SUB-DISTRIBUTION AGREEMENT
THIS
AGREEMENT is made and entered into as of the 19th day of February, 2002, by
and
among Rochdale
Investment Trust, a Delaware business trust
(the
“Trust”), RIM Securities, LLC, a
Delaware limited liability company (the
“Distributor”) and Quasar Distributors, LLC, a Delaware limited liability
company (the “Sub-Distributor”).
WHEREAS,
the Trust is registered under the Investment Company Act of 1940, as amended
(the “1940 Act”), as an open-end management investment company, and is
authorized to issue shares of beneficial interest (“Shares”) in separate series
with each such series representing interests in a separate portfolio of
securities and other assets;
WHEREAS,
the Distributor is registered as a broker-dealer under the Securities Exchange
Act of 1934, as amended (the “1934 Act”), and is a member of the National
Association of Securities Dealers, Inc. (the “NASD”);
WHEREAS,
the Distributor and the Trust have entered into an effective Distribution
Agreement (the “Distribution Agreement”), under the terms of which the
Distributor is the principal underwriter for the Trust;
WHEREAS,
the Trust and the Distributor each desires to retain the Sub-Distributor as
sub-distributor in connection with the offering and sale of certain of the
Shares of each series listed on Schedule A (as amended from time to time) (the
“Funds”) to this Agreement;
WHEREAS,
the Sub-Distributor is registered as a broker-dealer under the 1934 Act, and
is
a member of the NASD; and
WHEREAS,
the Sub-Distributor is willing to act as sub-distributor for the Distributor
and
the Trust on the terms and conditions hereinafter set forth.
NOW,
THEREFORE, in consideration of the promises and mutual covenants herein
contained, and other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1.
Appointment of the Sub-Distributor.
The
Distributor and the Trust each hereby appoints the Sub-Distributor as its agent
for the sale and distribution of certain Shares of the Funds, subject to the
terms and for the period set forth in this Agreement. The Sub-Distributor hereby
accepts such appointment and agrees to act hereunder.
2.
Services and Duties of the Sub-Distributor.
(a)
The
Sub-Distributor agrees to sell Shares of the Funds on a best efforts basis
as
agent (solely for the purpose of accepting orders for the purchase and
redemption of Fund Shares, and for no other purpose) for the Distributor and
the
Trust during the term of this Agreement, upon the terms and at the current
offering price (plus sales charge, if any) described in the Prospectus. As
used
in this Agreement, the term “Prospectus” shall mean the current prospectus,
including the statement of additional information, as amended or supplemented,
relating to the Funds and included in the currently effective registration
statement or post-effective amendment thereto (the “Registration Statement”) of
the Trust under the Securities Act of 1933 (the “1933 Act”) and the 1940
Act.
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(b)
During the continuous public offering of Shares of the Funds, the
Sub-Distributor will hold itself available to receive orders, in such form
as
required by the Trust and the Distributor, and satisfactory to the
Sub-Distributor, for the purchase of Shares of the Funds and will accept such
orders on behalf of the Trust. Such purchase orders shall be deemed effective
at
the time and in the manner set forth in the Prospectus.
(c)
The
Sub-Distributor, with the operational assistance of the Trust’s transfer agent,
shall make Shares available for sale and redemption through the National
Securities Clearing Corporation’s Fund/SERV System.
(d)
In
connection with all matters relating to this Agreement, the Sub-Distributor
agrees to act in conformity with the Trust’s Agreement and Declaration of Trust
and By-Laws and with the instructions of the Board and to comply with the
requirements of the 1933 Act, the 1934 Act, the 1940 Act, the regulations of
the
NASD and all other applicable federal or state laws and regulations. The
Sub-Distributor acknowledges and agrees that it is not authorized to provide
any
information or make any representations other than as contained in the
Prospectus and any sales literature specifically approved by the Trust and
the
Distributor.
(e)
The
Sub-Distributor agrees to act as agent for the Distributor and the Trust to
receive and transmit promptly to the Funds’ transfer agent shareholder requests
for redemption of Shares.
(f)
The
Sub-Distributor shall devote its best efforts to effect sales of Shares of
the
Funds but shall not be obligated to sell any certain number of
Shares.
