Exhibit (6)
DISTRIBUTION AGREEMENT
OF
HERITAGE INCOME TRUST
This Distribution Agreement is made this ____ day of
_________________, 1989, by and between Heritage Income Trust, a
Massachusetts business trust (the "Trust"), and Xxxxxxx Xxxxx &
Associates, Inc. ("Xxxxxxx Xxxxx").
WHEREAS, the Trust is registered as an open-end, diversified
investment company under the Investment Company Act of 1940, as amended
(the "1940 Act"), and has registered and intends to register the shares
(the "Shares") of beneficial interest of its distinct portfolios now
existing or hereafter created (the "Portfolios") for sale to the public
under the Securities Act of 1933, as amended (the "1933 Act"), and various
state securities laws; and
WHEREAS, the Trust wishes to retain Xxxxxxx Xxxxx as the Trust's
Distributor in connection with the offering and sale of the Shares and to
furnish certain other services to the Trust as specified in this
Agreement; and
WHEREAS, this Agreement has been approved by a vote of the
Trust's Board of Trustees and certain disinterested Trustees in conformity
with Paragraph (b)(2) of Rule 12b-1 under the 1940 Act; and
WHEREAS, Xxxxxxx Xxxxx is willing to act as Distributor and to
furnish such services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as
follows:
1. The Trust hereby appoints Xxxxxxx Xxxxx as Distributor in
connection with the offering and sale of the Shares. The Trust authorizes
Xxxxxxx Xxxxx as exclusive agent for the Trust, subject to applicable
federal and state law and the Declaration of Trust, Bylaws and current
Prospectus and Statement of Additional Information of the Trust: (a) to
promote the Trust; (b) to solicit orders for the purchase of the Shares
subject to such terms and conditions as the Trust may specify; and (c) to
accept orders for the purchase of the Shares on behalf of the Trust.
Xxxxxxx Xxxxx shall offer the Shares on an agency or "best efforts" basis
under which the Trust shall only issue such Shares as are actually sold.
2. The public offering price of the Shares of a Portfolio of
the Trust shall be the net asset value per share (as determined by the
Trust) of the outstanding Shares of that Portfolio plus a sales charge as
set forth in the Trust's current Prospectus. The Trust shall made
available to Xxxxxxx Xxxxx a statement of each computation of net asset
value of each Portfolio and of the details entering into such computation.
3. As compensation for the services performed and the
expenses assumed by Xxxxxxx Xxxxx under this Agreement including, but not
limited to, any commissions paid for sales of Shares, the Trust shall pay
Xxxxxxx Xxxxx, as promptly as possible after the last day of each month, a
fee, accrued daily, of 0.25% per annum of each Portfolio's average daily
net assets. The first payment of the fee shall be made as promptly as
possible at the end of the month in which the Trust commences operations
and shall constitute a full payment of the fee due Xxxxxxx Xxxxx for all
services prior to that date. If this Agreement is terminated as of any
date not the last of a month, such fee shall be paid as promptly as
possible after such date of termination, shall be based on the average
daily net assets of each Portfolio in the period from the beginning of
such month to such date of termination, and shall be that portion of such
average daily net assets as the number of days in such period bears to the
number of days in such month. Each such payment shall be accompanied by a
report of the Trust prepared either by the Trust or its transfer agent
that shall show the amount properly payable to Xxxxxxx Xxxxx under this
Agreement and the detailed computation thereof. Xxxxxxx Xxxxx shall also
receive the sales load set forth in the Trust's current prospectus.
4. As used in this Agreement, the term "Registration
Statement" shall mean the Registration Statement most recently filed by
the Trust with the Securities and Exchange Commission and effective under
the 1933 Act, as such Registration Statement is amended by any amendments
thereto at the time in effect, and the terms "Prospectus" and "Statement
of Additional Information" shall mean the form of Prospectus and Statement
of Additional Information filed by the Trust as part of the Registration
Statement.
5. Xxxxxxx Xxxxx shall finance activity which is intended to
result in the sale and retention of Shares of each Portfolio including,
but not limited to, advertising, salaries and other expenses of the
Distributor relating to selling or servicing efforts, expenses of
organizing and conducting sales seminars, printing of Prospectuses and
reports for other than existing shareholders, preparation and distribution
of advertising material and sales literature and payments to dealers whose
customers purchase Shares. In connection with such sales and offers of
sale, the Trust and the Portfolios shall not be responsible in any way for
any other information, statements or representations given or made by
Xxxxxxx Xxxxx or its representatives or agents, except such information
and make only such statements or representations as are contained in the
Prospectus or in information furnished in writing to Xxxxxxx Xxxxx by the
Trust. Except as specifically provided in this Agreement, the Trust and
the Portfolios shall bear none of the expenses of Xxxxxxx Xxxxx in
connection with its offer and sale of the Shares.
6. The Trust agrees, at its own expense, to register the
Shares with the Securities and Exchange Commission, state and other
regulatory bodies, and to prepare and file from time to time such
Prospectuses, amendments, reports and other documents as may be necessary
to maintain the Registration Statement. The Trust shall bear all expenses
related to preparing and typesetting such Prospectuses, Statements of
- 2 -
Additional Information and other materials required by law and such other
expenses, including printing and mailing expenses, related to the Trust's
communications with persons who are shareholders of the Trust.
