AMENDED AND RESTATED DISTRIBUTION AGREEMENT
AGREEMENT, made as of this 23rd day of March,
1990, by and between Cash Assets Trust (hereinafter called
the "Business Trust"), and Aquila Distributors, Inc.
(hereinafter called the "Distributor").
W I T N E S S E T H :
WHEREAS, the Business Trust and the Distributor
have previously entered into a Distribution Agreement with
respect to a portfolio of the Business Trust entitled Tax-
Free Cash Assets Trust (the "Trust"); and
WHEREAS, the Business Trust and the Distributor
now wish to amend and restate their agreement as herein set
forth, (referred to hereafter as "this Agreement");
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 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
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.
2. The Business 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 Business Trust in any case in which the
purchase is made under terms not calling for such
certificates. Shares issued by the Business 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 non-
assessable 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 Business 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 Business Trust.
4. The Business 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, sub-adviser or administrator to the
Business Trust or other investment companies or persons.
The Business 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 Business 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 Business 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 Business Trust agrees to advise the
Distributor of the net asset value of the Trust's shares as
often as computed. The Business 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 Business Trust, each
as presently in effect. Insofar as they are applicable to
the Distributor as principal underwriter of the Business
Trust, it will comply with the provisions of the Declaration
of Trust and By-Laws of the Business 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 June 30 which next precedes the second
anniversary of the effective date of this Agreement, 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 Business 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 Business 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 Business 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 Business Trust on account
of its agreement contained in this paragraph, notify the
Business Trust in writing of the commencement thereof. The
omission of the Distributor or such controlling person so to
notify the Business Trust of any such litigation shall
relieve the Business 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 Business 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 Business Trust, the
Business 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 Business 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 Business
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 Business
Trust for liabilities (other than payment by the Business
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 Business 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 Business Trust the matter has been adjudicated by
controlling precedent, the Business 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 Business 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 Business 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
Business 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 Business 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 Business 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 Business 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
Business 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
Business 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 Business 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 Business 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 Business 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 Business Trust and shall survive any delivery of
shares of the Trust. The Distributor agrees to notify the
Business 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 Business 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 Business 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 Business 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 Business 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 Business 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 Business
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 Business 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
Business Trust's property; the Distributor represents that
it has notice of the provisions of the Business Trust's
Declaration of Trust disclaiming shareholder liability for
acts or obligations of the Business 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.
Cash Assets Trust
By:________________________________
ATTEST:
__________________________
Aquila Distributors, Inc.
By:________________________________
ATTEST:
__________________________