(g)
The
Sub-Distributor shall prepare reports for the Distributor to be provided to
the
Board regarding its activities under this Agreement as from time to time shall
be reasonably requested by the Distributor or the Board, including those
regarding the use of 12b-1 payments received by the Sub-Distributor, if
any.
(h)
The
services furnished by the Sub-Distributor hereunder are not to be deemed
exclusive and the Sub-Distributor shall be free to furnish similar services
to
others so long as its services under this Agreement are not impaired thereby.
Each of the Distributor and the Trust recognizes that from time to time officers
and employees of the Sub-Distributor may serve as directors, trustees, officers
and employees of other entities (including investment companies), that such
other entities may include the name of the Sub-Distributor as part of their
name
and that the Sub-Distributor or its affiliates may enter into distribution,
administration, fund accounting, transfer agent or other agreements with such
other entities. The Trust and the Distributor reserve the right to (1) issue
Shares in connection with a merger, consolidation, or recapitalization of the
Trust or any Fund(s); (2) issue additional Shares to holders of Shares; or
(3)
issue Shares in connection with any offer of exchange permitted by Section
11 of
the 1940 Act.
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(i)
The
Sub-Distributor shall at all times during the term of this Agreement remain
registered as a broker-dealer under the 1934 Act and with all 50 states, and
shall also remain a member in good standing of the NASD. The Sub-Distributor
shall immediately notify the other parties in writing if it receives written
notification that such registrations or membership has been temporarily or
permanently suspended, limited or terminated.
3.
Duties and Representations of the Trust.
(a)
The
Trust represents that it is duly organized and in good standing under the law
of
its jurisdiction of organization and registered as an open-end management
investment company under the 1940 Act. The Trust agrees that it will act in
material conformity with its Agreement and Declaration of Trust, By-Laws, its
Registration Statement as may be amended from time to time and resolutions
and
other instructions of its Board. The Trust agrees to comply in all material
respects with the 1933 Act, the 1940 Act, and all other applicable federal
and
state laws and regulations. The Trust represents and warrants that this
Agreement has been duly authorized by all necessary action by the Trust under
the 1940 Act, state law and the Trust’s Agreement and Declaration of Trust and
By-Laws.
(b)
The
Trust, or its agent, shall take or cause to be taken all necessary action to
register Shares of the Fund under the 1933 Act and to maintain an effective
Registration Statement for such Shares in order to permit the sale of Shares
as
herein contemplated. The Trust authorizes the Sub-Distributor to use the
Prospectus, in the form furnished to the Sub-Distributor from time to time,
in
connection with the sale of Shares.
(c)
The
Trust represents and agrees that all Shares to be sold by it, including those
offered under this Agreement, are validly authorized and, when issued in
accordance with the description in the Prospectus, will be fully paid and
nonassessable. The Trust further agrees that it shall have the right to suspend
the sale of Shares of any Fund 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 of the Securities and
Exchange Commission (“SEC”). The Trust shall advise the Sub-Distributor promptly
of any such determination.
(d)
The
Trust agrees to advise the Sub-Distributor promptly in writing:
(i)
of
any material correspondence or other communication by the SEC or its staff
relating to continued availability of the Shares for sale by the
Funds;
(ii)
in
the event of the issuance by the SEC of any stop-order suspending the
effectiveness of the Registration Statement then in effect or the initiation
of
any proceeding for that purpose;
(iii)
of
the happening of any event which makes untrue any statement of a material fact
made in the Prospectus or which requires the making of a change in such
Prospectus in order to make the statements therein not misleading;
(iv)
of
all actions which may relate to the continued availability of the Shares for
sale by the Funds, taken by the SEC with respect to any amendments to any
Registration Statement or Prospectus which may from time to time be filed with
the SEC; and
(v)
of
assignment or termination of the Distribution Agreement.
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(e)
The
Trust shall file such reports and other documents as may be required under
applicable federal and state laws and regulations. The Trust shall, upon request
of the Sub-Distributor, notify the Sub-Distributor in writing of the states
in
which the Shares may be sold and shall notify the Sub-Distributor in writing
of
any changes to such information.
(f)
The
Trust agrees to file from time to time such amendments to its Registration
Statement and Prospectus as may be necessary in order that its Registration
Statement and Prospectus will not contain any untrue statement of material
fact
or omit to state any material fact required to be stated therein or necessary
to
make the statements therein not misleading.
