Exhibit 9(i)
THIRD PARTY FEEDER FUND
AGREEMENT AMONG
XXXXXXX, XXXXXXX & XXXXX, INC.
XXXXXXX INVESTMENT TRUST
EQUITY 500 INDEX PORTFOLIO
AND
BANKERS TRUST COMPANY
dated as of
August 28, 1997
AGREEMENT
THIS ("Agreement") is made and entered into as of the 28th day of August,
1997, by and among XXXXXXX, XXXXXXX & XXXXX, INC. ("XXXXXXX"), XXXXXXX
INVESTMENT TRUST (the "Company"), a Massachusetts business trust, in respect of
XXXXXXX S&P 500 INDEX FUND, a series thereof (the "Fund"), EQUITY 500 INDEX
PORTFOLIO, a trust organized under the common law of the State of New York (the
"Portfolio"), and BANKERS TRUST COMPANY, a New York banking corporation (the
"Adviser"), with respect to the proposed investment by the Fund in the
Portfolio.
WITNESSETH
WHEREAS, the Company and the Portfolio are each open-end management
investment companies and the Fund and the Portfolio have the same investment
objectives and substantively the same investment policies;
WHEREAS, the Adviser currently serves as the investment adviser of the
Portfolio;
WHEREAS, Xxxxxxx Investor Services, Inc. (the "Distributor") currently
serves as the principal underwriter and XXXXXXX serves as manager of the Fund;
WHEREAS, the Company desires to invest all of the Fund's investable assets
in the Portfolio in exchange for a beneficial interest in the Portfolio (the
"Investment") on the terms and conditions set forth in this Agreement; and
WHEREAS, the Portfolio believes that accepting the Investment is in the
best interests of the Portfolio and that the interests of existing investors in
the Portfolio will not be diluted as a result of its accepting the Investment;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein made and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
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I
THE INVESTMENT
1.1 Agreement to Effect the Investment. The Company agrees to assign, transfer
and deliver all of the Fund's investable assets (the "Assets") to the Portfolio
at each Closing (as hereinafter defined). The Portfolio agrees in exchange
therefor to issue to the Fund a beneficial interest (the "Interest") in the
Portfolio equal in value to the net asset value of the Assets of the Fund
conveyed to the Portfolio on that date of Closing.
II
CLOSING AND CLOSING DATE
2.1 Time of Closing. The conveyance of the Assets in exchange for the Interest,
as described in Article I, together with related acts necessary to consummate
such transactions, shall occur initially on the date the Company commences its
offering of shares of the Fund to the public and at each subsequent date on
which the Company desires to make a further Investment in the Portfolio (each, a
"Closing"). All acts occurring at any Closing shall be deemed to occur
simultaneously as of the last daily determination of the Portfolio's net asset
value on the date of Closing.
2.2 Related Closing Matters. On each date of Closing, the Company, on behalf of
the Fund, shall authorize the Fund's custodian to deliver all of the Assets held
by such custodian to the Portfolio's custodian. The Fund's and the Portfolio's
custodians shall each acknowledge, in a form acceptable to the other party, its
respective delivery and acceptance of the Assets. The Portfolio shall deliver to
the Company acceptable evidence of the Fund's ownership of the Interest. In
addition, each party shall deliver to each other party such bills of sale,
checks, assignments, securities instruments, receipts or other documents as such
other party or its counsel may reasonably request. Each of the representations
and warranties set forth in Article III shall be deemed to have been made anew
on each date of Closing.
III
REPRESENTATIONS AND WARRANTIES
3.1 The Company. The Company represents and warrants to the Portfolio and the
Adviser that:
(a) Organization. The Company is a business trust duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts, the Fund is a duly and validly designated series of the Company,
and the Company and the Fund have the requisite power and authority to own their
property and conduct their business as now being conducted and as proposed to be
conducted pursuant to this Agreement.
(b) Authorization of Agreement. The execution and delivery of this
Agreement by the Company and the consummation of the transactions contemplated
hereby have been duly
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authorized by all necessary action on the part of the Company and no other
action or proceeding is necessary for the execution and delivery of this
Agreement by the Company, the performance by the Company of its obligations
hereunder and the consummation by the Company of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company in respect of
the Fund, enforceable against them in accordance with its terms, except as may
be limited by or subject to any bankruptcy, insolvency, reorganization,
moratorium or other similar law affecting the enforcement of creditors' rights
generally, and subject to general principles of equity.
(c) Authorization of Investment. The Investment has been duly authorized
by all necessary action on the part of the Board of Trustees of the Company.
(d) No Bankruptcy Proceedings. Neither the Company nor the Fund is under
the jurisdiction of a court in a proceeding under Title 11 of the United States
Code (the "Bankruptcy Code") or similar case within the meaning of Section
368(a)(3)(A) of the Bankruptcy Code.
(e) Fund Assets. The Fund's Assets will, at the initial Closing, consist
solely of cash.
