Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares each Fund agrees: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed. (ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees. (iii) Notwithstanding anything to the contrary set forth in this Agreement of (to the extent waiver thereof is permitted thereby) applicable law, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreement) except to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29, 1997, or in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan. (iv) The Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs. (v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fund, nor the termination of this Agreement nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund. (vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred in connection with such Transfer). The Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee. (vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A. (viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Pilgrim Equity Trust), Underwriting Agreement (Pilgrim Equity Trust)
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each the Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the TrustFund's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares each the Fund agrees:
(I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of (to the extent waiver thereof is permitted thereby) applicable law, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreement) except to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29, 1997, or in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fundthe Fund, nor the termination of this Agreement nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter other than the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred in connection with such Transfer). The Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund any fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares.
Appears in 2 contracts
Samples: Underwriting Agreement (Pilgrim Smallcap Opportunities Fund), Underwriting Agreement (Pilgrim Smallcap Opportunities Fund)
Class B Shares. (i) In consideration of the Underwriter's ’s services as principal underwriter of each Fund's ’s Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's ’s Second Amended and Restated Distribution and Service Plan (the "Class B “Plan"”) in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's ’s direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "“Service Fee"”) equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (B) the Underwriter's "’s “Allocable Portion" ” (as hereinafter defined) of a fee (the "“Distribution Fee"”) equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the such Fund the Underwriter's ’s Allocable Portion of the Contingent Deferred Sales Charges ("“CDSCs"”) payable in respect of such redemption as provided in the current Prospectus of the such Fund and to pay the same over to the Underwriter or, at the Underwriter's ’s direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund Funds upon the settlement date of each sale of a "“Commission Share" ” (as defined in the Allocation Schedule attached hereto as Schedule AB) of the Fund Funds taken into account in determining the Underwriter's ’s Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's ’s obligation to pay the Underwriter's ’s Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASDFINRA, in each case enacted or promulgated after December 29Xxxxx 00, 19970000, (x) on a basis which does not alter the Underwriter’s Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "“Complete Termination" ” (as hereinafter defined) of the Class B Plan.
(iv) The Fund Funds will not take any action to waive or change any CDSC in respect of the Class B shares of the Fundshares, except as provided in the each Fund's ’s current Prospectus or statement of additional information as in effect as forming a part of that Fund’s initial Registration Statement on the date hereofsuch Fund’s initial Registration Statement was declared effective by the SEC, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's ’s role as principal distributor of the Class B shares of any funda Fund, nor the termination of this Agreement with respect to a Fund, nor the termination of the Class B Plan with respect to a Fund will terminate the Underwriter's ’s right to its Allocable Portion of the CDSCs in respect of the Class B shares of the each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "“Transfer"”) its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund Funds under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the a Fund and in connection therewith, upon receipt of notice of such Transfer, the a Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "“Transferees"”) such portion of the Underwriter's ’s Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the a Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the a Fund's ’s obligation to pay the Underwriter's ’s Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter (it being understood that such provision is not a waiver of the Funds’ right to pursue the Underwriter and enforce claims against the assets of the Underwriter other than the Underwriter's ’s right to the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund, which have been so transferred in connection with such Transfer). The Fund agrees Funds agree that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "“Allocable Portion" ” of Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.Underwriter.
(viii) For purposes of this Agreement, the term "“Complete Termination" ” of the Plan in respect of the a Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the FundFunds, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund Funds and any successor fund or the Fund Funds acquiring a substantial portion of the assets of the Fund Funds and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund Funds taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the Independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Funds and the shareholders of the Funds, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Funds, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
(ix) The Underwriter may reallow any or all of the Distribution and Service Fees and CDSCs which it is paid under the Agreement to such dealers as the Underwriter may from time to time determine.
(x) The Underwriter may fix quantity discounts and other similar variances or waivers of the CDSCs not inconsistent with the provisions of the 1940 Act; provided however, that the Underwriter shall not impose any commission, permit any quantity discount, or impose any other similar waiver or variance in connection with the sale of Class B shares except as disclosed in each Fund’s current Prospectus.
Appears in 2 contracts
Samples: Underwriting Agreement (Voya EQUITY TRUST), Underwriting Agreement (Voya EQUITY TRUST)
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares each The Fund agrees:
(I) to shall pay to the Underwriter orDistributor, or at the Underwriter's its direction, to a third party, monthly as compensation for acting as principal distributor in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value respect of the Class B shares Shares of the Fund outstanding from time to time, and (B) the Underwriter's each Portfolio its "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to Fee")computed at the rate of 0.75% of 1% per annum of the such Portfolio's average daily net asset value assets attributable to Class B Shares, which Distribution Fee will accrue daily and be payable monthly.
(ii) The Fund shall pay to the Distributor, or at its direction, as compensation for providing shareholder services to the holders of Class B Shares of each Portfolio its allocable portion of a fee (the "Service Fee") computed at the rate of 0.25% per annum of such Portfolio's average daily net assets attributable to Class B Shares, which Service Fee will accrue daily and be payable monthly.
(iii) The Distributor may allow all or any portion of the Service Fee to securities dealers in consideration of the provision by such securities dealers of shareholder services to particular Class B shares Shares.
