UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of October 7, 2005, by and between THE COMMUNITY
REINVESTMENT ACT QUALIFIED INVESTMENT FUND (the "Trust"), and CITCO MUTUAL FUND
DISTRIBUTORS, INC., a Delaware corporation ("Underwriter").
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Trust is authorized by its Declaration of Trust and by-laws
to issue separate Portfolios of shares representing interests in separate
investment portfolios (the "Portfolios"), and
WHEREAS, The Trust has authorized the issuance of shares of beneficial
interest ("Shares") in the Portfolios which are identified on Exhibit A attached
hereto, which Exhibit A may be amended from time to time by mutual agreement of
the Trust and Underwriter, and;
WHEREAS, Underwriter is a broker-dealer registered with the Securities and
Exchange Commission and a member in good standing of the National Association of
Securities Dealers, Inc., (the "NASD"); and
NOW, THEREFORE, in consideration of the promises and agreements of the
parties contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. Appointment. The Trust hereby appoints Underwriter as exclusive agent for
the distribution of Shares of the Portfolios listed in Exhibit A hereto,
and Underwriter hereby accepts such appointment under the terms of this
Agreement.
Notwithstanding any other provision hereof, the Trust may terminate,
suspend or withdraw the offering of Shares of any Portfolio whenever, in
its sole discretion, it deems such action to be desirable.
2. Sale and Repurchase of Shares.
(a) Underwriter, as agent for the Trust, will sell Shares to the public
against orders there for at the public offering price, all such
sales to comply with the provisions of the 1940 Act and the rules
and regulations of the Securities and Exchange Commission
promulgated thereunder.
(b) Underwriter will also have the right to take, as agent for the
Trust, all actions, which, in Underwriter's judgment, are reasonably
necessary and proper to carry into effect the distribution of the
Shares. In doing so, Underwriter may assign certain of its services
under this Agreement to a third party. Such assignment shall not
relieve Underwriter of its obligation under this Agreement, and it
shall remain liable for the actions of its contractors and vendors
to the extent required by this Agreement.
(c) The net asset value of the Shares of each Portfolio (or Class of
Shares of a Portfolio) shall be determined in the manner provided in
the Trust's then current Registration Statement, and when determined
shall be applicable to transactions as provided for in the
Registration Statement. The net asset value of the Shares of each
Portfolio (or each Class of Shares of a Portfolio) shall be
calculated by the Trust or by another entity on behalf of the Trust.
Underwriter shall have no duty to inquire into nor shall it have any
liability for the accuracy of the net asset value per share as
calculated.
On every sale of Shares, the Trust shall receive the applicable net
asset value of the Shares promptly, but in no event later than the
third business day following the date on which Underwriter shall
have received an order for the purchase of the Shares.
(d) Upon receipt of purchase instructions, Underwriter will transmit
such instructions to the Trust or its transfer agent for
registration of the Shares purchased.
(e) Nothing in this Agreement shall prevent Underwriter or any
affiliated person (as defined in the 0000 Xxx) of Underwriter from
acting as underwriter or distributor for any other person, firm or
corporation (including other investment companies) or in any way
limit or restrict Underwriter or any such affiliated person from
buying, selling or trading any securities for its or their own
account or for the accounts of others for whom it or they may be
acting; provided, however, that the Underwriter expressly agrees
that it shall not for its own account purchase any Shares of the
Trust except for investment purposes and that it shall not for its
own account sell any such shares except for redemption of such
Shares by the Trust and that Underwriter expressly represents that
it will undertake no activities which, in its judgment, will
adversely affect the performance of its obligations to the Trust
under this Agreement.