(f) Fiscal Year. The fiscal year end for the Fund is December 31.
(g) Auditors. The Company has appointed Coopers & Xxxxxxx LLP as the
Fund's independent public accountants to certify the Fund's financial statements
in accordance with Section 32 of the Investment Company Act of 1940, as amended
("1940 Act").
(h) Registration Statement. The Company has reviewed the Portfolio's
registration statement on Form N-lA, as filed with the Securities and Exchange
Commission ("SEC"), and understands and agrees to the Portfolio's policies and
methods of operation as described therein.
(i) Errors and Omissions Insurance Policy. XXXXXXX currently has in force
errors and omissions liability insurance policies, issued by multiple carriers,
insuring the Fund (together with other XXXXXXX affiliates) against loss of up to
an aggregate of $50 million for negligence or wrongful acts.
(j) SEC Filings. The Company has duly filed all forms, reports, proxy
statements and other documents (collectively, the "SEC Filings") required to be
filed under the Securities Act of 1933, as amended (the "1933 Act"), the
Securities Exchange Act of 1934 (the "1934 Act") and the 1940 Act (collectively,
the "Securities Laws") in connection with the registration of its shares, any
meetings of its shareholders and its registration as an investment company. The
SEC filings were prepared in accordance with the requirements of the Securities
Laws, as applicable, and the rules and regulations of the SEC thereunder, and do
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(k) 1940 Act Registration. The Company is duly registered as an open-end
management investment company under the 1940 Act and the Fund and its shares are
registered or qualified in
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any states where such registration or qualification is necessary and such
registrations or qualifications are in full force and effect.
(1) Principal Underwriter. The Distributor serves as the Fund's principal
underwriter and is duly registered as a broker-dealer under the 0000 Xxx.
3.2 The Portfolio. The Portfolio represents and warrants to the Company and
XXXXXXX that:
(a) Organization. The Portfolio is a trust duly organized and validly
existing under the common law of the State of New York and has the requisite
power and authority to own its property and conduct its business as now being
conducted and as proposed to be conducted pursuant to this Agreement.
(b) Authorization of Agreement. The execution and delivery of this
Agreement by the Portfolio and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the
Portfolio by its Board of Trustees and no other action or proceeding is
necessary for the execution and delivery of this Agreement by the Portfolio, the
performance by the Portfolio of its obligations hereunder and the consummation
by the Portfolio of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Portfolio and constitutes a legal, valid
and binding obligation of the Portfolio, enforceable against it in accordance
with its terms, except as may be limited by or subject to any bankruptcy,
insolvency, reorganization, moratorium or other similar law affecting the
enforcement of creditors' rights generally, and subject to general principles of
equity.
(c) Authorization of Issuance of Interest. The issuance by the Portfolio
of the Interest in exchange for the Investment by the Fund of its Assets has
been duly authorized by all necessary action on the part of the Board of
Trustees of the Portfolio. When issued in accordance with the terms of this
Agreement, the Interest will be validly issued, fully paid and non-assessable by
the Portfolio.
(d) No Bankruptcy Proceedings. The Portfolio is not under the jurisdiction
of a court in a proceeding under Title 11 of the Bankruptcy Code or similar case
within the meaning of Section 368(a)(3)(A) of the Bankruptcy Code.
(e) Fiscal Year. The fiscal year end of the Portfolio is December 31.
(f) Auditors. The Portfolio has appointed Coopers & Xxxxxxx LLP as the
Portfolio's independent public accountants to certify the Portfolio's financial
statements in accordance with Section 32 of the 1940 Act.
(g) Registration Statement. The Portfolio has reviewed the Company's
registration statement on Form N-lA, which pertain to the Fund and filed with
the SEC, and understands and agrees to the Fund's policies and methods of
operation as described therein.
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(h) Errors and Omissions Insurance Policy. The Portfolio has in force an
errors and omissions liability insurance policy insuring the Portfolio against
loss of up to $10 million for negligence or wrongful acts.
(i) SEC Filings. The Portfolio has duly filed all SEC Filings required to
be filed with the SEC pursuant to the Securities Laws in connection with any
meetings of its investors and its registration as an investment company.
Beneficial interests in the Portfolio are not required to be registered under
the 1933 Act because such interests are offered solely in private placement
transactions that do not involve any `public offering' within the meaning of
Section 4(2) of the 1933 Act. The SEC Filings were prepared in accordance with
the requirements of the Securities Laws, as applicable, and the rules and
regulations of the SEC thereunder, and do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) 1940 Act Registration. The Portfolio is duly registered as an open-end
management investment company under the 1940 Act and such registration is in
full force and effect.
(k) Tax Status. The Portfolio is taxable as a partnership under the
Internal Revenue Code of 1986, as amended (the "Code").
