DISTRIBUTION 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 (the “Distributor”).
WHEREAS,
the
Trust is an open-end investment company registered under the Investment Company
Act of 1940, as amended (the “1940 Act”) and is authorized to issue shares of
beneficial interests 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”), is a member of the National Association of
Securities Dealers, Inc. (the “NASD”) and is properly registered and qualified
as a broker-dealer under all applicable state and local laws; and
WHEREAS,
the
Trust and Distributor desire to enter into an agreement pursuant to which
Distributor shall be the distributor of the shares of the Trust representing
the
investment portfolios described on Schedule A hereto and any additional shares
and/or investment portfolios the Trust and Distributor may agree upon and
include on Schedule A as such Schedule may be amended from time to time (such
shares and any additional shares are referred to as the “Shares” and 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
of the Distributor.
The
Trust
hereby appoints the Distributor as agent for the distribution of the Shares,
on
the terms and for the period set forth in this Agreement. Distributor hereby
accepts such appointment as agent for the distribution of the Shares on the
terms and for the period set forth in this Agreement.
2. Services
and Duties of the Distributor.
2.1 Distributor
will act as agent for the distribution of Shares in accordance with the
instructions of the Trust’s Board of Trustees and the registration statement and
prospectuses then in effect with respect to the Funds under the Securities
Act
of 1933, as amended (the “1933 Act”).
2.2 Distributor
may incur expenses for appropriate distribution activities which it deems
reasonable which 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. At the direction of the Trust, Distributor may enter into
agreements with broker/dealers and other qualified persons with respect to
the
offer and sale of Shares and/or the servicing of Share accounts using
substantially the form of the Dealer Assistance Agreement attached hereto or
such other form of agreement as may be approved by the Trust , and if it so
chooses Distributor will act as principal in selling shares. The Distributor
shall not be obligated to incur any specific expenses nor sell any certain
number of Shares of any Fund.
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2.3 All
Shares of the Funds offered for sale by Distributor shall be offered for sale
to
the public at a price per share (the “offering price”) provided in the Funds'
then current prospectus. The Distributor shall have no liability for the payment
of the purchase price of the Shares sold pursuant to this Agreement or with
respect to redemptions or repurchases of Shares. The price the Funds shall
receive for any Shares purchased by investors shall be the net asset value
used
in determining the public offering price applicable to the sale of such Shares,
as calculated in the manner set forth in the Funds’ Registration Statement (as
hereinafter defined). The Distributor may reallocate any portion of any
front-end sales charge that is imposed on such sales to selected dealers as
set
forth in the prospectus, subject to applicable NASD rules. Any portion of the
front-end sales charge that is not so reallocated, as well as any back-end
or
deferred sales charge or load, shall be retained by the Distributor as a
commission for its services hereunder. Notwithstanding anything herein to the
contrary, Distributor shall not be required to finance the payment to any dealer
or other organization of any sales charges or fees.
2.4 If
any
shares sold by the Funds are redeemed or repurchased by the Funds, or by
Distributor as agent, or are tendered for redemption, within seven business
days
after the date of confirmation of the original purchase of said Shares,
Distributor shall forfeit the amount above the net asset value received by
Distributor in respect of such Shares, provided that the portion, if any, of
such amount re-allowed, by Distributor to broker/dealers or other persons shall
be repayable to the Funds only to the extent recovered by Distributor from
the
broker/dealer or other person concerned. Distributor shall include in the forms
of agreement with such broker/dealers and other persons a corresponding
provision for the forfeiture by them of their concession with respect to Shares
sold by them or their principals and redeemed or repurchased by the Funds or
by
Distributor as agent (or tendered for redemption) within seven business days
after the date of confirmation of such initial purchases.
2.5 Distributor
shall act as distributor of the Shares in compliance in 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 “Commission”) the NASD and the states in
which Shares are offered and sold.
2.6 Distributor
shall not utilize any materials in connection with the sales or offering of
Shares except the Trust’s prospectus and statement of additional information and
such other materials as the Trust 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 Trust in advance of the use
of
such materials. The Fund agrees to incorporate such changes to such materials
as
the Distributor shall request. The Distributor will file the materials as may
be
required with the NASD, SEC or state securities commissioners. The Trust
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 the Distributor.
