XXX XXXXXX FUNDS INC.
DEALER AGREEMENT
FOR THE SALE OF UNIT INVESTMENT TRUSTS
Xxx Xxxxxx Funds Inc. ("VKFI") serves as the principal underwriter for
the Xxx Xxxxxx group of investment companies, including unit investment trusts
(each, a "Trust," and, collectively, the "Trusts"). VKFI and _________________
("Dealer") hereby agree that Dealer will participate in the distribution of
units ("Units") of the Trusts, subject to the terms of this Dealer Agreement,
dated as of _______________, 200__ ("Agreement").
SECTION 1. LICENSING
a. Dealer represents and warrants that: (i) it is a broker-dealer registered
with the Securities and Exchange Commission ("SEC"); (ii) it is a member in
good standing of NASD; (iii) it is licensed by the appropriate regulatory
agency of each state or other jurisdiction in which Dealer will offer and
sell Units of the Trusts; and (iv) each of its partners, directors,
officers, employees, and agents who will participate or otherwise be
involved in the offer or sale of the Units or the performance by Dealer of
its duties and activities under this Agreement is either appropriately
licensed or exempt from such licensing requirements by the appropriate
regulatory agency of each state or other jurisdiction in which Dealer will
offer and sell Units of the Trusts.
b. Dealer agrees that: (i) termination or suspension of its registration with
the SEC; (ii) termination or suspension of its membership with NASD; or
(iii) termination or suspension of its license to do business by any state
or other jurisdiction shall immediately cause the termination of this
Agreement. Dealer further agrees to notify VKFI promptly in writing of any
such action or event.
c. Dealer agrees that this Agreement is in all respects subject to the Conduct
Rules of NASD and such Conduct Rules shall control any provision to the
contrary in this Agreement. Without limiting the generality of the
foregoing, Dealer acknowledges that it is solely responsible for all
suitability determinations with respect to offers and sales of Units of the
Trusts to Dealer's customers and that VKFI has no responsibility for the
manner of Dealer's performance of, or for Dealer's acts or omissions in
connection with, the duties and activities Dealer performs under this
Agreement.
d. Dealer agrees to be bound by and to comply with all applicable federal and
state laws and all rules and regulations promulgated thereunder generally
affecting the sale or distribution of investment company shares or classes
of such shares, including anti-money laundering laws and regulations and
applicable guidance issued by the Department of the Treasury, the SEC and
NASD.
SECTION 2. TERMS AND CONDITIONS APPLICABLE TO DISTRIBUTION OF TRUSTS
The following provisions relate to the offer and sale of Units of each
Trust.
a. Orders
(i) Dealer agrees to offer and sell Units of the Trusts
only at the regular public offering price applicable to
such Units and in effect at the time of each
transaction. The procedures relating to all orders and
the handling of each order (including the manner of
computing the net asset value of Units and the
effective time of orders received from Dealer) are
subject to: (A) the terms of the then-current
prospectus (including any supplements, stickers or
amendments thereto) relating to each Trust (or, as
appropriate, class thereof), as filed with the SEC
(collectively, the "Prospectus"); and (B) VKFI's
written instructions, if any, as provided to Dealer
from time to time. To the extent that the Prospectus
contains provisions that are inconsistent with this
Agreement or any other document, the terms of the
Prospectus shall be controlling.
(ii) VKFI reserves the right at any time, and without notice
to Dealer, to suspend the sale of Units or to withdraw
or limit the offering of Units.
(iii) In all offers and sales of the Units to the public,
Dealer is not authorized to act as broker or agent for,
or employee of, VKFI, any Trust or any other dealer,
and Dealer shall not represent to any third party that
Dealer has such authority or is acting in such
capacity. Rather, Dealer agrees that it is acting as
principal for Dealer's own account or as agent on
behalf of Dealer's customers in all transactions in
Units, except as provided in Section 2.b. (viii)
hereof.
(iv) All orders are subject to acceptance by VKFI in its
sole discretion and become effective only upon
confirmation by VKFI. VKFI reserves the unqualified
right not to accept any specific order for the purchase
or sale of Units.
(v) Dealer acknowledges that from time to time it may use
VKFI's Broker Online Securities System Network
("BOSSNET") to submit electronic purchase and/or
rollover orders for Units, among other things.
