EXHIBIT 6(a)
THE PNC(R) FUND
DISTRIBUTION AGREEMENT
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Agreement dated as of January 31, 1994 between THE PNC(R) FUND, a
Massachusetts business trust (the "Company"), and Provident Distributors, Inc.,
a Delaware corporation (the "Distributor").
WHEREAS, the Company is an open-end, diversified management investment
company and is so registered under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Company desires to retain the Distributor as its
distributor to provide for the sale and distribution of each class and series of
units of beneficial interest ("shares") in each of the Company's investment
portfolios (individually, a "Fund," collectively, the "Funds") as listed on
Appendix A (as such Appendix may, from time to time, be supplemented (or
amended)), and the Distributor is willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth and intending to be legally bound, the parties hereto agree as
follows:
1. Appointment of Distributor. The Company hereby appoints the
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Distributor as distributor of each class and series of shares in each of the
Company's Funds on the terms and for the period set forth in this Agreement. The
Distributor hereby accepts such appointment and agrees to render the services
and duties set forth in Section 3 below. In the event that the Company
establishes additional classes or investment portfolios other than the Funds
listed on Appendix A with respect to which it desires to retain the Distributor
to act as distributor hereunder, the Company shall notify the Distributor,
whereupon such Appendix A shall be supplemented (or amended) and such portfolio
shall become a Fund hereunder and shall be subject to the provisions of this
Agreement to the same extent as the Funds (except to the extent that said
provisions may be modified in writing by the Company and Distributor at the
time).
2. Delivery of Documents. The Company has furnished the Distributor
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with copies, properly certified or authenticated, of each of the following
documents and will deliver to it all future amendments and supplements, if any:
a. The Company's Declaration of Trust, filed with the Secretary
of State of the Commonwealth of Massachusetts on December 22, 1988, as amended
(the "Charter");
b. The Company's Code of Regulations, as amended and
supplemented ("Code");
c. Resolutions of the Company's Board of Trustees authorizing
the execution and delivery of this Agreement;
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d. The Company's most recent amendment to its Registration
Statement under the Securities Act of 1933, as amended (the "1933 Act"), and the
1940 Act on Form N-1A as filed with the Securities and Exchange Commission (the
"Commission") on January 7, 1994, relating to its Funds (the Registration
Statement, as presently in effect and as amended or supplemented from time to
time, is herein called the "Registration Statement");
e. The Company's most recent Prospectuses and Statements of
Additional Information and all amendments and supplements thereto (such
Prospectuses and Statements of Additional Information and supplements thereto,
as presently in effect and as from time to time amended and supplemented, are
herein called the "Prospectuses"); and
f. The Company's Amended and Restated Service Plan and related
Distribution and Servicing Agreement and form of broker-dealer agreement.
3. Service and Duties. The Distributor enters into the following
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covenants with respect to its services and duties:
a. The Distributor agrees to sell, as agent, from time to time
during the term of this Agreement, shares upon the terms and at the current
offering price as described in the Prospectuses. The Distributor will act only
in its own behalf as principal in making agreements with selected dealers. No
broker dealer or other person which enters into a selling or servicing agreement
with the Distributor shall be authorized to act as agent for the Company or its
Funds in connection with the offering or sale of shares to the public or
otherwise. The Distributor shall use its best efforts to sell shares of each
class of each of the Funds but shall not be obligated to sell any certain number
of shares.
b. The Distributor shall prepare or review, provide advice with
respect to, and file with the federal and state agencies or other organizations
as required by federal, state, and other applicable laws and regulations, all
sales literature (advertisements, brochures and shareholder communications) for
each of the Funds and any class of shares thereof.
c. In performing all of its services and duties as Distributor,
the Distributor will act in conformity with the Charter, Code, Prospectuses and
resolutions and other instructions of the Company's Board of Trustees and will
comply with the requirements of the 1933 Act, the Securities Exchange Act of
1934, the 1940 Act and all other applicable federal or state laws.
d. The Distributor will bear the cost of (i) printing and
distributing any Prospectus (including any
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supplement thereto) to persons who are not shareholders, and (ii) preparing,
printing and distributing any literature, advertisement or material which is
primarily intended to result in the sale of shares; provided, however, that the
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Distributor shall not be obligated to bear the expenses incurred by the Company
in connection with the preparation and printing of any amendment to any
Registration Statement or Prospectus necessary for the continued effective
registration of the shares under the 1933 Act and state securities laws and the
distribution of any such document to existing shareholders of the Company's
Funds.
e. The Company shall have the right to suspend the sale of shares
at any time in response to conditions in the securities markets or otherwise,
and to suspend the redemption of shares of any Fund at any time permitted by the
1940 Act or the rules and regulations of the Commission ("Rules").
f. The Company reserves the right to reject any order for shares
but will not do so arbitrarily or without reasonable cause.
