This Agreement, made the day of December, 1992, by and
between Hawaiian Tax-Free Trust (the "Trust"), a Massachusetts
business trust with principal offices in New York, New York and
Aquila Distributors, Inc. ("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 invests in a portfolio of obligations
principally of Hawaii issuers the interest paid on which is exempt
from regular Federal and State of Hawaii income taxes;
2) Aquila serves and has served since 1985 as Distributor of
the Trust pursuant to a written distribution agreement (the
"Distribution Agreement");
3) Aquila in its capacity as Distributor of the Trust has, in
the course of performing its obligations to the Trust and its
activities in the best interests of the shareholders of the Trust,
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 Trust
or the administration of the Trust, Aquila has by reason of its
association with the Trust 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
Trust, 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 Trust, the information which
Aquila has obtained in its capacity of provider of services to the
Trust should, as provided herein, continue to be applied solely on
behalf of the Trust and its shareholders so long as Aquila provides
such services to the Trust 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, nor shall
they provide services directly or indirectly in the capacities here
specified to, or to receive fees for such services from, any
investment company which has a portfolio consisting primarily of
obligations principally of Hawaii issuers the interest paid on
which is exempt from regular Federal and State of Hawaii income
taxes; provided, however, that Aquila or any Aquila Affiliate may
provide services directly or indirectly to, or to 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 has
a portfolio consisting primarily of obligations principally of
Hawaii issuers the interest paid on which is exempt from regular
Federal and State of Hawaii income taxes) 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 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.
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:
Xxxxxxx X. Xxxxxxx, Senior 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.
HAWAIIAN TAX-FREE TRUST
by_______________________________
Xxxxxxx X. Xxxxxxx
Senior Vice President
AQUILA DISTRIBUTORS, INC.
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
its portfolio consists primarily of obligations principally of
Hawaii issuers the interest paid on which is exempt from regular
Federal and State of Hawaii income taxes. Notwithstanding the
exception contained in the prior sentence, the Pacific Capital
Funds Trust may include any series or class that is intended to
consist initially of assets previously held in the Discretionary
Common Trust Fund "C" of Hawaiian Trust Company, Limited (referred
to as the Tax Exempt Bond Fund) or Discretionary Common Trust Fund
"H" of Hawaiian Trust Company, Limited (referred to as the Tax
Exempt Short Intermediate Bond Fund).
