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Exhibit 6
DISTRIBUTION AGREEMENT
AGREEMENT made this 16th day of January, 1997, between FIVE ARROWS
SHORT-TERM INVESTMENT TRUST (the "Trust"), a Delaware business trust and FIVE
ARROWS FUND DISTRIBUTORS, INC. ("Distributor"), a Delaware corporation.
WHEREAS, Distributor is an affiliate of BISYS Fund Services Limited
Partnership, BISYS Fund Services, Inc. and BISYS Fund Services (Ireland) Limited
(each such entity and any other entity hereafter providing services under a
BISYS Agreement (as defined below) is hereinafter referred to a "BISYS Entity");
WHEREAS, concurrently herewith, Distributor and the other BISYS
Entities are entering into other agreements to provide services to the Trust,
The International Currency Fund, and Five Arrows Cash Management Fund PLC (such
agreements and any other comparable agreements in effect from time to time being
referred to collectively as the "BISYS Agreements");
WHEREAS, the Trust is an open-end management investment company,
organized as a Delaware business trust and registered with the Securities and
Exchange Commission (the "Commission") under the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, it is intended that Distributor act as the distributor of the
units of beneficial interest ("Shares") of each of the investment portfolios of
the Trust, either now or hereafter created (such portfolios being referred to
individually as a "Fund" and collectively as the "Funds").
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein set forth, the parties agree as follows:
1. SERVICES AS DISTRIBUTOR.
1.1 Distributor will act as agent for the distribution of the
Shares covered by the registration statement of the Trust then in effect under
the Securities Act of 1933, as amended (the "Securities Act"). As used in this
Agreement, the term "registration statement" shall mean Parts A (the
Prospectus), B (the Statement of Additional Information) and C of each
registration statement that is filed on Form N-1A, or any successor thereto,
with the Commission, together with any amendments thereto. The term "Prospectus"
shall mean each form of prospectus and Statement of Additional Information used
by the Funds for delivery to shareholders and prospective shareholders after the
effective dates of the above referenced registration statements, together with
any amendments and supplements thereto. The Distributor hereby agrees to act as
agent for the Trust in connection with any share repurchase arrangements from
time to time offered by the Trust in accordance with the terms of the Trust's
registration statement as from time to time amended.
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1.2 Distributor agrees to use appropriate efforts to solicit
orders for the sale of the Shares and will undertake such advertising and
promotion as it believes reasonable in connection with such solicitation. The
Trust understands that Distributor is now and may in the future be the
distributor of the shares of several investment companies or series (together,
"Companies") including Companies having investment objectives similar to those
of the Trust. The Trust further understands that investors and potential
investors in the Trust may invest in shares of such other Companies. The Trust
agrees that Distributor's duties to such Companies shall not be deemed in
conflict with its duties to the Trust under this paragraph 1.2.
Distributor shall, at its own expense, finance
appropriate activities which it deems reasonable, which are primarily intended
to result in the sale of the Shares, including, but not limited to, advertising,
compensation of underwriters, dealers and sales personnel, the printing and
mailing of prospectuses to other than current Shareholders, and the printing and
mailing of sales literature.
1.3 In its capacity as distributor of the Shares, all
activities of Distributor and its partners, agents, and employees shall comply
with all applicable laws, rules and regulations, including, without limitation,
the 1940 Act, all rules and regulations promulgated by the Commission thereunder
and all rules and regulations adopted by any securities association registered
under the Securities Exchange Act of 1934, all provisions of the Trust's Master
Trust Agreement and other governing documents, and the terms of the Trust's
registration statement.
1.4 Distributor will provide one or more persons, during
normal business hours, to respond to telephone questions with respect to the
Trust.
1.5 Distributor will transmit on a timely basis any orders
received by it for purchase or redemption of the Shares to the transfer agent
and custodian for the Funds.
1.6 Whenever in their judgment such action is desirable, the
Trust may suspend, terminate or withdraw the offering of Shares, or decline to
accept any order.
1.7 Distributor will act only on its own behalf as principal
if it chooses to enter into selling agreements with selected dealers or others.