4. Forfeiture of Sales Charges. If any shares sold by the
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Distributor under the terms of this Agreement are redeemed or repurchased by the
Fund or by the Distributor as agent or are tendered for redemption within seven
business days after the date of confirmation of the original purchase of said
shares, the Distributor shall forfeit the amount above the net asset value
received by it in respect of such shares, provided that the portion, if any, of
such amount re-allowed by the Distributor to broker-dealers or other persons
shall be repayable to the Company only to the extent recovered by the
Distributor from the broker dealer or other person concerned. The Distributor
shall include in the form of agreement with such broker-dealers and other
persons a corresponding provision for the forfeiture by them of their concession
with respect to shares sold by them or their principals and redeemed or
repurchased by the Company or by the Distributor as agent (or tendered for
redemption) within seven business days after the date of confirmation of such
initial purchases.
5. Limitations of Liability. The Distributor shall not be liable for
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any error of judgment or mistake of law or for any loss suffered by the Company
in connection with the matters to which this Agreement relates, except a loss
resulting from willful misfeasance, bad faith or gross negligence on its part in
the performance of its duties or from reckless disregard by it of its
obligations and duties under this Agreement.
6. Proprietary and Confidential Information. The Distributor agrees
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on behalf of itself and its employees to treat confidentially and as proprietary
information of the Company all records and other information relative to the
Company and its Funds and prior, present or potential shareholders, and not to
use such records and information for any purpose other than
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performance of its responsibilities and duties hereunder, except after prior
notification to and approval in writing by the Company, which approval shall not
be unreasonably withheld and may not be withheld where the Distributor may be
exposed to civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or when
so requested by the Company.
7. Indemnification.
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a. The Company represents and warrants to the Distributor that
the Registration Statement contains, and that the Prospectuses at all times will
contain, all statements required by the 1933 Act and the Rules of the
Commission, will in all material respects conform to the applicable requirements
of the 1933 Act and the Rules and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except that no representation or warranty
in this Section 7 shall apply to statements or omissions made in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the Distributor or either of the Company's co-administrators expressly
for use in the Registration Statement or Prospectuses.
b. The Company on behalf of each Fund agrees that each Fund will
indemnify, defend and hold harmless the Distributor, its several officers, and
directors, and any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act, from and against any losses, claims, damages or
liabilities, joint or several, to which the Distributor, its several officers,
and directors, and any person who controls the Distributor within the meaning of
Section 15 of the 1933 Act, may become subject under the 1933 Act or
otherwise,insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectuses or in any application or other document
executed by or on behalf of the Company with respect to such Fund or are based
upon information furnished by or on behalf of the Company with respect to such
Fund filed in any state in order to qualify the shares under the securities or
blue sky laws thereof ("Blue Sky application") or arise out of, or are based
upon, the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Distributor, its several officers, and directors, and any
person who controls the Distributor within the meaning of Section 15 of the 1933
Act, for any legal or other expenses reasonably incurred by the Distributor, its
several officers, and directors, and any person who controls the Distributor
within the meaning of Section 15 of the 1933 Act, in investigating, defending or
preparing to defend any such action, proceeding or
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claim; provided, however, that the Company shall not be liable in any case to
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the extent that such loss, claim, damage or liability arises out of, or is based
upon, any untrue statement, alleged untrue statement, or omission or alleged
omission made in the Registration Statement, the Prospectus or any Blue Sky
application with respect to such Fund in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Distributor
or either of the Company's co administrators specifically for inclusion therein
or arising out of the failure of the Distributor to deliver a current
Prospectus.
c. The Company on behalf of each Fund shall not indemnify any
person pursuant to this Section 7 unless the court or other body before which
the proceeding was brought has rendered a final decision on the merits that such
person was not liable by reason of his or her willful misfeasance, bad faith or
gross negligence in the performance of his or her duties, or his or her reckless
disregard of any obligations and duties, under this Agreement ("disabling
conduct") or, in the absence of such a decision, a reasonable determination
(based upon a review of the facts) that such person was not liable by reason of
disabling conduct has been made by the vote of a majority of a quorum of the
trustees of the Company who are neither "interested parties" (as defined in the
0000 Xxx) nor parties to the proceeding, or by independent legal counsel in a
written opinion.