(g)
The
Trust shall fully cooperate in the efforts of the Sub-Distributor to sell and
arrange for the sale of Shares and shall make available to the Sub-Distributor
a
statement of each computation of net asset value. In addition, the Trust shall
provide to the Sub-Distributor from time to time copies of all information,
financial statements, and other papers that the Sub-Distributor may reasonably
request for use in connection with the distribution of Shares, including,
without limitation, copies of any audited financial statements prepared for
the
Trust by its independent public accountants and such reasonable number of copies
of the most current Prospectus, statement of additional information and annual
and interim reports to shareholders as the Sub-Distributor may request. The
Trust shall forward a copy of any SEC filings, including the Registration
Statement, to the Sub-Distributor within one business day of any such filings.
The Trust, the Distributor and the Sub-Distributor each represents that it
will
not use or authorize the use of any advertising or sales material unless and
until such materials have been approved and authorized for use by each other
party.
(h)
The
Trust represents and warrants that its Registration Statement and any
advertisements and sales literature of the Trust (excluding statements relating
to the Sub-Distributor and the services it provides that are based upon written
information furnished by the Sub-Distributor expressly for inclusion therein)
shall not contain any untrue statement of material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that all statements or information furnished to
the
Sub-Distributor pursuant to this Agreement shall be true and correct in all
material respects.
4.
Duties and Representations of the Distributor.
(a)
The
Distributor represents and warrants that this Agreement has been duly authorized
by all necessary action by the Distributor under the 1934 Act and any other
applicable federal or state laws or regulations.
(b)
The
Distributor shall at all times during the term of this Agreement remain
registered as a broker-dealer under the 1934 Act and shall also remain a member
in good standing of the NASD. The Distributor shall immediately notify the
Sub-Distributor in writing if it receives written notification that such
registrations or membership has been temporarily or permanently suspended,
limited or terminated.
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(c)
In
connection with all matters relating to this Agreement, the Distributor agrees
to act in conformity with the Trust’s Agreement and Declaration of Trust and
By-Laws and with the instructions of the Board and to comply with the
requirements of the 1933 Act, the 1934 Act, the 1940 Act, the regulations of
the
NASD and all other applicable federal or state laws and
regulations.
(d)
The
Distributor represents that, pursuant to the terms of the Distribution
Agreement, it is the principal underwriter for the Trust, and shall notify
the
Sub-Distributor in writing immediately upon termination of its role as
underwriter, or upon assignment or termination of the Distribution
Agreement
5.
Compensation.
As
compensation for the services performed and the expenses assumed by
Sub-Distributor under this Agreement including, but not limited to, any
commissions paid for sales of Shares, Sub-Distributor shall be entitled to
the
fees and expenses set forth in Schedule B to this Agreement which are payable
promptly after the last day of each month. Such fees shall be paid to
Sub-Distributor by the Distributor.
6.
Expenses.
(a)
The
Distributor, or the Trust, but not the Sub-Distributor, shall bear all costs
and
expenses in connection with registration of the Shares with the SEC and related
compliance with state securities laws, as well as all costs and expenses in
connection with the offering of the Shares and communications with shareholders
of its Funds, including but not limited to (i) fees and disbursements of its
counsel and independent public accountants; (ii) costs and expenses of the
preparation, filing, printing and mailing of Registration Statements and
Prospectuses and amendments thereto, as well as related advertising and sales
literature, (iii) costs and expenses of the preparation, printing and mailing
of
annual and interim reports, proxy materials and other communications to
shareholders of the Funds; and (iv) fees required in connection with the offer
and sale of Shares in such jurisdictions as shall be selected by the Trust
pursuant to Section 3(e) hereof.
(b)
The
Sub-Distributor shall bear the expenses of registration or qualification of
the
Sub-Distributor as a dealer or broker under federal or state laws and the
expenses of continuing such registration or qualification. The Sub-Distributor
does not assume responsibility for any expenses not expressly assumed
hereunder.
7.
Indemnification.
