FUND CCO AND AMLCO AGREEMENT
AGREEMENT made as of January 25, 2016 by and between THE COMMUNITY
DEVELOPMENT FUND, a Delaware statutory trust, with its principal office and
place of business at 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx, Xxxxxxx 00000 (the "Fund
Company"), and FORESIDE FUND OFFICER SERVICES, LLC, a Delaware limited
liability company, with its principal office and place of business at Three
Xxxxx Xxxxx, Xxxxxxxx, Xxxxx 00000 ("Foreside").
WHEREAS, the Fund Company is registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), as an open-end management investment
company and has created and issued shares in one or more series (each such
series a "Fund" and collectively, the "Funds"); and
WHEREAS, the Fund Company desires that Foreside perform certain
compliance services and Foreside is willing to provide those services on the
terms and conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt of which is hereby acknowledged, the Fund Company and Foreside hereby
agree as follows:
SECTION 1. PROVISION OF CCO AND AMLCO; DELIVERY OF DOCUMENTS
(a) Foreside hereby agrees to provide a Chief Compliance Officer
("CCO"), as described in Rule 38a-1 of the 1940 Act ("Rule 38a-1"), and an
Anti-Money Laundering Compliance Officer ("AMLCO") to the Fund Company for the
period and on the terms and conditions set forth in this Agreement.
(b) In connection therewith, the Fund Company has delivered to
Foreside copies of, and shall promptly furnish Foreside with all amendments of
or supplements to: (i) the Fund Company's Articles of Incorporation and Bylaws
(collectively, as amended from time to time, "Organizational Documents"); (ii)
the Fund Company's current Registration Statement, as amended or supplemented,
filed with the U.S. Securities and Exchange Commission ("SEC") pursuant to the
Securities Act of 1933, as amended (the "Securities Act"), and/or the 1940 Act
(the "Registration Statement"); (iii) the current Prospectus and Statement of
Additional Information (collectively, as currently in effect and as amended or
supplemented, the "Prospectus") in place for each of the Funds covered by this
Agreement; (iv) each plan of distribution or similar document that may be
adopted by the Fund Company under Rule 12b-1 under the 1940 Act and each
current shareholder service plan or similar document adopted by the Fund
Company with respect to any or all of its Funds; (v) copies of the Fund
Company's current annual and semi-annual reports to shareholders; and (vi) all
compliance and risk management policies, programs and procedures adopted by the
Fund Company with respect to the Funds. The
Fund Company shall deliver to Foreside a certified copy of the resolution of
the Board of Trustees of the Fund Company (the "Board") appointing the CCO and
AMLCO and authorizing the execution and delivery of this Agreement. In
addition, the Fund Company shall deliver, or cause to deliver, to Foreside upon
Foreside's reasonable request any other documents that would enable Foreside to
perform the services described in this Agreement.
SECTION 2. DUTIES OF FORESIDE
(a) Subject to the approval of the Board, Foreside shall make
available a qualified person who is competent and knowledgeable regarding the
federal securities laws to act as the Fund Company's CCO. Foreside's
responsibility for the activities of the CCO are limited to the extent that the
Board shall make all decisions regarding the designation and termination of the
CCO and shall review and approve the compensation of the CCO as provided by
Rule 38a-1.
(b) With respect to the Fund Company, the CCO shall:
(i) report directly to the Board;
(ii) review and administer the Fund Company's compliance program
policies and procedures and review and oversee those
policies and procedures of the adviser, administrator,
principal underwriter and transfer agent (collectively,
"Service Providers") that relate to the Fund Company or its
Funds;
(iii) conduct periodic reviews of the Fund Company's compliance
program and incorporate any new or changed regulations, best
practice recommendations or other guidelines that may be
appropriate;
(iv) review, no less frequently than annually, the adequacy of
the policies and procedures of the Fund Company and its
Service Providers and the effectiveness of their
implementation;
(v) design testing methods for the Fund Company's compliance
program policies and procedures;
(vi) perform and document periodic testing of certain key
control procedures (as appropriate to the circumstances),
including reviewing reports, investigating exceptions, and
making inquiries of Fund Company management and Service
Providers;
(vii) conduct periodic site visits to the adviser and other
Service Providers, as necessary;
(viii) prepare CCO Reports for the Board and attend Board meetings
quarterly and as requested; and
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(ix) no less than annually, meet separately with those members of
the Board that are not "interested persons" of the Fund
Company.
