INBOUND CALL MANAGEMENT AND FULFILLMENT SERVICES AGREEMENT
INBOUND
CALL MANAGEMENT AND
FULFILLMENT
SERVICES AGREEMENT
THIS
AGREEMENT is made as of this 21st day of June, 2007, by and between Adelante
Funds, a Delaware statutory trust (the “Trust”), and UMB Distribution Services,
LLC, a Wisconsin limited liability company (“UMBDS”).
WHEREAS,
the Trust is registered under the Investment Company Act of 1940, as amended
(the “Act”), as an open-end management investment company which is authorized to
issue shares of common stock in separate series with each such series
representing the interests in a separate portfolio of securities and other
assets;
WHEREAS,
UMBDS offers various inbound call management and fulfillment services to
investment companies and others; and
WHEREAS,
the Trust and UMBDS desire to enter into an agreement pursuant to which UMBDS
shall provide on behalf of the Trust certain inbound call management and
fulfillment services to such investment portfolios of the Trust as are listed
on
Schedule A hereto and any additional investment portfolios the Trust and UMBDS
may agree upon and include on Schedule A as such Schedule may be amended from
time to time (such investment portfolios and any additional investment
portfolios are individually referred to as a “Fund” and collectively the
“Funds”).
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 agree as follows:
1. Appointment
and Services
(a) The
Trust
hereby retains and does hereby authorize UMBDS to provide the inbound call
management and fulfillment services described in Schedule B hereto, and UMBDS
agrees to provide such services, for the period and compensation and upon the
terms set forth in this Agreement.
(b) The
Trust, at its cost, shall provide UMBDS with the necessary scripts, instructions
and all materials (including prospectuses, reports, article reprints, stationery
and envelopes) so that UMBDS may provide the services described herein subject
to the direction of the Trust. Notwithstanding anything herein to the contrary,
UMBDS shall not be required to provide any services or information that it
believes, in its sole discretion, to represent dishonest, unethical or illegal
activity. In no event shall UMBDS provide any investment advice or
recommendations to any party in connection with its services hereunder. All
risk
of loss for the materials being inventoried by UMBDS on the Trust’s behalf shall
be the responsibility of the Trust, and UMBDS shall not be responsible for
any
loss to this material except as such loss may be caused by UMBDS’ negligence.
UMBDS agrees to use due care in the storage of such materials prior to their
distribution. The Trust shall provide UMBDS from time to time notice of media
schedules, anticipated call volume and other related information to the extent
such information is reasonably available to the Trust, so as to facilitate
preparation by UMBDS to provide the services hereunder.
1
(c) UMBDS
shall perform its duties hereunder in compliance with all material respects
with
all applicable federal, state and local laws, rules and regulations, including,
without limitation, all rules and regulations made or adopted by the Securities
and Exchange Commission, the National Association of Securities Dealers, Inc.
and the states in which the Funds are sold.
2. Fees
and Expenses
In
consideration of the services rendered pursuant to this Agreement, the Trust
shall, to the extent permissible under the applicable law, pay UMBDS such fees,
charges and expenses as are set forth in Schedule C hereto. UMBDS may, at its
option, arrange to have various service providers submit invoices directly
to
the Trust for payment of out of pocket expenses reimbursable hereunder. All
invoices rendered by UMBDS shall be paid within fifteen (15) days of the date
of
invoice. At the option of UMBDS, unpaid invoices accrue a finance charge of
one
and one-half percent (1½%) per month, after the due date, unless UMBDS receives
notice from the Trust in writing prior to the due date of any disputed items
from a particular invoice.
3. Term;
Amendments; Assignment
(a) This
Agreement shall become effective with respect to each Fund listed on Schedule
A
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 with respect to each Fund until February 16, 2002.
Thereafter, if not terminated, this Agreement shall continue automatically
in
effect as to each Fund for successive annual periods, provided such continuance
is specifically approved at least annually by (i) the Trust’s Board of Trustees
including a majority of the Trust’s Board of Trustees who are not "interested
persons" (as defined in the 0000 Xxx) and who have no direct or indirect
financial interest in the operation of the Agreement, by vote cast in person
at
a meeting called for the purpose of voting on such approval, and (ii) by the
Distributor.
