DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 25th day of August, 1998 (the
"Agreement") by and between each of open-end investment companies or series
thereof listed on Schedule A hereto (each, a "Fund") and First Data
Distributors, Inc. (the "Distributor"), a Massachusetts corporation.
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and is currently offering its shares of beneficial interest to the public
pursuant to the Fund's Registration Statement on Form N-1A (the "Registration
Statement"); and
WHEREAS, the Fund desires to retain the Distributor as distributor to
provide for the sale and distribution of the Shares and for such additional
classes or series as the Fund may issue, and the Distributor is prepared to
provide such services commencing on the date first written above.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein and intending to be legally bound hereby the parties hereto
agree as follows:
1. SERVICE AS DISTRIBUTOR
1.1 The Distributor will act as the Fund's Principal Underwriter (as
defined in the 0000 Xxx) for the distribution of the Shares covered by
the Registration Statement under the Securities Act of 1933, as amended
(the "1933 Act"). The Distributor shall offer Shares at the net asset
value per Share to be calculated as described in the Registration
Statement. To the extent that the Distribution receives payment for
Shares, the Fund shall receive the applicable net asset value on all
sales of Shares by the Distributor. Except as provided in the previous
sentence, the Distributor will have no liability to the Fund for
payment for the purchase of Shares sold pursuant to this Agreement or
with respect to redemptions or repurchases of Shares.
1.2 The Distributor agrees to use efforts deemed appropriate by the
Distributor to solicit orders for the sale of the Shares and will
undertake such advertising and promotion as it believes reasonable in
connection with such solicitation. To the extent that the Distributor
receives fees under any plan adopted by the Fund pursuant to Rule 12b-1
under the 1940 Act, the Distributor agrees to furnish and/or enter into
arrangements with others for the furnishing of marketing or sales
services with respect to the Shares as may be required pursuant to such
plan. To the extent that the Distributor receives shareholder services
fees under any shareholder services plan adopted by the Fund, the
Distributor agrees to furnish and/or enter into arrangements with
others for the furnishing of, personal and/or account maintenance
services with respect to the relevant shareholders of the Fund as may
be required pursuant to such plan. It is contemplated that the
Distributor will, at the Fund's direction, enter into sales or
servicing agreements with securities dealers, financial institutions
and other industry professionals, such as investment advisers,
accountants and estate planning firms.
1.3 The Fund understands that the Distributor is now, and may in the future
be, the distributor of the shares of several investment companies or
series (collectively, the "Investment Entities"), including Investment
Entities having investment objectives similar to those of the Fund. The
fund further understands that investors and potential investors in the
Fund may invest in shares of such other Investment Entities. The Fund
agrees that the Distributor's duties to such Investment Entities shall
not be deemed in conflict with its duties to the Fund under this
Section 1.3.
1.4 The Distributor shall not utilize any materials in connection with the
sale or offering of Shares except the fund's then-current prospectus
and statement of additional information and such other materials as the
Fund shall provide or approve.
1.5 All activities by the Distributor and its employees, as distributor of
the Shares, shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations
made or adopted by the Securities and Exchange Commission (the "SEC")
or the National Association of Securities Dealers ("NASD"), including
without limitation the NASD Conduct Rules.
1.6 The Distributor will promptly transmit any orders received by it for
purchase or redemption of the Shares to the transfer agent for the
Fund.
1.7 Whenever in its judgment such action is warranted by unusual market,
economic or political conditions or abnormal circumstances of any kind,
the Fund may decline to accept any orders for, or make any sales of,
the Shares until such time as the Fund deems it advisable to accept
such orders and to make such sales, and the Fund advises the
Distributor of such determination.
1.8 The Distributor shall not have any responsibility for any costs and
expenses in connection with the registration of the Shares under the
1933 Act and all expenses in connection with maintaining facilities for
the issue and transfer of Shares and for supplying information, prices
and other data to be furnished by the Fund hereunder, and all expenses
in connection with the preparation and printing of the Fund's
prospectuses and statements of additional information for regulatory
purposes and for distribution to current shareholders.
