DISTRIBUTION AGREEMENT
THIS AGREEMENT is made as of this 26th day of October, 2000 (the
"Agreement") by and between Whitehall Funds Trust, a Delaware business trust
(the "Company") and PFPC Distributors, Inc. (the "Distributor"), a Delaware
corporation.
WHEREAS, the Company 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 Company identified on Schedule A
hereto (the "Funds") which are registered with the Securities and Exchange
Commission (the "SEC") pursuant to the Company's Registration Statement on Form
N-1A (the "Registration Statement"); and
WHEREAS, the Company desires to retain the Distributor as distributor
for the Funds to provide for the sale and distribution of the Shares of the
Funds identified on Schedule A and for such additional classes or series as the
Company 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 Company for the distribution
of the Shares covered by the Registration Statement under the
Securities Act of 1933, as amended (the "1933 Act"). 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 Distributor agrees to use efforts deemed appropriate by the
Distributor to solicit orders for the sale of the Shares and will
undertake such advertising and promotion as it believes reasonable in
connection with such solicitation. To the extent that the Distributor
receives shareholder services fees under any shareholder services plan
adopted by the Company, 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 Company as may be required pursuant to such plan. It is
contemplated that the Distributor will enter into sales or servicing
agreements with securities dealers, financial institutions and other
industry professionals, such as investment advisers, accountants and
estate planning firms to the extent permitted by SEC and NASD
regulations or other governing law.
1.3 The Company 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 Company. The Company further understands that investors
and potential investors in the Company may invest in shares of such
other Investment
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Entities. The Company agrees that the Distributor's duties to such
Investment Entities shall not be deemed in conflict with its duties to
the Company under this Section 1.3.
1.4 The Distributor shall not utilize any materials in connection with the
sale or offering of Shares except the Company's prospectus and
statement of additional information and such other materials as the
Company shall provide or approve.
1.5 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.
1.6 The Distributor will transmit any orders received by it for purchase or
redemption of the Shares to the transfer agent for the Company.
1.7 Whenever in its judgment such action is warranted by unusual market,
economic or political conditions or abnormal circumstances of any kind,
the Company may decline to accept any orders for, or make any sales of,
the Shares until such time as the Company deems it advisable to accept
such orders and to make such sales, and the Company advises the
Distributor promptly of such determination.
1.8 The Company agrees to pay all reasonable costs and expenses in
connection with the registration of Shares under the Securities Act of
1933, as amended, and all reasonable expenses in connection with
maintaining facilities for the issue and transfer of Shares and for
supplying information, prices and other data to be furnished by the
Fund hereunder, and all reasonable expenses in connection with the
preparation and printing of the Fund's prospectuses and statements of
additional information for regulatory purposes and for distribution to
shareholders.
1.9 The Company agrees at its own expense to execute any and all documents
and to furnish any and all information and otherwise to take all
actions that may be reasonably necessary in connection with the
qualification of the Shares for sale in such states as the Distributor
may designate. The Company 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 Company shall furnish from time to time, for use in connection with
the sale of the Shares, such information with respect to the Company
and the Shares as the Company may reasonably request; and the Company
warrants that the statements contained in any such information shall
fairly show or represent what they purport to show or represent. The
Company shall also furnish the Distributor upon request with: (a)
audited annual statements and unaudited semi-annual statements of a
Fund's books and accounts prepared by the Company, (b) quarterly
earnings statements prepared by the Company, (c) a monthly itemized
list of the securities in the Funds, and (d) monthly balance sheets as
soon as practicable after the end of each month.
1.11 The Company represents to the Distributor that all Registration
Statements and prospectuses filed by the Company with the SEC under the
1933 Act with respect to the
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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 Company 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 Company by the Distributor or
any affiliate of the Distributor expressly for use in the Registration
Statement, the Company 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 Company of any
advice given to it by its counsel regarding the necessity or
advisability of amending or supplementing such Registration Statement.