(iv) If, in lieu of allowing a portion of the Fund outstanding from time Service Fee relating to timea particular Class B Share to a securities dealer in consideration of such securities dealer providing shareholder services to such Class B Share for the twelve month period following the issuance thereof, and (II) the Distributor makes a payment to withhold from redemption proceeds such securities dealer on the settlement date for the issuance of such Class B Share in consideration of such security dealer's commitment to provide such services for such twelve month period without further compensation, the Distributor will be deemed to have earned the Service Fee which accrues in respect of such Class B shares Share during such twelve month period (the "Earned Service Fee") upon making such payment to such securities dealer; and, in such case, all of the Fund provisions of Section 3(b) (v) through (x) hereof shall apply to such Earned Service Fee, in the same manner as they apply to the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges Distribution Fee, and for this purpose references in Section 3 ("CDSCs"b) payable (v) through (x) hereof to Distribution Fees shall be deemed to include a reference to Earned Service Fees and references in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over section to the Underwriter or, at the Underwriter's direction, financing of distribution services shall be deemed to include a third party, at the time the redemption proceeds in respect reference to financing of such redemption are payable to the holder of the Class B shares redeemedshareholder services.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iiiv) Notwithstanding anything to the contrary set forth in this Distribution Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the FundPortfolio's obligation to pay the UnderwriterDistributor's Allocable Portion of the Distribution Fees payable in respect to of the Class B shares Shares of the Fund any Portfolio shall not be terminated or modified in any manner (including, without limitation, by change in the auto-conversion arrangements relating to Class B Shares for which the "Date or Original Issuance" (as defined below) occurs prior to such action) for any reason (including a termination of this Agreement) Distribution Agreement as it relates to Class B Shares), except to the extent required by a change in the Investment Company Act of 1940 (the "Act, the rules thereunder ") or the Conduct Rules of the NASDNational Association of Securities Dealers, in each case enacted or promulgated after December 29, 1997, Inc. or in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(ivvi) The Fund or the Portfolio will not take any action to waive or change in any manner (including, without limitation, by change in the auto-conversion arrangements relating to Class B Shares for which the "Date or Original Issuance" (as defined below) occurs prior to such action) any CDSC in respect of the any Class B shares Shares of any Portfolio for which the FundDate of Original Issuance occurs prior to such action, except as provided in the FundPortfolio's Prospectus prospectus or statement of additional information as in effect as of the date hereofof this Distribution Agreement, without the consent of the Underwriter Distributor and the permitted assigns its Transferees (as hereinafter defined) of all or any portion of its rights right to its Allocable Portion of the CDSCs.
(vvii) Notwithstanding anything to the contrary set forth in this Distribution Agreement, neither the termination of the UnderwriterDistributor's role as principal distributor of the Class B shares Shares of any funda Portfolio, nor the termination of this Distribution Agreement nor the termination of the Class B Plan will terminate the Underwritersuch Distributor's right to its Allocable Portion of the CDSCs in respect of the Class B shares Shares of the Fundany Portfolio.
(viviii) Notwithstanding anything to the contrary in this Distribution Agreement, the Underwriter Distributor may assign, sell or pledge (collectively, a "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs earned by it (but not its obligations to the Fund or the Portfolio under this Distribution Agreement) in respect of the Class B Shares to raise funds to make the expenditures related to the distribution of Class B shares of the Fund Shares and in connection therewith, therewith upon receipt of notice of such Transfer, the Fund on behalf of each Portfolio shall pay, or cause to be paid, paid to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the UnderwriterDistributor's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares Shares of the Fund such Portfolio so Transferredtransferred. Except as provided in (iiiSection 3(v) above and notwithstanding anything to the contrary set forth elsewhere in this Distribution Agreement, to the extent the Underwriter Distributor has Transferred made a Transfer of its rights thereto to raise funds as aforesaid, the Fund's obligation to pay the UnderwriterDistributor's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund Shares shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, including without limitation, any of the foregoing based on the insolvency or bankruptcy of the UnderwriterDistributor (it being understood that such provision is not a waiver of the Fund's or the Portfolio's right to pursue such Distributor and enforce such claims against the assets of the Distributor other than the Distributor's right to the Distribution Fees and CDSCs, in respect of the Class B Shares of the Portfolio or any other company, portfolio, fund or trust, Distribution Fees and CDSCs in respect of the Class B shares Shares of the Fund, which have been so transferred in connection with such Transfer). The Fund agrees agrees, on behalf of each Portfolio, that each such Transferee is a third party beneficiary of the provisions of this clause (viviii) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(viiix) For purposes of the this Distribution Agreement, the term "Allocable Portion" Portion of Distribution Fees and CDSCs payable in respect of the Class B shares Shares of the Fund any Portfolio shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter such Distributor in accordance with the Allocation Schedule attached hereto as Schedule A.A and the term "Date of Original Issuance" shall have the meaning defined in such Allocation Schedule.
(viiix) For purposes of this Distribution Agreement, the term "Complete Termination" of the Plan in respect of the Fund any Portfolio means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares Shares of the FundPortfolio, and the termination of the Class B Plan distribution plans and the complete cessation of the payment of distribution fees pursuant to any every other distribution Distribution Plan pursuant to Rule 12b-1 under of the 1940 Act in respect of the Class B shares Shares of the Fund Portfolio, any other Portfolio and any successor company, portfolio, fund or the Fund trust, or any company, portfolio, fund or trust acquiring a substantial portion of the assets of the Fund Portfolio or any other Portfolio and for every future class Class of shares of the Portfolio or any other such company, portfolio, fund or trust which has substantially similar characteristics to the Class B shares Shares of the Fund taking into account Portfolio including the manner of payment and amount of sales charge, CDSC contingent deferred sales charge or other similar charges borne directly or indirectly by the holders of such shares.
Appears in 1 contract
Class B Shares. (i) In consideration Pursuant to Section 2(b) and 3(a) of the UnderwriterSenior Manager Amended and Restated Restricted Stock Agreement dated as of April 1, 2006 by and between Executive and Holdings (the "RSA"), the vesting of Executive's services Restricted Class B stock has terminated, and Holdings may now, or at such later date, as principal underwriter of each Fundthe case may be, exercise the following rights:
(A) With respect to Executive's 10,753.69 Class B shares that have vested as of the Separation Date, Holdings shall not exercise its rights (the "Class B Call Right") pursuant to this Agreement Section 3(a) of the RSA to repurchase such shares until the Threshold Date. After the Threshold Date, Holdings' exercise of such Class B Call Right shall be in its sole discretion and in accordance with the applicable provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares each Fund agrees:RSA.
(IB) to pay to For the Underwriter orportion, at the Underwriterif any, of Executive's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the 3,046.88 Class B shares that may become Vested Shares pursuant to Section 2(b) of the Fund outstanding from time RSA if Holdings meets the performance requirements for fiscal year 2006 as set forth in Section 2(a)(i)(A) of the RSA (it being expressly acknowledged and agreed that notwithstanding any language in said Section 2(b) to timethe contrary, a portion of said Class B shares will become vested shares in accordance with said Section 2(a)(i)(A) of the RSA in any case in which less than, but at least 90% of, the Target EBITDA is met for fiscal year 2006), Holdings may, in its sole discretion, exercise its right to repurchase any such vested shares on a date that is no earlier than 180 days after such shares become vested. For the portion, if any, of these shares that do not vest pursuant to the performance requirements for 2006, then Holdings will repurchase these unvested shares at Executive's original purchase price of one penny per share within thirty (30) days of the Measurement Date in 2000.