(b) This
Agreement may be terminated with respect to any one or more particular Funds
without penalty, upon not less than thirty (30) days’ written notice to the
other party (which notice may be waived by the party entitled to such notice),
by (i) the Distributor, or (ii) by vote of a majority of the members of the
Trust’s Board of Trustees who are not "interested persons" (as defined in the
0000 Xxx) and who have no direct or indirect financial interest in the operation
of the Agreement or by vote of a majority (as defined with respect to voting
securities in the 1940 Act and Rule 18f-2 thereunder) of the outstanding voting
securities of a Fund. This Agreement shall also terminate automatically in
the
event of its assignment (as defined in the 1940 Act). Upon termination of this
Agreement, UMBDS shall promptly return to the Trust all applicable materials
that are the property of the Trust at the Trust’s expense. All amounts due and
owing to UMBDS as of such termination shall be paid within fifteen days of
the
days of the date of invoice(s) relating to such amounts.
2
(c) Except
as
expressly provided 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 UMBDS and the Trust. Notwithstanding
the above, UMBDS shall provide the Trust with notice of its fee schedule as
it
is amended from time to time, and any such amendment shall automatically be
effective sixty (60) days after the date of such notice provided the Trust
provides no written notice of its objection within 25 days of UMBDS’
notice.
4. Non-Exclusivity;
Confidentiality
(a) The
services of UMBDS hereunder are not deemed to be exclusive. UMBDS may render
inbound call management and fulfillment services and any other services to
others, including other investment companies.
(b) UMBDS
agrees on behalf of itself and its employees to treat confidentially and as
proprietary information of the Trust all records relative to the Funds’
shareholders acquired in connection with its services hereunder, and not to
use
such records and information for any purpose other than the performance of
its
responsibilities and duties hereunder, except after prior notification to and
approval by the Trust, which approval shall not be unreasonably withheld and
may
not be withheld where UMBDS 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 UMBDS or any of
its
employees or representatives, and information which was already in the
possession of the UMBDS prior to receipt thereof shall not be subject to this
paragraph.
(c) UMBDS
shall not use the name of the Trust or any Fund (other than in connection with
performing its duties and obligations under this Agreement) in a manner not
approved by the Trust prior thereto in writing; provided,
however,
that the
approval of the Trust shall not be required for the use of the Trust’s name or
the name of any Fund in connection with performing its duties and obligations
or
exercising its rights under this Agreement, or which is required by the
Securities and Exchange Commission or any state securities authority or an
other
appropriate regulatory, governmental or judicial authority, provided, further,
that in no event shall such approval be unreasonable withheld or delayed; and
provided further that the Distributor and its affiliates may use the names
of
the Trust and any Fund pursuant to the terms of any other agreements executed
by
or among them and the Trust.
5. Limitation
of Liability
(a) In
providing services hereunder, UMBDS shall not be liable for any loss or damage,
including counsel fees, resulting from its actions or omissions to act or
otherwise, in the absence of its willful misfeasance, bad faith or negligence
in
connection with its duties under this Agreement, or for any loss or damage
resulting from its actions or omissions in accordance with the instructions,
directions or requests of officers or representatives of the Trust. UMBDS shall
indemnify and hold harmless the Trust, and each of its present or former
trustees, officers, employees, representatives, and any person who controls
or
previously controlled the Trust within the meaning of Section 15 of the
Securities Act of 1933 against any and all Losses (as defined below) to the
extent such Losses arise out of or result from the willful malfeasance, bad
faith or negligence of UMBDS in the performance of its duties, or by reason
of
the reckless disregard of its obligations and duties under this
Agreement.
3
(b) The
Trust
shall indemnify and hold harmless UMBDS, and each of its present or former
directors, members, officers, employees, representatives, and any person who
controls or previously controlled UMBDS from and against any and all claims,
actions, suits, demands, losses, expenses and liabilities (including the costs
of investigating or defending any alleged claims, actions, suits, demands,
losses, expenses and liabilities) (collectively, “Losses”) of any and every
nature which UMBDS may sustain or incur or which may be asserted against UMBDS
by any person arising directly or indirectly out of any action taken or omitted
to be taken by UMBDS in performing the services hereunder; provided that this
indemnification shall not apply to actions or omissions of UMBDS in cases of
its
own willful misfeasance, bad faith or negligence. As used in this Section 5,
the
term “UMBDS” shall include past and present members, officers, employees,
representatives, authorized agents and assigns of UMBDS as well as UMBDS and
its
affiliates themselves.
