1
EXHIBIT (H)(18)
AGREEMENT
This Agreement is made as of 11th day of October, 1999, between
American Express Financial Advisors Inc. ("Broker"), a Delaware corporation, and
Xxxxxxxx Xxxxx Funds Inc. ("Fund Party").
WHEREAS, Fund Party is the investment advisor or distributor of
open-end investment companies with one or more series or classes of shares (each
being referred to as a "Fund");
WHEREAS, Fund Party wishes Broker, a broker-dealer, to make Fund
shares, for Funds which advisor or distributor has now or in the future,
available to its customers;
WHEREAS, Broker would place purchase, redemption, and exchange orders
for Fund shares, on its customers' behalf through an omnibus clearing
relationship with a broker/dealer having an amount or accounts with each Fund
for such purposes and under a direct contractual relationship with the Funds to
which Broker is not a party; and
WHEREAS, Broker is only willing to place such orders for its customers
upon receiving certain assurances and indemnifications directly from Fund Party.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises set forth below, the parties agree as follows:
Compliance Responsibilities
Fund Party is responsible for (i) the compliance of each prospectus,
registration statement, annual or other periodic report, proxy statement and
item of advertising or marketing material of or relating to each Fund with all
applicable laws, rules and regulations (except for advertising or marketing
material prepared by Broker that was not published or provided to Broker by or
on behalf of Fund Party or any Affiliate (defined below) or accurately derived
from information published or provided by or on behalf of Fund Party or any
Affiliate), (ii) the tabulation of returned proxies, (iii) the registration or
qualification of shares of each Fund under all applicable laws, rules and
regulations, and (iv) the compliance by Fund, Fund Party, and each Affiliate, as
that term is defined below, with all applicable laws, rules and regulations
(including the Investment Company Act of 1940, as amended (the "1940 Act"), and
the Investment Advisers Act of 1940, as amended), and the rules and regulations
of each self-regulatory organization with jurisdiction over Fund, Fund Party, or
any Affiliate, except to the extent that the failure to so comply by Fund, Fund
Party, or any Affiliate is caused by Broker's failure to comply with all
applicable laws, rules and regulations (including the Investment Company Act of
1940, as amended (the "1940 Act"), and the Investment Advisers Act of 1940, as
amended), and the rules and regulations of each self-regulatory organization
with jurisdiction over Broker. For purposes of this Agreement, an "Affiliate" of
a person means (i) any person directly or indirectly controlling, controlled by,
or under common control with, such person, (ii) any officer, director, partner,
corporation, or employee of such person, and (iii) if such person is an
investment company, any investment advisor thereof 'or any member of the
advisory board thereof.
Broker is responsible for Broker's compliance with all applicable laws, rules
and regulations governing Broker's purchase, redemption, and exchange
transactions on behalf of its customers, except to the extent that Broker's
1
2
failure to comply with any law, rule or regulation is caused by Fund Party's
breach of this Agreement, or its willful misconduct or negligence in the
performance or failure to perform its obligations under this Agreement.
Indemnification
Fund Party shall indemnify and hold harmless Broker and each director, officer,
employee and agent of Broker from and against any and all claim.%, demands,
actions, losses, damages, liabilities, costs, charges, reasonable counsel fees,
and expenses of any nature it or they may incur ("Losses") arising out of (i)
any inaccuracy or omission in any prospectus, registration statement, annual or
other periodic report or proxy statement of any Fund or in any advertising or
promotional material generated by any Fund or Fund Party or Affiliate or
accurately based on any information published or provided by Fund Party or any
Fund or Affiliate, or (ii) any breach by Fund Company of any representation,
warranty or agreement contained in this Agreement, except to the extent such
Losses are caused by Broker's breach of this Agreement or its willful misconduct
or negligence in the performance, or failure to perform, its obligations under
this Agreement.
Broker shall indemnify and hold harmless Fund Party, each trust or corporation
of which a Fund is a series and each director, officer, employee and agent of
Fund Party or any such trust or corporation, from and against any and all Losses
arising out of (i) any inaccuracy or omission in any advertising or promotional
material generated by Broker, or (ii) any breach by Broker of any
representation, warranty or agreement contained in this Agreement, except to the
extent such Losses are caused by Fund Party's breach of this Agreement or its
willful misconduct or negligence in the performance, or failure to perform, its
obligations under this Agreement.
Representation and Warranties
Fund Party and each Fund represent and warrant to Broker that Fund Party, each
Fund and the persons executing this Agreement on its behalf, are duly authorized
and empowered to execute and deliver this Agreement.
Broker represents and warrants that: (i) it and the persons executing this
Agreement on its behalf are duly authorized and empowered to enter into this
Agreement; (ii) it is, and shall remain for the terms of this Agreement, duly
registered as a broker-dealer under the Securities Exchange Act of 1934, as
amended; (iii) it is, and shall remain for the term of this Agreement, duly
registered as a broker-dealer under the laws of each state or territory of the
United States in which Broker Dealer makes shares of any Fund available to its
customers; (iv) it is a member in good standing of the National Association of
Securities Dealers, Inc. ("NASD"); and (v) all of its personnel requiring
registration under federal or state securities laws or under the rules of the
NASD are and will remain so registered as required by such laws or rules.
Entire Agreement, Amendment
This Agreement constitutes the entire agreement between the parties as
to the subject matter hereof and supersedes any and all agreements,
representations and warranties, written or oral, between the parties regarding
such subject matter made prior to the date on which this Agreement has been
executed and delivered by Broker and Fund Party.
Effectiveness of Agreement; Term
This Agreement may be terminated by either party as to any Fund upon 90
days' written notice, or upon such shorter notice as is required by law, order,
or instruction by a court of competent jurisdiction or a regulatory body or
self-regulatory organization with jurisdiction over the terminating party.
2
3
Assignability
This Agreement is not assignable by either party without the other
party's prior written consent; provided that either party may assign its rights
and obligations under this, Agreement to any corporation that controls, is
controlled by, or is under common control with the party.
Applicable Law and Arbitration
Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
Arbitration. Any dispute between the parties concerning this Agreement not
resolved between the parties shall be arbitrated in accordance with the rules
and regulations of the National Association of Securities Dealers. In the event
of any dispute between Broker and Fund Party, Fund Party shall continue to so
perform its obligations under this Agreement in good faith during the resolution
of such dispute unless and until THIS Agreement is terminated in accordance with
the provisions hereof.
Notices
Notices. All notices required by this Agreement shall be in writing and
delivered personally or sent by first class mail. All notices and other
communications concerning this Agreement will be deemed to have been received as
of the earlier of actual physical receipt or three days after deposit, first
class postage prepaid, in the United States Mail. All such notices and other
communications shall be made;
If to Broker, to:
American Express Financial Advisors Inc.
IDS Tower 10
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Legal Department
Counterparts
This Agreement may be executed in one or more counterparts, each of
which will be deemed an original, but all of which together shall Constitute one
and the same instrument.
IN WITNESS WHEREOF,, this Agreement has Xxxxxxxx Plumb Funds
been executed by a duly authorized -------------------------------------
representative of the parties hereto. [Advisor or Distributor]
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------- ----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxxxx
Title: Vice President and Title: Chairman
General Manager
Date: 11-16-99 Date: 10/11/99
3