DISTRIBUTION AGREEMENT
Exhibit H
THIS AGREEMENT is made as of this 12th day of October, 2009, by and between Global Real Estate
Investments Fund (the “Fund”), a Delaware statutory trust, and Ascent Real Estate Securities, LLC
(the “Distributor”), a Colorado limited liability company.
WHEREAS, the Fund is a closed-end management investment company registered under the
Investment Company Act of 1940 (the “1940 Act”) and is authorized to issue shares of beneficial
interest (the “Shares”);
WHEREAS, the Distributor is registered as a broker-dealer under the Securities Exchange Act of
1934 (the “1934 Act”), and is a member of the Financial Industry Regulatory Authority, Inc.
(“FINRA”); and
WHEREAS, the Fund and Distributor desire to enter into an agreement pursuant to which the
Distributor shall be the principal underwriter and distributor of the Shares of the Fund.
WHEREAS, this Agreement has been approved by a vote of the Fund’s Board of Trustees (the
“Board”) including by its disinterested trustees in conformity with Section 15(c) of the 1940 Act.
NOW, THEREFORE, in consideration of the mutual promises and agreements 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 represent and agree as follows:
I. APPOINTMENT OF THE DISTRIBUTOR.
The Fund hereby appoints the Distributor as agent for the sale and distribution of the Shares,
subject to the terms and for the period set forth in this Agreement. The Distributor hereby
accepts such appointment and agrees to act hereunder.
II. SERVICES AND DUTIES OF THE DISTRIBUTOR.
A. The Distributor agrees to sell Shares on a best efforts basis as agent for the Fund during
the term of this Agreement, upon the terms and at the current offering price plus applicable sales
charge described in the registration statement and the prospectus and statement of additional
information then in effect (the “Prospectus”) with respect to the Fund under the Securities Act of
1933 (the “1933 Act”).
B. During the continuous public offering of Shares, the Distributor will hold itself available
to receive orders, satisfactory to the Distributor, for the purchase of Shares and will accept such
orders on behalf of the Fund. Such purchase orders shall be deemed effective at the time and in
the manner set forth in the Prospectus.
C. The Distributor may incur expenses for appropriate distribution activities that it deems
reasonable that are primarily intended to result in the sale of Shares, including, but not limited
to, advertising, the printing and mailing of prospectuses to other than current shareholders, and
the printing and mailing of sales literature, provided that the Fund approves any such activity.
With the
Fund’s approval, the Distributor may enter into servicing and selling agreements with
qualified broker-dealers with respect to the offering of Shares to the public, and if it so
chooses, the Distributor will act only on its own behalf as principal. The Distributor shall not be
obligated to incur any specific expenses or sell any certain number of Shares of the Fund.
D. The Distributor shall bear the expenses of registration or qualification of the Distributor
as a dealer or broker under federal or state laws and the expenses of continuing such registration
or qualification
E. The Shares shall be offered by the Distributor for sale to the public at a price per share
(“offering price”) equal to their net asset value (determined in the manner set forth in the
Prospectus), plus, except to those classes of persons set forth in the Prospectus, a sales charge
that shall be the percentage of the offering price of such shares as set forth in the Prospectus.
The offering price, if not an exact multiple of one cent, shall be adjusted to the nearest cent.
The excess, if any, of the sales price over the net asset value of the Shares paid by an investor
in connection with the investor’s purchase of Shares shall be retained by the Distributor as a
commission for its services hereunder or paid to broker-dealers as set forth in the Prospectus.
Concessions to broker-dealers shall be set forth in either the selling agreements, or if such
concessions are described in the Prospectus, shall be as so set forth. No broker-dealer who does
not enter into a selling agreement with the Distributor shall be authorized to act as agent for the
Fund in connection with the offering or sale of its Shares to the public or otherwise.
