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Exhibit 15(b)
XXXXXXXX-XxXXXXXX CASH RESERVES TRUST
MASTER DISTRIBUTION AGREEMENT
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AGREEMENT made this 23rd day of October, 1998_ by and between
Xxxxxxxx-XxXxxxxx Cash Reserves Trust (the "Trust"), a Massachusetts business
trust, and BISYS Fund Services Limited Partnership (the "Distributor"), an Ohio
limited partnership.
W I T N E S S E T H:
In consideration of the mutual convenants hereinafter contained,
the parties hereto agree as follows:
Section 1. APPOINTMENT OF THE DISTRIBUTOR.
(a) The Trust hereby appoints the Distributor as its agent to
arrange for the sale of shares of beneficial interest (the "Shares") of the
Gradison U.S. Government Reserves Fund, on the terms and for the period set
forth in this Agreement, and the Distributor hereby accepts such appointment and
agrees to act hereunder.
(b) Should the Trust establish any additional series subsequent to
the date hereof for which the Trust wishes to appoint the Distributor as its
agent to arrange for the sale of the shares thereof under the terms of this
Agreement, the Trust shall provide the Distributor with a written notice to such
effect. If the Distributor is willing to serve in such capacity, it shall
provide the Trust with a written notice to such effect, whereupon the shares of
such series, together with the shares of the Series named in Section 1(a)
hereunder, shall be included in the term "Shares" hereunder, and such series,
together with the Series named in Section 1(a) hereunder, shall be included in
the term "Series" hereunder.
(c) It is understood that purchases of Shares of the Series may be
made through other broker-dealers entering into agreements with either the Trust
or the Distributor and directly through the Trust in the manner set forth in the
Prospectus. As used in this Agreement, the term "Prospectus" shall mean the
prospectus(es) and statement(s) of additional information included in the
Trust's Registration Statement and relating to the Series for which the
Distributor serves in such capacity hereunder, and the term "Registration
Statement" shall mean the Registration Statement(s) most recently filed by the
Trust with the Securities and Exchange Commission and effective under the
Securities Act of 1933, as amended (the "1933 Act") and the Investment Company
Act of 1940, as amended (the "1940 Act"), as such Registration Statement is
amended by any amendments thereto at the time in effect.
Section 2. SERVICES AND DUTIES OF THE DISTRIBUTOR.
(a) The Distributor agrees to arrange to sell, as agent for the
Trust and from time to time during the term of this Agreement, the Shares of the
Series upon the terms described in the Prospectus.
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(b) During the continuous public offering of the Shares of the
Series, the Distributor will hold itself available to receive orders,
satisfactory to the Distributor, for the purchase of such Shares and will accept
such orders on behalf of the Trust as of the time of receipt of such orders and
will transmit such orders as are so accepted to the Trust as promptly as
practicable. Purchase orders shall be deemed effective at the time and in the
manner set forth in the Prospectus.
(c) The Distributor, as agent for the Trust and in its discretion,
may enter into agreements with such registered and qualified retail
broker-dealers as it may select pursuant to which such broker-dealers may also
arrange for the sale or sell Shares of the Series. The Distributor, as a retail
broker-dealer may also sell shares of the Series. When it does so, it shall do
so pursuant to a standard form of "Dealer's Agreement" as may be modified in the
future.
(d) The offering price of the Shares of each Series shall be the
net asset value per share of each such Series next determined following receipt
of an order plus the sales charge, if any, as stated in the Prospectus. The
Trust shall furnish the Distributor, with all possible promptness, advice of
each computation of each Series' net asset value. The Distributor shall receive
the entire amount of any sales charge as compensation for its services under
this Agreement; however, the Distributor shall reallow the portion of such
charge set forth in the Prospectus to broker-dealers entering into agreements
with the Distributor to sell Shares of the Series.
(e) In addition to the above, the Distributor shall collect fees in an
amount equal to a percentage (annual rate) of the assets of a Series' accounts
during the preceding month, as provided in Schedule A to this Agreement and
shall pay such fees to broker-dealers with which it has executed dealer
agreements as compensation for personal services rendered to shareholders of the
Trust, including providing shareholder liaison services such as responding to
shareholder inquiries and providing information to shareholders about their
Trust accounts, and/or as fees for other distribution services. Such amounts
shall be paid by the Trust at the end of each calendar month. The Trust's
obligation to make payments described in this paragraph (e) is contingent upon
the continuance of the Trust's Distribution Service Plan, and in that connection
it is understood that:
(i) such Plan shall remain in effect for one year from its
adoption date and may be continued from year to year
thereafter only if the Plan and any related agreements
are approved at least annually by a majority vote of the
Trustees of the Trust, including a majority of the
Trustees who are not "interested persons" of the Trust
and who have no direct or indirect financial interest in
the operation of the Plan or in any related agreement
("Independent Trustee"), cast in person at a meeting
called for the purpose of voting on such Plan and
agreements; and
(ii) the Plan may be terminated with respect to any Series at
any time by a majority vote of the Independent Trustees
or by vote of a majority of the outstanding voting
securities of the Series. In the event the Plan is not
continued or is terminated with respect to a Series, the
provisions of this Agreement pursuant to which fees are
paid to the Distributor shall automatically terminate
with respect to that Series.