(a)
The
Trust shall indemnify, defend and hold the Sub-Distributor, and each of its
present or former members, directors/trustees, officers, employees,
representatives and any person who controls or previously controlled the
Sub-Distributor within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all losses, claims, demands, liabilities,
damages and expenses (including the costs of investigating or defending any
alleged losses, claims, demands, liabilities, damages or expenses and any
reasonable counsel fee incurred in connection therewith) which the
Sub-Distributor, each of its present and former members, directors/trustees,
officers, employees or representatives or any such controlling person, may
incur
under the 1933 Act, the 1934 Act, any other statute (including Blue Sky laws)
or
any rule or regulation thereunder, or under common law or otherwise, based
upon
the Trust’s failure to adhere to its obligations hereunder, or, in connection
with the Trust’s performance of its duties hereunder, based upon the Trust’s
violation or alleged violation of any rule of the NASD or of the SEC or any
other jurisdiction wherein Shares of the Funds are sold, or arising out of
or
based upon any untrue statement, or alleged untrue statement of a material
fact
contained in the Registration Statement or any Prospectus, as from time to
time
amended or supplemented, or in any annual or interim report to shareholders,
or
in any advertisement or sales literature, or arising out of or based upon any
omission, or alleged omission, to state therein a material fact required to
be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Trust’s obligation to indemnify the Sub-Distributor
and any of the foregoing indemnitees shall not be deemed to cover any losses,
claims, demands, liabilities, damages or expenses arising out of any untrue
statement or alleged untrue statement or omission or alleged omission made
in
the Registration Statement, Prospectus, annual or interim report, or any such
advertisement or sales literature in reliance upon and in conformity with
information furnished to the Trust or its counsel by the Sub-Distributor in
writing and acknowledging the purpose of its use for the purpose of, and used
in, the preparation thereof. In no event shall anything contained herein be
so
construed as to protect Sub-Distributor against any liability to the Trust
or
its shareholders to which Sub-Distributor would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the performance of
its
duties under this Agreement or by reason of its reckless disregard of its
obligations under this Agreement.
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The
Trust’s agreement to indemnify the Sub-Distributor, and any of the foregoing
indemnitees, as the case may be, with respect to any action, is expressly
conditioned upon the Trust being notified of such action brought against the
Sub-Distributor, or any of the foregoing indemnitees, with a reasonable time
after the summons or other first legal process giving information of the nature
of the claim shall have been served upon the Sub-Distributor, or such person,
unless the failure to give notice does not prejudice the Trust. Such
notification shall be given by letter or by telegram addressed to the Trust’s
President, but, unless the failure to notify the Trust serves to prejudice
the
Trust, such failure so to notify the Trust of any such action shall not relieve
the Trust from any liability which the Trust may have to the person against
whom
such action is brought by reason of any such untrue, or alleged untrue,
statement or omission, or alleged omission, otherwise than on account of the
Trust’s indemnity agreement contained in this Section 7(a).
(b)
The
Trust shall be entitled to participate at its own expense in the defense or,
if
it so elects, to assume the defense of any suit brought to enforce any such
loss, claim, demand, liability, damage or expense subject to this Agreement.
If
the Trust elects to assume the defense of any such claim, such defense shall
be
conducted by counsel chosen by the Trust and approved by the Sub-Distributor,
which approval shall not be unreasonably withheld. In the event the Trust elects
to assume the defense of any such suit and retain such counsel, the indemnified
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by them. If the Trust does not elect to assume
the
defense of any such suit, or in case the Sub-Distributor does not, in the
exercise of reasonable judgment, approve of counsel chosen by the Trust or,
if
under prevailing law or legal codes of ethics, the same counsel cannot
effectively represent the interests of both the Trust and the Sub-Distributor,
and each of its present or former members, directors/trustees, officers,
employees, representatives or any controlling person, the Trust will reimburse
the indemnified person or persons named as defendant or defendants in such
suit,
for the reasonable fees and expenses of any counsel retained by Sub-Distributor
and the indemnified defendants. The Trust’s indemnification agreement contained
in Section 7 shall remain operative and in full force and effect regardless
of
any investigation made by or on behalf of the Sub-Distributor, and each of
its
present or former members, directors/trustees, officers, employees,
representatives or any controlling person, and shall survive the delivery of
any
Shares and the termination of this Agreement. This agreement of indemnity will
inure exclusively to the Sub-Distributor’s benefit, to the benefit of each of
its present or former members, directors/trustees, officers, employees or
representatives or to the benefit of any controlling persons and their
successors. The Trust agrees promptly to notify the Sub-Distributor of the
commencement of any litigation or proceedings against the Trust or any of its
officers or directors/trustees in connection with the issue and sale of any
of
the Shares.