Notwithstanding anything to the contrary in this
Agreement and in addition to the provisions of this
Agreement, use of BOSSNET (including any similar
upgraded or replacement system) shall be subject to
such terms and conditions as may from time to time be
required by VKFI ("BOSSNET Terms"). To the extent that
any BOSSNET Terms are inconsistent with this Agreement,
such BOSSNET Terms shall be controlling.
(vi) Dealer acknowledges that from time to time it may use
the Investor's Voluntary Redemptions and Sales
("IVORS") automated redemption and rollover service to
tender Units for redemption directly to the trustee of
a Trust, to sell Units back to VKFI for repurchase, or
to conduct rollover transactions for certain Trusts.
Notwithstanding anything to the contrary in this
Agreement and in addition to the provisions of this
Agreement, use of IVORS shall be subject to such terms
and conditions as may from time to time be required by
the trustee of a Trust and/or by Depository Trust
Company ("IVORS Terms"). To the extent that any IVORS
Terms are inconsistent with this Agreement, such IVORS
Terms shall be controlling.
b. Duties of Dealer
(i) Dealer agrees to enter orders for the purchase of Units
only for the purpose of covering purchase orders Dealer
has already received from its customers or for Dealer's
own bona fide investment.
(ii) Dealer agrees to date and time stamp all orders for the
purchase or sale of Units received by Dealer, and to
promptly forward such orders to VKFI in time for
processing at the public offering price next determined
after receipt of such orders by Dealer, in each case as
described in the applicable Prospectus. Dealer
represents that it has procedures in place reasonably
designed to ensure that orders received by Dealer are
handled in a manner consistent with Rule 22c-1 under
the Investment Company Act of 1940, as amended (the
"1940 Act"), and any SEC staff positions or
interpretations issued thereunder.
(iii) Dealer agrees not to withhold placing orders for Units
with VKFI so as to profit itself as a result of such
inaction.
(iv) Dealer agrees to maintain records of all purchases and
sales of Units made through Dealer and to furnish VKFI
or regulatory authorities with copies of such records
upon request. Dealer agrees to perform all federal,
state and local reporting and recordkeeping
requirements with respect to customer accounts,
including, without limitation, redemptions and
exchanges.
(v) Dealer agrees to distribute or cause to be delivered to
its customers Prospectuses, unitholder reports and any
other materials in compliance with applicable legal
requirements, except to the extent that VKFI expressly
undertakes in writing to do so on Dealer's behalf.
(vi) Dealer agrees that payment for Units ordered from VKFI
shall be in Fed Funds, New York clearinghouse or other
immediately available funds and that such funds shall
be received by VKFI by the earlier of: (A) the end of
the third (3rd) business day following Dealer's receipt
of the customer's order to purchase such Units; or (B)
the settlement date established in accordance with Rule
15c6-1 under the Securities Exchange Act of 1934 (the
"1934 Act"). If such payment is not received by VKFI by
such date, Dealer shall forfeit its right to any
compensation with respect to such order, and VKFI
reserves the right, without notice, to cancel the sale,
or, at its option, to sell the Units ordered back to
the Trust, in which case VKFI may hold Dealer
responsible for any loss, including loss of profit,
suffered by VKFI resulting from Dealer's failure to
make payment. If a purchase is made by check, the
purchase is deemed made upon conversion of the purchase
instrument into Fed Funds, New York clearinghouse or
other immediately available funds.
(vii) Dealer agrees that it shall assume responsibility for
any loss to the Trust caused by a correction to any
order placed by Dealer that is made subsequent to the
trade date for the order, to the extent such order
correction was not based on any negligence on VKFI's
part. Dealer further agrees that it will immediately
pay such loss to the Trust upon notification.
(viii) Dealer agrees that, in connection with orders for the
purchase of Units on behalf of any IRAs, 401(k) plans
or other retirement plan accounts, by mail, telephone,
or wire, Dealer shall act as agent for the custodian or
trustee of such plans (solely with respect to the time
of receipt of the application and payments), and Dealer
shall not place such an order with VKFI until it has
received from its customer payment for such purchase
and, if such purchase represents the first contribution
to such a retirement plan account, the completed
documents necessary to establish the retirement plan.