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(f) The Distributor hereby agrees to use its best efforts to find
purchasers who shall purchase the Shares of the Series; it shall not be
obligated to sell any certain number of such Shares and nothing herein contained
shall prevent the Distributor from entering into like distribution arrangements
with other investment companies so long as the performance of its obligations
hereunder is not impaired thereby.
(g) The Distributor is authorized on behalf of the Trust to
purchase Shares of the Series presented to it by dealers at the price determined
in accordance with, and in the manner set forth in, the Prospectus.
Section 3. SERVICES NOT EXCLUSIVE. The services furnished by the
Distributor hereunder are not to be deemed exclusive and the Distributor shall
be free to furnish similar services to others so long as its services under this
Agreement are not impaired thereby. Nothing in this Agreement shall limit or
restrict the right of any director, officer or employee of the Distributor, who
may also be a Trustee, officer or employee of the Trust, to engage in any other
business or to devote his or her time and attention in part to the management or
other aspects of any other business, whether of a similar or dissimilar nature.
Section 4. DUTIES OF THE TRUST.
(a) The Trust agrees to sell the Shares of the Series so long as it
has such Shares available for sale and to issue, if requested by the purchaser
and if provided for by the Trust, certificates for the Shares of the Series,
registered in such names and amounts as the Distributor has requested in
writing, as promptly as practicable after receipt by the Trust of the net asset
value thereof and written request of the Distributor therefor. The Trust may at
any time withdraw offerings of the Shares of one or more Series by notice to the
Distributor.
(b) The Trust shall keep the Distributor fully informed with regard
to its affairs and the affairs of the Series and shall furnish to the
Distributor copies of all information, financial statements and other papers
which the Distributor may reasonably request for use in connection with the
distribution of the Shares. This shall include, without limitation, one copy of
all financial statements of the Trust and the Series prepared by independent
accountants and such reasonable number of copies of its most current Prospectus,
and annual and interim reports as the Distributor may request. The Trust shall
cooperate fully in the efforts of the Distributor to arrange for the sale of the
Shares and in the performance of the Distributor's duties under this Agreement.
(c) The Trust shall take, from time to time, all necessary action
to fix the number of authorized Shares of the Series and such steps, including
payment of the related filing fees, as may be necessary to register the same
under the 1933 Act so that there will be available for sale such number of
Shares of the Series as the Distributor may be expected to sell. The Trust
agrees to file from time to time such amendments, reports and other documents as
may be necessary in order that there may be no untrue statement of a material
fact in a Registration Statement or Prospectus, or necessary in order that there
may be no omission to state a material fact in the Registration Statement or
Prospectus which omission would make the statements therein, in light of the
circumstances under which they were made, misleading.
(d) The Trust shall use its best efforts to qualify and maintain
the qualification of an appropriate number of the Shares of the Series for
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sale under the securities laws of such states as the Distributor and the Trust
may approve, and, if necessary or appropriate in connection therewith, to
qualify and maintain the qualification of the Trust as a broker, dealer or
agent in such states; provided that the Trust shall not be required to amend
the Declaration of Trust or its By-Laws to comply with the laws of any state,
to maintain an office in any state, to change the terms of the offering of the
Shares of the Series in any state from the terms set forth in its Registration
Statement or Prospectus, to qualify as a foreign corporation, business trust or
similar entity in any state or to consent to service of process in any state
other than with respect to claims arising out of the offering of the Shares of
the Series. The Distributor shall furnish such information and other material
relating to its affairs and activities as may be required by the Trust in
connection with such qualifications.
Section 5. EXPENSES.
(a) The Trust shall bear all costs and expenses of the continuous
offering of the Shares of the Series in connection with: (i) fees and
disbursements of counsel and auditors, (ii) the preparation, filing and printing
of any registration statements and/or prospectuses required by and under the
federal securities laws, (iii) the preparation and mailing of annual and interim
reports and proxy materials to shareholders and (iv) the qualification of the
Shares for sale and of the Trust as a broker-dealer under the securities laws of
such states or other jurisdictions as shall be selected by the Trust and the
Distributor pursuant to Section 4(d) hereof and the cost and expenses payable to
each such state for continuing qualification therein. Any such costs and
expenses borne by the Trust which are attributable only to one Series will be
allocated to that Series; expenses which are not specifically allocable will be
allocated to each Series in a manner and on a basis determined in good faith by
the Trustees (including a majority of the Trustees who are not "interested
persons" (as defined in the 0000 Xxx) of the Trust, the Adviser or the
Distributor) to be fair and equitable.
