DEALER AGREEMENT
This Dealer Agreement (the "Agreement") is dated as of _________________,
1998, between CypressTree Funds Distributors, Inc. ("Distributors"), a Delaware
corporation, and _______________________, ("Selling Dealer"), a _______________
corporation.
Witnesseth
WHEREAS, Distributors acts as the principal underwriter (as that term
is defined in the Investment Company Act of 1940 (the "Act") in the distribution
of shares of common stock, par value $.01 per share (the "Shares") of the
CypressTree Senior Floating Rate Fund, Inc. (the "Fund"), a Maryland corporation
registered as a closed-end management investment company under the Act engaged
in a continuous offering of shares (the "Continuous Offering") registered under
the Securities Act of 1933 (the "Securities Act"); and
WHEREAS, Selling Dealer wishes to participate in the distribution of the
Shares as a dealer for its own account.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in the Agreement, the parties to the Agreement, intending to be
legally bound, agrees as follows:
The Offering
Section 1: Distributors agrees to offer to sell to Selling Dealer, as a
member of a group of selected dealers (the "Selected Dealers Group"), shares of
the Fund under the terms and conditions set forth in the Agreement.
Section 2: In all sales of the Shares to the public, Selling Dealer shall
act as dealer for its own account, and in no transaction shall have any
authority to act as agent for the Fund, for Distributors, or for any other
member of the Selected Dealers Group.
Section 3: Selling Dealer will not forward to Distributors for acceptance
any conditional order for the sale or repurchase of Shares.
Section 4: Selling Dealer shall purchase Shares only through Distributors.
Section 5: Selling Dealer agrees that it will not offer or sell any of the
Shares except under circumstances that will result in compliance with applicable
federal and state securities laws and that in connection with sales and offers
to sell Shares, Selling Dealer will furnish to each person to whom any such sale
or offer is made a copy of the Prospectus (as then amended or supplemented) and
will not (1) furnish to any person any information relating to the Shares of the
Fund which is inconsistent in any respect with the information contained in the
Prospectus (as then amended or supplemented) or (2) cause any advertisement to
be published in any newspaper or posted in any public place without
Distributors' consent and the consent of the Fund. Selling Dealer further agrees
that it will not make a market in the Shares.
1
Section 6: Selling Dealer shall offer and sell Shares only at the public
offering price, which is the next determined net asset value per share after the
order is received, in accordance with the terms of the then-current Prospectus
of the Fund
Section 7: Selling Dealer will not place orders for any of the Shares
unless Selling Dealer already has received purchase orders for those Shares at
the applicable public offering prices and subject to the terms of the Agreement
and of the Fund's distribution agreement (the "Distribution Agreement"), a copy
of which Distributors has provided to Selling Dealer with this Agreement.
Section 8: Selling Dealer will sell shares only in states where the Shares
may then be legally sold by Selling Dealer and in accordance with the
then-current prospectus, registrations, and permits of the Fund.
Section 9: Upon application, Distributors will inform Selling Dealer as to
the states in which Distributors believes the shares have been qualified for
sale under, or are exempt from the requirements of, the respective securities
laws of such states, but Distributors assumes no responsibility or obligation as
to Selling Dealer's right to sell Shares in any jurisdiction.
Section 10: Selling Dealer represents that it is a member of the National
Association of Securities Dealers, Inc. (the "NASD"). With respect to any sales
in the United States, Distributors and Selling Dealer both agree to abide by the
Rules of Fair Practice of the NASD as in effect from time to time.
Section 11: All orders are subject to acceptance by Distributors or the
Fund in the sole discretion of either. The minimum initial and subsequent
purchase requirements are as set forth in the Prospectus, as amended from time
to time.
Section 12: Selling Dealer agrees to deliver to each of the purchasers
making purchases from Selling Dealer a copy of the then-current Prospectus at or
prior to the time of offering or sale and agrees to deliver later to such
purchasers copies of the annual and interim reports and proxy solicitation
materials of the Fund. Selling Dealer further agrees to endeavor to obtain
proxies from such purchasers.