(c) Subject to the approval of the Board, Foreside shall make
available a qualified person, who is competent and knowledgeable regarding the
applicable anti-money laundering rules and regulations, to act as the Fund
Company's AMLCO.
(d) With respect to the Fund Company, the AMLCO shall:
(i) review the adequacy of the Fund Company's AML policies and
procedures and the effectiveness of their implementation;
(ii) perform testing of certain control procedures, including
collecting and organizing relevant data and reviewing
reports, investigating exceptions, and making inquiries of
Fund Company personnel and relevant Service Providers;
(iii) monitor and review AML responsibilities that have been
delegated to Service Providers; and
(iv) conduct site visits to appropriate Service Providers as
necessary.
(e) Foreside may provide other services and assistance relating to
the affairs of the Fund Company as the Fund Company may, from time to time,
request subject to mutually acceptable compensation and implementation
agreements.
(f) Foreside shall maintain records relating to its services, such as
compliance policies and procedures, relevant Board presentations, annual
reviews, and other records, as are required to be maintained under the 1940 Act
and Rule 38a-1 thereunder (collectively, the "Records"). Such Records shall be
maintained in the manner and for the periods as are required under such laws
and regulations. The Records shall be the property of the Fund Company. The
Fund Company, or the Fund Company's authorized representatives, shall have
access to the Records at all times during Foreside's normal business hours.
Upon the reasonable request of the Fund Company, copies of any of the Records
shall be provided promptly by Foreside to the Fund Company or its authorized
representatives at the Fund Company's expense.
(g) Nothing contained herein shall be construed to require Foreside
to perform any service that could cause Foreside to be deemed an investment
adviser for purposes of the 1940 Act or the Investment Advisers Act of 1940, as
amended, or that could cause any Fund to act in contravention of such Fund's
Prospectus or any provision of the 1940 Act. Further, while Foreside will
provide consulting and other services under this Agreement to assist the Fund
Company with respect to the Fund Company's obligations under and compliance
with various laws and regulations, Fund Company understands and agrees that
Foreside is not a law firm and that nothing contained herein shall be construed
to create an attorney-client relationship between Foreside and Fund Company or
to require Foreside to render legal advice or otherwise engage in the practice
of law in any jurisdiction. Thus, except with respect to Foreside's duties as
set forth in this Section 2 and, except as otherwise specifically provided
herein, the Fund Company
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assumes all responsibility for ensuring that the Fund Company and each of its
Funds complies with all applicable requirements of the Securities Act, the
Securities Exchange Act of 1934 (the "Exchange Act"), the 1940 Act and any
laws, rules and regulations of governmental authorities with jurisdiction over
the Fund Company or the Funds. All references to any law in this Agreement
shall be deemed to include reference to the applicable rules and regulations
promulgated under authority of the law and all official interpretations of such
law or rules or regulations.
(h) Foreside does not offer legal or accounting services and does not
provide substitute services for the services provided by legal counsel or that
of a certified public accountant. Foreside will make every reasonable effort to
provide the services described in this Agreement; however, Foreside does not
guarantee that work performed by Foreside or the CCO or AMLCO for the Fund
Company would be favorably received by any regulatory agency but they will
provide their reasonable efforts toward that goal.
(i) In order for Foreside to perform the services required by this
Section 2, the Fund Company shall (1) instruct all Service Providers to furnish
any and all information to Foreside as reasonably requested by Foreside, and
assist Foreside as may be required and (2) ensure that Foreside has access to
all records and documents maintained by the Fund Company or any Service
Provider.
