DISTRIBUTION SERVICES AGREEMENT
THIS AGREEMENT made this 25TH day of January, 2016, by and between
Community Development Fund Advisors, LLC (the "Adviser"), and Foreside Fund
Services, LLC a Delaware limited liability company (the "Distributor").
WHEREAS, pursuant to a distribution agreement by and between the
Distributor and The Community Development Fund, a Delaware statutory trust (the
"Trust") dated as of 1-25-16 (the "Distribution Agreement"), the
Distributor acts as the principal underwriter and distributor of shares of
certain series (the "Funds") of the Trust, as listed in Exhibit A to the
Distribution Agreement;
WHEREAS, the Adviser serves as investment adviser for the Funds, open-end
investment companies registered with the Securities and Exchange Commission
("SEC") under the Investment Company Act of 1940, as amended (the " 1940 Act");
and
WHEREAS, in consideration of Distributor's agreement to provide certain
distribution services as described in the Distribution Agreement, the Adviser
has agreed to compensate the Distributor to the extent that the Funds are not
authorized to so compensate the Distributor.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration the receipt of which
is hereby acknowledged, the Adviser and the Distributor hereby agree as follows:
1. SERVICES.
Distributor will provide the Funds and the Adviser with the distribution
support services set forth in the Distribution Agreement, which is attached
hereto as Exhibit A.
2. COMPENSATION AND EXPENSES.
The Distributor shall be entitled to receive the compensation set forth in
Exhibit B.
3. TERM AND TERMINATION.
(a) This Agreement will become effective upon the date first set forth
above, will continue in effect throughout the term of the Distribution
Agreement, which is one (1) year, and will terminate automatically upon any
termination of the Distribution Agreement; provided, however, that,
notwithstanding such termination of the Distribution Agreement, the Adviser will
continue to pay to Distributor all fees to which Distributor is entitled
pursuant to the Distribution Agreement for services performed through such
termination date.
This Agreement may be terminated without penalty by the Adviser upon 60
days' written notice provided that prior to or on such termination date, the
Adviser pay to Distributor all compensation due as of such termination date.
4. RIGHTS AND OBLIGATIONS OF THE ADVISER AND THE DISTRIBUTOR.
The Adviser shall be responsible for the accuracy and completeness of
information concerning its organization and sales channels that the Adviser
furnishes to the Distributor in connection with the Distributor's provision of
services pursuant to the Distribution Agreement.
5. REPRESENTATIONS AND WARRANTIES.
(a) The Adviser represents and warrants the following:
(i) this Agreement has been duly authorized by the Adviser and, when
executed and delivered, will constitute a legal, valid and binding
obligation of the Adviser, enforceable against it in accordance with its
terms subject to bankruptcy, insolvency, reorganizations, moratorium and
other laws of general application affecting the rights and remedies of
creditors and secured parties;
(ii) the contractual advisory fees that the Adviser charges the Trust
do not contain any component for the purpose of paying for fund
distribution; and
(iii) the Adviser will pay, or cause one of its affiliates to pay, to
financial intermediaries, or will reimburse the Distributor in advance in
full for the payment to financial intermediaries of, any and all upfront
commissions on sales of Shares as set forth in the Registration Statement,
including the Prospectus, filed with the SEC and in effect at the time of
sale of such Shares; and
(iv) this Agreement has been disclosed to the Board of Trustees of the
Funds (the "Board"), and the Adviser has provided all such information to
the Board as may be appropriate (or as has been requested by the Board) in
connection with the Board's review or approval of the arrangements
contemplated hereunder, including amounts expended by the Adviser
hereunder.
(b) The Distributor represents and warrants the following:
(i) it is a duly registered broker-dealer in good standing with FINRA,
and shall immediately notify the Adviser should the foregoing no longer be
true during the term of this Agreement;
(ii) it is in material compliance with all laws, rules and regulations
applicable to it, including but not limited to the rules and regulations
promulgated by FINRA;
(iii) this Agreement has been duly authorized by the Distributor and,
when executed and delivered, will constitute a legal, valid and binding
obligation of the Distributor, enforceable against the Distributor in
accordance with its terms subject to bankruptcy, insolvency,
reorganizations, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties.
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6. CONFIDENTIALITY.
