AMENDED AND RESTATED DISTRIBUTION AGREEMENT
August 1, 2000 as Amended and Restated May 3 2004
Credit Suisse Asset Management Securities, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements
hereinafter contained, each of the Credit Suisse Funds (and the portfolios
thereof, as applicable) listed in Exhibit A hereto (each a "Fund", and together,
the "Funds") have agreed that Credit Suisse Asset Management Securities, Inc.
("CSAMSI") shall be, for the period of this Agreement, the distributor of shares
of common stock or beneficial interest, as the case may be, of each Fund (the
"Shares"). The Fund's classes of Shares shall be designated as in the Fund's
Articles of Incorporation or Declaration of Trust, as applicable.
1. Services as Distributor
1.1 CSAMSI will be the "principal underwriter" of the Shares
(as defined in the Investment Company Act of 1940, as amended (the "1940 Act")),
and as such, will act as agent for the distribution of all classes of the Shares
covered by each Fund's registration statement on Form N-1A, under the Securities
Act of 1933, as amended (the "1933 Act"), and the 1940 Act (the registration
statement, together with the prospectuses (the "prospectus") and statements of
additional information (the "statement of additional information") included as
part of the registration statement, any amendments to the registration
statement, and any supplements to, or material incorporated by reference into
the prospectus or statement of additional information, being referred to
collectively in this Agreement as the "Registration Statement").
1.2 CSAMSI agrees to use appropriate efforts to solicit orders
for the sale of the Shares at such prices and on the terms and conditions set
forth in the Registration Statement. CSAMSI agrees to file with all necessary
regulatory authorities, such as the National Association of Securities Dealers,
Inc. (the "NASD") and the Securities and Exchange Commission (the "SEC"), such
advertising and sales literature as has been previously approved by the Funds.
CSAMSI agrees that it will have legal responsibility under all applicable laws,
rules and regulations, including the rules and regulations of the SEC and the
NASD, for the form and use of all advertising and sales literature for the Funds
which CSAMSI prepares, uses, approves for use and/or files with the SEC and/or
the NASD.
1.3 All activities by CSAMSI as distributor of the Shares
shall comply with all applicable laws, rules and regulations, including, without
limitation, all rules and regulations made or adopted by the SEC or by any
securities association registered under the Securities Exchange Act of 1934, as
amended.
1.4 CSAMSI agrees to (a) provide one or more persons during
normal business hours to respond to telephone questions concerning the Funds and
their respective performance, (b) accept purchase, redemption and exchange
orders by telephone or other appropriate means as agreed to with the Funds in
accordance with the pricing and other terms in each Registration Statement, (c)
provide prospectuses and application forms of other Credit Suisse Funds, as
applicable, upon request, (d) enter into distribution and service agreements
with broker-dealers and other financial intermediaries, and (e) perform such
other services as the parties may agree from time to time. CSAMSI will act only
on its own behalf as principal should it choose to enter into distribution or
service agreements but agrees not to enter into any such agreements without the
prior written consent of a duly authorized Fund officer.
1.5 CSAMSI acknowledges that, whenever in the judgment of a
Fund's officers such action is warranted for any reason, including, without
limitation, market, economic or political conditions, those officers may direct
CSAMSI to decline to accept any orders for, or make any sales of, any class of
the Shares until such time as those officers deem it advisable to accept such
orders and to make such sales. In addition, CSAMSI acknowledges that, whenever
in the judgment of a Fund's officers any person or group is likely to engage in
excessive trading, those officers may direct CSAMSI to decline to accept any
particular order to purchase shares of the Fund, including purchase by exchange.
1.6 CSAMSI will transmit any orders received by it for
purchase, redemption or exchange of the Shares to State Street Bank and Trust
Company ("State Street"), the Funds' transfer and dividend disbursing agent, or
its delegate or successor of which CSAMSI is notified in writing. A Fund will
promptly advise CSAMSI of the determination to cease accepting orders or selling
any class of the Shares or to recommence accepting orders or selling any class
of the Shares. Each Fund (or its agent) will confirm orders for the Shares
placed through CSAMSI, and will make appropriate book entries pursuant to the
instructions of CSAMSI. CSAMSI agrees to cause any payment for Shares received
by it and any instructions as to book entries received by it to be delivered
promptly to the relevant Fund (or its agent).
1.7 CSAMSI will prepare and deliver such quarterly reports as
requested by each Fund's governing board of directors or trustees, as the case
may be (the "Board"), and otherwise from time to time as requested by the Fund.
Such reports shall be substantially in the form requested by the Fund. If
requested by the Fund, one or more appropriate CSAMSI representatives shall
attend Board meetings at the expense of CSAMSI.
