DISTRIBUTION AGREEMENT
Exhibit (h)
THIS AGREEMENT (this “Agreement”) is made
and entered into as of this 30th day of September, 2021 (the “Effective Date”), by and between Foreside Funds Distributors LLC, a Delaware limited
liability company (the “Distributor”) and each investment company listed on Schedule A hereto (each a “Fund,” and collectively, the “Funds”), and
WHEREAS, each Fund is registered under the Investment Company Act of 1940, as amended (the “1940 Act”), as a closed-end management investment company and operates as an interval fund, and is authorized to issue Shares of beneficial interest (“Shares”);
WHEREAS, each Fund desires to retain the Distributor as its “principal underwriter,” as such term is defined in the 1940 Act and the
rules thereunder, in connection with the offering of the Shares of each Fund;
WHEREAS, the Distributor is registered as a broker-dealer under the Securities Exchange Act of 1934, as amended (the “1934 Act”), and is a member of the Financial Industry Regulatory Authority, Inc. (“FINRA”);
WHEREAS, the parties desire to permit other Funds to join as a party/parties to this Agreement and be included on Schedule A, provided
that (i) all parties agree in writing and (ii) each such Fund agrees to be bound by, and shall have all rights and responsibilities under, the terms and conditions of this Agreement, as reflected by its duly authorized signature on the form of
joinder set forth on Schedule B hereto.
WHEREAS, this Agreement has been approved by a vote of each Fund’s board of directors (the “Board”) and by the majority of the members of the Board who are not interested persons, as that term is defined in the 1940 Act, and have no direct or indirect financial interest in the operation of
this Agreement (the “Independent Directors”) in conformity with Section 15(c) of the 1940 Act; and
WHEREAS, the Distributor is willing to act as principal underwriter for each Fund on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and mutual covenants herein contained, and other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
1. Appointment of Distributor. Each Fund hereby appoints the Distributor as its principal underwriter for the distribution of Shares of such Fund, on the terms and
conditions set forth in this Agreement, and the Distributor hereby accepts such exclusive appointment and agrees to perform the services and duties set forth in this Agreement.
2. Services
and Duties of the Distributor.
A. The Distributor agrees
to act as the principal underwriter of each Fund for the distribution of Shares of such Fund upon the terms and at the current offering price described in the Prospectus. As used in this Agreement, the term “Prospectus” shall mean each current prospectus, including the statement of additional information, as amended or supplemented, relating to a Fund and included in the currently
effective registration statement(s) or post-effective amendment(s) thereto (the “Registration Statement”) of a Fund under the Securities Act of 1933, as
amended (the “1933 Act”), and the 1940 Act.
B. During the public
offering of Shares of a Fund, the Distributor shall use best efforts to distribute the Shares. All orders for Shares shall be made through financial intermediaries or directly to a Fund or its designated agent. Such purchase orders shall be
deemed effective at the time and in the manner set forth in the Prospectus. A Fund or its designated agent will confirm orders and subscriptions upon receipt, will make appropriate book entries and, upon receipt of payment therefor, will issue
the appropriate number of Shares in uncertificated form.
C. The Distributor shall
maintain membership with the National Securities Clearing Corporation (NSCC) and any other similar successor organization to sponsor a participant number for a Fund so as to enable the Shares to be traded through FundSERV. The Distributor shall
not be responsible for any operational matters associated with FundSERV or Networking transactions.
D. The Distributor
acknowledges and agrees that it is not authorized to provide any information or make any representations regarding the Funds other than as contained in the Prospectus and any sales literature, marketing and advertising materials (collectively, “Marketing Materials”) specifically approved by the Funds.
E. The Distributor agrees
to review all proposed Marketing Materials for compliance with applicable FINRA and SEC marketing rules and regulations, and shall file with FINRA those Marketing Materials that it reasonably believes are in compliance with such laws and
regulations. The Distributor agrees to promptly furnish to the Funds any comments provided by regulators with respect to such materials.