3.3 The Adviser. The Adviser represents and warrants to the Company and XXXXXXX
that:
(a) Organization. The Adviser is a New York banking corporation duly
organized, validly existing and in good standing under the laws of the State of
New York and has the requisite power and authority to conduct its business as
now being conducted.
(b) Authorization of Agreement. The execution and delivery of this
Agreement by the Adviser have been duly authorized by all necessary action on
the part of the Adviser and no other action or proceeding is necessary for the
execution and delivery of this Agreement by the Adviser. This Agreement has been
duly executed and delivered by the Adviser and constitutes a legal, valid and
binding obligation of the Adviser, enforceable against it in accordance with its
terms, except as may be limited by or subject to any bankruptcy, insolvency,
reorganization, moratorium or other similar law affecting the enforcement of
creditors' rights generally, and subject to general principles of equity.
(c) Advisers Act. The Adviser is exempt from the definition of an
investment adviser under the Investment Advisers Act of 1940, as amended the
("Advisers Act"), and is not required to register under that Act.
(d) To the best of its knowledge, after due diligence and inquiry, the
Portfolio's representations in 3.2(c)-(k) above are true and correct.
(e) Agents. To the extent agents perform services under this Agreement
that are the responsibility of the Adviser, the Adviser shall be responsible
for, and assume all liability for
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(including any obligation for indemnification), the actions and inactions of
such agents as if such services had been provided by the Adviser.
3.4 XXXXXXX. XXXXXXX represents and warrants to the Portfolio and the Adviser
that:
(a) Organization. XXXXXXX is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
the requisite power and authority to conduct its business as now being
conducted.
(b) Authorization of Agreement. The execution and delivery of this
Agreement by XXXXXXX have been duly authorized by all necessary action on the
part of XXXXXXX and no other action or proceeding is necessary for the execution
and delivery of this Agreement by XXXXXXX. This Agreement has been duly executed
and delivered by XXXXXXX and constitutes a legal, valid and binding obligation
of XXXXXXX, enforceable against it in accordance with its terms, except as may
be limited by or subject to any bankruptcy, insolvency, reorganization,
moratorium or other similar law affecting the enforcement of creditors' rights
generally, and subject to general principles of equity.
(c) Investment Manager. XXXXXXX serves as the Fund's manager and is duly
registered as an investment adviser under the Advisers Act.
(d) To the best of its knowledge, after due diligence and inquiry, the
Company's representations in 3.1 (c)-(l) above are true and correct.
IV
COVENANTS
4.1 The Company. The Company covenants that:
(a) Advance Review of Certain Documents. The Company will furnish the
Portfolio and the Adviser, at least 10 business days prior to filing or first
use, as the case may be, with drafts of its registration statement on Form N-lA
(including amendments) and prospectus supplements or amendments relating to the
Fund. The Company will furnish the Portfolio and the Adviser with any proposed
advertising or sales literature relating to the Fund at least 2 business days
prior to filing or first use. The Company agrees that it will include in all
material respects in such Fund documents any disclosures that may be required by
applicable law, particularly those requested by the Adviser relating to the
Adviser's status as a bank, and it will include in all such Fund documents any
material comments reasonably made by the Adviser or Portfolio. The Portfolio and
Adviser will, however, in no way be liable for any errors or omissions in such
documents, whether or not they make any objection thereto, except to the extent
such errors or omissions result from information provided (or omitted to be
provided) by the Adviser or the Portfolio. The Exclusive Placement Agent for the
Portfolio (the "Placement Agent") will in no way be liable for any errors or
omissions in such documents. The Company will not make any other written or oral
representation about the Portfolio or the Adviser without the prior written
consent of the affected party.
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(b) Tax Status. The Fund will qualify for treatment as a regulated
investment company under Subchapter M of the Code for all periods during which
this Agreement is in effect, except the Fund shall not be responsible for such
nonqualification to the extent a failure to so qualify may result from any
action or omission of the Portfolio or the Adviser.
(c) Investment Securities. The Fund will own no investment security other
than its Interest in the Portfolio.
(d) Proxy Voting. If requested to vote as a shareholder on matters
pertaining to the Portfolio (other than a vote by the Company to continue the
operation of the Portfolio upon the withdrawal of another investor in the
Portfolio), the Company will (i) call a meeting of shareholders of the Fund for
the purpose of seeking instructions from shareholders regarding such matters,
(ii) vote the Fund's Interest proportionally as instructed by Fund shareholders,
and (iii) vote the Fund's Interest with respect to the shares held by Fund
shareholders who do not give voting instructions in the same proportion as the
shares of Fund shareholders who do give voting instructions. The Company will
hold each such meeting of Fund shareholders in accordance with a timetable
reasonably established by the Portfolio.
(e) Insurance. The Company shall at all times maintain errors and
omissions liability insurance with respect to the Fund covering losses for
negligence and wrongful acts in an amount not less than $5 million.
