INVESTMENT AGREEMENT BY AND AMONG FLORIDA EDUCATION INVESTMENT TRUST FUND, PFM FUNDS AND PFM FUND DISTRIBUTORS, INC. Dated as of SEPTEMBER __, 2010
BY
AND AMONG
FLORIDA
EDUCATION INVESTMENT TRUST FUND,
AND
PFM
FUND DISTRIBUTORS, INC.
Dated as
of
SEPTEMBER
__, 2010
TABLE OF
CONTENTS
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Page
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ARTICLE
I.
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REPRESENTATIONS
AND WARRANTIES
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1
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1.1
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Fund
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1
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1.2
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2
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1.3
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Distributor
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3
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ARTICLE
II.
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COVENANTS
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3
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2.1
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Fund
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3
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2.2
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4
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2.3
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Reasonable
Actions
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6
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ARTICLE
III.
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INDEMNIFICATION
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6
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3.1
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Fund
and Distributor
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6
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3.2
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7
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ARTICLE
IV.
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ADDITIONAL
AGREEMENTS
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9
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4.1
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Access
to Information
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9
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4.2
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Confidentiality
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9
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4.3
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Obligations
of Fund and PFM Funds
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9
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ARTICLE
V.
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TERMINATION,
AMENDMENT
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10
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5.1
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Termination
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10
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5.2
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Amendment
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10
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ARTICLE
VI.
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GENERAL
PROVISIONS
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10
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6.1
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Expenses
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10
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6.2
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Headings
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10
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6.3
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Entire
Agreement
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10
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6.4
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Successors
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10
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6.5
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Governing
Law
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10
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6.6
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Counterparts
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11
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6.7
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Third
Parties
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11
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6.8
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Notices
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11
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6.9
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Interpretation
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11
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6.10
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Operation
of the Fund
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12
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6.11
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Relationship
of Parties; No Joint Venture, Etc.
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12
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6.12
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Use
of Name
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12
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Signatures
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13
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i
AGREEMENT
THIS
AGREEMENT (the “Agreement”) is made and entered into as of the ______day of
September, 2010, by and among Florida Education Investors Trust Fund (the
“Fund”), an entity formed pursuant to Section 218.415, Florida Statutes, of the
State of Florida, and the Florida Interlocal Cooperation Act of 1969, as
amended, Section 163.01, Florida Statutes, and pursuant to a Declaration of
Trust, dated as of December 3, 2009 (the “Declaration”), PFM Funds (“PFM
Funds”), a Virginia Business Trust, for itself and on behalf of its series known
as Prime Series (the “Portfolio”), and PFM Fund Distributors, Inc. (“PFMFD”), a
Pennsylvania corporation.
WITNESSETH
WHEREAS,
PFM Funds is registered under the Investment Company Act of 1940 (the “1940
Act”) as an open-end management investment company and the Fund is exempt from
such registration; and
WHEREAS,
the Fund and Portfolio each have substantially the same investment objective and
investment policies;
WHEREAS,
PFMFD serves as distributor of units of beneficial interest in the Fund;
and
WHEREAS,
the Fund desires to pursue its investment objective by investing on an ongoing
basis all of its investable assets (the “Assets”) in Florida Education Shares, a
class of shares of the Portfolio (“Interests”) on the terms and conditions set
forth in this Agreement (the “Investments”);
NOW,
THEREFORE, in consideration of the foregoing, the mutual promises and covenants
made herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE
I
REPRESENTATIONS AND
WARRANTIES
1.1 Fund. The
Fund represents and warrants to PFM Funds that:
(a) Organization. The
Fund is a trust duly organized and validly existing under the laws of the State
of Florida. The Fund has the requisite power and authority to own its
property and conduct its business as proposed to be conducted pursuant to this
Agreement.
(b) Authorization of
Agreement. The execution and delivery of this Agreement by the
Fund and the conduct of business contemplated hereby have been duly authorized
by all necessary action on the part of the Fund’s Board of Trustees and no other
action or proceeding is necessary
for the execution and delivery of this Agreement by the Fund, or the performance
by the Fund of its obligations hereunder. This Agreement when
executed and delivered by the Fund shall constitute a legal, valid and binding
obligation of the Fund, enforceable against the Fund in accordance with its
terms, except to the extent that such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws or equitable
principles relating to or limiting creditors’ rights generally.