1.9 The fund agrees at its own expense to execute any and all documents and
to furnish any and all information and otherwise to take all actions
that may be reasonably necessary in connection with the qualification
of the Shares for sale in such states as the Distributor may designate
and as may be agreed to by the Fund. The Fund shall notify the
Distributor in writing of the states in which the Shares may be sold
and shall notify the Distributor in writing of any changes to the
information contained in the previous notification.
1.10 The fund shall furnish from time to time, for use in connection with
the sale of the Shares, such information with respect to the Fund and
the Shares as the Distributor may reasonably request; and the Fund
warrants that the statements contained in any such information shall
fairly show or represent what they purport to show or represent. The
Fund shall also furnish the Distributor upon request with: (a) the
Fund's audited annual statements and unaudited semi-annual statements
of the Fund's books and accounts prepared by the Fund, and (b) from
time to time such additional information regarding the financial
condition of the fund as the Distributor may reasonably request.
1.11 Except as to information included in the Registration Statement in
reliance upon information provided to the Fund by the distributor or
any affiliate of the Distributor that the Distributor or such affiliate
should reasonably expect to be used in the Registration Statement, the
fund represents and warrants to the Distributor that any Registration
Statement filed by the Fund with the SEC, when such Registration
Statement become effective, will contain statements required to be
stated therein to be in material conformity with the 1933 Act and the
rules and regulations of the SEC; that all statements of material fact
contained in any such Registration Statement will be true and correct
when such Registration Statement becomes effective; and that no
Registration Statement when such Registration Statement becomes
effective will include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading to a purchaser of the Shares
in light of the circumstances in which they were made. The Distributor
may but shall not be obligated to propose to the Fund from time to time
such amendment or amendments to any Registration Statement and such
supplement or supplements to any prospectus as, in the light of future
developments, may, in the opinion of the Distributor's counsel, be
necessary or advisable. The Distributor shall promptly notify the Fund
of any advice given to it by its counsel regarding the necessity or
advisability of amending or supplementing such Registration Statement.
If the Fund shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt by the Fund
of a written request from the Distributor to do so, the Distributor
may, at its option, terminate this Agreement. The fund shall not file
any amendment to any Registration Statement or supplement to any
prospectus without giving the Distributor reasonable notice thereof in
advance; provided, however, that nothing contained in this Agreement
shall in any way limit the Fund's right to file at any time such
amendments to any Registration Statements and/or supplements to any
prospectus, of whatever character, as the Fund may deem advisable, such
right being in all respects absolute and unconditional.
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1.12 (a) The Fund authorizes the Distributor to use its then-current
prospectus or statement of additional information in the form furnished
from time to time in connection with the sale of the Shares.
(b) The Fund agrees to indemnify and hold harmless the Distributor, its
officers, directors, and employees, and any person who controls the
Distributor within the meaning of Section 15 of the 1933 Act, from and
against any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities of
any sort of kind ("Losses") which the Distributor, its officers,
directors, employees or any such controlling person may incur under the
1933 Act, under any other statute, at common law or otherwise, arising
out of or based upon: (i) any untrue statement, or alleged untrue
statement, of a material fact contained in the Fund's Registration
Statement, prospectus, statement of additional information, or sales
literature (including amendments and supplements thereto), or (ii) any
omission, or alleged omission, to state a material fact required to be
stated in the Fund's Registration Statement, prospectus, statement of
additional information or sales literature (including amendments or
supplements thereto), necessary to make the statements therein not
misleading; provided, however, that insofar as Losses arise out of or
are based upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance on and in conformity with
information furnished to the Fund by the Distributor or its affiliated
persons for use in the Fund's Registration Statement, prospectus, or
statement of additional information or sales literature (including
amendments or supplements thereto) or arise by reason of the
Distributor's willful misfeasance, bad faith or negligence in the
performance of the Distributor's duties hereunder, such indemnification
is not applicable.