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2.7 As
compensation for the services performed hereunder and the expenses incurred
by
Distributor, the Distributor shall be entitled to the fees and be reimbursed
the
expenses as provided in Exhibit B hereto.
3. Duties
and Representations of the Trust.
3.1 The
Trust
represents that it is registered as an open-end management investment company
under the 1940 Act and that it has and will continue to act in conformity with
its Declaration of Trust, By-Laws, its registration statement as may be amended
from time to time 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, the laws of the states in which shares of the Funds are offered and
sold, and the rules and regulations thereunder.
3.2 The
Trust
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
Trust hereunder.
3.3 The
Trust
shall execute any and all documents and furnish any and all information and
otherwise take all actions which may be reasonably necessary in the discretion
of the Trust’s officers in connection with the qualification of the Shares for
sale in such states as Distributor and the Trust may approve, shall maintain
the
registration of a sufficient number or amount of shares thereunder, and shall
pay all costs and expenses in connection with such qualification. The Trust
shall notify the Distributor, or cause it to be notified, of the states in
which
the Shares may be sold and shall notify the Distributor of any change to the
information.
3.4 The
Trust
shall, at its expense, keep the Distributor fully informed with regard to its
affairs. In addition, the Trust shall furnish Distributor from time to time
with
such information, documents and reports with respect to the Trust and the Shares
as Distributor may reasonably request, and the Trust warrants that the
statements contained in any such information shall be true and correct and
fairly represent what they purport to represent.
3.5 The
Trust
represents to Distributor that all registration statements and prospectuses
of
the Trust filed or to be filed with the Commission under the 1933 Act with
respect to the Shares have been and will be prepared in conformity with the
requirements of the 1933 Act, the 1940 Act, and the rules and regulations of
the
Commission 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 Commission with respect to any of the Shares and
any
amendments and supplements thereto which at any time shall have been or will
be
filed with said Commission. The Trust represents and warrants to Distributor
that 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 of
the
Commission; that 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 that 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 Trust agrees to 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
to
state a material fact in the registration statement or prospectus which omission
would make the statements therein misleading. The Trust shall promptly notify
the Distributor of any advice given to it by counsel to the Trust regarding
the
necessity or advisability of amending or supplementing the registration
statement. Notwithstanding anything to the contrary in this Section 3.5, the
Trust’s representations and warranties in this Section 3.5 are qualified in
their entirety with respect to any statement or omission in a registration
statement, prospectus or any other Trust document prepared in order to comply
with the requirements of the 1940 and 1933 Acts made in reliance upon or in
conformity with information relating to the Distributor and furnished to the
Trust or its counsel by the Distributor (“Distributor Information”) in writing
for the purposes of, and used in the preparation of, such registration
statement, prospectus of Trust document.
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3.6 The
Trust
shall not file any amendment to the registration statement or supplement to
any
prospectus without giving Distributor reasonable notice thereof in advance
and
if the Distributor declines to assent to such amendment (after a reasonable
time), the Trust may terminate this Agreement forthwith by written notice to
the
Distributor without payment of any penalty. If the Trust shall not propose
an
amendment or amendments and/or supplement or supplements a reasonable time
after
receipt by the Trust of a written request in good faith from Distributor to
do
so, Distributor may, at its option, immediately terminate this Agreement. In
addition, if, at any time during the term of this Agreement, the Distributor
requests the Trust to make any change in its governing instruments or in its
methods of doing business which are necessary in order to comply with any
requirement of applicable law or regulation, and the Trust fails (after a
reasonable time) to make any such change as requested, the Distributor may
terminate this Agreement forthwith by written notice to the Trust without
payment of any penalty. Nothing contained in this Agreement shall in any way
limit the Trust’s right to file at any time any amendments to any registration
statement and/or supplements to any prospectus, of whatever character, as the
Trust may deem advisable, with advice of its counsel, such right being in all
respects absolute and unconditional.
