Xxxxxxx Xx. 0
XXXXXXXXXXX/XXXXXX, XXXXXXX
XXXXXXXXX MONEY MARKET SERIES
DISTRIBUTION CONTRACT
CONTRACT made as of January 30, 1995, between PAINEWEBBER/XXXXXX, PEABODY
MUNICIPAL MONEY MARKET SERIES, a Massachusetts business trust ("Fund"), and
PAINEWEBBER INCORPORATED, a Delaware corporation ("PaineWebber").
WHEREAS the Fund is registered under the Investment Company Act of l940, as
amended ("l940 Act"), as an open-end management investment company and currently
has three distinct series of shares of beneficial interest each of which is set
forth on Exhibit A hereto, as such Exhibit may be revised from time to time
("Series"); and
WHEREAS the Fund's board of trustees ("Board") has established an unlimited
number of shares of beneficial interest of the Series as shares ("Shares"); and
WHEREAS PaineWebber is willing to act as principal distributor for each
such Series 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. APPOINTMENT. The Fund hereby appoints PaineWebber as its exclusive
agent to be the principal distributor to sell and to arrange for the sale of the
Shares on the terms and for the period set forth in this Contract. PaineWebber
hereby accepts such appointment and agrees to act hereunder. It is understood,
however, that this appointment does not preclude sales of the Shares directly
through the Fund's transfer agent in the manner set forth in the Registration
Statement. As used in this Contract, the term "Registration Statement" shall
mean the currently effective registration statement of the Fund, and any
supplements thereto, under the Securities Act of 1933, as amended ("1933 Act"),
and the 1940 Act.
2. SERVICES AND DUTIES OF PAINEWEBBER.
(a) Upon the later of the date of this Contract or the initial offering of
the Shares to the public by a Series, PaineWebber will hold itself available to
receive purchase orders, satisfactory to PaineWebber, for Shares of that Series
and will accept such orders on behalf of the Fund as of the time of receipt of
such orders and promptly transmit such orders as are accepted to the Fund's
transfer agent. Purchase orders shall be deemed effective at the time and in
the manner set forth in the Registration Statement.
(b) PaineWebber in its discretion may enter into agreements to sell Shares
to such registered and qualified retail dealers, including but not limited to
Xxxxxxxx Xxxxxxxx Asset Management Inc. ("Xxxxxxxx Xxxxxxxx"), as it may select.
In making agreements with such dealers, PaineWebber shall act only as principal
and not as agent for the Fund.
(c) The offering price of the Shares shall be the net asset value per
Share as next determined by the Fund following receipt of an order at
PaineWebber's principal office. The Fund shall promptly furnish PaineWebber
with a statement of each computation of net asset value.
(d) PaineWebber shall not be obligated to sell any certain number of
Shares.
(e) To facilitate redemption of Shares by shareholders directly or through
dealers, PaineWebber is authorized but not required on behalf of the Fund to
repurchase Shares presented to it by shareholders and dealers at the price
determined in accordance with, and in the manner set forth in, the Registration
Statement.
(f) PaineWebber shall provide ongoing shareholder services, which include
responding to shareholder inquiries, providing shareholders with information on
their investments in the Shares and any other services now or hereafter deemed
to be appropriate subjects for the payments of "service fees" under Section
26(d) of the National Association of Securities Dealers, Inc. ("NASD") Rules of
Fair Practice (collectively, "service activities").
(g) PaineWebber shall have the right to use any list of shareholders of
the Fund or any other list of investors which it obtains in connection with its
provision of services under this Contract; provided, however, that PaineWebber
shall not sell or knowingly provide such list or lists to any unaffiliated
person.
3. AUTHORIZATION TO ENTER INTO EXCLUSIVE DEALER AGREEMENTS AND TO
DELEGATE DUTIES AS DISTRIBUTOR. With respect to the Shares of any or all
Series, PaineWebber may enter into an exclusive dealer agreement with Xxxxxxxx
Xxxxxxxx or any other registered and qualified dealer with respect to sales of
the Shares or the provision of service activities. In a separate contract or as
part of any such exclusive dealer agreement, PaineWebber also may delegate to
Xxxxxxxx Xxxxxxxx or another registered and qualified dealer ("sub-distributor")
any or all of its duties specified in this Contract, provided that such separate
contract or exclusive dealer agreement imposes on the sub-distributor bound
thereby all applicable duties and conditions to which PaineWebber is subject
under this Contract, and further provided that such separate contract or
exclusive dealer agreement meets all requirements of the 1940 Act and rules
thereunder.
4. SERVICES NOT EXCLUSIVE. The services furnished by PaineWebber
hereunder are not to be deemed exclusive and PaineWebber shall be free to
furnish similar services to others so long as its services under this Contract
are not impaired thereby. Nothing in this Contract shall limit or restrict the
right of any trustee, officer or employee of PaineWebber, who may also be a
director, officer or employee of the Fund, to engage in any other business or to
devote his or her time and attention in part to the management or other aspects
of any other business, whether of a similar or a dissimilar nature.
5. COMPENSATION.
(a) As compensation for its service activities under this contract
with respect to the Shares, PaineWebber shall receive from the Fund a service
fee at the rate and under the
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terms and conditions of the Plan adopted by the Fund, as such Plan is amended
from time to time, and subject to any further limitations on such fee as the
board of trustees ("Board") may impose.
(b) PaineWebber may reallow any or all of the service fees which it
is paid under this Contract to such dealers as PaineWebber may from time to time
determine.
6. DUTIES OF THE FUND.
(a) The Fund reserves the right at any time to withdraw offering
Shares of any or all Series by written notice to PaineWebber at its principal
office.
(b) The Fund shall determine in its sole discretion whether
certificates shall be issued with respect to the Shares. If the Fund has
determined that certificates shall be issued, the Fund will not cause
certificates representing Shares to be issued unless so requested by
shareholders. If such request is transmitted by PaineWebber, the Fund will
cause certificates evidencing Shares to be issued in such names and
denominations as PaineWebber shall from time to time direct.
(c) The Fund shall keep PaineWebber fully informed of its affairs and
shall make available to PaineWebber copies of all information, financial
statements, and other papers which PaineWebber may reasonably request for use in
connection with the distribution of Shares, including, without limitation,
certified copies of any financial statements prepared for the Fund by its
independent public accountant and such reasonable number of copies of the most
current prospectus, statement of additional information, and annual and interim
reports of any Series as PaineWebber may request, and the Fund shall cooperate
fully in the efforts of PaineWebber to sell and arrange for the sale of the
Shares of the Series and in the performance of PaineWebber under this Contract.
(d) The Fund shall take, from time to time, all necessary action,
including payment of the related filing fee, as may be necessary to register the
Shares under the 1933 Act to the end that there will be available for sale such
number of Shares as PaineWebber may be expected to sell. The Fund agrees to
file, from time to time, such amendments, reports, and other documents as may be
necessary in order that there will be no untrue statement of a material fact in
the Registration Statement, nor any omission of a material fact which omission
would make the statements therein misleading.
(e) The Fund shall use its best efforts to qualify and maintain the
qualification of an appropriate number of Shares of each Series for sale under
the securities laws of such states or other jurisdictions as PaineWebber and the
Fund may approve, and, if necessary or appropriate in connection therewith, to
qualify and maintain the qualification of the Fund as a broker or dealer in such
jurisdictions; provided that the Fund shall not be required to execute a general
consent to the service of process in any state. PaineWebber shall furnish such
information and other material relating to its affairs and activities as may be
required by the Fund in connection with such qualifications.
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7. EXPENSES OF THE FUND. The Fund shall bear all costs and expenses of
registering the Shares with the Securities and Exchange Commission and state and
other regulatory bodies, and shall assume expenses related to communications
with shareholders of each Series, including (i) fees and disbursements of its
counsel and independent public accountant; (ii) the preparation, filing and
printing of registration statements and/or prospectuses or statements of
additional information required under the federal securities laws; (iii) the
preparation and mailing of annual and interim reports, prospectuses, statements
of additional information and proxy materials to shareholders; and (iv) the
qualifications of Shares for sale and of the Fund as a broker or dealer under
the securities laws of such jurisdictions as shall be selected by the Fund and
PaineWebber pursuant to Paragraph 6(e) hereof, and the costs and expenses
payable to each such jurisdiction for continuing qualification therein.
8. EXPENSES OF PAINEWEBBER. PaineWebber shall bear all costs and
expenses of (i) preparing, printing and distributing any materials not prepared
by the Fund and other materials used by PaineWebber in connection with the sale
of Shares under this Contract, including the additional cost of printing copies
of prospectuses, statements of additional information, and annual and interim
shareholder reports other than copies thereof required for distribution to
existing shareholders or for filing with any federal or state securities
authorities; (ii) any expenses of advertising incurred by PaineWebber in
connection with such offering; (iii) the expenses of registration or
qualification of PaineWebber as a broker or dealer under federal or state laws
and the expenses of continuing such registration or qualification; and (iv) all
compensation paid to PaineWebber's employees and others for selling Shares, and
all expenses of PaineWebber, its employees and others who engage in or support
the sale of Shares as may be incurred in connection with their sales efforts.
9. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold PaineWebber, its
officers and trustees, and any person who controls PaineWebber 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 PaineWebber, 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 untrue statement, or alleged
untrue statement, of a material fact contained in the Registration Statement or
any related prospectus ("Prospectus") or arising out of or based upon any
omission, or alleged omission, to state a material fact required to be stated in
the Registration Statement or Prospectus or necessary to make the statements
therein 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 PaineWebber to the Fund for use in the
Registration Statement or Prospectus; provided, however, that this indemnity
agreement shall not inure to the benefit of any person who is also an officer or
trustee of the Fund or who controls the Fund within the meaning of Section 15 of
the 1933 Act, 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
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PaineWebber against any liability to the Fund or to the shareholders of any
Series to which PaineWebber 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 Contract. The
Fund shall not be liable to PaineWebber under this indemnity agreement with
respect to any claim made against PaineWebber or any person indemnified unless
PaineWebber or other such person shall have notified the Fund in writing of the
claim within a reasonable time after the summons or other first written
notification giving information of the nature of the claim shall have been
served upon PaineWebber or such other person (or after PaineWebber or the person
shall have received notice of service on any designated agent). However,
failure to notify the Fund of any claim shall not relieve the Fund from any
liability which it may have to PaineWebber or any person against whom such
action is brought otherwise than on account of this indemnity agreement. The
Fund shall be entitled to participate at its own expense in the defense or, if
it so elects, to assume the defense of any suit brought to enforce any claims
subject to this indemnity agreement. If the Fund elects to assume the defense
of any such claim, the defense shall be conducted by counsel chosen by the Fund
and satisfactory to the indemnified defendants in the suit. In the event that
the Fund elects to assume the defense of any suit and retain counsel, the
indemnified defendants shall bear the fees and expenses of any additional
counsel retained by them. If the Fund does not elect to assume the defense of a
suit, it will reimburse the indemnified defendants for the reasonable fees and
expenses of any counsel retained by the indemnified defendants. The Fund agrees
to notify PaineWebber promptly of the commencement of any litigation or
proceedings against it or any of its officers or trustees in connection with the
issuance or sale of any of its Shares.
(b) The Fund's indemnification agreement contained in this Section 9
will remain operative and in full force and effect regardless of any
investigation made by or on behalf of PaineWebber, its officers and trustees, or
any controlling person, and will survive the delivery of any shares of the Fund.
(c) PaineWebber agrees to indemnify, defend, and hold the Fund, its
officers and trustees and any person who controls the Fund 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 Fund, its trustees or officers, 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 PaineWebber to
the Fund for use in the Registration Statement, 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 necessary to
make such information not misleading. PaineWebber shall have the right to
control the defense of any action contemplated by this Section 9(c), with
counsel of its own choosing, satisfactory to the Fund, unless the action is not
based solely upon an alleged misstatement or omission on PaineWebber's part. In
such event, the Fund, its officers or trustees or controlling persons will each
have the right to participate in the defense or preparation of the defense of
the action. In the event that PaineWebber elects to assume the defense of any
suit and retain counsel, the defendants in the suit shall bear the fees and
expenses of any additional counsel retained by them. If PaineWebber does not
elect to assume the defense of any suit, it will reimburse the
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indemnified defendants in the suit for the reasonable fees and expenses of any
counsel retained by them.
(d) PaineWebber shall not be liable to the Fund under this indemnity
agreement with respect to any claim made against the Fund or any person
indemnified unless the Fund or other such person shall have notified PaineWebber
in writing of the claim within a reasonable time after the summons or other
first written notification giving information of the nature of the claim shall
have been served upon the Fund or such other person (or after the Fund shall
have received notice of service on any designated agent). PaineWebber will not
be obligated to indemnify any entity or person against any liability to which
the Fund, its officers and trustees, or any controlling person would otherwise
be subject by reason of willful misfeasance, bad faith or gross negligence in
performance of, or reckless disregard of, the obligations and duties set forth
in this Agreement.
10. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS OF THE FUND.
The trustees of the Fund and the shareholders of any Series shall not be liable
for any obligations of the Fund or any Series under this Contract, and
PaineWebber agrees that, in asserting any rights or claims under this Contract,
it shall look only to the assets and property of the Fund or the particular
Series in settlement of such right or claims, and not to such trustees or
shareholders. The Fund represents that a copy of the Declaration of Trust is on
file with the Secretary of the Commonwealth of Massachusetts and with the Boston
City Clerk.
11. SERVICES PROVIDED TO THE FUND BY EMPLOYEES OF PAINEWEBBER. Any
person, even though also an officer, trustee, employee or agent of PaineWebber,
who may be or become an officer, trustee, employee or agent of the Fund, shall
be deemed, when rendering services to the Fund or acting in any business of the
Fund, to be rendering such services to or acting solely for the Fund and not as
an officer, trustee, employee or agent or one under the control or direction of
PaineWebber even though paid by PaineWebber.
12. DURATION AND TERMINATION.
(a) This Contract shall become effective upon the date hereabove
written, provided that, with respect to any Series, this Contract shall not take
effect unless such action has first been approved by vote of a majority of the
Board and by vote of a majority of those trustees of the Fund who are not
interested persons of the Fund, and have no direct or indirect financial
interest in the operation of the Plan relating to the Series or in any
agreements related thereto (all such trustees collectively being referred to
herein as the "Independent Trustees") cast in person at a meeting called for the
purpose of voting on such action.
(b) Unless sooner terminated as provided herein, this Contract shall
continue in effect for one year from the above written date. Thereafter, if not
terminated, this Contract shall continue automatically for successive periods of
twelve months each, provided that such continuance is specifically approved at
least annually (i) by a vote of a majority of the Independent Trustees, cast in
person at a meeting called for the purpose of voting on such approval, and (ii)
by the Board or by vote of a majority of the outstanding voting securities of
the Shares of each affected Series.
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(c) Notwithstanding the foregoing, with respect to any Series, this
Contract may be terminated at any time, without the payment of any penalty, by
vote of the Board, by vote of a majority of the Independent Trustees or by vote
of a majority of the outstanding voting securities of the Shares of such Series
on sixty days' written notice to PaineWebber or by PaineWebber at any time,
without the payment of any penalty, on sixty days' written notice to the Fund or
such Series. This Contract will automatically terminate in the event of its
assignment.
(d) Termination of this Contract with respect to any given Series
shall in no way affect the continued validity of this Contract or the
performance thereunder with respect to any other Series.
13. AMENDMENT OF THIS CONTRACT. No provision of this Contract may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
14. GOVERNING LAW. This Contract shall be construed in accordance with
the laws of the State of Delaware and the 1940 Act, provided, however, that
Section 10 above will be construed in accordance with the laws of the
Commonwealth of Massachusetts. To the extent that the applicable laws of the
State of Delaware or the Commonwealth of Massachusetts conflict with the
applicable provisions of the l940 Act, the latter shall control.
15. NOTICE. Any notice required or permitted to be given by either party
to the other shall be deemed sufficient upon receipt in writing at the other
party's principal offices.
16. MISCELLANEOUS. The captions in this Contract are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect. If any
provision of this Contract shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of this Contract shall not be affected
thereby. This Contract shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors. As used in this Contract,
the terms "majority of the outstanding voting securities," "interested person"
and "assignment" shall have the same meaning as such terms have in the l940 Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Contract to be
executed by their officers designated as of the day and year first above
written.
ATTEST: PAINEWEBBER/XXXXXX, XXXXXXX
MUNICIPAL MONEY MARKET SERIES
/s/ Xxxxx Xxxxx By: /s/ Xxxxxx X. X'Xxxxxxx
--------------------------------- ---------------------------------
ATTEST: PAINEWEBBER INCORPORATED
/s/ Xxxxx Xxxxx By: /s/ X. Xxxxxxxxx
--------------------------------- ---------------------------------
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EXHIBIT A
NAME OF SERIES
PaineWebber/Xxxxxx, Peabody Municipal Money Market New York Series,
PaineWebber/Xxxxxx, Xxxxxxx Municipal Money Market New Jersey Series
PaineWebber/Xxxxxx, Peabody Municipal Money Market Connecticut Series
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