d. The Distributor will indemnify and hold harmless the Company
and each of its Funds and its several officers and trustees, and any person who
controls the Company within the meaning of Section 15 of the 1933 Act, from and
against any losses, claims, damages or liabilities, joint or several, to which
any of them may become subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus or any Blue Sky application, or arise out of, or are based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, which
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the Company or any of its several officers
and trustees by or on behalf of the Distributor or either of the Company's co-
administrators specifically for inclusion therein, and will reimburse the
Company and its several officers, trustees and such controlling persons for any
legal or other expenses reasonably incurred by any of them in investigating,
defending or preparing to defend any such action, proceeding or claim.
e. The obligations of each Fund under this Section 7 shall be the
several (and not the joint or joint and several) obligation of each Fund.
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8. Duration and Termination. This Agreement shall become effective
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upon its execution as of the date first written above and, unless sooner
terminated as provided herein, shall continue until October 3, 1994. Thereafter,
if not terminated, this Agreement shall continue automatically for successive
terms of one year, provided that such continuance is specifically approved at
least annually (a) by a vote of a majority of those members of the Company's
Board of Trustees who are not parties to this Agreement or "interested persons"
of any such party, cast in person at a meeting called for the purpose of voting
on such approval, and (b) by the Company's Board of Trustees or by vote of a
"majority of the outstanding voting securities" of the Company; provided,
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however, that this Agreement may be terminated by the Company at any time,
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without the payment of any penalty, by vote of a majority of the entire Board of
Trustees or by a vote of a "majority of the outstanding voting securities" of
the Company on 60 days' written notice to the Distributor, or by the Distributor
at any time, without the payment of any penalty, on 90-days' written notice to
the Company. This Agreement will automatically and immediately terminate in the
event of its "assignment." (As used in this Agreement, the terms "majority of
the outstanding voting securities," "interested person" and "assignment" shall
have the same meanings as such terms have in the 1940 Act.)
9. Amendment of this Agreement. No provision of this Agreement may
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be changed, waived, discharged or terminated orally, but only by an instrument
in writing signed by the party against which an enforcement of the change,
waiver, discharge or termination is sought.
10. Notices. Notices of any kind to be given to the Company hereunder
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by the Distributor shall be in writing and shall be duly given if mailed or
delivered to the Company at Bellevue Park Corporate Center, Suite 152, 103
Bellevue Parkway, Wilmington, Delaware 19809, Attention: Xx. Xxxxxx X. Xxxxx,
Vice President and Treasurer, with a copy to Xxxxxx X. Xxxxx, Esq., Secretary,
1100 PNB Building, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000,
or at such other address or to such individual as shall be so specified by the
Company to the Distributor. Notices of any kind to be given to the Distributor
hereunder by the Company shall be in writing and shall be duly given if mailed
or delivered to Provident Distributors, Inc., 000 Xxxxxx-Xxxxxxx Xxxx, Xxxxx
000, Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx or at such other
address or to such other individual as shall be so specified by the Distributor
to the Company.
11. Miscellaneous.
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a. The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. If any provision of this
Agreement shall be held or
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made invalid by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors.
b. The names "The PNC(R) Fund" and "Trustees of The PNC(R) Fund"
refer specifically to the trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under a Declaration of
Trust dated December 22, 1988, which is hereby referred to and a copy of which
is on file at the office of the State Secretary of the Commonwealth of
Massachusetts and at the principal office of the Company. The obligations of
"The PNC(R) Fund" entered into in the name or on behalf thereof by any of the
Trustees, officers, representatives or agents are not made individually, but in
such capacities, and are not binding upon any of the Trustees, officers,
representatives or agents are not made individually, but in such capacities, and
are not binding upon any of the Trustees, shareholders, representatives or
agents of the Company personally, but bind only the Trust property (as defined
in the Declaration of Trust), and all persons dealing with any Fund or class of
shares of the Company must look solely to the Trust property belonging to such
Fund or class for the enforcement of any claims against the Company.
12. Counterparts. This Agreement may be executed in counterparts,
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all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
above written.
THE PNC(R) FUND
By: _________________________
President
PROVIDENT DISTRIBUTORS, INC.
By: _________________________
Title:
