Exhibit 9(i) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
September 30, 1996
Edgewood Services, Inc.
Federated Investors Tower
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Ladies and Gentlemen:
Re: EXCLUSIVE PLACEMENT AGENT AGREEMENT
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned open-end management investment companies
(collectively, the `Trusts'') registered under the Investment Company Act of
1940, as amended (the `1940 Act''), each organized as a business trust under
the laws of the State of New York, has agreed that Edgewood Services, Inc., a
New York corporation (`ESI''), shall be the exclusive placement agent (the
`Exclusive Placement Agent'') of beneficial interests (``Trust Interests'') of
each series of the Trusts.
1. Services as Exclusive Placement Agent.
1.1 ESI will act as Exclusive Placement Agent of the Trust Interests.
In acting as Exclusive Placement Agent under this Exclusive Placement Agent
Agreement, neither ESI nor its employees or any agents thereof shall make any
offer or sale of Trust Interests in a manner which would require the Trust
Interests to be registered under the Securities Act of 1933, as amended (the
`1933 Act'').
1.2 All activities by ESI and its agents and employees as Exclusive
Placement Agent of Trust Interests shall comply with all applicable laws, rules
and regulations, including, without limitation, all rules and regulations
adopted pursuant to the 1940 Act by the Securities and Exchange Commission (the
``ommission'').
1.3 Nothing herein shall be construed to require a Trust to accept
any offer to purchase any Trust Interests, all of which shall be subject to
approval by the Trust's Board of Trustees.
1.4 The Trusts shall furnish from time to time for use in connection
with the sale of Trust Interests such information with respect to the Trust and
Trust Interests as ESI may reasonably request. The Trusts shall also furnish
ESI upon request with: (a) unaudited semiannual statements of the Trust's books
and accounts prepared by the Trust, and (b) from time to time such additional
information regarding the Trust's financial or regulatory condition as ESI may
reasonably request.
1.5 Each Trust represents to ESI that all registration statements
filed by the Trust with the Commission under the 1940 Act with respect to Trust
Interests have been prepared in conformity with the requirements of such statute
and the rules and regulations of the Commission thereunder. As used in this
Agreement the term `registration statement'' shall mean any registration
statement filed with the Commission, as modified by any amendments thereto that
at any time shall have been filed with the Commission by or on behalf of a
Trust. Each Trust represents and warrants to ESI that any registration
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statement will contain all statements required to be stated therein in
conformity with both such statute and the rules and regulations of the
Commission; that all statements of fact contained in any registration statement
will be true and correct in all material respects at the time of filing of such
registration statement or amendment thereto; and that no registration statement
will 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 to a purchaser of Trust Interests. The Trusts may but shall not
be obligated to propose from time to time such amendment to any registration
statement as in the light of future developments may, in the opinion of the
Trust's counsel, be necessary or advisable. If a Trust shall not propose such
amendment and/or supplement within fifteen days after receipt by the Trust of a
written request from ESI to do so, ESI may, at its option, terminate this
Agreement. The Trusts shall not file any amendment to any registration
statement without giving ESI reasonable notice thereof in advance; provided,
however, that nothing contained in this Agreement shall in any way limit a
Trust's right to file at any time such amendment to any registration statement
as the Trust may deem advisable, such right being in all respects absolute and
unconditional.
1.6 Each Trust severally agrees to indemnify, defend and hold ESI, its
several officers and directors, and any person who controls ESI within the
meaning of Section 15 of the 1933 Act or Section 20 of the Securities Exchange
Act of 1934 (the ``934 Act'') (for purposes of this paragraph 1.6,
collectively, the ``overed 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 any Covered Person may incur under
the 1933 Act, the 1934 Act, common law, or otherwise, but only to the extent
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that such liability or expense incurred by a Covered Person resulting from such
claims or demands shall arise out of or be based on (i) any untrue statement of
a material fact contained in any registration statement, private placement
memorandum or other offering material (`Offering Material'') or (ii) any
omission to state a material fact required to be stated in any Offering Material
or necessary to make the statements in any Offering Material not misleading;
provided, however, that each Trust's agreement to indemnify Covered Persons
shall not be deemed to cover any claims, demands, liabilities or expenses
arising out of any financial and other statements as are furnished in writing to
the Trust by ESI in its capacity as Exclusive Placement Agent for use in the
answers to any items of any registration statement or in any statements made in
any Offering Material, or arising out of or based on any omission or alleged
omission to state a material fact in connection with the giving of such
information required to be stated in such answers or necessary to make the
answers not misleading; and further provided that each Trust's agreement to
indemnify ESI and each Trust's representation and warranties hereinbefore set
forth in paragraph 1.5 shall not be deemed to cover any liability to the Trust
or its investors to which a Covered Person would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance of its
duties, or by reason of a Covered Person's reckless disregard of its obligations
and duties under this Agreement. A Trust shall be notified of any action
brought against a Covered Person, such notification to be given by letter or by
telegram addressed to the Trust, Federated Investors Tower, 0000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000-0000, Attention: Secretary, with a copy to Xxxxxx X.
