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 Management 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
Administrator of the Series pursuant to a written
administration agreement (the "Administration Agreement");
3) Aquila in its capacity as Administrator 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 marketing or distribution of shares of the
Series, Aquila has by reason of its association with the
Series been informed of valuable and sensitive information
concerning such portfolio management, marketing and
distribution;
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
Administration Agreement or related to the subject matter
covered thereby, but in furtherance of the relationship
contemplated by the Administration 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
Administration Agreement at any time upon sixty days'
notice and in its annual determinations as to whether or
not the Trust will renew the Administration 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 the
Administration Agreement absent a good faith determination
that Aquila has failed to perform its responsibilities
under the Administration Agreement by reason of willful
misfeasance, bad faith or gross negligence or that Aquila
has recklessly disregarded its obligations and duties under
the Administration 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, 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 MANAGEMENT CORPORATION
by_______________________________
Xxxx X. Xxxxxxxx,
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.
