DISTRIBUTION AGREEMENT
FORM
OF
AGREEMENT
made as of this [DATE], between the MainStay Funds Trust, a Delaware business
trust (the “Trust”), and NYLIFE DISTRIBUTORS LLC, a Limited Liability company
(the “Distributor”).
W I T N E
S S E T H:
WHEREAS,
the Trust is registered under the Investment Trust Act of 1940, as amended (the
“1940 Act”), as an open-end management investment Trust and it is in the
interest of the Trust to offer its shares of common stock (the “Shares”) for
sale continuously;
WHEREAS,
the Shares of the Trust are divided into separate series (the “Funds”), each of
which has been established pursuant to a written instrument executed by the
Trustees of the Trust, and the Trustees may from time to time terminate such
Funds or establish and terminate additional Funds; and
WHEREAS,
the Trust and the Distributor wish to enter into an agreement with each other
with respect to the continuous offering of the Trust’s Shares, to commence after
the effectiveness of its initial registration statement filed pursuant to the
Securities Act of 1933, as amended (the “1933 Act”), and the 1940
Act.
NOW,
THEREFORE, the parties agree as follows:
Section
1. Appointment of the
Distributor.
The Trust
hereby appoints the Distributor its exclusive agent to sell and to arrange for
the sale of the Shares of the Trust, including both issued and treasury shares,
on the terms and for the period set forth in this Agreement, and the Distributor
hereby accepts such appointment and agrees to act hereunder.
Section
2. Services and Duties
of the Distributor.
(a) The
Distributor agrees to sell, as agent for the Trust, from time to time during the
term of this Agreement, the Shares (whether unissued or treasury shares, in the
Trust’s sole discretion) upon the terms described in the Funds’ prospectus or
prospectuses. As used in this Agreement, the term “Prospectus” shall mean the
Funds’ prospectus or prospectuses and the statement of additional information
included as part of the Trust’s Registration Statement, as such prospectus,
prospectuses and statement of additional information may be amended or
supplemented from time to time, and the term “Registration Statement” shall mean
the Registration Statement most recently filed from time to time by the Trust
with the Securities and Exchange Commission and effective under the 1933 Act and
the 1940 Act, as such Registration Statement is amended by any amendments
thereto at the time in effect.
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(b) Upon
commencement of the Trust’s operations, the Distributor will hold itself
available to receive orders, satisfactory to the Distributor, for the purchase
of the Shares and will accept such orders on behalf of the Trust as of the time
of receipt of such orders and will transmit such orders as are so accepted to
the Trust’s transfer and dividend disbursing agent as promptly as practicable.
Purchase orders shall be deemed effective at the times and in the manner set
forth in the Prospectus.
(c) The
Distributor in its discretion may purchase from the Trust as principal and may
sell Shares to such registered and qualified retail dealers as it may select. In
making agreements with such dealers, the Distributor shall act only as principal
and not as agent for the Trust.
(d) The
offering price of the Shares shall be the price per share (the “Offering Price”)
specified and determined as provided in the Prospectus. The Trust shall furnish
the Distributor, with all possible promptness, an advice of each computation of
net asset value.
(e) The
Distributor shall not be obligated to sell any certain number of Shares and
nothing herein contained shall prevent the Distributor from entering into like
distribution arrangements with other investment companies so long as the
performance of its obligations hereunder is not impaired thereby.
(f) The
Distributor is authorized on behalf of the Trust to purchase Shares presented to
it by dealers at the price determined in accordance with, and in the manner set
forth in, the Prospectus.
Section
3. Duties of the
Trust.
(a) The
Trust agrees to sell Shares so long as it has Shares available for sale except
for such times at which the sale of its Shares has been suspended by order of
the Trustees or by order of the Securities and Exchange Commission: and to
deliver certificates (if any) for, or cause the Trust’s transfer and dividend
disbursing agent (or such other agent as designated by the Trust) to issue
confirmations evidencing, such Shares registered in such names and amounts as
the Distributor has requested in writing, as promptly as practicable after
receipt by the Trust of payment therefor at the net asset value thereof and
written request of the Distributor therefor.