SECTION 3. STANDARD OF CARE; LIMITATION OF LIABILITY; INDEMNIFICATION
(a) Foreside shall be under no duty to take any action except as
specifically set forth herein or as may be specifically agreed to by Foreside
in writing. Foreside shall use its best judgment and efforts in rendering the
services described in this Agreement and shall not be liable to the Fund
Company, any Fund or any of the Funds' stockholders for any action or inaction
of Foreside or the CCO or AMLCO relating to any event whatsoever in the absence
of bad faith, reckless disregard, gross negligence or willful misfeasance.
Further, neither Foreside nor the CCO or AMLCO shall be liable to the Fund
Company, any Fund or any of the Funds' stockholders for any action taken, or
failure to act, in good faith reliance upon: (i) the advice and opinion of Fund
Company counsel; and/or (ii) any certified copy of any resolution of the Board.
Neither Foreside nor the CCO or AMLCO shall be under any duty or obligation to
inquire into the validity or invalidity or authority or lack thereof of any
statement, oral or written instruction, resolution, signature, request, letter
of transmittal, certificate, opinion of counsel, instrument, report, notice,
consent, order, or any other document or instrument which Foreside and/or the
CCO and/or the AMLCO reasonably believe in good faith to be genuine.
(b) Except for the disclaimer in the following paragraph, the Fund
Company agrees to indemnify and hold harmless Foreside, its affiliates and each
of their respective directors, officers, employees and agents and any person
who controls Foreside within the meaning of Section 15 of the Securities Act
(any of Foreside, its affiliates, their respective officers, employees, agents
and directors or such control persons, for purposes of this paragraph, a
"Foreside Indemnitee") against any loss, liability, claim, damages or expense
(including the
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reasonable cost of investigating or defending any alleged loss, liability,
claim, damages or expense and reasonable counsel fees incurred in connection
therewith) arising out of or based upon (i) Foreside's performance of its
duties under this Agreement, or (ii) the breach of any obligation,
representation or warranty under this Agreement by the Fund Company.
In no case (i) is the indemnity of the Fund Company in favor of any
Foreside Indemnitee to be deemed to protect the Foreside Indemnitee against any
liability to which the Foreside Indemnitee would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of its
duties or by reason of its reckless disregard of its obligations and duties
under this Agreement, or (ii) is the Fund Company to be liable with respect to
any claim made against any Foreside Indemnitee unless the Foreside Indemnitee
notifies the Fund Company in writing of the claim within a reasonable time
after the summons or other first written notification giving information of the
nature of the claim are served upon the Foreside Indemnitee (or after the
Foreside Indemnitee receives notice of service on any designated agent).
Failure to notify the Fund Company of any claim shall not relieve the
Fund Company from any liability that it may have to any Foreside Indemnitee
unless failure or delay to so notify the Fund Company prejudices the Fund
Company's ability to defend against such claim. The Fund Company 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 claims, but if the
Fund Company elects to assume the defense, the defense shall be conducted by
counsel chosen by it and satisfactory to the Foreside Indemnitee, defendant or
defendants in the suit. In the event the Fund Company elects to assume the
defense of any suit and retain counsel, the Foreside Indemnitee, defendant or
defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them provided that Foreside has been reasonably notified in
advance. If the Fund Company does not elect to assume the defense of any suit,
it will reimburse the Foreside Indemnitee, defendant or defendants in the suit,
for the reasonable fees and expenses of any counsel retained by them provided
that the Fund Company has been reasonably notified in advance.
(c) Except for the disclaimer in the following paragraph, Foreside
agrees to indemnify and hold harmless the Fund Company and each of its Trustees
and officers and any person who controls the Fund Company within the meaning of
Section 15 of the Securities Act (for purposes of this paragraph, the Fund
Company and each of its Trustees and officers and its controlling persons are
collectively referred to as the "Fund Indemnitees") against any loss,
liability, claim, damages or expense (including the reasonable cost of
investigating or defending any alleged loss, liability, claim, damages or
expense and reasonable counsel fees incurred in connection therewith) arising
out of or based upon (i) the breach of any obligation, representation or
warranty under this Agreement by Foreside, or (ii) Foreside's failure to comply
in any material respect with applicable securities laws.
