DISTRIBUTION AGREEMENT
AGREEMENT made this 1st day of October, 1996, between THE XXXXXX
XXXXXXXXX TRUST (the "Trust"), a Delaware business trust, and BISYS FUND
SERVICES LIMITED PARTNERSHIP d/b/a BISYS FUND SERVICES ("Distributor").
WHEREAS, the Trust is an open-end management investment company,
organized as a Delaware business trust and registered with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, it is intended that Distributor act as the distributor of the
units of beneficial interest ("Shares") of each of the investment portfolios
of the Trust (such portfolios being referred to individually as a "Fund" and
collectively as the "Funds").
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS DISTRIBUTOR; CONVERSION TO THE SERVICES.
1.1 Distributor (i) will act as agent for the distribution of the
Shares covered by the registration statement and prospectus of the Trust then
in effect under the Securities Act of 1933, as amended (the "Securities Act")
and (ii) will perform such additional services as are provided in this Section
1 (collectively, the "Services"). In connection therewith, the Trust agrees
to convert to the Distributor's data processing systems and software (the
"BISYS System"). The Trust shall cooperate with the Distributor to provide
the Distributor with all necessary information and assistance required to
successfully convert to the BISYS System. The Distributor shall provide the
Trust with a schedule relating to such conversion and the parties agree that
the conversion may progress in stages. The date upon which all Services shall
have been converted to the BISYS System shall be referred to herein as the
"Conversion Date." The parties hereby agree that the Conversion Date shall be
no later than January 1, 1997. The Distributor hereby accepts such engagement
and agrees to perform the Services commencing, with respect to each individual
Service, on the date that the conversion of such Service to the BISYS System
has been completed. The Distributor shall determine in accordance with its
normal acceptance procedures when the applicable Service has been successfully
converted. As used in this Agreement, the term "registration statement" shall
mean Parts A (the prospectus), B (the Statement of Additional Information) and
C of each registration statement that is filed on Form N-1A, or any successor
thereto, with the Commission, together with any amendments thereto. The term
"prospectus" shall mean each form of prospectus and Statement of Additional
Information used by the Funds for delivery to shareholders and prospective
shareholders after the effective dates of the above-referenced registration
statements, together with any amendments and supplements thereto.
1.2 Distributor agrees to use appropriate efforts to solicit
orders for the sale of the Shares and will undertake such advertising and
promotion as it believes reasonable in connection with such solicitation. The
Trust understands that Distributor is now and may in the future be the
distributor of the shares of several investment companies or series (together,
"Investment Companies") including Investment Companies having investment
objectives similar to those of the Trust. The Trust further understands that
investors and potential investors in the Trust may invest in shares of such
other Investment Companies. The Trust agrees that Distributor's duties to
such Investment Companies shall not be deemed in conflict with its duties to
the Trust under this paragraph 1.2.
Distributor shall, at its own expense, finance appropriate
activities which it deems reasonable, which are primarily intended to result
in the sale of the Shares, including, but not limited to, advertising,
compensation of underwriters, dealers and sales personnel, the printing and
mailing of prospectuses to other than current Shareholders, and the printing
and mailing of sales literature.
1.3 In its capacity as distributor of the Shares, all activities
of Distributor and its partners, agents, and employees shall comply with all
applicable laws, rules and regulations, including, without limitation, the
1940 Act, all rules and regulations promulgated by the Commission thereunder
and all rules and regulations adopted by any securities association registered
under the Securities Exchange Act of 1934.
1.4 Distributor will provide one or more persons, during normal
business hours, to respond to telephone questions with respect to the Trust.
1.5 Distributor will transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent and custodian for
the Funds.
1.6 Whenever in their judgment such action is warranted by unusual
market, economic or political conditions, or by abnormal circumstances of any
kind, the Trust's officers may decline to accept any orders for, or make any
sales of, the Shares until such time as those officers deem it advisable to
accept such orders and to make such sales.
1.7 Distributor will act only on its own behalf as principal if it
chooses to enter into selling agreements with selected dealers or others.
1.8 The Trust agrees at its own expense to execute any and all
documents and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the qualification
of the Shares for sale in such states as Distributor may designate.
