UNDERWRITING AGREEMENT
AGREEMENT made this 14th day of September, 2000, between Millennium Income
Trust, a Massachusetts business trust (hereinafter called the "Fund"), and The
Malachi Group, Inc., a Georgia corporation (hereinafter called the
"Underwriter");
WITNESSETH:
In consideration of the mutual covenants hereinafter contained, it is
hereby agreed by and between the parties hereto as follows:
1. The Fund hereby appoints the Underwriter as its agent for the
distribution of units of beneficial interest (hereinafter called "shares") of
any of the Fund's authorized Portfolios in jurisdictions wherein shares of the
Fund may be legally offered for sale; provided, however, that the Fund in its
absolute discretion may issue or sell shares directly to holders of shares of
the Fund upon 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.
2. The Underwriter hereby accepts appointment as agent for the
distribution of the shares of the Fund and agrees that it will use its best
efforts with reasonable promptness to sell such part of the authorized shares of
the Fund remaining unissued as from time to time shall be effectively registered
under the Securities Act of 1933 ("Securities Act"), at prices determined as
hereinafter provided and on terms hereinafter set forth, all subject to
applicable federal and state laws and regulations and to the Declaration of
Trust and Bylaws of the Fund and in accordance with the then effective
registration statement ("Registration Statement") of the Fund under the
Securities Act (and related prospectus).
3. The Fund agrees that it will use its best efforts to keep effectively
registered under the Securities Act for sale as herein contemplated such shares
as the Underwriter shall reasonably request and as the Securities and Exchange
Commission shall permit to be so registered.
4. Notwithstanding any other provision hereof, the Fund may terminate,
suspend or withdraw the offering of shares whenever, in its sole discretion, it
deems such action to be desirable.
5. The Underwriter shall hold itself available to receive or will arrange
for the receipt of orders for the purchase of shares of each Portfolio and shall
have authority to receive and accept or reject, or arrange for the receipt and
acceptance of, such orders in accordance with the provisions hereof and the then
effective Registration Statement of the Fund.
6. Shares of the Fund offered for sale or sold by the Underwriter shall
be so offered or sold at a price per share determined in accordance with the
Fund's then current prospectus relating to the sale of such shares except as
departure from such prices shall be permitted by the rules and regulations of
the Securities and Exchange Commission; provided, however, that any
public offering price for shares of the Fund shall be the net asset value per
share. The net asset value per share shall be determined in the manner and at
the times set forth in the then effective Registration Statement (and related
prospectus) relating to such shares.
7. The price the Fund shall receive for all shares purchased from the
Fund shall be the net asset value used in determining the public offering price
applicable to the sale of such sales.
8. The Underwriter shall arrange to have the transfer agent issue and
deliver on behalf of the Fund such confirmations of sales made by it as agent
pursuant to this Agreement as may be required. At or prior to the time of
issuance of shares, the Underwriter will cause to be paid to the Fund the amount
due the Fund for the sale of such shares. Shares shall be registered on the
transfer books of the Fund in such names and denominations as the Underwriter
may specify.
9. The Fund will execute any and all documents and furnish any and all
information which may be reasonably necessary in connection with the
qualification of its shares for sale in such states as the Underwriter may
reasonably request (it being understood that the Fund shall not be required
without its consent to comply with any requirement which in its opinion is
unduly burdensome).
10. The Fund will furnish to the Underwriter from time to time such
information with respect to the Fund and its shares as the Underwriter may
reasonably request for use in connection with the sale of shares of the Fund.
The Underwriter agrees that it will not use or distribute or authorize the use,
distribution or dissemination by others in connection with the sale of such
shares any statements, other than those contained in the Fund's current
prospectus or statement of additional information, except such supplemental
literature or advertising as shall be lawful under federal and state securities
laws and regulations, and that it will furnish the Fund with copies of all such
material.
11. The Underwriter shall order shares of the Fund from the Fund only to
the extent that it shall have received purchase orders therefor. The Underwriter
will not make, or authorize any others to make, any short sales of shares of the
Fund.