(c) The
Trust
further agrees to indemnify, defend and hold harmless UMBDS from and against
any
and all Losses which UMBDS may sustain or incur or which may be asserted against
UMBDS by any person arising out of or resulting from the actions or omissions
of
UMBDS when acting in accordance with the instructions, directions or requests
of
officers or representatives of the Trust.
(d) Notwithstanding
anything herein to the contrary, UMBDS will be excused from its obligation
to
perform any act, service or obligation required of it hereunder for the duration
that such performance is prevented by events beyond its reasonable control
and
it shall not be responsible for any damage, loss of data, errors, delay or
any
other loss whatsoever caused thereby. UMBDS will, however, take all reasonable
steps to minimize service interruptions for any period that such interruption
continues beyond its control. The indemnity and defense provisions set forth
in
this Section 5 shall indefinitely survive the termination and/or assignment
of
this Agreement. Under no circumstances shall UMBDS be liable for any incidental,
consequential or punitive damages, direct or indirect.
6. Governing
Law; Invalidity
This
Agreement shall be governed by Wisconsin law, excluding the laws on conflicts
of
laws. 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 Act,
the latter shall control, and nothing herein shall be construed in a manner
inconsistent with the Act or any rule or order of the Securities and Exchange
Commission thereunder. 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.
In
such case, the parties shall in good faith modify or substitute such provision
consistent with the original intent of the parties.
4
7. Miscellaneous
(a) The
800-telephone number that the Trust transfers to UMBDS, in order for UMBDS
to
provide the services hereunder to the Trust, shall remain the property of the
Trust. In the event that this Agreement is terminated, UMBDS shall assert no
claim in or to this telephone number.
(b) This
Agreement and the Schedules incorporated hereto constitute the full and complete
understanding and agreement of UMBDS and the Trust and supersedes all prior
negotiations, understandings and agreements.
(c) This
Agreement is executed by the Trust with respect to each of the Funds and the
obligations hereunder are not binding upon any of the Trustees, officers or
shareholders of the Trust individually but are binding only upon the Fund to
which such obligations pertain and the assets and property of such Fund. All
obligations of the Trust under this Agreement shall apply only on a Fund-by-Fund
basis, and the assets of one Fund shall not be liable for the obligations of
another Fund.
8. Notices
Any
notice required or permitted to be given by either party to the other shall
be
in writing and shall be deemed to be effective upon the date specified on the
return receipt when sent by registered or certified mail, postage prepaid,
return receipt requested, as follows: Notice to UMBDS shall be sent to UMB
Distribution Services, Inc., 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX, 00000,
Attention: President, with a copy to General Counsel, and notice to the Trust
shall be sent to Adelante Funds, c/o Adelante Capital Management, LLC, 000
00xx
Xxxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000, Attention: President.
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.
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UMB
DISTRIBUTION SERVICES, LLC
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|
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(the
“Trust”)
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(“UMBDS”)
|
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By:
/s/ Xxxx X. Xxxxxx
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By:
/s/ Xxxxx X. Xxxxxxx
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(Signature)
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(Signature)
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Xxxx
X. Xxxxxx
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Xxxxx
X. Xxxxxxx
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(Name)
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(Name)
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Vice
President & Chief Compliance Officer
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Executive
Vice President
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(Title)
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(Title)
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6/12/2007
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6/13/2007
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(Date
Signed)
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(Date
Signed)
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5
Schedule
A
to
the
by
and between
and
UMB
Distribution Services, LLC
FUNDS
Name
of Funds
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Fund
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Effective
Date
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Adelante
U.S. Real Estate Securities Fund
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February
16, 2000
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6
Schedule
B
to
the
by
and between
and
UMB
Distribution Services, LLC
SERVICES
Inbound
Call Management
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¨
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Standard
business hours: 7 a.m. - 7 p.m. CST, Monday through Friday (except
major
holidays)
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¨
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Qualify
callers
|
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¨
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Provide
detailed responses to fund inquiries (not
scripted)
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¨
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Identify
buyer/investment needs
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¨
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Automated
voice response system
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¨
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Custom
database maintenance
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¨
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Periodic
activity reporting
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¨
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Names,
addresses, telephone numbers and types of
inquiries
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¨ Call
tracking, by:
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à
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Fund
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|
à
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Zip
code or geographic region
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à
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Source
code
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¨
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Call
switching
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à
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Complex
calls can be forwarded to fund, if
desired
|
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à
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Transfer
calls to transfer agent
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7
Fulfillment
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¨
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Literature
request standards
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|
¨
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Filled
and mailed typically within 24 hours (but at least within 3 business
days
with respect to all documents required by the SEC to be sent within
such
timeframes).
