XXXXXXXXX CASH RESERVES TRUST
DISTRIBUTION AGREEMENT
AGREEMENT, made as of this 28th day of May, 1999 by and
between XXXXXXXXX CASH RESERVES TRUST (hereinafter called
the "Trust"), and AQUILA DISTRIBUTORS, INC., (hereinafter
called the "Distributor").
W I T N E S S E T H:
WHEREAS, the Trust and the Distributor have previously
entered into the Distribution Agreement dated as of
February 10, 1999;
WHEREAS, on April 23, 1999 the Board of Trustees of the
Trust approved a new Distribution Agreement, to go into
effect upon anticipated changes in ownership of the
Distributor; and
WHEREAS, the transfer of shares of the Distributor
effecting such changes in ownership occurred as of the date
hereof; and
WHEREAS, contemporaneously therewith pursuant to an
instrument executed and delivered between the parties, a new
Distribution Agreement went into effect, identical in its
provisions to the Distribution Agreement in effect
immediately prior thereto, except for the date of its
effectiveness; and
WHEREAS, this Agreement is a document explicitly
containing all of the provisions of the new Distribution
Agreement, representing in explicit form the new
Distribution Agreement created thereby;
NOW, THEREFORE, in consideration of the mutual
covenants herein contained and other good and valuable
consideration, the receipt of which is hereby acknowledged,
it is agreed by a between the parties hereto as follows:
b. For purposes of determining the renewal date
of this Agreement under paragraph 9 only, the effective date
of this Agreement shall be considered to be the same as the
effective date of the previously effective Distribution
Agreement.
W I T N E S S E T H :
In consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt of
which is hereby acknowledged, it is agreed by and between
the parties hereto as follows:
1. The Distributor agrees to act as principal
underwriter
and exclusive distributor of the shares of the Trust. The
price at which shares of the Trust are issued to the public
by the Distributor shall be as computed and effective as set
forth in the Prospectus and Statement of Additional
Information of the Trust current as of the time of such sale
(collectively, the "Current Prospectus"). The Trust
agrees that it will promptly amend or supplement the Current
Prospectus in connection with any change in any of the
foregoing. The Distributor agrees to bear the costs of
printing and distributing all copies of the Trust's
prospectuses, statements of additional information and
reports to shareholders which are not sent to the Trust's
shareholders, as well as the costs of supplemental sales
literature, advertising and other promotional activities.
The Distributor will, as disbursing agent for the
Administrator, make such payments to
Qualified Recipients, as those terms are defined in the
Trust's Distribution Plan, as the Administrator may
authorize and provide funds for, from time to time.the above
sentence only in cash funds
2. The Trust agrees to issue shares of the Trust,
subject to the provisions of its Declaration of Trust and By-
Laws, to the Distributor as ordered by the Distributor, but
only to the extent that the Distributor shall have received
purchase orders therefor at the times and subject to the
conditions set forth in the Current Prospectus.
Certificates for shares need not be created or delivered by
the Trust in any case in which the purchase is made under
terms not calling for such certificates. Shares issued by
the Trust shall be registered in such name or names and
amounts as the Distributor may request from time to time and
all shares when so paid for and issued shall be fully paid
and nonassessable to the extent set forth in the Current
Prospectus.
3. The Distributor shall act as principal in all
matters relating to promotion of the growth of the Trust and
shall enter into all of its engagements, agreements and
contracts as principal on its own account. The title to
shares of the Trust issued and sold through the Distributor
shall pass directly from the Trust to the dealer or
investor, or shall, if the Distributor so consents, first
pass to the Distributor, as may from time to time be
determined by the Board of Trustees of the Trust.
4. The Trust hereby consents to any arrangements
whereby the Distributor may act as principal underwriter for
other investment companies or as principal underwriter,
sponsor or depositor for unit investment trusts and periodic
payment plan certificates issued thereby, or as investment
adviser, subadviser or administrator to the Trust or other
investment companies or persons. The Trust also consents to
the Distributor carrying on a business as a broker, dealer
and underwriter in securities and to carrying on any other
lawful business.
5. The Trust covenants and agrees that it will not
during the term of this Agreement, without the consent of
the Distributor, offer any shares of the Trust for sale
directly or through any person or corporation other than the
Distributor excepting only (a) the reinvestment of dividends
and/or distributions, or their declaration in shares of the
Trust, in optional form or otherwise; (b) the issuance of
additional shares through stock splits or stock dividends;
(c) sales of shares to another investment or securities
holding company in the process of purchasing all or a
portion of its assets; or (d) in connection with an exchange
of the Trust's shares for shares of another investment
company or securities holding company.
6. The Trust agrees to use its best efforts to register
from time to time under the Securities Act of 1933 adequate
amounts of shares of the Trust for sale by the Distributor
to the public and to register or qualify, or to permit the
Distributor to register or qualify, such shares for offering
to the public in such States or other jurisdictions as may
be designated by the Distributor.
7. The Trust agrees to advise the Distributor of the
net asset value of the Trust's shares as often as computed.
The Trust will also furnish to the Distributor, as soon as
practicable, such information as may reasonably be requested
by the Distributor in order that it may know all of the
facts necessary to sell shares of the Trust.
8. The Distributor is familiar with the Declaration of
Trust and By-Laws of the Trust, each as presently in effect.
Insofar as they are applicable to the Distributor as
principal underwriter of the Trust, it will comply with the
provisions of the Declaration of Trust and By-Laws of the
Trust and with the provisions of all acts administered by
the Securities and Exchange Commission (the "Commission")
and rules thereunder.
9. This amended and restated Agreement shall go into
effect on the date first above written, and shall, unless
terminated as hereinafter provided, continue in effect until
the next December 31, and from year to year thereafter, but
only so long as such continuance is specifically approved at
least annually as provided in the Investment Company Act of
1940 (the "Act"). This Agreement shall automatically
terminate in the event of its assignment (as defined in the
Act) and may be terminated by either party on sixty days
written notice to the other party.
10. The Trust agrees with the Distributor, for the
benefit of the Distributor and each person, if any, who
controls the Distributor within the meaning of Section 15 of
the Securities Act of 1933 (the "Securities Act") and each
and all and any of them, to indemnify and hold harmless the
Distributor and any such controlling person from and against
any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject
under the Securities Act, under any other statute, at common
law or otherwise, and to reimburse the Distributor and such
controlling persons, if any, for any legal or other expenses
(including the cost of any investigation and preparation)
reasonably incurred by them or any of them in connection
with any litigation whether or not resulting in any
liability, insofar as such losses, claims, damages,
liabilities or litigation arise out of, or are based upon,
any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any
Prospectus, filed with the Commission, or any amendment
thereof or supplement thereto, or which arise out of, or are
based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided,
however, that this indemnity agreement shall not apply to
amounts paid in settlement of any such litigation if such
settlement is effected without the consent of the Trust or
to any such losses, claims, damages, liabilities or
litigation arising out of, or based upon, any untrue
statement or alleged untrue statement of a material fact
contained in any such Registration Statement or Prospectus,
or any amendment thereof or supplement thereto, or arising
out of, or based upon, the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
which statement or omission was made in reliance upon
information furnished in writing to the Trust by the
Distributor for inclusion in any such Registration Statement
or Prospectus or any amendment thereof or supplement
thereto.
The Distributor and each such controlling person
shall, promptly after the complaint shall have been
served upon the Distributor or such controlling
person in respect of which indemnity may be sought
from the Trust on account of its agreement contained
in this paragraph, notify the Trust in writing of the
commencement thereof. The omission of the
Distributor or such controlling person so to notify
the Trust of any such litigation shall relieve the
Trust from any liability which it may have to the
Distributor or such controlling person on account of
the indemnity agreement contained in this paragraph,
but shall not relieve the Trust from any liability
which it may have to the Distributor or controlling
person otherwise than on account of
the indemnity agreement contained in the paragraph.
In case any such litigation shall be brought against
the Distributor or any such controlling person and
notice of the commencement thereof shall have been
given to the Trust, the Trust shall be entitled to
participate in (and, to the extent that it shall
wish, to direct) the defense thereof at its own
expense, but such defense shall be conducted by
counsel of good standing and satisfactory to the
Distributor or such controlling person or persons,
defendant or defendants in the litigation. The
indemnity agreement of the Trust contained in this
paragraph shall remain operative and in full force
and effect regardless of any investigation made by or
on behalf of the Distributor or any such controlling
person, and shall survive any delivery of shares of
the Trust. The Trust agrees to notify the
Distributor promptly of the commencement of any
litigation or proceeding against it or any of its
officers or directors of which it may be advised in
connection with the issue and sale of shares of the
Trust.
11. Anything herein to the contrary
notwithstanding, the agreement in paragraph 10,
insofar as it constitutes a basis for reimbursement
by the Trust for liabilities (other than payment by
the Trust of expenses incurred or paid in the
successful defense of any action, suit or proceeding)
arising under the Securities Act, shall not extend to
the extent of any interest therein of any person who
is an underwriter or a partner or controlling person
of an underwriter within the meaning of Section 15 of
the Securities Act or who, at the date of this
Agreement, is a Trustee of the Trust, except to the
extent that an interest of such character shall have
been determined by a court of appropriate
jurisdiction as not against public policy as
expressed in the Securities Act. Unless in the
opinion of counsel for the Trust the matter has been
adjudicated by controlling precedent, the Trust,
will, if a claim for such reimbursement is asserted,
submit to a court of appropriate jurisdiction the
question of whether or not such interest is against
the public policy as expressed in the Securities Act.
