SUB-DISTRIBUTION AGREEMENT BY AND BETWEEN QUASAR DISTRIBUTORS, LLC AND GENWORTH FINANCIAL ASSET MANAGEMENT FUNDS
BY
AND BETWEEN
QUASAR
DISTRIBUTORS, LLC
AND
THIS AGREEMENT (“Agreement”) is made as
of this 8th day of March 2007, by and between Genworth Financial Asset
Management Funds (the “Trust”), on behalf of each of its series
listed on Schedule A, attached hereto, which may be amended from time to
time, and Quasar Distributors, LLC, a Delaware limited liability company (the
“Sub-Distributor”).
WHEREAS, the Trust is a registered
open-end management investment company under the Investment Company Act of 1940
(the ‘1940 Act’); and
WHEREAS, the Trust desires that its
shares be permitted to be traded through Fund/SERV and participate in the
Networking System (“Networking”) and any other relevant programs or services
offered by the National Securities Clearing Corporation (“NSCC”) now and in the
future; and
WHEREAS, the Sub-Distributor is
currently a member of the NSCC and at the request of the Trust, desires to
assist the Trust with expediting its trading in Fund/SERV and its participation
in Networking.
NOW, THEREFORE, in consideration of the
mutual promises and agreements herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. Procedures
(a) The
Sub-Distributor agrees to permit the Trust’s trading through Fund/SERV and
participation in Networking through the Sub-Distributor’s NSCC membership, and
such other programs and services as may be offered by NSCC as the parties may
mutually agree, subject to the terms and conditions herein. Except as noted
above, the Sub-Distributor is not responsible or liable for any distribution
activities on behalf of the Trust.
(b) The
Sub-Distributor shall enter into a Fund Member Additional Member Agreement with
NSCC pursuant to which an additional number will be issued in conjunction with
the Sub-Distributor’s NSCC activities on behalf of each portfolio listed on
Schedule A hereto. The Sub-Distributor shall in no way be deemed to
act as a distributor or underwriter for the Trust through its sponsorship of the
Trust. U.S. Bancorp Fund Services, LLC, (“USBFS”) in its role as
transfer agent for the Trust or NSCC operational agent for Quasar, shall act as
agent for the sole purposes of mutual fund settlement and Networking pursuant to
the terms of the Transfer Agent Servicing Agreement by and between the Trust and
USBFS. USBFS shall only settle trades in U.S. Dollars. The
Trust or its designee shall be responsible for any settlements with the NSCC
transacted with non-U.S. dollars.
(c) Upon
the request of the Trust and in reliance on the terms hereof, and in order to
expedite the trading of the Trust through NSCC and participation in Networking
and any other relevant programs and services offered by NSCC as agreed to by the
parties, the Sub-Distributor has agreed to guarantee the payment to NSCC of any
and all fees and charges imposed by NSCC from time to time relating to the
Trust’s transactions with NSCC, and has assumed responsibility with respect to
NSCC for all transactions in and all obligations and liabilities relating to the
Trust’s clearing number and participation in Networking.
(d) This
Agreement shall be effective as of the date hereof and shall continue in effect
until terminated by either party upon 90 days written notice, with the exception
that Section 3(b) and Section 3(c) will survive indefinitely the termination of
the Sub-Distributor’s participation in NSCC on behalf of the
Trust. It is understood that the Sub-Distributor may, in its sole
discretion, and at any time, terminate any or all of its participation in NSCC
on behalf of the Trust. In the event the Sub-Distributor elects to
cease these services, it will provide prompt notice to the Trust.
Sub-Distributor will provide prompt notice to Trust upon receipt of the Trust’s
NSCC membership number. Notice(s) shall be sent to the respective
address of each party listed below. It
is specifically agreed that the termination of this Agreement shall not affect
the obligations of USBFS under the Transfer Agent Servicing
Agreement.
2. Duties
and Representations of the Trust.