F. Each Fund agrees to
repurchase Shares tendered by shareholders of the Fund in accordance with the Fund’s obligations in the Prospectus, the Registration Statement, and any instructions provided by the Fund. Each Fund reserves the right to suspend such repurchase
right upon written notice to the Distributor.
G. The Distributor may, in
its discretion, and shall, at the request of a Fund and/or Versus Capital Advisors LLC (the “Adviser”), enter into agreements with qualified broker-dealers
and other financial intermediaries (the “Financial Intermediaries”) in order that such Financial Intermediaries may sell Shares of a Fund. The form of any
dealer agreement shall be approved by a Fund (“Standard Dealer Agreement”). The Distributor shall not be obligated to make any payments to the Financial
Intermediaries or other third parties, unless Distributor has received a corresponding payment from a Fund. The Distributor shall include in the forms of agreement with Financial Intermediaries a provision for the forfeiture by them of any sales
charge or discount with respect to Shares sold by them and redeemed, repurchased or tendered for redemption within seven (7) business days after the date of confirmation of such purchases.
H. Notwithstanding the
Distributor’s obligation to use best efforts to effect sales of Shares of the Funds, the Distributor shall not be obligated to sell any certain number of Shares.
I. The Distributor shall
prepare reports for each Fund’s Board regarding its activities under this Agreement as from time to time shall be reasonably requested by the applicable Fund’s Board.
J. The Distributor may
enter into agreements (“Subcontracts”) with qualified third parties to carry out some or all of the Distributor’s obligations under this Agreement, with
the prior written consent of the Funds, such consent not to be unreasonably withheld, and subject to this Section 2 hereof; provided that execution of a Subcontract shall not relieve the Distributor of any of its responsibilities hereunder.
K. The services furnished
by the Distributor hereunder are not to be deemed exclusive and the Distributor shall be free to furnish similar services to others so long as its services under this Agreement are not impaired thereby.
L. Notwithstanding anything
herein to the contrary, the Distributor shall not be required to register as a broker or dealer in any specific jurisdiction or to maintain its registration in any jurisdiction in which it is now registered, except that the Distributor shall
maintain its registration with FINRA at all times when this Agreement is in effect.
3. Representations,
Warranties and Covenants of the Funds.
A. Each Fund hereby
represents and warrants to the Distributor, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
| (i) |
it is duly organized and in good standing under the laws of its jurisdiction of incorporation/organization and is registered as a closed-end management investment
company under the 1940 Act;
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| (ii) |
this Agreement has been duly authorized, executed and delivered by the Fund and, when executed and delivered, will constitute a valid and legally binding obligation
of the Fund, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties;
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| (iii) |
it will conduct its business in compliance in all material respects with all applicable laws and regulations, both state and federal, and has obtained or will obtain
all regulatory approvals necessary to carry on its business as now conducted; there is no statute, rule, regulation, order or judgment binding on it and no provision of its operating agreement, bylaws, or any contract binding it or
affecting its property which would prohibit its execution or performance of this Agreement;
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| (iv) |
the Shares are validly authorized and, when issued in accordance with the description in the Prospectus, will be fully paid and nonassessable;
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| (v) |
to the best of its knowledge, the Registration Statement and Prospectus included therein have been prepared in conformity with the requirements of the 1933 Act and
the 1940 Act and the rules and regulations thereunder;
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| (vi) |
to the best of its knowledge, the Registration Statement and Prospectus and any Marketing Materials prepared by the Fund or its agents do not and shall not contain
any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that all statements or information furnished to the Distributor pursuant
to this Agreement shall be true and correct in all material respects;
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| (vii) |
the Fund owns, possesses, licenses or has other rights to use all patents, patent applications, trademarks and service marks, trademark and service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets, technology, know-how and other intellectual property (collectively, “Intellectual
Property”) necessary for or used in the conduct of the Fund’s business and for the offer, issuance, distribution and sale of the Fund Shares in accordance with the terms of the Prospectus and this Agreement, and such
Intellectual Property does not and will not breach or infringe the terms of any Intellectual Property owned, held or licensed by any third party; and
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| (viii) |
all necessary approvals, authorizations, consents or orders of or filings with any federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency have been or will be obtained by the Fund in connection with the issuance and sale of the Shares, including registration of the Shares under the 1933 Act, the filing with FINRA’s corporate financing department
through its Public Offering System, and any necessary qualification under the securities or blue sky laws of the various jurisdictions in which the Shares are being offered.