(c) SEC Securities
Exemptions. The Fund is not required to register as an
investment company under the 1940 Act, and shares of beneficial interest in the
Fund are not required to be registered under the Securities Act of 1933 (the
“1933 Act”).
(d) Fund
Assets. The Fund currently intends on an ongoing basis to
invest its Assets solely in Interests.
(e) Registration
Statement. The Fund has reviewed PFM Funds’ registration
statement on Form N-lA, as filed with the Securities and Exchange Commission
(“SEC”) on [July 30, 2010], and agrees that the Investments will be subject to
the terms thereof. The Fund understands and acknowledges that PFM
Funds has the right, in its sole discretion, at any time, to limit or reject
additional Investments from the Fund, provided that PFM Funds shall provide the
Fund at least thirty (30) days’ advance written notice, or such lesser time as
may be agreed to by the parties, of any such limit or rejection or as may be
required for PFM Funds to comply with applicable laws and
regulations.
(f) Insurance. The
Fund has in force reasonable insurance coverage against liabilities that may
arise as a result of the Fund’s and officers’ actions on behalf of the
Fund.
(g) Offering of Fund
Interests. Interests in the Fund are offered for sale by
PFMFD, which serves as the distributor of such interests.
1.2 PFM
Funds. PFM Funds represents and warrants to the Fund
that:
(a) Organization. PFM
Funds is a trust duly organized, validly existing and in good standing under the
laws of the Commonwealth of Virginia and the Portfolio is a duly and validly
designated series of PFM Funds. Each of PFM Funds and the Portfolio
has the requisite power and authority to own its property and conduct its
business as now being conducted.
(b) Authorization of
Agreement. The execution and delivery of this Agreement by PFM
Funds on behalf of the Portfolio and the conduct of business contemplated hereby
have been duly authorized by all necessary action on the part of PFM Funds’
Board of Trustees and no other action or proceeding is necessary for the
execution and delivery of this Agreement by PFM Funds on behalf of the
Portfolio, or the performance by the PFM Funds of its obligations
hereunder. This Agreement when executed and delivered by PFM Funds on
behalf of the Portfolio shall constitute a legal, valid and binding obligation
of PFM Funds, enforceable against PFM Funds and the Portfolio in accordance with
its terms, except to the extent that such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws or equitable
principles relating to or limiting creditors’ rights generally.
No
meeting of, or consent by, shareholders of PFM Funds is necessary to approve the
issuance of Interests to the Fund.
(c) Authorization of Issuance of
Shares of Beneficial Interest. The issuance by PFM Funds of
Interests has been duly authorized by all necessary action on the part of the
Board of Trustees of PFM Funds.
2
(d) 1940 Act
Registration. PFM Funds is duly registered as an open-end
management investment company under the 1940 Act and such registration is in
full force and effect.
(e) SEC Filings; Securities
Exemptions. PFM Funds has duly filed with the SEC all forms,
reports, proxy statements and other documents (“SEC Filings”) required to be
filed with the SEC under the 1933 Act, the Securities Exchange Act of 1934 and
the 1940 Act and the rules and regulations thereunder (collectively, the
“Securities Laws”) relating to the Portfolio. All SEC Filings
relating to the Portfolio comply in all material respects with the requirements
of the Securities Laws, and do not, as of the date of this Agreement, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
1.3 PFMFD. PFMFD
represents and warrants to PFM Funds that it serves as distributor of interests
in the Fund and that the execution and delivery of this Agreement by PFMFD have
been duly authorized by all necessary action on the part of PFMFD and no other
action or proceeding is necessary for the execution and delivery of this
Agreement by PFMFD, or the performance by PFMFD of its obligations
hereunder. This Agreement when executed and delivered by PFMFD shall
constitute a legal, valid and binding obligation of PFMFD, enforceable against
PFMFD in accordance with its terms, except to the extent that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws or equitable principles relating to or limiting
creditors’ rights generally.
