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Item 23 (e)
DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this ____ day of December, 2000 (the
"Agreement") by and between New Covenant Funds, a Delaware business trust (the
"Fund") and PFPC Distributors, Inc. (the "Distributor"), a Massachusetts
corporation.
WHEREAS, the Fund is registered as a diversified, 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 Schedule 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 desires to retain the Distributor as distributor for
the Portfolios to provide for the sale and distribution of the Shares of the
Portfolios identified on Schedule A and for such additional classes or series as
the Fund may issue, and the Distributor is prepared to provide such services
commencing on the date first written above.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein and intending to be legally bound hereby the parties hereto
agree as follows:
1. SERVICE AS DISTRIBUTOR
1.1 The Distributor will act on behalf of the Fund for the distribution of
the Shares covered by the Registration Statement under the Securities
Act of 1933, as amended (the "1933 Act") and provide the distribution
services outlined in Schedule B to this Agreement. The 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.
1.2 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. The Distributor shall have no duty to
inquire into, or liability for, the accuracy of the net asset value per
Share as calculated.
1.3 The Distributor agrees to use efforts deemed appropriate by the
Distributor to solicit orders for the sale of the Shares and will, at
the request of the Fund, undertake such advertising and promotion as it
believes reasonable in connection with such solicitation. To the extent
that the Distributor receives fees under any plan adopted by the Fund
pursuant to Rule 12b-1 under the 1940 Act, the 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 the Distributor
receives shareholder services fees under any shareholder services plan
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adopted by the Fund, the 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. If the
Distributor enters into sales or servicing agreements with securities
dealers, financial institutions and other industry professionals, such
as investment advisers, accountants and estate planning firms to the
extent permitted by SEC and NASD regulations and other governing law,
the Distributor will require each dealer with whom the 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 the Distributor shall not cause the Fund to withhold the placing of
purchase orders so as to make a profit thereby.
1.4 The Fund understands that the 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 the Distributor's duties to such Investment Entities shall
not be deemed in conflict with its duties to the Fund under this
Section 1.4.
1.5 The 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 the 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 the Distributor to
file and clear such materials with the proper authorities before they
are put in use. The Distributor and the Fund may agree that any such
material does not need to be filed prior 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
the Distributor.
1.6 All activities by the Distributor and its employees, as distributor of
the Shares, shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations
made or adopted by the SEC or the National Association of Securities
Dealers.
1.7 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Fund.
1.8 Whenever in its judgment such action is warranted, 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 the Distributor promptly of such
determination.
1.9 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
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qualification of the Shares for sale in such states as the Distributor
may designate. The Fund shall notify the Distributor in writing of the
states in which the Shares may be sold and shall notify the Distributor
in writing of any changes to the information contained in the previous
notification.
1.10 The Fund shall furnish from time to time, for use in connection with
the sale of the Shares, such information with respect to the Fund and
the Shares as the Distributor may reasonably request; and the Fund
warrants that the statements contained in any such information shall
fairly show or represent what they purport to show or represent. The
Fund shall also furnish the Distributor upon request with: (a) audited
annual statements and unaudited semi-annual statements of a Portfolio's
books and accounts prepared by the Fund, (b) quarterly earnings
statements prepared by the Fund, (c) a monthly itemized list of the
securities in the Portfolios, (d) monthly balance sheets as soon as
practicable after the end of each month, and (e) from time to time such
additional information regarding the financial condition of the Fund as
the Distributor may reasonably request.
1.11 The Fund represents to the 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. As used in this Agreement, the term "Registration
Statement" shall mean 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. Except as to information included in the Registration
Statement in reliance upon information provided to the Fund by the
Distributor or any affiliate of the Distributor expressly for use in
the Registration Statement, the Fund represents and warrants to the
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 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. The
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 Distributor's counsel, be
necessary or advisable. The 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 the Distributor to do so, the 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 the Distributor reasonable notice thereof in
advance; provided, however, that nothing contained in this Agreement
shall in any way
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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 the
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.
1.12 No Shares shall be offered by either the 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 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 Section 1.12
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.
1.13 The Fund agrees to advise the Distributor as soon as reasonably
practical by a notice in writing delivered to the Distributor:
(a) 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;
(b) 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;
(c) 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
(d) 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 section, informal requests by or acts of the Staff
of the SEC shall not be deemed actions of or requests by the SEC.