1.8 The Trust shall furnish from time to time, for use in
connection with the sale of the Shares, such information with respect to the
Funds and the Shares as Distributor may reasonably request; and the Trust
warrants that the statements contained in any such information shall fairly show
or represent what they purport to show or represent. The Trust shall also
furnish Distributor upon request with: (a) unaudited semi-annual statements of
the Funds' books and accounts prepared by the Trust, (b) a monthly itemized list
of the securities in the Funds, (c) monthly balance sheets as soon as
practicable after the end of each month, and (d) from time to time such
additional information regarding the financial condition of the Funds as
Distributor may reasonably request. The Distributor also agrees to furnish to
the Trust sufficient copies of any
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sales literature it intends to use in connection with any sales of shares in
adequate time for the Trust to review such sales literature. The Distributor
agrees that it will be responsible for filing and clearing all such sales
literature with the proper authorities before the same is put in use to the
extent required by applicable law, and not to use the same until so filed and
cleared. The Distributor agrees that it will not use, distribute or disseminate
or authorize the use, distribution or dissemination by others in connection with
the sale of shares of the Funds, any statement, other than those contained in
the Trust's current registration statement, except such supplemental literature
or advertising as shall be approved by the Trust.
1.9 The Trust represents to Distributor that, with respect to
the Shares, all registration statements and prospectuses filed by the Trust with
the Commission under the Securities Act have been carefully prepared in
conformity, in all material respects, with requirements of said Act and rules
and regulations of the Commission thereunder. The registration statement and
prospectus contain all statements required to be stated therein in conformity
with said Act and the rules and regulations of said Commission and all
statements of fact contained in any such registration statement and prospectus
are true and correct in all material respects. Furthermore, neither any
registration statement nor any prospectus includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to a purchaser of the
Shares. The Trust may, but shall not be obligated to, propose from time to time
such amendment or amendments to any registration statement and such supplement
or supplements to any prospectus as, in the light of future developments, may,
in the opinion of the Trust's counsel, be necessary or advisable. If the Trust
shall not propose such amendment or amendments and/or supplement or supplements
within fifteen days after receipt by the Trust of a written request from
Distributor to do so, Distributor may, at its option, terminate this Agreement.
The Trust shall not file any amendment to any registration statement or
supplement to any prospectus without giving Distributor reasonable notice
thereof in advance; provided, however, that nothing contained in this Agreement
shall in any way limit the Trust's right to file at any time such amendments to
any registration statement and/or supplements to any prospectus, of whatever
character, as the Trust may deem advisable, such right being in all respects
absolute and unconditional.
1.10 The Trust authorizes Distributor and dealers to use any
prospectus in the form furnished from time to time in connection with the sale
of the Shares so long as Distributor has not received notice to the contrary.
The Trust agrees to indemnify, defend and hold Distributor, its several partners
and employees, and any person who controls Distributor within the meaning of
Section 15 of the Securities Act free and harmless from and against any and all
claims, demands, liabilities and expenses (including the cost of investigating
or defending such claims, demands or liabilities and any counsel fees incurred
in connection therewith) which Distributor, its partners and employees, or any
such controlling person, may incur under the Securities Act or under common law
or otherwise, arising out of or based upon any untrue statement, or alleged
untrue statement, of a material fact contained in any registration statement or
any prospectus or arising out of or based upon any omission, or alleged
omission, to state a material fact required to be stated in either any
registration statement or any prospectus or
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necessary to make the statements in either thereof not misleading; provided,
however, that the Trust's agreement to indemnify Distributor, its partners or
employees, and any such controlling person shall not be deemed to cover any
claims, demands, liabilities or expenses arising out of any statements or
representations as are contained in any prospectus and in such financial and
other statements as are furnished in writing to the Trust by Distributor and
used in the registration statement or in the corresponding statements made in
the prospectus, or arising out of or based upon any omission or alleged omission
to state a material fact in connection with the giving of such information
required to be stated therein or necessary to such information not misleading;
and further provided that the Trust's agreement to indemnify Distributor and the
Trust's representations and warranties hereinbefore set forth in paragraph 1.10
shall not be deemed to cover any liability to the Trust or its Shareholders to
which Distributor would otherwise be subject by reason of willful misfeasance,
bad faith or negligence in the performance of its duties, or by reason of
Distributor's reckless disregard of its obligations and duties. The Trust's
agreement to indemnify Distributor, its partners and employees and any such
controlling person, as aforesaid, is expressly conditioned upon the Trust being