ARTICLE
II
COVENANTS
2.1 Fund. The
Fund covenants that:
(a) Advance Review of Certain
Documents. The Fund will cause its administrative agent to
furnish PFM Funds at least ten (10) business days prior to first use, with
drafts of revisions to the Fund’s Information Statement (the “Information
Statement”). In addition, the Fund will cause its administrative
agent to furnish or cause to be furnished to PFM Funds at least five (5)
business days prior to the earlier of filing or first use, as the case may be,
any proposed advertising or sales literature that contains language that
describes or refers to PFM Funds, the Portfolio or Interests and that was not
previously approved by PFM Funds. The Fund agrees that it will
include in the Information Statement any material and reasonable comments made
by PFM Funds. PFM Funds will not, however, in any way be liable to
the Fund for any errors or omissions in such documents, whether or not PFM Funds
makes any objection thereto, except to the extent such errors or omissions
result from errors in or omissions in information provided in PFM Funds’ 1940
Act registration statement or otherwise provided by PFM Funds for inclusion
therein, or result from the failure of PFM Funds to provide information required
to be provided to the Fund under this Agreement, which information shall not be
unreasonably withheld. In addition, the Fund will not make any other
written or oral representations about PFM Funds, the Portfolio or Interests
other than those contained in such documents without PFM Funds’ prior written
consent.
3
(b) Limitation on
Investments. The Fund will not hold any investment securities
(within the meaning of the ▇▇▇▇ ▇▇▇) other than Interests and will not purchase
any Interests in the event that PFMFD ceases to serve as the distributor of
interests in the Fund.
(c) Tax
Status. The Fund is not subject to federal or Florida state
income tax upon the income realized by it, and that the participants therein are
likewise not taxable upon distributions to them of such income, provided that
the participants are political subdivisions of the State of Florida for federal
tax purposes. Furthermore, neither the Fund nor participants therein, as a
result of their investment of public monies in the Fund, are subject to
taxation.
(d) Fiscal
Year. The Fund shall take appropriate action to adopt and
maintain the same fiscal year-end as the Portfolio (currently the last day of
June).
(e) Proxy
Voting. If requested to vote on matters pertaining to PFM
Funds or the Portfolio or Interests, the Fund will vote Interests in accordance
with the provisions of Section 12(d)(1)(E) of the 1940 Act.
(f) Compliance with
Laws. The Fund shall comply, in all material respects, with
all applicable laws, rules and regulations in connection with conducting its
operations as a local government investment pool under applicable
law.
(g) Insurance. The
Fund will maintain in full force and effect for so long as this Agreement is in
effect insurance coverage against liabilities that may arise as a result of
Trustees’ and officers’ actions on behalf of the Fund, in such amount and
covering such liabilities as the Board of Trustees of the Fund deems
reasonable.
2.2 PFM
Funds. PFM Funds covenants that:
(a) Redemption. Except
as otherwise provided in this Section 2.2(a), redemptions of Interests owned by
the Fund will be effected pursuant to Section 2.2(b). In the event
the Fund desires to withdraw its entire Investment from the Portfolio, either by
submitting a redemption request or by terminating this Agreement in accordance
with Section 5.1 hereof, the Portfolio, unless otherwise agreed to by the
parties, and in all cases subject to Sections 17 and 18 of the 1940 Act and the
rules and regulations thereunder, will effect such redemption “in kind” and in
such a manner that the securities delivered to the Fund or its custodian for the
account of the Fund mirror, as closely as practicable, the composition of the
Portfolio immediately prior to such redemption. PFM Funds further
agrees that, to the extent legally possible, it will not take or cause to be
taken any action without the Fund’s prior approval that would cause the
redemption of Interests by the Fund to be treated as a taxable event to the
Fund.
(b) Ordinary Course
Redemptions. PFM Funds will effect redemptions of Interests
owned by the Fund in accordance with the provisions of the 1940 Act and the
rules and regulations thereunder, including, without limitation, Section 17
thereof. All redemption requests other than a withdrawal of the
Fund’s entire investment in Interests under Section 2.2(a) or, at the sole
discretion of PFM Funds, a withdrawal (or series of withdrawals over any three
(3) consecutive business days) by the Fund of an amount that exceeds 10% of the
Portfolio’s net asset value, will be effected in cash at the next determined net
asset value after the redemption request is received. The Portfolio
will use its commercially reasonable efforts to settle redemptions on the
business day following the receipt of a redemption request by the Fund and if
such next business day settlement is not practicable, will immediately notify
the Fund regarding the anticipated settlement date, which shall in all events be
a date permitted under the 1940 Act.