In no case (i) is the indemnity of Foreside in favor of any Fund
Indemnitee to be deemed to protect any Fund Indemnitee against any liability to
which such Fund Indemnitee would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of its duties or
by reason of its reckless disregard of its obligations and duties under this
Agreement, or (ii) is Foreside to be liable under its indemnity agreement
contained in this
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paragraph with respect to any claim made against any Fund Indemnitee unless the
Fund Indemnitee notifies Foreside in writing of the claim within a reasonable
time after the summons or other first written notification giving information
of the nature of the claim are served upon the Fund Indemnitee (or after the
Fund Indemnitee has received notice of service on any designated agent).
Failure to notify Foreside of any claim shall not relieve Foreside
from any liability that it may have to the Fund Indemnitee against whom such
action is brought unless failure or delay to so notify Foreside prejudices
Foreside's ability to defend against such claim. Foreside 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 the claim, but if Foreside elects to
assume the defense, the defense shall be conducted by counsel chosen by it and
satisfactory to the Fund Indemnitee, defendant or defendants in the suit. In
the event that Foreside elects to assume the defense of any suit and retain
counsel, the Fund Indemnitee, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them provided the
Fund Company has been reasonably notified in advance. If Foreside does not
elect to assume the defense of any suit, it will reimburse the Fund Indemnitee,
defendant or defendants in the suit, for the reasonable fees and expenses of
any counsel retained by them provided that Foreside has been reasonably
notified in advance.
(d) No indemnified party shall settle any claim against it for which
it intends to seek indemnification from the indemnifying party, under the terms
of Section 3(b) or 3(c) above, without prior written notice to and consent from
the indemnifying party, which consent shall not be unreasonably withheld. No
indemnified or indemnifying party shall settle any claim unless the settlement
contains a full release of liability with respect to the other party in respect
of such action.
(e) The Fund Company, and not Foreside, shall be solely responsible
for approval of the designation of the CCO and the AMLCO, as well as for
removing the CCO and/or the AMLCO, as the case may be, from his or her
responsibilities related to the Funds in accordance with Rule 38a-1. Therefore,
notwithstanding the provisions of this Section 3, the Fund Company shall
supervise the activities of the CCO and the AMLCO with regard to such
activities.
(f) The Fund Company agrees that Foreside, its employees, officers
and directors shall not be liable to the Fund Company for any actions, damages,
claims, liabilities, costs, expenses or losses in any way arising out of or
relating to the services described in this Agreement for an aggregate amount in
excess of the higher of (i) one-hundred fifty thousand dollars ($150,000) or
(ii) fees paid to Foreside in performing services hereunder for the life of the
Agreement. The provisions of this paragraph shall apply regardless of the form
of action, damage, claim, liability, cost, expense or loss, whether in
contract, statute, tort (including, without limitation, negligence) or
otherwise.
In no event shall either party or their respective employees,
officers and trustees be liable for consequential, special, indirect,
incidental, punitive or exemplary damages, costs, expenses or losses
(including, without limitation, lost profits and opportunity costs or fines).
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(g) Foreside shall not be liable for the errors of service providers
to the Fund Company or their systems.