7. The Trust agrees to indemnify, defend and hold harmless
Xxxxxxx Xxxxx, its several officers and directors, and any person who
controls Xxxxxxx Xxxxx within the meaning of Section 15 of the 1933 Act
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
Xxxxxxx Xxxxx, its officers or Trustees, or any such controlling person
may incur under the 1933 Act or under common law or otherwise arising out
of or based upon any alleged untrue statement of a material fact contained
in the Registration Statement, Prospectus or Statement of Additional
Information or arising out of or based upon any alleged omission to state
a material fact required to be stated in either thereof or necessary to
make the statements in either thereof not misleading, provided that in no
event shall anything contained in this Agreement be construed so as to
protect Xxxxxxx Xxxxx against any liability to the Trust or its
shareholders to which Xxxxxxx Xxxxx 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.
8. Xxxxxxx Xxxxx agrees to indemnify, defend and hold
harmless the Trust and its Portfolios, its several officers and directors,
and any person who controls the Trust within the meaning of Section 15 of
the 1933 Act 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 the Trust, its officers or Trustees, or any such
controlling person may incur under the 1933 Act or under common law or
otherwise arising out of or based upon any alleged untrue statement of a
material fact contained in information furnished in writing by Xxxxxxx
Xxxxx to the Trust for use in the Registration Statement, Prospectus or
Statement of Additional Information or arising out of or based upon any
alleged omission to state a material fact in connection with such
information required to be stated in the Registration Statement or
Prospectus or necessary to make such information not misleading.
9. The Trust reserves the right at any time to withdraw all
offerings of the Shares of any or all Portfolios by written notice to the
Distributor at its principal office.
10. The Trust shall not issue certificates representing
Shares unless requested by a shareholder. If such request is transmitted
through Xxxxxxx Xxxxx, the Trust will cause certificates evidencing the
Shares owned to be issued in such names and denominations as Xxxxxxx Xxxxx
shall from time to time direct.
11. Xxxxxxx Xxxxx at its sole discretion may repurchase
Shares offered for sale by the shareholders. Repurchase of Shares of any
- 3 -
Portfolio by Xxxxxxx Xxxxx shall be at the net asset value of the
applicable Portfolio next determined after a repurchase order has been
received. On each business day, Xxxxxxx Xxxxx shall notify by telex or in
writing the Trust and the Trust's transfer agent of the orders for
repurchase of shares received by Xxxxxxx Xxxxx since the last such report,
the amount to be paid for such Shares, and the identity of shareholders
offering Shares for repurchase. Upon such notice, the Trust shall pay
Xxxxxxx Xxxxx such amounts as are required by Xxxxxxx Xxxxx for the
repurchase of such shares in cash or in the form of a credit against
moneys due the Trust from Xxxxxxx Xxxxx as proceeds from the sale of
Shares. Xxxxxxx Xxxxx will receive no commission or other remuneration for
repurchasing Shares other than the compensation set forth in paragraph 3
hereof or service fees charged to its customers for processing a
redemption order. The Trust reserves the right to suspend such purchases
with respect to any or all Portfolios upon written notice to Xxxxxxx
Xxxxx. Xxxxxxx Xxxxx further agrees to act as agent for the Trust to
receive and transmit promptly to the Trust's transfer agent shareholder
requests for redemption of Shares.
12. Xxxxxxx Xxxxx is an independent contractor and shall be
agent for the Trust only with respect to the sale and repurchase of the
Shares.
13. The services of Xxxxxxx Xxxxx to the Trust under this
Agreement are not to be deemed exclusive, and the Distributor shall be
free to render similar services or other services to others so long as its
services hereunder are not impaired thereby.
14. Xxxxxxx Xxxxx shall prepare reports for the Board of
Trustees of the Trust upon request showing information concerning
expenditures related to this Agreement.
15. As used in this Agreement, the term "net asset value"
shall have the meaning ascribed to it in the Trust's Declaration of Trust;
and the terms "assignment," "interested person," and "majority of the
outstanding voting securities" shall have the meanings given to them by
Section 2(a) of the 1940 Act, subject to such exemptions as may be granted
by the Securities and Exchange Commission by any rule, regulation or
order.
16. With respect to any or all Portfolios, this Agreement
shall automatically terminate in the event of its assignment and may be
terminated at any time without the payment of any penalty by the Trust or
by Xxxxxxx Xxxxx on 60 days' written notice to the other party. The Trust
may effect such termination with respect to any or all Portfolios by a
vote of (i) a majority of the Trust's Board of Trustees, (ii) a majority
of the Trustees who are not interested persons of the Trust and who have
no direct or indirect financial interest in the operation of the Trust's
Distribution Plan pursuant to Rule 12b-1 under the 1940 Act in this
Agreement or in any agreement related to the Trust's Distribution Plan
(the "Rule 12b-1 Trustees"), or (iii) a majority of the outstanding voting
securities of the Trust or the applicable Portfolio.
- 4 -
17. This Agreement will remain in effect for two years from
the date of its execution and from year to year thereafter, provided that
it is specifically approved annually (i) by a majority vote of the Trust's
Board of Trustees, and (ii) by the vote of a majority of the Rule 12b-1
Trustees of the Trust, cast in person at a meeting called for the purpose
of voting on such approval.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their officers thereunto duly authorized.
Dated:_____________________, 1989
Attest: HERITAGE INCOME TRUST
By:_________________________ By:_____________________________
Attest: XXXXXXX XXXXX & ASSOCIATES, INC.
By:_________________________ By:_____________________________
- 5 -