(c) The Fund acknowledges and agrees that in the event that the
Distributor, at the request of the Fund, are required to give
indemnification comparable to that set forth in clause (b) of this
Section 1.12 to any broker-dealer selling Shares of the Fund or
servicing agent servicing the shareholders of the Fund and such
broker-dealer servicing agent shall make a claim for indemnification
against the Distributor, the Distributor shall make a similar claim for
indemnification against the Fund.
1.13 The Distributor agrees to indemnify and hold harmless the Fund, its
officers, trustees and employees each person, if any, who controls the
Fund within the meaning of Section 15 of the 1933 Act against any and
all Loses which the Fund, its officers, trustees and employees or any
such controlling person may incur under the 1933 Act, under any other
statute, at common law or otherwise, but only to the extent that such
Losses incurred by the Fund, its officers, trustees and employees, or
any controlling person (i) arose out of the acquisition of any Shares
by any person which may be based upon any untrue statement, or alleged
untrue statement, of a material fact contained in the Fund's
Registration Statement, prospectus or statement of additional
information (including amendments and supplements thereto), or any
omission, or alleged
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omission, to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such
statement or omission was made in reliance upon information furnished
or confirmed in writing to the Fund by the Distributor or its
affiliated persons (as defined in the 0000 Xxx) or (ii) arose out of
the Distributor's willful misfeasance, bad faith or negligence in the
performance of its duties hereunder.
1.14 In any case in which one party hereto (the "Indemnifying "Party") may
be asked to indemnify or hold the other party hereto (the "Indemnified
Party") harmless, the Indemnified Party will notify the Indemnifying
party promptly after identifying any situation which it believes
presents or appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party, although the
failure to do so shall not prevent recovery by the Indemnified Party,
and shall keep the Indemnifying Party advised with respect to all
material developments concerning such situation. The Indemnifying Party
shall have the option to defend the Indemnified Party against any
Indemnification Claim which may be the subject of this indemnification,
and, in the event that the Indemnifying Party so elects, such defense
shall be conducted by counsel chosen by the Indemnifying Party and
reasonably satisfactory to the Indemnified Party, and thereupon the
Indemnifying Party shall take over complete defense of the
Indemnification Claim and the Indemnified Party shall sustain no
further legal or other expenses in respect of such Indemnification
Claim. The Indemnified party will not confess any Indemnification Claim
or make any compromise in any case in which the Indemnifying Party will
be asked to provide indemnification, except with the Indemnifying
party's prior written consent (written shall not unreasonably be
withheld). The obligations of the parties hereto under this Section
1.14 and Section 3.1 shall survive the termination of this Agreement.
1.15 No Shares shall be offered by either the Distributor or the fund under
any of the provisions of this Agreement and no orders for the purchase
of sale of Shares hereunder shall be accepted by the Fund if and so
long as effectiveness of the Registration Statement then in effect or
any necessary amendments thereto shall be suspended under any of the
provisions of the 1933 Act, or if and so long as a current prospectus
as required by Section 5(b)(2) of the 1933 Act is not on file with the
SEC; provided, however, that nothing contained in this Section 1.15
shall in any way restrict or have any application to or bearing upon
the Fund's obligation to redeem Shares tendered for redemption by any
shareholder in accordance with the provisions of the Fund's
Registration Statement, declaration of trust, or bylaws.
1.16 The Fund agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor in the
event of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement, prospectus or statement of
additional information then in effect or in the initiation by service
of process on the Fund of any proceeding for that purpose.
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1.17 The Fund represents and warrants to the Distributor that the Fund is,