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(c)
The
Trust, the Distributor, or the Sub-Distributor, when acting as an indemnifying
party, shall advance attorney’s fees and other expenses incurred by any person
in defending any claim, demand, action or suit which is the subject of a claim
for indemnification pursuant to this Section 7 to the maximum extent permissible
under applicable law.
(d)
The
Sub-Distributor shall indemnify, defend and hold each of the Trust and the
Distributor, and each of its present or former directors/trustees, officers,
employees, representatives, and any person who controls or previously controlled
each of the Trust and the Distributor within the meaning of Section 15 of the
1933 Act, free and harmless from and against any and all losses, claims,
demands, liabilities, damages and expenses (including the costs of investigation
or defending any alleged losses, claims, demands, liabilities, damages or
expenses, and any reasonable counsel fee incurred in connection therewith)
which
each of the Trust and the Distributor, and each of its present or former
directors/trustees, officers, employees, representatives, or any such
controlling person, may incur under the 1933 Act, the 1934 Act, any other
statute (including Blue Sky laws) or any rule or regulation thereunder, or
under
common law or otherwise, based upon Sub-Distributor’s failure to adhere to its
obligations hereunder, or, in connection with the Sub-Distributor’s performance
of its duties hereunder, based up Sub-Distributor’s violation or alleged
violation of any rule of the NASD or of the SEC or any other jurisdiction
wherein Shares of the Funds are sold, or arising out of or based upon any untrue
statement, or alleged untrue statement of a material fact contained in the
Trust’s Registration Statement or any Prospecutus, as from time to time amended
or supplemented, or in any annual or interim report to shareholders, or in
any
advertisement or sales literature, or arising out of or based upon the
ommission, or alleged omission to state therein a material fact required to
be
stated therein or necessary to make the statements therein not misleading;
provided, however, that the Sub-Distributor’s obligation to indemnify the Trust,
the Distributor, or any of the foregoing indemnitees shall not be deemed to
cover any losses, claims, demands, liabilities, damages or expenses arising
out
of any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, Prospectus, annual or interim
report, or any such advertisement or sales literature in reliance upon and
in
conformity with written information furnished to the Sub-Distributor or its
counsel by the Trust or the Distributor in writing and acknowledging the purpose
of its use for the purpose of, and used in, the preparation thereof. In no
event
shall anything contained herein be so construed as to protect the Trust or
the
Distributor against any liability to the Sub-Distributor to which the Trust
or
the Distributor would otherwise be subject by reason of willful misfeasance,
bad
faith, or gross negligence in the performance of their respective duties under
this agreement or by reason of their reckless disregard of their respective
obligations under this Agreement.
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The
Sub-Disbributor’s agreement to indemnify each of the Trust and the Distributor,
and any of the foregoing indemnitees, as the case may be, with respect to any
action, is expressly conditioned upon the Sub-Distributor being notified of
such
action brought against the Trust or the Disbritutor, or any of the foregoing
indemnitiees, within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been served
upon the Trust or the Distributor, or such person, unless the failure to give
notice does not prejudice the Sub-Distributor. Such notification shall be given
by letter or by telegram addressed to the Sub-Distributor’s President, but,
unless the failure to notify the Sub-Distributor serves to prejudice the
Sub-Distributor, such failure so to notify the Sub-Distributor of any such
action shall not relieve the Sub-Distributor from any liability which the
Sub-Distributor may have to the person against whom such action is brought
by
reason of any such untrue, or alleged untrue, statement or omission, or alleged
omission, otherwise than on account of the Sub-Distributor’s indemnity agreement
contained in this Section 7(d).
