N\\SHAREDAT\CORP_ACT\CONTRACT\XXXXXX\KGIF\UNDER81
UNDERWRITING AND DISTRIBUTION SERVICES AGREEMENT
AGREEMENT made this 1st day of August, 1998, between
XXXXXX
GLOBAL INCOME FUND, a Massachusetts business trust (the
"Fund"),
and XXXXXX DISTRIBUTORS, INC., a Delaware corporation ("KDI").
In consideration of the mutual covenants
hereinafter
contained, it is hereby agreed by and between the parties
hereto
as follows:
1. The Fund hereby appoints KDI to act as agent
for
distribution of shares of beneficial interest (hereinafter
called
"shares") of the Fund in jurisdictions wherein shares of the
Fund
may legally be offered for sale; provided, however, that the
Fund
in its absolute discretion may (a) issue or sell shares
directly
to holders of shares of the Fund upon such terms and
conditions
and for such consideration, if any, as it may determine,
whether
in connection with the distribution of subscription or
purchase
rights, the payment or reinvestment of
dividends or
distributions, or otherwise; or (b) issue or sell shares at
net
asset value to the shareholders of any other investment
company,
for which KDI shall act as exclusive distributor, who
wish to
exchange all or a portion of their investment in shares of
such
other investment company for shares of the Fund. KDI
shall
appoint various financial service firms ("Firms") to
provide
distribution services to investors. The Firms shall provide
such
office space and equipment, telephone facilities,
personnel,
literature distribution, advertising and promotion
as is
necessary or beneficial for providing information
and
distribution services to existing and potential clients of
the
Firms. KDI may also provide some of the above services for
the
Fund.
KDI accepts such appointment as distributor and
principal
underwriter and agrees to render such services and to assume
the
obligations herein set forth for the compensation
herein
provided. KDI shall for all purposes herein provided be
deemed
to be an independent contractor and, unless expressly
provided
herein or otherwise authorized, shall have no authority to
act
for or represent the Fund in any way. KDI, by separate
agreement
with the Fund, may also serve the Fund in other capacities.
The
services of KDI to the Fund under this Agreement are not
to be
deemed exclusive, and KDI shall be free to render
similar
services or other services to others so long as its
services
hereunder are not impaired thereby.
In carrying out its duties and responsibilities
hereunder,
KDI will, pursuant to separate written contracts, appoint
various
Firms to provide advertising, promotion and other
distribution
services contemplated hereunder directly to or for the
benefit of
existing and potential shareholders who may be clients of
such
Firms. Such Firms shall at all times be deemed to be
independent
contractors retained by KDI and not the Fund.
KDI shall use its best efforts with reasonable
promptness to
sell such part of the authorized shares of the Fund
remaining
unissued as from time to time shall be effectively
registered
under the Securities Act of 1933 ("Securities Act"), at
prices
determined as hereinafter provided and on terms hereinafter
set
forth, all subject to applicable federal and state laws
and
regulations and to the Fund's organizational documents.
2. KDI shall sell shares of the Fund to or
through
qualified Firms in such manner, not inconsistent with
the
provisions hereof and the then effective registration
statement
(and related prospectus) of the Fund under the Securities
Act, as
KDI may determine from time to time, provided that no
Firm or
other person shall be appointed or authorized to act as
agent of
the Fund without prior consent of the Fund. In addition to
sales
made by it as agent of the Fund, KDI may, in its discretion,
also
sell shares of the Fund as principal to persons with whom it
does
not have selling group agreements.
Shares of any class of any series of the Fund offered
for
sale or sold by KDI shall be so offered or sold at a price
per
share determined in accordance with the then current
prospectus.
The price the Fund shall receive for all shares purchased
from it
shall be the net asset value used in determining the
public
offering price applicable to the sale of such shares. Any
excess
of the sales price over the net asset value of the shares of
the
Fund sold by KDI as agent shall be retained by KDI
as a
commission for its services hereunder. KDI may compensate
Firms
for sales of shares at the commission levels provided in
the
Fund's prospectus from time to time. KDI may pay
other
commissions, fees or concessions to Firms, any may pay
them to
others in its discretion, in such amounts as KDI shall
determine
from time to time. KDI shall be entitled to receive and
retain
any applicable contingent deferred sales charge as
described in
the Fund's prospectus. KDI shall also receive any
distribution
services fee payable by the Fund as provided in the
Fund's
Amended and Restated 12b-1 Plan, as amended from time to
time
(the "Plan").