Section 13: Upon request, Distributors will provide additional copies in
reasonable quantities of the Prospectus, annual or interim reports and proxy
solicitation materials of the Fund , any information supplementing the foregoing
items, or any other information Distributors deems necessary or desirable for
use in connection with sales of the Fund.
Section 14: No person is authorized to make any representations concerning
Shares except those contained in the then-current Prospectus of the Fund and in
printed information subsequently issued by Distributors or the Fund as
information supplemental to the Prospectus. In
2
purchasing shares through Distributors, Selling Dealer will rely solely on the
representations contained in the Prospectus and supplemental information above
mentioned. Selling Dealer may not modify any supplemental materials provided by
Distributors or the Fund without the prior written consent of Distributors. Any
printed information furnished by Distributors to Selling Dealer, other than the
Fund's Prospectus, periodic reports and proxy solicitation material are
Distributors' sole responsibility and not the responsibility of the Fund, and
Selling Dealer agrees that the Fund shall have no liability or responsibility to
Selling Dealer in these respects unless expressly assumed Selling Dealer will
not make use of any advertisement or sales literature that refers to the Fund
unless such material has been approved in writing by Distributors prior to its
first use by Selling Dealer.
Section 15: Payment for shares purchased by Selling Dealer is to be made by
certified or official bank check at the office of _____________________, in New
York clearing-house funds payable to the order of CypressTree Funds
Distributors, Inc. The Fund's transfer agent, State Street Bank & Trust Company
(the "Transfer Agent"), will acknowledge the deposit with it of the shares so
purchased by Selling Dealer. Selling Dealer agrees that as promptly as
practicable after the delivery of Shares, Selling Dealer will issue appropriate
written transfer instructions to the Fund or to the Transfer Agent as to the
purchasers to whom Selling Dealer sold the shares. Selling Dealer will be held
responsible for any loss, including loss of profit, suffered by Distributors or
the Fund resulting from the failure of Selling Dealer to make payment as
specified above.
Section 16: Distributors will pay to Selling Dealer from its own assets,
and not from assets of the Fund, such discounts or commission payments as
specified on Schedule A to this Agreement and in the circumstances set forth in
the then-current prospectus of the Fund.
Section 17: If any Shares sold to Selling Dealer pursuant to this Agreement
are tendered for repurchase within seven business days after the date of the
confirmation of the original purchase by Selling Dealer, Selling Dealer will
forfeit its right to any discount or commission with respect to such Shares.
Distributors will notify Selling Dealer in writing of any such repurchase tender
within ten days from the date on which the tender is delivered to the Fund or
its agent, and Selling Dealer will immediately refund to Distributors any
discount or commission allowed or paid in connection with such sale.
Section 18: Selling Dealer acknowledges that the Fund only may repurchase
Shares through periodic repurchase offers conducted in accordance with
procedures described in the prospectus. Selling Dealer will not make any
representations in connection with repurchase offers other than those contained
in the Fund's then-current prospectus. In the event of such a tender, Selling
Dealer may act as principal for its own account or as agent for its customer.
Selling Dealer agrees to pay its customer not less than the price received from
the Fund or an intermediary of the Fund (including Distributors). If Selling
Dealer acts as agent for its customer, it agrees not to charge the customer more
than a fair commission for handling the transaction. Selling Dealer shall notify
Distributors daily during the pendency of a repurchase offer of the number of
shares tendered by its customers, or by itself acting as principal, for
repurchase. Selling Dealer will be responsible for the receipt of tendered
shares from its customers and forwarding such tenders to the Fund in a timely
3
fashion, according to the terms of the repurchase offer, and shall indemnify and
hold harmless Distributors from any claims relating to a customer's
participation in a repurchase offer or failure to so participate. Selling Dealer
agrees to cooperate reasonably with the Fund, Distributors, or an affiliate of
the Fund or Distributors, in the conduct of repurchase offers.