F. If any Shares sold by the Fund are redeemed or repurchased by the Fund, or by the
Distributor as agent, or are tendered for redemption, within seven (7) 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 the Distributor with respect of such Shares, provided that
the portion, if any, of such amount re-allowed, by the Distributor to broker-dealers shall be
repayable to the Fund only to the extent recovered by the Distributor from the broker-dealer
concerned. The Distributor shall include in the forms of agreement with such broker-dealers 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 Fund or by the Distributor as agent
(or tendered for redemption) within seven (7) business days after the date of confirmation of such
initial purchases.
G. The Distributor shall act as distributor of the Shares in compliance in all material
respects with all applicable laws, rules and regulations, including, without limitation, all rules
and regulations made or adopted pursuant to the 1933 Act, the 1940 Act, by the Securities and
Exchange Commission (“SEC”) and FINRA.
H. The Distributor shall not utilize any materials in connection with the sales or offering of
Shares except the Prospectus and such other materials as the Fund shall provide or approve. The
Distributor agrees to provide compliance review of all sales literature and marketing materials
prepared for use by or on behalf of the Fund in advance of the use of such materials. The
Distributor will file the materials as may be required with the SEC or FINRA. Each party agrees and
represents that it will not use or authorize the use of any advertising or sales materials unless
and until such materials have been approved and authorized for use by the other party hereto and
filed, if appropriate or required.
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I. For its services hereunder, the Distributor shall receive the fees and be reimbursed the
expenses provided in Schedule A hereto.
III. DUTIES AND REPRESENTATIONS OF THE FUND.
A. The Fund hereby represents that it is registered as a closed-end management investment
company under the 1940 Act and that it has and will continue to act in conformity with its
Agreement and Declaration of Trust, By-laws, the Prospectus, and resolutions and other instructions
of its Board of Trustees and has and will continue to comply with all applicable laws, rules and
regulations including without limitation the 1933 Act, the 1934 Act, the 1940 Act and the rules and
regulations thereunder.
B. The Fund shall take or cause to be taken all necessary action to register and maintain the
registration of the Shares under the 1933 Act for sale as herein contemplated and shall pay all
costs and expenses in connection with the registration of Shares under the 1933 Act, and be
responsible for all 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.
C. The Fund shall execute any and all documents and furnish any and all information and
otherwise take all actions that may be reasonably necessary in the discretion of the Fund’s
officers in connection with the sale of the Shares in such states and jurisdictions as the
Distributor and the Fund may approve, and shall pay all expenses that may be incurred in connection
therewith.
D. The Fund shall, at its expense, keep the Distributor fully informed with regard to its
affairs as they relate to the offering and sale of the shares. In addition, the Fund shall furnish
to the Distributor from time to time such information, documents and reports with respect to the
Fund and the Shares as the Distributor may reasonably request, and the statements contained in any
such information shall be true and correct and fairly represent what they purport to represent.
E. All registration statements and prospectuses of the Fund filed or to be filed with the SEC
under the 1933 Act and the 1940 Act with respect to the Shares have been and will be prepared in
conformity in all material aspects with the applicable requirements of the 1933 Act, the 1940 Act
and the applicable rules and regulations thereunder. As used in this Agreement, the terms
“registration statement” and “prospectus” shall mean any registration statement and prospectus
(together with the related statement of additional information) at any time now or hereafter filed
with the SEC with respect to any of the Shares and any amendments and supplements thereto that at
any time shall have been or will be filed with the SEC. Any registration statement and prospectus,
when such registration statement becomes effective, will contain all statements required to be
stated therein in conformity with the 1933 Act, the 1940 Act and the rules and regulations thereof.
All information contained in the registration statement and prospectus will be true and correct in
all material respects when such registration statement becomes effective; and neither the
registration statement nor any prospectus 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. The Fund will file from
time to time such amendments, supplements, reports and other documents as may be necessary or
required in order to comply with the 1933 Act and the 1940 Act and in order that there may be no
untrue statement of a material fact in a registration statement or prospectus, or necessary or
required in order that there may be no omission
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to state a material fact in the registration statement or prospectus that omission would make
the statements therein, in light of the circumstances under which they were made, misleading. The
Fund shall promptly notify the Distributor of any advice given to it by counsel to the Fund
regarding the necessity or advisability of amending or supplementing the registration statement.
