Exhibit 99.6(a)
XXXXX XXXXX MUNICIPAL BOND FUND L.P.
DISTRIBUTION AGREEMENT
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AGREEMENT effective November 1, 1996 between XXXXX XXXXX MUNICIPAL BOND
FUND L.P., hereinafter called the "Fund," a California limited partnership
having its principal place of business in Boston in the Commonwealth of
Massachusetts, and XXXXX XXXXX DISTRIBUTORS, INC., a Massachusetts corporation
having its principal place of business in said Boston and formerly named EV
Distributors, Inc., hereinafter sometimes called the "Principal Underwriter."
IN CONSIDERATION of the mutual promises and undertakings herein
contained, the parties hereto agree:
1. The Fund grants to the Principal Underwriter the right to purchase
shares of the Fund upon the terms hereinbelow set forth during the term of this
Agreement. While this Agreement is in force, the Principal Underwriter agrees to
use its best efforts to find purchasers for shares of the Fund.
The Principal Underwriter shall have the right to buy from the Fund the
shares needed, but not more than the shares needed (except for clerical errors
and errors of transmission) to fill unconditional orders for shares of the Fund
placed with the Principal Underwriter by financial service firms or investors as
set forth in the current Prospectus relating to shares of the Fund. The price
which the Principal Underwriter shall pay for the shares so purchased shall be
the net asset value used in determining the public offering price on which such
orders were based. The Principal Underwriter shall notify Investors Bank & Trust
Company, Custodian of the Fund ("IBT"), and First Data Investor Services Group,
Transfer Agent of the Fund ("First Data"), or a successor transfer agent, at the
end of each business day, or as soon thereafter as the orders placed with it
have been compiled, of the number of shares and the prices thereof which the
Principal Underwriter is to purchase as principal for resale. The Principal
Underwriter shall take down and pay for shares ordered from the Fund on or
before the eleventh business day (excluding Saturdays) after the shares have
been so ordered.
The right granted to the Principal Underwriter to buy shares from the
Fund shall be exclusive, except that said exclusive right shall not apply to
shares issued in connection with the merger or consolidation of any other
investment company or personal holding company with the Fund or the acquisition
by purchase or otherwise of all (or substantially all) the assets or the
outstanding shares of any such company, by the Fund; nor shall it apply to
shares, if any, issued by the Fund in distribution of income or realized capital
gains of the Fund payable in shares or in cash at the option of the shareholder.
2. The shares may be resold by the Principal Underwriter to or through
financial service firms having agreements with the Principal Underwriter, and to
investors, upon the following terms and conditions.
The public offering price, i.e., the price per share at which the
Principal Underwriter or financial service firm purchasing shares from the
Principal Underwriter may sell shares to the public, shall be the public
offering price as set forth in the current Prospectus relating to said shares,
but not to exceed the net asset value at which the Principal Underwriter is to
purchase the shares, plus a sales charge not to exceed 7.25% of the public
offering price (the net asset value divided by .9275). If the resulting public
offering price does not come out to an even cent, the public offering price
shall be adjusted to the nearer cent.
The Principal Underwriter may also sell shares at the net asset value
at which the Principal Underwriter is to purchase such shares, provided such
sales are not inconsistent with the provisions of Section 22(d) of the
Investment Company Act of 1940, as amended from time to time (the "1940 Act"),
and the rules thereunder, including any applicable exemptive orders or
administrative interpretations or "no-action" positions with respect thereto.
The net asset value of shares of the Fund shall be determined by the
Fund or IBT, as the agent of the Fund, as of the close of regular trading on the
New York Stock Exchange on each business day on which said Exchange is open, or
as of such other time on each such business day as may be determined by the
Director General Partners of the Fund, in accordance with the methodology and
procedures for calculating such net asset value authorized by the Director
General Partners. The Fund may also cause the net asset value to be determined
in substantially the same manner or estimated in such manner and as of such
other time or times as may from time to time be agreed upon by the Fund and
Principal Underwriter. The Fund will notify the Principal Underwriter each time
the net asset value of the Fund's shares is determined and when such value is so
determined it shall be applicable to transactions as set forth in the current
Prospectus and Statement of Additional Information (hereafter the "Prospectus")
relating to the Fund's shares.
