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EX-(e)(2)
BISYS FUND SERVICES LIMITED PARTNERSHIP, DISTRIBUTOR
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DEALER AGREEMENT
Ladies and Gentlemen:
As the principal underwriter of the shares ("Shares") of each investment company
portfolio ("Fund") listed in Exhibit A attached hereto, which may be amended
from time to time, BISYS Fund Services Limited Partnership ("BISYS") hereby
agrees with you as follows:
1. You hereby represent that you are a member in good standing of the
National Association of Securities Dealers, Inc. ("NASD") and that you
are a broker-dealer properly registered and qualified under all
applicable federal, state and local laws to engage in the business and
transactions described in this Agreement. You also represent that you
are a member in good standing of the Securities Investor Protection
Corporation ("SIPC"). We both agree to abide by the Rules of Fair
Practice of the NASD and all applicable laws, rules and regulations,
including applicable federal and state securities laws, rules and
regulations that are now or may become applicable to transactions
hereunder. You agree that it is your responsibility to determine the
suitability of any Fund Shares as investments for your customers, and
that BISYS has no responsibility for such determination. You further
agree to maintain all records required by applicable law or otherwise
reasonably requested by BISYS relating to Fund transactions that you
have executed. In addition, you agree to notify us immediately in the
event your status as a SIPC member changes.
2. We have furnished you with a list of the states or other jurisdictions
in which necessary filings have been made to permit Fund Shares to be
offered and sold. Such list appears in Exhibit B attached hereto.
Necessary filings may be made from time to permit Shares of the Fund to
be offered and sold in states or jurisdictions other than those listed
in Exhibit B. Those states or jurisdictions are incorporated into
Exhibit B by reference. You agree to indemnify us and/or the Funds for
any claim, liability, expense or loss in any way arising out of a sale
of Shares in any state or jurisdiction in which necessary filings have
not been made to permit such Shares to be offered and sold.
3. In all sales of Fund Shares, you shall act as agent for your customers
or as principal for your own bona fide investment. In no transaction
shall you act as our agent or as agent for any Fund or the Funds'
Transfer Agent. As agent for your customers, you are hereby authorized
to: (i) place orders directly with the investment company (the
"Company") for the purchase of Shares and (ii) tender Shares to the
Company for redemption, in each case subject to the terms and
conditions set forth in the applicable prospectus ("Prospectus") and
the operating procedures and policies established by us. The minimum
dollar purchase of Shares shall be the applicable minimum amount set
forth in the applicable Prospectus, and no order for less than such
amount shall be accepted by you. The procedures relating to the
handling of orders shall be subject to instructions which we shall
forward to you from time to time. All orders are subject to acceptance
or rejection by BISYS in its sole discretion. No person is authorized
to make any representations concerning Shares of any Fund except such
representations contained in the relevant then-current Prospectus and
statement of additional information ("Statement of Additional
Information") and in such supplemental information that may be supplied
to you by us for a Fund. If you should make such an unauthorized
representation, you agree to indemnify the Funds and us from and
against any and all claims, liability, expense or
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loss in any way arising out of or in any way connected with such
representation. You are specifically authorized to distribute the
Prospectus and Statement of Additional Information and sales material
received from us. No person is authorized to distribute any other sales
material relating to a Fund without our prior written approval. You
further agree to deliver, upon our request, copies of any relevant
amended Prospectus and Statement of Additional Information to
shareholders of the Fund to whom you have sold Shares. As agent for
your customers, you shall not withhold placing customers' orders for
any Shares so as to profit yourself as a result of such withholding and
shall not purchase any Shares from us except for the purpose of
covering purchase orders already received.
If any Shares purchased by you are repurchased by a Fund or by us for
the account of a Fund, or are tendered for redemption within seven
business days after confirmation by us of the original purchase order
for such Shares, (i) you agree forthwith to refund to us the full
concession allowed to you on the original sale and (ii) we shall
forthwith pay to such Fund that part of the discount retained by us on
the original sale. Notice will be given to you of any such repurchase
or redemption within ten days of the date on which the tender of Shares
for redemption is delivered to us or to the Fund. Neither party to this
Agreement shall purchase any Shares from a record holder at a price
lower than the net asset value next computed by or for the issuer
thereof. Nothing in this subparagraph shall prevent you from selling
Shares for the account of a record holder to us or the issuer and
charging the investor a fair commission for handling the transaction.