4
(c) SEC
Filings. PFM Funds will file all SEC Filings required to be
filed with the SEC under the Securities Laws in connection with any meetings of
the Portfolio’s investors and its registration as an investment company and will
provide copies of all such definitive filings to legal counsel for the
Fund. SEC Filings by PFM Funds will comply in all material respects
with the requirements of the Securities Laws, and will not, at the time they are
filed or used, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(d) Tax Status. The
Portfolio shall seek to qualify for treatment as a “regulated investment
company” under Subchapter M of the Internal Revenue Code and to make such
distributions so that the Portfolio shall not be subject to federal income tax
or excise tax for any taxable year of the Portfolio during which this Agreement
continues in effect.
(e) [Reserved]
(f) Advance Notice of Certain
Changes. PFM Funds shall provide the Fund with reasonable
advance written notice of any change in the Portfolio’s investment objective, or
if PFM Funds has knowledge that one of the following changes is likely to occur,
written notice shall be provided as soon as reasonably possible of any material
change in the Portfolio’s investment policies or activities, any material
increase in the fees or expenses of the Portfolio or Interests, or any change in
the Portfolio’s fiscal year or time for calculating net asset
value. If PFM Funds is required to obtain shareholder approval of a
proposed change affecting the Portfolio or Interests, PFM Funds will seek the
Fund’s approval as may be required by the 1940 Act or the Declaration of Trust
of PFM Funds.
(g) Compliance with
Laws. PFM Funds shall comply, in all material respects, with
all applicable laws, rules and regulations in connection with conducting its
operations as a registered investment company. PFM Funds agrees that
the securities in which the Portfolio invests are limited to permitted
investments as described in Section 3.2 of the Declaration, as in effect as of
the effective date hereof, and in accordance with Florida law.
(h) Delivery of
Information. PFM Funds shall provide the Fund in writing with
such information regarding PFM Funds, the Portfolio and Interests as may
reasonably be necessary for the Fund to comply with applicable
laws. PFM Funds shall also provide the Fund with such information as
may be necessary for the Fund to file federal and state tax
returns. PFM Funds shall provide the written information described in
this paragraph within a reasonable period of time prior to the date by which the
Fund is required to make any filing or send any report or other document the
contents of which includes or is based upon such information, provided the Fund
gives PFM Funds adequate advance notice of the dates by which such information
is required.
(i) Insurance. PFM
Funds will maintain in full force and effect for so long as this Agreement is in
effect insurance coverage against liabilities that may arise as a result of the
Portfolio’s business, in such amounts, and covering such liabilities as the
Board of Trustees of PFM Funds deems reasonable.
5
2.3 Reasonable
Actions. Each party covenants that it will, subject to the
provisions of this Agreement, from time to time, as and when requested by the
other party or in its own discretion, as the case may be, execute and deliver or
cause to be executed and delivered all such documents, assignments and other
instruments, take or cause to be taken such actions, and do or cause to be done
all things
reasonably necessary, proper or advisable in order to conduct the business
contemplated by this Agreement and to carry out its intent and
purpose.
ARTICLE
III
INDEMNIFICATION
3.1 Fund and
PFMFD.
(a) To
the extent permitted by law, the Fund and PFMFD agree, jointly and severally, to
indemnify and hold harmless PFM Funds, and the Portfolio, and any
director/trustee, officer, employee or agent of PFM Funds or the Portfolio (in
this Section, each, a “Covered Person” and collectively, “Covered Persons”),
against any and all losses, claims, demands, damages, liabilities or expenses
(including, with respect to each Covered Person, the reasonable cost of
investigating and defending against any claims therefor and any counsel fees
incurred in connection therewith, except as provided in subparagraph (b)), that
are specifically related to the following:
(i) arising
out of or are based upon any violation or alleged violation of any of the
Securities Laws, or any other applicable statute, rule, regulation or common
law, or are incurred in connection with or as a result of any formal or informal
administrative proceeding or investigation by a regulatory agency, insofar as
such violation or alleged violation, proceeding or investigation arises out of
or is based upon any direct or indirect omission or commission (or alleged
omission or commission) by the Fund or PFMFD or by any of their
trustees/directors, officers, employees or agents, but only insofar as such
omissions or commissions relate to the Fund or PFMFD and were not, directly or
indirectly, the result of or caused by, in whole or in part, the act or omission
of any Covered Person, including without limitations, a violation of any
covenant set forth in Section 2.2 above, acting in the capacity which makes them
a Covered Person; or
(ii) arising
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any advertising or sales literature, or the
Information Statement, or any amendments or supplements to the foregoing (in
this Section, collectively “Offering Documents”), or arising out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was not made in the Offering Documents
in reliance upon and in conformity with PFM Funds’ registration statement on
Form N-1A and other written information furnished by PFM Funds to the Fund or by
any service provider of PFM Funds for use therein or for use by the Fund in
preparing such documents, including but not limited to any written information
contained in PFM Funds’ current registration statement on Form N-1A.