No shares of the Fund shall be sold by the Fund during any period when
the determination of net asset value is suspended pursuant to the Articles of
Organization, except to the Principal Underwriter, in the manner and upon the
terms above set forth to cover contracts of sale made by the Principal
Underwriter with its customers prior to any such suspension, and except as
provided in the last paragraph of paragraph 1 hereof. The Fund shall also have
the right to suspend the sale of the Fund's shares if in the judgment of the
Fund conditions obtaining at any time render such action advisable. The
Principal Underwriter shall have the right to suspend sales at any time, to
refuse to accept or confirm any order from an investor or financial service
firm, or to accept or confirm any such order in part only, if in the judgment of
the Principal Underwriter such action is in the best interests of the Fund.
3. The Fund covenants and agrees that it will, from time to time, but
subject to the necessary approval of the Fund's shareholders, take such steps as
may be necessary to register the Fund's shares under the federal Securities Act
of 1933, as amended from time to time (the "1933 Act"), to the end that there
will be available for sale such number of shares as the Principal Underwriter
may reasonably be expected to sell. The Fund covenants and agrees to indemnify
and hold harmless the Principal Underwriter and each person, if any, who
controls the Principal Underwriter within the meaning of Section 15 of the 1933
Act against any loss, liability, claim, damages or expense (including the
reasonable cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in connection
therewith), arising by reason of any person acquiring any shares of the Fund,
which may be based upon the 1933 Act or on any other statute or at common law,
on the ground that the Registration Statement or Prospectus, as from time to
time amended and supplemented, 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 in writing to the Fund in connection therewith by or on behalf of the
Principal Underwriter; provided, however, that in no case (i) is the indemnity
of the Fund in favor of the Principal Underwriter and any such controlling
person to be deemed to protect such Principal Underwriter or any such
controlling person against any liability to the Fund or its security holders to
which such Principal Underwriter or any such controlling person would otherwise
be subject by reason of willful misfeasance, bad faith, or gross negligence in
the performance of its duties or by reason of its reckless disregard of its
obligations and duties under this Agreement, or (ii) is the Fund to be liable
under its indemnity agreement contained in this paragraph with respect to any
claim made against the Principal Underwriter or any such controlling person
unless the Principal Underwriter or any such controlling person, as the case may
be, shall have notified the Fund in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon the Principal Underwriter or such controlling
person (or after such Principal Underwriter or such controlling person shall
have received notice of such service on any designated agent), but failure to
notify the Fund of any such claim shall not relieve it from any liability which
the Fund may have to the person against whom such action is brought otherwise
than on account of its indemnity agreement contained in this paragraph. The Fund
shall be entitled to participate, at the expense of the Fund, in the defense,
or, if the Fund so elects, to assume the defense of any suit brought to enforce
any such liability, but if the Fund elects to assume the defense, such defense
shall be conducted by counsel chosen by it and satisfactory to the Principal
Underwriter or controlling person or persons, defendant or defendants in the
suit. In the event the Fund elects to assume the defense of any such suit and
retains such counsel, the Principal Underwriter or 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 Fund does not elect
to assume the defense of any such suit, the Fund shall reimburse the Principal
Underwriter or controlling person or persons, defendant or defendants in the
suit, for the reasonable fees and expenses of any counsel retained by them. The
Fund agrees promptly to notify the Principal Underwriter of the commencement of
any litigation or proceedings against it or any of its officers or Director
General Partners in connection with the issuance or sale of any of the Fund's
shares.