(ix) Dealer agrees that it will not make any conditional
orders for the purchase or redemption of Units and
acknowledges that VKFI will not accept conditional
orders for Units.
(x) Dealer agrees that all out-of-pocket expenses incurred
by it in connection with its activities under this
Agreement will be borne by Dealer.
c. Reduced Sales Charges
In accordance with the terms of each applicable Prospectus, Dealer
acknowledges that a reduced sales charge or no sales charge (collectively,
"discounts") may be available to purchasers of Units. Dealer represents that it
has, and will maintain during the term of this Agreement, adequate written
supervisory procedures and internal controls to ensure that Dealer's customers
receive all available discounts, and Dealer agrees: (A) to inform its customers
of applicable discount opportunities and to inquire about other qualifying
holdings that might entitle customers to receive discounts; (B) to advise VKFI,
contemporaneously with each purchase order it forwards to VKFI as agent for its
customers, of the availability of any discounts; and (C) that in the event that
Dealer fails to provide VKFI with information concerning the availability of
discounts as provided in (B) above, Dealer, and not VKFI or the Trusts, shall be
responsible for reimbursing its customer any applicable discount amount.
d. Dealer Compensation
(i) In return for providing the services set forth in this
Agreement, Dealer shall be entitled to any concessions
and/or sales charges (collectively, "Concessions") set
forth in the Prospectus of the applicable Trust. In
determining the amount payable to Dealer hereunder,
VKFI reserves the right to exclude any sales which it
reasonably determines are not made in accordance with
the terms of the Prospectus and provisions of this
Agreement.
(ii) Dealer agrees that each Trust may, without prior
notice, suspend or eliminate the payment of any
compensation by amendment, sticker or supplement to the
then current Prospectus for such Trust. VKFI shall have
no obligation to pay any compensation to Dealer for the
sale of Units of a Trust until VKFI receives the
related compensation from the Trust, and VKFI's
liability to Dealer for such payments is limited solely
to the related compensation that VKFI receives from
such Trust.
e. Redemptions, Repurchases and Exchanges of Trusts
(i) Dealer agrees that it will not make any representations
to unitholders relating to the redemption of their
Units other than the statements contained in the
applicable Prospectus and the underlying organizational
documents of the Trust to which it refers, and that
Dealer will pay as redemption proceeds to unitholders
the net asset value, minus any applicable deferred
sales charge or redemption fee, determined after
receipt of the order as discussed in the Prospectus.
(ii) Dealer agrees not to repurchase any Units from its
customers at a price below that next quoted by a Trust
for redemption or repurchase, i.e., at the net asset
value of such Units, less any applicable redemption
fee, in accordance with the Trust's Prospectus. Dealer
shall, however, be permitted to sell Units for the
account of the customer or record owner to a Trust at
the repurchase price then currently in effect for such
Units and may charge the customer or record owner a
fair service fee or commission for handling the
transaction, provided Dealer discloses the fee or
commission to the customer or record owner.
Nevertheless, Dealer agrees that it shall not maintain
a secondary market in such repurchased Units.
(iii) Dealer agrees that, with respect to a redemption order
it has made, if instructions in proper form, including
any outstanding certificates, are not received by VKFI
within the time customary or required by law, the
redemption may be canceled without any responsibility
or liability on VKFI's part or on the part of any
Trust, or VKFI, at its option, may buy the shares
redeemed on behalf of the Trust, in which latter case
VKFI may hold Dealer responsible for any loss,
including loss of profit, suffered by VKFI resulting
from VKFI's failure to settle the redemption.
(iv) Dealer agrees that if any Unit is repurchased by any
Trust or is tendered for redemption within seven (7)
business days after confirmation by VKFI of the
original purchase order from Dealer, Dealer shall
forfeit its right to any compensation with respect to
such Unit and shall forthwith refund to VKFI the full
compensation, if any, paid to Dealer on the original
sale. VKFI agrees to notify Dealer of such repurchase
or redemption within a reasonable time after
settlement. Termination or cancellation of this
Agreement shall not relieve Dealer from its obligation
under this provision.
(v) Dealer agrees that it will comply with any restrictions
and limitations on exchanges described in each Trust's
Prospectus, including any restrictions or prohibitions
relating to frequent purchases and redemptions (i.e.,
market timing).
f. Trust Information
(i) Dealer agrees that neither it nor any of its partners,
directors, officers, employees, and agents is
authorized to give any information or make any
representations concerning Units of any Trust except
those contained in the Trust's Prospectus or in
materials provided by VKFI.