(f) Auditors. In the event the Fund's independent public accountants
differ from those of the Portfolio, the Fund shall be responsible for any
reasonable costs and expenses associated with the need for the Portfolio's
independent public accountants to provide information to the Fund's independent
public accountants.
4.2 Indemnification by the Fund.
(a) The Fund will indemnify and hold harmless the Portfolio, the Adviser,
and their respective trustees, directors, officers and employees and each other
person who controls the Portfolio or the Adviser, as the case may be, within the
meaning of Section 15 of the 1933 Act (each, a "Covered Person" and
collectively, "Covered Persons"), against any and all losses, claims, demands,
damages, liabilities and expenses (each, a "Liability" and collectively, the
"Liabilities") (including, unless the Fund elects to assume the defense pursuant
to paragraph (b), the reasonable cost of investigating and defending against any
claims therefor and any counsel fees incurred in connection therewith), joint or
several, which
(i) arise out of or are based upon any of the Securities Laws, any other
statute or common law or are incurred in connection with or as a result of any
formal or informal administrative proceeding or investigation by a regulatory
agency, in each case applicable to the Fund, insofar as such Liabilities arise
out of or are based upon the ground or alleged ground that any direct or
indirect omission or act by the Company or the Fund (either during the course of
its daily activities or in connection with the accuracy of its representations
or its warranties in this Agreement) caused or continues to cause the Portfolio
to violate any federal or state securities
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laws or regulations or any other applicable domestic or foreign law or
regulations or common law duties or obligations, but only to the extent that
such Liabilities do not arise out of or are not based upon an omission or act of
the Portfolio or Adviser;
(ii) arise out of the Fund having caused the Portfolio to be an
association taxable as a corporation rather than a partnership;
(iii) arise out of any misstatement of a material fact or an omission of a
material fact in the Company's registration statement (including amendments
thereto) or included in Fund advertising or sales literature, other than
information provided by the Portfolio or the Adviser (including information
contained in the Portfolio's registration statement) or included in Fund
advertising or sales literature at the request of the Portfolio or the Adviser;
(iv) result from the failure of any representation or warranty made by the
Company or the Fund to be accurate when made or the failure of the Company or
the Fund to perform any covenant contained herein or to otherwise comply with
the terms of this Agreement;
(v) arise out of any unlawful or negligent act of the Company, the Fund or
any director, officer, employee or agent of the Company or the Fund, whether
such act was committed against the Company, the Portfolio, the Adviser or any
third party;
(vi) arise out of any claim that the use of the names "Standard & Poor's,"
"S&P," "Standard & Poor's 500" or "500" by the Company violates any license or
infringes upon any trademark; or
(vii) result from any action of the Fund which causes the Portfolio a
Liability, except as expressly provided under this Agreement; provided, however,
that in no case shall the Fund be liable with respect to any claim made against
any Covered Person unless the Covered Person shall have notified the Fund in
writing of the nature of the claim within a reasonable time after the summons,
other first legal process or formal or informal initiation of a regulatory
investigation or proceeding shall have been served upon or provided to a Covered
Person, or any federal, state or local tax deficiency has come to the attention
of the Adviser, the Portfolio or a Covered Person. Failure to notify the Fund of
such claim shall not relieve it from any liability that it may have to any
Covered Person otherwise than on account of the indemnification contained in
this Section.
(b) The Fund will 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 such Liability, but, if the Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by the Fund. In the event the Fund
elects to assume the defense of any such suit and retain such counsel, each
Covered Person and any other defendant or defendants may retain additional
counsel, but shall bear the fees and expenses of such counsel unless the parties
to such suit include any Covered Person and the Fund and any such Covered Person
has been advised by counsel that one or more legal defenses may be available to
it that may not be available to the Fund in which case the Fund shall not be
entitled to assume the defense of such suit notwithstanding its obligation to
bear the fees and expenses of such counsel. The Fund shall not be liable to
indemnify any
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Covered Person for any settlement of any claim affected without the Fund's
written consent, which consent shall not be unreasonably withheld or delayed.
The indemnities set forth in paragraph (a) of Section 4.2 will be in addition to
any liability that the Company in respect of the Fund might otherwise have to a
Covered Person.
(c) Nothing in this Section 4.2(c) shall be construed to provide for
indemnification in violation of Section 17(i) of the 1940 Act or any other
applicable federal securities laws. In the event that any court determines that,
notwithstanding the foregoing, any particular indemnification sought hereunder
violates the aforesaid Section 17(i) (or other applicable provisions of the
federal securities laws), it is the intent of the parties hereto that any court
shall have the power to reform or construe such provisions in such manner as to
render the same enforceable, or, alternatively, substitute other provisions
(including, without limitation, provisions regarding contribution or other
sharing of liability by indemnified and indemnifying parties) so as to give the
parties hereto, to the maximum extent permitted by law, the intended benefits of
this Section 4.2(c).
