EXHIBIT (e)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of May 1, 2003 by and between PROFESSIONAL
FUNDS DISTRIBUTOR, LLC, a Delaware limited liability company ("PFD"), and THE
ARMADA ADVANTAGE FUND, a Massachusetts business trust (the "Fund").
W I T N E S S E T H:
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 units of beneficial interest (such units of all series
are hereinafter called the "Shares"), representing interests in investment
portfolios of the Fund identified on Exhibit A hereto (the "Portfolios") which
are registered with the Securities and Exchange Commission (the "SEC") pursuant
to the Fund's Registration Statement on Form N-1A (the "Registration
Statement"); and
WHEREAS, the Fund wishes to retain PFD to serve as distributor for the
Portfolios to provide for the sale and distribution of the Shares of the
Portfolios identified on Exhibit A and for such additional classes or series as
the Fund may issue, and PFD wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
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(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Directors
or Trustees to give Oral Instructions and Written Instructions
on behalf of the Fund. An Authorized Person's scope of
authority may be limited by setting forth such limitation in a
written document signed by both parties hereto.
(d) "NASD" means the National Association of Securities Dealers,
Inc.
(e) "Oral Instructions" mean oral instructions received by PFD
from an Authorized Person or from a person reasonably believed
by PFD to be an Authorized Person. PFD may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(f) "Registration Statement" means any Registration Statement and
any Prospectus and any Statement of Additional Information
relating to the Fund filed with the SEC and any amendments or
supplements thereto at any time filed with the SEC.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, and the
0000 Xxx.
(h) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by PFD or (ii) trade
instructions transmitted (and received by PFD) by means of an
electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFD to serve as the distributor of
its Shares in accordance with the terms set forth in this Agreement. PFD
accepts such appointment and agrees to furnish such services. The Fund
understands that PFD 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
PFD's duties to such Investment Entities shall not be deemed in conflict
with its duties to the Fund under this Agreement.
3. DELIVERY OF DOCUMENTS.
(a) The Fund will provide PFD upon request with the following:
(i) Certified or authenticated copies of the resolutions
of the Fund's Board of Trustees approving the
appointment of PFD to provide underwriting services
to the Fund and approving this Agreement;
(ii) A copy of the Fund's most recent effective
Registration Statement;
(iii) Copies of any distribution and/or shareholder
servicing plans and agreements made in respect of the
Fund or a Portfolio;
(iv) A copy of the Fund's organizational documents, as
filed with the state in which the Fund is organized;
(v) Audited annual statements and unaudited semi-annual
statements of a Portfolio's books and accounts
prepared by the Fund;
(vi) Copies (certified or authenticated where applicable)
of any and all amendments or supplements to the
foregoing; and
(vii) Such other additional information as PFD may
reasonably request.
(b) The Fund agrees to advise PFD as soon as reasonably practical
by a notice in writing delivered to PFD:
(i) of any request by the SEC for amendments to the
Registration Statement, Prospectus or Statement of
Additional Information then in effect or for
additional information;
(ii) 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 the
initiation by service of process on the Fund of any
proceeding for that purpose;
(iii) of the happening of any event that makes untrue any
statement of a material fact made in the Registration
Statement, Prospectus or Statement of Additional
Information then in effect or that requires the
making of a change in such Registration Statement,
Prospectus or Statement of Additional Information in
order to make the statements therein not misleading;
and
(iv) of all actions of the SEC with respect to any
amendments to any Registration Statement, Prospectus
or Statement of Additional Information which may from
time to time be filed with the SEC.
For purposes of this paragraph, informal requests by or acts
of the staff of the SEC shall not be deemed actions of or
requests by the SEC.
4. COMPLIANCE WITH RULES AND REGULATIONS. PFD undertakes to comply with
all applicable requirements of the Securities Laws and any laws, rules
and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFD hereunder. Except as
specifically set forth herein, PFD assumes no responsibility for such
compliance by the Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFD shall act
only upon Oral Instructions or Written Instructions.