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B. Each Fund shall take, or
cause to be taken, all necessary action to register the Shares under the federal and all applicable state securities laws and to maintain an effective Registration Statement for such Shares in order to permit the sale of Shares as herein
contemplated. Each Fund authorizes the Distributor to use the Prospectus, in the form furnished to the Distributor from time to time, in connection with the sale of Shares.
C. Each Fund agrees to
advise the Distributor promptly in writing:
| (i) |
of any material correspondence or other communication by the Securities and Exchange Commission (the “SEC”) or its staff relating to the Fund, including requests by
the SEC for material amendments to the Registration Statement or Prospectus;
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| (ii) |
in the event of the issuance by the SEC of any stop-order suspending the effectiveness of the Registration Statement then in effect or the initiation of any
proceeding for that purpose;
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| (iii) |
of the happening of any event of which the Fund becomes aware which makes untrue any statement of a material fact made in the Prospectus or which requires the making
of a change in such Prospectus in order to make the statements therein not misleading;
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| (iv) |
of any amendments to the Fund’s Registration Statement or Prospectus which may from time to time be filed with the Securities and Exchange Commission (“SEC”);
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| (v) |
in the event that it determines to suspend the sale of Shares at any time in response to conditions in the securities markets or otherwise or to suspend the
repurchase of Shares of any Fund at any time as permitted by the 1940 Act or the rules of the SEC; and
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| (vi) |
of the commencement of any litigation or proceedings against the Fund or any of its officers or directors in connection with the issue and sale of any of the Shares.
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D. Each Fund shall file
such reports and other documents as may be required under applicable federal and state laws and regulations, including state blue sky laws, and shall notify the Distributor in writing of the states in which the Shares may be sold and of any
changes to such information.
E. Each Fund agrees to file
from time to time such amendments to its Registration Statement and Prospectus as may be necessary in order that its Registration Statement and Prospectus will not contain any untrue statement of material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not misleading.
F. Each Fund shall fully
cooperate in the efforts of the Distributor to arrange for the distribution of Shares. In addition, each Fund shall keep the Distributor fully informed of its affairs relating to the distribution of Shares, and shall provide to the Distributor
from time to time copies of all information, financial statements, and other papers that the Distributor may reasonably request for use in connection with the distribution of Shares, including, without limitation, certified copies of any
financial statements prepared for the Fund by its independent public accountants and such reasonable number of copies of the most current Prospectus, statement of additional information and annual and interim reports to shareholders as the
Distributor may request. Each Fund shall forward a copy of any SEC filings, including the Registration Statement, to the Distributor within three (3) business days of any such filings. Each Fund represents that it will not use or authorize the
use of any Marketing Materials unless and until such materials have been approved and authorized for use by the Distributor.
G. Each Fund shall provide,
and cause each other agent or service provider to the Fund, including the Fund’s transfer agent and investment adviser, to provide, to the Distributor in a timely and accurate manner all such information (and in such reasonable medium) that the
Distributor may reasonably request that may be necessary for the Distributor to perform its duties under this Agreement.
H. Each Fund shall not file
any amendment to the Registration Statement or Prospectus that amends any provision therein which pertains to the Distributor, the distribution of the Shares or public offering price without giving the Distributor reasonable advance notice
thereof; provided, however, that nothing contained in this Agreement shall in any way limit the Fund’s right to file at any time such amendments to the Registration Statement or Prospectus, of whatever character, as the Fund may deem advisable,
such right being in all respects absolute and unconditional.