(C) For all Class B shares that have vested or that do vest pursuant to Section 6(b)(i)(A) and (B) above, Executive and Simmons agree that, notwithstanding any terms previously agreed to by xxx xxrties, such vested shares will be repurchased by Holdings at the Underwriter's "Allocable Portion" then current Fair Market Value (as hereinafter defineddefined in the RSA) at the time of a fee such repurchase as determined by the Board of Directors of Simmons.
(the "Distribution Fee"D) equal Holdings hereby exercises its right to 0.75% of 1% per annum repxxxxxxx 43,552.43 of the average daily net asset value of the Executive's unvested Class B shares at Executive's original purchase price of one penny per share, or $435.52, which amount will be paid within thirty (00) days of the Fund outstanding from time Effective Date of this Separation Agreement. These shares shall be deemed repurchased upon payment by Simmons to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemedExecutive.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion In the event of any exercise by Holdings xx xxx Class B Call Right, then upon the Board of Directors' determination of the Distribution Fee payable in respect of the Class B shares of the Fund upon the settlement date of each sale of a "Commission Share" current Fair Market Value (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of (to the extent waiver thereof is permitted thereby) applicable law, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreement) except to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29, 1997, or in connection with a "Complete Termination" (as hereinafter definedRSA) of the Class B Plan.
shares, Holdings agrees to provide Executive an affidavit signed by the Executive Vice President and Chief Financial Officer of Holdings which (ivi) The Fund will not take any action to waive or change any CDSC in respect identifies the ranges of the stock value for the Class B shares stock as determined by the outside third party who does such valuations on behalf of Holdings and (ii) states that the Board determination of the Fund, except as current Fair Market Value was consistent with past practices in making such determinations. Executive agrees that such information is considered Confidential Information under the terms of the Supplement and represents and warrants that she will not disclose to any third party or use for her own benefit or gain the information provided in the Fund's Prospectus or statement affidavit with the only exception being that this information may be disclosed to her attorneys at Rogers & Hardin LLP who represented her in the negotiation of additional information thxx Xxxaraxxxx Xgreement. Executive further agrees that the obligations of Holdings to make payments pursuant to Sections 6(a) and 6(b) above are subject to there being no Cash Deferral Condition existing (as such term is defined in effect as Section 3(d) of the date hereof, without the consent RSA and Section 3.5(a)(iv) of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCsSH Agreement).
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fund, nor the termination of this Agreement nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred in connection with such Transfer). The Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares.
Appears in 1 contract
Samples: General Release and Separation Agreement (Simmons Co)
Class B Shares. (i) In consideration of the Underwriter's ’s services as principal underwriter of each Fund's ’s Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's ’s Second Amended and Restated Distribution and Service Plan (the "Class B “Plan"”) in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's ’s direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "“Service Fee"”) equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (B) the Underwriter's "’s “Allocable Portion" ” (as hereinafter defined) of a fee (the "“Distribution Fee"”) equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the such Fund the Underwriter's ’s Allocable Portion of the Contingent Deferred Sales Charges ("“CDSCs"”) payable in respect of such redemption as provided in the current Prospectus of the such Fund and to pay the same over to the Underwriter or, at the Underwriter's ’s direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund Funds upon the settlement date of each sale of a "“Commission Share" ” (as defined in the Allocation Schedule attached hereto as Schedule AB) of the Fund Funds taken into account in determining the Underwriter's ’s Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's ’s obligation to pay the Underwriter's ’s Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29Xxxxx 00, 19970000, (x) on a basis which does not alter the Underwriter’s Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "“Complete Termination" ” (as hereinafter defined) of the Class B Plan.
(iv) The Fund Funds will not take any action to waive or change any CDSC in respect of the Class B shares of the Fundshares, except as provided in the each Fund's ’s current Prospectus or statement of additional information as in effect as forming a part of that Fund’s initial Registration Statement on the date hereofsuch Fund’s initial Registration Statement was declared effective by the SEC, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's ’s role as principal distributor of the Class B shares of any funda Fund, nor the termination of this Agreement with respect to a Fund, nor the termination of the Class B Plan with respect to a Fund will terminate the Underwriter's ’s right to its Allocable Portion of the CDSCs in respect of the Class B shares of the each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "“Transfer"”) its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund Funds under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the a Fund and in connection therewith, upon receipt of notice of such Transfer, the a Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "“Transferees"”) such portion of the Underwriter's ’s Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the a Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the a Fund's ’s obligation to pay the Underwriter's ’s Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter (it being understood that such provision is not a waiver of the Funds’ right to pursue the Underwriter and enforce claims against the assets of the Underwriter other than the Underwriter's ’s right to the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund, which have been so transferred in connection with such Transfer). The Fund agrees Funds agree that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "“Allocable Portion" ” of Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.Underwriter.
(viii) For purposes of this Agreement, the term "“Complete Termination" ” of the Plan in respect of the a Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the FundFunds, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund Funds and any successor fund or the Fund Funds acquiring a substantial portion of the assets of the Fund Funds and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund Funds taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the Independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Funds and the shareholders of the Funds, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Funds, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
(ix) The Underwriter may reallow any or all of the Distribution and Service Fees and CDSCs which it is paid under the Agreement to such dealers as the Underwriter may from time to time determine.
(x) The Underwriter may fix quantity discounts and other similar variances or waivers of the CDSCs not inconsistent with the provisions of the 1940 Act; provided however, that the Underwriter shall not impose any commission, permit any quantity discount, or impose any other similar waiver or variance in connection with the sale of Class B shares except as disclosed in each Fund’s current Prospectus.