F. The Fund shall not file any amendment to the registration statement or supplement to any
prospectus without giving the Distributor reasonable notice thereof in advance and if the
Distributor declines to assent to such amendment (after a reasonable time), the Fund may terminate
this Agreement forthwith by written notice to the Distributor without payment of any penalty. If
the Fund shall not propose an amendment or amendments or supplement or supplements promptly to its
Board of Trustees for consideration after receipt by the Fund of a written request in good faith
from the Distributor to do so, the Distributor may, at its option, immediately terminate this
Agreement. In addition, if, at any time during the term of this Agreement, the Distributor asks the
Fund to make any change in its governing instruments or in its methods of doing business that are
necessary in order to comply with any requirement of applicable law or regulation, and the Fund
fails (after a reasonable time) to make any such change as requested, the Distributor may terminate
this Agreement forthwith by written notice to the Fund without payment of any penalty. Nothing
contained in this Agreement shall in any way limit the Fund’s right to file at any time any
amendments to any registration statement or supplements to any prospectus, of whatever character,
as the Fund may deem advisable, such right being in all respects absolute and unconditional.
G. Whenever in their sole discretion such action is warranted by market, economic or political
conditions or by circumstances of any kind, the Fund’s officers may decline to accept any orders
for, or make any sales of, any Shares until such time as they deem it advisable to accept such
orders and to make such sales. The Fund shall advise Distributor promptly of such determination.
H. The Fund will advise the Distributor promptly in writing:
1. of any correspondence or other communication by the SEC or its staff received by the Fund
relating to the Fund, including requests by the SEC for amendments to the registration statement or
prospectus;
2. in the event of the issuance by the SEC of any stop order suspending the effectiveness of
the registration statement or prospectus then in effect or the Fund’s knowledge of initiation of
any proceeding for that purpose;
3. of the happening of any event that makes untrue any statement of a material fact made in
the registration statement or prospectus or that requires the making of a change in such
registration statement or prospectus in order to make the statements therein not misleading; and
4. of all actions taken by the SEC, to the Fund’s knowledge, with respect to any amendments to
any registration statement or prospectus that may from time to time be filed with the SEC.
IV. INDEMNIFICATION.
A. By the Fund.
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1. The Fund authorizes the Distributor to use the Prospectus in connection with the sale of
Shares. The Fund shall indemnify, defend and hold the Distributor, and each of its present or
former directors, members, officers, employees, representatives and any person who controls or
previously controlled the Distributor within the meaning of Section 15 of the 1933 Act
(collectively, “Indemnitees”), 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 counsel fees incurred in
connection therewith) that the Distributor and each of its Indemnitees 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: 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 an annual or interim report to
shareholders, 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 in light of
the circumstances under which they were made, not misleading; provided, however, that the Fund’s
obligation to indemnify the 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, or annual or interim report in reliance upon and in conformity with
information relating to the Distributor and furnished to the Fund or its counsel by the Distributor
for the purpose of, and used in, the preparation thereof.
2. The Fund 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, but if the Fund elects to assume the defense, such defense shall be
conducted by counsel chosen by the Fund and approved by the Distributor, which approval shall not
be unreasonably withheld. In the event the Fund 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 Fund does not elect to assume the
defense of any such suit, or in case the Distributor does not, in the exercise of reasonable
judgment, approve of counsel chosen by the Fund, the Fund 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 Distributor and them. The Fund’s agreement for indemnity contained in this
Section IV.A. and the Fund’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
Distributor, and each of its present or former directors, 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 Distributor’s benefit, to the
benefit of each of its present or former directors, members, officers, employees or representatives
or to the benefit of any controlling persons and their successors. The Fund agrees promptly to
notify the Distributor of the commencement of any litigation or proceedings against the Fund or any
of its officers or Trustees in connection with the issue and sale of any of the Shares.