Xxxxxxx, Esq., Xxxxxxx Xxxx & Xxxxxxxxx, One Citicorp Center, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000, promptly after the summons or other first legal
process shall have been duly and completely served upon such Covered Person.
The failure to so notify a Trust of any such action shall not relieve the Trust
(i) from any liability except to the extent the Trust shall have been prejudiced
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by such failure, or (ii) from any liability that the Trust may have to the
Covered Person against whom such action is brought by reason of any such untrue
or alleged untrue statement, or omission or alleged omission, otherwise than on
account of the Trust's indemnity agreement contained in this paragraph. Each
Trust will be entitled to assume the defense of any suit brought to enforce any
such claim, demand or liability, but in such case such defense shall be
conducted by counsel of good standing chosen by the Trust and approved by ESI,
which approval shall not be unreasonably withheld. In the event a Trust elects
to assume the defense in any such suit and retain counsel of good standing
approved by ESI, the defendant or defendants in such suit shall bear the fees
and expenses of any additional counsel retained by any of them; but in case a
Trust does not elect to assume the defense of any such suit, or in case ESI
reasonably does not approve of counsel chosen by the Trust, the Trust will
reimburse the Covered Person named as defendant in such suit, for the fees and
expenses of any counsel retained by ESI or the Covered Persons. Each Trust's
indemnification agreement contained in this paragraph and each Trust'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
Covered Persons, and shall survive the delivery of any Trust Interests. This
agreement of indemnity will inure exclusively to Covered Persons and their
successors. Each Trust agrees to notify ESI promptly of the commencement of any
litigation or proceedings against the Trust or any of its officers or Trustees
in connection with the issue and sale of any Trust Interests.
1.7 ESI agrees to indemnify, defend and hold each Trust, its several
officers and trustees, and any person who controls a Trust within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act (for purposes of this
paragraph 1.7, collectively, the `Covered Persons'') free and harmless from and
against any and all claims, demands, liabilities and expenses (including the
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costs of investigating or defending such claims, demands, liabilities and any
counsel fees incurred in connection therewith) that Covered Persons may incur
under the 1933 Act, the 1934 Act, common law, or otherwise, but only to the
extent that such liability or expense incurred by a Covered Person resulting
from such claims or demands shall arise out of or be based on (i) any untrue
statement of a material fact contained in information furnished in writing by
ESI in its capacity as Exclusive Placement Agent to the Trusts for use in the
answers to any of the items of any registration statement or in any statements
in any other Offering Material, or (ii) any omission to state a material fact in
connection with such information furnished in writing by ESI to a Trust required
to be stated in such answers or necessary to make such information not
misleading. ESI shall be notified of any action brought against a Covered
Person, such notification to be given by letter or telegram addressed to ESI at
Federated Investors Tower, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000,
Attention: Secretary, promptly after the summons or other first legal process
shall have been duly and completely served upon such Covered Person. The
failure to so notify ESI of any such action shall not relieve ESI (i) from any
liability except to the extent a Trust shall have been prejudiced by such
failure, or (ii) from any liability that ESI may have to the Covered Person
against whom such action is brought by reason of any such untrue or alleged
untrue statement, or omission or alleged omission, otherwise than on account of
ESI's indemnity agreement contained in this paragraph. ESI will be entitled to
assume the defense of any suit brought to enforce any such claim, demand or
liability, but in such case such defense shall be conducted by counsel of good
standing chosen by ESI and approved by the Trust, which approval shall not be
unreasonably withheld. In the event that ESI elects to assume the defense in
any such suit and retain counsel of good standing approved by a Trust, the
defendant or defendants in such suit shall bear the fees and expenses of any
additional counsel retained by any of them; but in case ESI does not elect to
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assume the defense of any such suit, or in case a Trust reasonably does not
approve of counsel chosen by ESI, ESI will reimburse the Covered Person named as
defendant in such suit, for the fees and expenses of any counsel retained by the
Trust or the Covered Persons. ESI's indemnification agreement contained in this
paragraph and ESI'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 Covered Persons, and shall survive the delivery of any
Trust Interests. This agreement of indemnity will inure exclusively to Covered
Persons and their successors. ESI agrees to notify each Trust promptly of the
commencement of any litigation or proceedings against ESI or any of its officers
or directors in connection with the issue and sale of any Trust Interests.