(f) Underwriter, as agent of the Trust and for the account of the
Portfolio(s), may repurchase the Shares at such prices and upon such
terms and conditions as shall be specified in the Trust's then
current Registration Statement. At the end of each business day, the
Underwriter shall notify the Trust and the Trust's transfer agent of
the number of Shares redeemed for each Portfolio, and the identity
of the shareholders or dealers offering Shares for repurchase. Upon
such notice and acceptance by the Trust, the Trust shall pay the
Underwriter the net asset value of the redeemed shares in cash or in
the form of a credit against monies due the Trust from the
Underwriter as proceeds from the sale of Shares. The Trust reserves
the right to suspend such repurchase right upon written notice to
the Underwriter. The Underwriter further agrees to act as agent for
the Trust to receive and transmit promptly to the Trust's transfer
agent, shareholder and dealer requests for redemption of Shares in
the Portfolio(s).
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3. Sales of Shares by the Trust. The Trust reserves the right to issue or
sell Shares of the Portfolio(s) directly to the public at any time.
4. Basis of Sale of Shares. Underwriter does not agree to sell any specific
number of Shares. Underwriter, as agent for the Trust, undertakes to sell
Shares of the Portfolio(s) only against orders therefore.
5. Compliance with NASD and Government Rules.
(a) Underwriter will conform to the Rules of Conduct of the NASD and the
securities laws of any jurisdiction in which it sells Shares of the
Portfolio(s).
(b) The Trust agrees to furnish to the Underwriter sufficient copies of
any agreements, plans or other materials it intends to use in
connection with sales of Shares in adequate time for the Underwriter
to file and clear them with the proper authorities before they are
put in use, and not to use them until so filed and cleared.
(c) Underwriter, at its own expense, will qualify as dealer, broker, or
otherwise, under all applicable State or federal laws in order that
Shares may be sold in such States as may be mutually agreed upon by
the parties, except for expenses described in Section 7 hereto,
which will be paid by the Trust or the Adviser to the Trust, as
appropriate.
(d) Underwriter shall not make, in connection with any sale or
solicitation of a sale of the Shares, any representations concerning
the Shares except those contained in the Trust's then current
prospectus and statement of additional information covering the
Shares and in printed information approved by the Trust as
information supplemental to such prospectus and statement of
additional information. Copies of the Trust's then effective
prospectus and statement of additional information and any such
printed supplemental information will be supplied to Underwriter in
reasonable quantities upon request.
6. Records to be Supplied by Trust. The Trust shall furnish to Underwriter
copies of all information, financial statements and other papers which
Underwriter may reasonably request for use in connection with the
distribution of Shares of the Portfolio(s).
7. Fund Advertising. Underwriter shall review and approve fund advertising
for compliance with all applicable rules and forward such advertising to
appropriate regulatory authorities as required. Prior to Underwriter's
approval, a representative of the Fund or one of its affiliates, shall
review the advertising for compliance with applicable rules and
regulations.
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8. Registration of Registered Persons. Subject to the approval of the
Underwriter, certain Fund Advisor personnel holding brokerage licenses may
be registered with the Underwriter. In order to hold such licenses, the
personnel must be capable of operating as an Office of Supervisory
Procedures of the Underwriter, in addition to follow the Written
Supervisory Procedures of the Underwriter, in addition to the rules and
regulations of all federal, state and self-regulatory organizations with
jurisdiction over the Underwriter. The Underwriter will be free to
discipline or terminate any registered representative for failure to
comply with such rules and regulations or the Underwriter's Written
Supervisory Procedures. The Advisor shall be responsible for all costs
associated with establishing and maintaining such registration, including
but not limited to the fingerprint fees and state and NASD registration
fees.
9. Expenses to be Borne by Trust. The Trust will bear the following expenses:
(a) preparation, setting in type, and printing of sufficient copies of
the prospectus and statement of additional information for
distribution to shareholders, and the distribution to shareholders
of the prospectus and statement of additional information;
(b) preparation, printing and distribution of reports and other
communications to shareholders;
(c) registration of the Shares under the federal securities law;
(d) qualification of the Shares for sale in the jurisdictions designated
by Trust and Underwriter;
(e) maintaining facilities for the issue and transfer of the Shares;
(f) supplying information, prices and other data to be furnished by the
Trust under this Agreement; and
(g) any original issue taxes or transfer taxes applicable to the sale or
delivery of the Shares of certificates therefore.