(b) The Distributor shall bear the following expenses (on a Series
by Series basis, where applicable): (i) the costs and expenses of preparing,
printing and distributing any materials not prepared by the Trust and other
materials used by the Distributor in connection with the offering of the Shares
of the Series for sale to the public, including the additional cost of printing
copies of the Prospectus and of annual and interim reports to shareholders other
than the copies thereof required for distribution to existing shareholders or
for filing with any federal and state securities authorities, (ii) the expenses
of registration or qualification of the Distributor as a dealer or broker under
federal or state laws and the expenses of continuing such registration or
qualification; and (iii) any other distribution or promotional expenses incurred
by the Distributor in connection with such offering, except for any such
distribution or promotional expenses as are paid by one or more Series pursuant
to a Rule 12b-1 distribution plan.
Section 6. INDEMNIFICATION. The Trust agrees to indemnify, defend
and hold the Distributor, its officers , partners, and employees, and any person
who controls the Distributor within the meaning of Section 15 of the 1933 Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act"),
free and harmless from and against any and all claims, demands, liabilities and
expenses (including the cost of investigating or defending such claims, demands
or liabilities and any counsel fees incurred in connection therewith) which the
Distributor, its officers, partners,
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employees, or any such controlling person may incur under the 1933 Act, the
1934 Act, or under common law or otherwise, arising out of or based upon any
untrue statement of a material fact contained in the Registration Statement or
Prospectus or arising out of or based upon any alleged omission to state a
material fact required to be stated in either thereof or necessary to make the
statements in either thereof not misleading, except insofar as such claims,
demands, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information furnished in writing by the Distributor
to the Trust for use in the Registration Statement or Prospectus; provided,
however, that this indemnity agreement, to the extent that it might require
indemnity of any person who is also an officer or director of the Trust or who
controls the Trust within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act, shall not inure to the benefit of such officer, director or
controlling person unless a court of competent jurisdiction shall determine, or
it shall have been determined by controlling precedent, that such result would
not be against public policy as expressed in the 1933 Act; and further
provided, that in no event shall anything contained herein be so construed as
to protect the Distributor against any liability to the Trust or to its
security holders to which the Distributor would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the performance of
its duties, or by reason of its reckless disregard of its obligations under
this Agreement. The Trust's agreement to indemnify the Distributor, its
officers and directors and any such controlling person as aforesaid is
expressly conditioned upon the Trust being promptly notified of any action
brought against the Distributor, its officers or directors, or any such
controlling person, such notification to be given by letter or telegram
addressed to the Trust at its principal business office. The Trust agrees
promptly to notify the Distributor of the commencement of any litigation or
proceedings against it or any of its officers or directors in connection with
the issue and sale of any of its Shares. The Trust shall be entitled to
participate at its own expense in the defense or, if it so elects, to assume
the defense of any suit brought to enforce any claims subject to this indemnity
agreement. If the Trust elects to assume the defense of any such claim, the
defense shall be conducted by counsel chosen by the Trust and satisfactory to
indemnified defendants in the suit whose approval shall not be unreasonably
withheld. In the event that the Trust elects to assume the defense of a suit,
it will reimburse the indemnified defendants for the reasonable fees and
expenses of any counsel retained by the indemnified defendants.
