This Agreement, made the day of December, 1992, by and
between Cash Assets Trust (the "Trust"), a Massachusetts business
trust with principal offices in New York, New York and Aquila
Distributors Corporation ("Aquila"), a corporation organized
under the laws of New York with offices in New York, New York,
W I T N E S S E T H:
PREMISES:
1) The Trust is registered under the Investment Company Act
of 1940 (the "1940 Act") and a series of the Trust, named Tax-
Free Cash Assets Trust (the "Series"), invests in a portfolio of
money-market securities and holds itself out as a "money-market
fund" under Rule 2a-7 promulgated by the Securities and Exchange
Commission under the 1940 Act;
2) Aquila serves and has served since 1984 as Distributor
of the Series pursuant to a written distribution agreement (the
"Distribution Agreement");
3) Aquila in its capacity as Distributor of the Series has,
in the course of performing its obligations to the Series and its
activities in the best interests of the shareholders of the
Series, acquired valuable and sensitive information as to the
operation and management of investment companies such as the
Trust, and, although not directly involved in management of the
portfolio of the Series or the administration of the Series,
Aquila has by reason of its association with the Series been
informed of valuable and sensitive information concerning such
portfolio management and administration;
4) The Trust and Aquila have agreed upon certain additional
arrangements set forth herein that would be beneficial to the
Series, not as a part of the Distribution Agreement or related to
the subject matter covered thereby, but in furtherance of the
relationship contemplated by the Distribution Agreement;
5) The Trust and Aquila have agreed that in the best
interests of shareholders of the Series, the information which
Aquila has obtained in its capacity of provider of services to
the Series should, as provided herein, continue to be applied
solely on behalf of the Series and its shareholders so long as
Aquila provides such services to the Series and for a reasonable
period thereafter;
6) The parties recognize that the Trust relies and may in
the future rely on the covenants of Aquila contained herein in
the Trust's continuing determinations to refrain from the
exercise of its right to terminate the Distribution Agreement at
any time upon sixty days' notice and in its annual determinations
as to whether or not the Trust will renew the Distribution
Agreement, although this Agreement does not in any way restrict
the free exercise of the right of the Trust, and its Board of
Trustees, in connection with such determinations to make such
decisions and to take into account such matters as the Board of
Trustees believes appropriate;
7) Aquila is controlled by Xxxx X. Xxxxxxxx, all direct and
indirect parents, subsidiaries and affiliates of Aquila and all
corporations controlled by Xx. Xxxxxxxx, now or in the future,
being referred to herein as the "Aquila Affiliates";
8) Hawaiian Trust Company, Limited ("HTCo"), a trust
company organized under the laws of the State of Hawaii with
principal offices in Honolulu, Hawaii, serves as investment
adviser for the Trust pursuant to a written advisory agreement
with respect to the Trust, HTCo being a subsidiary of Bank of
Hawaii and an indirect subsidiary of Bancorp Hawaii, Inc., a bank
holding company registered under the Bank Holding Company Act of
1956, as amended, all direct and indirect parents, subsidiaries
and affiliates of HTCo, now or in the future, being referred to
herein as the "HTCo Affiliates";
NOW, THEREFORE, in consideration of the premises and the
mutual promises contained herein, the parties hereto agree as
follows:
1. Obligation as to Undivided Loyalty. Neither Aquila
nor any Aquila Affiliate shall serve as investment adviser,
administrator, sponsor, promoter, or principal underwriter of any
investment company that competes directly with the Trust and has
as its investment adviser a company with its principal office in
the State of Hawaii, nor shall they provide services directly or
indirectly in the capacities here specified to, or receive fees
for such services from, any investment company which holds itself
out as a "money-market fund" under Rule 2a-7 promulgated by the
Securities and Exchange Commission under the 1940 Act and has as
its investment adviser a company with its principal office in the
State of Hawaii; provided, however, that Aquila or any Aquila
Affiliate may provide services directly or indirectly in the
capacities listed herein to, or receive fees for such services
from, any investment company
a. listed on Schedule A hereto; or
b. the portfolio of which consists initially of
assets previously held in a common or collective trust fund
(other than an investment company created after the date hereof
which holds itself out as a "money-market fund" under Rule 2a-7
promulgated by the Securities and Exchange Commission under the
0000 Xxx) managed by HTCo or any HTCo Affiliate; or
c. if HTCo or the HTCo Affiliate became a provider
of services to such investment company upon and solely by reason
of the fact that a person, firm or corporation that provides such
investment company services in any of the capacities listed
herein has been directly or indirectly acquired by, or merged
with, HTCo or an HTCo Affiliate, as long as such investment
company does not operate in a manner that permits ready exchange
with an investment company the investment adviser of which is
HTCo or an HTCo Affiliate.