Any order placed by you for the repurchase of Shares of a Fund is
subject to the timely receipt by the Company of all required documents
in good order. If such documents are not received within a reasonable
time after the order is placed, the order is subject to cancellation,
in which case you agree to be responsible for any loss resulting to the
Fund or to us from such cancellation.
4. We will furnish you, upon request, with offering prices for the Shares
in accordance with the then-current Prospectuses for the Funds, and you
agree to quote such prices subject to confirmation by us on any Shares
offered to you for sale. The public offering price shall equal the net
asset value per Share of a Fund plus a front-end sales load, if
applicable. For Funds with a front-end sales load, you will receive a
discount from the public offering price as outlined in the current
Prospectus. For Funds with a contingent deferred sales load, you will
receive from us, or a paying agent appointed by us, a commission in the
amount shown in Exhibit C. We reserve the right to waive sales charges.
Each price is always subject to confirmation, and will be based upon
the net asset value next computed after receipt by us of an order that
is in good form. You acknowledge that it is your responsibility to date
and time stamp all orders received by you and to transmit such orders
promptly to us. You further acknowledge that any failure to promptly
transmit such orders to us that causes a purchaser of Shares to be
disadvantaged, based upon the pricing requirements of Rule 22c-1 under
the 1940 Act, shall be your sole responsibility. We reserve the right
to cancel this Agreement at any time without notice if any Shares shall
be offered for sale by you at less than the then-current offering price
determined by or for the applicable Fund.
5. Your customer will be entitled to a front-end sales load reduction with
respect to purchases made under a letter of intent ("Letter of Intent")
or right of accumulation ("Right of Accumulation") described in the
Prospectuses. In such case, your dealer's concession will be based upon
such reduced sales load; however, in the case of a Letter of Intent
signed by your customer, an adjustment to a higher dealer's concession
will thereafter be made to reflect actual purchases by your customer if
he or she should fail to fulfill the Letter of Intent. Your customer
will be entitled to an additional front-end sales load reduction in
those instances in which the customer makes purchases that exceed the
dollar amount indicated in the Letter of Intent and qualifies for an
additional front-end sales load reduction pursuant to the appropriate
Prospectus. In such case, your dealer's concession will be reduced to
reflect such additional
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sales load reduction. When placing wire trades, you agree to advise us
of any Letter of Intent signed by your customer or of any Right of
Accumulation available to such customer of which he or she has made you
aware. If you fail to so advise us, you will be liable for the return
of any commissions plus interest thereon.
6. With respect to orders that are placed for the purchase of Fund Shares,
unless otherwise agreed, settlement shall be made with the Company
within three (3) business days after our acceptance of the order. If
payment is not so received or made, we reserve the right to cancel the
sale, or, at our option, to sell the Shares to the Funds at the then
prevailing net asset value. In this event or in the event that you
cancel the trade for any reason, you agree to be responsible for any
loss resulting to the Funds or to us from your failure to make payments
as aforesaid. You shall not be entitled to any gains generated thereby.
7. You shall be responsible for the accuracy, timeliness and completeness
of any orders transmitted by you on behalf of your customers by wire or
telephone for purchases, exchanges or redemptions, and shall indemnify
us against any claims by your customers as a result of your failure to
properly transmit their instructions. In addition, you agree to
guarantee the signatures of your customers when such guarantee is
required by the Prospectus of a Fund. In that connection, you agree to
indemnify and hold harmless all persons, including us and the Funds'
Transfer Agent, against any and all loss, cost, damage or expense
suffered or incurred in reliance upon such signature guarantee.
8. No advertisement or sales literature with respect to a Fund (as such
terms are defined in the NASD's Rules of Fair Practice) shall be used
by you without first having obtained our approval.
9. Neither of us shall be liable to the other except for (1) acts or
failures to act which constitute a lack of good faith or negligence and
(2) obligations expressly assumed under this Agreement. In addition,
you agree to indemnify us and hold us harmless from any claims or
assertions relating to the lawfulness of your participation in this
Agreement and the transactions contemplated hereby or relating to any
activities of any persons or entities affiliated with your organization
which are performed in connection with the discharge of your
responsibilities under this Agreement. If such claims are asserted, we
shall have the right to manage our own defense, including the selection
and engagement of legal counsel, and all costs of such defense shall be
borne by you.