3.7 Whenever
in their judgment such action is warranted by market, economic or political
conditions, or by circumstances of any kind, the Trust may decline to accept
any
orders for, or make any sales of, any Shares until such time as it deems it
advisable to accept such orders and to make such sales and the Trust shall
advise Distributor promptly of such determination.
3.8 The
Trust
agrees to advise the Distributor promptly in writing:
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(i) of
any
correspondence or other communication by the Commission or its staff relating
to
the Funds including requests by the Commission for amendments to the
registration statement or prospectuses;
(ii) in
the
event of the issuance by the Commission of any stop order suspending the
effectiveness of the registration statement or prospectuses 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 registration statement or prospectuses or which requires the making
of a
change in such registration statement or prospectuses in order to make the
statements therein not misleading; and
(iv) of
all
actions taken by the Commission with respect to any amendments to any
registration statement or prospectus which may from time to time be filed with
the Commission.
4. Indemnification.
4.1(a) The
Trust
authorizes Distributor to use any prospectus or statement of additional
information, in the form furnished to Distributor and authorized for use by
the
Trust from time to time, in connection with the sale of Shares. The Trust 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 (“Distributor Indemnitees”), free and harmless (a) from and
against any and all losses, claims, demands, liabilities, damages, charges,
payments, costs and expenses (including the costs of investigating or defending
any alleged losses, claims, demands, liabilities, damages, charges, payments,
costs or expenses and any counsel fees incurred in connection therewith) of
any
and every nature (“Losses”) which Distributor and each of the Distributor
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, an annual or interim report to shareholders or sales literature,
or any amendments or supplements thereto, 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 Distributor and any
of the foregoing indemnitees shall not be deemed to cover any Losses arising
out
of any untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with information
relating to the Distributor and furnished to the Trust or its counsel by
Distributor in writing for the purpose of, and used in, the preparation thereof;
and (b) from and against any and all other Losses which Distributor and each
of
the Distributor Indemnitees may incur in connection with this Agreement or
the
Distributor’s performance hereunder, except to the extent the Losses result from
the Distributor’s willful misfeasance, bad faith or negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties under this Agreement. Promptly after receipt by the
Distributor of notice of the commencement of an investigation, action, claim
or
proceeding, the Distributor shall, if a claim for indemnification in respect
thereof is to made under this section, notify the Trust in writing of the
commencement thereof, although the failure to do so shall not prevent recovery
by the Distributor or any Distributor Indemnitee.
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4.1(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, but if the Trust elects to assume
the defense, such defense shall be conducted by counsel chosen by the Trust
and
approved by the 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 and notifies the Distributor of such election, the indemnified
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by them subsequent to the receipt of the Trust’s
election. If the Trust 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 Trust, or in case there is a conflict of
interest between the Trust and the Distributor or any of the Distributor
Indemnitees, the Trust 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 Distributor and them. The Trust’s indemnification agreement
contained in this Section 4.1 and the Trust’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 the
Distributor Indemnitees, 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 the
Distributor Indemnitees and their estates and successors. The Trust agrees
promptly to notify Distributor of the commencement of any litigation or
proceedings against the Trust or any of its current or former officers,
trustees, agents or affiliates in connection with the issue and sale of any
of
the Shares.
4.1(c) The
Trust
acknowledges and agrees that in the event the Distributor, at the direction
of
the Trust, is required to give indemnification to any entity selling Shares
or
providing shareholder services to shareholders or others and such entity shall
make a claim for indemnification against the Distributor, the Distributor shall
make a similar claim for indemnification against the Trust and shall be entitled
to such indemnification.
4.2(a) Distributor
shall indemnify, defend and hold 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 1933
Act
(“Trust Indemnitees”), free and harmless from and against any and all Losses
which the Trust, and each of its present or former directors, 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, (a) arising out
of
or based upon any untrue, or alleged untrue, statement of a material fact
contained in the Trust’s registration statement or any prospectus, any annual or
interim report or other communication to shareholders or sales literature,
or
any amendments or supplements to the foregoing, or the omission, or alleged
omission, to state therein a material fact required to be stated therein 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 in writing to the Trust or its counsel by
the
Distributor, its employees officers, managers, directors or members for the
purpose of, and used in, the preparation thereof, or (b) to the extent any
Losses arise out of or result from the Distributor’s willful misfeasance, bad
faith or negligence of any of the Distributor, its employees, officers,
managers, directors or members in the performance of its duties, or by reason
of
its reckless disregard of its obligations and duties, under this Agreement.