B. By the Distributor.
1. The Distributor shall indemnify, defend and hold the Fund, and each of its present or
former Trustees, officers, employees, representatives, and any person who controls or previously
controlled the Fund within the meaning of Section 15 of the 1933 Act (collectively,
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“Indemnified Parties”), 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 counsel fees incurred in
connection therewith) that the Fund, and each of its Indemnified Parties, 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,
a. arising out of or based upon any untrue, or alleged untrue, statement of a material fact
contained in the Fund’s registration statement or any prospectus, as from time to time amended or
supplemented, or annual or interim report to shareholders or the omission, or alleged omission, to
state therein a material fact required to be stated therein, in light of the circumstances under
which they were made, or necessary to make the statement not misleading, but only if such statement
or omission was made in reliance upon, and in conformity with, information relating to the
Distributor and furnished to the Fund or its counsel by the Distributor for the purpose of, and
used in, the preparation thereof; or
b. as a result of Distributor’s failure to comply with the terms of this Agreement, except to
the extent and such losses result from the Fund’s willful misfeasance, bad faith or gross
negligence in the performance of its duties, or by reason of its reckless disregard of its
obligations and duties, under this Agreement.
2. The Distributor’s agreement to indemnify the Fund, and any of the foregoing Indemnified
Parties, is expressly conditioned upon the Distributor’s being notified of any action brought
against the Fund, and any of the foregoing Indemnified Parties, such notification to be given by
letter or telegram addressed to the Distributor, 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 Fund or such person, but the failure so to notify the Distributor of any such action shall not
relieve the Distributor of any liability that 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,
otherwise than on account of the Distributor’s indemnity agreement contained in Section IV.B.1.
3. 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, but if the Distributor elects to assume the defense, such defense
shall be conducted by counsel chosen by the Distributor and approved by the Fund, 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 Fund does not, in the exercise of
reasonable judgment, approve of counsel chosen by the Distributor, the Distributor will reimburse
the indemnified person or persons named as defendant or defendants in such suit, for the fees and
expenses of any counsel retained by the Fund and them. The Distributor’s agreement of indemnity
contained in this Section IV.B and the Distributor’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 Fund, and each of its present or former 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 Fund’s
benefit, to the benefit of each of its present or former
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Trustees, officers, employees or representatives or to the benefit of any controlling persons
and their successors. The Distributor agrees promptly to notify the Fund of the commencement of any
litigation or proceedings against the Distributor or any of its officers or directors in connection
with the issue and sale of any of the Shares.
V. OFFERING OF SHARES.
No Shares shall be offered by either the Distributor or the Fund under any of the provisions
of this Agreement and no orders for the purchase or sale of such Shares hereunder shall be accepted
by the Fund if and so long as the 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 the current prospectus as required by Section 10 of the 1933 Act is not on file with
the SEC; provided, however, that nothing contained in this Section V. shall in any way restrict or
have an application to or bearing upon the Fund’s obligation to repurchase Shares from any
shareholder in accordance with the provisions of the Prospectus or Declaration of Trust.
VI. TERM.
A. This Agreement shall become effective as of the date hereof. Unless sooner terminated as
provided herein, this Agreement shall continue in effect until , 20 . Thereafter, if
not terminated, this Agreement shall continue automatically in effect for successive annual
periods, provided such continuance is specifically approved at least annually by:
1. the Board of Trustees; or
2. the vote of a majority (as defined in the 0000 Xxx) of the outstanding voting securities of
the Fund; and
3. provided that, in either event, the continuance is also approved by a majority of the Board
of Trustees 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.
B. This Agreement may be terminated without penalty:
1. through a failure to renew this Agreement at the end of a term;
2. upon mutual consent of the parties; or
3. on no less than thirty (30) days’ written notice, by the Board of Trustees or by the
Distributor (which notice may be waived by the party entitled to such notice).
4. In addition, this Agreement may be terminated at any time, without penalty, by vote of a
majority of the members of the Board of Trustees who are not interested persons of the Fund (as
defined in the 0000 Xxx) and have no direct or indirect financial interest in this Agreement. 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 Distributor and the Fund. This
Agreement will also terminate automatically in the event of its assignment (as defined in the 1940
Act).