4.3 Indemnification by XXXXXXX
(a) XXXXXXX will indemnify and hold harmless the Portfolio, the Adviser,
and their respective trustees, directors, officers and employees and each other
person who controls the Portfolio or the Adviser, as the case may be, within the
meaning of Section 15 of the 1933 Act (each, a "Covered Person" and
collectively, "Covered Persons"), against any and all losses, claims, demands,
damages, liabilities and expenses (each, a "Liability" and collectively, the
"Liabilities") (including, unless XXXXXXX elects to assume the defense pursuant
to paragraph (b), the reasonable cost of investigating and defending against any
claims therefor and any counsel fees incurred in connection therewith), joint or
several, which
(i) arise out of or are based upon any of the Securities Laws, any other
statute or common law or are incurred in connection with or as a result of any
formal or informal administrative proceeding or investigation by a regulatory
agency, in each case applicable to XXXXXXX, insofar as such Liabilities arise
out of or are based upon the ground or alleged ground that any direct or
indirect omission or act by XXXXXXX (either during the course of its daily
activities or in connection with the accuracy of its representations or its
warranties in this Agreement) caused or continues to cause the Portfolio to
violate any federal or state securities laws or regulations or any other
applicable domestic or foreign law or regulations or common law duties or
obligations, but only to the extent that such Liabilities do not arise out of or
are not based upon an omission or act of the Portfolio or Adviser;
(ii) arise out of XXXXXXX'x having caused the Portfolio to be an
association taxable as a corporation rather than a partnership;
(iii) arise out of any misstatement of a material fact or an omission of a
material fact in the Company's registration statement (including amendments
thereto) or included in Fund advertising or sales literature, other than
information provided by the Portfolio or the Adviser (including information
contained in the Portfolio's registration statement) or included in Fund
advertising or sales literature at the request of the Portfolio or the Adviser;
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(iv) result from the failure of any representation or warranty made by the
Company or XXXXXXX to be accurate when made or the failure of the Company or
XXXXXXX to perform any covenant contained herein or to otherwise comply with the
terms of this Agreement;
(v) arise out of any unlawful or negligent act of the Company, XXXXXXX or
any director, officer, employee or agent of the Company or XXXXXXX, whether such
act was committed against the Company, the Portfolio, the Adviser or any third
party;
(vi) arise out of any claim that the use of the names "Standard & Poor's,"
"S&P," "Standard & Poor's 500" or "500" by the Company violates any license or
infringes upon any trademark; or
(vii) result from any action of the Fund which causes the Portfolio a
liability, except as expressly provided under this Agreement; provided, however,
that in no case shall XXXXXXX be liable with respect to any claim made against
any Covered Person unless the Covered Person shall have notified XXXXXXX in
writing of the nature of the claim within a reasonable time after the summons,
other first legal process or formal or informal initiation of a regulatory
investigation or proceeding shall have been served upon or provided to a Covered
Person, or any federal, state or local tax deficiency has come to the attention
of the Adviser, the Portfolio or a Covered Person. Failure to notify XXXXXXX of
such claim shall not relieve it from any liability that it may have to any
Covered Person otherwise than on account of the indemnification contained in
this Section 4.3(a)(vii).
(b) XXXXXXX will 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 such Liability, but, if XXXXXXX elects to assume the defense, such
defense shall be conducted by counsel chosen by XXXXXXX. In the event XXXXXXX
elects to assume the defense of any such suit and retain such counsel, each
Covered Person and any other defendant or defendants may retain additional
counsel, but shall bear the fees and expenses of such counsel unless the parties
to such suit include any Covered Person and XXXXXXX, and any such Covered Person
has been advised by counsel that one or more legal defenses may be available to
it that may not be available to XXXXXXX, in which case XXXXXXX shall not be
entitled to assume the defense of such suit notwithstanding its obligation to
bear the fees and expenses of such counsel. XXXXXXX shall not be liable to
indemnify any Covered Person for any settlement of any claim affected without
XXXXXXX'x written consent, which consent shall not be unreasonably withheld or
delayed. The indemnities set forth in paragraph (a) of Section 4.3 will be in
addition to any liability that the Company in respect of the Fund might
otherwise have to a Covered Person.
(c) Nothing in this Section 4.3(c) shall be construed to provide for
indemnification in violation of Section 17(i) of the 1940 Act or any other
applicable federal securities laws. In the event that any court determines that,
notwithstanding the foregoing, any particular indemnification sought hereunder
violates the aforesaid Section 17(i) (or other applicable provisions of the
federal securities laws), it is the intent of the parties hereto that any court
shall have the power to reform or construe such provisions in such manner as to
render the same enforceable, or, alternatively, substitute other provisions
(including, without limitation,
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provisions regarding contribution or other sharing of liability by indemnified
and indemnifying parties) so as to give the parties hereto, to the maximum
extent permitted by law, the intended benefits of this Section 4.3(c).