(ii) VKFI will supply to Dealer reasonable quantities of
Prospectuses, sales literature, sales bulletins, and
additional sales information as approved by VKFI.
Dealer is not authorized to modify or translate any
such materials without VKFI's prior written consent.
Dealer agrees to use only advertising or sales material
relating to the Trusts that: (A) is supplied by VKFI,
or (B) conforms to the requirements of all applicable
laws or regulations of any government or authorized
agency having jurisdiction over the offering or sale of
Units of the Trusts and is approved in writing by VKFI
in advance of its use. Such approval may be withdrawn
by VKFI in whole or in part upon written notice to
Dealer, and Dealer shall, upon receipt of such notice,
immediately discontinue the use of such sales
literature, sales bulletins and advertising.
SECTION 3. REGISTRATION OF UNITS
a. VKFI acts solely as agent for the Trusts and VKFI shall have no obligation
or responsibility with respect to Dealer's right to purchase or sell Units
in any jurisdiction.
b. VKFI shall periodically furnish Dealer with information identifying the
states or jurisdictions in which it is believed that all necessary notice,
registration or exemptive filings for Units have been made under applicable
securities laws such that offers and sales of Units may be made in such
states or jurisdictions. VKFI shall have no obligation to make such notice,
registration or exemptive filings with respect to Units in any state or
jurisdiction.
c. Dealer agrees not to transact orders for Units in states or jurisdictions
in which it has been informed that Units may not be sold or in which it and
its personnel are not authorized to sell Units.
d. VKFI shall have no responsibility, under the laws regulating the sale of
securities in the United States or any foreign jurisdiction, with respect
to the qualification or status of Dealer or Dealer's personnel selling
Trust Units. VKFI shall not, in any event, be liable or responsible for the
issue, form, validity, enforceability and value of such Units or for any
matter in connection therewith.
e. Dealer agrees that it will make no offers or sales of Units in any foreign
jurisdiction, except with the express written consent of VKFI.
SECTION 4. INDEMNIFICATION
a. Dealer agrees to indemnify, defend and hold harmless VKFI and the Trusts
and their directors, trustees, officers, employees, shareholders, agents,
affiliates and each person who controls or is controlled by VKFI, within
the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), from any and all losses, claims, liabilities, costs, and expenses,
including attorney fees (collectively, "Losses"), that may be assessed
against or suffered or incurred by any of them howsoever they arise, and as
they are incurred, which relate in any way to: (i) Dealer's lack of good
faith, negligence, or willful misconduct in carrying out its duties and
responsibilities under this Agreement; (ii) the failure of Dealer to comply
with any applicable law, rule or regulation (including, without limitation,
the securities laws and regulations of the United States or any state or
jurisdiction) in connection with the offer or sale by Dealer of Units of
the Trusts pursuant to this Agreement, or the discharge of any of its other
duties and responsibilities under this Agreement; (iii) any alleged tort or
breach of contract related to the offer or sale by Dealer of Units of the
Trusts pursuant to this Agreement (except to the extent that VKFI's
negligence or failure to follow correct instructions received from Dealer
is the cause of such Loss); (iii) any redemption or exchange pursuant to
instructions received from Dealer or its directors, trustees, officers,
partners, employees, agents, or affiliates; (iv) incorrect investment
instructions received by VKFI from Dealer; or (v) the breach by Dealer of
any of its representations and warranties specified herein or the Dealer's
failure to comply with the terms and conditions of this Agreement, whether
or not such action, failure, error, omission, misconduct or breach is
committed by Dealer or its directors, trustees, officers, partners,
employees, agents, affiliates or any person who controls or is controlled
by Dealer within the meaning of the Securities Act.