notified of any action brought against Distributor, its partners or employees,
or any such controlling person, such notification to be given in accordance with
Section 6 hereof, within 10 days after the summons or other first legal process
shall have been served. The failure to so notify the Trust of any such action
shall not relieve the Trust from any liability which the Trust may have to the
person against whom such action is brought by reason of any such untrue, or
allegedly untrue, statement or omission, or alleged omission, otherwise than
with respect to incremental liabilities resulting from such failure. The Trust
will be entitled to assume the defense of any suit brought to enforce any such
claim, demand or liability, but, in such case, such defense shall be conducted
by counsel of good standing chosen by the Trust and approved by Distributor,
which approval shall not be unreasonably withheld. In the event the Trust elects
to assume the defense of any such suit and retain counsel of good standing
approved by Distributor, the defendant or defendants in such suit shall bear the
fees and expenses of any additional counsel retained by any of them; but in case
the Trust does not elect to assume the defense of any such suit, or in case
Distributor reasonably does not approve of counsel chosen by the Trust, the
Trust will reimburse Distributor, its partners and employees, or the controlling
person or persons named as defendant or defendants in such suit, for the fees
and expenses of any counsel retained by Distributor or them. The Trust's
indemnification agreement contained in this paragraph 1.10 and the Trust's
representations and warranties in this Agreement shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
Distributor, its partners and employees, or any controlling person, and shall
survive the delivery of any Shares.
This Agreement of indemnity will inure exclusively
to Distributor's benefit, to the benefit of its several partners and employees,
and their respective estates, and to the benefit of the controlling persons and
their successors. The Trust agrees promptly to notify Distributor of the
commencement of any litigation or proceedings against the Trust or any of its
officers or Trustees in connection with the issue and sale of any Shares.
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1.11 Distributor agrees to indemnify, defend and hold the
Trust, its several officers and Trustees and any person who controls the Trust
within the meaning of Section 15 of the Securities Act free and harmless from
and against any and all claims, demands, liabilities and expenses (including the
costs of investigating or defending such claims, demands, or liabilities and any
counsel fees incurred in connection therewith) which the Trust, its officers or
Trustees or any such controlling person, may incur under the Securities Act or
under common law or otherwise, but only to the extent that such liability or
expense incurred by the Trust, its officers or Trustees or such controlling
person resulting from such claims or demands, shall arise out of or be based
upon any (i) untrue, or alleged untrue, statement of a material fact contained
in information furnished in writing by Distributor to the Trust and used in the
answers to any of the items of the registration statement or in the
corresponding statements made in the prospectus, or shall arise out of or be
based upon any omission, or alleged omission, to state a material fact in
connection with such information furnished in writing by Distributor to the
Trust required to be stated in such answers or necessary to make such
information not misleading (ii) sale by Distributor of Shares of the Trust in
any jurisdiction in which such Shares are not authorized to be sold, or (iii)
willful misfeasance, bad faith or negligence by Distributor. Distributor's
agreement to indemnify the Trust, its officers and Trustees, and any such
controlling person, as aforesaid, is expressly conditioned upon Distributor
being notified of any action brought against the Trust, its officers or
Trustees, or any such controlling person, such notification to be given by
letter or telegram addressed to Distributor at its principal office in Columbus,
Ohio, and sent to Distributor by the person against whom such action is brought,
within 10 days after the summons or other first legal process shall have been
served. Distributor shall have the right of first control of the defense of such
action, with counsel of its own choosing, satisfactory to the Trust, if such
action is based solely upon such alleged misstatement or omission on
Distributor's part, and in any other event the Trust, its officers or Trustees
or such controlling person shall each have the right to participate in the
defense or preparation of the defense of any such action. The failure to so
notify Distributor of any such action shall not relieve Distributor from any
liability which Distributor may have to the Trust, its officers or Trustees, or
to such controlling person by reason of any such untrue or alleged untrue
statement, or omission or alleged omission, otherwise than with respect to
incremental liabilities resulting from such failure.
1.12 No Shares shall be offered by either Distributor or the
Trust under any of the provisions of this Agreement and no orders for the
purchase or sale of Shares hereunder shall be accepted by the Trust if and so
long as the effectiveness of the registration statement then in effect or any
necessary amendments thereto shall be suspended under any of the provisions of
the Securities Act or if and so long as a current prospectus as required by
Section 10(b)(2) of said Act is not on file with the Commission; provided,
however, that nothing contained in this paragraph 1.12 shall in any way restrict
or have an application to or bearing upon the Trust's obligation to repurchase
Shares from any Shareholder in accordance with the provisions of the Trust's
prospectus, Agreement and Declaration of Trust, or Bylaws.
