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 Hawaiian Trust Company, Limited
("HTCo"), a trust company organized under the laws of
Hawaii with principal offices in Honolulu, Hawaii,
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) HTCo serves and has served since 1985 as
investment adviser for the Trust pursuant to a written
advisory agreement (the "Advisory Agreement"), which in
accordance with a provision of the 1940 Act is terminable
upon 60 days' notice by the Trust;
3) HTCo in its capacity as investment adviser to 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, and although not involved in
administration of the Trust or the marketing or
distribution of shares of the Trust, HTCo has by reason of
its association with the Trust been informed of valuable
and sensitive information concerning such administration,
marketing and distribution;
4) The Trust and HTCo have agreed upon certain
additional arrangements set forth herein that would be
beneficial to the Trust, not as a part of the Advisory
Agreement or related to the subject matter covered thereby,
but in furtherance of the relationship contemplated by the
Advisory Agreement;
5) The Trust and HTCo have agreed that in the best
interests of shareholders of the Trust, the information
which HTCo 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 HTCo 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 HTCo contained
herein in the Trust's continuing determinations to refrain
from the exercise of its right to terminate the Advisory
Agreement at any time upon sixty days' notice and in its
annual determinations as to whether or not the Trust will
renew the Advisory 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) HTCo is 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
HTCo nor any HTCo Affiliate shall serve as investment
adviser, administrator, sponsor, promoter, or principal
underwriter of any investment company that competes
directly with the Trust and shall not provide services
directly or indirectly in the capacities here specified to,
or receive fees for such service 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 HTCo or any
HTCo Affiliate may provide services directly or indirectly
in the capacities listed herein 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 HTCo 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 HTCo if the Board of Trustees of the Trust
terminates or does not renew the Advisory Agreement absent
a good faith determination that HTCo has failed to perform
its responsibilities under the Advisory Agreement by reason
of willful misfeasance, bad faith or gross negligence or
that HTCo has recklessly disregarded its obligations and
duties under the Advisory Agreement.
3. Application of Agreement. The obligations
under this Agreement shall apply to HTCo and all HTCo
Affiliates and HTCo 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:
Xxxx X. Xxxxxxxx, Chairman and President
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000;
if to HTCo, addressed to:
Xxxxxxx Xxxxxxxxx, Chairman
Hawaiian Trust Company, Limited
Financial Plaza of the Pacific
Xxx 0000
Xxxxxxxx, 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_______________________________
Xxxx X. Xxxxxxxx,
Chairman and President
HAWAIIAN TRUST COMPANY, LIMITED
by_______________________________
Xxxxxxx Xxxxxxxxx,
Chairman
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).