Distributor's agreement to indemnify the Trust and any of the Trust Indemnitees
shall not be deemed to cover any Losses to the extent they arise out of or
result from the Trust’s willful misfeasance, bad faith or negligence in the
performance of its duties, or by reason of its reckless disregard of its
obligations and duties, under this Agreement. Promptly after receipt by the
Trust of notice of the commencement of an investigation, action, claim or
proceeding, the Trust shall, if a claim for indemnification in respect thereof
is to made under this section, notify the Distributor in writing of the
commencement thereof, although the failure to do so shall not prevent recovery
by the Trust or any Trust Indemnitee.
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4.2(b) 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 Trust, 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 and notifies the Trust of such
election, the indemnified defendant or defendants in such suit shall bear the
fees and expenses of any additional counsel retained by them subsequent to
the
receipt of the Distributor’s election. If the Distributor does not elect to
assume the defense of any such suit, or in case the Trust 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 Trust and them. The Distributor’s indemnification agreement
contained in this Section 4.2 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 Trust or any of
the
Trust Indemnitees, and shall survive the delivery of any Shares and the
termination of this Agreement. This agreement of indemnity will inure
exclusively to the Trust's benefit, to the benefit of each of the Trust
Indemnitees and their estates and successors. The Distributor agrees promptly
to
notify the Trust of the commencement of any litigation or proceedings against
the Distributor or any of its current or former officers, directors, managers,
members, agents or affiliates in connection with the issue and sale of any
of
the Shares.
5. Offering
of Shares.
No
Shares
shall be offered by either the Distributor or the Trust 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 Trust 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, as amended, is not on file with the Commission; provided, however,
that nothing contained in this paragraph 5 shall in any way restrict or have
an
application to or bearing upon the Trust’s obligation to repurchase Shares from
any shareholder in accordance with the provisions of the prospectus or
Declaration of Trust.
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6.
Limitation of Liability
6.1 The
Distributor shall not be liable for any error of judgment or mistake of law
or
for any loss suffered by the Trust in connection with the performance of its
obligations and duties under this Agreement, except a loss resulting from the
Distributor’s willful misfeasance, bad faith or negligence in the performance of
such duties and obligations, or by reason of its reckless disregard thereof.
Furthermore, notwithstanding anything herein to the contrary, the Distributor
shall not be liable for any action taken or omitted to be taken in accordance
with instructions received by the Distributor from an officer or representative
of the Trust.
6.2
The
Distributor assumes no responsibility hereunder, and shall not be liable, for
any default, damage, loss of data, errors, delay or any other loss whatsoever
caused by events beyond its reasonable control. The Distributor will, however,
take all reasonable steps to minimize service interruptions for any period
that
such interruption continues beyond its control.
7. Term.
7.1 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 with respect to each Fund until March 31,
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 or (ii) the vote of a majority (as defined in the 1940 Act and
Rule
18f-2 thereunder) 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 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.
7.2 This
Agreement may be terminated without penalty with respect to a particular Fund
(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 Trust’s Board of Trustees, 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, or by the Distributor (which notice
may
be waived by the party entitled to such notice). 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
Trust. This Agreement will also terminate automatically in the event of its
assignment (as defined in the 1940 Act).
7.3 In
the
event of termination of this Agreement, all reasonable expenses associated
with
movement of records and materials and conversion thereof shall be borne by
the
Funds.
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8. Miscellaneous.
8.1 The
services of the Distributor rendered to the Funds are not deemed to be
exclusive. The Distributor may render such services and any other services
to
others, including other investment companies. The Trust 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), and that the Distributor or its affiliates may enter
into
other agreements with such other entities.