or is a series of, an investment company, registered under the 1940 Act
and the Shares sold by the Fund are, and will be registered under the
1933 Act.
2. TERM
----
2.1 This Agreement shall become effective on the date first written above,
and unless sooner terminated as provided herein, shall continue for an
initial two-year term and thereafter shall be renewed for successive
one-year terms, provided such continuance is specifically approved at
least annually by (i) the Fund's Board of Trustees or (ii) by a vote of
a majority of the outstanding voting securities (as defined in the 1940
Act and Rule 18f-2 thereunder) of the Fund, provided that in either
event the continuance is also approved by a majority of the Fund's
Trustees who are not parties to this Agreement and who are not
interested persons (as defined in the 0000 Xxx) of any party to this
Agreement ("Independent Trustees"), by vote cast in person at a meeting
called for the purpose of voting on such approval. This Agreement is
terminable without penalty, on at least sixty days' written notice, by
the Fund's Board of Trustees, by vote of a majority of the outstanding
voting securities (as defined in the 1940 Act and Rule of 18f-2
thereunder) of the Fund, or by the Distributor. This agreement will
also terminate automatically in the event of its assignment (as defined
in the 1940 Act and the rules thereunder). Finally, this Agreement may
also be terminated by the Fund upon 5 days' written notice to the
Distributor if the NASD has expelled the Distributor or suspended its
membership in that organization.
2.2 In the event a termination notice is given by the Fund, all reasonable
expenses associated with movement of records and materials and
conversion thereof will be borne by the Fund.
3. LIMITATION OF LIABILITY
-----------------------
3.1 The Distributor shall not be liable to the Fund for any error of
judgment or mistake of law or for any loss suffered by the Fund in
connection with the performance of its obligations and duties under
this Agreement, except a loss resulting from the Distributor's willful
misfeasance, a bad faith or negligence in the performance of such
obligations and duties, or by reason of its reckless disregard thereof.
The Fund will indemnify the Distributor against and hold it harmless
from any and all Losses which may be asserted against the Distributor
for which the Distributor may be held to be liable in connection with
this Agreement or the Distributor's performance hereunder (a "Section
3.1 Claim"), unless such Section 3.1 Claim resulted from a negligent
act or omission to act or bad faith by the Distributor in the
performance of its duties hereunder; provided, however, that as to any
matter disposed of by a compromised payment by the Distributor,
pursuant to a consent decree or otherwise, no indemnification either
for such payments or for any other expenses shall be provided
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unless there has been a determination that the Distributor did not
engage in willful misfeasance, bad faith or gross negligence or a
reckless disregard of the performance of its obligations and duties (i)
by the court or other body approving the settlement or other
disposition, (ii) based upon a review of readily available facts (as
opposed to a full trial-type inquiry), by written opinion from
independent legal counsel approved by the Fund's Board of Trustees or
(iii) by a majority of the Independent Trustees based upon a review of
readily available facts (as opposed to a full trial-type inquiry). The
provisions of paragraph (a) of Section 1.12 shall apply to any
indemnification provided by the Fund pursuant to this Section 3.1. The
obligations of the parties hereto under this Section 3.1 shall survive
termination of this Agreement.
3.2 Notwithstanding any provision in this Agreement to the contrary, each
party's cumulative liability (to the other party) for all Losses for
any cause whatsoever, except a Loss resulting from the gross negligence
in the performance of its obligations and duties under their Agreement,
and regardless of the form of action or legal theory, shall not exceed
$2,000,000. The parties understand the limitation on damages to be a
reasonable allocation of risk and the parties expressly consent with
respect to such allocation of risk.
3.3 To the extent consistent with the provisions of this Agreement, each
party shall have the duty to mitigate damages for which the other party
may become responsible.
3.4 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER
THIS AGREEMENT UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OF
OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE,
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH
IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER
SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4. EXCLUSION OF WARRANTIES
-----------------------
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DISTRIBUTOR DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY,
SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF
TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES
PROVIDED UNDER THIS AGREEMENT.
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5. MODIFICATIONS AND WAIVERS
-------------------------
No change, termination, modification, or waiver of any term or
condition of the Agreement shall be valid unless in writing signed by
each party. A party's waiver of a breach of any term or condition in
the Agreement shall not be deemed a waiver of any subsequent breach of
the same or another term or condition.
6. PUBLICITY
---------
Neither the Distributor nor the Fund shall release or publish news
releases, public announcements, advertising or other publicity relating
to this Agreement or to the transactions contemplated by it without
prior review and written approval of the other party; provided,
however, that either party may make such disclosures as are required by
legal, accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other
party.
7. SEVERABILITY
-----------
The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or
invalidity shall not affect the validity of the remainder of this
Agreement. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties. Without limiting the generality of this paragraph, if a court
determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall
remain fully effective.