(b) The
Trust shall keep the Distributor fully informed with regard to its affairs and
shall furnish to the Distributor copies of all information, financial statements
and other papers which the Distributor may reasonably request for use in
connection with the distribution of Shares of the Trust, and this shall include
one certified copy, upon request by the Distributor, of all financial statements
prepared by the Trust and audited by its independent accountants and such
reasonable number of copies of its most current Prospectus and annual and
interim reports as the Distributor may request and shall cooperate fully in the
efforts of the Distributor to sell and arrange for the sale of the Trust’s
Shares and in the performance of the Distributor under this
Agreement.
(c) The
Trust shall take, from time to time, all such steps, including payment of the
related filing fee, as may be necessary to register the Shares under the 1933
Act and to make available for sale such number of Shares as the Distributor may
be expected to sell. The Trust agrees to file from time to time such amendments,
reports and other documents as may be necessary in order that there may be no
untrue statement of a material fact in a Registration Statement or Prospectus,
or necessary in order that there may be no omission to state a material fact in
the Registration Statement or Prospectus which omission would make the
statements therein misleading.
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(d) The
Trust shall use its best efforts to qualify and maintain the qualification of an
appropriate number of its Shares for sale under the securities laws of such
states as the Distributor and the Trust may approve, and, if necessary or
appropriate in connection therewith, to qualify and maintain the qualification
of the Trust as a broker or dealer in such states; provided that the Trust shall
not be required to amend its Articles of Incorporation or By-laws to comply with
the laws of any state, to maintain an office in any state, to change the terms
of the offering of its Shares in any state from the terms set forth in its
Registration Statement and Prospectus, to qualify as a foreign corporation in
any state or to consent to service of process in any state other than with
respect to claims arising out of the offering of its Shares. The Distributor
shall furnish such information and other material relating to its affairs and
activities as may be required by the Trust in connection with such
qualifications.
Section
4. Expenses.
(a) The
Trust shall bear all costs and expenses of the continuous offering of its Shares
in connection with: (i) fees and disbursements of its counsel and independent
accountants, (ii) the preparation, filing and printing of any Registration
Statements and/or Prospectuses required by and under the federal securities
laws, (iii) the preparation and mailing of annual and interim reports,
Prospectuses and proxy materials to shareholders, (iv) the qualifications of the
Shares for sale and of the Trust pursuant to Section 3(d) hereof and the cost
and expenses payable to each such state for continuing qualification therein,
and (v) any expenses assumed by the Funds pursuant to a Plan of Distribution
adopted in conformity with Rule 12b-1 under the 0000 Xxx.
(b) The
Distributor shall bear: (i) the costs and expenses of preparing, printing and
distributing any materials not prepared by the Trust and other materials used by
the Trust in connection with its offering of Shares for sale to the public,
including the additional cost of printing copies of the Prospectus and of annual
and interim reports to shareholders, other than copies thereof required for
distribution to existing shareholders or for filing with any federal securities
authorities, (ii) any expenses of advertising incurred by the Distributor in
connection with such offering, and (iii) the expenses of registration or
qualification of the Distributor as a dealer or broker under federal or state
laws and the expenses of continuing such registration or
qualification.
Section
5. Fees.
Except to
the extent set forth in Section 4, the Distributor will render all services
hereunder without compensation or reimbursement.
Section
6. Indemnification.
The Trust
agrees to indemnify, defend and hold the Distributor, its officers and trustees
and any person who controls the Distributor within the meaning of Section 15 of
the 1933 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 the Distributor, its officers, 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 or Prospectus 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,
except insofar as such claims, demands, liabilities or expenses arise out of or
are based upon any such untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information furnished
in writing by the Distributor to the Trust for use in the Registration Statement
or Prospectus; provided, however, that this indemnity agreement, to the extent
that it might require indemnity of any person who is also an officer or director
of the Trust or who controls the Trust within the meaning of Section 15 of the
1933 Act, shall not inure to the benefit of such officer, director or
controlling person unless a court of competent jurisdiction shall determine, or
it shall have been determined by controlling precedent, that such result would
not be against public policy as expressed in the 1933 Act; and further provided,
that in no event shall anything contained herein be so construed as to protect
the Distributor against any liability to the Trust or to its security holders to
which the 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 its reckless disregard of its obligations under this Agreement. The
Trust’s agreement to indemnify the Distributor, its officers and trustees and
any such controlling person as aforesaid is expressly conditioned upon the
Trust’s being promptly notified of any action brought against the Distributor,
its officers or trustees, or any such controlling person, such notification to
be given by letter or telegram addressed to the Trust at its principal business
office. The Trust agrees promptly to notify the Distributor of the commencement
of any litigation or proceedings against the Trust or any of its officers or
trustees in connection with the issue and sale of the Shares of any
Fund.
