EXHIBIT 24(2)(h)(i)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of January 1, 2004 by and between
PROFESSIONAL FUNDS DISTRIBUTOR, LLC, a Delaware Limited Liability Company
("Professional Funds Distributor"), and WILMINGTON LOW VOLATILITY FUND OF FUNDS,
a Delaware statutory trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end investment company
under the Investment Company Act of 1940, as amended (the "1940 Act"), and will
offer beneficial interests (such beneficial interests are hereinafter called
"Interests") in the Fund which are registered with the Securities and Exchange
Commission (the "SEC") pursuant to the Fund's Registration Statement on Form N-2
(the "Registration Statement"); and
WHEREAS, the Fund wishes to retain Professional Funds Distributor to
serve as distributor for the Fund to provide for the sale and distribution of
the Interests and Professional Funds Distributor 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:
(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 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.
(d) "NASD" means the National Association of Securities Dealers,
Inc.
(e) "Oral Instructions" mean oral instructions received by
Professional Funds Distributor from an Authorized Person or
from a person reasonably believed by Professional Funds
Distributor to be an Authorized Person. Professional Funds
Distributor 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 Professional Funds
Distributor or (ii) trade instructions transmitted (and
received by Professional Funds Distributor) 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 Professional Funds Distributor to
serve as the distributor of its Interests in accordance with the terms
set forth in this Agreement. Professional Funds Distributor accepts
such appointment and agrees to furnish such services. The Fund
understands that Professional Funds Distributor is now, and may in the
future be, the distributor of the interests/shares of several
investment companies or
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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 interests/shares of such other Investment Entities.
The Fund agrees that Professional Funds Distributor'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 has provided or, where applicable, will provide
Professional Funds
Distributor with the following:
(i) At Professional Funds Distributor's request,
certified or authenticated copies of the resolutions
of the Fund's Board of Trustees, approving the
appointment of Professional Funds Distributor or its
affiliates to provide 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 the books and accounts prepared by the
Fund;
(vi) Monthly itemized list of the securities in the Fund;
(vii) Copies (certified or authenticated where applicable)
of any and all amendments or supplements to the
foregoing; and
(viii) Such other additional information as Professional
Funds Distributor may reasonably request.
(b) The Fund agrees to advise Professional Funds Distributor as
soon as reasonably practical by a notice in writing delivered
to Professional Funds Distributor:
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(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. Professional Funds Distributor
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
Professional Funds Distributor hereunder. Except as specifically set
forth herein, Professional Funds Distributor assumes no responsibility
for such compliance by the Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, Professional
Funds Distributor shall act only upon Oral Instructions or
Written Instructions.
(b) Professional Funds Distributor shall be entitled to rely upon
any Oral Instruction or Written Instruction it receives from
an Authorized Person (or from a person
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reasonably believed by Professional Funds Distributor to be an
Authorized Person) pursuant to this Agreement. Professional
Funds Distributor 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 Trustees or of the Fund's shareholders,
unless and until Professional Funds Distributor receives
Written Instructions to the contrary.
(c) The Fund agrees to forward to Professional Funds Distributor
Written Instructions confirming Oral Instructions so that
Professional Funds Distributor 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
Professional Funds Distributor or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or Professional Funds Distributor's ability to
rely upon such Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received
from an Authorized Person, Professional Funds Distributor
shall incur no liability to the Fund in acting upon such Oral
Instructions or Written Instructions provided that
Professional Funds Distributor's actions comply with the other
provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If Professional Funds Distributor is in
doubt as to any action it should or should not take,
Professional Funds Distributor may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
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(b) Advice of Counsel. If Professional Funds Distributor shall be
in doubt as to any question of law pertaining to any action it
should or should not take, Professional Funds Distributor may
request advice from counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or
Professional Funds Distributor, at the option of Professional
Funds Distributor).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions Professional Funds Distributor receives from the
Fund, and the advice it receives from counsel, Professional
Funds Distributor may rely upon and follow the advice of
counsel.