I. Each Fund has adopted
reasonably designed policies and procedures pursuant to Title V of the Xxxxx-Xxxxx-Xxxxxx Act, as may be modified from time to time. In this regard, the Fund (and relevant agents) shall have in place and maintain physical, electronic and
procedural safeguards reasonably designed to protect the security, confidentiality and integrity of, and to prevent the unauthorized access to or use of, records and information relating to the Fund and the owners of the Shares.
4. Representations,
Warranties and Covenants of the Distributor.
A. The Distributor hereby
represents and warrants to each Fund, which representations and warranties shall be deemed to be continuing throughout the term of this Agreement, that:
| (i) |
it is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into
this Agreement and to perform its obligations hereunder;
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| (ii) |
this Agreement has been duly authorized, executed and delivered by the Distributor and, when executed and delivered, will constitute a valid and legally binding
obligation of the Distributor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties;
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| (iii) |
it is conducting its business in compliance in all material respects with all applicable laws and regulations, both state and federal, and has obtained all regulatory
approvals necessary to carry on its business as now conducted; there is no statute, rule, regulation, order or judgment binding on it and no provision of its charter, operating agreement or any contract binding it or affecting its property
which would prohibit its execution or performance of this Agreement; and
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| (iv) |
it is registered as a broker-dealer under the 1934 Act and is a member in good standing of FINRA.
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B. In connection with all
matters relating to this Agreement, the Distributor will comply with the applicable requirements of the 1933 Act, the 1934 Act, the 1940 Act, the regulations of FINRA and all other applicable federal or state laws and regulations to the extent
such laws, rules, and regulations relate to Distributor’s role as the principal underwriter of the Funds.
C. The Distributor shall
promptly notify the Funds of the commencement of any litigation or proceedings against the Distributor or any of its managers, officers or directors in connection with the issue and sale of any of the Shares.
5. Compensation.
The Distributor shall be entitled to no compensation or reimbursement of expenses for services provided by the Distributor pursuant to
this Agreement in connection with the offering of Shares. The Distributor may receive compensation from the Adviser related to its services
hereunder or for additional services all as may be agreed to between the Adviser and the Distributor.
6. Expenses.
A. Each Fund shall bear its
respective costs and expenses in connection with registration of the Shares with the SEC and the applicable states, as well as all costs and expenses in connection with the offering of the Shares and communications with its shareholders,
including but not limited to (i) fees and disbursements of its counsel and independent public accountants; (ii) costs and expenses of the preparation, filing, printing and mailing of Registration Statements and Prospectuses and amendments
thereto, as well as related Marketing Materials, (iii) costs and expenses of the preparation, printing and mailing of annual and interim reports, proxy materials and other communications to shareholders of the Fund; and (iv) fees required in
connection with the offer and sale of Shares in such jurisdictions as shall be selected by the Fund pursuant to Section 3(D) hereof.
B. 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. The Distributor does not assume responsibility for any
expenses not expressly assumed hereunder.
7. Indemnification.
A. Each Fund, severally and
not jointly, shall indemnify, defend and hold the Distributor, its affiliates and each of their respective members, managers, directors, officers, employees, representatives and any person who controls or previously controlled the Distributor
within the meaning of Section 15 of the 1933 Act (collectively, the “Distributor
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 reasonable counsel fees incurred in connection
therewith) (collectively, “Losses”) that any Distributor Indemnitee may incur under the 1933 Act, the 1934 Act, the 1940 Act any other statute (including Blue Sky laws) or any rule or regulation thereunder, or under common
law or otherwise, arising out of or relating to (i) the Distributor serving as principal underwriter of the Fund pursuant to this Agreement; (ii) the Fund’s
breach of any of its obligations, representations, warranties or covenants contained in this Agreement; (iii) the Fund’s failure to comply with any applicable
securities laws or regulations; or (iv) any claim that the Registration Statement, Prospectus, shareholder reports, Marketing Materials or other information filed or made public by the Fund (as from time to time amended) include or included an
untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading under the 1933 Act, or any other statute or the common law any violation of
any rule of FINRA or of the SEC or any other jurisdiction wherein Shares of the Fund are sold; provided, however, that the Fund’s obligation to indemnify any of
the Distributor 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 in the Registration Statement, Prospectus, annual or interim report, or any
such Marketing Materials in reliance upon and in conformity with information relating to the Distributor and furnished to the Fund or its counsel by the Distributor in writing and acknowledging the purpose of its use. In no event shall anything
contained herein be so construed as to protect the Distributor against any liability to the Fund or its shareholders to which the Distributor would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the
performance of its duties under this Agreement or by reason of its reckless disregard of its obligations under this Agreement.
