Exhibit (e)
UNDERWRITING AGREEMENT
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THIS AGREEMENT is made as of August 25, 2004 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:
(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.
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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;
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(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.
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(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.
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(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.
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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.
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(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.
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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 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.
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(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.
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(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.
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(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.
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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.
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(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.
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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.
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(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.
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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.
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(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.
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(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.
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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.
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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.
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(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.
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(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.
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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/XXXXXXXX X. XXXXXXXXX
------------------------
Title: Vice President
THE ARMADA ADVANTAGE FUND
By: /S/XXXXXXX X. XXXXXXX
----------------------
Title: President
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EXHIBIT A
THIS EXHIBIT A, dated as of August 25, 2004, is Exhibit A to that
certain Underwriting Agreement dated as of August 25, 2004, between Professional
Funds Distributor, LLC and The Armada Advantage Fund.
PORTFOLIOS
Armada Advantage Institutional Money Market Fund