SECTION 4. REPRESENTATIONS AND WARRANTIES
(a) Foreside covenants, represents and warrants to the Fund Company
that:
(i) it is a limited liability company duly organized and in
good standing under the laws of the State of Delaware;
(ii) it is duly qualified to carry on its business in the State
of Maine;
(iii) it is empowered under applicable laws and by its Operating
Agreement to enter into this Agreement and perform its
duties under this Agreement;
(iv) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement and perform its
duties under this Agreement;
(v) it has access to the necessary facilities, equipment, and
personnel with the requisite knowledge and experience to
assist the CCO and the AMLCO in the performance of his or
her duties and obligations under this Agreement;
(vi) this Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of
Foreside, enforceable against Foreside 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;
(vii) it shall make available a person who is competent and
knowledgeable regarding the federal securities laws and is
otherwise reasonably qualified to act as a CCO and who will,
in the exercise of his or her duties to the Fund Company,
act in good faith and in a manner reasonably believed by him
or her to be in the best interests of the Funds;
(viii) it shall make available a person who is competent and
knowledgeable regarding the federal securities laws and is
otherwise reasonably qualified to act as an AMLCO;
(ix) it shall compensate the CCO fairly, subject to the Board's
right under any applicable regulation (e.g., Rule 38a-1) to
approve the designation, termination and level of
compensation of the CCO. In addition, it shall not retaliate
against the CCO should the CCO inform the Board of a
compliance failure or take aggressive action to ensure
compliance with the federal securities laws by the Fund
Company or a Service Provider;
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(x) it shall report to the Board promptly if it learns of CCO
or AMLCO malfeasance or in the event the CCO or AMLCO is
terminated as a CCO or AMLCO, as the case may be, by another
fund company for cause or if the CCO or AMLCO is terminated
by Foreside; and
(xi) it shall report to the Board if at any time the CCO or the
AMLCO, as the case may be, is/are subject to the
disqualifications set forth in Section 15(b)(4) of the
Exchange Act or Section 9 of the 1940 Act.
(b) The Fund Company covenants, represents and warrants to Foreside
that:
(i) it is a statutory trust duly organized and in good standing
under the laws of the State of Delaware;
(ii) it is empowered under applicable laws and by its
Organizational Documents to enter into this Agreement and
perform its duties under this Agreement;
(iii) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement and perform its
duties under this Agreement;
(iv) it is an open-end management investment company registered
under the 1940 Act;
(v) this Agreement, when executed and delivered, will
constitute a legal, valid and binding obligation of the Fund
Company, enforceable against the Fund Company 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;
(vi) a registration statement under the Securities Act and the
1940 Act will be effective and will remain effective and
appropriate State securities law filings have been made and
will continue to be made with respect to the Funds;
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(vii) The CCO and AMLCO shall be covered by the Fund Company's
Directors & Officers Liability Insurance Policy (the
"Policy"), and the Fund Company shall use reasonable efforts
to ensure that such coverage be (a) reinstated should the
Policy be cancelled; (b) continued after the CCO or AMLCO
ceases to serve as an officer of the Fund Company on
substantially the same terms as such coverage is provided
for all other Fund Company officers after such persons are
no longer officers of the Fund Company; and (c) continued in
the event the Fund Company merges or terminates, on
substantially the same terms as such coverage is provided
for all other Fund Company officers (and for a period of no
less than six years). The Fund Company shall provide
Foreside with proof of current coverage, including a copy of
the Policy, and shall notify Foreside immediately should the
Policy be cancelled or terminated; and
(viii) the CCO and AMLCO are named officers in the Fund Company's
corporate resolutions and subject to the provisions of the
Fund Company's Organizational Documents regarding
indemnification of its officers.
SECTION 5. COMPENSATION AND EXPENSES
(a) In consideration of the compliance services provided by Foreside
pursuant to this Agreement, the Fund Company shall pay Foreside the fees and
expenses set forth in APPENDIX A hereto.
Except as otherwise set forth in APPENDIX A hereto, all fees payable
hereunder shall be accrued daily by the Fund Company and shall be payable
monthly in arrears on the first business day of each calendar month for
services performed during the prior calendar month. All reasonable, direct and
non-allocated out-of-pocket charges incurred by Foreside shall be paid as
incurred provided such expenses are billed at cost, and shall not be above
$1,000 individually or $4,000 in the aggregate per year, unless approved by
Xxxxxxx Xxxxxx in writing (including email). If fees begin to accrue in the
middle of a month or if this Agreement terminates before the end of any month,
all fees for the period from that date to the end of that month or from the
beginning of that month to the date of termination, as the case may be, shall
be prorated according to the proportion that the period bears to the full month
in which the effectiveness or termination occurs. Upon the termination of this
Agreement, the Fund Company shall pay to Foreside such compensation as shall be
due and payable as of the effective date of termination.
(b) Foreside may, with respect to questions of law relating to its
services hereunder, apply to and obtain the advice and opinion of Fund Company
counsel. The costs of any such advice or opinion shall be borne by the Fund
Company.