6
provided, however, that in no
case shall the Fund or PFMFD be liable for indemnification hereunder with
respect to any claims made against any Covered Person unless a Covered Person
shall have notified the Fund or PFMFD in writing within a reasonable time after
the summons, other first legal process, notice of a federal, state or local tax
deficiency, or formal initiation of a regulatory investigation or proceeding
giving information of the nature of the claim shall have properly been served
upon or provided to a Covered Person seeking indemnification. Failure
to notify the Fund or PFMFD of such claim shall not relieve the Fund or PFMFD
from any liability that either may have to any Covered Person otherwise than on
account of the indemnification contained in this Section.
(b) The
Fund and PFMFD each will be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but if the Fund and/or PFMFD elects to assume the
defense, such defense shall be conducted by counsel chosen by the Fund and/or
PFMFD, as applicable. In the event the Fund and/or PFMFD elects to
assume the defense of any such suit and retain such counsel, each Covered Person
in the suit may retain additional counsel but shall bear the fees and expenses
of such additional counsel unless (A) the Fund and PFMFD shall have specifically
authorized the retaining of and payment of fees and expenses of such additional
counsel or (B) the parties to such suit include any Covered Person and the Fund
and/or PFMFD, and any such Covered Person has been advised in a written opinion
by counsel reasonably acceptable to the Fund and PFMFD that one or more legal
defenses may be available to it that may not be available to the Fund and/or
PFMFD, in which case the Fund and/or PFMFD shall not be entitled to assume the
defense of such suit notwithstanding their obligation to bear the fees and
expenses of one counsel to such persons. The Fund and PFMFD each
shall not be required to indemnify any Covered Person for any settlement of any
such claim effected without its written consent, which consent, in each case,
shall not be unreasonably withheld or delayed. The indemnities set
forth in paragraph (a) will be in addition to any liability that the Fund and/or
PFMFD might otherwise have to Covered Persons.
3.2 PFM
Funds.
(a) PFM
Funds agrees to indemnify and hold harmless the Fund, PFMFD and any affiliate
providing services to the Fund, and any trustee/director, officer, employee or
agent of any of them (in this Section, each, a “Covered Person” and
collectively, “Covered Persons”), against any and all losses, claims, demands,
damages, liabilities or expenses (including, with respect to each Covered
Person, the reasonable cost of investigating and defending against any claims
therefor and any counsel fees incurred in connection therewith, except as
provided in subparagraph (b)), that are specifically related to the
following:
7
(i) arising
out of or are based upon any violation or alleged violation of the Securities
Laws, or any other applicable statute, rule, regulation or common law or are
incurred in connection with or as a result of any formal or informal
administrative proceeding or investigation by a regulatory agency, insofar as
such violation or alleged violation, proceeding or investigation arises out of
or is based upon any direct or indirect omission or commission (or alleged
omission or commission) by PFM Funds, or any of its trustees, officers,
employees or agents, but only insofar as such omissions or commissions relate to
the Portfolio including the Interests, and were not, directly or indirectly, the
result of or caused by, in whole or in part, the act or omission of any Covered
Person; or
(ii) arising
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any marketing materials for, or any SEC Filing
relating to the Portfolio, or any amendments to the foregoing (in this Section,
collectively, the “Offering Documents”) relating to the Portfolio, or arise out
of or are based upon the omission or alleged omission to state therein, a
material fact required to be stated therein, or necessary to make the statements
therein in light of the circumstances under which they were made, not
misleading; or
(iii) arising
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Offering Documents relating to the Fund or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Fund by PFM Funds for use therein or for use by the Fund in preparing such
documents, including but not limited to any written information contained in PFM
Funds’ current registration statement on Form N-1A, or was made as a result of
the failure of PFM Funds to provide information requested by the Fund or PFMFD
or otherwise required to be provided to them under this Agreement.
provided, however, that in no
case shall PFM Funds be liable for indemnification hereunder with respect to any
claims made against any Covered Person unless a Covered Person shall have
notified PFM Funds in writing within a reasonable time after the summons, other
first legal process, notice of a federal, state or local tax deficiency, or
formal initiation of a regulatory investigation or proceeding giving information
of the nature of the claim shall have properly been served upon or provided to a
Covered Person seeking indemnification. Failure to notify PFM Funds
of such claim shall not relieve PFM Funds from any liability that it may have to
any Covered Person otherwise than on account of the indemnification contained in
this Section.