b. VKFI agrees to indemnify, defend and hold harmless Dealer and its
directors, trustees, officers, partners, employees, agents, affiliates and
each person who controls or is controlled by Dealer, within the meaning of
the Securities Act, from any and all Losses that may be assessed against or
suffered or incurred by any of them howsoever they arise, and as they are
incurred, which relate in any way to (i) VKFI's lack of good faith, gross
negligence, or willful misconduct in carrying out its duties and
responsibilities under this Agreement; (ii) the failure of VKFI to comply
with any applicable law, rule or regulation in connection with the
discharge of its duties and responsibilities under this Agreement; (iii)
any untrue statement of a material fact, or any omission to state a
material fact, contained in a Prospectus or in any written sales literature
or other marketing materials provided by VKFI to the Dealer, or (iv) the
breach by VKFI of any of its representations and warranties specified
herein or VKFI's failure to comply with the terms and conditions of this
Agreement, whether or not such action, failure, error, omission, misconduct
or breach is committed by VKFI or its directors, officers, employees,
agents, affiliates or any person who controls or is controlled by VKFI
within the meaning of the Securities Act.
c. Dealer agrees to notify VKFI, within a reasonable time, of any claim or
complaint or any enforcement action or other proceeding with respect to
Units offered hereunder against Dealer or its partners, affiliates,
officers, directors, employees or agents, or any person who controls
Dealer, within the meaning of Section 15 of the Securities Act.
SECTION 5. TERMINATION; AMENDMENT
a. In addition to the automatic termination of this Agreement specified in
Section 1.b. of this Agreement, each party to this Agreement may
unilaterally cancel its participation in this Agreement by giving thirty
(30) days prior written notice to the other party. In addition, each party
to this Agreement may, in the event of a material breach of this Agreement
by the other party, terminate this Agreement immediately by giving written
notice to the other party, which notice sets forth in reasonable detail the
nature of the breach. Such notice shall be deemed to have been given and to
be effective on the date on which it was either delivered personally to the
other party or any officer or member thereof, or was mailed postpaid or
delivered to a telegraph office for transmission to the other party's
designated person at the addresses shown herein.
b. This Agreement shall terminate immediately upon the appointment of a
trustee under the Securities Investor Protection Act or any other act of
insolvncy by Dealer.
c. The termination of this Agreement by any of the foregoing means shall have
no effect upon transactions entered into prior to the effective date of
termination and shall not relieve Dealer of its obligations, duties and
indemnities specified in this Agreement. A trade placed by Dealer
subsequent to its voluntary termination of this Agreement will not serve to
reinstate the Agreement. Reinstatement, except in the case of a temporary
suspension of Dealer, will only be effective upon written notification by
VKFI.
d. This Agreement is not assignable or transferable and will terminate
automatically in the event of its "assignment," as defined in the 1940 Act,
and the rules, regulations and interpretations thereunder. VKFI may,
however, transfer any of its duties under this Agreement to any entity that
controls or is under common control with VKFI.
e. This Agreement may be amended by VKFI at any time by written notice to
Dealer. Dealer's placing of an order or accepting payment of any kind after
the effective date and receipt of notice of such amendment shall constitute
Dealer's acceptance of such amendment.
f. Dealer acknowledges and agrees that if Dealer terminates this Agreement,
VKFI may, without liability of any kind,
(i) refuse to establish any account with respect to any
affected customer;
(ii) delay the establishment of any account with respect to
any affected customer;
(iii) close accounts previously established with respect to
any affected customer;
(iv) refuse to engage in any transactions (except redemption
requests) with respect to any affected customer;
(v) cancel any pending transactions (except redemption
requests) with respect to any affected customer;
(vi) liquidate the account of any affected customer; and
(vii)return to the appropriate person securities or other
property held in such customer's account.
SECTION 6. REPRESENTATIONS AND WARRANTIES
a. VKFI represents and warrants that:
(i) It is a corporation duly organized and existing and in
good standing under the laws of the state of Delaware
and is duly registered or exempt from registration as a
broker-dealer in all states and jurisdictions in which
it provides services as a non-exclusive distributor for
the Trusts.
(ii) It is a member in good standing of NASD.
(iii) It is empowered under applicable laws and by VKFI's
organizational documents to enter into this Agreement
and perform all activities and services of VKFI
provided for herein and that there are no impediments,
prior or existing, regulatory, self-regulatory,
administrative, civil or criminal matters affecting
VKFI's ability to perform under this Agreement.