Each Fund’s agreement to indemnify the Distributor Indemnitees with respect to any action is expressly conditioned upon the Fund being
notified of such action or claim of loss brought against any Distributor Indemnitee, 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 such Distributor
Indemnitee, unless the failure to give notice does not prejudice the Fund. Such notification shall be given by letter or by email addressed to the Fund’s President, but the failure so to notify the Fund of any such action shall not relieve the
Fund from any liability which the Fund may have to the person against whom such action is brought by reason of any such untrue, or alleged untrue, statement or omission, or alleged omission, otherwise than on account of the Fund’s indemnity
agreement contained in this Section 7(A).
B. Each 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 Losses, 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 Distributor Indemnitee(s) 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 or, if under prevailing law or legal codes of ethics, the same counsel cannot effectively represent the interests of both the Fund and the Distributor Indemnitee(s), the Fund will reimburse the Distributor Indemnitee(s) in such suit, for the
fees and expenses of any counsel retained by the Distributor and them. Each Fund’s indemnification agreement contained in Sections 7(A) and 7(B) shall remain operative and in full force and effect regardless of any investigation made by or on
behalf of the Distributor Indemnitee(s), 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 Distributor
Indemnitee.
C. The Distributor shall
indemnify, defend and hold each Fund, its affiliates, and each of their respective directors, officers, employees, representatives, and any person who controls or previously controlled the Fund within the meaning of Section 15 of the 1933 Act
(collectively, the “Fund Indemnitees”), free and harmless from and against any and all Losses that any Fund Indemnitee may incur under the 1933 Act, the 1934 Act, the 1940 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 (i) the Distributor’s breach of any of its obligations,
representations, warranties or covenants contained in this Agreement; (ii) the Distributor’s failure to comply with any applicable securities laws or regulations;
or (iii) any claim that the Registration Statement, Prospectus, Marketing Materials
or other information filed or made public by the Fund (as from time to time amended) include or included an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the
statements not misleading, insofar as such statement or omission was made in reliance upon, and in conformity with, information furnished to the Fund by the Distributor in writing . In no event shall anything contained herein be so construed as
to protect the Fund against any liability to the Distributor to which the Fund would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance of its duties under this Agreement or by reason of its
reckless disregard of its obligations under this Agreement.
The Distributor’s agreement to indemnify the Fund Indemnitees is expressly conditioned upon the Distributor’s being notified of any
action or claim of loss brought against a Fund Indemnitee, such notification to be given by letter or e-mail addressed to the Distributor’s Legal Department, 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 Indemnitee, unless the failure to give notice does not prejudice the Distributor. The failure so to notify the Distributor of any such action shall not relieve the Distributor from
any liability which the Distributor may have to the person against whom such action is brought by reason of any such untrue, or alleged untrue, statement or omission, otherwise than on account of the Distributor’s indemnity agreement contained in
this Section 7(C).
D. 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 Losses, 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 Indemnitee, 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 Fund Indemnitee(s) 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 or, if under prevailing law or legal codes of ethics, the same counsel cannot effectively represent the interests of both the Distributor and the Fund Indemnitee(s), the Distributor will reimburse the Fund Indemnitee(s)
in such suit, for the fees and expenses of any counsel retained by the Fund and them. The Distributor’s indemnification agreement contained in Sections 7(C) and (D) shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Fund Indemnitee(s), 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
Fund Indemnitee.
