DISTRIBUTING AGREEMENT
DISTRIBUTING AGREEMENT, dated as of January 1, 1993, between XXXXXXXX
HIGH INCOME FUND SERIES, a Massachusetts business trust (the "Fund"), and
XXXXXXXX FINANCIAL SERVICES, INC., a Delaware corporation ("Xxxxxxxx Financial
Services").
In consideration of the mutual agreements herein made, the parties
hereto agree as follows:
1. EXCLUSIVE DISTRIBUTOR. The Fund hereby agrees that Xxxxxxxx Financial
Services shall be for the period of this Agreement exclusive agent for
distribution within the United States and its territories, and Xxxxxxxx
Financial Services agrees to use its best efforts during such period to
effect such distribution of shares of Capital Stock ("Shares") of the
Fund; PROVIDED, HOWEVER, that nothing herein shall prevent the Fund, if
it so elects, from selling or otherwise distributing its Shares
directly to any persons other than dealers. The Fund understands that
Xxxxxxxx Financial Services also acts as agent for distribution of the
shares of capital stock or beneficial interest of other open-end
investment companies which have entered into management agreements with
J. & X. Xxxxxxxx & Co. Incorporated (the "Manager").
2. SALES OF SHARES. Xxxxxxxx Financial Services is authorized, as agent
for the Fund and not as principal, (a) to sell Shares of the Fund to
such dealers as Xxxxxxxx Financial Services may select pursuant to the
terms of written sales agreements (which may also relate to sales of
shares of capital stock or shares of beneficial interest of other
open-end investment companies which have entered into management
agreements with the Manager), in form or forms approved by the Fund,
and (b) to sell Shares of the Fund to other purchasers on such terms as
may be provided in the then current prospectus of the Fund relating to
such Shares; PROVIDED, HOWEVER, that no sales of Shares shall be
confirmed by Xxxxxxxx Financial Services at any time when, according to
advice received by Xxxxxxxx Financial Services from the Fund, the
officers of the Fund have for any reason sufficient to them temporarily
or permanently suspended or discontinued the sale and issuance of the
Shares. Each sale of Shares shall be effected by Xxxxxxxx Financial
Services only at the applicable price determined by the Fund in the
manner prescribed in its then current prospectus relating to such
Shares. Xxxxxxxx Financial Services shall comply with all applicable
laws, rules and regulations including, without limiting the generality
of the foregoing, all rules or regulations made or adopted pursuant to
Section 22 of the Investment Company Act of 1940 (the "1940 Act") by
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the Securities and Exchange Commission or any securities association
registered under the Securities Exchange Act of 1934.
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The Fund agrees, as long as its Shares may legally be issued, to fill
all orders confirmed by Xxxxxxxx Financial Services in accordance with
the provisions of this Agreement.
3. Repurchase Agent. Xxxxxxxx Financial Services is authorized, as agent
for the Fund and not as principal, to accept offers for resale to the
Fund and to repurchase on behalf of the Fund Shares of each series of
the Fund at net asset values determined by the Fund in conformity with
its then current prospectus relating to such Shares.
4. COMPENSATION. As compensation for the services of Xxxxxxxx Financial
Services under this Agreement, Xxxxxxxx Financial Services shall be
entitled to receive the sales charge, determined in conformity with the
Fund's then current prospectus relating to such Shares, on all sales of
Shares of the Fund confirmed by Xxxxxxxx Financial Services hereunder
and for which payment has been received, less the dealers' concession
allowed in respect of such sales. In addition, in accordance with the
terms of the Fund's Administration, Shareholder Services and
Distribution Plans (the "Plans"), each of the series of the Fund may
make payments from time to time to Xxxxxxxx Financial Services in
accordance with the terms and limitations of, and for the purposes set
forth in the Plans.
5. EXPENSES. Xxxxxxxx Financial Services agrees promptly to pay or
reimburse the Fund for all expenses (except expenses incurred by the
Fund in connection with the preparation, printing and distribution of
any prospectus or report or other communication to shareholders, to the
extent that such expenses are incurred to effect compliance with any
Federal or State law or to enable such distribution to shareholder(s)
(a) of printing and distributing copies of any prospectus and of
preparing, printing and distributing any other material used by
Xxxxxxxx Financial Services in connection with offering Shares of the
Fund for sale, and (b) of advertising in connection with such offering.
