Exhibit (e)(1)
DISTRIBUTING AGREEMENT
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DISTRIBUTING AGREEMENT, dated as of July __, 2003 between XXXXXXXX LASALLE REAL
ESTATE FUND SERIES, INC. a Maryland corporation (the "Fund"), and XXXXXXXX
ADVISORS, INC., a Delaware corporation ("Xxxxxxxx Advisors").
In consideration of the mutual agreements herein made, the parties hereto
agree as follows:
1. Exclusive Distributor. The Fund hereby agrees that Xxxxxxxx Advisors
shall be for the period of this Agreement exclusive agent for distribution
within the United States and its territories, and Xxxxxxxx Advisors agrees
to use its best efforts during such period to effect such distribution of
shares of Capital Stock ("Shares") of the Fund; provided, however, that
nothing herein shall prevent the Fund, if it so elects, from selling or
otherwise distributing Shares directly to any persons other than dealers.
The Fund understands that Xxxxxxxx Advisors also acts as agent for
distribution of the shares of capital stock or beneficial interest of other
open-end investment companies which have entered into management agreements
with J. & X. Xxxxxxxx & Co. Incorporated (the "Manager").
2. Sales of Shares. Xxxxxxxx Advisors is authorized, as agent for the
Fund and not as principal, (a) to sell Shares to such dealers as Xxxxxxxx
Advisors may select pursuant to the terms of written sales agreements
(which may also relate to sales of shares of capital stock or shares of
beneficial interest of other open-end investment companies which have
entered into management agreements with the Manager), substantially in the
form or forms approved by the Fund, and (b) to sell Shares to other
purchasers on such terms as may be provided in the then current prospectus
relating to such Shares; provided, however, that no sales of Shares shall
be confirmed by Xxxxxxxx Advisors at any time when, according to advice
received by Xxxxxxxx Advisors from the Fund, the officers of the Fund have
for any reason sufficient to them temporarily or permanently suspended or
discontinued the sale and issuance of the Shares. Each sale of Shares shall
be effected by Xxxxxxxx Advisors only at the applicable price determined by
the Fund in the manner prescribed in its then current prospectus relating
to such Shares. Xxxxxxxx Advisors shall comply with all applicable laws,
rules and regulations including, without limiting the generality of the
foregoing, all rules or regulations made or adopted pursuant to Section 22
of the Investment Company Act of 1940, as amended (the "1940 Act") by the
Securities and Exchange Commission or any securities association registered
under the Securities Exchange Act of 1934.
The Fund agrees, as long as its Shares may legally be issued, to fill all
orders confirmed by Xxxxxxxx Advisors in accordance with the provisions of
this Agreement.
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3. Repurchase Agent. Xxxxxxxx Advisors is authorized, as agent for the Fund
and not as principal, to accept offers for resale to the Fund and to
repurchase on behalf of the Fund Shares at net asset values determined by
the Fund in conformity with the then current prospectus relating to such
Shares.
4. Compensation. (a) As compensation for the services of Xxxxxxxx Advisors
under this Agreement, the Fund shall pay to Xxxxxxxx Advisors an amount
equal to the sales charge, determined in conformity with the then current
prospectus relating to such Shares, on all sales of Shares confirmed by
Xxxxxxxx Advisors hereunder and for which payment has been received by or
on behalf of the Fund, less the dealers' concession allowed in respect of
such sales. In addition, in accordance with the terms of the
Administration, Shareholder Services and Distribution Plan (the "Plan") of
each series of the Fund, the Fund may make payments from time to time to
Xxxxxxxx Advisors in accordance with the terms and limitations of, and for
the purposes set forth in the Plan.
(b) In accordance with the Plan, and subject to the limit on
asset-based sales charges set forth in NASD Conduct Rule 2830 (and any
successor provision thereto), the Fund shall pay to the Distributor or, at
the Distributor's direction, to a third party, monthly in arrears on or
prior to the 10th business day of the following calendar month, an amount
equal to the Distributor's Allocable Portion (as defined below) of a fee
(the "Class B Distribution Fee") which shall accrue daily in an amount
equal to the product of (A) the daily equivalent of 0.75% per annum
multiplied by (B) the net asset value of the Class B Shares of the Fund
outstanding on such day. The Fund agrees to withhold from redemption
proceeds of the Class B Shares the Distributor's Allocable Portion of any
contingent deferred sales charge ("CDSC") paid with respect to the Class B
Shares, as provided in the applicable prospectus, and to pay an amount
equal to the same over to the Distributor or, at the Distributor's
direction to a third party, at the time the redemption proceeds are paid to
the holder of such shares redeemed. Payment of these amounts in respect of
CDSCs to the Distributor is not contingent upon the adoption or
continuation of any Plan.