10. Indemnification.
(a) The Trust agrees to indemnify, defend and hold the Underwriter, its
officers, and Trustees, and any person who controls the Underwriter
within the meaning of Section 15 of the Securities Act of 1933 (the
"1933 Act") or Section 20 of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), free and harmless from and against any and
all claims, demands or liabilities and expenses (including the cost
of investigating or defending such claims, demands or liabilities
and any counsel fees incurred in connection therewith) which the
Underwriter, its officers, Trustees or any such controlling persons
may incur under the 1933 Act, the 1934 Act, the 1940 Act or other
state or federal law or regulations or under common law or
otherwise, arising out of or based upon any untrue statement of a
material fact contained in the Trust's Registration Statement or
Prospectus or arising out of or based upon any alleged omission to
state a material fact required to be stated in either thereof or
necessary to make the statements in either thereof not misleading,
except insofar as such claims, demands, 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 upon and in
conformity with information furnished in writing by the Underwriter
or any of its affiliates to the Trust for use in the Registration
Statement. The Underwriter agrees to comply with all of the
applicable terms and provisions of the 1934 Act.
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(b) The Underwriter agrees to indemnify, defend, and hold the Trust, its
officers, Trustees, employees, shareholders and agents, and any
person who controls the Trust within the meaning of Section 15 of
the 1933 Act of Section 20 of the 1934 Act, free and harmless from
and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending against such
claims, demands or liabilities and any counsel fees incurred in
connection therewith) which the Trust, its Trustees, officers,
employees, shareholders and agents, or any such controlling person
may incur under the 1933 Act, the 1934 Act, 1940 Act or other
federal or state laws or regulations or under common law or
otherwise arising out of or based upon any untrue statement of a
material fact contained in information furnished in writing by the
Underwriter to the Trust for use in the Registration Statement, or
arising out of or based upon any omission or alleged omission to
state a material fact in connection with such information required
to be stated in the Registration Statement necessary to make such
information not misleading.
(c) A party seeking indemnification hereunder (the Indemnitee) shall
give prompt written notice to the party from whom indemnification is
sought ("Indemnitor") of a written assertion or claim of any
threatened or pending legal proceeding which may be subject to
indemnity under this Section; provided, however, that failure to
notify the Indemnitor of such written assertion or claim shall not
relieve the indemnitor of any liability arising from this Section.
The Indemnitor shall be entitled, if it so elects, to assume the
defense of any suit brought to enforce a claim subject to this
Agreement and such defense shall be conducted by counsel chosen by
the Indemnitor and satisfactory to the Indemnitee; provided,
however, that if the defendants include both the Indemnitee and the
Indemnitor, and the Indemnitee shall have reasonably concluded that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnitor
("conflict of interest"), the Indemnitor shall have the right to
select separate counsel to defend such claim on behalf of the
Indemnitee. In the event that the Indemnitor elects to assume the
defense of any suit pursuant to the preceding sentence and retains
counsel satisfactory to the Indemnitee, the Indemnitee shall bear
the fees and expenses of additional counsel retained by it except
for reasonable investigation costs which shall be borne by the
Indemnitor. If the Indemnitor (i) does not elect to assume the
defense of a claim, (ii) elects to assume the defense of a claim but
chooses counsel that is not satisfactory to the Indemnitee or (iii)
has no right to assume the defense of a claim because of a conflict
of interest, the Indemnitor shall advance or reimburse the
Indemnitee, at the election of the Indemnitee, reasonable fees and
disbursements of any counsel retained by Indemnitee, including
reasonable investigation costs.
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11. Advances of Expenses. The Trust shall advance attorney's fees or other
expenses incurred by an indemnitee in defending a proceeding only to the
extent permitted by 1933 Act and the 1940 Act.
