Exhibit 22(e)(i)
UNDERWRITING AGREEMENT
THIS AGREEMENT is made as of January 1, 2004 by and between
PROFESSIONAL FUNDS DISTRIBUTOR, LLC , a Delaware Limited Liability Company
("Professional Funds Distributor"), and WT MUTUAL FUND, a Delaware statutory
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 1940 Act.
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 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.
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b. The Fund agrees to advise Professional Funds Distributor as soon as
reasonably 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.
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.
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The fact that such confirming Written Instructions are not received by
Professional Funds Distributor or differ from the Oral Instructions shall in no
way invalidate the transactions or enforceability of the transactions authorized
by the Oral Instructions or Professional Funds Distributor's ability to rely
upon such Oral Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person, Professional
Funds Distributor shall incur no liability to the Fund in acting upon such Oral
Instructions or Written Instructions provided that Professional Funds
Distributor's actions comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
a. Advice of the Fund. If Professional Funds Distributor is in doubt as to
any action it should or should not take, Professional Funds Distributor may
request directions or advice, including Oral Instructions or Written
Instructions, from the Fund.
b. Advice of Counsel. If Professional Funds Distributor shall be in doubt
as to any question of law pertaining to any action it should or should not take,
Professional Funds Distributor may request advice from counsel of its own
choosing (who may be counsel for the Fund, the Fund's investment adviser or
Professional Funds Distributor, at the option of Professional Funds
Distributor).
c. Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions Professional Funds
Distributor receives from the Fund, and the advice it receives from counsel,
Professional Funds Distributor may rely upon and follow the advice of counsel.
d. Protection of Professional Funds Distributor. Professional Funds
Distributor shall be protected in any action it takes or does not take in
reliance upon directions or advice or Oral Instructions or Written Instructions
it receives from the Fund or from counsel and which Professional Funds
Distributor believes, in good faith, to be consistent with those directions or
advice or Oral Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon Professional Funds
Distributor (i) to seek such directions or advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such directions or
advice or Oral Instructions or Written Instructions unless, under the terms of
other provisions of this Agreement, the same is a condition of Professional
Funds Distributor's properly taking or not taking such action.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which are in
the possession or under the control of Professional Funds Distributor, shall be
the property of the Fund. Such books and records shall be prepared and
maintained as required by the 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.
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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 Professional Funds Distributor,
their respective subsidiaries and affiliated companies and the customers,
clients and suppliers of any of them; (b) any scientific or technical
information, design, process, procedure, formula, or improvement that is
commercially valuable and secret in the sense that its confidentiality affords
the Fund or Professional Funds Distributor a competitive advantage over its
competitors; (c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, and trade secrets, whether or not
patentable or copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject 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
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (the "Act"), disclosed by a party hereunder is for the
specific purpose of permitting the other party to perform the services set forth
in this Agreement. Each party agrees that, with respect to such information, it
will comply with Regulation S-P and the Act and that it will not disclose any
Nonpublic Personal Information received in connection with this Agreement to any
other party, except to the extent as necessary to carry out the services set
forth in this Agreement or as otherwise permitted by Regulation S-P or the Act.
9. COMPENSATION. As compensation for services rendered by Professional Funds
Distributor during the term of this Agreement, the Fund will pay to Professional
Funds Distributor a 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.
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10. INDEMNIFICATION.
a. The Fund agrees to indemnify and hold harmless Professional Funds
Distributor and its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws) arising directly or indirectly from
any action or omission to act which Professional Funds Distributor takes in
connection with the provision of services to the Fund. Neither Professional
Funds Distributor, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) caused by Professional
Funds Distributor's or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under this
Agreement.
b. The Fund agrees to indemnify and hold harmless Professional Funds
Distributor, its officers, Trustees, and employees, and any person who controls
Professional Funds Distributor within the meaning of Section 15 of the 1933 Act,
free and harmless (a) from and against any and all claims, costs, expenses
(including reasonable attorneys' fees) losses, damages, charges, payments and
liabilities of any sort or kind which Professional Funds Distributor, its
officers, directors, employees or any such controlling person may incur under
the 1933 Act, under any other statute, at common law or otherwise, arising out
of or based upon: (i) any untrue statement, or alleged untrue statement, of a
material fact contained in the Fund's Registration Statement, Prospectus,
Statement of Additional Information, or sales literature (including amendments
and supplements thereto), or (ii) any omission, or alleged omission, to state a
material fact required to be stated in the Fund's Registration Statement,
Prospectus, Statement of Additional Information or sales literature (including
amendments or supplements thereto), necessary to make the statements therein not
misleading, provided, however, that insofar as losses, claims, damages,
liabilities or expenses arise out of or are based upon any such untrue statement
or omission or alleged untrue statement or omission made in reliance on and in
conformity with information furnished to the Fund by Professional Funds
Distributor or its affiliated persons for use in the Fund's Registration
Statement, Prospectus, or Statement of Additional Information or sales
literature (including amendments or supplements thereto), such indemnification
is not applicable; and (b) from and against any and all such claims, demands,
liabilities and expenses (including such costs and counsel fees) which you, your
officers and directors, or such controlling person, may incur in connection with
this Agreement or Professional Funds Distributor's performance hereunder (but
excluding such claims, demands, liabilities and expenses (including such costs
and counsel fees) arising out of or based upon any untrue statement, or alleged
untrue statement, of a material fact contained in any Registration Statement or
any Prospectus or arising out of or based upon any omission, or alleged
omission, to state a material fact required to be stated in 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
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Distributor, Professional Funds Distributor shall make a similar claim for
indemnification against the Fund.