8.2 The
Distributor agrees on behalf of itself, its employees and its representatives,
to treat confidentially and as proprietary information, information relating
to
the Trust and its activities, the Trustees, Fund shareholders and the Trust’s
other service providers acquired in the course of negotiating and performing
this Agreement, and not to use such information for any purpose other than
performance of its responsibilities and duties hereunder. In the case of any
request or demand for the inspection or disclosure of such information by
another party, the Distributor shall notify the Trust and follow the Trust’s
instructions as to permitting or refusing such inspection or disclosure;
provided, however, the Distributor may permit the inspection or make such
disclosures without the approval of the Trust to any person in any case where
it
is advised by its counsel that it may be exposed to potential liability, loss
or
damage resulting from or relating to the failure to do so (the costs of counsel
in considering the matter to be borne by the Trust). Notwithstanding anything
herein to the contrary, the Distributor may disclose that the Trust has
instructed it not to permit the inspection or make the disclosures or otherwise
limited or restricted its ability to do so. Records and information which have
become known to the public through no wrongful act of the Distributor or any
of
its employees, agents or representatives, and information which was already
in
the possession of the Distributor prior to receipt thereof, shall not be subject
to this paragraph.
8.3 The
Distributor 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
that the Distributor and its affiliates may use Trust and Fund names pursuant to
the terms of other Agreements among them and the Trust.
8.4 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 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 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.
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8.5 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 UMB Distribution Services,
LLC, 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.
8.6 This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original agreement but such counterparts shall together
constitute but one and the same instrument.
8.7 The
captions of this Agreement are included for convenience of reference only and
in
no way define or delimit any of the provisions hereof or otherwise effect their
construction or effect.
8.8 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.
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.
|
UMB
DISTRIBUTION SERVICES, LLC
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(the
“Trust”)
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(the
“Distributor”)
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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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10
Schedule
A
to
the
by
and between
and
UMB
Distribution Services, LLC
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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11
Schedule
B
to
the
by
and between
and
UMB
Distribution Services, LLC
FEES
Asset
Based Fees
As
compensation for the services performed by the Distributor, the Trust shall
pay
the Distributor a fee payable monthly in arrears, equal to the
following:
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Name
of Fund
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Average
Net Assets
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Basis
Points
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Minimum
Annual
Fee
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Adelante
U.S. Real Estate Securities Fund
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Up
to $250 Million
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2.0
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$25,000
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$250
Million up to $500 million
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1.0
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||
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$500
Million up to $1 Billion
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0.5
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Over
$1 Billion
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0.3
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Distribution
Expenses
Expenses
of marketing, promoting and distributing the Funds are in addition to the fees
set forth above, including, but not limited to, prospectus development and
printing; advertising; direct mail; public relations activities; trade show
attendance; call management and fulfillment and fees paid to broker/dealers
in
connection with their sale of Shares.
Advertising
Compliance
In
addition to the above fees, the Trust shall pay to the Distributor a fee based
on the actual time spent by representatives of the Distributor providing
compliance review of sales literature and marketing materials at the rate of
$150 per hour, plus filing fees. The hourly rate shall not apply for any sales
or marketing pieces prepared by the Distributor’s affiliate, 2XL.
Out-of-Pocket
Expenses
In
addition to the compensation payable to the Distributor, the Trust agrees to
reimburse, upon request (or pay directly at the Distributor’s discretion), the
Distributor’s out-of-pocket expenses in providing services hereunder including,
without limitation, amounts paid or to be paid by Distributor to dealers or
others entering into selling, servicing or related agreements with the
Distributor or the Trust. The Distributor is not required to finance any
activities and may arrange for the Trust to pay such expenses directly, and
will
not be required to incur any expense or perform any service until payment is
received or made.
12
Payment
of Fees
The
fees
and expenses set forth on this Schedule B shall be paid to the Distributor
by
the respective Fund pursuant to a Rule 12b-1 Plan. Fees and expenses shall
be
payable monthly, promptly after the receipt by the Trust of an invoice for
such
fees and/or expenses.
Miscellaneous
Notwithstanding
the foregoing, any portion of the front-end sales charge that is not so
reallocated, as well as any back-end or deferred sales charge or load, shall
be
retained by the Distributor as a commission for its services
hereunder.
13