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Class B Shares. (i) In consideration of the Underwriter's ’s services as principal underwriter of each Fund's ’s Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's ’s Amended and Restated Distribution and Service Plan (the "Class B “Plan"”) in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's ’s direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "“Service Fee"”) equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "’s “Allocable Portion" ” (as hereinafter defined) of a fee (the "“Distribution Fee"”) equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's ’s Allocable Portion of the Contingent Deferred Sales Charges ("“CDSCs"”) payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's ’s direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the each Fund upon the settlement date of each sale of a "“Commission Share" ” (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's ’s Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's ’s obligation to pay the Underwriter's ’s Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29Xxxxx 00, 19970000, (x) on a basis which does not alter the Underwriter’s Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "“Complete Termination" ” (as hereinafter defined) of the Class B Plan.
(iv) The Each Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's ’s Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's ’s role as principal distributor of the Class B shares of any fundFund, nor the termination of this Agreement Agreement, nor the termination of the Class B Plan will terminate the Underwriter's ’s right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "“Transfer"”) its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the any Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the each Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "“Transferees"”) such portion of the Underwriter's ’s Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the each Fund's ’s obligation to pay the Underwriter's ’s Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter's ’s right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred Transferred in connection with such Transfer). The Each Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred Transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" Portion of Distribution Fees and CDSCs payable in respect of the Class B shares of the any Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "“Complete Termination" ” of the Plan in respect of the any Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund any fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Fund and the shareholders of the Fund, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Fund, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund Funds upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund Funds taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29April 30, 19972001, or in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund Funds will not take any action to waive or change any CDSC in respect of the Class B shares of the Fundshares, except as provided in the each Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fundFund, nor the termination of this Agreement Agreement, nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund Funds under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the each Fund and in connection therewith, upon receipt of notice of such Transfer, the each Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the each Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund, which have been so transferred in connection with such Transfer). The Fund agrees Funds agree that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the each Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.Underwriter.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the each Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the FundFunds, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund Funds and any successor fund or the Fund Funds acquiring a substantial portion of the assets of the Fund Funds and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund Funds taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the Independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Funds and the shareholders of the Funds, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Funds, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B "Plan") in respect of such shares each Fund agrees:
(I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the each Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreement) except to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29, 1997, or in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Each Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fund, nor the termination of this Agreement nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the any Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred in connection with such Transfer). The Each Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" Portion of Distribution Fees and CDSCs payable in respect of the Class B shares of the any Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the any Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund any fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund Funds upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund Funds taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29, 1997, or in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fund, nor the termination of this Agreement nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred in connection with such Transfer). The Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares.Conduct
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Second Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the such Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the such Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund Funds upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund Funds taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29Axxxx 00, 19970000, (x) on a basis which does not alter the Underwriter's Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund Funds will not take any action to waive or change any CDSC in respect of the Class B shares of the Fundshares, except as provided in the each Fund's Prospectus or statement of additional information as in effect as forming a part of that Fund's initial Registration Statement on the date hereofsuch Fund's initial Registration Statement was declared effective by the SEC, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any funda Fund, nor the termination of this Agreement with respect to a Fund, nor the termination of the Class B Plan with respect to a Fund will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund Funds under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the a Fund and in connection therewith, upon receipt of notice of such Transfer, the a Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the a Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the a Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter (it being understood that such provision is not a waiver of the Funds' right to pursue the Underwriter and enforce claims against the assets of the Underwriter other than the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund, which have been so transferred in connection with such Transfer). The Fund agrees Funds agree that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.Underwriter.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the a Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the FundFunds, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund Funds and any successor fund or the Fund Funds acquiring a substantial portion of the assets of the Fund Funds and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund Funds taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the Independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Funds and the shareholders of the Funds, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Funds, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each the Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the TrustFund's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares each shares, the Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29April 30, 19972001, (b) on a basis which does not alter thx Xxxxxxxxxxx'x Xxxocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fundthe Fund, nor the termination of this Agreement Agreement, nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter other than the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred in connection with such Transfer). The Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund any fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Fund, including the independent Trustees of the Fund, shall have determined that such termination is in the best interest of the Fund and the shareholders of the Fund, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Fund, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Samples: Underwriting Agreement (Pilgrim Smallcap Opportunities Fund)
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares each The Fund agrees:
(I) to shall pay to the Underwriter orDistributor, or at the Underwriter's its direction, to a third party, monthly as compensation for acting as principal distributor in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value respect of the Class B shares Shares of the Fund outstanding from time to time, and (B) the Underwriter's each Portfolio its "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to computed at the rate of 0.75% of 1% per annum of the such Portfolio's average daily net asset value assets attributable to Class B Shares, which Distribution Fee will accrue daily and be payable monthly.
(ii) The Fund shall pay to the Distributor, or at its direction, as com pensation for providing shareholder services to the holders of Class B Shares of each Portfolio its allocable portion of a fee (the "Service Fee") computed at the rate of 0.25% per annum of such Portfolio's average daily net assets attributable to Class B Shares, which Service Fee will accrue daily and be payable monthly.
(iii) The Distributor may allow all or any portion of the Service Fee to securities dealers in consideration of the provision by such securities dealers of shareholder services to particular Class B shares Shares.
(iv) If, in lieu of allowing a portion of the Fund outstanding from time Service Fee relating to timea particular Class B Share to a securities dealer in consideration of such securities dealer providing shareholder services to such Class B Share for the twelve month period following the issuance thereof, and (II) the Distributor makes a payment to withhold from redemption proceeds such securities dealer on the settlement date for the issuance of such Class B Share in consideration of such security dealer's commitment to provide such services for such twelve month period without further compensation, the Distributor will be deemed to have earned the Service Fee which accrues in respect of such Class B shares Share during such twelve month period (the "Earned Service Fee") upon making such payment to such securities dealer; and, in such case, all of the Fund provisions of Section 3(b) (v) through (x) hereof shall apply to such Earned Service Fee, in the same manner as they apply to the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges Distribution Fee, and for this purpose references in Section 3 ("CDSCs"b) payable (v) through (x) hereof to Distribution Fees shall be deemed to include a reference to Earned Service Fees and references in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over section to the Underwriter or, at the Underwriter's direction, financing of distribution services shall be deemed to include a third party, at the time the redemption proceeds in respect reference to financing of such redemption are payable to the holder of the Class B shares redeemedshareholder services.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iiiv) Notwithstanding anything to the contrary set forth in this Distribution Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the FundPortfolio's obligation to pay the UnderwriterDistributor's Allocable Portion of the Distribution Fees payable in respect to of the Class B shares Shares of the Fund any Portfolio shall not be terminated or modified in any manner (including, without limitation, by change in the auto-conversion arrangements relating to Class B Shares for which the "Date or Original Issuance" (as defined below) occurs prior to such action) for any reason (including a termination of this Agreement) Distribution Agreement as it relates to Class B Shares), except to the extent required by a change in the Investment Company Act of 1940 (the "Act, the rules thereunder ") or the Conduct Rules of the NASDNational Association of Securities Dealers, Inc., in each either case enacted or promulgated after December 29the date of this Amended and Restated Distribution Agreement (i.e., 1997July 31, 1998), or in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(ivvi) The Fund or the Portfolio will not take any action to waive or change in any manner (including, without limitation, by change in the auto-conversion arrangements relating to Class B Shares for which the "Date or Original Issuance" (as defined below) occurs prior to such action) any CDSC in respect of the any Class B shares Shares of any Portfolio for which the FundDate of Original Issuance occurs prior to such action, except as provided in the FundPortfolio's Prospectus prospectus or statement of additional information as in effect as of the date hereofof this Distribution Agreement, without the consent of the Underwriter Distributor and the permitted assigns its Transferees (as hereinafter defined) of all or any portion of its rights right to its Allocable Portion of the CDSCs.