E. No person shall be
obligated to provide indemnification under this Section 7 if such indemnification would be impermissible under the 1940 Act, the 1933 Act, the 1934 Act or the rules of the FINRA; provided, however, in such event indemnification shall be provided
under this Section 7 to the maximum extent so permissible.
8. Dealer
Agreement Indemnification.
A. The Distributor
acknowledges and agrees that certain large and significant broker-dealers (all such brokers referred to herein as the “Brokers”), require that the
Distributor enter into dealer agreements (the “Non-Standard Dealer Agreements”) that contain certain representations, undertakings and indemnification that
are not included in the Standard Dealer Agreement.
B. To the extent that the
Distributor is requested or required by a Fund to enter into any Non-Standard Dealer Agreement, after review and approval by the Fund, the Fund shall indemnify, defend and hold the Distributor Indemnitees free and harmless from and against any
and all Losses that any Distributor Indemnitee may incur arising out of or relating to (a) the Distributor’s actions or failures to act pursuant to any Non-Standard Dealer Agreement to the extent such actions or failures to act relate to duties and obligations of the Distributor which are beyond the duties and obligations of the Distributor in the Standard Dealer Agreement; (b) any
representations made by the Distributor in any Non-Standard Dealer Agreement to the extent that the Distributor is not required to make substantially similar representations in the Standard Dealer Agreement; or (c) any indemnification provided by
the Distributor under a Non-Standard Dealer Agreement to the extent that such indemnification is beyond the indemnification the Distributor provides to intermediaries in the Standard Dealer Agreement. In no event shall anything contained herein
be so construed as to protect the Distributor Indemnitees against any liability to a Fund or its shareholders to which the Distributor Indemnitees would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the Distributor’s obligations or duties under the Non-Standard Dealer Agreement.
9. Limitations on Damages. Neither Party shall be liable for any consequential, special or indirect losses or damages suffered by the other Party, including but not
limited to lost revenues or profits, whether or not the likelihood of such losses or damages was known by the Party.
10. Force Majeure. Neither Party shall be liable for losses, delays, failure, errors, interruption or loss of data occurring directly or indirectly by reason of
circumstances beyond its reasonable control, including, without limitation, Acts of Nature (including fire, flood, earthquake, storm, hurricane or other natural disaster); action or inaction of civil or military authority; acts of foreign
enemies; war; terrorism; riot; insurrection; sabotage; epidemics; labor disputes; civil commotion; or interruption, loss or malfunction of utilities, transportation, computer or communications capabilities; provided, however, that in each
specific case such circumstance shall be beyond the reasonable control of the party seeking to apply this force majeure clause.
11. Duration
and Termination.
A. This Agreement shall
become effective on the Effective Date. Unless sooner terminated as provided herein, this Agreement shall continue in effect for two years from the date hereof. Thereafter, if not terminated, this Agreement shall continue automatically with
respect to a Fund for successive one-year periods, provided such continuance is specifically approved at least annually by (i) such Fund’s Board and by the majority of the Independent Directors or (ii) the vote of a majority of the outstanding
voting securities of such Fund, in accordance with Section 15 of the 1940 Act.
B. Notwithstanding the
foregoing, this Agreement may be terminated, without the payment of any penalty, by the Fund (i) through a failure to renew this Agreement at the end of a term or (ii) upon mutual consent of the parties. Further, this Agreement may be terminated
upon no less than 60 days’ written notice, by either a Fund through a vote of a majority of the Independent Directors or by vote of a majority of the outstanding voting securities of a Fund, or by the Distributor.
C. This Agreement will
terminate automatically in the event of its “assignment” as such term is defined in the 1940 Act and the rules thereunder.
12. Anti-Money
Laundering Compliance.