The Fund agrees to pay all expenses in connection with the registration
of Shares of the Fund under the Securities Act of 1933 (the "Act"), all
fees and related expenses which may be incurred in connection with the
qualification of Shares of the Fund for sale in such States (as well as
the District of Columbia, Puerto Rico and other territories) as
Xxxxxxxx Financial Services may designate, and all expenses in
connection with maintaining facilities for the issue and transfer of
its Shares, of supplying information, prices and other data to be
furnished by it hereunder, and through Union Data Service Center, Inc.,
of all data processing and related services related to the share
distribution activity contemplated hereby.
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The Fund agrees to execute such documents and to furnish such
information as may be reasonably necessary, in the discretion of the
Trustees of the Fund, in connection with the qualification of Shares of
the Fund for sale in such States (as well as the District of Columbia,
Puerto Rico and other territories) as Xxxxxxxx Financial Services may
designate. Xxxxxxxx Financial Services also agrees to pay all fees and
related expenses connected with its own qualification as a broker or
dealer under Federal or State laws and, except as otherwise
specifically provided in this Agreement or agreed to by the Fund, all
other expenses incurred by Xxxxxxxx Financial Services in connection
with the sale of Shares of the Fund as contemplated in this Agreement
(including the expenses of qualifying the Fund as a dealer or broker
under the laws of such States as may be designated by Xxxxxxxx
Financial Services, if deemed necessary or advisable by the Fund).
It is understood and agreed that any payments made to Xxxxxxxx
Financial Services pursuant to the Plans may be used to defray some or
all of the expenses incurred by Xxxxxxxx Financial Services pursuant to
this Agreement.
6. PROSPECTUS AND OTHER INFORMATION. The Fund represents and warrants to
and agrees with Xxxxxxxx Financial Services that:
(a) A registration statement, including one or more prospectuses
relating to the Shares, has been filed by the Fund under the
Act and has become effective. Such registration statement, as
now in effect and as from time to time hereafter amended, and
also any other registration statement relating to the Shares
which may be filed by the Fund under the Act which shall
become effective, is herein referred to as the "Registration
Statement", and any prospectus or prospectuses filed by the
Fund as a part of the Registration Statement, as the
"Prospectus".
(b) At all times during the term of this Agreement, except when
the officers of the Fund have suspended or discontinued the
sale and issuance of Shares of the Fund as contemplated by
Section 2 hereof, the Registration Statement and Prospectus
will conform in all respects to the requirements of the Act
and the rules and regulations of the Securities and Exchange
Commission, and neither of such documents will include any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statement therein not misleading, except that the
foregoing does not apply to any statements or omissions in
either of such documents based upon written information
furnished to the Fund by Xxxxxxxx Financial Services
specifically for use therein.
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The Fund agrees to prepare and furnish to Xxxxxxxx Financial Services
from time to time a copy of its Prospectus, and authorizes Xxxxxxxx
Financial Services to use such Prospectus, in the form furnished to
Xxxxxxxx Financial Services from time to time, in connection with the
sale of the Fund's Shares. The Fund also agrees to furnish Xxxxxxxx
Financial Services from time to time, for use in connection with the
sale of such Shares, such information with respect to the Fund and its
Shares as Xxxxxxxx Financial Services may reasonably request.
7. REPORTS. Xxxxxxxx Financial Services will prepare and furnish to the
Trustees of the Fund at least quarterly a written report complying with
the requirements of Rule 12b-1 under the 1940 Act setting forth all
amounts expended under the Plans and the purposes for which such
expenditures were made.