4. The Principal Underwriter covenants and agrees that, in selling the
shares of the Fund, it will use its best efforts in all respects duly to conform
with the requirements of all state and federal laws relating to the sale of such
shares, and will indemnify and hold harmless the Fund and each of its Director
General Partners and officers and each person, if any, who controls the Fund
within the meaning of Section 15 of the 1933 Act, against any loss, liability,
damages, claim or expense (including the reasonable cost of investigating or
defending any alleged loss, liability, damages, claim or expense and reasonable
counsel fees incurred in connection therewith), arising by reason of any person
acquiring any shares of the Fund, which may be based upon the 1933 Act or any
other statute or at common law, on account of any wrongful act of the Principal
Underwriter or any of its employees (including any failure to conform with any
requirement of any state or federal law relating to the sale of such shares) or
on the ground that the registration statement or Prospectus, as from time to
time amended and supplemented, 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, insofar as any such
statement or omission was made in reliance upon, and in conformity with
information furnished in writing to the Fund in connection therewith by or on
behalf of the Principal Underwriter, provided, however, that in no case (i) is
the indemnity of the Principal Underwriter in favor of any person indemnified to
be deemed to protect the Fund or any such person against any liability to which
the Fund or any such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of its or his
duties or by reason of its or his reckless disregard of its obligations and
duties under this Agreement, or (ii) is the Principal Underwriter to be liable
under its indemnity agreement contained in this paragraph with respect to any
claim made against the Fund or any person indemnified unless the Fund or such
person, as the case may be, shall have notified the Principal Underwriter in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon the
Fund, the Fund or upon such person (or after the Fund, the Fund or such person
shall have received notice of such service on any designated agent), but failure
to notify the Principal Underwriter of any such claim shall not relieve it from
any liability which it may have to the Fund or any person against whom such
action is brought otherwise than on account of its indemnity agreement contained
in this paragraph. The Principal Underwriter shall 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 Principal
Underwriter elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to the Fund, or to its officers or
Director General Partners, or to any controlling person or persons, defendant or
defendants in the suit. In the event that the Principal Underwriter elects to
assume the defense of any such suit and retains such counsel, the Fund or such
officers or Director General Partners or controlling person or persons,
defendant or defendants in the suit, shall bear the fees and expenses of any
additional counsel retained by them or the Fund, but, in case the Principal
Underwriter does not elect to assume the defense of any such suit, it shall
reimburse the Fund, any such officers and Director General Partners or
controlling person or persons, defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained by them or the Fund. The
Principal Underwriter agrees promptly to notify the Fund of the commencement of
any litigation or proceedings against it in connection with the issue and sale
of any of the Fund's shares.
Neither the Principal Underwriter nor any financial service firm nor
any other person is authorized by the Fund to give any information or to make
any representations, other than those contained in the Registration Statement or
Prospectus filed with the Securities and Exchange Commission (the "Commission")
under the 1933 Act (as said Registration Statement and Prospectus may be amended
or supplemented from time to time), covering the shares of the Fund. Neither the
Principal Underwriter nor any financial service firm nor any other person is
authorized to act as agent for the Fund in connection with the offering or sale
of shares of the Fund to the public or otherwise. All such sales made by the
Principal Underwriter shall be made by it as principal, for its own account. The
Principal Underwriter may, however, act as agent in connection with the
repurchase of shares as provided in paragraph 6 below, or in connection with
"exchanges" between investment companies for which the Principal Underwriter (or
an affiliate thereof) acts as principal underwriter or investment adviser.
5(a). The Fund will pay, or cause to be paid -
(i) all the costs and expenses of the Fund, including fees and
disbursements of its counsel, in connection with the preparation and filing of
any required Registration Statement and/or Prospectus under the 1933 Act, or the
1940 Act, covering its shares and all amendments and supplements thereto, and
preparing and distributing periodic reports to shareholders (including the
expense of setting up in type any such Registration Statement, Prospectus or
periodic report);
(ii) the cost of preparing temporary and permanent share
certificates (if any) for shares of the Fund;
(iii) The cost and expenses of delivering to the Principal
Underwriter at its office in Boston, Massachusetts, all shares of the Fund
purchased by it as principal hereunder;
(iv) all the federal and state (if any) issue and/or transfer
taxes payable upon the issue by or (in the case of treasury shares) transfer
from the Fund to the Principal Underwriter of any and all shares of the Fund
purchased by the Principal Underwriter hereunder;
(v) the fees, costs and expenses of the registration or
qualification of shares of the Fund for sale in the various states, territories
or other jurisdictions (including without limitation the registering or
qualifying the Fund as a broker or dealer or any officer of the Fund as agent or
salesman in any state, territory or other jurisdiction); and
(vi) all payments to be made by the Fund pursuant to any
written plan approved in accordance with Rule 12b-1 under the 1940 Act or any
written service plan.
