Exhibit (5)(e)
DEALER AGREEMENT
AGREEMENT dated as of __________, 199__ by and among CypressTree Funds
Distributors, Inc. ("Cypress"), a Delaware corporation and ___________________
("Selling Dealer"), each of whom is registered as a broker-dealer under the
Securities and Exchange Act of 1934, as amended, and is a member of the
National Association of Securities Dealers, Inc. ("NASD").
I. INTRODUCTION
WHEREAS, Cypress has been appointed Principal underwriter of the shares of one
or more management investment companies registered under the Investment Company
Act of 1940 (the "Act") engaged in a continuous offering of shares ("Fund" or
"Funds") and has the rights as agent for the Funds to sell shares of the Funds;
and
WHEREAS, Selling dealer wishes to participate in the distribution of the shares
of the Funds;
NOW THEREFORE, in consideration of the premises of the mutual covenants
hereinafter contained, the parties hereto agree as follows:
II. AGREEMENT TO SELL
Subject to the terms of and conditions set forth in the Agreement, Cypress
shall, acting as agent for the Funds and not as principal, sell shares of the
Funds to Selling Dealer which shall, acting as principal (dealer) for its own
account and not as broker or agent for, or employee of, Cypress or the Fund,
resell such shares to the public.
III. TERMS AND CONDITIONS
All transactions in shares of the Funds shall be subject to the following terms
and conditions:
1. Shares will be offered pursuant to the then current prospectus of a
Fund. If such prospectus contains provisions inconsistent with this Agreement,
the prospectus shall control.
2. Orders received from Selling Dealer will be accepted through Cypress
only at the public offering price applicable to each order as set forth in the
then current prospectus of a Fund. All orders from Selling Dealer will be
confirmed by or on behalf of a Fund in writing. Procedures for processing orders
shall be determined by Cypress and instructions relating thereto shall be
forwarded to selling Dealer from time to time. A Fund and Cypress each may
accept or reject any order in their sole discretion.
3. Cypress will pay to Selling Dealer from its own assets, and not from
Fund assets, such discounts or commission payments as specified in Schedule A
hereto and in the circumstances set forth in the then current prospectus of a
Fund.
4. If any shares of a Fund sold to Selling Dealer under the terms of this
Agreement are tendered for redemption or repurchase within seven business days
after the date of the confirmation of the original purchase by Selling Dealer,
Selling Dealer shall forfeit its rights to any discount or commission with
respect to such shares. Cypress shall notify Selling Dealer of any such
redemption or repurchase within ten business days from the date on which the
request for redemption or repurchase is delivered to Cypress or to a Fund, and
Selling Dealer shall immediately refund to Cypress any discount or commission
allowed or paid in connection with such sale. In the event of any such
redemption or repurchase, Cypress shall refund to a Fund its share of the sales
charge.
5. Selling Dealer shall purchase shares of a Fund only from the Fund
through Cypress and from Selling Dealer's customers. It is expressly understood
that Selling Dealer will not purchase shares subject to a periodic repurchase
offer from its customers. If shares are purchased from a Fund, Selling Dealer
agrees that all such purchases shall be made only to cover orders already
received by Selling Dealer or for its own bona fide investment. If shares are
purchased from customers, Selling Dealer agrees to pay such customers not less
than the price to be paid by a Fund with respect to purchase accepted through
Cypress at such time.
6. Selling Dealer shall sell shares only: (a) to customers at the public
offering price which is the next determined net asset value per share after the
order is received, in states where shares of the Fund may be legally sold by
Selling Dealer and in accordance with the terms of the then current prospectus,
registrations and permits of the Fund; and (b) to the Fund upon tender for
redemption or repurchase, which redemption or repurchase shall be effected in
the manner set forth in the then current prospectus of a Fund. In the event of
such a tender, excluding those pursuant to Rule 23c-3 under the Act, Selling
Dealer may act as principal for its own account, it agrees to
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pay its customer not less than the price received from a Fund or Cypress acting
for a Fund. 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.
7. All sales of shares of a Fund by Selling Dealer shall be made at the
public offering price as determined as set forth in the then current prospectus
of a Fund, and the Selling Dealer shall not withhold orders from Cypress so as
to profit as a result of such withholding.
8. Cypress will not forward to a Fund for acceptance any conditional order
from Selling Dealer for the sale, repurchase or redemption of shares of the
Fund.
9. Payment for shares ordered by Selling Dealer must be received by a
Fund's transfer agent by the later of: (a) three business days after Selling
Dealer receives such customer's purchase order; or (b) one business day after
Selling Dealer receives payment from the customer. If such payment is not so
received, a Fund or Cypress as agent for a Fund reserves the right, without
notice, to immediately cancel the sale, in which case Selling Dealer shall be
held responsible for any loss, including loss of profit, suffered by Cypress or
a Fund resulting from the failure of Selling Dealer to make payment as specified
above.
10. Unless other arrangements for payment and delivery are made, shares of
a Fund sold to Selling Dealer pursuant to this Agreement shall be available for
delivery, against payment, at the office of State Street Bank and Trust Company,
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, unless otherwise agreed to by
Cypress.
11. No person is authorized to make any representations concerning the
shares of a Fund except those contained in the then current prospectus of a Fund
and in such other printed information subsequently issued by a Fund of Cypress
as information supplemental to such prospectus. Any such supplemental materials
shall not be modified by Selling Dealer without the prior written consent of
Cypress. Moreover, Selling Dealer shall not make use of any advertisement or
sales literature which refers specifically to a Fund unless such material has
been approved in writing by Cypress prior to its first use by Selling Dealer. In
purchasing shares of a Fund from Cypress, Selling Dealer shall rely solely on
the
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representations contained in the then current prospectus of a Fund and
supplemental information referred to above.
12. Cypress shall provide Selling Dealer upon request, without any expense
to Selling Dealer, copies in reasonable numbers of the then current prospectus
of a Fund, any information issued supplementing such prospectus and such other
material as Cypress determines is necessary or desirable for use in connection
with sales of the shares of a Fund.
13. A Fund and Cypress each reserve the right in their discretion, without
notice, to suspend sales or withdraw the offering of the shares of a Fund
entirely.
14. Cypress will, upon request, inform Selling Dealer as to the states in
which shares of a Fund have been qualified for sale under, or are exempt from
the requirements of, applicable state securities laws. Cypress assumes no
responsibility or obligation, however, as to Selling Dealer's right to sell
shares of a Fund in any jurisdiction.
15. Selling Dealer appoints a Fund's transfer agent as its agent to execute
the purchase transactions of shares of a 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 purchasing shares of a Fund and any other person or entity in whose
name shares are to be registered.
16. In the event of a tender pursuant to a Rule 23c-3 periodic repurchase
offer conducted in accordance with procedures described in a Fund's prospectus,
Selling Dealer may act as principal for its own account or as agent for its
customer. Selling Dealer shall notify Cypress 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 by its customers, and forwarding such tenders to a
Fund or Cypress in a timely fashion, according to the terms of the repurchase
offer, and shall indemnify and hold harmless Cypress 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 a Fund, Cypress or any
affiliate of a Fund or Cypress, in the conduct of repurchase offers.
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17. Selling Dealer agrees that it will not sell any shares of a Fund
subject to a periodic repurchase offer to any account over which it exercises
discretionary authority.
GENERAL PROVISIONS
A. 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.
B. BINDING EFFECT
This Agreement shall be binding on and shall inure to the benefit of
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.
C. 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.
D. DISPUTES
All parties agree to this Agreement agree to abide by the NASD's Business
Conduct Rules and agree 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.
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E. GOVERNING LAW
This Agreement shall be construed in accordance with and governed by the
laws of the Commonwealth of Massachusetts.
F. AMENDMENT OF AGREEMENT
Cypress reserves the right to amend this Agreement at any time and Selling
Dealer agrees that an order to purchase shares of a Fund placed after notice of
any such amendment shall constitute Selling Dealer's consent to any such
amendment.
G. 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.
H. LIABILITY
Cypress shall have full authority to take such action as it may deem
advisable in respect of all matters pertaining to the continuous offering.
Cypress shall be under no liability to Selling Dealer except for lack of good
faith, gross negligence, willful misconduct, and for obligations expressly
assumed by Cypress 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.
I. PROSPECTUS
If the Prospectus contains any provisions inconsistent with the terms of
the Agreement, the Prospectus shall control.
J. 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.
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For CypressTree Funds Distributors, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
Attention: Xxxxxx X. Xxxxx
For Selling Dealer
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Tel. _______________________________
Attention: ________________________
CRD Number: ________________________
I. SIGNATURES
CypressTree Funds Distributors, Inc.
By:
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Name and Title (Please Print)
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Signature
Selling Dealer:
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By:
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Name and Title (Please Print)
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Signature
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Back Office/Operations Contact
Tel:______________________________________________
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Xxx Xxxxx
Prior to joining Cypress, Xx. Xxxxx was a founding member of BankBoston's
Leverage Finance Group dedicated to the origination of and investment in
leveraged bank loans. Xx. Xxxxx managed a $2.5 billion loan portfolio that
experienced essentially no credit losses.
In addition, Xx. Xxxxx co-managed a $2 billion portfolio of commercial and
industrial problem loans and was a key player in accomplishing the Bank's
dramatic reduction of problem assets.
As Vice President for European American Bank he managed a loan workout team
responsible for a $500 million loan portfolio. Xx. Xxxxx was also a lending
officer in the Bank's energy and utility division.
Xx. Xxxxx began his career with Xxxxxxxxx-Xxxx in the construction and mining
division.