(vvii) Notwithstanding anything to the contrary set forth in this Distribution Agreement, neither the termination of the UnderwriterDistributor's role as principal distributor of the Class B shares Shares of any funda Portfolio, nor the termination of this Distribution Agreement nor the termination of the Class B Plan will terminate the Underwritersuch Distributor's right to its Allocable Portion of the CDSCs in respect of the Class B shares Shares of the Fundany Portfolio.
(viviii) Notwithstanding anything to the contrary in this Distribution Agreement, the Underwriter Distributor may assign, sell or pledge (collectively, a "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs earned by it (but not its obligations to the Fund or the Portfolio under this Distribution Agreement) in respect of the Class B Shares to raise funds to make the expenditures related to the distribution of Class B shares of the Fund Shares and in connection therewith, therewith upon receipt of notice of such Transfer, the Fund on behalf of each Portfolio shall pay, or cause to be paid, paid to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the UnderwriterDistributor's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares Shares of the Fund such Portfolio so Transferredtransferred. Except as provided in (iiiSection 3(v) above and notwithstanding anything to the contrary set forth elsewhere in this Distribution Agreement, to the extent the Underwriter Distributor has Transferred made a Transfer of its rights thereto to raise funds as aforesaid, the Fund's obligation to pay the UnderwriterDistributor's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund Shares shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, including without limitation, any of the foregoing based on the insolvency or bankruptcy of the UnderwriterDistributor (it being understood that such provision is not a waiver of the Fund's or the Portfolio's right to pursue such Distributor and enforce such claims against the assets of the Distributor other than the Distributor's right to the Distribution Fees and CDSCs, in respect of the Class B Shares of the Portfolio or any other company, portfolio, fund or trust, Distribution Fees and CDSCs in respect of the Class B shares Shares of the Fund, which have been so transferred in connection with such Transfer). The Fund agrees agrees, on behalf of each Portfolio, that each such Transferee is a third party beneficiary of the provisions of this clause (viviii) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(viiix) For purposes of the this Distribution Agreement, the term "Allocable Portion" Portion of Distribution Fees and CDSCs payable in respect of the Class B shares Shares of the Fund any Portfolio shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter such Distributor in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, A and the term "Complete TerminationDate of Original Issuance" of shall have the Plan meaning defined in respect of the Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such sharesAllocation Schedule.
Appears in 1 contract
Samples: Distribution Agreement (Principal Preservation Portfolios Inc)
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Second Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the such Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the current Prospectus of the such Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund Funds upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule AB) of the Fund Funds taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29Xxxxx 00, 19970000, (x) on a basis which does not alter the Underwriter's Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund Funds will not take any action to waive or change any CDSC in respect of the Class B shares of the Fundshares, except as provided in the each Fund's current Prospectus or statement of additional information as in effect as forming a part of that Fund's initial Registration Statement on the date hereofsuch Fund's initial Registration Statement was declared effective by the SEC, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any funda Fund, nor the termination of this Agreement with respect to a Fund, nor the termination of the Class B Plan with respect to a Fund will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund Funds under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the a Fund and in connection therewith, upon receipt of notice of such Transfer, the a Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the a Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the a Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter (it being understood that such provision is not a waiver of the Funds' right to pursue the Underwriter and enforce claims against the assets of the Underwriter other than the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund, which have been so transferred in connection with such Transfer). The Fund agrees Funds agree that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.Underwriter.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the a Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the FundFunds, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 12b-l under the 1940 Act in respect of the Class B shares of the Fund Funds and any successor fund or the Fund Funds acquiring a substantial portion of the assets of the Fund Funds and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund Funds taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the Independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Funds and the shareholders of the Funds, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Funds, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the each Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29April 30, 19972001, (b) on a basis which does not alter xxx Xxxxxxxxxxx'x Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such -- termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Each Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fundFund, nor the termination of this Agreement Agreement, nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the any Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the each Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred Transferred in connection with such Transfer). The Each Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred Transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" Portion of Distribution Fees and CDSCs payable in respect of the Class B shares of the any Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the any Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund any fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Fund and the shareholders of the Fund, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Fund, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares each The Fund agrees:
(I) to shall pay to the Underwriter orDistributor, or at the Underwriter's its direction, to a third party, monthly as compensation for acting as principal distributor in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value respect of the Class B shares Shares of the Fund outstanding from time to time, and (B) the Underwriter's "each Portfolio its “Allocable Portion" ” (as hereinafter defined) of a fee (the "“Distribution Fee") equal to Fee”)computed at the rate of 0.75% of 1% per annum of the such Portfolio’s average daily net asset value of the assets attributable to Class B shares of the Fund outstanding from time to timeShares, which Distribution Fee will accrue daily and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") be payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemedmonthly.
(ii) The Underwriter Fund shall pay to the Distributor, or at its direction, as compensation for providing shareholder services to the holders of Class B Shares of each Portfolio its allocable portion of a fee (the “Service Fee”) computed at the rate of 0.25% per annum of such Portfolio’s average daily net assets attributable to Class B Shares, which Service Fee will accrue daily and be payable monthly.