8. FORCE MAJEURE
-------------
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default
or delay is caused, directly or indirectly, by (i) fire, flood,
elements of nature or other acts of God; (ii) any outbreak or
escalation of hostilities, war, riots or civil disorders in any
country; or (iii) any act or omission of the other party or any
governmental authority. In any such event, the non-performing party
shall be excused from any further performance and observance of the
obligations so affected only for so long as such circumstances prevail
and such party continues to use commercially reasonable efforts to
recommence performance or observance as soon as practicable.
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9. MISCELLANEOUS
-------------
9.1 Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Fund or the Distributor shall be
sufficiently given if addressed to the party and received by it at its
office set forth below or at such other place as it may from time to
time designate in writing.
To the Fund:
x/x Xxxxx Xxxx & Xxxxx, X.X.X.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxx, Managing Director
To the Distributor:
First Data Distributors, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to the Distributor's Chief Legal Officer
9.2 The laws of the Commonwealth of Massachusetts, excluding the laws on
conflicts of laws, and the applicable provisions of the 1940 Act shall
govern the interpretation, validity, and enforcement of this Agreement.
To the extent the provisions of Massachusetts law or the provisions
hereof conflict with the 1940 Act, the 1940 Act shall control. All
actions arising from or related to this Agreement shall be brought in
the state and federal courts sitting in the City of Boston, and the
Distributor and the Fund hereby submit themselves to the exclusive
jurisdiction of those courts.
9.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
9.4 The captions of this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
9.5 This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and is not intended
to confer upon any other person any rights or remedies hereunder and
shall not affect in any way the rights,
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obligations and liabilities of either party hereto with the other party
or any of its affiliates under any other agreement.
10. CONFIDENTIALITY
---------------
10.1 The parties agree that the Proprietary Information (defined below) is
confidential information of the parties and their respective licensers.
The Fund and the Distributor shall exercise reasonable care to
safeguard the confidentiality of the Proprietary Information of the
other. The Fund and the Distributor may each use the Proprietary
Information of the other party only to exercise its rights or perform
its duties under this Agreement. The Fund and the Distributor shall not
duplicate, sell or disclose to others the Proprietary Information of
the other, in whole or in part, without the prior written permission of
the other party. The Fund and the Distributor may, however, disclose
Proprietary Information to its employees who have a need to know the
Proprietary Information to perform work for the other, provided that
each shall use reasonable efforts to ensure that the Proprietary
Information is not duplicated or disclosed by its employees in breach
of this Agreement. The Fund and the Distributor may also disclose the
Proprietary Information to independent contractors, auditors and
professional advisors, provided that they use such information in a
manner not inconsistent with this Section 10. Notwithstanding the
previous sentence, in no event shall either the Fund or the Distributor
disclose the Proprietary Information to any competitor of the other
without specific, prior written consent.
10.2 Proprietary Information means:
(a) any data or information that is completely sensitive material, and
not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance,
operations, customer relationships, customer profiles (including
without limitation information regarding prior, present or potential
shareholders of the Fund), sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or the Distributor, their respective
subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them;
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or the
Distributor a competitive advantage over its competitors; and
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable.
-10-
10.3 Each party acknowledges that breach of the restrictions on use,
dissemination or disclosure of any Proprietary Information would result
in immediate and irreparable harm, and money damages would be
inadequate to compensate the other party for that harm. The parties
shall be entitled to equitable relief, in addition to all other
available remedies, to redress any such breach.
10.4 The obligations of confidentiality and restriction on use herein shall
not apply to any Proprietary Information that a party proves:
(a) Was in the public domain prior to the date of this Agreement or
subsequently came into the public domain through no fault of such
party; or
(b) Was lawfully received by the party from a third party free of any
obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to receipt
thereof, directly or indirectly, from the other party; or
(d) Is required to be disclosed in a judicial or administrative
proceeding after all reasonable legal remedies for maintaining such
information in confidence have been exhausted including, but not
limited to, giving the other party as much advance notice of the
possibility of such disclosure as practical so the other party may
attempt to stop such disclosure or obtain a protective order concerning
such disclosure; or
(e) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the Proprietary
Information disclosed under this Agreement.