1.8 No Trust Interests shall be offered by either ESI or the Trusts
under any of the provisions of this Agreement and no orders for the purchase or
sale of Trust Interests hereunder shall be accepted by the Trusts if and so long
as the effectiveness of the registration statement or any necessary amendments
thereto shall be suspended under any of the provisions of the 1940 Act;
provided, however, that nothing contained in this paragraph shall in any way
restrict or have an application to or bearing on a Trust's obligation to redeem
Trust Interests from any investor in accordance with the provisions of the
Trust's registration statement or Declaration of Trust, as amended from time to
time. Each Trust shall notify ESI promptly of the suspension of its
registration statement or any necessary amendments thereto, such notification to
be given by letter or telegram addressed to ESI at Federated Investors Tower,
0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Secretary.
1.9 Each Trust agree to advise ESI as soon as reasonably practical by
a notice in writing delivered to ESI or its counsel:
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(a) of any request by the Commission for amendments to the
registration statement then in effect or for additional information;
(b) in the event of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement then in effect or the
initiation by service of process on a Trust of any proceeding for that purpose;
(c) of the happening of any event that makes untrue any statements of
a material fact made in the registration statement then in effect or that
requires the making of a change in such registration statement in order to make
the statements therein not misleading; and
(d) of all action of the Commission with respect to any amendment to
any registration statement that may from time to time be filed with the
Commission.
For purposes of this paragraph 1.9, informal requests by or acts of
the Staff of the Commission shall not be deemed actions of or requests by the
Commission.
1.10 ESI agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trusts all records and
other information not otherwise publicly available relative to the Trusts and
their respective prior, present or potential investors and not to use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification to and
approval in writing by a Trust, which approval shall not be unreasonably
withheld and may not be withheld where ESI may be exposed to civil or criminal
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contempt proceedings for failure to comply, when requested to divulge such
information by duly constituted authorities, or when so requested by a Trust.
1.11 In addition to ESI's duties as Exclusive Placement Agent, the
Trusts understand that ESI may, in its discretion, perform additional functions
in connection with transactions in Trust Interests.
The processing of Trust Interest transactions may include, but is not
limited to, compilation of all transactions from ESI's various offices; creation
of a transaction tape and timely delivery of it to the Trusts' transfer agent
for processing; reconciliation of all transactions delivered to the Trusts'
transfer agent; and the recording and reporting of these transactions executed
by the Trusts' transfer agent in customer statements; rendering of periodic
customer statements; and the reporting of IRS Form 1099 information at year end
if required.
ESI may also provide other investor services, such as communicating
with Trust investors and other functions in administering customer accounts for
Trust investors.
ESI understands that these services may result in cost savings to the
Trusts or to the Trusts' investment manager and neither the Trusts nor the
Trusts' investment manager will compensate ESI for all or a portion of the costs
incurred in performing functions in connection with transactions in Trust
Interests. Nothing herein is intended, nor shall be construed, as requiring ESI
to perform any of the foregoing functions.
1.12 Except as set forth in paragraph 1.6 of this Agreement, the
Trusts shall not be liable to ESI or any Covered Persons as defined in paragraph
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1.6 for any error of judgment or mistake of law or for any loss suffered by ESI
in connection with the matters to which this Agreement relates, except a loss
resulting from the willful misfeasance, bad faith or gross negligence on the
part of a Trust in the performance of its duties or from reckless disregard by a
Trust of its obligations and duties under this Agreement.
1.13 Except as set forth in paragraph 1.7 of this Agreement, ESI shall
not be liable to any Trust or any Covered Persons as defined in paragraph 1.7
for any error of judgment or mistake of law or for any loss suffered by a Trust
in connection with the matters to which this Agreement relates, except a loss
resulting from the willful misfeasance, bad faith or gross negligence on the
part of ESI in the performance of its duties or from reckless disregard by ESI
of its obligations and duties under this Agreement.