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1.13 The Trust agrees to advise Distributor as soon as
reasonably practical by a notice in writing delivered to Distributor or its
counsel:
(a) of any request by the Commission for amendments
to the registration statement or prospectus then
in effect or for additional information;
(b) in the event of the issuance by the Commission
of any stop order suspending the effectiveness
of the registration statement or prospectus then
in effect or the initiation by service of
process on the Trust of any proceeding for that
purpose;
(c) of the happening of any event that makes untrue
any statement of a material fact made in the
registration statement or prospectus then in
effect or which requires the making of a change
in such registration statement or prospectus in
order to make the statements therein not
misleading; and
(d) of all action of the Commission with respect to
any amendment to any registration statement or
prospectus which may from time to time be filed
with the Commission.
For purposes of this section, informal requests by or
acts of the Staff of the Commission shall not be deemed actions of or requests
by the Commission.
1.14 Distributor agrees on behalf of itself and its partners
and employees to treat confidentially and as proprietary information of the
Trust all records and other information relative to the Trust and its prior,
present or potential Shareholders, and not to use such records and information
for any purpose other than performance of its responsibilities and duties
hereunder, except, after prior notification to and approval in writing by the
Trust, which approval shall not be unreasonably withheld and may not be withheld
where Distributor may be exposed to civil or criminal contempt proceedings for
failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
1.15 For purposes of this Agreement, actions or omissions by
any BISYS Entity or its employees, agents, directors, officers or nominees made
in any capacity shall be deemed to be actions or omissions by Distributor.
Actions or omissions by a person who is both an officer or employee of the Trust
and an officer or employee of any BISYS Entity shall be deemed to have been
committed solely in such person's capacity as an officer or employee of such
BISYS Entity.
1.16 This Agreement shall be governed by the laws of the State
of Ohio.
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2. REPRESENTATIONS OF DISTRIBUTOR.
Distributor represents and warrants that: (a) Distributor is,
and shall continue to be duly registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended, and applicable state law to the extent
required in connection with the performance of its duties under this Agreement;
(b) Distributor is duly organized, validly existing and in good standing under
the laws of the state of Delaware and has the power and authority to carry on
the activities contemplated by this Agreement; and (c) this Agreement has been
duly authorized, executed and delivered by Distributor, and is the legal, valid
and binding obligation of Distributor, enforceable in accordance with its terms.
3. COMPENSATION.
The Distributor shall be entitled, subject to the terms and
conditions of the Trust's Plan of Distribution Pursuant to Rule 12b-1, to
amounts payable by the Trust thereunder.
4. SALE AND PAYMENT.
Pursuant to the Agreement and Declaration of Trust dated as of
August 13, 1996, as amended, each Fund may be divided into separate classes of
Shares in which case the Shares of one or more classes may be subject to a
service fee pursuant to a duly adopted Service Plan. Prior to the time of
delivery of any Shares by a Fund to, or on the order of, Distributor,
Distributor shall pay or cause to be paid to the Fund or to its order an amount
in Boston or New York clearing house funds equal to the applicable net asset
value of such Shares. The public offering price of a Share shall be the net
asset value of such Share, all as set forth in the current prospectus of the
Fund. The net asset value of Shares shall be determined in accordance with the
provisions of the Agreement and Declaration of Trust and Bylaws of the Trust and
the applicable Prospectus and Statement of Additional Information.
5. TERM, DURATION AND TERMINATION.
This Agreement shall become effective with respect to each
Fund, either now or hereafter created, as of the date first written above and,
unless sooner terminated as provided herein, shall continue until January 16,
1999. Thereafter, if not terminated, this Agreement shall continue with respect
to a particular Fund automatically for successive one-year terms, provided that
such continuance is specifically approved at least annually by (a) by the vote
of a majority of those members of the Trust's Board of Trustees who are not
parties to this Agreement or interested persons of any such party, cast in
person at a meeting for the purpose of voting on such approval and (b) by either
the vote of the Trust's Board of Trustees or the vote of a majority of the
outstanding voting securities of such Fund. This Agreement is terminable without
penalty, on not less than sixty days' prior written notice, by the Trust's Board
of Trustees, by vote of a majority of the outstanding voting securities of the
Trust or by the Distributor. This Agreement will also terminate automatically in
the event of its assignment. (As used in this Agreement, the
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terms "majority of the outstanding voting securities," "interested persons" and
"assignment" shall have the same meanings as ascribed to such terms in the 1940
Act.)