(e)
The
Sub-Distributor shall be entitled to participate at its own expense in the
defense or, if it so elects, to assume the defense of any suit brought to
enforce any such loss, claim, demand, liability, damage or expense subject
to
this Agreement. If the Sub-Distributor elects to assume the defense of any
such
claim, such defense shall be conducted by counsel chosen by the Sub-Distributor
and approved by each of the Trust and the Distributor, which approval shall
not
be unreasonably withheld. In the event the Sub-Distributor elects to assume
the
defense of any such suit and retain such counsel, the indemnified defendant
or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by them. If the Sub-Distributor does not elect to assume the
defense of any such suit, or in case the Trust or the Distributor does not,
in
the exercise of reasonable judgment, approve of counsel chosen by the
Sub-Distributor or, if under prevailing law or legal codes of ethics, the same
counsel cannot effectively represent the interests of both the Trust or the
Distributor and the Sub-Distributor, and each of its present or former members,
directors/trustees, officers, employees, representatives or any controlling
person, the Sub-Distributor will reimburse the indemnified person or persons
named as defendant or defendants in such suit, for the reasonable fees and
expenses of any counsel retained by the Trust or the Distributor and the
indemnified defendants. The Sub-Distributor’s indemnification agreement
contained in Section 7 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Trust or the
Distributor, and each of its present or former directors/trustees, officers,
employees, representatives or any controlling person, and shall survive the
delivery of any Shares and the termination of this Agreement. This agreement
of
indemnity will inure exclusively to the benefit of each of the Trust and the
Distributor, to the benefit of each of its present or former directors/trustees,
officers, employees or representatives or to the benefit of any controlling
persons and their successors. The Sub-Distributor agrees promptly to notify
the
Trust and the Distributor of the commencement of any litigation or proceedings
against the Sub-Distributor or any of its officers or directors/trustees in
connection with the issue and sale of any of the Shares.
(f)
The
Distributor shall indemnify, defend and hold the Sub-Distributor, and each
of
its present or former member, directors/trustees, officers, employees,
representatives, and any person who controls or previously controlled the
Sub-Disbributor within the meaning of Section 15 of the 1933 Act, free and
harmless from and against any and all losses, claims, demands, liabilities,
damages and expenses (including the costs of investigating or defending any
alleged losses, claims, demands, liabilities, damages or expenses, and any
reasonable counsel fee incurred in connection therewith) which the
Sub-Distributor, and each of its present or former members, directors/trustees,
officers, employees, representatives, or any such controlling person, may incur
under the 1933 Act, the 1934 Act, any other statute (including Blue Sky laws)
or
any rule or regulation thereunder, or under common law or otherwise, based
upon
Distributor’s failure to adhere to its obligations hereunder, or, in connection
with the Distrubutor’s perfomance of its duties hereunder, based upon
Distributor’s violation or alleged violation of any rule of the NASD or of the
SEC or any other jurisdiction wherein Shares of the Funds are sold, or arising
out of or based upon any untrue statement, or alleged untrue statement of a
material fact contained in the Trust’s Registration Statement or any Prospectus,
as from time to time amended or supplemented, or in any annual or interim report
to shareholders, or in any advertisement or sales literature, or arising out
of
or 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; provided, however, that the Distributor’s obligation to
indemnify the Sub-Distributor and any of the foregoing indemnitees shall not
be
deemed to cover any losses, claims, demands, liabilities, damages or expenses
arising out of any untrue statement or alleged untrue statement or omission
or
alleged omission made in the Registration Statement, Prospectus, annual or
interim report, or any such advertisement or sales literature in reliance upon
and in conformity with written information furnished to the Distributor or
its
counsel by the Sub-Distributor in writing and acknowledging the purpose of
its
use for the purpose of, and used in, the preparation thereof. In no event shall
anything contained xxxxx be so construed as to protect the Sub-Distributor
against any liability to the Distributor to which the Sub-Distributor would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties under this Agreement or by reason
of
its reckless disregard of its obligations under this Agreement.
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The
Distributor’s agreement to indemnify the Sub-Distributor, and any of the
foregoing indemnitees, as the case may be, with respect to any action, is
expressly conditioned upon the Distributor being notified of such action brought
against the Sub-Distributor, or any of the foregoing indemnitees, within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon the
Sub-Distributor, or such person, unless the failure to give notice does not
prejudice the Distributor. Such notification shall be given by letter or by
telegram addressed to the Distributor’s President, but, unless the failure to
notify the Distributor serves to prejudice the Distributor, such failure so
to
notify the Distributor of any such action shall not relieve the Distributor
from
any liability which the Distributor may have to the person against whom such
action is brought by reason of any such untrue, or alleged untrue, statement
or
omission, or alleged omission, otherwise than on account of the Distributor’s
indemnity agreement contained in this Section 7(f).