4.4 The Portfolio. The Portfolio covenants that:
(a) Advance Review of Certain Documents. The Portfolio will furnish the
Company and XXXXXXX, at least 10 business days prior to filing or first use, as
the case may be, with drafts of its registration statement on Form N-IA
(including amendments). The Portfolio and the Adviser each agree that it will
include in all material respects in such Portfolio documents any disclosures
that may be required by applicable law, particularly those requested by the
Company relating to the Company's or the Fund's status as a registered
investment company, and it will include in all such Portfolio documents any
material comments reasonably made by the Company or XXXXXXX. The Company and
XXXXXXX will, however, in no way be liable for any errors or omissions in such
documents, whether or not they make any objection thereto, except to the extent
such errors or omissions result from information provided by or (omitted to be
provided) by the Company or XXXXXXX. The Portfolio will not make any written or
oral representation about the Company, the Fund or XXXXXXX without the prior
written consent of the affected party.
(b) Tax Status. The Portfolio will qualify to be taxable as a partnership
under the Code for all periods during which this Agreement is in effect, except
to the extent that the failure to so qualify results from any action or omission
of the Fund.
(c) Insurance. The Portfolio shall at all times maintain errors and
omissions liability insurance covering losses for negligence and wrongful acts
in an amount not less than $5 million.
(d) Availability of Interests. Conditional upon the Company complying with
the terms of this Agreement, the Portfolio shall permit the Fund to make
additional Investments in the Portfolio on each business day on which shares of
the Fund are sold to the public; provided, however, that the Portfolio may
refuse to permit the Fund to make additional Investments in the Portfolio on any
day on which (i) the Portfolio has refused to permit all other investors in the
Portfolio to make additional Investments in the Portfolio or (ii) the Trustees
of the Portfolio have reasonably determined that permitting additional
Investments by the Fund in the Portfolio would constitute a breach of their
fiduciary duties to the Portfolio.
4.5 Indemnification by the Portfolio and the Adviser.
(a) The Portfolio and the Adviser each will indemnify and hold harmless
the Company, XXXXXXX, their respective trustees, directors, officers and
employees and each other person who controls the Company, the Fund or XXXXXXX,
as the case may be, within the meaning of Section 15 of the 1933 Act (each, a
"Covered Person" and collectively, "Covered Persons"), against any and all
losses, claims, demands, damages, liabilities and expenses (each, a "Liability"
and collectively, the "Liabilities") (including, unless the Adviser or the
Portfolio elects to assume the defense pursuant to paragraph (b), the reasonable
costs of investigating and defending against any claims therefor and any counsel
fees incurred in connection therewith), joint or several,
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whether incurred directly by the Company or XXXXXXX or indirectly by the Company
or XXXXXXX through the Company's Investment in the Portfolio, which
(i) arise out of or are based upon any of the Securities Laws, any other
statute or common law or are incurred in connection with or as a result of any
formal or informal administrative proceeding or investigation by a regulatory
agency, insofar as such Liabilities arise out of or are based upon the ground or
alleged ground that any direct or indirect omission or commission by the
Portfolio or the Adviser (either during the course of its daily activities or in
connection with the accuracy of its representations or its warranties in this
Agreement) caused or continues to cause the Company to violate any federal or
state securities laws or regulations or any other applicable domestic or foreign
law or regulations or common law duties or obligations, but only to the extent
that such Liabilities do not arise out of and are not based upon an omission or
commission of the Company or XXXXXXX;
(ii) arise out of or are based upon an inaccurate calculation of the
Portfolio's net asset value (whether by the Portfolio, the Adviser or any party
retained for that purpose);
(iii) arise out of (A) any misstatement of a material fact or an omission
of a material fact in the Portfolio's registration statement (including
amendments thereto) or included at the Adviser's or Portfolio's request in
advertising or sales literature used by the Fund, or (B) any misstatement of a
material fact or an omission of a material fact in the registration statement or
advertising or sales literature of any investor in the Portfolio, other than the
Fund (unless such omission or misstatement in the Fund's materials was caused by
the Portfolio or the Adviser);
(iv) arise out of the Portfolio's or the Adviser's having caused the Fund
to fail to qualify as a regulated investment company under the Code;
(v) result from the failure of any representation or warranty made by the
Portfolio or Adviser to be accurate when made or the failure of the Portfolio or
Adviser to perform any covenant contained herein or to otherwise comply with the
terms of this Agreement;
(vi) arise out of any unlawful or negligent act by the Portfolio, the
Adviser or any director, trustee, officer, employee or agent of the Portfolio or
Adviser, whether such act was committed against the Portfolio, the Company,
XXXXXXX or any third party;
(vii) arise out of any claim that the systems, methodologies, or
technology used in connection with operating the Portfolio, including the
technologies associated with maintaining the master-feeder structure of the
Portfolio, violates any license or infringes upon any patent or trademark;
(viii) arise out of any claim that the use of the names "Standard &
Poor's," "S&P," "Standard & Poor's 500," "S&P 500" or "500" by the Portfolio
violates any license or infringes upon any trademark; or
(ix) result from any Liability of the Portfolio or any investor in the
Portfolio (or shareholder thereof other than the Fund and its shareholders),
except as expressly provided under
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12
this Agreement; provided, however, that in no case shall the Portfolio or the
Adviser be liable with respect to any claim made against any such Covered Person
unless such Covered Person shall have notified the Portfolio or the Adviser in
writing of the nature of the claim within a reasonable time after the summons,
other first legal process or formal or informal initiation of a regulatory
investigation or proceeding shall have been served upon or provided to a Covered
Person or any federal, state or local tax deficiency has come to the attention
of the Company, XXXXXXX or a Covered Person. Failure to notify the Portfolio or
the Adviser of such claim shall not relieve it from any liability that it may
have to any Covered Person otherwise than on account of the indemnification
contained in this paragraph.