1.14 The Fund represents and warrants to the Distributor that the Fund is a
series of investment company registered under the 1940 Act and the
Shares sold by each Portfolio are, and will be, registered under the
1933 Act.
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1.15 The Distributor shall also provide the following services to the Fund:
(a) Legal review and principal sign-off of all Fund marketing
materials and other sales related materials to ensure
compliance with the advertising rules of the relevant
regulatory authorities and file such materials, and obtain
such approvals for their use as may be required by the
Securities and Exchange Commission ("SEC"), the NASD or state
securities administrators. The Distributor will forward all
NASD comments on marketing materials to the Fund; and
(b) Assistance in the preparation of quarterly Board materials
with regard to sales and other distribution related data
reasonably requested by the Board.
2. FUND EXPENSES
2.1 The Fund will bear the following expenses:
(a) preparation, printing and distribution of sufficient copies of
the Prospectus and SAI to shareholders;
(b) preparation, printing and distribution of reports and other
communications to shareholders;
(c) registration of the Shares under the federal and state
securities laws;
(d) maintaining facilities for the issue and transfer of Shares;
(e) supplying information, prices and other data to be furnished
by the Fund under this Agreement;
(f) any original issue taxes or other transfer taxes applicable to
the sale or delivery of the Shares or certificates therefor;
and
(g) filing fees associated with the submission of sales materials
to the NASD or any state authority for use with current
shareholders.
3. INDEMNIFICATION
3.1 The Fund agrees to indemnify and hold harmless the Distributor, its
officers, directors, and employees, and any person who controls the
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 the Distributor, its
officers, directors, employees or any such controlling person may incur
under the 1933 Act, under any other statute, at
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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 the 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 the 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 the Distributor's willful misfeasance, bad faith or
negligence in the performance of the Distributor's duties hereunder.
The Fund acknowledges and agrees that in the event that the
Distributor, at the request of the Fund, are required to give
indemnification comparable to that set forth in this Section 3.1 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 the Distributor, the
Distributor shall make a similar claim for indemnification against the
Fund.
The Fund will indemnify the Distributor against and hold it harmless
from any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities of
any sort or kind which may be asserted against the Distributor for
which the Distributor may be held to be liable in connection with this
Agreement or the Distributor's performance hereunder (a "Claim"),
unless such Claim resulted from a negligent act or omission to act or
bad faith by the Distributor in the performance of its duties
hereunder.
3.2 The 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
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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 the
Distributor or its affiliated persons (as defined in the 1940 Act). The
Distributor also agrees to indemnify and hold harmless the Fund and
each such person in connection with any claim or in connection with any
action, suit or proceeding which arises out of or is alleged to arise
out of the Distributor's failure to exercise reasonable care and
diligence with respect to its services rendered in connection with the
purchase and sale of Shares. 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.
3.3 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 the Distributor of the
commencement of any litigation or proceedings against the Fund or any
of its officers or directors 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.
3.4 The obligations of the parties hereto under this Section 3 shall
survive the termination of this Agreement. The Fund's indemnification
agreement contained in this Section 3 and the Fund's representations
and warranties in this Agreement shall remain operative and in
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full force and effect regardless of any investigation made by or on
behalf of the Distributor, its officers, directors and employees, or
any controlling person, and shall survive the delivery of any Shares.
This agreement of indemnity will inure exclusively to the Distributor's
benefit, to the benefit of its several officers, directors and
employees, and their respective estates and to the benefit of the
controlling persons and their successors.
4. STANDARD OF CARE; LIMITATION OF LIABILITY
4.1 The Distributor shall not be liable to the Fund for any error of
judgment or mistake of law or for any loss suffered by the Fund in
connection with the performance of its obligations and duties under
this Agreement, except a loss resulting from the Distributor's willful
misfeasance, bad faith or negligence in the performance of such
obligations and duties, or by reason of its reckless disregard thereof.
4.2 Neither party may assert any cause of action against the other party
under this Agreement that accrued more than two (2) years prior to the
filing of the suit (or commencement of arbitration proceedings)
alleging such cause of action.