10.5 The Distributor shall keep and maintain on behalf of the Fund all books
and records which the Fund and the Distributor are, or may be, required
to keep and maintain in connection with the services to be provided
hereunder pursuant to any applicable statutes, rules and regulations,
including without limitation Rules 31a-1 and 31a-2 under the Act. The
Distributor further agrees that all such books and records shall be the
property of the Fund and to make such books and records available for
inspection by or upon the request of the Fund or, upon prior notice by
the Distributor to the Fund, by the SEC at reasonable times.
10.6 The provisions of this Section 10 shall survive the termination of this
Agreement.
11. ENTIRE AGREEMENT
----------------
This Agreement, including all Schedules hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous proposals, agreements,
contracts, representations, and understandings, whether written or
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oral, between the parties with respect to the subject matter hereof. It
is recognized that the Fund is an intended third party beneficiary of
the Consulting Agreement, dated of even date herewith, between the
Distributor and Xxxxx, Xxxx & Xxxxx, L.L.C.
12. TRUSTEE LIABILITY
-----------------
The Fund and the Distributor agree that the obligations of the Fund
under the Agreement shall not be binding upon any of the Fund's
Trustees, shareholders, nominees, officers, employees or agents,
whether past, present or future, of the Fund individually, but are
binding only upon the assets and property of the Fund, as provided in
the Fund's declaration of trust. The execution and delivery of this
Agreement have been authorized by the Fund's Trustees, and signed by an
authorized officer of the Fund, acting as such, and neither such
authorization by such trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them or any
shareholder of the Fund individually or to impose any liability on any
of them or any shareholder of the Fund personally, but shall bind only
the assets and property of the Fund as provided in the Fund's
declaration of trust. No series of a Fund that is a multi-series
investment company shall be liable for the obligations of any other
series of such Fund.
It is agreed that for purposes of this Agreement, that each of the
entities listed below, individually and not jointly, shall be deemed to
be a Fund. It is also understood that each of such entities shall be
deemed to be entered into a separate agreement with the Distributor so
that it is as if each of such entities had signed a separate agreement
and that a single document is being signed simply to facilitate the
execution and administration of this Agreement. None of such entities
is responsible for any of the obligations of, or liabilities of, or is
entitled to any of the rights of, any other entity. The entities
referred to above in this paragraph are as follows: WPG Government
Money Market Fund, WPG Tax Free Money Market Fund, WPG Intermediate
Municipal Bond Fund, WPG Core Bond Fund and WPG Quantitative Equity
Fund, Xxxxx, Xxxx & Xxxxx International Fund, WPG Growth Fund, WPG
Growth and Income Fund, WPG Tudor Fund, RWB/WPG U.S. Large Stock Fund,
and Tomorrow Funds Retirement Trust, composed of the following series
investment companies: Tomorrow Short-Term Retirement Fund, Tomorrow
Medium-Term Retirement Fund, Tomorrow Long-Term Retirement Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
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XXXX XX XXX XXXXX XXX XXXXX XX THE
SCHEDULE A HERETO
By: /s/ Xxx X. Xxxxx
Name: Managing Director
Title: Xxx X. Xxxxx
FIRST DATA DISTRIBUTORS, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: V.P. and Treasurer
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SCHEDULE A
NAME OF FUNDS
Xxxxx, Xxxx & Xxxxx Funds Trust
WPG Government Money Market Fund
WPG Tax Free Money Market Fund
WPG Intermediate Municipal Bond Fund
WPG Core Bond Fund
WPG Quantitative Equity Fund
Xxxxx, Xxxx & Xxxxx International Fund
WPG Growth Fund
WPG Growth and Income Fund
WPG Tudor Fund
RWB/WPG U.S. Large Stock Fund
Tomorrow Funds Retirement Trust
Tomorrow Short-Term Retirement Fund
Tomorrow Medium-Term Retirement Fund
Tomorrow Long-Term Retirement Fund
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