1.9 The Trust shall furnish from time to time, for use in
connection with the sale of the Shares, such information with respect to the
Funds and the Shares as Distributor may reasonably request; and the Trust
warrants that the statements contained in any such information shall fairly
show or represent what they purport to show or represent. The Trust shall
also furnish Distributor upon request with: (a) unaudited semi-annual
statements of the Funds' books and accounts prepared by the Trust, (b) a
monthly itemized list of the securities in the Funds, (c) monthly balance
sheets as soon as practicable after the end of each month, and (d) from time
to time such additional information regarding the financial condition of the
Funds as Distributor may reasonably request.
1.10 The Trust represents to Distributor that, with respect to the
Shares, all registration statements and prospectuses filed by the Trust with
the Commission under the Securities Act have been carefully prepared in
conformity with requirements of said Act and rules and regulations of the
Commission thereunder. The registration statement and prospectus contain all
statements required to be stated therein in conformity with said Act and the
rules and regulations of said Commission and all statements of fact contained
in any such registration statement and prospectus are true and correct.
Furthermore, neither any registration statement nor any prospectus includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading to a purchaser of the Shares. The foregoing representations shall
not be deemed to cover any statements or representations contained in
registration statements or prospectuses made based upon reasonable reliance
upon information provided to the Trust by Distributor or its affiliates. The
Trust may, but shall not be obligated to, propose from time to time such
amendment or amendments to any registration statement and such supplement or
supplements to any prospectus as, in the light of future developments, may, in
the opinion of the Trust's counsel, be necessary or advisable. If the Trust
shall not propose such amendment or amendments and/or supplement or
supplements within fifteen days after receipt by the Trust of a written
request from Distributor to do so, Distributor may, at its option, terminate
this Agreement. The Trust shall not file any amendment to any registration
statement or supplement to any prospectus without giving Distributor
reasonable notice thereof in advance; provided, however, that nothing
contained in this Agreement shall in any way limit the Trust's right to file
at any time such amendments to any registration statement and/or supplements
to any prospectus, of whatever character, as the Trust may deem advisable,
such right being in all respects absolute and unconditional.
1.11 The Trust authorizes Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of the Shares. The Trust agrees to indemnify, defend and hold Distributor,
its several partners and officers, and any person who controls Distributor
within the meaning of Section 15 of the Securities Act free and harmless from
and against any and all claims, demands, liabilities and expenses (including
the cost of investigating or defending such claims, demands or liabilities and
any counsel fees incurred in connection therewith) which Distributor, its
partners and officers, or any such controlling person, may incur under the
Securities Act or under common law or otherwise, arising out of or based upon
any untrue statement, or alleged untrue statement, of a material fact
contained in any registration statement or any prospectus or arising out of or
based upon any omission, or alleged omission, to state a material fact
required to be stated in either any registration statement or any prospectus
or necessary to make the statements in either thereof not misleading;
provided, however, that the Trust's agreement to indemnify Distributor, its
partners or officers, and any such controlling person shall not be deemed to
cover any claims, demands, liabilities or expenses arising out of any
statements or representations as are contained in any prospectus and in such
financial and other statements as are furnished in writing to the Trust by
Distributor or its affiliates and used in the answers to the registration
statement or in the corresponding statements made in the prospectus, or
arising out of or based upon any omission or alleged omission to state a
material fact in connection with the giving of such information required to be
stated in such answers or necessary to make the answers not misleading; and
further provided that the Trust's agreement to indemnify Distributor and the
Trust's representations and warranties hereinbefore set forth in paragraph
1.10 shall not be deemed to cover any liability to the Trust or its
Shareholders to which Distributor would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of Distributor's reckless disregard of its obligations
and duties under this Agreement. Except for actions, suits or claims brought
or threatened against Distributor by (i) the Trust, or (ii) one or more
Shareholders of the Trust, the rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited. In order that the indemnification provision contained
herein shall apply, however, it is understood that if in any case the Trust
may be asked to indemnify or hold Distributor harmless, the Trust shall be
fully and promptly advised of all pertinent facts concerning the situation in
question, and it is further understood that Distributor will use all
reasonable care to identify and notify the Trust promptly concerning any
situation which presents or appears likely to present the probability of such
a claim for indemnification against the Trust, but failure to do so in good
faith shall not affect the rights hereunder.