(b) PFD shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or
from a person reasonably believed by PFD to be an Authorized
Person) pursuant to this Agreement. PFD may assume that any
Oral Instruction or Written Instruction received hereunder is
not in any way inconsistent with the provisions of
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Fund's Board of Directors or
Trustees or of the Fund's shareholders, unless and until PFD
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFD Written Instructions
confirming Oral Instructions so that PFD receives the Written
Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFD or
differ from the Oral Instructions shall in no way invalidate
the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFD's ability to rely
upon such Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received
from an Authorized Person, PFD shall incur no liability to the
Fund in acting upon such Oral Instructions or Written
Instructions provided that PFD's actions comply with the other
provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFD is in doubt as to any action it
should or should not take, PFD may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) Advice of Counsel. If PFD shall be in doubt as to any question
of law pertaining to any action it should or should not take,
PFD may request advice at its own cost (unless, given the
matter in question, the parties agree that such cost should
properly be borne by the Fund) from counsel of its own
choosing (who may be counsel for the Fund, the Fund's
investment adviser or PFD, at the option of PFD).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFD receives from the Fund, and the advice it
receives from counsel, PFD may rely upon and follow the advice
of counsel. In the event PFD so relies on the advice of
counsel, it shall be responsible for any action or omission on
its part in carrying out such advice which constitutes willful
misfeasance, bad faith, negligence or reckless disregard by
PFD of any duties, obligations or responsibilities set forth
in this Agreement.
(d) Protection of PFD. PFD shall not be liable for any action
it takes or does not take in reliance upon directions or
advice or Oral Instructions or Written Instructions it
receives from the Fund or from counsel and which PFD believes,
in good faith, to be consistent with those directions or
advice or Oral Instructions or Written Instructions. Nothing
in this section shall be construed so as to impose an
obligation upon PFD (i) to seek such directions or advice or
Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions
or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of PFD's
properly taking or not taking such action. Nothing in this
subsection shall excuse PFD when an action or omission on its
part in carrying out such directions, advice, Oral
Instructions or Written Instructions constitutes willful
misfeasance, bad faith, negligence or reckless disregard by
PFD of any duties, obligations or responsibilities set forth
in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of PFD, shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable laws,
rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFD's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by PFD to the Fund or to an
Authorized Person, at the Fund's expense.
8. CONFIDENTIALITY.
(a) Each party shall keep confidential any information
relating to the other party's business ("Confidential
Information"). Confidential Information shall include
(a) any data or information that is competitively
sensitive material, and not generally known to the
public, including, but not limited to, information
about product plans, marketing strategies, finances,
operations, customer relationships, customer profiles,
customer lists, sales estimates, business plans, and
internal performance results relating to the past,
present or future business activities of the Fund or
PFD, 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
PFD a competitive advantage over its competitors; (c)
all confidential or proprietary concepts,
documentation, reports, data, specifications, computer
software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets,
whether or not patentable or copyrightable; and (d)
anything designated as confidential. Notwithstanding
the foregoing, information shall not be subject to such
confidentiality obligations if it: (a) is already known
to the receiving party at the time it is obtained; (b)
is or becomes publicly known or available through no
wrongful act of the receiving party; (c) is rightfully
received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party
to a third party without restriction; (e) is required
to be disclosed by the receiving party pursuant to a
requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the receiving party
will provide the other party written notice of such
requirement, to the extent such notice is permitted);
(f) is relevant to the defense of any claim or cause of
action asserted against the receiving party; or (g) has
been or is independently developed or obtained by the
receiving party.
(b) Notwithstanding any provision herein to the contrary,
each party hereto agrees that any Nonpublic Personal
Information, as defined under Section 248.3(t) of
Regulation S-P ("Regulation S-P"), promulgated under
the Xxxxx-Xxxxx-Xxxxxx Act (the "Act"), disclosed by a
party hereunder is for the specific purpose of
permitting the other party to perform the services set
forth in this Agreement. Each party agrees that, with
respect to such information, it will comply with
Regulation S-P and the Act and that it will not
disclose any Nonpublic Personal Information received in
connection with this Agreement to any other party,
except to the extent as necessary to carry out the
services set forth in this Agreement or as otherwise
permitted by Regulation S-P or the Act.
9. COMPENSATION. PFD shall be entitled to such compensation as is
provided for in the current prospectuses and statements of
additional information for the Portfolios. PFD shall be entitled
to reimbursement of its reasonable out-of-pocket expenses
incurred on behalf of the Fund, and which are the obligation of
the Fund under this Agreement, and are incurred by PFD in
connection with the implementation of this Agreement. The Fund
acknowledges that PFD may receive float benefits and/or
investment earnings in connection with maintaining certain
accounts required to provide services under this Agreement.
10. INDEMNIFICATION.
(a) The Fund agrees to indemnify and hold harmless PFD and
its affiliates from all taxes, charges, expenses,
assessments, claims and liabilities (including, without
limitation, reasonable attorneys' fees and
disbursements and liabilities arising under the
Securities Laws and any state and foreign securities
and blue sky laws) arising directly or indirectly from
any action or omission to act which PFD takes in
connection with the provision of services to the Fund.