8. INDEMNIFICATION. (a) The Fund will indemnify and hold harmless Xxxxxxxx
Financial Services and each person, if any, who controls Xxxxxxxx
Financial Services within the meaning of the Act against any losses,
claims, damages or liabilities to which Xxxxxxxx Financial Services or
such controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Fund's
Registration Statement or Prospectus or any other written sales
material prepared by the Fund which is utilized by Xxxxxxxx Financial
Services in connection with the sale of Shares or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or (in the case of the Registration
Statement and Prospectus) necessary to make the statements therein not
misleading or (in the case of such other sales material) necessary to
make the statements therein not misleading in the light of the
circumstances under which they were made; and will reimburse Xxxxxxxx
Financial Services and each such controlling person for any legal or
other expenses reasonably incurred by Xxxxxxxx Financial Services or
such controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Fund will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement or Prospectus in
conformity with written information furnished to the Fund by Xxxxxxxx
Financial Services specifically for use therein; and provided, further,
that nothing herein shall be so construed as to protect Xxxxxxxx
Financial Services against any liability to the Fund or its security
holders to which Xxxxxxxx Financial Services would otherwise be
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subject by reason of willful misfeasance, bad faith or gross
negligence, in the performance of its duties, or by reason of the
reckless disregard by Xxxxxxxx Financial Services of its obligations
and duties under this Agreement. This indemnity agreement will be in
addition to any liability which the Fund may otherwise have.
(b) Xxxxxxxx Financial Services will indemnify and hold harmless
the Fund, each of its Trustees and officers and each person,
if any, who controls the Fund within the meaning of the Act,
against any losses, claims, damages or liabilities to which
the Fund or any such Trustee, officer or controlling person
may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectus or any
sales material not prepared by the Fund which is utilized in
connection with the sale of Shares or arise out of or are
based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or (in
the case of the Registration Statement and Prospectus)
necessary to make the statements therein not misleading or (in
the case of such other sales material) necessary to make the
statements therein not misleading in the light of the
circumstances under which they were made, in the case of the
Registration Statement and Prospectus to the extent, but only
to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in
conformity with written information furnished to the Fund by
Xxxxxxxx Financial Services specifically for use therein; and
Xxxxxxxx Financial Services will reimburse any legal or other
expenses reasonably incurred by the Fund or any such Trustee,
officer or controlling person in connection with investigating
or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any
liability which Xxxxxxxx Financial Services may otherwise
have.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify
the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve
it from liability which it may have to any indemnified party
otherwise than under this Section. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein
and, to the extent that it may wish, to assume the defense
thereof, with counsel satisfactory to such indemnified party,
and after notice from the indemnifying party to such
indemnified party of its
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election to assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation.
9. EFFECTIVE DATE. This Agreement shall become effective upon its
execution by an authorized officer of the respective parties to this
Agreement, but in no event prior to shareholder approval of the Plans.
10. TERM OF AGREEMENT. This Agreement shall continue in effect until
December 31 of the year in which it is first effective and through
December 31 of each year thereafter if such continuance is approved in
the manner required by the 1940 Act and the rules thereunder and
Xxxxxxxx Financial Services shall not have notified the Fund in writing
at least 60 days prior to the anniversary date of the previous
continuance that it does not desire such continuance. This Agreement
may be terminated at any time, without payment of penalty on 60 days'
written notice to the other party by vote of a majority of the Trustees
of the Fund who are not interested persons (as defined in the 0000 Xxx)
of the Fund and have no direct or indirect financial interest in the
operation of the Plans or any agreement related thereto, or by vote of
a majority of the outstanding voting securities of the Fund (as defined
in the 1940 Act). This Agreement shall automatically terminate in the
event of its assignment (as defined in the 1940 Act).
11. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to
the contrary notwithstanding, this Agreement shall not be construed to
require, or to impose any duty upon, either of the parties to do
anything in violation of any applicable laws or regulations.
IN WITNESS WHEREOF, the Fund and Xxxxxxxx Financial Services have
caused this Agreement to be executed by their duly authorized officers as of the
date first above written.
XXXXXXXX HIGH INCOME FUND SERIES
By
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Xxxxxx X. Xxxxxxxxx, President
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XXXXXXXX FINANCIAL SERVICES, INC.
By
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Xxxxxx X. Xxxxx, President
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