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VII. MISCELLANEOUS.
A. The services of the Distributor rendered to the Fund are not deemed to be exclusive. The
Distributor may render such services and any other services to others, including other investment
companies. The Fund recognizes that, from time to time, directors, officers and employees of the
Distributor may serve as directors, trustees, officers and employees of other entities (including
other investment companies), that such other entities may include the name of the Distributor as
part of their name and that the Distributor or its affiliates may enter into distribution
agreements with such other entities.
B. All records relative to the Fund and prior, present or potential shareholders of the Fund
(and clients of said shareholders) are the confidential and proprietary information of the Fund and
are not to use such records and information for any purpose other than performance of the
Distributor’s responsibilities and duties hereunder, except after prior notification to and
approval in writing by the Fund, which approval may not be withheld where the 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 Fund. Records and information that have become known to
the public through no wrongful act of the Distributor or any of its employees, agents or
representatives shall not be subject to this section.
C. This Agreement shall be governed by Delaware law. To the extent that the applicable laws of
the State of Delaware, 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 provision of this
Agreement that 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.
D. Any notice required or to be permitted to be given by either party to the other shall be in
writing and shall be deemed to have been given when sent by registered or certified mail, postage
prepaid, return receipt requested, as follows: Notice to the Distributor shall be sent to Ascent
Real Estate Securities, LLC, 0000 00xx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention: President; and notice to the Fund shall be sent to Global Real Estate Investments Fund,
0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, Attention: President.
E. This Agreement is executed by the Fund and the obligations hereunder are not binding upon
any of the Trustees, officers or shareholders of the Fund individually but are binding only upon
the Fund and its assets and property. The Fund’s Certificate of Trust is on file with the Secretary
of State of Delaware.
F. This Agreement may be executed in counterparts, each of which shall be deemed to be an
original agreement but such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by a duly
authorized officer as of the day and year first above written.
| Global Real Estate Investments Fund | Ascent Real Estate Securities, LLC | |||||||||
By:
|
By: | |||||||||
Title:
|
Title: | |||||||||
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Sales Charge:
| Total Sales | ||||||||||||
| Amount Invested in | Load as a | Selling Concession to | ||||||||||
| the Fund by a | Percentage of | Participating Broker | Reallowance to the | |||||||||
| Shareholder | Offering Price* | Dealers | Distributor | |||||||||
$1,000-24,999 |
7.25 | % | 4.75 | % | 2.50 | % | ||||||
$25,000-99,999 |
7.25 | % | 5.00 | % | 2.25 | % | ||||||
$100,000-249,999 |
6.25 | % | 4.25 | % | 2.00 | % | ||||||
$250,000-499,999 |
5.25 | % | 3.50 | % | 1.75 | % | ||||||
$500,000-999,999 |
4.25 | % | 2.75 | % | 1.50 | % | ||||||
$1,000,000 and Over |
3.25 | % | 2.00 | % | 1.25 | % | ||||||
| * | In addition to the total sales load, the Fund will pay the Distributor a monthly servicing fee at an annual rate of 0.25% of the average daily net assets of the Fund. Commencing thirteen months from the date of a shareholder’s purchase of the Fund’s shares, the Distributor may pay such servicing fee to participating broker dealers based on the net assets of each shareholder attributable to that participating broker dealer, as a trail commission. Such fee shall be payable to the participating broker dealer for the period that such shareholder remains invested in the Fund. The servicing fee and the sales load represent the entire compensation to the Distributor and any participating broker dealer for its distribution and other services, including handling investor inquiries, assisting in communications between the shareholders and the Fund, assisting in the establishment and maintenance of shareholder accounts, on-going distribution services and expenses relating to the continuous offering of the shares. |
Distribution Expenses
Certain expenses of marketing, promoting and distributing the Fund are in addition to the fees
set forth above including, prospectus development and printing; advertising; direct mail; public
relations activities; trade show attendance; call management and fulfillment and fees paid to
broker-dealers.
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