(g)
The
Distributor shall be entitled to participate at its own expense in the defense
or, if it so elects, to assume the defense of any suit brought to enforce any
such loss, claim, demand, liability, damage or expense subject to this
Agreement. If the Distributor elects to assume the defense of any such claim,
such defense shall be conducted by counsel chosen by the Distributor and
approved by the Sub-Distributor, which approval shall not be unreasonably
withheld. In the event the Distributor elects to assume the defense of any
such
suit and retain such counsel, the indemnified defendant or defendants in such
suit shall bear the fees and expenses of any additional counsel retained by
them. If the Distributor does not elect to assume the defense of any such suit,
or in case the Sub-Distributor does not, in the exercise of reasonable judgment,
approve of counsel chosen by the Distributor or, if under prevailing law or
legal codes of ethics, the same counsel cannot effectively represent the
interests of both the Sub-Distributor and the Distributor, and each of its
present or former members, directors/trustees, officers, employees,
representatives or any controlling person, the Distributor will reimburse the
indemnified person or persons named as defendant or defendants in such suit,
for
the reasonable fees and expenses of any counsel retained by the Sub-Distributor
and the indemnified defendants. The Distributor’s indemnification agreement
contained in Section 7 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Sub-Distributor,
and
its present or former members, directors/trustees, officers, employees,
representatives or any controlling person, and shall survive the delivery of
any
Shares and the termination of this Agreement. This agreement of indemnity will
inure exclusively to the benefit of the Sub-Distributor, to the benefit of
each
of its present or former members, directors/trustees, officers, employees or
representatives or to the benefit of any controlling persons and their
successors. The Distributor agrees promptly to notify the Sub-Distributor of
the
commencement of any litigation or proceedings against the Distributor or any
of
its officers or directors/trustees in connection with the issue and sale of
any
of the Shares.
9
(h)
No
person shall be obligated to provide indemnification under this Section 7 if
such indemnification would be impermissible under the 1940 Act, the 1933 Act
and
the 1934 Act or the rules of the NASD; provided,
however,
in such
event indemnification shall be provided under this Section 7 to the maximum
extent so permissible
.
8.
Obligations of Trust.
This
Agreement is executed by and on behalf of the Trust and the obligations of
the
Trust hereunder are not binding upon any of the trustees, officers or
shareholders of the Trust individually but are binding only upon the Trust
and
with respect to the Funds to which such obligations pertain.
9.
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original agreement but all of which counterparts shall together
constitute but one and the same instrument.
10.
Governing Law.
This
Agreement shall be construed in accordance with the laws of the State of
Wisconsin, without regard to conflicts of law principles. To the extent that
the
applicable laws of the State of Wisconsin, or any of the provisions herein,
conflict with the applicable provisions of the 1940 Act, the latter shall
control, and nothing herein shall be construed in a manner inconsistent with
the
1940 Act or any rule or order of the SEC thereunder. Any dispute arising between
the parties to this Agreement shall be resolved by binding arbitration conducted
in accordance with the Rules of the NASD. Such arbitration shall take place
in
the jurisdiction of the respondent.
11.
Duration and Termination.
(a)
This
Agreement shall become effective with respect to each Fund listed on Schedule
A
hereof as of the date hereof and, with respect to each Fund not in existence
on
that date, on the date an amendment to Schedule A to this Agreement relating
to
that Fund is executed. Unless sooner terminated as provided herein, this
Agreement shall continue in effect for one year from the date hereof.
Thereafter, if not terminated, this Agreement shall continue automatically
in
effect as to each Fund for successive one-year periods, provided such
continuance is specifically approved at least annually by (i) the Trust’s Board
or (ii) the vote of a “majority of the outstanding voting securities” of a Fund,
and provided that in either event the continuance is also approved by a majority
of the Trust’s Board who are not “interested persons” of any party to this
Agreement, by vote cast in person at a meeting called for the purpose of voting
on such approval.