(iii) The Distributor may allow all or any portion of the Service Fee to securities dealers in consideration of the provision by such securities dealers of shareholder services to particular Class B Shares.
(iv) If, in lieu of allowing a portion of the Service Fee relating to a particular Class B Share to a securities dealer in consideration of such securities dealer providing shareholder services to such Class B Share for the twelve month period following the issuance thereof, the Distributor makes a payment to such securities dealer on the settlement date for the issuance of such Class B Share in consideration of such security dealer’s commitment to provide such services for such twelve month period without further compensation, the Distributor will be deemed to have performed earned the Service Fee which accrues in respect of such Class B Share during such twelve month period (the “Earned Service Fee”) upon making such payment to such securities dealer; and, in such case, all services required of the provisions of Section 3(b) (v) through (x) hereof shall apply to be performed such Earned Service Fee, in order the same manner as they apply to be entitled to receive its the Underwriter’s Allocable Portion of the Distribution Fee payable Fee, and for this purpose references in respect Section 3 (b) (v) through (x) hereof to Distribution Fees shall be deemed to include a reference to Earned Service Fees and references in such section to the financing of the Class B shares distribution services shall be deemed to include a reference to financing of the Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Feesshareholder services.
(iiiv) Notwithstanding anything to the contrary set forth in this Distribution Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the Fund's Portfolio’s obligation to pay the Underwriter's Distributor’s Allocable Portion of the Distribution Fees payable in respect to of the Class B shares Shares of the Fund any Portfolio shall not be terminated or modified in any manner (including, without limitation, by change in the auto-conversion arrangements relating to Class B Shares for which the “Date or Original Issuance” (as defined below) occurs prior to such action) for any reason (including a termination of this Agreement) Distribution Agreement as it relates to Class B Shares), except to the extent required by a change in the Investment Company Act of 1940 (the “Act, the rules thereunder ”) or the Conduct Rules of the NASDNational Association of Securities Dealers, in each case enacted or promulgated after December 29, 1997, Inc. or in connection with a "“Complete Termination" ” (as hereinafter defined) of the Class B Plan.
(ivvi) The Fund or the Portfolio will not take any action to waive or change in any manner (including, without limitation, by change in the auto-conversion arrangements relating to Class B Shares for which the “Date or Original Issuance” (as defined below) occurs prior to such action) any CDSC in respect of the any Class B shares Shares of any Portfolio for which the FundDate of Original Issuance occurs prior to such action, except as provided in the Fund's Prospectus Portfolio’s prospectus or statement of additional information as in effect as of the date hereofof this Distribution Agreement, without the consent of the Underwriter Distributor and the permitted assigns its Transferees (as hereinafter defined) of all or any portion of its rights right to its Allocable Portion of the CDSCs.
(vvii) Notwithstanding anything to the contrary set forth in this Distribution Agreement, neither the termination of the Underwriter's Distributor’s role as principal distributor of the Class B shares Shares of any funda Portfolio, nor the termination of this Distribution Agreement nor the termination of the Class B Plan will terminate the Underwriter's such Distributor’s right to its Allocable Portion of the CDSCs in respect of the Class B shares Shares of the Fundany Portfolio.
(viviii) Notwithstanding anything to the contrary in this Distribution Agreement, the Underwriter Distributor may assign, sell or pledge (collectively, "a “Transfer"”) its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs earned by it (but not its obligations to the Fund or the Portfolio under this Distribution Agreement) in respect of the Class B Shares to raise funds to make the expenditures related to the distribution of Class B shares of the Fund Shares and in connection therewith, therewith upon receipt of notice of such Transfer, the Fund on behalf of each Portfolio shall pay, or cause to be paid, paid to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "“Transferees"”) such portion of the Underwriter's Service Fees, Distributor’s Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares Shares of the Fund such Portfolio so Transferredtransferred. Except as provided in (iiiSection 3(v) above and notwithstanding anything to the contrary set forth elsewhere in this Distribution Agreement, to the extent the Underwriter Distributor has Transferred made a Transfer of its rights thereto to raise funds as aforesaid, the Fund's ’s obligation to pay the Underwriter's Distributor’s Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund Shares shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, including without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter's Distributor (it being understood that such provision is not a waiver of the Fund’s or the Portfolio’s right to pursue such Distributor and enforce such claims against the assets of the Distributor other than the Distributor’s right to the Distribution Fees and CDSCs, in respect of the Class B Shares of the Portfolio or any other company, portfolio, fund or trust, Distribution Fees and CDSCs in respect of the Class B shares Shares of the Fund, which have been so transferred in connection with such Transfer). The Fund agrees agrees, on behalf of each Portfolio, that each such Transferee is a third party beneficiary of the provisions of this clause (viviii) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(viiix) For purposes of the this Distribution Agreement, the term "Allocable Portion" Portion of Distribution Fees and CDSCs payable in respect of the Class B shares Shares of the Fund any Portfolio shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter such Distributor in accordance with the Allocation Schedule attached hereto as Schedule A.A and the term “Date of Original Issuance” shall have the meaning defined in such Allocation Schedule.