(a) The
Trust represents that it is duly organized and in good standing under the law of
its jurisdiction of incorporation and registered as an open-end management
investment company under the 1940 Act. The Trust agrees that it will
act in material conformity with its Declaration of Trust, By-Laws, its
Registration Statement as may be amended from time to time and resolutions and
other instructions of its Board. The Trust agrees to comply in all
material respects with the 1933 Act, the 1940 Act, and all other applicable
federal and state laws and regulations. The Trust represents and
warrants that this Agreement has been duly authorized by all necessary action by
the Trust under the 1940 Act, state law and the Trust’s Declaration of Trust and
By-Laws.
(b) The
Trust shall take or cause to be taken all necessary action to register shares of
the Trust under the 1933 Act and to maintain an effective Registration Statement
for such shares in order to permit the sale of Shares as herein
contemplated.
(c) The
Trust represents and agrees that all shares to be sold by it are validly
authorized and, when issued in accordance with the description in the
Prospectus, will be fully paid and nonassessable. The Trust further
agrees that it shall have the right to suspend the sale of shares of the Trust
at any time in response to conditions in the securities markets or otherwise,
and to suspend the redemption of shares of the Trust at any time permitted by
the 1940 Act or the rules of the Securities and Exchange Commission
(“SEC”). The Trust shall advise the Sub-Distributor promptly of any
such determination.
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(d) The Trust shall file such reports and
other documents as may be required under applicable federal and state laws and
regulations.
(e) The
Trust agrees to file from time to time such amendments to its Registration
Statement and Prospectus as may be necessary in order that its Registration
Statement and Prospectus will not contain any untrue statement of material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(f) The
Trust represents and warrants that its Registration Statement and any
advertisements and sales literature of the Trust (excluding statements relating
to the Sub-Distributor and the services it provides that are based upon written
information furnished by the Sub-Distributor expressly for inclusion therein)
shall not contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(g) The
Trust represents and warrants that it will submit a wire transfer to USBFS
relating to the transactions of the Trust with the NSCC. The wire
transfer shall match the exact amount wired by Sub-Distributor to the NSCC
relating to transactions of the Trust. In the event USBFS does not
receive a wire transfer of the exact amount of the settlement from the Trust at
or prior to NSCC settlement, USBFS shall be entitled to receive interest upon
any unpaid sum at prime rate.
3. Payment of Charges,
Expenses, Obligations; Liability
(a) As compensation for the
services performed and the expenses assumed by Sub-Distributor under this
Agreement, Sub-Distributor shall be entitled to the fees and expenses set forth
in Schedule A to this Agreement which are payable promptly after the last day of
each month. Such fees shall be paid to Sub-Distributor by the
Trust.
(b) The Trust shall
indemnify, defend and hold harmless the Sub-Distributor and its affiliates from
and against any and all actions, suits, claims, demands, losses, expenses,
charges and liabilities whether with or without basis in fact or law (including
the costs of investigating or defending any alleged actions, suits, claims,
demands, losses, expenses, charges and liabilities) of any and every nature
which the Sub-Distributor or its affiliates may sustain or incur or which may be
asserted against the Sub-Distributor or its affiliates by any person arising
directly or indirectly out of, resulting from, or in conjunction with the
Sub-Distributor’s participation in Fund/SERV, Networking and any other relevant
programs or services offered by the NSCC, now and in the future, on behalf of
the Trust; provided, however, that the Sub-Distributor shall not be indemnified
against any actions, suits, claims, demands, losses, expenses, charges and
liabilities to the extent arising out of the Sub-Distributor’s willful
misfeasance, negligence or reckless disregard of its duties and obligations in
participating in the foregoing on behalf of the Trust.
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(c) the Sub-Distributor
agrees to indemnify and hold harmless the Trust and its affiliates from and
against any and all actions, suits, claims, demands, losses, expenses, charges
and liabilities resulting from any acts or failures to act undertaken or omitted
to be taken by the Sub-Distributor through its bad faith, willful misconduct,
negligence or reckless disregard by it of its obligations with respect to the
performance of services under this Agreement.