If the Company shall not propose such amendment or amendments and/or
supplement or supplements within fifteen days after receipt by the
Company of a reasonable written request from the Distributor to do so,
the Distributor may, at its option, terminate this Agreement. The
Company 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 limit the Company's right to file at
any time such amendments to any Registration Statements and/or
supplements to any prospectus, of whatever character, as the Company
may deem advisable, such right being in all respects absolute and
unconditional.
1.12 The Company authorizes the Distributor to use in connection with the
sale of the Shares any prospectus or statement of additional
information in the form furnished from time to time. The Company 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 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 Company'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 Company'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
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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 Company by the Distributor or its
affiliated persons for use in the Company'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 Company acknowledges and agrees
that in the event that the Distributor, at the request of the Company,
is required to give indemnification comparable to that set forth in
clause (a) of this Section 1.12 to any broker-dealer selling Shares of
the Company and such broker-dealer shall make a claim for
indemnification against the Distributor, the Distributor shall make a
similar claim for indemnification against the Company.
1.13 The Distributor agrees to indemnify and hold harmless the Company, its
several officers and Trustees and each person, if any, who controls a
Fund 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 Company, its officers, Trustees or any such controlling
person may incur under the 1933 Act, under any other statute, at common
law or otherwise, but only to the extent that such liability or expense
incurred by the Company, its officers or Trustees, or any controlling
person resulting from such claims or demands arise 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 Company'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 Company by the Distributor or its affiliated persons (as defined in
the 0000 Xxx) or in connection with the Distributor's willful
misfeasance, bad faith or negligence.
1.14 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.
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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. The obligations of the parties hereto under this
Section 1.14 and Section 3.1 shall survive the termination of this
Agreement.
The Indemnifying Party's indemnification agreement contained in this
Section 1.14 and Section 3.1 and the Indemnifying Party's
representations and warranties in this Agreement shall remain operative
and in full force and effect regardless of any investigation made by or
on behalf of the Indemnified Party, 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
Indemnified Party'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. The
Indemnifying Party agrees promptly to notify the Indemnified Party of
the commencement of any litigation or proceedings against the
Indemnifying Party or any of its officers or directors in connection
with the issue and sale of any Shares.
1.15 No Shares shall be offered by either the Distributor or the Company
under any of the provisions of this Agreement and no orders for the
purchase or sale of Shares hereunder shall be accepted by the Company
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 1.15 shall in any way restrict or have any application to or
bearing upon the Company's obligation to redeem Shares tendered for
redemption by any shareholder in accordance with the provisions of the
Company's Registration Statement, Declaration of Trust, or bylaws.
1.16 The Company 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 Company 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
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(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.
2. TERM
----
2.1 This Agreement shall become effective immediately upon the consummation
of the acquisition of Provident Distributors, Inc. by the Distributor,
which the parties anticipate to occur on or about December 1, 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 Company's Board of Trustees or (ii) by a vote
of a majority (as defined in the 1940 Act and Rule 18f-2 thereunder) of
the outstanding voting securities of the Company, provided that in
either event the continuance is also approved by a majority of the
Trustees 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 Company's Board
of Trustees, by vote of a majority (as defined in the 1940 Act and Rule
18f-2 thereunder) of the outstanding voting securities of the Company,
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).
2.2 In the event a termination notice is given by the Company, all
reasonable expenses associated with movement of records and materials
and conversion thereof will be borne by the Company.
3. LIMITATION OF LIABILITY
-----------------------
3.1 Each party to this Agreement shall not be liable to the other party for
any error of judgment or mistake of law or for any loss suffered by the
other party in connection with the performance of its obligations and
duties under this Agreement, except a loss resulting from such party's
willful misfeasance, bad faith or negligence in the performance of such
obligations and duties, or by reason of its reckless disregard thereof.
Each party (the "Indemnifying Party") will indemnify the other party
(the "Indemnified Party") 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 Indemnified Party for which the Indemnified
Party may be held to be liable in connection with this Agreement or the
Indemnified Party's performance hereunder (a "Section 3.1 Claim"),
unless such Section 3.1 Claim resulted from a negligent act or omission
to act or bad faith by the Indemnified Party in the performance of its
duties hereunder. The provisions of Section 1.14 shall apply to any
indemnification provided by the Indemnifying Party pursuant to this
Section 3.1. The obligations of the parties hereto under this Section
3.1 shall survive termination of this Agreement.