|
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¨
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On-site
inventory control
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¨
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Customized
literature fulfillment
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¨
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Personalized
letters developed by the Trust or by UMBDS (with prior approval by
the
Trust)
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¨
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Customized
investor kit assembly
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¨
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Fulfill
literature requests downloaded from the Trust’s Internet
site
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¨
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Periodic
reporting
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¨
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Kit
report
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¨
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Advanced
notice of need to order additional
materials
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Miscellaneous
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¨
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Reference
Manual maintenance and representative
training.
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8
Schedule
C
to
the
by
and between
and
UMB
Distribution Services, LLC
FEE
SCHEDULE
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¨
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Set-up
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||
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Basic
and Premium service
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(waived)
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||
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UMBDS
set up includes the following activities:
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|||
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à
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Programming
the phone system
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||
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à
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Programming
UMBDS’ proprietary prospect database
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||
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à
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Coordinating
the installation/rerouting of the 800 number
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||
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à
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Coordinating
the installation of the voice response unit
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||
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à
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Creating
the Fund Reference Manual
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||
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à
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Overseeing
initial representative training
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¨
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Inbound
calls
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||
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Live
Representative
|
|||
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Basic
service
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$.95/minute
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||
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Premium
service
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$1.25/minute
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||
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(Premium
service is provided by more senior, securities-licensed
representatives.)
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Voice
Response Unit
|
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Basic
and Premium service
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$.85/minute
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Transfers
to Toll Number
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|||
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Basic
and Premium service
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$.85/minute
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||
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Transfers
to 800 Number
|
|||
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Basic
and Premium service
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$.70/minute
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||
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¨
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Base
Fee
|
||
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Basic
service
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$2,000/month
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||
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Premium
service
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$5,000/month
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9
Fulfillment
|
¨
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Standard
package for mailing
|
|||
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Up
to 3 pieces
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$0.75
|
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Additional
inserts
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$0.05
each
|
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Personalized
letter
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$1.00
each
|
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¨
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Follow-up
letter
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$1.00
each
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Outbound
Call Management
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Planning
and set-up
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$3,000
|
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Includes
standard programming and training
|
||||
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Call
Management
|
||||
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Distribution
Services Representative
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$1.80/minute
|
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¨
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Base
Fee
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$2,500/month
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Conference
Support
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$750/day
|
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Investment
Advisor Liaison
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$6,000/month
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Other
expenses
|
||||
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Postage
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At
cost
|
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Bulk
mailings
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At
cost
|
|||
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Automate
call processor
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At
cost
|
|||
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Stickers/supplements
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$0.05
each
|
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Bar
coding
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$0.05
each
|
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Facsimile
(per sheet)
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$1.50
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|||
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Photocopies
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$0.25
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Express
Deliveries
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At
cost
|
|||
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Billed
to caller (unless otherwise expressed by Fund)
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||||
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Customized
monthly reports
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$50.00
each
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¨
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Ad
Hoc reports
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$100.00
and up
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||
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¨
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Customized
programming
|
$100.00/hour
|
||
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¨
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Storage
(per skid)
|
$20.00/month
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||
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Special
projects
|
Priced
at time of project
|
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Long
distance or 800 number charges
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At
cost
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10