6. NOTICE.
Any notice, demand, request or other communication which may be
required or contemplated herein shall be sufficiently given if (i) given either
by facsimile transmission or telex, by reputable overnight delivery service,
postage prepaid, or by registered or certified mail, postage prepaid and return
receipt requested, to the address indicated below or to such other address as
any party hereto may specify as provided herein, or (ii) delivered personally at
such address.
If to the Trust: c/o Rothschild International Asset Management Limited
Five Arrows House
St. ▇▇▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ R.T. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to Distributor: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
7. LIMITATION OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS.
It is expressly agreed that the obligations of the Trust
hereunder shall not be binding upon any of the Trustees, shareholders, nominees,
officers, agents or employees of the Trust personally, but shall bind only the
trust property of the Trust. The execution and delivery of this Agreement have
been authorized by the Trustees, and this Agreement has been signed and
delivered by an authorized officer of the Trust, acting as such, and neither
such authorization by the Trustees nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in the Trust's Agreement and Declaration of
Trust.
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8. SEVERAL OBLIGATIONS OF THE FUNDS. The Trust is a series company with
multiple series, the Funds, and has entered into this Agreement on behalf of
those series, as amended from time to time on notice to the Distributor. With
respect to any obligation of the Trust on behalf of any Fund arising hereunder,
the Distributor shall look for payment or satisfaction of such obligations
solely to the assets and property of the Fund to which such obligation relates
as though the Trust had separately contracted with the Distributor by separate
written instrument with respect to each Fund. In addition, this Agreement may be
terminated with respect to one or more Funds without affecting the rights,
duties or obligations of any of the other Funds.
9. MISCELLANEOUS.
For purposes of this Agreement, no officer of the Trust who is an
employee of any BISYS Entity shall be deemed to be an authorized representative
of the Trust for the purposes of giving or receiving any notice, consent, or
other communication pursuant to Sections 1.9, 1.10, 1.11, 1.13, 1.14 and 5 or
not in the ordinary course of business. No provision of this Agreement shall be
deemed to limit the duties or obligations of Distributor or any other BISYS
Entity under any other BISYS Agreement. Paragraph headings in this Agreement are
included for convenience only and are not to be used to construe or interpret
this Agreement.
[Remainder of the page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their officers designated below as of the day and year first
written above.
FIVE ARROWS SHORT-TERM FIVE ARROWS FUND DISTRIBUTORS,
INVESTMENT TRUST INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------- --------------------------
Title: Senior Vice President Title: President
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Date: 6/1/97 Date: 1/15/97
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So long as this Distribution Agreement remains in effect, the
undersigned Rothschild International Asset Management Limited grants to the
Distributor a non-exclusive, non-transferable, non-assignable licence to use the
name or ▇▇▇▇ "Five Arrows" as part of its corporate name. Five Arrows Fund
Distributors, Inc. or any other corporate name to which Rothschild International
Asset Management Limited has given its prior written consent (at its absolute
discretion). During this period the Distributor will maintain the high standards
of professionalism that are associated with the N.M. Rothschild organization.
The Distributor will not sublicense the name "Five Arrows," nor use or authorize
any use of such name except in connection with the distribution of shares of
Five Arrows Short-Term Investment Trust in the manner contemplated by this
Distribution Agreement. Upon (i) any termination of this Distribution Agreement
or (ii) the commencement by the Distributor of any activity other than the
distribution of shares of Five Arrows Short-Term Investment Trust in the manner
contemplated by this Agreement, this license and all right of the Distributor to
use the names or marks "Five Arrows" shall terminate, whereupon within seven
days the Distributor will take all necessary actions to change its corporate
name to a name which neither makes use of such words nor names or marks that are
in the opinion of Rothschild International Asset Management confusingly similar
thereto.
Executed as of the date first set forth above.
ROTHSCHILD INTERNATIONAL
ASSET MANAGEMENT LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Acknowledged and Agreed
FIVE ARROWS FUND DISTRIBUTORS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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