12. Termination and Amendment of this Agreement. This Agreement shall
automatically terminate, without the payment of any penalty, in the event
of its assignment. This Agreement may be amended only if such amendment is
approved (i) by Underwriter, (ii) either by action of the Board of
Trustees of the Trust or at a meeting of the Shareholders of the Trust by
the affirmative vote of a majority of the outstanding Shares, and (iii) by
a majority of the Trustees of the Trust who are not interested persons of
the Trust or of Underwriter, by vote cast in person at a meeting called
for the purpose of voting on such approval. Either the Trust or
Underwriter may terminate this Agreement at any time on sixty (60) days'
written notice delivered or mailed by registered mail, postage prepaid, to
the other party.
13. Effective Period of This Agreement. Unless terminated automatically as set
forth in Section 12 of this Agreement, this Agreement shall take effect
upon its execution and shall remain in full force and effect until May 31,
2006, and shall remain in full force and effect from year to year
thereafter, subject to annual approval (i) by Underwriter, (ii) by the
Board of Trustees of the Trust or by vote of a majority of the outstanding
Shares, and in either case (iii) by a majority of the Trustees of the
Trust who are not interested persons of the Trust or of Underwriter, by
vote cast in person at a meeting called for the purpose of voting on such
approval. Either the Trust or the Underwriter may terminate this Agreement
at any time on sixty (60) days' written notice delivered or mailed by
registered mail, postage prepaid, to the other party.
14. Limitation of Trust's Liability. The Term "CRA Trust" means and refers to
the Trustees and officers from time to time serving under the Trust's
Agreement and Declaration of Trust as the same may subsequently thereto
have been, or subsequently hereto be, amended. It is expressly agreed that
the obligations of the Trust hereunder shall not be binding upon any of
the Trustees, Shareholders, nominees, officers, agents or employees of the
Trust personally, but bind only the property of the Trust, as provided in
Trust's Agreement and Declaration of Trust and by-laws. The execution and
delivery of this Agreement have been authorized by the Trustees of the
Trust and signed by the officers of the Trust, acting as such, and neither
such authorization by such Trustees, nor such execution and delivery by
such officers shall be deemed to have been made by any of them
individually or to impose any liability on them personally, but shall bind
only the property of the Trust as provided in its Declaration of Trust.
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15. Limitation of Underwriter's Liability. The Underwriter shall not be liable
for any error or judgment or mistake of law or for any loss suffered by
the Fund in connection with the matters to which this Agreement relates,
except to the extent of a loss resulting from willful misfeasance, bad
faith, negligence or reckless disregard of its obligations and duties
under this Agreement.
16. Confidentiality. The Underwriter shall treat confidentially all records
and other information relating to the Trust and prior, present or
potential shareholders and shall not use such records and information for
any purpose, other than performance of its responsibilities and duties
hereunder, except as may be required by administrative or judicial
tribunals or as requested by the Fund.
17. Entire Agreement. This Agreement (including the Exhibits attached hereto)
contains the entire agreement and understanding of t he parties with
respect to the subject matter hereof and supersedes all prior written or
oral agreements and understandings with respect thereto.
18. Successor Investment Company. Unless this Agreement has been terminated in
accordance with Paragraph 12, the terms and provisions of this Agreement
shall become automatically applicable to any investment company which is a
successor to the Trust as a result of a reorganization, recapitalization
or change of domicile.
19. Severability. In the event any provision of this Agreement is determined
to be void or unenforceable, such determination shall not affect the
remainder of this Agreement, which shall remain in full force and effect.
20. Questions of Interpretation.
(a) This Agreement shall be governed by the laws of the Commonwealth
Pennsylvania, without reference to its conflicts of laws principles.
(b) Any question of interpretation of any term or provision of this
Agreement having a counterpart in or otherwise derived from a term
or provision of the 1940 Act shall be resolved by reference to such
term or provision of the 1940 Act and its interpretation thereof, if
any, by the United States courts; or in the absence of any
controlling decision of any such court, by rules, regulations or
orders of the Securities and Exchange Commission issued pursuant to
said Act. In addition, where the effect of a requirement of the 1940
Act, reflected in any provision of this Agreement is revised by
rule, regulation or order of the Securities and Exchange Commission,
such provision shall be deemed to incorporate the effect of such
rule, regulation or order.