(b) The Principal Underwriter agrees that, after the Prospectus (other
than to existing shareholders of the Fund) and periodic reports have been set up
in type, it will bear the expense of printing and distributing any copies
thereof which are to be used in connection with the offering of shares of the
Fund to financial service firms or investors. The Principal Underwriter further
agrees that it will bear the expenses of preparing, printing and distributing
any other literature used by the Principal Underwriter or furnished by it for
use by financial service firms in connection with the offering of the shares of
the Fund for sale to the public and any expenses of advertising in connection
with such offering.
(c) The Principal Underwriter shall be entitled to receive all
contingent deferred sales charges imposed in accordance with the Prospectus on
early redemptions of Fund shares.
6. The Fund hereby authorizes the Principal Underwriter to repurchase,
upon the terms and conditions set forth in written instructions given by the
Fund to the Principal Underwriter from time to time, as agent of the Fund and
for its account, such shares of the Fund as may be offered for sale to the Fund
from time to time.
(a) The Principal Underwriter shall notify in writing IBT and First
Data at the end of each business day, or as soon thereafter as the repurchases
in each pricing period have been compiled, of the number of shares repurchased
for the account of the Fund since the last previous report, together with the
prices at which such repurchases were made, and upon the request of any officer
or Director General Partners of the Fund shall furnish similar information with
respect to all repurchases made up to the time of the request on any day.
(b) The Fund reserves the right to suspend or revoke the foregoing
authorization at any time; unless otherwise stated, any such suspension or
revocation shall be effective forthwith upon receipt of notice thereof by an
officer of the Principal Underwriter, by telegraph or by written instrument from
an officer of the Fund duly authorized by its Director General Partners. In the
event that the authorization of the Principal Underwriter is, by the terms of
such notice, suspended for more than twenty-four hours or until further notice,
the authorization given by this paragraph 6 shall not be revived except by
action of a majority of the Director General Partners of the Fund.
(c) The Principal Underwriter shall have the right to terminate the
operation of this paragraph 6 upon giving to the Fund thirty (30) days' written
notice thereof.
(d) The Fund agrees to authorize and direct IBT, to pay, for the
account of the Fund, the purchase price of any shares so repurchased against
delivery of the certificates in proper form for transfer to the Fund or for
cancellation by the Fund.
(e) The Principal Underwriter shall receive no commission in respect of
any repurchase of shares under the foregoing authorization and appointment as
agent.
(f) The Fund agrees it will reimburse the Principal Underwriter, from
time to time on demand, for any reasonable expenses incurred in connection with
the repurchase of shares of the Fund pursuant to this paragraph 6.
7. If, at any time during the existence of this Agreement, the Fund
shall deem it necessary or advisable in the best interests of the Fund that any
amendment of this Agreement be made in order to comply with the recommendations
or requirements of the Commission or other governmental authority or to obtain
any advantage under Massachusetts or federal tax laws, and shall notify the
Principal Underwriter of the form of amendment which it deems necessary or
advisable and the reasons therefor, and, if the Principal Underwriter declines
to assent to such amendment, the Fund may terminate this Agreement forthwith by
written notice to the Principal Underwriter. If, at any time during the
existence of this Agreement upon request by the Principal Underwriter, the Fund
fails (after a reasonable time) to make any changes in its Articles of
Organization, or in its methods of doing business which are necessary in order
to comply with any requirement of federal law or regulations of the Commission
or of a national securities association of which the Principal Underwriter is or
may be a member, relating to the sale of the shares of the Fund, the Principal
Underwriter may terminate this Agreement forthwith by written notice to the
Fund.
