Exhibit (e)(5)
XXXXXX XXXXXX FUNDS I
Xxxxxx Xxxxxx Securitized Asset Fund
Distribution Agreement
AGREEMENT made this 1st day of July 2005, by and between XXXXXX XXXXXX FUNDS
I, a Massachusetts business trust (the "Trust"), on behalf of XXXXXX XXXXXX
SECURITIZED ASSET FUND (the "Series"), IXIS ASSET MANAGEMENT DISTRIBUTORS,
L.P., a Delaware limited partnership (the "Distributor"), and for purposes of
Section 5 of this Agreement, XXXXXX, XXXXXX & COMPANY, L.P., a Delaware limited
partnership ("Xxxxxx Xxxxxx").
W I T N E S S E T H:
NOW, THEREFORE, in consideration of the premises and covenants hereinafter
contained, the Trust and the Distributor agree as follows:
1. Distributor. The Trust hereby appoints the Distributor as general
distributor of shares of beneficial interest of the Series ("Series
shares") during the term of this Agreement. The Trust reserves the right,
however, to refuse at any time or times to sell Series shares hereunder for
any reason deemed adequate by the Board of Trustees of the Trust.
2. Sale and Payment. Under this agreement, the following provisions shall
apply with respect to the sale of and payment for Series shares:
(a) The Distributor shall have the right, as principal, to purchase
Series shares from the Trust at their net asset value and to sell such
shares to the public against orders therefor at the applicable public
offering price, as defined in Section 3 hereof. The Distributor shall
also have the right, as principal, to sell shares to dealers against
orders therefor at the public offering price less a concession
determined by the Distributor.
(b) Prior to the time of delivery of any shares by the Trust to, or on
the order of, the Distributor, the Distributor shall pay or cause to be
paid to the Trust or to its order an amount in Boston or New York
clearing house funds equal to the applicable net asset value of such
shares. The Distributor shall retain so much of any underwriting
discount as is not allowed by it as a concession to dealers.
3. Public Offering Price. The public offering price shall be the net asset
value of Series shares all as set forth in the current prospectus and
statement of additional information ("prospectus") of the Trust relating to
the Series shares. In no event shall the public offering price exceed
1000/935 of such net asset value, and in no event shall any applicable
underwriting discount exceed 6.5% of the public offering price. The net
asset value of Series shares shall be determined in accordance with the
provisions of the
agreement and declaration of trust and by-laws of the Trust and the current
prospectus of the Trust relating to the Series shares.
4. Trust Issuance of Series Shares. The delivery of Series shares shall be
made promptly by a credit to a shareholder's open account for the Series or
by delivery of a share certificate. The Trust reserves the right (a) to
issue Series shares at any time directly to the shareholders of the Series
as a stock dividend or stock split, (b) to issue to such shareholders
shares of the Series, or rights to subscribe to shares of the Series, as
all or part of any dividend that may be distributed to shareholders of the
Series or as all or part of any optional or alternative dividend that may
be distributed to shareholders of the Series, and (c) to sell Series shares
in accordance with the current applicable prospectus of the Trust relating
to the Series shares.
5. Redemption or Repurchase. The Distributor shall act as agent for the Trust
in connection with the redemption or repurchase of Series shares by the
Trust to the extent and upon the terms and conditions set forth in the
current applicable prospectus of the Trust relating to the Series shares,
and Xxxxxx Xxxxxx, and not the Trust or the Series, agrees to reimburse the
Distributor, from time to time upon demand, for any reasonable expenses
incurred in connection with such redemptions or repurchases.
6. Undertaking Regarding Sales. The Distributor shall use reasonable efforts
to sell Series shares but does not agree hereby to sell any specific number
of Series shares and shall be free to act as distributor of the shares of
other investment companies. Series shares will be sold by the Distributor
only against orders therefor. The Distributor shall not purchase Series
shares from anyone except in accordance with Sections 2 and 5 and shall not
take "long" or "short" positions in Series shares contrary to the agreement
and declaration of trust or by-laws of the Trust.
7. Compliance. The Distributor shall conform to the Conduct Rules of the
National Association of Securities Dealers, Inc. ("NASD") and the sale of
securities laws of any jurisdiction in which it sells, directly or
indirectly, any Series shares. The Distributor agrees to make timely
filings, with the Securities and Exchange Commission in Washington, D.C.
(the "SEC"), the NASD and such other regulatory authorities as may be
required, of any sales literature relating to the Series and intended for
distribution to prospective investors. The Distributor also agrees to
furnish to the Trust sufficient copies of any agreements or plans it
intends to use in connection with any sales of Series shares in adequate
time for the Trust to file and clear them with the proper authorities
before they are put in use (which the Trust agrees to use its best efforts
to do as expeditiously as reasonably possible), and not to use them until
so filed and cleared.
8. Registration and Qualification of Series Shares. The Trust agrees to
execute such papers and to do such acts and things as shall from time to
time be reasonably requested by the Distributor for the purpose of
qualifying and maintaining qualification of the Series shares for sale
under the so-called Blue Sky Laws of any state or for maintaining the
registration of the Trust and of the Series shares under the federal
Securities Act of 1933 and the federal Investment Company Act of 1940 (the
"1940 Act"), to the end that there will be available for sale from time to
time such number of Series shares as the
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Distributor may reasonably be expected to sell. The Trust shall advise the
Distributor promptly of (a) any action of the SEC or any authorities of any
state or territory, of which it may be advised, affecting registration or
qualification of the Trust or the Series shares, or rights to offer Series
shares for sale, and (b) the happening of any event which makes untrue any
statement or which requires the making of any change in the Trust's
registration statement or its prospectus relating to the Series shares in
order to make the statements therein not misleading.
