Exhibit 23(e)(iv)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of December 1, 2003 by and between
PROFESSIONAL FUNDS DISTRIBUTOR, LLC, a Delaware Limited Liability Company
("Professional Funds Distributor"), and WT MUTUAL FUND, a Delaware 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 Professional Funds Distributor 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 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 Shares 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
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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 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 a Portfolio's books and accounts
prepared by the Fund;
(vi) Monthly itemized list of the securities in the
Portfolio;
(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
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practical by a notice in writing delivered to Professional
Funds Distributor:
(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.
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(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 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.
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(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.
(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
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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 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
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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
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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 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.
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(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 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
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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 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 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 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
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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 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,
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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 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 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 PROFESSIONAL FUNDS DISTRIBUTOR.
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(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 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
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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 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
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
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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. 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
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
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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 Professional Funds
Distributor that the Fund is a series of 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. Professional Funds Distributor 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 Professional Funds
Distributor 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
Professional Funds Distributor may designate. The Fund shall
notify Professional Funds Distributor in writing of the states
in which the Shares may be sold and
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shall notify Professional Funds Distributor in writing of any
changes to the information contained in the previous
notification.
13. DUTIES AND OBLIGATIONS OF PROFESSIONAL FUNDS DISTRIBUTOR.
(a) Professional Funds Distributor 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 12b-1 Reports to the Board, (iii) literature
review, recommendations and submission to the NASD, and (iv)
such other services as 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 Shares and will undertake such
advertising and promotion as it believes reasonable in
connection with such solicitation. To the extent that
Professional Funds Distributor receives fees under any plan
adopted by the Fund pursuant to Rule 12b-1 under the 1940 Act,
Professional Funds Distributor agrees to furnish and/or enter
into arrangements with others for the furnishing of marketing
or sales services with respect to the Shares as may be
required pursuant to such plan. To the extent that
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
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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 public
offering price of the Shares, and Professional Funds
Distributor shall not cause the Fund to withhold the placing
of purchase orders so as to make a profit thereby.
(c) Professional Funds Distributor 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 Professional Funds Distributor 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 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 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
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or redemption of the Shares to the transfer agent for the
Fund. Professional Funds Distributor 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 Professional Funds
Distributor 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, 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
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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 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). 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 Professional
Funds Distributor, will be borne by the Fund.
15. NOTICES. Notices shall be addressed (a) if to Professional Funds
Distributor, at 000 Xxxxx Xxxx, Xxxx xx Xxxxxxx, XX 00000, Attention:
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
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a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
17. NON-SOLICITATION. During the term of this Agreement and for a period of
one year afterward, the Fund shall not recruit, solicit, employ or
engage, for the Fund or any other person, any of Professional Funds
Distributor's employees.
18. 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.
19. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
20. 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.
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(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) 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
23
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:
Title:
WT MUTUAL FUND
By:
Title:
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EXHIBIT A
THIS EXHIBIT A, dated as of December 1, 2003, is Exhibit A to that
certain Underwriting Agreement dated as of December 1, 2003, between
Professional Funds Distributor, LLC. and WT Mutual Fund.
PORTFOLIOS
Wilmington Premier Money Market Portfolio
Wilmington Prime Money Market Portfolio
Wilmington U.S. Government Portfolio
Wilmington Tax-Exempt Portfolio
Wilmington Short-Term Income Portfolio
Wilmington Short/Intermediate Bond Portfolio
Wilmington Broad Market Bond Portfolio
Wilmington Municipal Bond Portfolio
Wilmington Small Cap Core Portfolio
Wilmington Large Cap Core Portfolio
Wilmington Balanced Portfolio
Wilmington International Multi-Manager Portfolio
Wilmington Real Estate Portfolio
Wilmington Small Cap Growth Portfolio
Wilmington Mid Cap Growth Portfolio
Wilmington Large Cap Growth Portfolio
Wilmington Small Cap Value Portfolio
Wilmington Mid Cap Value Portfolio
Wilmington Large Cap Value Portfolio
Xxxxxxxxx Premier Money Market Portfolio
Xxxxxxxxx Real Estate Portfolio
The Roxbury Mid Cap Growth Fund
CRM Prime Money Market Fund
CRM Tax-Exempt Fund
CRM Broad Market Bond Fund
CRM Municipal Bond Fund
CRM Small Cap Value Fund
CRM Mid Cap Value Fund
CRM Large Cap Value Fund
Wilmington Small Cap Strategic Allocation Fund
Wilmington Mid Cap Strategic Allocation Fund
Wilmington Large Cap Strategic Allocation Fund
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