10. This Agreement will automatically terminate in the event of its
assignment. This Agreement may be terminated by either of us, without
penalty, upon ten days' prior written notice to the other party. This
Agreement may also be terminated at any time without penalty; with
respect to the Company or a Fund, by the vote of a majority of the
members of the Company's Board of Directors who are not "interested
persons" (as such term is defined in the 1940 Act), or (with respect to
a Fund) by a vote of a majority of the outstanding voting securities of
that Fund on ten days' written notice.
11. All communications to us shall be sent to the address set forth on page
1 hereof or at such other address as we may designate in writing. Any
notice to you shall be duly given if mailed or telecopied to you at the
address set forth below or at such other address as you may provide in
writing.
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12. You hereby represent that all requisite corporate proceedings have been
undertaken to authorize
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you to enter into this Agreement and to perform the services
contemplated herein. You further represent that the individual that has
signed this Agreement below is a duly elected officer that has been
empowered to act for and on behalf of your organization with respect to
the execution of this Agreement.
13. This Agreement supersedes any other agreement between us with respect
to the offer and sale of Shares and relating to any other matters
discussed herein. All covenants, agreements, representations and
warranties made herein shall be deemed to have been material and relied
on by each party. The invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of any
other term or provision thereof. This Agreement may be executed in any
number of counterparts, which together shall constitute one instrument,
and shall be governed by and construed in accordance with the laws
(other than the conflict of laws rules) of the State of Ohio and shall
bind and insure to the benefit of the parties hereto and their
respective successors and assigns.
If the foregoing corresponds with your understanding of our agreement, please
sign this document and the accompanying copies thereof in the appropriate space
below and return the same to us, whereupon this Agreement shall be binding upon
each of us, effective as of the date of execution.
BISYS FUND SERVICES LIMITED PARTNERSHIP The foregoing Agreement is hereby
BY: BISYS FUND SERVICES, INC., GENERAL accepted:
PARTNER
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Company Name
By By
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Authorized Officer Date Authorized Officer Date
Title:
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BISYS FUND SERVICES LIMITED PARTNERSHIP
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EXHIBIT A
INVESTMENT PORTFOLIOS OF
ESC STRATEGIC MUTUAL FUNDS
FUND TYPE CUSIP SYMBOL
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ESC Strategic Appreciation Fund Class A Stock 269050100 ESSAX
ESC Strategic Int'l Equity Fund Class A Intl Stock 269050308 ESGAX
ESC Strategic Income Fund Class A Bond 269050506 ESIAX
ESC Strategic Value Fund Class A Stock 269050811 ESVAX
ESC Strategic Small Cap II Class A Stock 269050837 EGRAX
ESC Strategic Small Cap Class A* Stock 269050704 ESCAX
ESC Strategic Appreciation Fund Class D Stock 269050209 ESSDX
ESC Strategic Int'l Equity Fund Class D Intl Stock 269050407 ESGDX
ESC Strategic Income Fund Class D Bond 269050605 ESIDX
ESC Strategic Value Fund Class D Stock 269050795 N/A
ESC Strategic Small Cap II Fund Class D Stock 269050829 N/A
ESC Strategic Small Cap Class D* Stock 269050803 ESCDX
*PLEASE NOTE, THE ESC STRATEGIC SMALL CAP FUND (CLASS A & D) IS CLOSED TO NEW ACCOUNTS.
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BISYS FUND SERVICES LIMITED PARTNERSHIP
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EXHIBIT B
ESC STRATEGIC MUTUAL FUNDS
BLUE SKY INFORMATION
APPRECIATION FUND
INTERNATIONAL EQUITY FUND
SMALL CAP II FUND
INCOME FUND
SMALL CAP FUND
VALUE FUND
CLASS A & D SHARES
BLUE SKY STATES
AS OF DECEMBER 31, 1998
All 50 States including District of Columbia, Guam,
Puerto Rico and the Virgin Islands,
Except New Jersey
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BISYS FUND SERVICES LIMITED PARTNERSHIP
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EXHIBIT C
ESC STRATEGIC MUTUAL FUNDS
COMMISSION AMOUNT PAYABLE FOR FUNDS
CHARGING A CONTINGENT DEFERRED SALES LOAD
1. percent of the public offering price
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X 2. Not Applicable
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(Place a check next to the appropriate category)
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