(viiix) For purposes of this Distribution Agreement, the term "“Complete Termination" ” of the Plan in respect of the Fund any Portfolio means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares Shares of the FundPortfolio, and the termination of the Class B Plan distribution plans and the complete cessation of the payment of distribution fees pursuant to any every other distribution Distribution Plan pursuant to Rule 12b-1 under of the 1940 Act in respect of the Class B shares Shares of the Fund Portfolio, any other Portfolio and any successor company, portfolio, fund or the Fund trust, or any company, portfolio, fund or trust acquiring a substantial portion of the assets of the Fund Portfolio or any other Portfolio and for every future class Class of shares of the Portfolio or any other such company, portfolio, fund or trust which has substantially similar characteristics to the Class B shares Shares of the Fund taking into account Portfolio including the manner of payment and amount of sales charge, CDSC contingent deferred sales charge or other similar charges borne directly or indirectly by the holders of such shares.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's ’s services as principal underwriter of each Fund's ’s Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's ’s Seventh Amended and Restated Distribution and Service Plan (the "Class B “Plan"”) in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's ’s direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "“Service Fee"”) equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (B) the Underwriter's "’s “Allocable Portion" ” (as hereinafter defined) of a fee (the "“Distribution Fee"”) equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the such Fund the Underwriter's ’s Allocable Portion of the Contingent Deferred Sales Charges ("“CDSCs"”) payable in respect of such redemption as provided in the current Prospectus of the such Fund and to pay the same over to the Underwriter or, at the Underwriter's ’s direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund Funds upon the settlement date of each sale of a "“Commission Share" ” (as defined in the Allocation Schedule attached hereto as Schedule AB) of the Fund Funds taken into account in determining the Underwriter's ’s Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's ’s obligation to pay the Underwriter's ’s Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASDFINRA, in each case enacted or promulgated after December 29Xxxxx 00, 19970000, (x) on a basis which does not alter the Underwriter’s Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "“Complete Termination" ” (as hereinafter defined) of the Class B Plan.
(iv) The Fund Funds will not take any action to waive or change any CDSC in respect of the Class B shares of the Fundshares, except as provided in the each Fund's ’s current Prospectus or statement of additional information as in effect as forming a part of that Fund’s initial Registration Statement on the date hereofsuch Fund’s initial Registration Statement was declared effective by the SEC, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's ’s role as principal distributor of the Class B shares of any funda Fund, nor the termination of this Agreement with respect to a Fund, nor the termination of the Class B Plan with respect to a Fund will terminate the Underwriter's ’s right to its Allocable Portion of the CDSCs in respect of the Class B shares of the each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "“Transfer"”) its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund Funds under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the a Fund and in connection therewith, upon receipt of notice of such Transfer, the a Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "“Transferees"”) such portion of the Underwriter's ’s Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the a Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the a Fund's ’s obligation to pay the Underwriter's ’s Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter (it being understood that such provision is not a waiver of the Funds’ right to pursue the Underwriter and enforce claims against the assets of the Underwriter other than the Underwriter's ’s right to the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund, which have been so transferred in connection with such Transfer). The Fund agrees Funds agree that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "“Allocable Portion" ” of Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.Underwriter.
(viii) For purposes of this Agreement, the term "“Complete Termination" ” of the Plan in respect of the a Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the FundFunds, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund Funds and any successor fund or the Fund Funds acquiring a substantial portion of the assets of the Fund Funds and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund Funds taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the Independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Funds and the shareholders of the Funds, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Funds, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
(ix) The Underwriter may reallow any or all of the Distribution and Service Fees and CDSCs which it is paid under the Agreement to such dealers as the Underwriter may from time to time determine.
(x) The Underwriter may fix quantity discounts and other similar variances or waivers of the CDSCs not inconsistent with the provisions of the 1940 Act; provided however, that the Underwriter shall not impose any commission, permit any quantity discount, or impose any other similar waiver or variance in connection with the sale of Class B shares except as disclosed in each Fund’s current Prospectus.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Second Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the such Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the current Prospectus of the such Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund Funds upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule AB) of the Fund Funds taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29Xxxxx 00, 19970000, (x) on a basis which does not alter the Underwriter's Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund Funds will not take any action to waive or change any CDSC in respect of the Class B shares of the Fundshares, except as provided in the each Fund's current Prospectus or statement of additional information as in effect as forming a part of that Fund's initial Registration Statement on the date hereofsuch Fund's initial Registration Statement was declared effective by the SEC, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any funda Fund, nor the termination of this Agreement with respect to a Fund, nor the termination of the Class B Plan with respect to a Fund will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund Funds under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the a Fund and in connection therewith, upon receipt of notice of such Transfer, the a Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the a Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the a Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter (it being understood that such provision is not a waiver of the Funds' right to pursue the Underwriter and enforce claims against the assets of the Underwriter other than the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund, which have been so transferred in connection with such Transfer). The Fund agrees Funds agree that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.Underwriter.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the a Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the FundFunds, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund Funds and any successor fund or the Fund Funds acquiring a substantial portion of the assets of the Fund Funds and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund Funds taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the Independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Funds and the shareholders of the Funds, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Funds, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the each Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29Xxxxx 00, 19970000, (x) on a basis which does not alter the Underwriter's Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Each Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fundFund, nor the termination of this Agreement Agreement, nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the any Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the each Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred Transferred in connection with such Transfer). The Each Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred Transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" Portion of Distribution Fees and CDSCs payable in respect of the Class B shares of the any Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the any Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan plan pursuant to Rule 12b-1 12b-l under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund any fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Fund and the shareholders of the Fund, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Fund, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each the Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the TrustFund's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares each the Fund agrees:
(I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of (to the extent waiver thereof is permitted thereby) applicable law, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreement) except to the extent required by a change in the Investment Company Act of 1940 (the "Act"), the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29, 1997, or in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fundthe Fund, nor the termination of this Agreement nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee pledge (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter other than the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred in connection with such Transfer). The Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund any fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares.
