UNDERWRITING AGREEMENT
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THIS AGREEMENT is made as of August 7, 2003, by and between CRA Fund
Advisors, Inc. (the "Fund"), and Citco-Quaker Fund Distributors, Inc., a
Delaware corporation ("Underwriter"). This Agreement will become effective on
the day the Distribution Agreement between the Trust and InCap Securities, Inc.
dated December 15, 2000 is terminated. CRA Fund Advisors, Inc. will provide the
Underwriter reasonable notice of such termination date.
WHEREAS, the Fund is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund is authorized by its Agreement and Declaration of Trust
to issue separate Portfolios of shares representing interests in separate
investment portfolios (the "Portfolios"), and
WHEREAS, the Fund 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 Fund 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 Fund 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 Fund 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 Fund, 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 Fund,
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 Fund'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 Fund or by another entity on behalf of the Fund. 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 Fund 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 Fund 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 ▇▇▇▇ ▇▇▇) 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 Fund except for investment
purposes and that it shall not for its own account sell any such
shares except for redemption of such share 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 Fund under this Agreement.
(f) Underwriter, as agent of the Fund 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 Fund's then current
Registration Statement. At the end of each business day, the
Underwriter shall notify the Fund and the Fund'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 Fund, the Fund 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 Fund from the Underwriter as proceeds
from the sale of Shares. The Fund reserves the right to suspend such
repurchase right upon written notice to the Underwriter. The
Underwriter further agrees to act as agent for the Fund to receive and
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transmit promptly to the Fund's transfer agent, shareholder and dealer
requests for redemption of Shares in the Porfolio(s).
3. SALES OF SHARES BY THE FUND. The Fund 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 Fund, undertakes to sell
Shares of the Portfolio(s) only against orders therefor.
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 Fund 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 Fund or the Adviser to the Fund, 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 Fund's then current
prospectus and statement of additional information covering the Shares
and in printed information approved by the Fund as information
supplemental to such prospectus and statement of additional
information. Copies of the Fund'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 FUND. The Fund 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
Jurisdiction and all personnel must agree 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 FUND. The Fund 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 Fund 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
Fund under this Agreement; and
(g) any original issue taxes or transfer taxes applicable to the sale or
delivery of the Shares of certificates therefor.
10. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold the Underwriter, its
officers, and Directors, 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, Directors 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 otherwise, arising out of
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or based upon any untrue statement of a material fact contained in the
Fund'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 Fund for use in the
Registration Statement. The Underwriter agrees to comply with all of
the applicable terms and provisions of the ▇▇▇▇ ▇▇▇.
(b) The Underwriter agrees to indemnify, defend, and hold the Fund, its
officers, Directors, employees shareholders and agents, and any person
who controls the Fund within the meaning of Section 15 of the 1933 Act
or 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 Fund, its Directors, officers, employees, shareholders and
agents, or any such controlling person may incur under the 1933 Act,
the 1934 Act, the 1940 Act or other federal or state laws or
regulations or 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 Fund 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
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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.
11 ADVANCES OF EXPENSES. The Fund 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 Fund or at a meeting of the Shareholders of the Fund by the
affirmative vote of a majority of the outstanding Shares, and (iii) by a
majority of the Trustees of the Fund who are not interested persons of the
Fund or of Underwriter, by vote cast in person at a meeting called for the
purpose of voting on such approval. Either the Fund 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 as set forth in
Section 10 of this Agreement, this Agreement shall take effect upon its
execution and shall remain in full force and effect until May 31, 2005, 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
Fund or by vote of a majority of the outstanding Shares, and in either case
(iii) by a majority of the Trustees of the Fund who are not interested
persons of the Fund or of Underwriter, by vote cast in person at a meeting
called for the purpose of voting on such approval.
14. LIMITATION OF FUND'S LIABILITY. The Term "CRA Fund" means and refers to the
Trustees and officers from time to time serving under the Fund'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 Fund hereunder shall not be binding upon any of the
Trustees, Shareholders, nominees, officers, agents or employees of the Fund
personally, but bind only the property of the Fund, as provided in Fund's
Agreement and Declaration of Trust and by-laws. The execution and delivery
of this Agreement have been authorized by the Trustees of the Fund and
signed by the officers of the Fund, 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 Fund as provided in its Agreement and Declaration of Trust.
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
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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 the 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 10, the terms and provisions of this Agreement
shall become automatically applicable to any investment company which is a
successor to the Fund 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 Fund is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇.,
▇▇▇▇▇, Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ and
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of the Underwriter shall be ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Mr. ▇▇▇▇▇▇▇ Faith.
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 Fund 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 Fund and Underwriter have each caused this
Agreement to be signed on its behalf, all as of the day and year first above
written.
ATTEST: CRA FUND ADVISORS, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
ATTEST CITCO-QUAKER FUND DISTRIBUTORS, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ Faith
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Name: ▇▇▇▇▇▇▇ Faith
Title: Chief Operating Officer
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UNDERWRITING AGREEMENT
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EXHIBIT A
The following Portfolios and share classes thereof are hereby made subject
to the underwriting Agreement dated August 7, 2003, with Citco-Quaker Fund
Distributors, Inc. ("Underwriter") and CRA Fund Advisors, Inc. (the "Fund"), and
each agree to be bound by all the terms and conditions contained in said
Agreement:
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PORTFOLIOS Class A Class B No-Load
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The CRA Qualified Investment Fund X
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UNDERWRITING AGREEMENT
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EXHIBIT B
The following fees are hereby made subject to the underwriting Agreement
dated _________, 2003, with Citco-Quaker Fund Distributors, Inc. ("Underwriter")
and CRA Fund Advisors, Inc. (the "Fund"), 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 Fund that offer No-Load Shares only.
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