(b) PFM
Funds will be entitled to participate at its own expense in the defense or, if
it so elects, to assume the defense of any suit brought to enforce any such
liability, but, if PFM Funds elects to assume the defense, such defense shall be
conducted by counsel chosen by PFM Funds. In the event PFM Funds
elects to assume the defense of any such suit and retain such counsel, each
Covered Person in the suit may retain additional counsel but shall bear the fees
and expenses of such additional counsel unless (A) PFM Funds shall have
specifically authorized the retaining of and payment of fees and expenses of
such additional counsel or (B) the parties to such suit include any Covered
Person and PFM Funds, and any such Covered Person has been advised in a written
opinion by counsel reasonably acceptable to PFM Funds that one or more legal
defenses may be available to it that may not be available to PFM Funds, in which
case PFM Funds shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the fees and expenses of one counsel to
such persons. PFM Funds shall not be required to indemnify any
Covered Person for any settlement of any such claim effected without its written
consent, which consent shall not be unreasonably withheld or
delayed. The indemnities set forth in paragraph (a) will be in
addition to any liability that PFM Funds might otherwise have to Covered
Persons.
8
ARTICLE
IV
ADDITIONAL
AGREEMENTS
4.1 Access to
Information. Throughout the life of this Agreement, the Fund
and PFM Funds shall afford each other reasonable access at all reasonable times
to such party’s officers, employees, agents and offices and to all relevant
books and records and shall furnish each other party with all relevant financial
and other data and information as such other party may reasonably
request.
4.2 Confidentiality. Each
party agrees that it shall hold in strict confidence all data and information
obtained from another party (unless such information is or becomes readily
ascertainable from public or published information or trade sources or public
disclosure of such information is required by law) and shall ensure that its
officers, employees and authorized representatives do not disclose such
information to others without the prior written consent of the party from whom
it was obtained, except if disclosure is required by the SEC, any other
regulatory body, the Fund’s or the Portfolio’s respective auditors, or in the
opinion of counsel to the disclosing party such disclosure is required by law,
and then only with as much prior written notice to the other parties as is
practical under the circumstances. Each party hereto acknowledges
that the provisions of this Section 4.2 shall not prevent PFM Funds from filing
a copy of this Agreement as an exhibit to a registration statement on Form N-1A
as it relates to the Portfolio and that such disclosure by PFM Funds shall not
require any additional consent from the other parties.
4.3 Obligations of Fund and PFM
Funds. PFM Funds agrees that the financial obligations of the
Fund under this Agreement shall be binding only upon the assets of the Fund, and
that except to the extent liability may be imposed under the Securities Laws,
PFM Funds shall not seek satisfaction of any such obligation from the officers,
agents, employees, trustees or shareholders of the Fund or other classes or
series of the Fund. The Fund agrees that the financial obligations of
PFM Funds under this Agreement shall be binding only upon the assets of the
Portfolio and that, except to the extent liability may be imposed under the
Securities Laws, the Fund shall not seek satisfaction of any such obligation
from the officers, agents, employees, trustees or shareholders of PFM Funds or
other classes or series of PFM Funds.
ARTICLE
V
TERMINATION,
AMENDMENT
5.1 Termination. This
Agreement may be terminated by any party hereto upon [90] days’ written notice
given to each other party to this Agreement; provided, however, that provisions
of Sections 3.1, 3.2, 4.2 and 4.3 shall survive any termination of this
Agreement, and further that the provisions of Sections 2.1(b) and (e) of this
Agreement, and the procedures and limitations relating to redemptions set forth
in Sections 2.2(a) and (b) of this Agreement, shall survive such termination if,
as of the effectiveness of such termination, the Fund owns Interests
representing more than three (3) percent of the outstanding shares of the
Portfolio (regardless of class) and shall survive until such ownership no longer
exceeds such percentage amount.