The Trust shall be entitled to participate at its own expense or, if
it so elects, to assume the defense of any suit brought to enforce any claims
subject to this indemnity provision. If the Trust elects to assume the
defense of any such claim, the defense shall be conducted by counsel chosen by
the Trust and satisfactory to Distributor, whose approval shall not be
unreasonably withheld. In the event that the Trust elects to assume the
defense of any suit and retain counsel, Distributor shall bear the fees and
expenses of any additional counsel retained by it. If the Trust does not
elect to assume the defense of a suit, it will reimburse Distributor for the
reasonable fees and expenses of any counsel retained by Distributor.
Distributor may apply to the Trust at any time for instructions and
may, at Distributor's expense, consult counsel for the Trust or its own
counsel and with accountants and other experts with respect to any matter
arising in connection with Distributor's duties, and Distributor shall not be
liable or accountable for any action taken or omitted by it in good faith in
accordance with such instruction or with the opinion of such counsel,
accountants or other experts.
Also, Distributor shall be protected in acting upon any document
which it reasonably believes to be genuine and to have been signed or
presented by the proper person or persons. Distributor will not be held to
have notice of any change of authority of any officers, employees or agents of
the Trust until receipt of written notice thereof from the Trust.
1.12 Distributor agrees to indemnify, defend and hold the Trust,
its several officers and Trustees and any person who controls the Trust within
the meaning of Section 15 of the Securities Act free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
costs of investigating or defending such claims, demands, or liabilities and
any counsel fees incurred in connection therewith) which the Trust, its
officers or Trustees or any such controlling person, may incur under the
Securities Act or under common law or otherwise, but only to the extent that
such liability or expense incurred by the Trust, its officers or Trustees or
such controlling person resulting from such claims or demands, shall arise out
of or be based upon any untrue, or alleged untrue, statement of a material
fact contained in information furnished in writing by Distributor to the Trust
and used in the answers to any of the items of the registration statement or
in the corresponding statements made in the prospectus, or shall arise out of
or be based upon any omission, or alleged omission, to state a material fact
in connection with such information furnished in writing by Distributor to the
Trust required to be stated in such answers or necessary to make such
information not misleading. In order that the indemnification provision
contained herein shall apply, however, it is understood that if in any case
Distributor may be asked to indemnify or hold the Trust harmless, Distributor
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the Trust will use
all reasonable care to identify and notify Distributor promptly concerning
any situation which presents or appears likely to present the probability of
such a claim for indemnification against Distributor, but failure to do so in
good faith shall not affect the rights hereunder.
Distributor shall be entitled to participate at its own expense or,
if it so elects, to assume the defense of any suit brought to enforce any
claims subject to this indemnity provision. If Distributor elects to assume
the defense of any such claim, the defense shall be conducted by counsel
chosen by Distributor and satisfactory to the Trust, whose approval shall not
be unreasonably withheld. In the event that Distributor elects to assume the
defense of any suit and retain counsel, the Trust shall bear the fees and
expenses of any additional counsel retained by it. If Distributor does not
elect to assume the defense of a suit, it will reimburse the Trust for the
reasonable fees and expenses of any counsel retained by the Trust.
The Trust may apply to Distributor at any time for instructions and
may consult counsel for Distributor or its own counsel and with accountants
and other experts with respect to any matter arising in connection with the
Trust's duties, and the Trust shall not be liable or accountable for any
action taken or omitted by it in good faith in accordance with such
instructions or with the opinion of such counsel, accountants or other
experts.
Also, the Trust shall be protected in acting upon any document which
it reasonably believes to be genuine and to have been signed or presented by
the proper person or persons. The Trust will not be held to have notice of
any change of authority or any officers, employees or agents of Distributor
until receipt of written notice thereof from Distributor.
1.13 No Shares shall be offered by either Distributor or the Trust
under any of the provisions of this Agreement and no orders for the purchase
or sale of Shares hereunder shall be accepted by the Trust if and so long as
the effectiveness of the registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the Securities Act or if and so long as a current prospectus as required by
Section 10(b)(2) of said Act is not on file with the Commission; provided,
however, that nothing contained in this paragraph 1.13 shall in any way
restrict or have an application to or bearing upon the Trust's obligation to
repurchase Shares from any Shareholder in accordance with the provisions of
the Trust's prospectus, Agreement and Declaration of Trust, or Bylaws.
1.14 The Trust agrees to advise Distributor as soon as reasonably
practical by a notice in writing delivered to Distributor or its counsel:
(a) of any request by the Commission for amendments to
the registration statement or prospectus then in effect
or for additional information;
(b) in the event of the issuance by the Commission of
any stop order suspending the effectiveness of the
registration statement or prospectus then in effect or
the initiation by service of process on the Trust of any
proceeding for that purpose;
(c) of the happening of any event that makes untrue any
statement of a material fact made in the registration
statement or prospectus then in effect or which requires
the making of a change in such registration
statement or prospectus in order to make the statements
therein not misleading; and
(d) of all action of the Commission with respect to any
amendment to any registration statement or prospectus
which may from time to time be filed with the Commission.
For purposes of this section, informal requests by or acts of
the Staff of the Commission shall not be deemed actions of or requests by the
Commission.
1.15 Distributor agrees on behalf of itself and its partners and
employees to treat confidentially and as proprietary information of the Trust
all records and other information relative to the Trust and its prior, present
or potential Shareholders, and not to use such records and information for any
purpose other than performance of its responsibilities and duties hereunder.
In case of any request or demand for the inspection of such records by another
party, Distributor shall notify the Trust and follow the Trust's instructions
as to permitting or refusing such inspection; provided that, upon notice to
the Trust, Distributor may exhibit such records to any person in any case
where it is advised by its counsel that it may be held liable for failure to
do so, unless (in cases involving potential exposure only to civil liability)
the Trust has agreed to indemnify Distributor against such liability.
2. PUBLIC OFFERING PRICE.
The public offering price of the Trust's Shares shall be the net
asset value of such Shares. The net asset value of Shares shall be determined
in accordance with the provisions of the Agreement and Declaration of Trust
and Bylaws of the Trust and the then-current prospectus of the Trust.
3. TERM, DURATION AND TERMINATION.
The initial term of this Agreement (the "Initial Term") shall be for
a period commencing on the date this Agreement is executed by both parties and
ending on the date that is one year after the Conversion Date. Thereafter, if
not terminated, this Agreement shall continue with respect to a particular
Fund automatically for successive one-year terms, provided that such
continuance is specifically approved at least annually by the vote of the
Trust's Board of Trustees or the vote of a majority of the outstanding voting
securities of such Fund. This Agreement is terminable without penalty, on not
less than sixty days' prior written notice, by the Trust's Board of Trustees,
by vote of a majority of the outstanding voting securities of the Trust or by
the Distributor. This Agreement will also terminate automatically in the
event of its assignment. (As used in this Agreement, the terms "majority of
the outstanding voting securities," "interested persons" and "assignment"
shall have the same meanings as ascribed to such terms in the 1940 Act.)
4. GOVERNING LAW AND MATTERS RELATING TO THE TRUST. This Agreement
shall be governed by, and its provisions shall be construed in accordance
with, the laws of the State of Delaware. It is expressly agreed that the
obligations of the Trust hereunder shall not be binding upon any of the
Trustees, shareholders, nominees, officers, agents or employees of the Trust
personally, but shall bind only the trust property of the Trust. The
execution and delivery of this Agreement have been authorized by the Trustees,
and this Agreement has been signed and delivered by an authorized officer of
the Trust, acting as such, and neither such authorization by the Trustees nor
such execution and delivery by such officer shall be deemed to have been made
by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided in
the Trust's Agreement and Declaration of Trust.
5. NOTICE. Any notice required or permitted to be given by either
party to the other shall be deemed sufficient if sent by Federal Express or
similar delivery service, by facsimile or by registered or certified mail,
postage prepaid, addressed by the party giving notice to the other party at
the following address: if to Distributor, to it at 0000 Xxxxxxx Xxxx,
Xxxxxxxx, Xxxx 00000; if to the Trust, to it at 000 Xxxx Xxxxxxxxxx Xxxx,
Xxxxx, Xxxxxxxxxxxx 00000-0000, Attn: Xxxxxx X. Xxxxxxxx, or at such other
address as such party may from time to time specify in writing to the other
party pursuant to this Section.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first
written above.
THE XXXXXX XXXXXXXXX TRUST BISYS FUND SERVICES
LIMITED PARTNERSHIP
BY: BISYS FUND SERVICES, INC.
GENERAL PARTNER
By:/s/ By: /s/
Title:____________________ Title:____________________