KDI will require each Firm to conform to the
provisions
hereof and the Registration Statement (and related
prospectus) at
the time in effect under the Securities Act with respect to
the
public offering price or net asset value, as applicable, of
the
Fund's shares, and neither KDI nor any such Firms shall
withhold
the placing of purchase orders so as to make a profit thereby.
3. The Fund will use its best efforts to keep
effectively
registered under the Securities Act for sale as
herein
contemplated such shares as KDI shall reasonably request
and as
the Securities and Exchange Commission shall permit to
be so
registered. Notwithstanding any other provision hereof, the
Fund
may terminate, suspend or withdraw the offering of
shares
whenever, in its sole discretion, it deems such action
to be
desirable.
4. The Fund will execute any and all documents and
furnish
any and all information that may be reasonably
necessary in
connection with the qualification of its shares for
sale
(including the qualification of the Fund as a dealer
where
necessary or advisable) in such states as KDI may
reasonably
request (it being understood that the Fund shall not be
required
without its consent to comply with any requirement which in
its
opinion is unduly burdensome). The Fund will furnish to KDI
from
time to time such information with respect to the Fund and
its
shares as KDI may reasonably request for use in connection
with
the sale of shares of the Fund.
5. KDI shall issue and deliver or shall arrange
for
various Firms to issue and deliver on behalf of the Fund
such
confirmations of sales made by it pursuant to this
Agreement as
may be required. At or prior to the time of issuance of
shares,
KDI will pay or cause to be paid to the Fund the amount due
the
Fund for the sale of such shares. Certificates shall be
issued
or shares registered on the transfer books of the Fund in
such
names and denominations as KDI may specify.
6. KDI shall order shares of the Fund from the Fund
only
to the extent that it shall have received purchase
orders
therefor. KDI will not make, or authorize Firms or
others to
make (a) any short sales of shares of the Fund; or (b) any
sales
of such shares to any Board member or officer of the Fund
or to
any officer or Board member of KDI or of any
corporation or
association furnishing investment advisory,
managerial or
supervisory services to the Fund, or to any
corporation or
association, unless such sales are made in accordance with
the
then current prospectus relating to the sale of such
shares.
KDI, as agent of and for the account of the Fund, may
repurchase
the shares of the Fund at such prices and upon such terms
and
conditions as shall be specified in the current prospectus of
the
Fund. In selling or reacquiring shares of the Fund for
the
account of the Fund, KDI will in all respects conform to
the
requirements of all state and federal laws and the Rules of
Fair
Practice of the National Association of Securities Dealers,
Inc.,
relating to such sale or reacquisition, as the case may be,
and
will indemnify and save harmless the Fund from any
damage or
expense on account of any wrongful act by KDI or any
employee,
representative or agent of KDI. KDI will observe and be
bound by
all the provisions of the Fund's organizational documents
(and of
any fundamental policies adopted by the Fund pursuant to
the
Investment Company Act of 1940 (the "Investment Company
Act"),
notice of which shall have been given to KDI) which at the
time
in any way require, limit, restrict, prohibit or
otherwise
regulate any action on the part of KDI hereunder.
7. The Fund shall assume and pay all charges and
expenses
of its operations not specifically assumed or otherwise
to be
provided by KDI under this Agreement or the Plan. The Fund
will
pay or cause to be paid expenses (including the fees
and
disbursements of its own counsel) of any registration of the
Fund
and its shares under the United States securities laws
and
expenses incident to the issuance of shares of
beneficial
interest, such as the cost of share certificates, issue
taxes,
and fees of the transfer agent. KDI will pay all expenses
(other
than expenses which one or more Firms may bear pursuant to
any
agreement with KDI) incident to the sale and distribution of
the
shares issued or sold hereunder, including, without limiting
the
generality of the foregoing, all (a) expenses of printing
and
distributing any prospectus and of preparing, printing
and
distributing or disseminating any other literature,
advertising
and selling aids in connection with the offering of the
shares
for sale (except that such expenses need not include
expenses
incurred by the Fund in connection with the
preparation,
typesetting, printing and distribution of any
registration
statement or prospectus, report or other
communication to
shareholders in their capacity as such), (b)
expenses of
advertising in connection with such offering and (c)
expenses
(other than the Fund's auditing expenses) of
qualifying or
continuing the qualification of the shares for sale
and, in
connection therewith, of qualifying or continuing
the
qualification of the Fund as a dealer or broker under the
laws of
such states as may be designated by KDI under the
conditions
herein specified. No transfer taxes, if any, which
may be
payable in connection with the issue or delivery or shares
sold
as herein contemplated or of the certificates for such
shares
shall be borne by the Fund, and KDI will indemnify and
hold
harmless the Fund against liability for all such transfer
taxes.