Section 19: Selling Dealer agrees that it will not sell any shares of the
Fund to any account over which its exercises discretionary authority.
Section 20: The Fund and Distributors each reserve the right in their
discretion, without advance notice, to suspend sales or to withdraw entirely the
offering of the Shares.
Section 21: Selling Dealer appoints the Transfer Agent as its agent to
execute the purchase transactions of shares of the Fund in accordance with the
terms and provisions of any account, program, plan, or service established or
used by Selling Dealer's customers and to confirm each purchase to such
customers on Selling Dealer's behalf. Selling Dealer guarantees the legal
capacity of its customers purchase shares of the Fund and any other person or
entity in whose name Shares are to be registered.
General Provisions
Section 22: Waiver - Failure of any party to insist upon strict compliance
with any of the terms and conditions of this Agreement shall not be construed as
a waiver of any of the terms and conditions, but the same shall remain in full
force and effect. No waiver of any of the provisions of this Agreement shall be
deemed to be, or shall constitute, a waiver of any other provisions, whether or
not similar, nor shall any waiver constitute a continuing waiver.
Section 23: Binding Effect - This Agreement shall be binding on and shall
inure to the benefit of the parties to it and respective successors and assigns,
provided that Selling Dealer may assign this Agreement or any of the rights and
obligations hereunder only with the prior written consent of Cypress.
Section 24: Regulations - All parties agree to observe and comply with the
existing laws, rules and regulations of applicable local, state and federal
regulatory authorities and with those which may be enacted or adopted while this
Agreement is in force regulating the business contemplated hereby in any
jurisdiction in which the business described herein is to be transacted.
Section 25: Disputes - All parties to this Agreement that any dispute
arising hereunder shall be submitted to arbitration held in Boston,
Massachusetts in accordance with the Code of Arbitration Procedure of the NASD,
or similar rules or codes, in effect at the time of submission of any such
dispute.
Section 26: Governing Law - This Agreement shall be construed in accordance
with and governed by the laws of the Commonwealth of Massachusetts.
Section 27: Amendment of Agreement - Cypress reserves the right to amend
this Agreement
4
at any time and Selling Dealer agrees that an order to purchase shares of the
Fund placed after notice of any such amendment shall constitute Selling Dealer's
consent to any such amendment.
Section 28: Termination - Each of the parties to this Agreement has the
right to cancel this Agreement with or without cause on notice to the other
party. Each of the parties represents that it is a member in good standing of
the NASD and agrees that termination or suspension of such membership at any
time shall immediately terminate this Agreement.
Section 29: If the Prospectus contains any provisions inconsistent with the
terms of the Agreement, the Prospectus shall control.
Section 30: Distributors shall have full authority to take such action as
it may deem advisable in respect of all matters pertaining to the Continuous
Offering. Distributors shall be under no liability to Selling Dealer except for
lack of good faith and for obligations expressly assumed by Distributors in this
Agreement. Nothing contained in this paragraph is intended to operate as, and
the provisions of this paragraph shall not in any way whatsoever constitute, a
waiver by Selling Dealer of compliance with any provision of the Securities Act,
or of the rules and regulations of the Securities and Exchange Commission issued
under the Securities Act.
Notices - All notices or communications shall be sent to the address shown
below, or to such other address as the party may request by giving written
notice to the other party.
For CypressTree Funds Distributors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
5
(Selling Dealer)
(Address)
(Telephone #)
Signatures
CypressTree Funds Distributors, Inc.
By:
---------------------------------------
For Selling Dealer:
-----------------------
Address:
-----------------------------------
-------------------------------------------
By:
-----------------------------------------
Signature
--------------------------------------------
Name and Title (Please Print)
--------------------------------------------
Back Office Contact Name & Phone Number
6