(iv) All requisite actions have been taken to authorize VKFI
to enter into and perform this Agreement.
b. In addition to the representations and warranties found elsewhere in this
Agreement, Dealer represents and warrants that:
(i) It is duly organized and existing and in good standing
under the laws of the state, commonwealth or other
jurisdiction in which Dealer is organized and that
Dealer will not offer Units of any Trust for sale in
any state or jurisdiction where such Units may not be
legally sold or where Dealer is not qualified to act as
a broker-dealer.
(ii) It is empowered under applicable laws and by Dealer's
organizational documents to enter into this Agreement
and perform all activities and services of the Dealer
provided for herein and that there are no impediments,
prior or existing, regulatory, self-regulatory,
administrative, civil or criminal matters affecting
Dealer's ability to perform under this Agreement.
(iii) All requisite actions have been taken to authorize
Dealer to enter into and perform this Agreement.
(iv) It is not, at the time of the execution of this
Agreement, subject to any enforcement or other
proceeding with respect to its activities under state
or federal securities laws, rules or regulations.
(v) It has, and will maintain during the term of this
Agreement, appropriate broker's blanket bond insurance
policies covering any and all acts of Dealer's
directors, trustees, officers, partners, employees, and
agents reasonably necessary in light of its obligations
under this Agreement, with coverage limits in amounts
standard in the industry adequate to reasonably protect
and indemnify VKFI and the Trusts against any Loss
which any party may suffer or incur, directly or
indirectly, as a result of any action or omission by
Dealer or Dealer's directors, officers, partners,
employees, and agents. The mere purchase and existence
of insurance does not reduce or release Dealer from
liability incurred and/or assumed within the scope of
this Agreement. Dealer's failure to maintain insurance
shall not relieve it of liability under this Agreement.
(vi) It is a "financial institution" as defined in 31 U.S.C.
5312(a)(2) or (c)(1) and is regulated by a "Federal
functional regulator" as defined in 31
CFRss.103.120(a)(2).
(vii) If any of the representations set forth in Section 7
or Section 8 at any time ceases to be true, Dealer
shall promptly notify VKFI of this fact. Such notice
shall be provided in accordance with Section 16.
SECTION 7. ANTI-MONEY LAUNDERING RESPONSIBILITY
a. Dealer represents and warrants that it is in compliance and will continue
to be in compliance with all applicable anti-money laundering laws and
regulations, including the Bank Secrecy Act, as amended by the USA PATRIOT
Act, and implementing regulations of the Bank Secrecy Act ("BSA
Regulations") and applicable guidance issued by the SEC and the guidance
and rules of the applicable Exchanges, SROs and NASD (collectively,
"Guidance").
b. Dealer represents and warrants that to the extent that any of its customers
who maintain Trust accounts is a current or former Senior Foreign Political
Figure ("SFPF"), an immediate family member of a SFPF, a person who is
widely known (or is actually known by the Dealer) to maintain a close
personal relationship with any such individual, or a corporation, business
or other entity that has been formed by or for the benefit of such
individual, it has conducted appropriate due diligence of such customer
consistent with Section 312 of the USA PATRIOT Act and any applicable BSA
Regulations and Guidance.
c. Dealer represents and warrants that to the extent its customers who
maintain Trust accounts are foreign banks, it has taken reasonable measures
and has obtained certifications and will obtain recertifications that
indicate that the customers are not foreign shell banks, as defined in the
BSA Regulations.
d. Dealer will take all reasonable and practicable steps to ensure that it
does not accept or maintain investments in any Trust, directly or
indirectly, from:
(i) A person or entity (A) who is or becomes subject to
sanctions administered by the U.S. Office of Foreign
Assets Control ("OFAC"), is included in any executive
order or is on the list of Specially Designated
Nationals and Blocked Persons maintained by OFAC, or
(B) whose name appears on such other lists of
prohibited persons and entities as may be mandated by
applicable U.S. law or regulation.
(ii) A foreign shell bank (i.e., a bank with no physical
presence in any country).
e. Dealer agrees to immediately notify in writing the Anti-Money Laundering
Compliance Officer of VKFI if it becomes aware of any suspicious activity
or pattern of activity or any activity that may require further review to
determine whether it is suspicious in connection with the Trusts.
SECTION 8. MARKET TIMING
Dealer covenants that it shall cooperate with VKFI to identify and
discourage market timers. If any market timer buying or redeeming Units comes to
the attention of Dealer, it will immediately notify VKFI. Dealer acknowledges
that VKFI may refuse a request to purchase Units if VKFI believes such purchase
request includes a request by a market timer.