21. Notices.
Any notices under this Agreement shall be in writing, addressed and
delivered or mailed postage paid to the other party at such address
as such other party may designate for the receipt of such notice.
Until further notice to the other party, it is agreed that for this
purpose the address of the Trust is 0000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xx., 00000, Attn: Xx. Xxxx Xxxxxxx and of the Underwriter
shall be 00 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, XX 000000,
Attn: President.
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22. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
23. Arbitration Agreement.. Any dispute between the parties arising out of or
in any manner related to this Agreement between them will be arbitrated
before the NASD Arbitration Division in Philadelphia, Pennsylvania
pursuant to the rules in the Code of Arbitration then pertaining. In any
such arbitration, the parties agree that there will be no award of
attorneys' fees to the prevailing party, and that punitive, special or
consequential damages will not be available.
24. Binding Effect. Each of the undersigned expressly warrants and represents
that he has the full power and authority to sign this Agreement on behalf
of the party indicated, and that his signature will operate to bind the
party indicated to the foregoing terms.
25. Force Majeure. If Underwriter shall be delayed in the performance of its
services or prevented entirely or in part from performing services due to
causes or events beyond its control, including and without limitation,
acts of God, interruption of power or other utility, transportation or
communication services, terrorist acts, acts of civil or military
authority, sabotages, national emergencies, explosion, flood, accident,
earthquake or other catastrophe, fire, strike or other labor problems,
legal action, present or future law, governmental order, rule or
regulation, or shortages of suitable parts, materials, labor or
transportation, such delay or non-performance shall be excused.
26. Compensation. The Trust shall pay for the services to be provided by
Underwriter under this Agreement in accordance with, and in the manner set
forth in, Schedule B attached hereto, as such Schedule B may be amended
from time to time by agreement of the parties.
If this Agreement becomes effective subsequent to the first day of a month
or terminates before the last day of a month, Underwriter's compensation
for that part of the month in which this Agreement is in effect shall be
prorated in a manner consistent with the calculation of the fees as set
forth above. Payment of Underwriter's compensation for the preceding month
shall be made promptly.
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IN WITNESS WHEREOF, the Trust and Underwriter have each caused this
Agreement to be signed on its behalf, all as of the day and year first above
written.
ATTEST: COMMUNITY REINVESTMENT ACT
QUALIFIED INVESTMENT FUND
/s/ Xxxxxxx X. XxXxxxx By: /s/ Xxxxx Xxxxxx
----------------------------- --------------------------------
Name: Xxxxx Xxxxxx
Title: President
ATTEST CITCO MUTUAL FUND DISTRIBUTORS, INC.
/s/ Xxxxxx X. Xxxxxxxxxxx, Xx. By: /s/ Xxxx Xxxxxxx
----------------------------- --------------------------------
Name: Xxxx Xxxxxxx
Title: CFO
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UNDERWRITING AGREEMENT
EXHIBIT A
The following Portfolios and share classes thereof are hereby made subject
to the underwriting Agreement dated October 7, 2005, with Citco Mutual Fund
Distributors, Inc. ("Underwriter") and Community Reinvestment Act Qualified
Investment Fund (the "Trust"), and each agree to be bound by all the terms and
conditions contained in said Agreement:
PORTFOLIOS Class A Class B No-Load
---------------------------------- ------- ------- -------
The CRA Qualified Investment Trust X
UNDERWRITING AGREEMENT
EXHIBIT B
The following fees are hereby made subject to the underwriting Agreement
dated October 7, 2005, with Citco Mutual Fund Distributors, Inc. ("Underwriter")
and Community Reinvestment Act Qualified Investment Fund (the "Trust"), and each
agree to be bound by all the terms and conditions contained in said Agreement:
Underwriter will charge a flat fee of $12,000 per year for underwriting services
provided for Portfolios of the Trust that offer No-Load Shares only.
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