(c) The CCO and AMLCO are serving solely as officers of the Fund
Company and neither Foreside nor the CCO or AMLCO shall be responsible for, or
have any obligation to pay, any of the expenses of the Fund Company or any of
its Funds. All Fund Company expenses shall be the sole obligation of the Fund
Company, which shall pay or cause to be paid all Fund expenses.
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SECTION 6. EFFECTIVENESS, DURATION, TERMINATION AND ASSIGNMENT
(a) This Agreement shall become effective on the date indicated above
or at such time as Foreside commences providing services under this Agreement,
whichever is later (the "Effective Date"). Upon the Effective Date, this
Agreement shall constitute the entire agreement between the parties and shall
supersede all previous agreements between the parties, whether oral or written,
relating to the Fund Company.
(b) This Agreement shall continue in effect until terminated in
accordance with the provisions hereof.
(c) This Agreement may be terminated at any time, without the payment
of any penalty by either party on sixty (60) days' written notice. This
termination may be (i) by the Board on sixty (60) days' written notice to
Foreside or (ii) by Foreside on sixty (60) days' written notice to the Fund
Company, provided, however, that the Board will have the right and authority to
remove the individual designated by Foreside as the Fund Company's CCO or the
individual designated by Foreside as the Fund Company's AMLCO at any time, with
or without cause, without payment of any penalty. In this case, Foreside will
designate another employee of Foreside, subject to approval of the Board and
the Independent Trustees, to serve as temporary CCO or as temporary AMLCO until
the earlier of: (i) the designation of a new permanent CCO or a new permanent
AMLO; or (ii) the termination of this Agreement.
(d) Should the employment of the individual designated by Foreside to
serve as the Fund Company's CCO be terminated for any reason, Foreside will
immediately designate another qualified individual, subject to ratification by
the Board and the Independent Trustees, to serve as temporary CCO until the
earlier of: (i) the designation, and approval by the Board, of a new permanent
CCO; or (ii) the termination of this Agreement.
(e) The provisions of Sections 3, 6(e), 7, 10, 11, and 12 shall
survive any termination of this Agreement.
(f) This Agreement and the rights and duties under this Agreement
shall not be assignable by either Foreside or the Fund Company except by the
specific written consent of the other party. All terms and provisions of this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the respective successors and permitted assigns of the parties hereto.
SECTION 7. CONFIDENTIALITY
Each party shall comply with the laws and regulations applicable to
it in connection with its use of confidential information, including, without
limitation, Regulation S-P (if applicable). Foreside agrees to treat all
records and other information related to the Fund Company as proprietary
information of the Fund Company and, on behalf of itself and its employees, to
keep
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confidential all such information, except that Foreside may release such other
information (a) as approved in writing by the Fund Company, which approval
shall not be unreasonably withheld and may not be withheld where Foreside is
advised by counsel that it may be exposed to civil or criminal contempt
proceedings for failure to release the information (provided, however, that
Foreside shall seek the approval of the Fund Company as promptly as possible so
as to enable the Fund Company to pursue such legal or other action as it may
desire to prevent the release of such information) or (b) when so requested by
the Fund Company.
SECTION 8. FORCE MAJEURE
Foreside shall not be responsible or liable for any failure or delay
in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control
including, without limitation, acts of civil or military authority, national
emergencies, fire, mechanical breakdowns, flood or catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
system or power supply. In addition, to the extent Foreside's obligations
hereunder are to oversee or monitor the activities of third parties, Foreside
shall not be liable for any failure or delay in the performance of Foreside's
duties caused, directly or indirectly, by the failure or delay of such third
parties in performing their respective duties or cooperating reasonably and in
a timely manner with Foreside.
SECTION 9. ACTIVITIES OF FORESIDE
(a) Except to the extent necessary to perform Foreside's obligations
under this Agreement, nothing herein shall be deemed to limit or restrict
Foreside's right, or the right of any of Foreside's managers, officers or
employees who also may be a director, trustee, officer or employee of the Fund
Company (including, without limitation, the CCO and AMLCO), or who are
otherwise affiliated persons of the Fund Company, to engage in any other
business or to devote time and attention to the management or other aspects of
any other business, whether of a similar or dissimilar nature, or to render
services of any kind to any other corporation, trust, firm, individual or
association.