(d) Protection of Professional Funds Distributor. Professional
Funds Distributor shall be protected in 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 Professional Funds Distributor
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 Professional Funds Distributor
(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 Professional Funds
Distributor's properly taking or not taking such action.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of Professional Funds
Distributor, shall be the property of the Fund. Such books and records
shall be prepared and maintained as required by the
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1940 Act and other applicable securities laws, rules and regulations.
The Fund and Authorized Persons shall have access to such books and
records at all times during Professional Funds Distributor's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by Professional Funds
Distributor 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 Professional Funds
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 Professional Funds
Distributor 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
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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. As compensation for services rendered by Professional
Funds Distributor during the term of this Agreement, the Fund will pay
to Professional Funds Distributor a
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fee or fees as may be agreed to from time to time in writing by the
Fund and Professional Funds Distributor. The Fund acknowledges that
Professional Funds Distributor 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 Professional
Funds Distributor and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including,
without limitation, 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
Professional Funds Distributor takes in connection with the
provision of services to the Fund. Neither Professional Funds
Distributor, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such
liability) caused by Professional Funds Distributor's or its
affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations
under this Agreement.
(b) The Fund agrees to indemnify and hold harmless Professional
Funds Distributor, its officers, Trustees, and employees, and
any person who controls Professional Funds Distributor within
the meaning of Section 15 of the 1933 Act, free and harmless
(a) 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
Professional Funds Distributor, its officers, directors,
employees or any such controlling person may incur under the
1933 Act, under
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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, claims, damages, 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 Professional Funds 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), such
indemnification is not applicable; and (b) from and against
any and all such claims, demands, liabilities and expenses
(including such costs and counsel fees) which you, your
officers and directors, or such controlling person, may incur
in connection with this Agreement or Professional Funds
Distributor's performance hereunder (but excluding such
claims, demands, liabilities and expenses (including such
costs and counsel fees) arising out of or based upon any
untrue statement, or alleged untrue statement, of a material
fact contained in any Registration Statement or any Prospectus
or arising out of or based upon any omission, or alleged
omission, to state a material fact required to be stated in
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either any Registration Statement or any Prospectus or
necessary to make the statements in either thereof not
misleading), unless such claims, demands, liabilities and
expenses (including such costs and counsel fees) arise by
reason of Professional Funds Distributor's willful
misfeasance, bad faith or gross negligence in the performance
of Professional Funds Distributor's duties hereunder. The Fund
acknowledges and agrees that in the event that Professional
Funds Distributor, at the request of the Fund, is required to
give indemnification comparable to that set forth in this
paragraph to any broker-dealer selling Interests 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 Professional Funds Distributor,
Professional Funds Distributor shall make a similar claim for
indemnification against the Fund.
(c) Professional Funds Distributor agrees to indemnify and hold
harmless the Fund, its several 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 Interests by any person which may be based
upon any untrue statement, or alleged untrue statement, of a
material fact contained in the Fund's
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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 Professional Funds
Distributor or its affiliated persons (as defined in the 1940
Act). 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
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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 Professional Funds Distributor of the commencement of
any litigation or proceedings against the Fund or any of its
officers or Trustees in connection with the issue and sale of
any Interests. 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 PROFESSIONAL FUNDS DISTRIBUTOR.
(a) Professional Funds Distributor 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 Professional Funds Distributor and the Fund in a written
amendment hereto. Professional Funds Distributor 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. Professional Funds
Distributor shall be liable only for any damages arising out
of Professional Funds Distributor's failure to perform its
duties under this Agreement to the extent such damages arise
out of Professional Funds Distributor's willful misfeasance,
bad faith, gross negligence or reckless disregard of such
duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this
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Agreement, (i) Professional Funds Distributor 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 Professional Funds
Distributor's control, provided that Professional Funds
Distributor has acted in accordance with the standard set
forth in Section 11(a) above; and (ii) Professional Funds
Distributor 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 Professional Funds Distributor reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither Professional Funds Distributor 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 Professional Funds Distributor
or its affiliates.