(d) The Trust shall take all such
actions as may reasonably be requested by the Sub-Distributor to implement the
understandings described herein with respect to the Sub-Distributor’s activities
with NSCC on behalf of the Trust.
4. Governing
Law.
This Agreement shall be construed in
accordance with the laws of the State of Wisconsin, without regard to conflicts
of law principles. To the extent that the applicable laws of the
State of Wisconsin, or any of the provisions herein, conflict with the
applicable provisions of the 1940 Act, the latter shall control, and nothing
herein shall be construed in a manner inconsistent with the 1940 Act or any rule
or order of the SEC thereunder
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5.
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Arbitration
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Any controversy or claim arising out of
or relating to this Agreement, or any breach thereof, shall be settled by
arbitration in accordance with the then existing NASD Code of Arbitration
Procedure. Any arbitration shall be conducted in Milwaukee,
Wisconsin, and each arbitrator shall be from the securities
industry. Judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
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6.
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Confidentiality.
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The Sub-Distributor agrees on behalf of
its employees to treat all records relative to the Company and prior, present or
potential shareholders of the Company as confidential, and not to use such
records for any purpose other than performance of the Sub-Distributor’s
responsibilities and duties under this Agreement, except after notification and
prior approval by the Company, which approval shall not be unreasonably
withheld, and may not be withheld where the Sub-Distributor may be exposed to
civil or criminal proceedings for failure to comply, when requested to divulge
such information by duly constituted authorities, when subject to governmental
or regulatory audit or investigation, or when so requested by the
Company. Records and information which have become known to the
public through no wrongful act of the Sub-Distributor or any of its employees,
agents or representatives shall not be subject to this paragraph.
7. Anti-Money Laundering
Program.
Trust
represents and warrants that it has adopted an anti-money laundering program
(“AML Program”) that complies with the Bank Secrecy Act, as amended by the USA
PATRIOT Act, and any future amendments (the “PATRIOT Act,” and together with the
Bank Secrecy Act, the “Act”), the rules and regulations under the Act, and the
rules, regulations and regulatory guidance of the SEC, the NASD or any other
applicable self-regulatory organization (collectively, “AML Rules and
Regulations”). Trust further represents that its AML Program, at a minimum, (1)
designates a compliance officer to administer and oversee the AML Program, (2)
provides ongoing employee training, (3) includes an independent audit function
to test the effectiveness of the AML Program, (4) establishes internal policies,
procedures, and controls that are tailored to its particular business, (5) will
include a customer identification program consistent with the rules under
section 326 of the Act, (6) provides for the filing of all necessary anti-money
laundering reports including, but not limited to, currency transaction reports
and suspicious activity reports, (7) provides for screening all new and existing
customers against the Office of Foreign Asset Control (“OFAC”) list and any
other government list that is or becomes required under the Act, and (8) allows
for appropriate regulators to examine Trust’s AML books and
records.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their officers designated as of the day and year first above
written
Quasar Distributors, LLC
(the “Sub-Distributor”)
By: /s/ Xxxxx
Xxxxxxxxx
Xxxxx Xxxxxxxxx,
President
000 Xxxx Xxxxxxxx
Xxxxxx
Xxxxxxxxx, XX
00000
(“Trust”)
By: /s/ Xxxxxx
XxXxxxxx
Xxxxxx XxXxxxxx, Vice
President, Asst. Sec’y
00000 Xxxxxxx Xxxx. Xxx
000
Xxxxxx, XX
00000
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Schedule
A
to
NSCC
Agreement
by
and between
Quasar
Distributors, LLC and
NSCC
Sub-Distribution Annual Services
$[__]
per month per NSCC participant
Plus
out-of-pocket expenses for all future proposals
Out-of-pocket
expenses include bank charges, wire charges, NSCC charges
Fees are
billed monthly
PORTFOLIOS
Genworth
Financial Contra Fund
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