SECTION 9. CONFIDENTIALITY
All books, records, information and data pertaining to the business of
the other party ("Confidential Information") that are exchanged or received in
connection with this Agreement shall be kept confidential and shall not be
voluntarily disclosed to any other person, except (i) if such information is
already publicly available; (ii) as may be required solely for the purpose of
carrying out a party's duties and responsibilities under this Agreement; (iii)
as required by order or demand of a court or other governmental or regulatory
body or as otherwise required by law; (iv) as may be required to be disclosed to
a party's attorneys, accountants, regulatory examiners or insurers for
legitimate business purposes; or (v) with the express prior written permission
of the other party.
SECTION 10. PRIVACY
Dealer represents that it has adopted and implemented procedures to
safeguard customer information and records that are reasonably designed to: (a)
ensure the security and confidentiality of customer records and information; (b)
protect against any anticipated threats or hazards to the security or integrity
of customer records and information; (c) protect against unauthorized access to
or use of customer records or information that could result in substantial harm
or inconvenience to any customer; (d) protect against unauthorized disclosure of
non-public personal information to unaffiliated third parties; and (e) otherwise
ensure Dealer's compliance with SEC Regulation S-P adopted pursuant to the
Xxxxx-Xxxxx-Xxxxxx Act of 1999 and any other federal or state privacy laws which
may be enacted in the future.
SECTION 11. SETOFF; GOVERNING LAW
a. Should any of Dealer's compensation accounts with VKFI have a debit
balance, or should Dealer otherwise owe any amounts to VKFI, VKFI shall be
permitted to offset and recover the amount owed from any account Dealer has
with VKFI, without notice or demand to Dealer.
b. This Agreement shall be governed and construed in accordance with the laws
of the state of New York, without reference to the choice-of-law principles
thereof.
SECTION 12. INVESTIGATIONS AND PROCEEDINGS
The parties to this Agreement agree to cooperate fully in any
securities regulatory investigation or proceeding or judicial proceeding with
respect to each party's activities under this Agreement and promptly to notify
the other party of any such investigation or proceeding.
SECTION 13. CAPTIONS
All captions used in this Agreement are for convenience only and are
not to be used in construing or interpreting any aspect hereof.
SECTION 14. SEVERABILITY
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law.
If, however, any provision of this Agreement is held under applicable law to be
invalid, illegal, or unenforceable in any respect, such provision shall be
ineffective only to the extent of such invalidity, and the validity, legality
and enforceability of the remaining provisions of this Agreement shall not be
affected or impaired in any way.
SECTION 15. SURVIVAL
The representations, warranties, covenants and agreements of the
undersigned contained in this Agreement, including, without limitation, the
indemnity agreement contained in Section 5 hereof, shall survive any termination
of this Agreement.
SECTION 16. NOTICES
Every notice required by this Agreement will be in writing and deemed
given (i) the next business day if sent by a nationally recognized overnight
courier service that provides evidence of receipt, (ii) the same business day if
sent by 3:00 p.m. (receiving party's time) by facsimile transmission and
confirmed by a telephone call, or (iii) on the third business day if sent by
certified mail, return receipt requested. Unless otherwise notified in writing,
all notices to VKFI shall be given or sent to VKFI at its offices, located at:
Xxx Xxxxxx Funds Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn.: General Counsel
Unless otherwise notified in writing, all notices to Dealer shall be
given or sent to Dealer at the Dealer's address shown on the signature page to
this Agreement.
SECTION 17. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the parties hereto
with respect to the subject matter contained herein and supersedes all previous
agreements and/or understandings of the parties. This Agreement shall be binding
upon the parties hereto when signed by Dealer and accepted by VKFI.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first set forth above.
XXX XXXXXX FUNDS INC.
By: _________________________________
Xxxxxx Xxxxxxx, Executive Director
Date: ________________________________
DEALER: _____________________________
By: _________________________________
(Signature)
Name: _________________________________
Title: _________________________________
Date: _________________________________
Address: ________________________________
------------------------------------------
Telephone: (___) ________________
Facsimile: (___) ________________
NASD CRD #: ___________________________
TAX ID #: __________________________________