(d) No party may assert a cause of action against Professional
Funds Distributor or any of its affiliates that allegedly
occurred more than 12 months immediately prior to the filing
of the suit (or, if applicable, commencement of arbitration
proceedings) alleging such cause of action.
(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 Professional Funds Distributor that all
Registration Statements and Prospectuses filed by the Fund
with the SEC under the 1933 Act
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with respect to the Interests 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 Professional Funds
Distributor or any affiliate of Professional Funds Distributor
expressly for use in the Registration Statement, the Fund
represents and warrants to Professional Funds Distributor 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 Interests.
Professional Funds Distributor 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 Professional Funds Distributor's
counsel, be necessary or advisable. Professional Funds
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
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written request from Professional Funds Distributor to do so,
Professional Funds 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 Professional Funds 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. The Fund authorizes
Professional Funds Distributor to use any Prospectus or
Statement of Additional Information in the form furnished from
time to time in connection with the sale of the Interests.
(b) The Fund represents and warrants to Professional Funds
Distributor that the Fund is an investment company registered
under the 1940 Act and the Interests sold are, and will be,
registered under the 1933 Act.
(c) The valuation of Interests shall be determined in the manner
provided in the then current Prospectus. Professional Funds
Distributor shall have no duty to inquire into, or liability
for, the accuracy of the valuation as calculated.
13. DUTIES AND OBLIGATIONS OF PROFESSIONAL FUNDS DISTRIBUTOR.
(a) Professional Funds Distributor will act on behalf of the Fund
for the distribution of the Interests 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) literature review, recommendations and submission to the
NASD, and (iii) such other services as
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Professional Funds Distributor shall agree to provide.
(b) Professional Funds Distributor agrees to use efforts deemed
appropriate by Professional Funds Distributor to solicit
orders for the sale of the Interests. To the extent that
Professional Funds Distributor receives shareholder services
fees under any shareholder services plan adopted by the Fund,
Professional Funds 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 Professional Funds
Distributor 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. Professional Funds Distributor will
require each dealer with whom Professional Funds Distributor
has a selling agreement to conform to the applicable
provisions of the Prospectus, with respect to the offering of
the Interests.
(c) Professional Funds Distributor shall not utilize any materials
in connection with the sale or offering of Interests 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 Professional Funds Distributor with
sufficient copies of any and all: agreements, plans,
communication or other materials which the Fund intends to
use, in adequate time for Professional Funds Distributor to
file and clear such materials with the proper authorities
before they are put in use. Professional Funds Distributor and
the Fund may agree that any such material does not need to be
filed subsequent to distribution. In addition, the
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Fund agrees not to use any such materials until so filed and
cleared for use, if required, by appropriate authorities as
well as by Professional Funds Distributor.
(d) Professional Funds Distributor will transmit any orders
received by it for purchase or redemption of Interests to the
investor services agent for the Fund.
(e) No Interests shall be offered by either Professional Funds
Distributor or the Fund under any of the provisions of this
Agreement and no orders for the purchase or sale of Interests
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 Interests tendered for redemption by any
shareholder in accordance with the provisions of the Fund's
Registration Statement, Articles of Incorporation, or bylaws.
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)
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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 Professional Funds Distributor. This
Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act and the rules thereunder).
15. NOTICES. Notices shall be addressed (a) if to Professional Funds
Distributor, at 000 Xxxxx Xxxx, Xxxx xx Xxxxxxx, XX 00000, Attention:
Xxxxxxx Xxxxxxxxx, President; (b) if to the Fund, at c/o Wilmington
Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000,
Attention: Xxxx X. Xxxxx 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.
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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 Professional Funds
Distributor hereunder without the prior written approval of
Professional Funds Distributor, 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 limit
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.
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(f) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(g) No Representations or Warranties. Except as expressly provided
in this Agreement, Professional Funds Distributor 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.
Professional Funds Distributor disclaims any warranty of title
or non-infringement except as otherwise set forth in this
Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
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: /s/ Xxxx X. Xxxxxxxxx
Title: President
WILMINGTON LOW VOLATILITY FUND OF
FUNDS
By: /s/ Xxxx X. Xxxxx
Title: Vice President & CFO
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