2. Term.
This Agreement shall become effective on the date first written above
and, unless sooner terminated as provided herein, shall continue until one year
from the date first written above, and thereafter shall continue automatically
for successive annual periods, provided such continuance is specifically
approved at least annually with respect to each Trust by (i) each Trust's Board
of Trustees or (ii) by a vote of a majority (as defined in the 1940 Act) of each
Trust's outstanding voting securities, provided that in either event the
continuance is also approved by the majority of the Trust's Trustees who are not
interested persons (as defined in the 1940 Act) of the Trust and who have no
direct or indirect financial interest in this Agreement, by vote cast in person
at a meeting called for the purpose of voting on such approval. This Agreement
is terminable without penalty, on not less than 60 days' notice, by a Board, by
a vote of a majority (as defined in the 1940 Act) of a Trust's outstanding
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voting securities, or by ESI. This Agreement will also terminate automatically
in the event of its assignment (as defined in the 1940 Act and the rules
thereunder).
3. Representations and Warranties.
ESI and each Trust each hereby represents and warrants to the other
that it has all requisite authority to enter into, execute, deliver and perform
its obligations under this Agreement and that, with respect to it, this
Agreement is legal, valid and binding, and enforceable in accordance with its
terms.
4. Concerning Applicable Provisions of Law, etc.
This Agreement shall be subject to all applicable provisions of law,
including the applicable provisions of the 1940 Act and to the extent that any
provisions herein contained conflict with any such applicable provisions of law,
the latter shall control.
The laws of the State of New York shall, except to the extent that any
applicable provisions of Federal law shall be controlling, govern the
construction, validity and effect of this Agreement, without reference to
principles of conflicts of law.
The undersigned officer of each Trust has executed this Agreement not
individually, but as President under each Trust's Declaration of Trust, as
amended. Pursuant to the Declaration of Trust, the obligations of this
Agreement are not binding upon any of the Trustees or investors of the Trust
individually, but bind only the trust estate.
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If the contract set forth herein is acceptable to you, please so indicate
by executing the enclosed copy of this Agreement and returning the same to the
undersigned, whereupon this Agreement shall constitute a binding contract
between the parties hereto effective at the closing of business on the date
hereof.
Very truly yours,
Xxxxxxx X. Xxxxx, Xx.
By:/s/ Xxxxxxx X. Xxxxx, Xx.
Vice President, on behalf of the Trusts listed
on Exhibit A, attached hereto:
Accepted:
EDGEWOOD SERVICES, INC..
By:/s/ X. Xxxxxxx Xxxx
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EXHIBIT A
TO
EXCLUSIVE PLACEMENT AGENT AGREEMENT
Pursuant to the Exclusive Placement Agreement, ESI shall be Exclusive
Placement Agent with respect to the following Trusts, effective as of the date
indicated below:
Name of Trust Date
BT Investment Portfolios:
Liquid Assets Portfolio September 30, 1996
Asset Management Portfolio II September 30, 1996
Asset Management Portfolio III September 30, 1996
Global High Yield Securities PortfolioSeptember 30, 1996
Latin American Equity Portfolio September 30, 1996
Small Cap Portfolio September 30, 1996
Pacific Basin Equity Portfolio September 30, 1996
European Equity Portfolio September 30, 1996
International Bond Portfolio September 30, 1996
100% Treasury Portfolio September 30, 1996
Growth and Income Portfolio September 30, 1996
U.S. Bond Index Portfolio September 30, 1996
Equity 500 Equal Weighted Index Portfolio September 30, 1996
Small Cap Index Portfolio September 30, 1996
EAFE Equity Index Portfolio September 30, 1996
Cash Management Portfolio September 30, 1996
Treasury Money Portfolio September 30, 1996
Tax Free Money Portfolio September 30, 1996
International Equity Portfolio September 30, 1996
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Utility Portfolio September 30, 1996
Equity 500 Index Portfolio September 30, 1996
Short/Intermediate U.S. Government Securities PortfolioSeptember 30, 1996
Asset Management Portfolio September 30, 1996
Capital Appreciation Portfolio September 30, 1996
Intermediate Tax Free Portfolio September 30, 1996
093096
093096