(c) For purposes of this Agreement, the term "Allocable
Portion" of the Class B Distribution Fee and CDSCs payable with respect to
Class B Shares shall mean the portion of such Distribution Fees and CDSC
allocated to the Distributor in accordance with the Allocation Schedule
attached as Schedule A to the Plan.
(d) The Distributor shall be considered to have completely
earned the right to the payment of the amounts in clause (b) above upon the
settlement date of each Class B Share taken into account in determining the
Distributor's Allocable Portion of Class B Distribution Fees.
(e) The provisions set forth in Section 8 of the Plan (in
effect on the date hereof) relating to Class B Shares, together with the
related definitions and Schedule A to the Plan are hereby incorporated into
this Section 4 by reference with the same force and effect as if set forth
herein in their entirety.
5. Expenses. Xxxxxxxx Advisors agrees promptly to pay or reimburse the Fund
for all expenses (except expenses incurred by the Fund in connection with
the preparation, printing and distribution of any prospectus or report or
other communication to shareholders, to the extent that such expenses are
incurred to effect compliance with any Federal or State law or to enable
such distribution to shareholder(s)) (a) of printing and
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distributing copies of any prospectus and of preparing, printing and
distributing any other material used by Xxxxxxxx Advisors in connection
with offering Shares for sale, and (b) of advertising in connection with
such offering. The Fund agrees to pay all expenses in connection with the
registration of Shares under the Securities Act of 1933 (the "Act"), all
fees and related expenses which may be incurred in connection with the
qualification of Shares for sale in such States (as well as the District of
Columbia, Puerto Rico and other territories) as Xxxxxxxx Advisors may
designate, and all expenses in connection with maintaining facilities for
the issue and transfer of Shares, of supplying information, prices and
other data to be furnished by it hereunder, and through Xxxxxxxx Data
Corp., of all data processing and related services related to the share
distribution activity contemplated hereby.
The Fund agrees to execute such documents and to furnish such information
as may be reasonably necessary, in the discretion of the Directors of the
Fund, in connection with the qualification of Shares for sale in such
States (as well as the District of Columbia, Puerto Rico and other
territories) as Xxxxxxxx Advisors may designate. Xxxxxxxx Advisors also
agrees to pay all fees and related expenses connected with its own
qualification as a broker or dealer under Federal or State laws and, except
as otherwise specifically provided in this Agreement or agreed to by the
Fund, all other expenses incurred by Xxxxxxxx Advisors in connection with
the sale of Shares as contemplated in this Agreement (including the
expenses of qualifying the Fund as a dealer or broker under the laws of
such States as may be designated by Xxxxxxxx Advisors, if deemed necessary
or advisable by the Fund).
It is understood and agreed that any payments made to Xxxxxxxx Advisors
pursuant to the Plan may be used to defray some or all of the expenses
incurred by Xxxxxxxx Advisors pursuant to this Agreement.
6. Prospectus and Other Information. The Fund represents and warrants to and
agrees with Xxxxxxxx Advisors that:
(a) A registration statement, including one or more prospectuses relating
to the Shares, has been filed by the Fund under the Act and has become
effective. Such registration statement, as now in effect and as from
time to time hereafter amended, and also any other registration
statement relating to the Shares which may be filed by the Fund under
the Act which shall become effective, is herein referred to as the
"Registration Statement", and any prospectus or prospectuses filed by
the Fund as a part of the Registration Statement, as the "Prospectus".
(b) At all times during the term of this Agreement, except when the
officers of the Fund have suspended or discontinued the sale and
issuance of Shares as contemplated by Section 2 hereof, the
Registration Statement and Prospectus will conform in all respects to
the requirements of the Act and the rules and regulations of the
Securities and Exchange Commission, and neither of such documents will
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
statement therein not misleading, except that the foregoing does not
apply to any statements or omissions in either of such documents based
upon written information furnished to the Fund by Xxxxxxxx Advisors
specifically for use therein.
The Fund agrees to prepare and furnish to Xxxxxxxx Advisors from time to
time a copy of any Prospectus relating to the sale of Shares, and
authorizes Xxxxxxxx Advisors to use
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such Prospectus, in the form furnished to Xxxxxxxx Advisors from time to
time, in connection with the sale of Shares. The Fund also agrees to
furnish Xxxxxxxx Advisors from time to time, for use in connection with the
sale of such Shares, such information with respect to the Fund, any series
thereof and the Shares as Xxxxxxxx Advisors may reasonably request.