Neither PFD, nor any of its affiliates, shall be
indemnified against any liability (or any expenses
incident to such liability) caused by PFD's or its
affiliates' own willful misfeasance, bad faith,
negligence or reckless disregard of its duties and
obligations under this Agreement.
(b) The Fund agrees to indemnify and hold harmless PFD, its
officers, directors, and employees, and any person who
controls PFD 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 or kind which PFD, 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, except insofar as such losses, claims,
costs, damages, charges, payments, liabilities or
expenses 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 PFD 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 by reason of PFD's willful
misfeasance, bad faith or negligence in the performance
of PFD's duties hereunder. The Fund acknowledges and
agrees that in the event that PFD, at the request of
the Fund, is required to give indemnification
comparable to that set forth in this paragraph to any
broker-dealer selling Shares of the Fund or servicing
agent servicing the shareholders of the Fund and such
broker-dealer or servicing agent shall make a claim for
indemnification against PFD, PFD shall make a similar
claim for indemnification against the Fund.
(c) PFD agrees to indemnify and hold harmless the Fund, its
officers and board members and each person, if any, who
controls a Portfolio within the meaning of Section 15
of the 1933 Act against any and all claims, costs,
expenses (including reasonable attorneys' fees),
losses, damages, charges, payments and liabilities of
any sort or kind which the Fund, its officers, board
members 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 liability
or expense incurred by the Fund, its officers or Board
Members, or any controlling person resulting from such
claims or demands 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 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 PFD or
its affiliated persons (as defined in the 1940 Act), or
by reason of PFD's willful misfeasance, bad faith or
negligence in the performance of PFD's duties
hereunder. The foregoing rights of indemnification
shall be in addition to any other rights to which the
Fund or any such person shall be entitled to as a
matter of law.
(d) 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
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 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. In the event that the
Indemnifying Party does not elect to assume the defense
of any such suit, or in case the Indemnified Party
reasonably does not approve of counsel chosen by the
Indemnifying Party, or in case there is a conflict of
interest between the Indemnifying Party or the
Indemnified Party, the Indemnifying Party will
reimburse the Indemnified Party for the fees and
expenses of any counsel retained by the Indemnified
Party. The Fund agrees promptly to notify PFD of the
commencement of any litigation or proceedings against
the Fund or any of its officers or directors in
connection with the issue and sale of any Shares. 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.
11. RESPONSIBILITY OF PFD.
(a) PFD shall be under no duty to take any action hereunder
on behalf of the Fund except as specifically set forth
herein or as may be specifically agreed to by PFD and
the Fund in a written amendment hereto. PFD shall be
obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good
faith in performing services provided for under this
Agreement. PFD shall be liable only for any damages
arising out of PFD's failure to perform its duties
under this Agreement to the extent such damages arise
out of PFD's willful misfeasance, bad faith, negligence
or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of
any other provision of this Agreement, (i) PFD shall
not be liable for losses beyond its control, including,
without limitation, delays or errors or loss of data
occurring by reason of circumstances beyond PFD's
control, provided that PFD has acted in accordance with
the standard set forth in Section 11(a) above; and (ii)
PFD shall not be under any duty or obligation to
inquire into and shall not be liable for the validity
or invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other
instrument which conforms to the applicable
requirements of this Agreement, and which PFD
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the
contrary, neither PFD nor its affiliates shall be
liable for any consequential, special or indirect
losses or damages, whether or not the likelihood of
such losses or damages was known by PFD or its
affiliates.
(d) Any claims (including the filing of a suit or, if
applicable, commencement of arbitration proceedings)
must be asserted by the Fund against PFD or any of its
affiliates within 24 months after the Fund became aware
of the claim or the Board of Trustees of the Fund is
informed of specific facts that should have alerted it
that a basis for such a claim might exist.
(e) Each party shall have a duty to mitigate damages for
which the other party may become responsible.