1.8(a) CSAMSI receives no compensation for serving as
distributor under this Agreement. However, CSAMSI may be paid a fee for
distribution-related services as set forth in the applicable Co-Administration
Agreement between CSAMSI and the relevant Fund.
(b) With respect to the shares of Common and Advisor Classes,
the Fund will pay certain amounts to certain persons consistent with the terms
of the Co-Administration Agreement between the Distributor and the Fund and the
distribution plans adopted with respect to such Classes.
Except as expressly amended by this Amendment, the
Distribution Agreement shall remain in full force and effect as the same was in
effect immediately prior to the
2
effectiveness of this Amendment. All references in the Distribution Agreement to
"this Agreement" shall be deemed to refer to the Distribution Agreement as
amended by this Amendment.
2. Duties of the Fund
2.1 Each Fund agrees at its own expense to execute any and all
documents, to furnish any and all information and to take any other actions that
may be reasonably necessary in connection with the sale of the Shares in those
states that CSAMSI may designate.
2.2 Each Fund shall from time to time furnish for use in
connection with the sale of the Shares, such informational reports with respect
to the Fund and the Shares as CSAMSI may reasonably request, all of which shall
be signed by one or more of the Fund's duly authorized officers; and the Fund
warrants that the statements contained in any such reports, when so signed by
one or more of the Fund's officers, shall be true and correct. Each Fund shall
also furnish CSAMSI upon request with: (a) annual audits of the Fund's books and
accounts made by independent public accountants regularly retained by the Fund,
(b) semiannual unaudited financial statements pertaining to the Fund, (c) a
monthly itemized list of the securities held by the Fund, (d) monthly balance
sheets and (e) such additional information regarding the Fund's financial
condition as CSAMSI may from time to time reasonably request.
3. Representations and Warranties
Each Fund represents and warrants to CSAMSI that the Fund's
current Registration Statement (a) includes all statements required to be
contained therein in conformity with the 1933 Act, the 1940 Act and the rules
and regulations of the SEC; (b) only contains statements of fact that will be
true and correct when such Registration Statement becomes effective; and (c)
will not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading. CSAMSI may, but shall not be obligated to, propose from
time to time such amendment or amendments to any Registration Statement and such
supplement or supplements to any prospectus or statement of additional
information as may, in the opinion of CSAMSI's counsel, be necessary or
advisable. If a Fund shall not propose such amendment or amendments and/or
supplement or supplements within fifteen (15) days after receipt by the Fund of
a written request from CSAMSI to do so, CSAMSI may, at its option, terminate
this Agreement. A Fund shall not file any amendment to any Registration
Statement or supplement to any prospectus or statement of additional information
without giving CSAMSI reasonable notice thereof in advance; provided, however,
that nothing contained in this Agreement shall in any way limit a Fund's right
to file at any time such amendments to any Registration Statement and/or
supplements to any prospectus or statement of additional information with
respect to any class of the Shares, of whatever character, as the Fund may deem
advisable, such right being in all respects absolute and unconditional.
4. Effectiveness of Registration
None of the Shares shall be offered by either CSAMSI or a Fund
under any of the provisions of this Agreement and no orders for the purchase or
sale of any class of the Shares
3
shall be accepted by CSAMSI if and so long as the effectiveness of the
Registration Statement shall be suspended under any of the provisions of the
1933 Act or if and so long as a current prospectus is not on file with the SEC;
provided, however, that nothing contained in this Section 4 shall in any way
restrict or have an application to or bearing upon the Fund's obligation to
repurchase its shares from any shareholder in accordance with the provisions of
the Registration Statement.
5. Indemnification
5.1 Each Fund agrees to indemnify, defend and hold CSAMSI, its
several officers and directors, and any person who controls CSAMSI within the
meaning of Section 15 of the 1933 Act (collectively, "CSAMSI Indemnified
Persons"), 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 CSAMSI Indemnified Persons, may incur arising out of or based
upon (a) any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement relating to such Fund; (b) any omission
or alleged omission to state a material fact required to be stated in any
Registration Statement relating to such Fund or necessary to make the statements
in any Registration Statement relating to such Fund not misleading; provided,
however, that each Fund's agreement to indemnify CSAMSI Indemnified Persons
shall not be deemed to cover any claims, demands, liabilities or expenses
arising out of or based upon any statements or representations made by CSAMSI or
its representatives or agents that are inconsistent with or vary from statements
and representations contained in any Registration Statement relating to such
Fund and in such financial and other statements relating to such Fund as are
furnished to CSAMSI pursuant to Section 2.2 hereof; or (c) the breach by a Fund
of this Agreement. A Fund's agreement to indemnify CSAMSI Indemnified Persons
and a Fund's representations and warranties hereinbefore set forth in Section 3
shall not be deemed to cover any liability to such Fund or its shareholders to
which CSAMSI Indemnified Persons would otherwise be subject by reason of willful
misfeasance, bad faith or gross negligence in the performance of their duties,
or by reason of CSAMSI's reckless disregard of its obligations and duties under
this Agreement. Each Fund's agreement to indemnify CSAMSI Indemnified Persons as
aforesaid, is expressly conditioned upon the Fund being notified of any action
brought against CSAMSI Indemnified Persons within ten (10) days after the
summons or other first legal process shall have been served. The failure to so
notify a Fund of any such action shall not relieve the Fund from any liability
that the Fund may have to the CSAMSI Indemnified Person by reason of any such
untrue or alleged untrue statement or omission or alleged omission otherwise
than on account of the Fund's indemnity agreement contained in this Section 5.1.