12. The Underwriter, as agent of and for the account of the Fund, may
repurchase the shares of the Fund as such prices and upon such terms and
conditions as shall be specified in the current prospectus or statement of
additional information of the Fund.
13. In selling or reacquiring shares of the Fund for the account of the
Fund, the Underwriter will in all respects conform to the requirements of all
state and federal laws and the Rules of Fair Practice of the National
Association of Securities Dealers, Inc., relating to such sale or reacquisition,
as the case may be, and will indemnify and save harmless the Fund form any
damage or expense resulting from the gross negligence of the Underwriter, or any
employee, representative or agent of the Underwriter. The Underwriter will
observe and be bound by all the provisions of the Declaration of Trust and
Bylaws of the Fund (and of any fundamental policies adopted by the Fund pursuant
to the Investment Company Act of 1940 and set forth in
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the Registration Statement, or as to which notice shall otherwise have been
given to the Underwriter) which at any time in any way require, limit, restrict
or prohibit or otherwise regulate any action on the part of the Underwriter.
14. The Underwriter will require each of its employees, agents or
representatives to conform to the provisions hereof and the Registration
Statement (and related prospectus) at the time in effect under the Securities
Act with respect to the public offering price of the Fund's shares, and neither
the Underwriter nor any such employees, agents or representatives shall withhold
the placing of purchase orders so as to make a profit thereby.
15. The Underwriter shall not disclose nonpublic personal information (as
defined in Section 248.3(t) of Regulation S-P), except as necessary to carry out
the purposes for which the Fund disclosed such information to the Underwriter,
or as permitted under Sections 248.14 and 248.15 of Regulation S-P in the
ordinary course of business to carry out the purposes encompassed by those
provisions.
16. The Fund will pay or cause to be paid expenses (including the fees and
disbursements of its own counsel) and all taxes and fees payable to federal,
state or other governmental agencies on account of the registration or
qualifications of securities issued by the Fund or otherwise. The Fund will also
pay or cause to be paid expenses incident to the issuance of shares of
beneficial interest, such as the cost of share certificates, issues taxes and
fees of the transfer agent. The Underwriter will pay all expenses (other than
expenses which one or more dealers may bear pursuant to any agreement with the
Underwriter) incident to the sale and distribution of the shares issued or sold
hereunder, including, without limiting the generality of the foregoing, all
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 of report or other communication to shareholders in their capacity as
such) and expenses of advertising in connection with such offering.
17. This Agreement shall become effective on the date hereof and shall
continue in effect for two years after the effective date and from year to year
thereafter, but only so long as such continuance is approved in the manner
required by the Investment Company Act of 1940. Either party hereto may
terminate this Agreement on any date by giving the other party at least six
months prior written notice of such termination specifying the date fixed
therefor. Without prejudice to any other remedies of the Fund in any such event
the Fund may terminate this Agreement at any time immediately upon any failure
of fulfillment of any of the obligations of the Underwriter hereunder.
18. This Agreement shall automatically terminate in the event of its
assignment.
19. Any notice under this Agreement shall be in writing, addressed and
delivered or mailed, postage prepaid, to the other party at its principal place
of business or such other address as such other party may designate for the
receipt of such notice.
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20. This Agreement shall be construed in accordance with applicable
federal law and the laws of the Commonwealth of Massachusetts.
21. A copy of the Declaration of Trust is on file with the Secretary of
the Commonwealth of Massachusetts and notice is hereby given to Underwriter that
this Agreement has been executed on behalf of Fund by the undersigned officer of
the Fund in his capacity as an officer of Fund. The Underwriter agrees that the
obligations assumed by the Trust pursuant to this Agreement shall be limited in
any case to the Trust and its assets and that the Underwriter shall not seek
satisfaction of any such obligations from the Shareholders of the Trust, the
Trustees, officers, employees or agents of the Trust or any of them
individually.
IN WITNESS WHEREOF, the Fund and the Underwriter have each caused this
agreement to be executed on its behalf by an officer thereunto duly authorized
as of the day and year first written.
MILLENNIUM INCOME TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
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THE MALACHI GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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