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EX-99.B6-UNDERWRI
UNDERWRITING AGREEMENT
AGREEMENT made as of this 10th day of August, 1992 between XXXXXXX
NATIONAL CAPITAL MANAGEMENT FUNDS, a Massachusetts business trust (hereinafter
called the "Fund"), and XXXXXXX NATIONAL FINANCIAL SERVICES, INC., a Delaware
corporation (hereinafter called the "Underwriter").
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints the Underwriter its agent for the
distribution of shares of beneficial interest (hereinafter called "shares") of
the Fund in jurisdictions wherein shares of the Fund may legally be offered for
sale; provided, however, that the Fund in its absolute discretion may (a)
issue or sell shares directly to holders of shares of the Fund upon such terms
and conditions and for such consideration, if any, as it may determine, whether
in connection with the distribution of subscription or purchase rights, the
payment or reinvestment of dividends or distributions, or otherwise; or (b)
issue or sell shares at net asset value to the shareholders of any other
investment company, for which the underwriter shall act as exclusive
distributor, who wish to exchange all or a portion of their investment in
shares of such other investment company for shares of the Fund.
2. The Underwriter hereby accepts appointment as agent for the
distribution of the shares of the Fund and agrees that it will use its best
efforts with reasonable promptness to sell such part of the authorized shares
of the Fund remaining unissued as from time to time shall be effectively
registered under the Securities Act of 1933 ("Securities Act"), at prices
determined as hereinafter provided and on terms hereinafter set forth, all
subject to applicable Federal and state laws and regulations and to the
Agreement and Declaration of Trust of the Fund.
3. The Fund agrees that it will use its best efforts to keep
effectively registered under the Securities Act for sale as herein contemplated
such shares as the Underwriter shall reasonably request and as the Securities
and Exchange Commission shall permit to be so registered.
4. Notwithstanding any other provision hereof, the Fund may terminate,
suspend or withdraw the offering of shares whenever, in its sole discretion, it
deems such action to be desirable.
5. The Underwriter shall sell shares of the Fund to or through
qualified dealers or others insuch manner, not inconsistent with the provisions
hereof and the then effective registration statement of the Fund under the
Securities Act (and related prospectus), as the Underwriter may determine from
time to time, provided that no dealer or other person shall be appointed or
authorized to act as agent of the Fund without the
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prior consent of the Fund. It is mutually agreed that, in
addition to sales made by it as agent of the Fund, the Underwriter may, in its
discretion, also sell shares of the Fund as principal to persons with whom it
does not have dealer selling group agreements.
6. Shares of the Fund offered for sale or sold by the Underwriter
shall be so offered or sold at a price per share determined in accordance with
the then current prospectus relating to the sale of such shares except as
departure from such prices shall be permitted by the rules and regulations of
the Securities and Exchange Commission; provided however, that any public
offering price for shares of the Fund shall be the net asset value per share
plus a distribution charge in the amount set forth in the then current
prospectus of the Fund relating to such shares. The net asset value per share
shall be determined in the manner and at the times set forth in the then
current prospectus of the Fund relating to such shares.
7. The price the Fund shall receive for all shares purchased from the
Fund shall be the net asset value used in determining the public offering price
applicable to the sale of such shares. The excess, if any, of the sales price
over the net asset value of the shares of the Fund sold by the Underwriter as
agent shall be retained by the Underwriter as a commission for its services
hereunder. Out of such commission the Underwriter may allow commissions or
concessions to dealers and may allow them to other in its discretion in such
amounts as the Underwriter shall determine from time to time. Except as may be
otherwise determined by the Underwriter and the Fund from time to time, such
commissions or concessions shall be uniform to all dealers.
8. The Underwriter shall issue and deliver on behalf of the Fund such
confirmations of sales made by it as agent pursuant to this agreement as may be
required. At or prior to the time of issuance of shares, the Underwriter will
pay or cause to be paid to the Fund the amount due the Fund for the sale of
such shares. Shares shall be registered on the transfer books of the Fund in
such names and denominations as the Underwriter may specify.
9. The Fund will execute any and all documents and furnish any and all
information which may be reasonably necessary in connection with the
qualification of its shares for sale (including the qualification of the Fund
as a dealer where necessary or advisable) in such states as the Underwriter may
reasonably request (it being understood that the Fund shall not be required
without its consent to comply with any requirement which in its opinion is
unduly burdensome).
10. The Fund will furnish to the Underwriter from time to time such
information with respect to the Fund and its shares as the Underwriter may
reasonably request for use in connection with the sale of shares of the Fund.
The Underwriter agrees that it will not use or distribute or authorize the use,
distribution or dissemination by its dealers or others in connection with the
sale of such shares any statements, other than those contained in the Fund's
current prospectus, except such supplemental literature or
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advertising as shall be lawful under Federal and state securities laws and
regulations, and that it will furnish the Fund with copies of all such material.
11. The Underwriter shall order shares of the Fund from the Fund only to
the extent that it shall have received purchase orders therefor. The
Underwriter will not make, or authorize any dealers or others to make: (a) any
short sales of shares of the Fund; or (b) any sales of such shares to any
trustee or officer of the Fund or to any officer or director of the Underwriter
or of any corporation or association furnishing investment advisory, managerial
or supervisory services to the Fund, or to any such corporation or association,
unless such sales are made in accordance with the then current prospectus
relating to the sale of such shares.
12. The Underwriter, as agent of and for the account of the Fund, may
repurchase the shares of the Fund at such prices and upon such terms and
conditions as shall be specified in the current prospectus of the Fund.
13. In selling or reacquiring shares of the Fund for the account of the
Fund, the Underwriter will in all respects conform to the requirements of all
state and Federal laws and the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., relating to such sale or
reacquisition, as the case may be, and will indemnify and save harmless the
Fund from any damage or expense on account of any wrongful act by the
Underwriter or any employee, representative or agent of the Underwriter. The
Underwriter will observe and be bound by all the provisions of the Agreement
and Declaration of Trust of the Fund (and of any fundamental policies adopted
by the Fund pursuant to the Investment Company Act of 1940, notice of which
shall have been given to the Underwriter) which at the time in any way require,
limit, restrict or prohibit or otherwise regulate any action on the part of the
Underwriter.
14. The Underwriter will require each dealer to conform to the
provisions hereof and the Registration Statement (and related prospectus) at
the time in effect under the Securities Act with respect to the public offering
price of the Fund's shares, and neither the Underwriter nor any such dealers
shall withhold the placing of purchase orders so as to make a profit thereby.
15. The Fund shall assume and pay all charges and expenses of its
operations not specifically assumed or otherwise to be provided by the
Underwriter under this Agreement. The Fund will pay or cause to be paid
expenses (including the fees and disbursements of its own counsel) of any
registration of the Fund and its shares under the United States securities laws
and expenses incident to the issuance of shares of beneficial interest, such as
issue taxes and fees of the transfer agent. The Underwriter will pay all
expenses (other than expenses which one or more Firms may bear pursuant to any
agreement with the Underwriter) incident to the sale and distribution of the
shares issued or sold hereunder, including, without limiting the generality of
the foregoing, all (a) expenses of printing and distributing any prospectus and
of preparing, printing and distributing or disseminating any other literature,
advertising and selling aids in connection with the offering of the shares for
sale (except that such expenses need not include expenses incurred by the Fund
in connection with the preparation, typesetting, printing and distribution of
any registration statement, prospectus or report or other communication to
shareholders in their capacity as such), (b) expenses of advertising in
connection with such offering and (c) expenses (other than the Fund's auditing
expenses) of qualifying or continuing the qualification for the shares for sale
and, in connection therewith, of qualifying or continuing the qualification of
the fund as a dealer or broker under the laws of such states as may be
designated by the Underwriter under the
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condition wherein specified. No transfer taxes, if any, which may be payable
in connection with the issue or delivery of shares sold as herein contemplated
or of the certificates for such shares shall be borne by the Fund, and the
Underwriter will indemnify and hold harmless the Fund against liability for all
such transfer taxes.
16. This agreement shall become effective on the date hereof and shall
continue in effect until February 28, 1994 and from year to year thereafter,
but only so long as such continuance is approved in the manner required by the
Investment Company Act of 1940. Either party hereto may terminate this
agreement on any date by giving the other party at least six months prior
written notice of such termination specifying the date fixed therefor. Without
prejudice to any other remedies of the fund in any such event the Fund may
terminate this agreement at any time immediately upon any failure of
fulfillment of any of the obligations of the Underwriter hereunder.
17. This agreement shall automatically terminate in the event of its
assignment.
18. Any notice under this agreement shall be in writing, addressed and
delivered or mailed, postage postpaid, to the other party at such address as
such other party may designate for the receipt of such notice.
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19. All parties hereto are expressly put on notice of the Fund's
Agreement and Declaration of Trust and all amendments hereto, all of which are
on file with the Secretary of The Commonwealth of Massachusetts, and the
limitation of shareholder and trustees liability contained therein. This
Agreement has been executed by and on behalf of the Fund by its representatives
as such representatives and not individually, and the obligations of the Fund
hereunder are not binding upon any of the Trustees, officers or shareholders of
the fund individually but are binding upon only the assets and the property of
the Fund. With respect to any claim by the Underwriter for recovery of any
liability of the fund arising hereunder allocated to a particular series of the
Fund, whether in accordance with the express terms hereof or otherwise, the
Underwriter shall have recourse solely against the assets of that series to
satisfy such claim and shall have no recourse against the assets of any other
Portfolio for such purpose.
IN WITNESS WHEREOF, the Fund and the Underwriter have caused this
Agreement to be executed as of the day and year first above written.
XXXXXXX NATIONAL CAPITAL
MANAGEMENT FUNDS
By: /s/ Xxxxx X. Xxxxxx
Title: Treasurer
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx
Title: Associate General Counsel
XXXXXXX NATIONAL FINANCIAL
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxx
Title: Chief Legal Officer
ATTEST:
/s/ Xxxxxx X. Xxxxxxxxxx
Title: Associate General Counsel
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