12. The Distributor agrees to indemnify and
hold harmless the Trust and its Trustees and such
officers as shall have signed any Registration
Statement filed with the Commission from and against
any and all losses, claims, damages or liabilities,
joint or several, to which the Trust or such Trustees
or officers may become subject under the Securities
Act, under any other statute, at common law or
otherwise, and will reimburse the Trust or such
Trustees or officers for any legal or other expenses
(including the cost of any investigation and
preparation) reasonably incurred by it or them or any
of them in connection with any litigation, whether or
not resulting in any liability, insofar as such
losses, claims, damages, liabilities or litigation
arise out of, or are based upon, any untrue statement
or alleged omission to state therein a material fact
required to be stated therein or necessary to make
the statements therein not misleading, which
statement or omission was made in reliance upon
information furnished in writing to the Trust by the
Distributor for inclusion in any Registration
Statement or any Prospectus, or any amendment thereof
or supplement thereto. The Distributor shall not be
liable for amounts paid in settlement of any such
litigation if such settlement was effected without
its consent. The Trust and its Trustees and such
officers, defendant or defendants, in any such
litigation shall, promptly after the complaint shall
have been served upon the Trust or any such Trustee
or officer in respect of which indemnity may be
sought from the Distributor on account of its
agreement contained in this paragraph, notify the
Distributor in writing of the commencement thereof.
The omission of the Trust or such Trustee or officer
so to notify the Distributor of any such litigation
shall relieve the Distributor from any liability
which it may have to the Trust or such Trustee or
officer on account of the indemnity agreement
contained in this paragraph, but shall not relieve
the Distributor from any liability which it may have
to the Trust or such Trustee or officer otherwise
than on account of the indemnity agreement contained
in this paragraph. In case any such litigation shall
be brought against the Trust or any such Trustee or
officer and notice of the commencement thereof shall
have been so given to the Distributor, the
Distributor shall be entitled to participate in (and,
to the extent that it shall wish, to direct) the
defense thereof at its own expense, but such defense
shall be conducted by counsel of good standing and
satisfactory to the Trust. The indemnity agreement
of the Distributor contained in this paragraph shall
remain operative and in full force and effect
regardless of any investigation made by or on behalf
of the Trust and shall survive any delivery of shares
of the Trust. The Distributor agrees to notify the
Trust promptly of the commencement of any litigation
or proceeding against it or any of its officers or
directors or against any such controlling person of
which it may be advised, in connection with the issue
and sale of the Trust's shares.
13. Notwithstanding any provision contained in
this Agreement, no party hereto and no person or
persons in control of any party hereto shall be
protected against any liability to the Trust or its
security holders to which they would otherwise be
subject by reason of willful misfeasance, bad faith,
or gross negligence, in the performance of their
duties, or by reason of their reckless disregard of
their obligations and duties under this Agreement.
14. The Trust shall immediately advise the
Distributor (a) when any post-effective amendment to
its Registration Statement or any further amendment
or supplement thereto or any further Registration
Statement or amendment or supplement thereto becomes
effective, (b) of any request by the Commission for
amendments to the Registration Statement or the then
effective Prospectus or for additional information,
(c) of the issuance by the Commission of any stop
order suspending the effectiveness of the
Registration Statement, or the initiation of any
proceedings for that purpose, and (d) of the
happening of any event which makes untrue any
material statement made in the Registration Statement
or the Current Prospectus or which in the opinion of
counsel for the Trust requires the making of a change
in the Registration Statement or the Current
Prospectus in order to make the statements therein
not misleading. In case of the happening at any time
of any event which materially affects the Trust or
its securities and which should be set forth in a
supplement to or an amendment of the then effective
Prospectus in order to make the statements therein
not misleading the Trust shall prepare and furnish to
the Distributor such amendment or amendments to the
then effective Prospectus as will correct the
Prospectus so that as corrected it will not contain,
or such supplement or supplements to the then
effective Prospectus which when read in conjunction
with the then effective Prospectus will make the
combined information not contain, any untrue
statement of a material fact or any omission to state
any material fact necessary in order to make the
statements in the then effective Prospectus not
misleading. The Trust shall, if at any time the
Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, make
every reasonable effort to obtain the prompt lifting
of such order.
15. Except as expressly provided in paragraphs 10
and 12
hereof, the agreements herein set forth have been
made and are made solely for the benefit of the
Trust, the Distributor, and
the persons expressly provided for in paragraphs 10
and 12, their respective heirs, successors, personal
representatives and assigns, and except as so
provided, nothing expressed or mentioned herein is
intended or shall be construed to give any person,
firm or corporation, other than the Trust, the
Distributor, and the persons expressly provided for
in paragraphs 10 and 12, any legal or equitable
right, remedy or claim under or in respect of this
Agreement or any representation, warranty or
agreement herein contained. Except as so provided,
the term "heirs, successors, personal representatives
and assigns" shall not include any purchaser of
shares merely because of such purchase.
16. The Distributor understands that the
obligations of this Agreement are not binding upon
any shareholder of the Trust personally, but bind
only the Trust's property; the Distributor represents
that it has notice of the provisions of the Trust's
Declaration of Trust disclaiming shareholder
liability for acts or obligations of the Trust.
IN WITNESS WHEREOF, the parties hereto have caused
this
Agreement to be executed by their respective duly
authorized officers and their seals to be affixed as
of the day and year first above written.
ATTEST:
_______________________
By:______________________________
ATTEST: AQUILA DISTRIBUTORS,
INC.
_______________________
By:______________________________