8. This Agreement shall become effective on the
date
hereof and shall continue until March 1, 1999; and shall
continue
from year to year thereafter only so long as such
continuance is
approved in the manner required by the Investment Company Act.
This Agreement shall automatically terminate in the
event of
its assignment and may be terminated at any time without
the
payment of any penalty by the Fund or by KDI on sixty (60)
days'
written notice to the other party. The Fund may
effect
termination with respect to any class of any series of the
Fund
by a vote of (i) a majority of the Board members who are
not
interested persons of the Fund and who have no direct or
indirect
financial interest in the operation of the Plan, this
Agreement,
or in any other agreement related to the Plan, or (ii) a
majority
of the outstanding voting securities of such series or
class.
Without prejudice to any other remedies of the Fund, the Fund
may
terminate this Agreement at any time immediately upon
KDI's
failure to fulfill any of its obligations hereunder.
All material amendments to this Agreement must be
approved
by a vote of a majority of the Board, and of the Board
members
who are not interested persons of the Fund and who have no
direct
or indirect financial interest in the operation of the Plan,
this
Agreement or in any other agreement related to the Plan,
cast in
person at a meeting called for such purpose.
The terms "assignment," "interested person" and "vote
of a
majority of the outstanding voting securities" shall have
the
meanings set forth in the Investment Company Act and the
rules
and regulations thereunder.
KDI shall receive such compensation for its
distribution
services as set forth in the Plan. Termination of this
Agreement
shall not affect the right of KDI to receive payments on
any
unpaid balance of the compensation earned prior to
such
termination, as set forth in the Plan.
9. KDI will not use or distribute, or authorize the
use,
distribution or dissemination by Firms or others in
connection
with the sale of Fund shares any statements other than
those
contained in the Fund's current prospectus, except
such
supplemental literature or advertising as shall be lawful
under
federal and state securities laws and regulations. KDI
will
furnish the Fund with copies of all such material.
10. If any provision of this Agreement shall be
held or
made invalid by a court decision, statute, rule or otherwise,
the
remainder shall not be thereby affected.
11. Any notice under this Agreement shall be in
writing,
addressed and delivered or mailed, postage prepaid, to the
other
party at such address as such other party may designate for
the
receipt of such notice.
12. All parties hereto are expressly put on notice of
the
Fund's Agreement and Declaration of Trust, and all
amendments
thereto, all of which are on file with the Secretary of
The
Commonwealth of Massachusetts, and the limitation of
shareholder
and trustee liability contained therein. This Agreement has
been
executed by and on behalf of the Fund by its
representatives as
such representatives and not individually, and the
obligations of
the Fund hereunder are not binding upon any of the
Trustees,
officers or shareholders of the Fund individually but are
binding
upon only the assets and property of the Fund. With
respect to
any claim by KDI for recovery of any liability of the
Fund
arising hereunder allocated to a particular series or
class,
whether in accordance with the express terms hereof or
otherwise,
KDI shall have recourse solely against the assets of that
series
or class to satisfy such claim and shall have no recourse
against
the assets of any other series or class for such purpose.
13. This Agreement shall be construed in accordance
with
applicable federal law and with the laws of The
Commonwealth of
Massachusetts.
14. This Agreement is the entire contract between
the
parties relating to the subject matter hereof and supersedes
all
prior agreements between the parties relating to the
subject
matter hereof.
[SIGNATURES APPEAR ON NEXT PAGE]
IN WITNESS WHEREOF, the Fund and KDI have caused
this
Agreement to be executed as of the day and year first
above
written.
XXXXXX GLOBAL INCOME FUND
By:
Title:
ATTEST:
Title:
XXXXXX DISTRIBUTORS, INC.
By:
Title:
ATTEST:
Title:
