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EXHIBIT 23(e)2
PLACEMENT AGENCY AGREEMENT
November 1, 1998
Cadre Securities, Inc.
Xxxxxxxxxx, Xxx Xxxx 00000
Gentlemen:
This is to confirm that, in consideration of the agreements
hereinafter contained, Cadre Institutional Investors Trust, on behalf of the
series of the Trust named in Schedule A of this Agreement (each, a "Portfolio"
and collectively, the "Portfolios"), organized as a Delaware business trust and
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), as an open-end diversified management investment company, agrees that
Cadre Securities, Inc. ("CSI") shall be the placement agent (the "Placement
Agent") of shares of each Portfolio ("Shares"), and to confirm that CSI agrees
to serve in such capacity, in accordance with the terms of this Agreement.
Services as Placement Agent.
1.1 CSI will act as Placement Agent of the Shares of the Portfolios.
In acting as Placement Agent under this Agreement, neither CSI nor its employees
nor any agents thereof shall make any offer or sale of Shares in a manner which
would require the Shares to be registered under the Securities Act of 1933, as
amended (the "1933 Act").
1.2 All activities by CSI and its agents and employees as Placement
Agent of Shares 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 "Commission").
1.3 Nothing herein shall be construed to require the Trust to accept
any offer to purchase any Shares, all of which shall be subject to approval by
the Board of Trustees of the Trust.
1.4 The Trust shall furnish for use in connection with the sale of
Shares such information with respect to the Portfolios and Shares as CSI may
reasonably request from time to time. The Trust shall also furnish CSI upon
request with: (a) unaudited semiannual and audited annual statements of the
books and accounts of each Portfolio prepared by the Trust, and (b) such
additional information regarding the financial or regulatory condition of the
Trust and the Portfolios as CSI may from time to time reasonably request.
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1.5 The Trust represents to CSI that all registration statements filed
by the Trust with the Commission under the 1940 Act with respect to the
Portfolios 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 by the Trust 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 the Trust Portfolio. The Trust represents and warrants to CSI that any
registration 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 statements or amendments 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 Shares.
The Trust may but shall not be obligated to propose from time to time
such amendments 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 the Trust shall not propose such an amendment and/or supplement
within fifteen days after receipt by the Trust of a written request from CSI to
do so,
CSI may, at its option, terminate this Agreement. The Trust shall not file any
amendment to any registration statement without giving CSI reasonable notice
thereof in advance; provided, however, that nothing contained in this Agreement
shall in any way limit the 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 The Trust agrees to indemnify, defend and hold CSI, its several
officers and directors, and any person who controls CSI within the meaning of
Section 15 of the 1933 Act or Section 20 of the Securities and Exchange Act of
1934 (the "1934 Act") (for purposes of this paragraph 1.6, collectively,
"Covered 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, arising out of or based on any untrue
statement of a material fact contained in any registration statement, private
placement memorandum or other offering material relating to the Portfolios
("Offering Material") or arising out of or based on 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
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not misleading; provided, however, that the 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 CSI in its capacity as 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 by CSI of such
information required to be stated in such answers or necessary to make the
answers not misleading; and further provided that the Trust's agreement to
indemnify CSI and the Trust's representations and warranties herein before 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.
The 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, c/o Xxxxxxx X. Xxxxxxxx, Esq., Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, with a copy to Xxxxxxx X. Xxxxxxxx, 000 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, 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 the Trust of any such action shall not relieve the Trust
from any liability except to the extent that the Trust shall have been
prejudiced by such failure, or from any liability that the Trust may have to the
Covered Person against whom such action is brought by reason of any such untrue
statement or omission, otherwise than on account of the Trust's indemnity
agreement contained in this paragraph.
The 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 CSI, which approval shall not be unreasonably withheld. In the event the
Trust elects to assume the defense of any such suit and retain counsel of good
standing approved by CSI, 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 the Portfolio does not elect to assume the defense of any such suit, or in
case CSI 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 CSI or such Covered Person.
The Trust's indemnification agreement contained in this paragraph and
the 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 Shares.
This agreement of indemnity will inure exclusively to Covered Persons and their
successors.
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The Trust agrees to notify CSI 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 Shares.
1.7 CSI agrees to indemnify, defend and hold the Trust, its several
officers and Trustees, and any person who controls the 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, "Covered 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, liabilities and any
counsel fees incurred in connection therewith) that Covered Persons may incur
under the 1933 Act, the 1934 Act, or 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 any untrue
statement of a material fact contained in information furnished in writing by
CSI in its capacity as Placement Agent for use in the answers to any of the
items of any registration statement or in any statements in any Offering
Material or shall arise out of or be based on any omission to state a material
fact in connection with such information furnished in writing by CSI to the
Portfolio required to be stated in such answers or necessary to make such
information not misleading.
CSI shall be notified of any action brought against a Covered Person,
such notification to be given by letter or telegram addressed to CSI at 000
Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Xxxxxxx X. Xxxxxxxx, Xx.,
promptly after the summons or other first legal process shall have been duly and
completely served upon such Covered Person. CSI shall have the right of first
control of the defense of the action with counsel of its own choosing
satisfactory to the Trust if such action is based solely on such alleged
misstatement or omission on CSI's part, and in any other event each Covered
Person shall have the right to participate in the defense or preparation of the
defense of any such action. The failure to so notify CSI of any such
action shall not relieve CSI from any liability except to the extent that CSI
shall have been prejudiced by such failure, or from any liability that CSI may
have to Covered Persons by reason of any such untrue or alleged untrue
statement, or omission or alleged omission, otherwise than on account of CSI's
indemnity agreement contained in this paragraph.
1.8 No Shares shall be offered by either CSI or the Trust under any of
the provisions of this Agreement and no orders for the purchase or sale of
Shares hereunder shall be accepted by the Trust 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 the Trust's obligation to redeem Shares
from any investor in accordance with the provisions of the Trust's registration
statement or its Declaration of Trust, as amended from time to time.
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1.9 The Trust agrees to advise CSI as soon as reasonably practical by
a notice in writing delivered to CSI or its counsel:
(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 or by a court
of any order suspending the effectiveness of the registration statement then in
effect or prohibiting the offering or sale of Shares, or the initiation by
service of process on the Trust of any proceeding for any such purposes;
(c) of the happening of any event that makes untrue any statement
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 In addition to the services provided by CSI as Placement Agent
pursuant to this Agreement, CSI and its affiliates provide various other
services to the Trust and the Portfolios for which they receive compensation.
CSI therefore agrees to provide services pursuant to this Agreement without the
payment by the Trust or the Portfolios of any compensation therefor.
2. Term.
This Agreement shall become effective on the date first above written
and, unless sooner terminated as provided herein, shall continue until June __,
2000, and thereafter shall continue in effect with respect to a Portfolio
automatically for successive annual periods, provided such continuance is
specifically approved at least annually on behalf of such Portfolio by (i) the
Board of Trustees of the Trust or (ii) by a vote of a majority (as defined in
the 0000 Xxx) of the Portfolio's outstanding voting securities, provided that in
either event the continuance is also approved by the majority of the Trustees of
the Trust who are not interested persons (as defined in the 0000 Xxx) of the
Trust or CSI, by vote cast in person at a meeting called for the purpose of
voting on such approval. This Agreement is terminable without penalty with
respect to the Trust or any Portfolio, on not less than 60 days' notice: by the
Board of Trustees of the Trust; by vote of a majority (as defined in the 0000
Xxx) of a Portfolio's outstanding voting securities (but only with respect to
such Portfolio); or by CSI.
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This Agreement will also terminate automatically in the event of its assignment
(as defined in the 1940 Act and the rules thereunder). The provisions of
paragraphs 1.6 and 1.7 shall survive the termination of this Agreement.
3. Representations and Warranties.
CSI and the 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. Governing Law, etc.
This Agreement shall be governed and interpreted in accordance with
the laws of the State of New York (without reference to conflict of law
principles) and the applicable provisions of the 1940 Act. To the extent that
any provisions of New York law conflict with the 1940 Act, the latter shall
control.
The Trust and CSI agree that the obligations of the Trust under this
Agreement shall not be binding upon any of the members of the Board of Trustees,
shareholders, nominees, officers, employees or agents, whether past, present or
future, of the Trust, individually, but are binding only upon the assets and
property of the Portfolios, as provided in the Declaration of Trust.
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If the foregoing 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 upon commencement of the operations of the Portfolios.
Yours very truly,
CADRE INSTITUTIONAL INVESTORS
TRUST PORTFOLIO
By: /s/ Xxxxxxx X. Xxxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxx, Xx.
President
Accepted:
CADRE SECURITIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice Chairman
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Schedule A
The Placement Agency Agreement between the Trust and CSI shall apply
to the offering of Shares of the following Portfolios:
U.S. Government Money Market Portfolio
Money Market Portfolio
This Schedule A may be amended from time to time upon the agreement of
the Trust and CSI.
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