(b) The Adviser or the Portfolio will 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 such liability, but, if the Adviser or the Portfolio
elects to assume the defense, such defense shall be conducted by counsel chosen
by the Adviser or the Portfolio, as the case may be. In the event the Adviser or
the Portfolio elects to assume the defense of any such suit and retain such
counsel, each Covered Person and any other defendant or defendants in the suit
may retain additional counsel but shall bear the fees and expenses of such
counsel unless (A) the Adviser or the Portfolio, as the case may be, shall have
specifically authorized the retaining of such counsel or (B) the parties to such
suit include any Covered Person and the Adviser or the Portfolio, and any such
Covered Person has been advised by counsel that one or more legal defenses may
be available to it that may not be available to the Adviser or the Portfolio, as
the case may be, in which case the Adviser or the Portfolio shall not be
entitled to assume the defense of such suit notwithstanding the obligation to
bear the fees and expenses of such counsel. Neither the Adviser nor the
Portfolio shall be liable to indemnify any Covered Person for any settlement of
any such claim effected without the Adviser's or the Portfolio's written
consent, as the case may be, which content shall not be unreasonably withheld or
delayed. The indemnities set forth in paragraph (a) will be in addition to any
liability that the Adviser or the Portfolio might otherwise have to a Covered
Person.
(c) Nothing in this Section 4.5(c) shall be construed to provide for
indemnification in violation of Section 17(i) of the 1940 Act or any other
applicable federal securities laws. In the event that any court determines that,
notwithstanding the foregoing, any particular indemnification sought hereunder
violates the aforesaid Section 17(i) (or other applicable provisions of the
federal securities laws), it is the intent of the parties hereto that any court
shall have the power to reform or construe such provisions in such manner as to
render the same enforceable, or, alternatively, substitute other provisions
(including, without limitation, provisions regarding contribution or other
sharing of liability by indemnified and indemnifying parties) so as to give the
parties hereto, to the maximum extent permitted by law, the intended benefits of
this Section 4.5(c).
4.6 Scope of Agreement. Nothing contained herein shall be construed to protect
any person against any liability to which such person would otherwise be subject
by reason of willful misfeasance, bad faith, or negligence, in the performance
of such person's duties, or by reason of such person's reckless disregard of
such person's obligations and duties under such contract or agreement.
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13
4.7 In-Kind Redemption. In the event the Company desires to withdraw or redeem
all of the Fund's Interests in the Portfolio, unless otherwise agreed to by the
parties, the Portfolio will effect such redemption 'in kind' and in such a
manner that the securities delivered to the Fund's custodian for the account of
the Fund will mirror, as closely as practicable, the composition of the
Portfolio immediately prior to such redemption. No other withdrawal or
redemption of any Interest in the Portfolio will be satisfied by means of an "in
kind" redemption except in compliance with Rule 18f- 1 under the 1940 Act,
provided, however, that for purposes of determining compliance with Rule I 8f-
1, each shareholder of the Fund redeeming shares of the Fund on a particular day
will be treated as a direct holder of an Interest in the Portfolio being
redeemed that day.
4.8 Reasonable Actions. Each party covenants that it will, subject to the
provisions of this Agreement, from time to time, as and when requested by
another party or in its own discretion, as the case may be, execute and deliver
or cause to be executed and delivered all such assignments and other
instruments, take or cause to be taken such actions, and do or cause to be done
all things reasonably necessary, proper or advisable in order to consummate the
transactions contemplated by this Agreement and to carry out its intent and
purpose.
V
CONDITIONS PRECEDENT
The obligations of each party to consummate the transactions provided for
herein shall be subject to (a) performance by the other parties of all the
obligations to be performed by the other parties hereunder on or before each
Closing, (b) all representations and warranties of the other parties contained
in this Agreement being true and correct in all material respects as of the date
hereof and, except as they may be affected by the transactions contemplated by
this Agreement, as of each date of Closing, with the same force and effect as if
made on and as of the time of such Closing, and (c) the following further
conditions that shall be fulfilled on or before each Closing:
5.1 Regulatory Status. All necessary filings shall have been made with the SEC
and state securities authorities, and no order or directive shall have been
received that any other or further action is required to permit the parties to
carry out the transactions contemplated hereby.