The Distributor agrees to indemnify, defend and hold the Trust, its
trustees and officers and any person who controls the Trust, if any, within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the cost of investigating or defending such claims, demands or
liabilities and any counsel fees incurred in connection therewith) which the
Trust, its trustees or officers or any such controlling person may incur under
the 1933 Act, and the 1934 Act, or under common law or otherwise, but only to
the extent that such liability or expense incurred by the Trust, its trustees or
officers or such controlling person resulting from such claims or demands shall
arise out of or be based upon (i) any alleged untrue statement of a material
fact contained in information furnished in writing by the Distributor to the
Trust for use in the Registration Statement or Prospectus; (ii) any failure of
the Distributor or any investor purchasing Shares of a Series through the
Distributor to timely transmit good payment for the purchase of such Shares;
(iii) any material breach of the obligations of the Distributor under Section 7
of this Agreement; or (iv) any agreement between the Distributor and any retail
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dealer or any supplemental sales literature or advertising used by the
Distributor in connection with its duties under this Agreement except insofar
as such claims, demands, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with information furnished in writing
by the Trust to the Distributor for use in the Registration Statement or
Prospectus. The Distributor's agreement to indemnify the Trust, its trustees
and officers and any such controlling person as aforesaid, is expressly
conditioned upon the Distributor being promptly notified of any event giving
rise to rights of indemnification hereunder, including any action brought
against the Trust, its trustees or officers or any such controlling person,
such notification being given to the Distributor at its principal business
office. The Distributor shall be entitled to participate, at its own expense,
in the defense or, if it so elects, to assume the defense of any suit brought
to enforce the claim, but if the Distributor elects to assume the defense, the
defense shall be conducted by counsel chosen by the Distributor and
satisfactory to the indemnified defendants whose approval shall not be
unreasonably withheld. In the event the Distributor elects to assume the
defense of any suit and retain counsel, the defendants in the suit shall bear
the fees and expenses of any additional counsel retained by them. If the
Distributor does not elect to assume the defense of any suit, it will reimburse
the indemnified defendants in the suit for the reasonable fees and expenses of
any counsel retained by them.
Section 7. COMPLIANCE WITH SECURITIES LAWS. The Trust represents
that it is registered as an open-end management investment company under the
1940 Act, and agrees that it will comply with all of the provisions of the 1940
Act and of the rules and regulations thereunder. The Trust and the Distributor
each agree to comply with all of the applicable terms and provisions of the 1940
Act, the 1933 Act and, subject to the provisions of Section 4(d), all applicable
state "Blue Sky" laws. The Distributor agrees to comply with all of the
applicable terms and provisions of the 1934 Act.
Section 8. TERM OF AGREEMENT. This Agreement shall commence on the
date first set forth above. This Agreement shall continue in effect for a period
more than one year from the date hereof only so long as such continuance is
specifically approved at least annually in conformity with the requirements of
the 1940 Act.
Section 9. TERMINATION. This Agreement may be terminated with
respect to any Series at any time, without the payment of any penalty, by vote
of a majority of the outstanding voting securities of the respective Series or
by a vote of a majority of the members of the board of trustees of the Trust who
are not interested persons of the Trust and have no direct or indirect financial
interest in the operation of the plan or in any agreements related to the plan
on not less than sixty days' written notice to the Distributor. This Agreement
may also be terminated by the Distributor upon not less than sixty days' written
notice to the Trust. Any such notices shall be by delivery in person or by
registered or certified mail to the addresses of the parties as specified below.
In the event of termination, any sums due the Distributor for
itself for accounts serviced prior to termination will be paid within ten days
after the end of the month of such termination.
This Agreement shall terminate automatically in the event of its
assignment (within the meaning of the 0000 Xxx) unless such automatic
termination shall be prevented by an order of exemption from the Securities and
Exchange Commission.
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Section 10. NOTICES. Any notice required to be given pursuant to
this Agreement shall be deemed duly given if delivered or mailed by registered
mail, postage prepaid, (1) to the Distributor 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx
00000 (2) to the Trust at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000.
Section 11. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Ohio.
Section 12. AMENDMENT OF THIS AGREEMENT. No provision of this
Agreement may be changed, waived, discharged or terminated orally, but only by
an instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought.
Section 13. NON-LIABILITY OF SHAREHOLDERS, TRUSTEES, OFFICERS,
EMPLOYEES, REPRESENTATIVES AND AGENTS. A copy of the Declaration of Trust, as
amended, establishing the Trust is on file with the Secretary of the State of
Massachusetts, and notice is hereby given that this Agreement is executed on
behalf of the Trust by the Officers of the Trust as officers, and not
individually, and that the shareholders, trustees, officers, employees,
representatives or agents of the Trust shall not personally be bound by or
liable under this Agreement, nor shall resort be had to their private property
for the satisfaction of any obligation or claim thereunder, as more fully
provided under the terms of the Declaration of Trust.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
XXXXXXXX-XxXXXXXX CASH RESERVES TRUST
By:_/s/ Xxxxxxx X. Xxxxxxxxxx
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Secretary____________________
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BISYS FUND SERVICES LIMITED PARTNERSHIP
DBA BISYS FUND SERVICES
BY: BISYS FUND SERVICES INC., GENERAL PARTNER
By:_[illegible]____________________
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Master Distribution Agreement
between
Xxxxxxxx-XxXxxxxx Cash Reserves Trust
and
BISYS Fund Services Limited Partnership
Schedule A
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Service Fee
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Series Fee
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Gradison U.S. Government Reserves .10% of 1% of the
average daily net
assets of the Series