Each Fund's indemnification agreement contained in this Section 5.1 and each
Fund's representations and warranties in this Agreement shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any CSAMSI Indemnified Person, and shall survive the delivery of any
of the Shares and termination of this Agreement. This agreement of indemnity
will inure exclusively to CSAMSI's benefit, to the benefit of its several
officers and directors, and their respective estates, and to the benefit of the
controlling persons and their successors.
5.2 CSAMSI agrees to indemnify, defend and hold each Fund, the
Funds' investment adviser(s) (the "Adviser"), their several officers and
directors, and any person who
4
controls a Fund or the Adviser within the meaning of Section 15 of the 1933 Act
(collectively, "Fund Indemnified Persons"), free and harmless from and against
any and all claims, demands, liabilities and expenses (including the costs of
investigating or defending such claims, demands or liabilities and any counsel
fees incurred in connection therewith) which Fund Indemnified Persons may incur,
but only to the extent that such liability or expense incurred by the Fund
Indemnified Persons resulting from such claims or demands shall arise out of or
be based upon (a) any sales literature, advertisements, information, statements
or representations issued or made by CSAMSI without the prior written consent of
the Fund or its agent, (b) any untrue or alleged untrue statement of a material
fact contained in information furnished in writing by CSAMSI to a Fund
specifically for use in the Registration Statement relating to such Fund, (c)
any omission or alleged omission to state a material fact in connection with
such information required or necessary to make such information not misleading
or (d) the breach by CSAMSI of this Agreement. CSAMSI's agreement to indemnify a
Fund Indemnified Person, as aforesaid, is expressly conditioned upon CSAMSI's
being notified of any action brought against the Fund Indemnified Person, such
notification to be given in writing by the Fund Indemnified Person against whom
such action is brought, within ten (10) days after the summons or other first
legal process shall have been served. The failure to so notify CSAMSI of any
such action shall not relieve CSAMSI from any liability that CSAMSI may have to
the Fund Indemnified Person by reason of any such untrue or alleged untrue
statement or omission or alleged omission otherwise than on account of CSAMSI's
indemnity agreement contained in this Section 5.2.
5.3 In case any action shall be brought against any
indemnified party under Section 5.1 or 5.2, and it shall timely notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall wish to do so, to
assume the defense thereof with counsel satisfactory to such indemnified party.
If the indemnifying party opts to assume the defense of such action, the
indemnifying party will not be liable to the indemnified party for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than (a) reasonable costs of investigation or the
furnishing of documents or witnesses and (b) all reasonable fees and expenses of
separate counsel to such indemnified party if (i) the indemnifying party and the
indemnified party shall have agreed to the retention of such counsel or (ii) the
indemnified party shall have reasonably concluded that representation of the
indemnifying party and the indemnified party by the same counsel would be
inappropriate due to actual or potential differing interests between them in the
conduct of the defense of such action.
6. Notice to CSAMSI
Each Fund agrees to advise CSAMSI immediately in writing:
(a) of any request by the SEC for amendments to the
Registration Statement relating to such Fund then in effect with
respect to any class of the Shares or for additional information;
(b) in the event of the issuance by the SEC of any
stop order suspending the effectiveness of the Registration Statement
relating to such Fund then in effect with respect to any class of the
Shares or the initiation of any proceeding for that purpose;
5
(c) of the happening of any event that makes untrue
any statement of a material fact made in the Registration Statement
relating to such Fund then in effect with respect to any class of the
Shares or that requires the making of a change in such Registration
Statement in order to make the statements therein not misleading; and
(d) of the commencement of any litigation or
proceedings against the Fund or any of its officers or Board members in
connection with the issuance and sale of any class of the Shares.
7. Amendments; Assignments
This Agreement may be amended only by written agreement signed
by CSAMSI and each Fund. To the extent that a written amendment pursuant to this
Section is signed by some but not all of the Funds, such amendment shall be
effective only with respect to the Funds that signed such written amendment.
This Agreement may not be assigned by either party without the
prior written consent of the other party. This Agreement will also terminate
automatically in the event of its assignment (as defined in the 1940 Act).