10
(b)
Notwithstanding the foregoing, this Agreement may be terminated, without the
payment of any penalty, with respect to a particular Fund (i) through a failure
to renew this Agreement at the end of a term, (ii) upon mutual consent of the
parties, or (iii) upon no less than 60 days’ written notice, by either the Trust
through a vote of a majority of the members of the Board who are not “interested
persons” of the Trust and have no direct or indirect financial interest in the
operation of this Agreement or by vote of a “majority of the outstanding voting
securities” of a Fund, or by the Sub-Distributor. The terms of this Agreement
shall not be waived, altered, modified, amended or supplemented in any manner
whatsoever except by a written instrument signed by the Sub-Distributor, the
Distributor and the Trust. If required under the 1940 Act, any such amendment
must be approved by the Trust’s Board, including a majority of the Trust’s Board
who are not “interested persons” of any party to this Agreement, by vote cast in
person at a meeting for the purpose of voting on such amendment. This Agreement
will automatically terminate in the event of its assignment.
12.
Confidentiality.
The
Sub-Distributor agrees on behalf of its employees to treat all records relative
to the Trust and prior, present or potential shareholders of the Trust as
confidential, and not to use such records for any purpose other than performance
of the Sub-Distributor’s responsibilities and duties under this Agreement,
except after notification and prior approval by the Trust, which approval shall
not be unreasonably withheld, and may not be withheld where the Sub-Distributor
may be exposed to civil or criminal proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, when
subject to governmental or regulatory audit or investigation, or when so
requested by the Trust. Records and information which have become known to
the
public through no wrongful act of the Sub-Distributor or any of its employees,
agents or representatives shall not be subject to this paragraph. In accordance
with Section 248.11 of Regulation S-P (17 CFR 248.1-248.3), the Sub-Distributor
will not directly or indirectly through an affiliate, disclose any non-public
personal information, as defined in Reg. S-P, received from the Trust or any
Fund(s) regarding any shareholder, to any person that is not affiliated with
the
Trust or any Fund(s) or with the Sub-Distributor and, provided that, any such
information disclosed to an affiliate of the Sub-Distributor shall be under
the
same limitations on non-disclosure.
13.
Withdrawal of Offering.
The
Trust
reserves the right at any time to withdraw all offerings of any or all Shares
by
written notice to Sub-Distributor at its principal office. No Shares shall
be
offered by either Sub-Distributor or the Trust under any provisions of this
Agreement and no orders for the purchase 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.
11
14
Miscellaneous.
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. Any provision of this Agreement which may be determined
by competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors. As used in this Agreement, the terms
“majority of the outstanding voting securities,” “interested person,” and
“assignment” shall have the same meaning as such terms have in the 1940
Act.
15.
Notice.
Any
notice required or permitted to be given by any party to the others shall be
in
writing and shall be deemed to have been given on the date delivered personally
or by courier service or 3 days after sent by registered or certified mail,
postage prepaid, return receipt requested or on the date sent and confirmed
received by facsimile transmission to the other parties’ respective addresses
set forth below:
Notice
to
the Sub-Distributor shall be sent to:
Quasar
Distributors, LLC
Attn:
President
000
Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Notice
to
the Trust shall be sent to:
Attn:
President
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000-0000
Notice
to
the Distributor shall be sent to:
RIM
Securities, LLC
Attn:
President
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000-0000
12
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their officers designated as of the day and year first above
written.
Rochdale
Investment
Trust
Quasar
Distributors, LLC
By: /s/
Xxxxxx Xxxxxxx
By:
/s/
Xxxxx
Shoenike
Title: Vice
President
Title:
President
RIM
Securities,
By: /s/
Xxxxxx
Xxxxxxx
Title: Vice
President
13
Schedule
A
to
the
Name
of Funds
Rochdale
Large Growth Portfolio
Rochdale
Large Value Portfolio
Rochdale
Mid/Small Growth Portfolio
Rochdale
Mid/ Small Value Portfolio
Rochdale
Atlas Portfolio
Rochdale
Dividend & Income Portfolio
Rochdale
Intermediate Fixed Income Portfolio
Rochdale
Darwin Portfolio
Schedule
B
to
the
Fees
Not
applicable.