2. Duration. The obligations specified in this
Agreement shall be binding upon Aquila so long as it provides
services to the Trust, and for a period of two years thereafter;
provided, however, that:
a. such obligations shall not bind Aquila if the
Board of Trustees of the Trust terminates or does not renew the
Distribution Agreement absent a good faith determination that
Aquila has failed to perform its responsibilities under the
Distribution Agreement by reason of willful misfeasance, bad
faith or gross negligence or that Aquila has recklessly
disregarded its obligations and duties under the Distribution
Agreement; and
x. Xxxxxx shall have the right to terminate its
obligation under this Agreement upon at least 30 days' written
notice if by reason of the unavailability of exchangeability
between the Series and any investment company advised by HTCo or
an HTCo affiliate, HTCo has terminated its obligation to the
Series under the agreement of even date herewith between the
Series and HTCo contemplating obligations on the part of HTCo of
a kind similar to those of Aquila contained in this Agreement.
3. Application of Agreement. The obligations under
this Agreement shall apply to Aquila and all Aquila Affiliates
and Aquila shall not provide services or receive compensation,
directly or indirectly, in a manner prohibited by this Agreement.
4. Applicable Law; Enforcement. This Agreement shall
be construed in accordance with and governed by the laws
applicable to contracts made in, and to be performed within, the
State of New York. This Agreement shall be enforced by
proceedings in a federal or state court located in the State and
County of New York or in the State of Hawaii, and the parties
hereby submit to personal jurisdiction of such courts for
purposes of such proceedings only. The parties recognize that
remedies at law may be inadequate, that any breach of this
Agreement may cause irreparable harm and that money damages may
be difficult or impossible to calculate; therefore the parties
shall have the right to such equitable relief as may be
appropriate, including specific performance of this Agreement and
temporary and/or permanent injunctive relief.
5. Notices. Except as otherwise provided herein, any
written notice or other written communication required or
permitted to be given under this Agreement shall be delivered or
sent by United States registered mail, postage prepaid, and,
if to the Trust, addressed to:
Xxxxx X. Xxxxxxxx, Vice President
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000;
if to Aquila, addressed to:
Xxxx X. Xxxxxxxx, Vice President
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000;
unless another address is substituted by notice delivered or sent
as provided herein. Any such notice shall be deemed given when
received.
6. Headings. Headings are used for reference purposes
only and shall not be deemed a part of this Agreement.
7. Entire Agreement. This Agreement embodies the
entire agreement of the parties with respect to the subject
matter hereof, and supersedes all previous negotiations,
representations and agreements with respect thereto.
8. Waiver. Except where specific time limits are
herein provided, no delay on the part of any party hereto in
exercising any power or right hereunder nor any single or partial
exercise thereof nor the exercise of any other power of right
shall operate as a waiver thereof. No waiver shall be
enforceable against any party hereto unless in writing, signed by
the party against whom such waiver is claimed, and shall be
limited solely to the one event. The rights, remedies and
benefits herein expressly specified are cumulative and not
exclusive of any rights, remedies or benefits which the parties
hereto may otherwise have.
9. Separability. If any provision of this Agreement
shall contravene or be invalid under the laws of any state,
country or jurisdiction in which this Agreement shall be
performed or enforced, then such contravention or invalidity
shall not invalidate the entire Agreement. Such provision shall
be deemed to be modified to the extent necessary to render it
valid and enforceable, or if no such modification will render it
valid and enforceable, then the Agreement shall be constructed as
if not containing the provision held to be invalid, and the
rights and obligations of the parties shall be construed and
enforced accordingly.
10. Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the
same Agreement.
11. Amendment. This Agreement cannot be changed or
modified orally, but only by an agreement in writing signed by
the party against whom enforcement of any change or modification
is sought.
12. Persons Bound. This Agreement shall be binding
upon and shall inure to the benefit of the undersigned parties
and their respective successors and permitted assigns. No
assignment shall be made by any party without the prior written
consent of the other party hereto.
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IN WITNESS WHEREOF, each of the parties has caused this
Agreement to be executed and delivered on its behalf as of the
date first written above.
CASH ASSETS TRUST
by_______________________________
Xxxxx X. Xxxxxxxx
Vice President
AQUILA DISTRIBUTORS CORPORATION
by________________________________
Xxxx X. Xxxxxxxx,
Vice President
SCHEDULE A
Hawaiian Tax-Free Trust
Cash Assets Trust
Tax-Free Cash Assets Trust
U.S. Treasuries Cash Assets Trust
Pacific Capital Funds Trust, and any series or class thereof,
managed by HTCo or any HTCo Affiliate, except to the extent that
it holds itself out as a "money-market fund" under Rule 2a-7
promulgated by the Securities and Exchange Commission under the
1940 Act.