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3.2 Each party shall have the duty to mitigate damages for which the other
party may become responsible.
3.5 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE FOR
CONSEQUENTIAL DAMAGES.
4. 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. 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.
5. NO PRESUMPTION AGAINST DRAFTER
------------------------------
The Distributor and the Company have jointly participated in the
negotiation and drafting of this Agreement. The Agreement shall be
construed as if drafted jointly by the Company and the Distributor, and
no presumptions arise favoring any party by virtue of the authorship of
any provision of this Agreement.
6. PUBLICITY
---------
Neither the Distributor nor the Company 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
legal, accounting or regulatory requirements.
7. 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.
8. 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
158
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.
9. MISCELLANEOUS
-------------
9.1 Any notice or other instrument authorized or required by this Agreement
to be given in writing to the Company 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 Company:
Whitehall Funds Trust
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx
To the Distributor:
PFPC Distributors, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxx
9.2 The laws of the State of New York, 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 New York 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 New York, and the Distributor and the
Company hereby submit themselves to the exclusive jurisdiction of those
courts.
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9.3 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.
9.4 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.
9.5 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.
9.6 The Distributor agrees to grant to the auditors and regulators of the
Company the same access to the books and records of the Company held by
the Distributor as if such were held by the Company.
10. CONFIDENTIALITY
---------------
10.1 The parties agree that the Proprietary Information (defined below)
(collectively "Confidential Information") are confidential information
of the parties and their respective licensers. The Company and the
Distributor shall exercise reasonable care to safeguard the
confidentiality of the Confidential Information of the other. The
Company and the Distributor may each use the Confidential Information
only to exercise its rights or perform its duties under this Agreement.
The Company and the Distributor shall not 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 Company 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 Company
and the Distributor may also disclose the Confidential Information to
independent contractors, auditors and professional advisors and as
required by law or regulatory authorities. Notwithstanding the previous
sentence, in no event shall either the Company or the Distributor
disclose the Confidential Information to any competitor of the other
without specific, prior written consent.
10.2 Proprietary Information means:
(a) any data or information that is 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 Company 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 Company or the
Distributor a competitive advantage over its competitors: and
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(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.
10.3 Confidential Information may be memorialized in, without limitation,
documents, inventions, substances, engineering and laboratory
notebooks, drawings, diagrams, specifications, bills of material,
equipment, prototypes or 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.
10.4 Each party acknowledges that breach of the restrictions on use,
dissemination or disclosure of any Confidential Information of the
other party would result in immediate and irreparable harm, and money
damages would be inadequate to compensate the other party for that
harm. Each Party shall be entitled to equitable relief, in addition to
all other available remedies, to redress any such breach.
11. The Company and the Distributor agree that the obligations of the
Company under the Agreement shall not be binding upon any of the
Trustees, shareholders, nominees, officers, employees or agents,
whether past, present or future, of the Company individually, but are
binding only upon the assets and property of the Company, as provided
in the Declaration of Trust. The execution and delivery of this
Agreement have been authorized by the Trustees of the Company, and
signed by an authorized officer of the Company, acting as such, and
neither such authorization by such Trustees nor such execution and
delivery by such officer shall be deemed to have been made by any of
them or any shareholder of the Company individually or to impose any
liability on any of them or any shareholder of the Company personally,
but shall bind only the assets and property of the Company as provided
in the Declaration of Trust.
12. 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.
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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.
WHITEHALL FUNDS TRUST
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------
Title: President
-----------------------
PFPC DISTRIBUTORS, INC.
By: /s/Xxxx X.Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
------------------------
Title: President
-----------------------
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SCHEDULE A
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Name of Funds
-------------
Whitehall Enhanced Index Fund
Whitehall Growth Fund
Whitehall Growth and Income Fund
Whitehall High Yield Fund
Whitehall Income Fund
Whitehall Money Market Fund