12. DUTIES AND OBLIGATIONS OF THE FUND.
(a) The Fund represents to PFD that all Registration
Statements and Prospectuses filed by the Fund with the
SEC under the 1933 Act with respect to the Shares have
been prepared in conformity with the requirements of
the 1933 Act and the rules and regulations of the SEC
thereunder. Except as to information included in the
Registration Statement in reliance upon information
provided to the Fund by PFD or any affiliate of PFD
expressly for use in the Registration Statement, the
Fund represents and warrants to PFD that any
Registration Statement, when such Registration
Statement becomes effective, will contain statements
required to be stated therein in conformity with the
1933 Act and the rules and regulations of the SEC; that
all statements of 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. PFD may but shall not be
obligated to propose 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 PFD's counsel, be necessary or advisable. PFD 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 undertake to implement such
amendment or amendments and/or supplement or
supplements within fifteen days after receipt by the
Fund of a written request from PFD to do so, PFD may,
at its option, terminate this Agreement, except in the
case where counsel to the Fund has opined that such
amendment and/or supplement is not required for
compliance with the Securities Laws. The Fund shall not
file any amendment to any Registration Statement or
supplement to any Prospectus without giving PFD
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. The Fund
authorizes PFD to use any 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 represents and warrants to PFD that the Fund
is a series investment company registered under the
1940 Act and the Shares sold by each Portfolio are, and
will be, registered under the 1933 Act.
(c) The net asset value of the Shares shall be determined
in the manner provided in the then current Prospectus
and Statement of Additional Information relating to the
Shares, and when determined shall be applicable to all
transactions as provided in the Prospectus. The net
asset value of the Shares shall be calculated by the
Fund or by another entity on behalf of the Fund. PFD
shall have no duty to inquire into, or liability for,
the accuracy of the net asset value per Share as
calculated.
(d) 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 PFD promptly of such
determination.
(e) The Fund agrees 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 PFD may designate. The Fund
shall notify PFD in writing of the states in which the
Shares may be sold and shall notify PFD in writing of
any changes to the information contained in the
previous notification.
13. DUTIES AND OBLIGATIONS OF PFD.
(a) PFD will act on behalf of the Fund for the distribution
of the Shares covered by the Registration Statement
under the 1933 Act and provide the distribution
services outlined below and as follows:
(i) preparation and execution of sales or servicing
agreements,
(ii) preparation of quarterly reports to the Board,
(iii) sales literature submission to the NASD,
(iv) facilitate financing of sales commissions for
applicable Share classes,
(v) establishing and maintaining numbers on NSCC,
(vi) establishing and removing CUSIPS on NSCC,
(vii) processing of 12b-1 payments, and
(viii)such other duties as are or may become
considered to be customary duties of an
investment company's principal underwriter.
(b) PFD agrees to use efforts deemed appropriate by PFD
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 PFD receives fees under any plan adopted by
the Fund pursuant to Rule 12b-1 under the 1940 Act, PFD
agrees to furnish and/or enter into arrangements with,
and to compensate from such fees, 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 PFD receives shareholder services
fees under any shareholder services plan adopted by the
Fund, PFD agrees to furnish and/or enter into
arrangements with, and to compensate from such fees,
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 PFD will enter into
sales or servicing agreements with securities dealers,
financial institutions and other industry
professionals, such as investment advisers, accountants
and estate planning firms. PFD will require each dealer
with whom PFD has a selling agreement to conform to the
applicable provisions of the Prospectus, with respect
to the public offering price of the Shares, and PFD
shall not cause the Fund to withhold the placing of
purchase orders so as to make a profit thereby.
(c) PFD shall not utilize any materials in connection with the
sale or offering of Shares except the Fund's Prospectus and
Statement of Additional Information and such other materials
as the Fund shall provide or approve. The Fund agrees to
furnish PFD with sufficient copies of any and all
agreements, plans, communications with the public or other
materials which the Fund intends to use in connection any
sales of Shares, in adequate time for PFD to file and clear
such materials with the proper authorities before they are
put in use. PFD and the Fund may agree that any such
material does not need to be filed subsequent to
distribution. In addition, the Fund agrees not to use any
such materials until so filed and cleared for use, if
required, by appropriate authorities as well as by PFD.
(d) PFD will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Fund.
PFD will have no liability for payment for the purchase of
Shares sold pursuant to this Agreement or with respect to
redemptions or repurchases of Shares.
(e) No Shares shall be offered by either PFD or the Fund under
any of the provisions of this Agreement and no orders for
the purchase or 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 paragraph 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 Code of
Regulations.
14. DURATION AND TERMINATION. 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 (as defined in the 1940 Act and Rule 18f-2 thereunder)
of the outstanding voting securities of the Fund, provided that
in either event the continuance is also approved by a majority of
the board members 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, 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
(as defined in the 1940 Act and Rule 18f-2 thereunder) of the
outstanding voting securities of the Fund, or by PFD. This
Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act and the rules thereunder).