8. Term of Agreement
This Agreement shall continue for an initial period of two
years and thereafter shall continue automatically for successive annual periods
with respect to a Fund, provided such continuance is specifically approved at
least annually by (a) a vote of a majority of the Fund's Board or (b) a vote of
a majority (as defined in the 0000 Xxx) of the Fund's outstanding voting
securities, provided that its continuance is also approved by a vote of a
majority of the Fund's Board members who are not interested persons (as defined
in the 0000 Xxx) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting on such approval. This Agreement is
terminable by a Fund without penalty (a) on sixty (60) days' written notice, by
a vote of a majority of the Fund's Board or by vote of a majority (as defined in
the 0000 Xxx) of the Fund's outstanding voting securities, or (b) on one hundred
twenty (120) days' written notice by CSAMSI.
9. Notices
All notices required to be given pursuant to this Agreement
shall be in writing, delivered by messenger or express mail or courier service
addressed as follows:
If to CSAMSI:
Credit Suisse Asset Management Securities, Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxx Xxxxxx, Esq.
6
If to a Fund:
c/o Credit Suisse Asset Management, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxx Xxxxxx, Esq.
Any such notice shall be deemed to have been duly given or made when
delivered to the addresses set forth above (a) on the date of delivery if sent
by hand or (b) on the designated date of delivery if sent by express mail or
courier service.
10. Limitation of Liability
It is expressly agreed that this Agreement was executed by or on behalf
of each Fund and not by the Board members of the Fund or its officers
individually, and the obligations of the Fund hereunder shall not be binding
upon any of the Board members, shareholders, nominees, officers, agents or
employees of the Fund individually, but bind only the assets and property of the
Fund. The execution and delivery of this Agreement have been authorized by the
Board and signed by an authorized officer of each Fund, acting as such, and
neither such authorization by such Board nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the assets
and property of the Fund.
The obligations of each Fund under this Agreement (i) are solely the
responsibility of the applicable Fund (and shall bind only the assets and
property of that Fund), and (ii) do not constitute the responsibilities and/or
liabilities of any of the other Funds that are parties to this Agreement.
11. Choice of Law
This Agreement shall be governed by and interpreted and
enforced in accordance with the laws of the State of New York without giving
effect to the choice-of-law provisions thereof.
12. Counterparts
This Agreement may be executed in counterparts, each of which
shall be deemed an original.
13. Headings
The headings of the Sections of this Agreement are for
convenience of reference only and are not to be considered in construing the
terms and provisions of this Agreement.
[Signature page follows.]
7
Please confirm that the foregoing is in accordance with your
understanding by indicating your acceptance hereof at the place below indicated,
whereupon it shall become a binding agreement between us.
Very truly yours,
THE CREDIT SUISSE FUNDS LISTED ON EXHIBIT A
By: /s/Xxx Xxxxxx
-------------
Xxx Xxxxxx
Title: Vice President and Secretary
Accepted:
CREDIT SUISSE ASSET MANAGEMENT SECURITIES, INC.
By: /s/Xxx Xxxxxx
-----------------
Name: Xxx Xxxxxx
Title: Secretary
8
EXHIBIT A
CREDIT SUISSE FUNDS
August 31 Fiscal Year End Funds ("August 31 Funds")
Credit Suisse Institutional Fixed Income Fund
Credit Suisse Institutional High Yield Fund
Credit Suisse Select Equity Fund
October 31 Fiscal Year End Funds ("October 31 Funds")
Credit Suisse Capital Appreciation Fund
Credit Suisse Emerging Markets Fund
Credit Suisse Fixed Income Fund
Credit Suisse Global Fixed Income Fund
Credit Suisse Global Post-Venture Capital Fund
Credit Suisse Institutional Fund
Capital Appreciation Portfolio
Harbinger Portfolio
International Focus Portfolio
Investment Grade Fixed Income Portfolio
Large Cap Value Portfolio
Select Equity Portfolio
Small Cap Growth Portfolio
Small Cap Value Portfolio
Credit Suisse International Focus Fund
Credit Suisse Japan Equity Fund
Credit Suisse Mid-Cap Growth Fund
Credit Suisse New York Municipal Fund
Credit Suisse Small Cap Growth Fund
December 31 Fiscal Year End Funds ("December 31 Funds")
Credit Suisse Cash Reserve Fund
Credit Suisse New York Tax Exempt Fund
Credit Suisse Trust
Blue Chip Portfolio
Emerging Markets Portfolio
Global Post-Venture Capital Portfolio
High Yield Portfolio
International Focus Portfolio
Large Cap Value Portfolio
Mid-Cap Growth Portfolio
Small Cap Growth Portfolio
Small Cap Value Portfolio
Strategic Small Cap Portfolio
9