c. Professional Funds Distributor agrees to indemnify and hold harmless
the Fund, its several officers and Board Members and each person, if any, who
controls a Portfolio within the meaning of Section 15 of the 1933 Act against
any and all claims, costs, expenses (including reasonable attorneys' fees),
losses, damages, charges, payments and liabilities of any sort or kind which the
Fund, its officers, Board Members or any such controlling person may incur under
the 1933 Act, under any other statute, at common law or otherwise, but only to
the extent that such liability or expense incurred by the Fund, its officers or
Board Members, or any controlling person resulting from such claims or demands
arose out of the acquisition of any 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, 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.
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11. RESPONSIBILITY OF PROFESSIONAL FUNDS DISTRIBUTOR.
a. Professional Funds Distributor shall be under no duty to take any
action hereunder on behalf of the Fund except as specifically set forth herein
or as may be specifically agreed to by Professional Funds Distributor and the
Fund in a written amendment hereto. Professional Funds Distributor shall be
obligated to exercise care and diligence in the performance of its duties
hereunder and to act in good faith in performing services provided for under
this Agreement. Professional Funds Distributor shall be liable only for any
damages arising out of Professional Funds Distributor's failure to perform its
duties under this Agreement to the extent such damages arise out of Professional
Funds Distributor's willful misfeasance, bad faith, gross negligence or reckless
disregard of such duties.
b. Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) Professional Funds Distributor shall not be
liable for losses beyond its control, including, without limitation, delays or
errors or loss of data occurring by reason of circumstances beyond Professional
Funds Distributor's control, provided that Professional Funds Distributor has
acted in accordance with the standard set forth in Section 11(a) above; and (ii)
Professional Funds Distributor shall not be under any duty or obligation to
inquire into and shall not be liable for the validity or invalidity or authority
or lack thereof of any Oral Instruction or Written Instruction, notice or other
instrument which conforms to the applicable requirements of this Agreement, and
which Professional Funds Distributor reasonably believes to be genuine.
c. Notwithstanding anything in this Agreement to the contrary, neither
Professional Funds Distributor nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or not the
likelihood of such losses or damages was known by Professional Funds Distributor
or its affiliates.
d. No party may assert a cause of action against Professional Funds
Distributor or any of its affiliates that allegedly occurred more than 12 months
immediately prior to the filing of the suit (or, if applicable, commencement of
arbitration proceedings) alleging such cause of action.
e. Each party shall have a duty to mitigate damages for which the other
party may become responsible.
12. DUTIES AND OBLIGATIONS OF THE FUND.
a. The Fund represents to Professional Funds Distributor that all
Registration Statements and Prospectuses filed by the Fund with the SEC under
the 1933 Act 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
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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. 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 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 an 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 shall notify Professional Funds Distributor in writing of any
changes to the information contained in the previous notification.
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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 reasonable 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 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 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
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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
parties to this Agreement and who are not interested persons (as defined in the
▇▇▇▇ ▇▇▇) 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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: President;
(b) if to the Fund, at c/o Wilmington Trust Company, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇ ▇▇▇▇▇ or (c) if to neither of the
foregoing, at such other address as shall have been given by like notice to the
sender of any such notice or other communication by the other party. If notice
is sent by confirming telegram, cable, telex or facsimile sending device, it
shall be deemed to have been given immediately. If notice is sent by first-class
mail, it shall be deemed to have been given three days after it has been mailed.
If notice is sent by messenger, it shall be deemed to have been given on the day
it is delivered.
16. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
17. 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.
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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.
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 constitute the valid and binding execution hereof by such party.
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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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: President
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WT MUTUAL FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: VP & CFO
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EXHIBIT A
THIS EXHIBIT A, dated as of January 1, 2004, is Exhibit A to that
certain Underwriting Agreement dated as of January 1, 2004, between Professional
Funds Distributor, LLC. and WT Mutual Fund.
PORTFOLIOS
Wilmington Premier Money Market Portfolio
Wilmington Small Cap Strategic Allocation Fund
Wilmington Prime Money Market Portfolio
Wilmington Mid Cap Strategic Allocation Fund
Wilmington U.S. Government Portfolio
Wilmington Large Cap Strategic Allocation Fund
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
▇▇▇▇▇▇▇▇▇ Premier Money Market Portfolio
▇▇▇▇▇▇▇▇▇ 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
A-1