4.3 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
4.4 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL THE DISTRIBUTOR, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER ANY
THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY
AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE
FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
5. EXCLUSION OF WARRANTIES
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE DISTRIBUTOR DISCLAIMS ALL OTHER REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE FUND, A PORTFOLIO 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. THE DISTRIBUTOR DISCLAIMS ANY WARRANTY
OF TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT.
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6. TERM
6.1 This Agreement shall become effective immediately upon the consummation
of the acquisition of Provident Distributors, Inc. by PFPC Inc. (or a
substantially similar transaction), which the parties anticipate to
occur on or about December 31, 2000, and, unless sooner terminated as
provided herein, shall continue for an initial one-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 Directors 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
0000 Xxx) 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 Directors, 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 the Distributor. This
Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act and the rules thereunder).
6.2 In the event a termination notice is given by the Fund, all expenses
associated with movement of records and materials and conversion
thereof will be borne by the Fund.
7. MODIFICATIONS AND WAIVERS
No change, termination, modification, or waiver of any term or
condition of the Agreement shall be valid unless in writing signed by
each party. No such writing shall be effective as against the
Distributor unless said writing is executed by a Senior Vice President,
Executive Vice President or President of the Distributor. A party's
waiver of a breach of any term or condition in the Agreement shall not
be deemed a waiver of any subsequent breach of the same or another term
or condition.
8. NO PRESUMPTION AGAINST DRAFTER
The Distributor and the Fund have jointly participated in the
negotiation and drafting of this Agreement. The Agreement shall be
construed as if drafted jointly by the Fund and the Distributor, and no
presumptions arise favoring any party by virtue of the authorship of
any provision of this Agreement.
9. PUBLICITY
Neither the Distributor nor the Fund shall release or publish news
releases, public announcements, advertising or other publicity relating
to this Agreement or to the transactions contemplated by it without
prior review and written approval of the other party; provided,
however, that either party may make such disclosures as are required by
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legal, accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other
party.
10. SEVERABILITY
The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or
invalidity shall not affect the validity of the remainder of this
Agreement. In such case, the parties shall in good faith modify or
substitute such provision consistent with the original intent of the
parties. Without limiting the generality of this paragraph, if a court
determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall
remain fully effective.
11. FORCE MAJEURE
No party shall be liable for any default or delay in the performance of
its obligations under this Agreement if and to the extent such default
or delay is caused, directly or indirectly, by (i) fire, flood,
elements of nature or other acts of God; (ii) any outbreak or
escalation of hostilities, war, riots or civil disorders in any
country, (iii) any act or omission of the other party or any
governmental authority; (iv) any labor disputes (whether or not the
employees' demands are reasonable or within the party's power to
satisfy); or (v) nonperformance by a third party or any similar cause
beyond the reasonable control of such party, including without
limitation, failures or fluctuations in telecommunications or other
equipment. In any such event, the non-performing party shall be excused
from any further performance and observance of the obligations so
affected only for so long as such circumstances prevail and such party
continues to use commercially reasonable efforts to recommence
performance or observance as soon as practicable.
12. MISCELLANEOUS
12.1 Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Fund or the Distributor shall be
sufficiently given if addressed to the party and received by it at its
office set forth below or at such other place as it may from time to
time designate in writing.
To the Fund:
New Covenant Funds
C/o Presbyterian Church (U.S.A.) Foundation
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxxxxxxx, Xxxxxxx 00000
Attention: President
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To the Distributor:
PFPC Distributors, Inc.
000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
12.2 The laws of the State of Delaware, excluding the laws on conflicts of
laws, and the applicable provisions of the 1940 Act shall govern the
interpretation, validity, and enforcement of this Agreement. To the
extent the provisions of Delaware law or the provisions hereof conflict
with the 1940 Act, the 1940 Act shall control. All actions arising from
or related to this Agreement shall be brought in the state and federal
courts sitting in the City of Wilmington, State of Delaware, and the
Distributor and the Fund hereby submit themselves to the exclusive
jurisdiction of those courts.
12.3 This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
12.4 The captions of 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.
12.5 This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and is not intended
to confer upon any other person any rights or remedies hereunder.