(b) Upon at least thirty (30) days' prior written approval by the
Fund Company, Foreside may subcontract any or all of its functions or
responsibilities pursuant to this Agreement to one or more persons, which may
be affiliated persons of Foreside who agree to comply with the terms of this
Agreement; provided, that any such subcontracting shall not relieve Foreside of
its responsibilities hereunder. Foreside may pay those persons for their
services, but no such payment will increase Foreside's compensation or
reimbursement of expenses from the Fund Company.
SECTION 10. COOPERATION WITH INDEPENDENT PUBLIC ACCOUNTANTS
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Foreside shall cooperate with the Fund Company's independent public
accountants and shall take reasonable action to make all necessary information
available to the accountants for the performance of such accountants' duties.
SECTION 11. LIMITATION OF STOCKHOLDER AND TRUSTEE LIABILITY
The Trustees of the Fund Company and the stockholders of the Funds
shall not be liable for any obligations of the Fund Company under this
Agreement, and Foreside agrees that, in asserting any rights or claims under
this Agreement, it shall look only to the assets and property of the Fund
Company and the Funds.
SECTION 12. MISCELLANEOUS
(a) This Agreement shall be governed by, and the provisions of this
Agreement shall be construed and interpreted under and in accordance with, the
laws of the State of Delaware, without regard to the conflict of laws
provisions thereof.
(b) 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 instrument.
(c) If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion
or portions shall be considered severable and not be affected, and the rights
and obligations of the parties shall be construed and enforced as if the
Agreement did not contain the particular part, term or provision held to be
illegal or invalid. This Agreement shall be construed as if drafted jointly by
both Foreside and Fund Company and no presumptions shall arise favoring any
party by virtue of authorship of any provision of this Agreement.
(d) Section headings in this Agreement are included for convenience
only and are not to be used to construe or interpret this Agreement.
(e) Any notice required or permitted to be given hereunder by either
party to the other shall be deemed sufficiently given if in writing and
personally delivered or sent by facsimile or registered, certified or overnight
mail, postage prepaid, addressed by the party giving such notice to the other
party at the address furnished below unless and until changed by Foreside or
the Fund Company, as the case may be. Notice shall be given to each party at
the following address:
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(i) TO FORESIDE: (ii) TO FUND COMPANY:
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Foreside Fund Officer Services, The Community Development Fund
LLC Three Canal Plaza, Suite 100 0000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
Attention: Legal Department Attention: President
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
--------------------------------------------------------------------------------
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(f) Invoices for fees and expenses due to Foreside hereunder and as
set forth in APPENDIX A hereto shall be sent by Foreside to the address
furnished below unless and until changed by the Fund Company (Fund Company to
provide reasonable advance notice of any change of billing address to
Foreside):
The Community Development Fund
Attn: Xxxxxxx X. Xxxxxx, Ph.D.
Address: 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxx, XX 00000
Phone: (000) 000-0000
Fax:(000) 000-0000
Email: xxx@xxxxxxxxxxxxxxxxxxxxxxxx.xxx and xxx@xxxxxxxxxxx.xxx
(g) Nothing contained in this Agreement is intended to or shall
require Foreside, in any capacity hereunder, to perform any functions or duties
on any day other than a Fund Company business day. Functions or duties normally
scheduled to be performed on any day which is not a Fund Company business day
shall be performed on, and as of, the next Fund Company business day, unless
otherwise required by law.
(h) The term "affiliate" and all forms thereof used herein shall have
the meanings ascribed thereto in the 1940 Act.
(i) No amendment to this Agreement shall be valid unless made in
writing and executed by all parties hereto.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
THE COMMUNITY DEVELOPMENT FUND
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx, Ph.D.
Title: President
FORESIDE FUND OFFICER SERVICES, LLC
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Xxxxxxx X. Xxxx, President
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APPENDIX A
FORESIDE COMPENSATION
[REDACTED]
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