During the term of this Agreement, the Distributor and the Adviser may have
access to confidential information relating to matters such as either party's
business, procedures, personnel, and clients. As used in this Agreement,
"Confidential Information" means information belonging to the Distributor or the
Adviser which is of value to such party and the disclosure of which could result
in a competitive or other disadvantage to the non-disclosing party, including,
without limitation, financial information, business practices and policies,
knowhow, trade secrets, market or sales information or plans, customer lists,
business plans, and all provisions of this Agreement. Confidential Information
includes information developed by either party in the course of engaging in the
activities provided for in this Agreement, unless: (i) the information is or
becomes publicly known without breach of this Agreement, (ii) the information is
disclosed to the other party by a third party not under an obligation
confidentiality to the party whose Confidential Information is at issue of which
the party receiving the information should reasonably be aware, or (iii) the
information is independently developed by a party without reference to the
other's Confidential 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 duties and
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 agency with jurisdiction over the
Distributor, the Fund or the Adviser; (ii) it is advised by counsel that it may
incur liability for failure to make such disclosure as long as Adviser has been
reasonably notified in advance; or (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 shall reasonably cooperate with the other party (at such other
party's expense) in any efforts to prevent such disclosure.
In the event of any unauthorized use or disclosure by a party of any
Confidential Information of the other party, the disclosing party shall promptly
(i) notify the other party of the unauthorized use or disclosure; (ii) take all
reasonable actions to limit the adverse effect on the other party of such
unauthorized use or disclosure; and (iii) take all reasonable action to protect
against a recurrence of the unauthorized use or disclosure.
7. LIMITATION OF LIABILITY; INDEMNIFICATION.
The Distributor shall not be liable to the Adviser or the Funds for any
action taken or omitted by it in the absence of bad faith, willful misfeasance,
gross negligence or reckless disregard by it (or its agents or employees) of its
obligations and duties under this Agreement or the Distribution Agreement. The
Adviser shall indemnify and hold harmless the Distributor, its affiliates and
each of their respective employees, agents, directors and officers from and
against, any and all claims, demands, actions and suits, and from and against
any and all judgments, liabilities, losses, damages, costs, charges and
reasonable counsel fees incurred in connection therewith (collectively,
"Losses") arising out of or related to the arrangement contemplated under this
Agreement and/or the Distribution Agreement, except to the extent that Losses
result from the Distributor's bad faith, willful misfeasance, or gross
negligence or its reckless disregard of its express obligations and duties
hereunder and/or under the Distribution Agreement.
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The Adviser shall not be liable to the Distributor for any action taken or
omitted by it in the absence of bad faith, willful misfeasance, gross negligence
or reckless disregard by it (or its agents or employees) of its obligations and
duties under this Agreement. The Distributor shall indemnify and hold harmless
the Adviser, its affiliates and each of their respective employees, agents,
directors and officers from and against, any and all Losses arising out of or
related to the arrangement contemplated under this Agreement, except to the
extent that Losses result from the Adviser's bad faith, willful misfeasance, or
gross negligence or its reckless disregard of its express obligations and duties
hereunder.
8. NOTICES.
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Adviser, to it at 0000 Xxxxxxx Xxxxx Xxxxx,
Xxxxx, Xxxxxxx 00000, Attention: President and if to Distributor, to it at Three
Xxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxx 00000, Attention: Legal Department, or
at such other address as such party may from time to time specify in writing to
the other party pursuant to this Section.
9. ASSIGNMENT.
This Agreement and the rights and duties hereunder shall not be assignable
with respect to a Fund by either of the parties hereto except by the specific
written consent of the other party. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns.
10. GOVERNING LAW.
This Agreement shall be governed by, and interpreted in accordance with,
the laws of the State of Delaware.
11. MISCELLANEOUS.
(a) Paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(b) This Agreement constitutes the complete agreement of the parties hereto
as to the subject matter covered by this Agreement, and supersedes all prior
negotiations, understandings and agreements bearing upon the subject matter
covered by this Agreement.
(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 this Agreement
did not contain such part, term or provision.
(d) This Agreement may be executed in counterparts, each of which shall be
an original but all of which, taken together, shall constitute one and the same
agreement.
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(e) No amendment to this Agreement shall be valid unless made in writing
and executed by both parties hereto.
(f) Invoices for fees and expenses due to Distributor hereunder and as set
forth in Exhibit B hereto shall be sent by Distributor to the address furnished
below unless and until changed by Adviser (Adviser to provide reasonable advance
notice of any change of billing address to Distributor):
Xxxxxxx X. Xxxxxx, Ph.D.
Community Development Fund Advisors, LLC
0000 Xxxxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
Phone: 000-000-0000
Email: Xxx@XxxxxxxxxXxxxxxxxxxxXxxx.xxx
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
COMMUNITY DEVELOPMENT FUND FORESIDE FUND SERVICES, LLC
ADVISORS, LLC
By: /S/ XXXXXXX X. XXXXXX, PH.D. BY: /S/ XXXX XXXXXXXXX
---------------------------- ----------------------
Xxxxxxx X. Xxxxxx, Ph.D., President Xxxx Xxxxxxxxx, Vice President
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EXHIBIT A
DISTRIBUTION AGREEMENT
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EXHIBIT B
COMPENSATION
DISTRIBUTION SERVICES FEES
[REDACTED]
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