13. CONFIDENTIALITY
13.1 The parties agree that the Proprietary Information (defined below) and
the contents of this Agreement (collectively "Confidential
Information") are confidential information of the parties and their
respective licensers. The Fund and the Distributor shall exercise
reasonable care to safeguard the confidentiality of the Confidential
Information of the other. The Fund and the Distributor may each use the
Confidential Information only to exercise its rights or perform its
duties under this Agreement. The Fund and the Distributor shall not
duplicate, sell or disclose to others the Confidential Information of
the other, in whole or in part, without the prior written permission of
the other party. The Fund and the Distributor may, however, disclose
Confidential Information to its employees who have a need to know the
Confidential Information to perform work for the other, provided that
each shall use reasonable efforts to ensure that the Confidential
Information is not duplicated or disclosed by its employees in breach
of this Agreement. The Fund and the Distributor may also disclose the
Confidential Information to independent contractors, auditors and
professional advisors, provided they first agree in writing to be bound
by the confidentiality obligations substantially similar to this
Section
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13. Notwithstanding the previous sentence, in no event shall either the
Fund or the Distributor disclose the Confidential Information to any
competitor of the other without specific, prior written consent.
13.2 Proprietary Information means:
(a) any data or information that is completely sensitive material, and
not generally known to the public, including, but not limited to,
information about product plans, marketing strategies, finance,
operations, customer relationships, customer profiles, sales estimates,
business plans, and internal performance results relating to the past,
present or future business activities of the Fund or the 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 the
Distributor a competitive advantage over its competitors; and
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable.
13.3 Confidential Information includes, without limitation, all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing of either
party which now exist or come into the control or possession of the
other.
13.4 The Fund acknowledges that breach of the restrictions on use,
dissemination or disclosure of any Confidential Information would
result in immediate and irreparable harm, and money damages would be
inadequate to compensate the Distributor for that harm. The Distributor
shall be entitled to equitable relief, in addition to all other
available remedies, to redress any such breach.
13.5 The obligations of confidentiality and restriction on use herein shall
not apply to any Confidential Information that a party proves:
(a) Was in the public domain prior to the date of this Agreement or
subsequently came into the public domain through no fault of such
party; or
(b) Was lawfully received by the party from a third party free of any
obligation of confidence to such third party; or
(c) Was already in the possession of the party prior to receipt
thereof, directly or indirectly, from the other party; or
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(d) Is required to be disclosed in a judicial or administrative
proceeding after all reasonable legal remedies for maintaining such
information in confidence have been exhausted including, but not
limited to, giving the other party as much advance notice of the
possibility of such disclosure as practical so the other party may
attempt to stop such disclosure or obtain a protective order concerning
such disclosure; or
(e) Is subsequently and independently developed by employees,
consultants or agents of the party without reference to the
Confidential Information disclosed under this Agreement.
14. ENTIRE AGREEMENT
This Agreement, including all Schedules hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous proposals, agreements,
contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof.
15. BOARD MEMBER LIABILITY
The Fund and the Distributor agree that the obligations of the Fund under the
Agreement shall not be binding upon any of the Board Members, shareholders,
nominees, officers, employees or agents, whether past, present or future, of the
Fund individually, but are binding only upon the assets and property of the
Fund, as provided in the Trust Instrument. The execution and delivery of this
Agreement have been authorized by the Board Members of the Fund, and signed by
an authorized officer of the Fund, acting as such, and neither such
authorization by such Board Members nor such execution and delivery by such
officer shall be deemed to have been made by any of them or any shareholder of
the Fund individually or to impose any liability on any of them or any
shareholder of the Fund personally, but shall bind only the assets and property
of the Fund as provided in the Trust Instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
NEW COVENANT FUNDS
By:
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Name:
------------------------------------------
Title:
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PFPC DISTRIBUTORS, INC.
By:
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Name:
------------------------------------------
Title:
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SCHEDULE A
NAME OF PORTFOLIOS
New Covenant Growth Fund
New Covenant Income Fund
New Covenant Balanced Growth Fund
New Covenant Balanced Income Fund
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SCHEDULE B
DISTRIBUTION SERVICES
Services shall include:
1. Preparation and execution of sales or servicing agreements
monitoring accruals
monitoring expenses
making disbursements for expenses and fees
2. Quarterly 12b-1 Reports to the Board (if applicable)
3. Literature submission to the NASD