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The Distributor agrees to indemnify,
defend and hold the Trust, its officers and trustees and any person who controls
the Trust, if any, within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending against such claims, demands
or liabilities and any counsel fees incurred in connection therewith) which the
Trust, its trustees or officers or any such controlling person may incur under
the 1933 Act or under common law or otherwise, but only to the extent that such
liability or expense incurred by the Trust, its trustees or officers or such
controlling person resulting from such claims or demands shall arise out of or
be based upon any alleged untrue statement of a material fact contained in
information furnished in writing by the Distributor to the Trust for use in the
Registration Statement or Prospectus or shall arise out of or be 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. The Distributor’s agreement to
indemnify the Trust, its trustees and officers, and any such controlling person
as aforesaid is expressly conditioned upon the, Distributor’s being promptly
notified of any action brought against the Trust, its officers or trustees or
any such controlling person, such notification being given to the Distributor at
its principal business office.
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Section 7. Compliance with Securities
Laws.
The Trust
represents that it is registered as an open-end management investment Trust
under the 1940 Act, and agrees that it will comply with all of the provisions of
the 1940 Act and of the rules and regulations thereunder. The Trust and the
Distributor each agree to comply with all of the applicable terms and provisions
of the 1940 Act, the 1933 Act and, subject to the provisions of Section 3(d)
hereof, all applicable state “Blue Sky” laws, including but not limited to the
broker-dealer registration requirements. The Distributor agrees to comply with
all of the applicable terms and provisions of the Securities Exchange Act of
1934, as amended, including but not limited to the broker-dealer registration
requirements.
Section 8. Term of Agreement;
Termination.
This
Agreement shall commence on the date first set forth above. This Agreement shall
continue in effect for a period more than two years from the date hereof only so
long as such continuance is specifically approved at least annually in
conformity with the requirements of the 1940 Act.
This Agreement shall terminate
automatically in the event of its assignment (as defined by the 1940 Act). In
addition, this Agreement may be terminated with respect to the Trust or a Fund
by vote of a majority of the Trust’s Trustees who are not “interested persons”
(as defined in the 1940 Act), or with respect to the Trust or a Fund by vote of
a majority of the outstanding voting securities of the Trust or the Fund, as the
case may be, or by the Distributor, without penalty, upon sixty days’ written
notice.
Section 9. Notices.
Any
notice required to be given pursuant to this Agreement shall be deemed duly
given if delivered or mailed by registered mail, postage prepaid, (1) to the
Distributor at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention: Secretary; or
(2) to the Trust at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention:
President.
Section
10. Governing
Law.
This
Agreement shall be governed and construed in accordance with the laws of the
State of New York.
Section
11. Use of
Name.
It is
understood that the name “New York Life” or any derivative thereof or logo
associated with that name is the valuable property of New York Life Insurance
Company and its affiliates, and that the Trust has the right to use such name or
derivative or logo only with the approval of New York Life Insurance Company.
Upon notification by New York Life Insurance Trust to cease to use such name,
the Trust (to the extent that it lawfully can) will cease to use such name or
any other name indicating that the Trust is advised or administered by or
otherwise connected with New York Life Insurance Company or any organization
which shall have succeeded to its business.
* * *
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
By:
________________________
Name:
______________________
Title:
_______________________
NYLIFE
DISTRIBUTORS LLC
By:
________________________
Name:
______________________
Title:
_______________________
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