7. Reports. Xxxxxxxx Advisors will prepare and furnish to the Directors of the
Fund at least quarterly a written report complying with the requirements of
Rule 12b-1 under the 1940 Act setting forth all amounts expended under the
Plan and the purposes for which such expenditures were made.
8. Indemnification. (a) The Fund will indemnify and hold harmless Xxxxxxxx
Advisors and each person, if any, who controls Xxxxxxxx Advisors within the
meaning of the Act against any losses, claims, damages or liabilities to
which Xxxxxxxx Advisors or such controlling person may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Fund's Registration Statement or any Prospectus relating
to Shares or any other written sales material prepared by the Fund which is
utilized by Xxxxxxxx Advisors in connection with the sale of Shares 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 (in the case of
the Registration Statement and Prospectus) necessary to make the statements
therein not misleading or (in the case of such other sales material)
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made; and will reimburse Xxxxxxxx
Advisors and each such controlling person for any legal or other expenses
reasonably incurred by Xxxxxxxx Advisors or such controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Fund will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration
Statement or Prospectus in conformity with written information furnished to
the Fund by Xxxxxxxx Advisors specifically for use therein; and provided,
further, that nothing herein shall be so construed as to protect Xxxxxxxx
Advisors against any liability to the Fund or its security holders to which
Xxxxxxxx Advisors would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence, in the performance of its
duties, or by reason of the reckless disregard by Xxxxxxxx Advisors of its
obligations and duties under this Agreement. This indemnity agreement will
be in addition to any liability which the Fund may otherwise have.
(b) Xxxxxxxx Advisors will indemnify and hold harmless the Fund,
each of its Directors and officers and each person, if any, who controls
the Fund within the meaning of the Act, against any losses, claims, damages
or liabilities to which the Fund or any such Director, officer or
controlling person may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions 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
or Prospectus or any sales material not prepared by the Fund which is
utilized in connection with the sale of Shares or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or (in the case of the Registration Statement
and Prospectus) necessary to make the statements therein not misleading or
(in the case of such other sales material) necessary to make the statements
therein not misleading in the light of the circumstances under which they
were made, in the case of the Registration Statement and Prospectus to the
extent, but only to the extent, that such
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untrue statement or alleged untrue statement or omission or alleged
omission was made in conformity with written information furnished to the
Fund by Xxxxxxxx Advisors specifically for use therein; and Xxxxxxxx
Advisors will reimburse any legal or other expenses reasonably incurred by
the Fund or any such Director, officer or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability which
Xxxxxxxx Advisors may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from liability which it may have to any indemnified party
otherwise than under this Section. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, to assume the
defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with
the defense thereof other than reasonable costs of investigation.
9. Effective Date. This Agreement shall become effective upon its execution by
an authorized officer of the respective parties to this Agreement, but in
no event prior to shareholder approval of the Plan.
10. Term of Agreement. This Agreement shall continue in effect until
December 31, 2003 and through December 31 of each year thereafter if such
continuance is approved in the manner required by the 1940 Act and the
rules thereunder and Xxxxxxxx Advisors shall not have notified the Fund in
writing at least 60 days prior to the anniversary date of the previous
continuance that it does not desire such continuance. This Agreement may be
terminated at any time, without payment of penalty on 60 days' written
notice to the other party by vote of a majority of the Directors of the
Fund who are not interested persons (as defined in the 0000 Xxx) of the
Fund and have no direct or indirect financial interest in the operation of
the Plan or any agreement related thereto, or by vote of a majority of the
outstanding voting securities of the Fund (as defined in the 1940 Act).
This Agreement shall automatically terminate in the event of its assignment
(as defined in the 1940 Act). This Agreement, with respect to the Fund's
Class B Shares, has been approved in the manner required by the Act and the
rules thereunder in anticipation of the Distributor's transfer of its
Allocable Portion of the Class B Distribution Fee (but not its obligations
under this Agreement) to one or more third parties pursuant to one or more
"Purchase and Sale Agreements" in order to raise funds to cover
distribution expenditures in respect of the Class B Shares, and such
transfer will not cause a termination of this Agreement.
11. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. Anything herein to the
contrary notwithstanding, this Agreement shall not be construed to require,
or to impose any duty upon, either of the parties to do anything in
violation of any applicable laws or regulations.
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IN WITNESS WHEREOF, the Fund and Xxxxxxxx Advisors have caused this
Agreement to be executed by their duly authorized officers as of the date first
above written.
XXXXXXXX LASALLE REAL ESTATE FUND
SERIES, INC.
By:
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Xxxxx X. Xxxx
President
XXXXXXXX ADVISORS, INC.
By:
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Xxxxxxx X. Xxxxxxx
President
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