9
5.2 Amendment. This
Agreement may be amended, modified or supplemented at any time by written
agreement of the parties.
ARTICLE
VI
GENERAL
PROVISIONS
6.1 Expenses. All costs
and expenses incurred in connection with this Agreement and the conduct of
business contemplated hereby shall be paid by the party incurring such costs and
expenses.
6.2 Headings. The
headings and captions contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
6.3 Entire
Agreement. Except as set forth below, this Agreement sets
forth the entire understanding between the parties concerning the subject matter
of this Agreement and incorporates or supersedes all prior negotiations and
understandings. There are no covenants, promises, agreements,
conditions or understandings, either oral or written, between the parties
relating to the subject matter of this Agreement other than those set forth
herein and the terms, conditions and descriptions set forth in PFM Funds’
Registration Statement, as in effect from time to time.
6.4 Successors. Each and
all of the provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns; provided, however, that neither
this Agreement, nor any rights herein granted may be assigned to, transferred to
or encumbered by any party, without the prior written consent of the other
parties hereto.
6.5 Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
Commonwealth of Virginia; provided, however, that in the event of any conflict
between the 1940 Act and the laws of Virginia, the 1940 Act shall
govern.
6.6 Counterparts. This
Agreement may be executed in any number of counterparts, all of which shall
constitute one and the same instrument, and any party hereto may execute this
Agreement by signing one or more counterparts.
6.7 Third
Parties. Nothing herein expressed or implied is intended or shall be
construed to confer upon or give any person, other than the parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Agreement.
10
6.8 Notices. All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been duly given or made when delivered in
person or three days after being sent by certified or registered United States
mail, return receipt requested, postage prepaid, addressed:
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If
to the Fund:
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Florida
Education Investment Trust Fund
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Attn: A.
▇▇▇▇▇ ▇▇▇▇▇▇▇
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c/o
Florida School Boards Association, Inc.
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
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With
a copy to:
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▇▇▇▇
▇▇▇▇▇▇▇▇
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c/o
Florida Association of District School Superintendents,
Inc.
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
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If
to PFMFD:
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PFM
Fund Distributors, Inc.
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Attn: President
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One
Keystone Plaza, Suite ▇▇▇
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▇.
▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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If
to PFM Funds:
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PFM
Funds
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Attn: President
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One
Keystone Plaza, Suite ▇▇▇
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▇.
▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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With
a copy to:
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, Esq.
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▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇ LLP
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇
▇▇▇▇▇
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6.9 Interpretation. Any
uncertainty or ambiguity existing herein shall not be interpreted against any
party, but shall be interpreted according to the application of the rules of
interpretation for arms’ length agreements.
6.10
Operation of
Fund. Except as otherwise provided herein, this Agreement
shall not limit the authority of the Fund or PFMFD to take such action as either
may deem appropriate or advisable in connection with all matters relating to the
operation of the Fund and the sale of its shares.
11
6.11 Relationship of Parties; No
Joint Venture, Etc. It is
understood and agreed that neither the Fund nor PFMFD shall hold itself out as
an agent of PFM Funds with the authority to bind such party, nor shall PFM Funds
hold itself out as an agent of the Fund or PFMFD with the authority to bind such
party.
6.12 Use of
Name. Except as otherwise provided herein or required by law
the Fund shall not describe or refer to the name of PFM Funds, the Portfolio,
Florida Education Shares or any derivation thereof, or any affiliate thereof, or
to the relationship contemplated by this Agreement in any advertising or
promotional materials without the prior written consent of PFM Funds, nor shall
PFM Funds describe or refer to the name of the Fund or any derivation thereof,
or any affiliate thereof, or to the relationship contemplated by this Agreement
in any advertising or promotional materials without the prior written consent of
the Fund. In addition, the party required to give its consent shall
have at least three (3) business days prior to the earlier of filing or first
use, as the case may be, to review the proposed advertising or promotional
materials.
12
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective officers, thereunto duly authorized, as of the date first written
above.
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FLORIDA
EDUCATION INVESTMENT TRUST FUND
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Dated:
September 21, 2010
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By:
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
Chairman, Board of Trustees
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PFM
FUND DISTRIBUTORS, INC.
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Dated:
_____________, 2010
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By:
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Name:
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Title:
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PFM
FUNDS
|
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Dated:
_______________, 2010
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By:
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||
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Name:
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Title:
|
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13