8(a). The Principal Underwriter is a corporation in the United States
organized under the laws of Massachusetts and holding membership in the National
Association of Securities Dealers, Inc., a securities association registered
under Section 15A of the Securities Exchange Act of 1934, as amended from time
to time, and during the life of this Agreement will continue to be so resident
in the United States, so organized and a member in good standing of said
Association. The Principal Underwriter covenants that it and its officers and
directors will comply with the Fund's Articles of Organization and By-Laws, and
the 1940 Act and the rules promulgated thereunder, insofar as they are
applicable to the Principal Underwriter.
(b) The Principal Underwriter shall maintain in the United States and
preserve therein for such period or periods as the Commission shall prescribe by
rules and regulations applicable to it as Principal Underwriter of an open-end
investment company registered under the 1940 Act such accounts, books and other
documents as are necessary or appropriate to record its transactions with the
Fund. Such accounts, books and other documents shall be subject at any time and
from time to time to such reasonable periodic, special and other examinations by
the Commission or any member or representative thereof as the Commission may
prescribe. The Principal Underwriter shall furnish to the Commission within such
reasonable time as the Commission may prescribe copies of or extracts from such
records which may be prepared without effort, expense or delay as the Commission
may by order require.
9. This Agreement shall continue in force indefinitely until terminated
as in this Agreement above provided, except that:
(a) this Agreement shall remain in effect for one year from the date of
its execution and shall continue in full force and effect indefinitely
thereafter, but only so long as such continuance is specifically approved at
least annually (i) by the vote of a majority of the Director General Partners of
the Fund who are not interested persons of the Fund or of the Principal
Underwriter cast in person at a meeting called for the purpose of voting on such
approval, and (ii) by the Director General Partners of the Fund or by vote of a
majority of the outstanding voting securities of the Fund; and
(b) that either party shall have the right to terminate this Agreement
on six (6) months' written notice thereof given in writing to the other.
10. In the event of the assignment of this Agreement by the Principal
Underwriter, this Agreement shall automatically terminate.
11. 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 record address of the Fund and that of
the Principal Underwriter, shall be 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
12. The services of the Principal Underwriter to the Fund hereunder are
not to be deemed to be exclusive, the Principal Underwriter being free to (a)
render similar services to, and to act as principal underwriter in connection
with the distribution of shares of, other investment companies, and (b) engage
in other business and activities from time to time.
13. The terms "vote of a majority of the outstanding voting
securities," "assignment" and "interested persons," when used herein, shall have
the respective meanings specified in the 1940 Act, subject, however, to such
exemptions as may be granted by the Commission by any rule, regulation or order.
14. The Principal Underwriter expressly acknowledges the provisions of
the Fund's Declaration of Trust limiting the personal liability of shareholders
or the Director General Partners of the Fund. The Principal Underwriter hereby
agrees that it shall have recourse only to the assets of the Fund for payment of
claims or obligations as between the Fund and the Principal Underwriter arising
out of this Agreement and shall not seek satisfaction from any stockholders of
the Fund or from the Director General Partners or any Director General Partner
of the Fund.
15. This Agreement shall amend, replace and be substituted for the
distribution agreement dated September 13, 1982 between the Fund and the prior
principal underwriter, Xxxxx Xxxxx Distributors, Inc., a separate Massachusetts
corporation that has served as principal underwriter prior to the effective date
of this Agreement as of the opening of business on November 1, 1996, and this
Agreement shall be effective as of such time.
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
this 18th day of October, 1996.
XXXXX XXXXX MUNICIPAL BOND FUND L.P.
By /s/ Xxxxxx X. Xxxxxx
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President
XXXXX XXXXX DISTRIBUTORS, INC.
By /s/ H. Day Xxxxxxx, Jr.
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Vice President
