such
Series's shareholders by the Trust Instrument of the Trust, as from time
to time in effect, at a redemption price equal to the NAV per Share of
such Series next determined after proper tender and acceptance. The Trust
has delivered to the Distributor a copy of the Trust's Trust Instrument as
currently in effect and agrees to deliver to the Distributor any
amendments thereto promptly upon filing thereof with the Office of the
Secretary of State of the State of Delaware.
7. The Distributor shall assume and pay or reimburse each
Series for the following expenses of such Series: (i) costs of preparing,
printing and distributing reports, prospectuses and SAIs used by such
Series in connection with the sale or offering of its Shares and all
advertising and sales literature relating to such Series printed at the
instruction of the Distributor; and (ii) counsel fees and expenses in
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connection with the foregoing. The Distributor shall also pay all its own
costs and expenses connected with the sale of Shares.
8. Each Series shall maintain a currently effective
Registration Statement on Form N-1A with respect to such Series and shall
file with the Securities and Exchange Commission (the "SEC") such reports
and other documents as may be required under the 1933 Act and the 1940 Act
or by the rules and regulations of the SEC thereunder.
Each Series represents and warrants that the Registration
Statement, post-effective amendments, Prospectus and SAI (excluding
statements relating to the Distributor and the services it provides that
are based upon written information furnished by the Distributor expressly
for inclusion therein) of such Series shall not contain any untrue
statement of material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and that all statements or information furnished to the
Distributor, pursuant to Section 5(b) hereof, shall be true and correct in
all material respects.
9. (a) This Agreement shall become effective on the date
hereof and shall remain in full force and effect until July 2, 1995 and
may be continued from year to year thereafter; PROVIDED, that such
continuance shall be specifically approved each year by the Trustees or by
a majority of the outstanding voting securities of the Series, and in
either case, also by a majority of the Trustees who are not interested
persons of the Trust or the Distributor ("Disinterested Trustees"). This
Agreement may be amended as to any Series with the approval of the
Trustees or of a majority of the outstanding voting securities of such
Series; PROVIDED, that in either case, such amendment also shall be
approved by a majority of the Disinterested Trustees.
(b) Either party may terminate this Agreement without
the payment of any penalty, upon not more than sixty days' nor less than
thirty days' written notice delivered personally or mailed by registered
mail, postage prepaid, to the other party; PROVIDED, that in the case of
termination by any Series, such action shall have been authorized (i) by
resolution of the Trustees, or (ii) by vote of a majority of the
outstanding voting securities of such Series, or (iii) by written consent
of a majority of the Disinterested Trustees.
(c) This Agreement shall automatically terminate if it
is assigned by the Distributor.
(d) Any question of interpretation of any term or
provision of this Agreement having a counterpart in or otherwise derived
from a term or provision of the 1940 Act shall be resolved by reference to
such term or provision of the 1940 Act and to interpretation thereof, if
any, by the United States courts or, in the absence of any controlling
decision of any such court, by rules, regulations or orders of the SEC
validly issued pursuant to the 1940 Act. Specifically, the terms
"interested persons," "assignment" and "vote of a majority of the
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outstanding voting securities," as used in this Agreement, shall have the
meanings assigned to them by Section 2(a) of the 1940 Act. In addition,
when the effect of a requirement of the 1940 Act reflected in any
provision of this Agreement is modified, interpreted or relaxed by a rule,
regulation or order of the SEC, whether of special or of general
application, such provision shall be deemed to incorporate the effect of
such rule, regulation or order. The Trust and the Distributor may from
time to time agree on such provisions interpreting or clarifying the
provisions of this Agreement as, in their joint opinion, are consistent
with the general tenor of this Agreement and with the specific provisions
of this Section 9(d). Any such interpretations or clarifications shall be
in writing signed by the parties and annexed hereto, but no such
interpretation or clarification shall be effective if in contravention of
any applicable federal or state law or regulations, and no such
interpretation or clarification shall be deemed to be an amendment of this
Agreement.
No term or provision of this Agreement shall be
construed to require the Distributor to provide distribution services to
any series of the Trust other than the Series, or to require any Series to
pay any compensation or expenses that are properly allocable, in a manner
approved by the Trustees, to a series of the Trust other than such Series.
(e) This Agreement is made and to be principally
performed in the State of New York, and except insofar as the 1940 Act or
other federal laws and regulations may be controlling, this Agreement
shall be governed by, and construed and enforced in accordance with, the
internal laws of the State of New York.
(f) This Agreement is made by the Trust solely with
respect to the Series, and the obligations created hereby are not binding
on any other series of the Trust, but bind only assets belonging to the
Series.
10. The Distributor or one of its affiliates may from time
to time deem it desirable to offer to the list of shareholders of each
Series the shares of other mutual funds for which it acts as Distributor,
including other series of the Trust or other products or services;
however, any such use of the list of shareholders of any Series shall be
made subject to such terms and conditions, if any, as shall be approved by
a majority of the Disinterested Trustees.
11. The Distributor shall look only to the assets of a
Series for the performance of this Agreement by the Trust on behalf of
such Series, and neither the Trustees nor any of the Trust's officers,
employees or agents, whether past, present or future, shall be personally
liable therefor.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed by their duly authorized officers and under
their respective seals.
XXXXXXXXX & XXXXXX
INCOME FUNDS
Attest: By: /s/ Xxxxxx X. Xxxxxxxx
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/s/ Xxxxxxx X. Xxxxxxx Title: Vice President
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Secretary
XXXXXXXXX & XXXXXX
MANAGEMENT INCORPORATED
Attest: By: /s/ Xxxxxxx Xxxxxx
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/s/ Xxxxx Xxxxxxx Title: President
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Secretary
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