A. The Distributor and each
Fund acknowledge, to the extent applicable, that it is a financial institution subject to the USA PATRIOT Act of 2001 and the Bank Secrecy Act (collectively, the “AML
Acts”), which require, among other things, that financial institutions adopt compliance programs to guard against money laundering. Each Party represents and warrants to the other that it is in compliance with and will continue to
comply with the AML Acts and applicable regulations in all relevant respects.
B. The Distributor shall
include specific contractual provisions regarding anti-money laundering compliance obligations in agreements entered into by the Distributor with any broker-dealer or other financial intermediary that is authorized to effect transactions in
Shares.
C. The Distributor and each
Fund agrees that it will take such further steps, and cooperate with the other as may be reasonably necessary, to facilitate compliance with the AML Acts, including but not limited to the provision of copies of its written procedures, policies
and controls related thereto (“AML Operations”). The Distributor undertakes that it will grant to a Fund, a Fund’s anti-money laundering compliance
officer and appropriate regulatory agencies, reasonable access to copies of the Distributor’s AML Operations, and related books and records to the extent they pertain to the Distributor’s services hereunder. It is expressly understood and agreed
that the Fund and the Fund’s compliance officer shall have no access to any of the Distributor’s AML Operations, books or records pertaining to other clients or services of the Distributor.
13. Privacy. In accordance with Regulation S-P, the Distributor will not disclose any non-public personal information, as defined in Regulation S-P, received from the
Fund or any Fund regarding any Fund shareholder; provided, however, that the Distributor may disclose such information to any party as necessary in the ordinary course of business to carry out the purposes for which such information was disclosed
to the Distributor. The Distributor shall have in place and maintain physical, electronic and procedural safeguards reasonably designed to protect the security, confidentiality and integrity of, and to prevent unauthorized access to or use of,
records and information relating to consumers and customers of a Fund.
Each Fund represents to the Distributor that it has adopted a Statement of its privacy policies and practices as required by SEC
Regulation S-P and agrees to provide to the Distributor a copy of that statement annually. The Distributor agrees to use reasonable precautions to protect, and prevent the unintentional disclosure of, such non-public personal information.
14. Confidentiality. During the term of this Agreement, the Distributor and the Funds may have access to confidential information relating to such matters as either
party’s business, trade secrets, systems, procedures, manuals, products, contracts, personnel, and clients. As used in this Agreement, “Confidential Information”
means non-public or proprietary information belonging to the Distributor or the Funds which is of value to such party and the disclosure of which could result in a competitive or other disadvantage to either party, including, without limitation,
financial information, business practices and policies, know-how, trade secrets, market or sales information or plans, customer lists, business plans, all provisions of this Agreement, and Prospectuses and Marketing Materials prior to their
public filing. Confidential Information does not include: (i) information that was known to the receiving Party before receipt thereof from or on behalf of the Disclosing Party; (ii) information that is disclosed to the Receiving Party by a
third person who has a right to make such disclosure without any obligation of confidentiality to the Party seeking to enforce its rights under this Section; (iii) information that is or becomes generally known in the trade without violation of
this Agreement by the Receiving Party; or (iv) information that is independently developed by the Receiving Party or its employees or affiliates without reference to the Disclosing Party’s information.
Each party will protect the other’s Confidential Information with at least the same degree of care it uses with respect to its own
Confidential Information, and will not use the other party’s Confidential Information other than in connection with its obligations hereunder. Notwithstanding the foregoing, a party may disclose the other’s Confidential Information if (i) required
by law, regulation or legal process or if requested by any regulatory or self-regulatory agency; (ii) it is advised by counsel that it may incur liability for failure to make such disclosure; (iii) requested to by the other party; provided that in
the event of (i) or (ii) the disclosing party shall give the other party reasonable prior notice of such disclosure to the extent reasonably practicable and cooperate with the other party (at such other party’s expense) in any efforts to prevent
such disclosure. The parties agree that the procedures and restrictions set forth above shall not apply to disclosures of Confidential Information to applicable regulatory authorities in connection with routine regulatory examinations or requests
for information with respect to which a receiving party shall be permitted to disclose such Confidential Information to the extent necessary to respond to such examinations or requests and shall advise such regulatory authorities of the
confidential nature of the information.