Appears in 1 contract
Samples: Underwriting Agreement (Pilgrim Growth Opportunities Fund)
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the Trust's Second Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares shares, each Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the such Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the such Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the current Prospectus of the such Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund Funds upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule AB) of the Fund Funds taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the each Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund Funds shall not be terminated or modified for any reason (including a termination of this Agreement) except except: (a) to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29April 30, 19972001, (b) on a basis which doex xxx xxxxx xxx Xxxerwriter's Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund Funds will not take any action to waive or change any CDSC in respect of the Class B shares of the Fundshares, except as provided in the each Fund's current Prospectus or statement of additional information as in effect as forming a part of that Fund's initial Registration Statement on the date hereofsuch Fund's initial Registration Statement was declared effective by the SEC, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any funda Fund, nor the termination of this Agreement with respect to a Fund, nor the termination of the Class B Plan with respect to a Fund will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the each Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund Funds under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the a Fund and in connection therewith, upon receipt of notice of such Transfer, the a Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the a Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the a Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter (it being understood that such provision is not a waiver of the Funds' right to pursue the Underwriter and enforce claims against the assets of the Underwriter other than the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the each Fund, which have been so transferred in connection with such Transfer). The Fund agrees Funds agree that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the a Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.Underwriter.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the a Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the FundFunds, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund Funds and any successor fund or the Fund Funds acquiring a substantial portion of the assets of the Fund Funds and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund Funds taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Trust, including the Independent Trustees of the Trust, shall have determined that such termination is in the best interest of the Funds and the shareholders of the Funds, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Funds, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Class B Shares. (i) In consideration of the Underwriter's services as principal underwriter of each the Fund's Class B shares pursuant to this Agreement and in accordance with the provisions of the TrustFund's Amended and Restated Distribution and Service Plan (the "Class B Plan") in respect of such shares each shares, the Fund agrees:
: (I) to pay to the Underwriter or, at the Underwriter's direction, to a third party, monthly in arrears on or prior to the 5th business day of the following calendar month (A) a service fee (the "Service Fee") equal to 0.25 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (B) the Underwriter's "Allocable Portion" (as hereinafter defined) of a fee (the "Distribution Fee") equal to 0.75% 0.75 of 1% per annum of the average daily net asset value of the Class B shares of the Fund outstanding from time to time, and (II) to withhold from redemption proceeds in respect of Class B shares of the Fund the Underwriter's Allocable Portion of the Contingent Deferred Sales Charges ("CDSCs") payable in respect of such redemption as provided in the Prospectus of the Fund and to pay the same over to the Underwriter or, at the Underwriter's direction, to a third party, at the time the redemption proceeds in respect of such redemption are payable to the holder of the Class B shares redeemed.
(ii) The Underwriter will be deemed to have performed all services required to be performed in order to be entitled to receive its Allocable Portion of the Distribution Fee payable in respect of the Class B shares of the Fund upon the settlement date of each sale of a "Commission Share" (as defined in the Allocation Schedule attached hereto as Schedule A) of the Fund taken into account in determining the Underwriter's Allocable Portion of such Distribution Fees.
(iii) Notwithstanding anything to the contrary set forth in this Agreement of or (to the extent waiver thereof is permitted thereby) applicable law, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees payable in respect to the Class B shares of the Fund shall not be terminated or modified for any reason (including a termination of this Agreementthis
(a) except to the extent required by a change in the 1940 Act, the rules thereunder or the Conduct Rules of the NASD, in each case enacted or promulgated after December 29April 30, 19972001, (b) on a basis which does not alter xxx Xxxxxxxxxxx'x Allocable Portion of the Distribution Fees computed with reference to Commission Shares the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to the adoption of such termination or modification and with respect to Free Shares (as defined in the Allocation Schedule) which would be attributed to such Underwriter under the Allocation Schedule with reference, or (c) in connection with a "Complete Termination" (as hereinafter defined) of the Class B Plan.
(iv) The Fund will not take any action to waive or change any CDSC in respect of the Class B shares of the Fund, except as provided in the Fund's Prospectus or statement of additional information as in effect as of the date hereof, without the consent of the Underwriter and the permitted assigns of all or any portion of its rights to its Allocable Portion of the CDSCs.
(v) Notwithstanding anything to the contrary in this Agreement, neither the termination of the Underwriter's role as principal distributor of the Class B shares of any fundthe Fund, nor the termination of this Agreement Agreement, nor the termination of the Class B Plan will terminate the Underwriter's right to its Allocable Portion of the CDSCs in respect of the Class B shares of the Fund.
(vi) Notwithstanding anything to the contrary in this Agreement, the Underwriter may assign, sell or pledge (collectively, "Transfer") its rights to the Service Fees and its Allocable Portion of the Distribution Fees and CDSCs (but not its obligations to the Fund under this Agreement) to raise funds to make the expenditures related to the distribution of Class B shares of the Fund and in connection therewith, upon receipt of notice of such Transfer, the Fund shall pay, or cause to be paid, to the assignee, purchaser or pledgee pledge (collectively with their subsequent transferees, "Transferees") such portion of the Underwriter's Service Fees, Allocable Portion of the Distribution Fees and CDSCs in respect of the Class B shares of the Fund so Transferred. Except as provided in (iii) above and notwithstanding anything to the contrary set forth elsewhere in this Agreement, to the extent the Underwriter has Transferred its rights thereto to raise funds as aforesaid, the Fund's obligation to pay the Underwriter's Allocable Portion of the Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall be absolute and unconditional and shall not be subject to dispute, offset, counterclaim or any defense whatsoever, at law or equity, including, without limitation, any of the foregoing based on the insolvency or bankruptcy of the Underwriter other than the Underwriter's right to the Distribution Fees and CDSCs in respect of the Class B shares of the Fund, which have been so transferred Transferred in connection with such Transfer). The Fund agrees that each such Transferee is a third party beneficiary of the provisions of this clause (vi) but only insofar as those provisions relate to Distribution Fees and CDSCs transferred Transferred to such Transferee.
(vii) For purposes of the Agreement, the term "Allocable Portion" of Distribution Fees and CDSCs payable in respect of the Class B shares of the Fund shall mean the portion of such Distribution Fees and CDSCs allocated to the Underwriter in accordance with the Allocation Schedule attached hereto as Schedule A.
(viii) For purposes of this Agreement, the term "Complete Termination" of the Plan in respect of the Fund means a termination of the Class B Plan involving the complete cessation of the payment of Distribution Fees in respect of all Class B shares of the Fund, and the termination of the Class B Plan and the complete cessation of the payment of distribution fees pursuant to any other distribution Distribution Plan pursuant to Rule 12b-1 under the 1940 Act in respect of the Class B shares of the Fund and any successor fund or the Fund any fund acquiring a substantial portion of the assets of the Fund and for every future class of shares which has substantially similar characteristics to the Class B shares of the Fund taking into account the manner of payment and amount of sales charge, CDSC or other similar charges borne directly or indirectly by the holders of such shares; provided that (a) the Trustees of the Fund, including the Independent Trustees of the Fund, shall have determined that such termination is in the best interest of the Fund and the shareholders of the Fund, and (b) such termination does not alter the CDSC as in effect at the time of such termination applicable to Commission Shares of the Fund, the Date of Original Issuance (as defined in the Allocation Schedule) of which occurs on or prior to such termination.
Appears in 1 contract
Samples: Underwriting Agreement (Pilgrim Growth Opportunities Fund)