9. Distributor Independent Contractor. The Distributor shall be an independent
contractor and neither the Distributor nor any of its officers or employees
as such is or shall be an employee of the Trust. The Distributor is
responsible for its own conduct and the employment, control and conduct of
its agents and employees and for injury to such agents or employees or to
others through its agents or employees. The Distributor assumes full
responsibility for its agents and employees under applicable statutes and
agrees to pay all employer taxes thereunder.
10. Expenses Paid by Distributor. While the Distributor continues to act as
agent of the Trust to obtain subscriptions for and to sell Series shares,
the Distributor shall pay the following:
(a) all expenses of printing (exclusive of typesetting) and distributing
any prospectus for use in offering Series shares for sale, and all other
copies of any such prospectus used by the Distributor, and
(b) all other expenses of advertising and of preparing, printing and
distributing all other literature or material for use in connection with
offering Series shares for sale.
11. Interests in and of Distributor. It is understood that any of the
shareholders, trustees, officers, employees and agents of the Trust may be
a shareholder, director, officer, employee or agent of, or be otherwise
interested in, the Distributor, any affiliated person of the Distributor,
any organization in which the Distributor may have an interest or any
organization which may have an interest in the Distributor; that the
Distributor, any such affiliated person or any such organization may have
an interest in the Trust; and that the existence of any such dual interest
shall not affect the validity hereof or of any transaction hereunder except
as otherwise provided in the agreement and declaration of trust or by-laws
of the Trust, in the limited partnership agreement of the Distributor or by
specific provision of applicable law.
12. Effective Date and Termination. This Agreement shall become effective as of
the date of its execution, and
(a) Unless otherwise terminated, this Agreement shall continue in effect
with respect to the shares of the Series so long as such continuation is
specifically approved at least annually (i) by the Board of Trustees of
the Trust or by the vote of a majority of the votes which may be cast by
shareholders of the Series and (ii) by a vote of a majority of the Board
of Trustees of the Trust who are not
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interested persons of the Distributor or the Trust, cast in person at a
meeting called for the purpose of voting on such approval.
(b) This Agreement may at any time be terminated on sixty days' notice
to the Distributor either by vote of a majority of the Trust's Board of
Trustees then in office or by the vote of a majority of the votes which
may be cast by shareholders of the Series.
(c) This Agreement shall automatically terminate in the event of its
assignment.
(d) This Agreement may be terminated by the Distributor on ninety days'
written notice to the Trust.
Termination of this Agreement pursuant to this section shall be without payment
of any penalty.
13. Definitions. For purposes of this Agreement, the following definitions
shall apply:
(a) The "vote of a majority of the votes which may be cast by
shareholders of the Series" means (1) 67% or more of the votes of the
Series present (in person or by proxy) and entitled to vote at such
meeting, if the holders of more than 50% of the outstanding shares of
the Series entitled to vote at such meeting are present; or (2) the vote
of the holders of more than 50% of the outstanding shares of the Series
entitled to vote at such meeting, whichever is less.
(b) The terms "affiliated person," "interested person" and "assignment"
shall have their respective meanings as defined in the 1940 Act subject,
however, to such exemptions as may be granted by the SEC under the 1940
Act.
14. Amendment. This Agreement may be amended at any time by mutual consent of
the parties, provided that such consent on the part of the Series shall be
approved (i) by the Board of Trustees of the Trust or by vote of a majority
of the votes which may be cast by shareholders of the Series and (ii) by a
vote of a majority of the Board of Trustees of the Trust who are not
interested persons of the Distributor or the Trust cast in person at a
meeting called for the purpose of voting on such approval.
15. Applicable Law and Liabilities. This Agreement shall be governed by and
construed in accordance with the laws of The Commonwealth of Massachusetts.
All sales hereunder are to be made, and title to the Series shares shall
pass, in Boston, Massachusetts.
16. Limited Recourse. The Distributor hereby acknowledges that the Trust's
obligations hereunder with respect to the shares of the Series are binding
only on the assets and property belonging to the Series.
17. Privacy. In accordance with Regulation S-P, if non-public personal
information regarding either party's customers or consumers is disclosed to
the other party in connection with this Agreement, the party receiving such
information will not disclose or use that information other than as
necessary to carry out the purposes of this Agreement.
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18. Anti-Money Laundering. Each party to this agreement hereby agrees to abide
by and comply with all relevant anti-money laundering laws and regulations,
including without limitation the Bank Secrecy Act, as amended, and the USA
Patriot Act of 2001. Each party represents that it has established an
Anti-Money Laundering Program that complies with all material aspects of
the USA Patriot Act of 2001 and other applicable anti-money laundering laws
and regulations. Each party also hereby agrees to comply with any new or
additional anti-money laundering laws or regulations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first above written.
XXXXXX XXXXXX FUNDS I,
on behalf of its Xxxxxx Xxxxxx Securitized Asset Fund series
By: /s/ XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
IXIS ASSET MANAGEMENT DISTRIBUTORS, L.P.
By: IXIS Asset Management Distribution Corporation, its general partner
By: /s/ XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
XXXXXX, XXXXXX & COMPANY, L.P.
By: Xxxxxx, Xxxxxx & Company, Inc., its general partner
By: /s/ XXXXX CHARLESTON
-------------------------
Name: Xxxxx Charleston
Title: Director
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NOTICE
A copy of the Agreement and Declaration of Trust establishing the Trust is on
file with the Secretary of The Commonwealth of Massachusetts, and notice is
hereby given that this Agreement is executed with respect to the Series on
behalf of the Trust by officers of the Trust as officers and not individually
and that the obligations of or arising out of this Agreement are not binding
upon any of the trustees, officers or shareholders of the Trust individually
but are binding only upon the assets and property of the Series.
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