15. Notices.
Any notice or other communication authorized or required by this Agreement to be given to either party shall be in writing and deemed to have been given
when delivered in person or by confirmed facsimile, electronic mail, or posted by certified mail, return receipt requested, to the following address (or such other address as a party may specify by written notice to the other):
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(i) To Distributor:
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(ii) To a Fund:
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Foreside Funds Distributors LLC
Attn: Xxxxx Xxxxxxxxxx
Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email:xxxxx@xxxxxxxx.xxx
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c/o Versus Capital Advisors LLC
Attn: Xxxx Xxxx
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Email: xxxxx@xxxxxxxxxxxxx.xxx
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16. Modifications. 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 Funds. If required under the 1940 Act, any such amendment must be approved by each Fund’s Board, including a majority of the Independent Directors, of any party to this Agreement, by vote cast in person at a
meeting for the purpose of voting on such amendment.
17. Governing Law. This Agreement shall be construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law principles thereof.
18. Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto and supersedes all prior communications, understandings and agreements
relating to the subject matter hereof, whether oral or written.
19. Survival. The provisions of Sections 5, 6, 7, 8, 9, 13, 14, 17, and 19 of this Agreement shall survive any termination of this Agreement.
20. Miscellaneous. The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect. Any provision of this Agreement which may be determined by competent authority to be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors. This Agreement shall be construed as if drafted jointly by both the Distributor and the Fund and no presumptions shall arise in
favor of any party by virtue of authorship of any provision of this Agreement. This Agreement has been negotiated and executed by the parties in English. In the event any translation of this Agreement is prepared for convenience or any other
purpose, the provisions of the English version shall prevail.
21. Counterparts. This Agreement may be executed by the Parties hereto in
any number of counterparts, and all of the counterparts taken together shall be deemed to constitute one and the same document.
22. Severability. This Agreement shall be in effect and apply to each Fund individually. Any duties or obligations of a Fund hereunder shall be construed to apply only
to each individual Fund. Any termination or breach of this Agreement with respect to a Fund or Funds shall not affect the applicability of this Agreement with respect to any other Fund or Funds.
23. Joinder. The parties agree to permit
other Funds to join as a party/parties to this Agreement and be included on Schedule A, provided that (i) all parties agree in writing and (ii) each such Fund agrees to be bound by, and shall have all rights and responsibilities under, the terms
and conditions of this Agreement, as reflected by its duly authorized signature on the form of joinder set forth on Schedule B hereto.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed by a duly authorized officer on one or more counterparts as of the date first above written.
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On behalf of each Fund
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By:
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Name: Xxxx Xxxx
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Title: President
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Foreside Funds Distributors LLC
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By:
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Name: Xxxx Xxxxxxxxx
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Title: Vice President
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SCHEDULE A
Funds
Versus Capital Multi-Manager Real Estate Income Fund LLC
SCHEDULE B
Form of Joinder
Pursuant to, and in accordance with Section 23 of the Distribution Agreement (the “Agreement”), dated [ ], 2021, by and among Foreside Funds
Distributors LLC and the Funds listed on Schedule A thereto, the undersigned Fund hereby acknowledges that such Fund has received and reviewed a complete copy of this Agreement and agrees that upon its execution of this Joinder, such Fund shall
become a party to the Agreement, be included on Schedule A, shall have all rights and responsibilities under the Agreement, and shall be fully bound by, and subject to, all of the covenants, terms, and conditions of the Agreement as though an
original party thereto, effective as of [DATE].
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On behalf of each Fund
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By:
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Name:
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Title:
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SEEN AND AGREED:
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Foreside Funds Distributors LLC
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By:
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Name: Xxxx Xxxxxxxxx
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Title: Vice President
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