In the event the Fund gives notice of termination, all expenses
associated with movement (or duplication) of records and
materials and conversion thereof to a successor transfer agent or
other service provider, and all trailing expenses incurred by
PFD, will be borne by the Fund.
15. NOTICES. Notices shall be addressed (a) if to PFD, at 000 Xxxxx Xxxx,
Xxxx xx Xxxxxxx, Xxxxxxxxxxxx 00000, Attention:
President; (b) if to the Fund, at National City Bank, 0000 Xxxx
Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxx 00000, Attn: Xxxxxxxx
Xxxx, with a copy to W. Xxxxx XxXxxxxx, III, Esquire, Drinker
Xxxxxx & Xxxxx LLP, One Xxxxx Square, 18th and Cherry Streets,
Philadelphia, Pennsylvania 19103-6996, or (c) if to neither of
the foregoing, at such other address as shall have been given by
like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be
deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three
days after it has been mailed. If notice is sent by messenger, it
shall be deemed to have been given on the day it is delivered.
16. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against
whom enforcement of such change or waiver is sought.
17. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
19. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties and
supersedes all prior agreements and understandings relating
to the subject matter hereof, provided that the parties may
embody in one or more separate documents their agreement, if
any, with respect to delegated duties.
(b) No Changes that Materially Affect Obligations.
Notwithstanding anything in this Agreement to the contrary,
the Fund agrees not to make any modifications to its
Registration Statement or adopt any policies which would
affect materially the obligations or responsibilities of PFD
hereunder without the prior written approval of PFD, which
approval shall not be unreasonably withheld or delayed.
(c) Captions. The captions in 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.
(d) Governing Law. This Agreement shall be deemed to be a
contract made in Delaware and governed by Delaware law,
without regard to principles of conflicts of law.
(e) Partial Invalidity. If any provision of this Agreement
shall be held or made invalid by a court decision, statute,
rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
(f) No Representations or Warranties. Except as expressly
provided in this Agreement, PFD hereby disclaims all
representations and 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. PFD
disclaims any warranty of title or non-infringement except
as otherwise set forth in this Agreement.
(g) Facsimile Signatures. The facsimile signature of any party
to this Agreement shall constitute the valid and binding
execution hereof by such party.
(h) Xxxxxxxx-Xxxxx Certifications. PFD acknowledges that it may
from time to time provide certain information that is
necessary to complete a report or other filing that is
required to be certified by certain of the Fund's officers
pursuant to Section 302 and 906 of the Xxxxxxxx-Xxxxx Act of
2002 (the "Act") and rules and regulations promulgated from
time to time thereunder (each such report or other filing, a
"Certified Report"). PFD agrees that any information PFD
provides that is necessary to complete a Certified Report,
to its knowledge, will be true and complete when given. PFD
further agrees that any written representation or
certification it provides to the Fund and/or the officers of
the Fund in support of a certification by them to the SEC
pursuant to the Act and/or any rules and regulations issued
from time to time thereunder, to its knowledge, will be true
and correct and complete when given. This covenant shall
survive termination of this Agreement.
(i) Business Trust. The name The Armada Advantage Fund and of
any investment portfolio thereof, and any reference to the
"Trustees" of The Armada Advantage Fund, refer respectively
to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under
the Declaration of Trust which is hereby referred to and a
copy of which is on file at the office of the State
Secretary of the Commonwealth of Massachusetts and at the
principal office of the Trust. The obligations of The Armada
Advantage Funds entered into in its name, or on behalf of
any of its investment portfolios, or on behalf thereof by
any of the Trustees, representatives or agents, are made not
individually, but in such capacities, and are not binding
upon any of the Trustees, shareholders or representatives of
the Trust personally, but bind only the Trust property, and
all persons dealing with any class of shares of the Trust
must look solely to the Trust property belonging to such
class for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PROFESSIONAL FUNDS DISTRIBUTOR, LLC
By:
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Title:
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THE ARMADA ADVANTAGE FUND
By:
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Title:
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EXHIBIT A
THIS EXHIBIT A, dated as of May 1, 2003, is Exhibit A to that certain
Underwriting Agreement dated as of May 1, 2003, between Professional Funds
Distributor, LLC and The Armada Advantage Fund.
PORTFOLIOS
Armada Advantage Bond Fund
Armada Advantage Mid Cap Growth Fund
Armada Advantage Small Cap Growth Fund
Armada Advantage International Equity Fund
Armada Advantage Equity Growth Fund
Armada Advantage Balanced Allocation Fund