5.2 Approval of Auditors. Unless precluded by applicable fiduciary duties or the
failure of the Fund's shareholders to provide necessary ratification, the
trustees of the Company that are not "interested persons" of the Company, as
defined in the 1940 Act, shall have selected as the independent certified public
accountants for the Fund the independent certified public accountants selected
and ratified for the Portfolio.
5.3 Investment Objective/Restrictions. The Fund shall have the same investment
objective and substantively the same investment restrictions as the Portfolio.
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14
VI
ADDITIONAL AGREEMENTS
6.1 Notification of Certain Matters. Each party will give prompt notice to the
other parties of:
(a) the occurrence or non-occurrence of any event the occurrence or
non-occurrence of which would be likely to cause either (i) any representation
or warranty contained in this Agreement to be untrue or inaccurate, or (ii) any
condition precedent set forth in Article V thereof to be unsatisfied in any
material respect at the time of any Closing and
(b) any material failure of a party or any trustee, director, officer,
employee or agent thereof to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by such person hereunder; provided,
however, that the delivery of any notice pursuant to this Section 6.1 shall not
limit or otherwise affect the remedies available, hereunder or otherwise, to the
party receiving such notice.
6.2 Access to Information. The Portfolio and the Company shall afford each other
reasonable access at all reasonable times to such party's officers, employees,
agents and offices and to all its relevant books and records and shall furnish
each other party with all relevant financial and other data and information as
requested; provided, however, that nothing contained herein shall obligate the
Company to provide the Portfolio with access to the books and records of the
Company relating to any series of the Company other than the Fund, nor shall
anything contained herein obligate the Company to furnish the Portfolio with the
Fund's shareholder list, except as may be required to comply with applicable law
or any provision of this Agreement.
6.3 Confidentiality. Each party agrees that it shall hold in strict confidence
all data and information obtained from another party (unless such information is
or becomes readily ascertainable from public or published information or trade
sources) and shall ensure that its officers, employees and authorized
representatives do not disclose such information to others without the prior
written consent of the party from whom it was obtained, except if disclosure is
required by the SEC, any other regulatory body or the Fund's or Portfolio's
respective auditors, or in the opinion of counsel such disclosure is required by
law, and then only with as much prior written notice to the other party as is
practical under the circumstances.
6.4 Public Announcements. No party shall issue any press release or otherwise
make any public statements with respect to the matters covered by this Agreement
without the prior consent of the other parties hereto, which consent shall not
be unreasonably withheld; provided, however, that consent shall not be required
if, in the opinion of counsel, such disclosure is required by law, provided
further, however, that the party making such disclosure shall provide the other
parties hereto with as much prior written notice of such disclosure as is
practical under the circumstances.
6.5 Accounting Services. The Company on behalf of the Fund, agrees to appoint
the Advisor as Fund accounting agent pursuant to the attached Investment
Accounting Agreement. The Company may alter its recommendation to its Board
regarding such appointment at any time.
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VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination.
(a) This Agreement may be terminated by the mutual agreement of all
parties.
(b) This Agreement may be terminated at any time by the Company by
withdrawing all of the Fund's Interest in the Portfolio.
(c) This Agreement may be terminated on not less than 120 days prior
written notice by the Portfolio to the Company and XXXXXXX.
(d) This Agreement shall terminate automatically with respect to XXXXXXX
upon the effective date of termination by the Company and this Agreement shall
terminate automatically with respect to the Adviser upon the effective date of
termination by the Portfolio.
(e) This Agreement may be terminated at any time immediately upon written
notice to the other parties in the event that formal proceedings are instituted
against another party to this Agreement by the SEC or any other regulatory body,
provided that the terminating party has a reasonable belief that the institution
of the proceeding is not without foundation and will have a material adverse
impact on the terminating party's ability to perform its obligations hereunder.
(f) The indemnification obligations of the parties set forth in Article
IV, shall survive the termination of this Agreement.
7.2 Amendment. This Agreement may be amended, modified or supplemented at any
time in such manner as may be mutually agreed upon in writing by the parties.
7.3 Waiver. At any time prior to any Closing, any party may:
(a) extend the time for the performance of any of the obligations or other
acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto and
(c) waive compliance with any of the agreements or conditions contained
herein.
(d) Any such waiver will not serve to waive such waiving party's rights
with respect to any representation, warranty, agreement or condition that occurs
thereafter.
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VIII
DAMAGES
8.1 The parties agree that, in the event of a breach of this Agreement, the
remedy of money damages would not be adequate and agree that injunctive relief
would be an appropriate additional relief.
IX
GENERAL PROVISIONS
9.1 Notices. All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or made on the
earlier of (i) when actually received in person or by fax, or (ii) three days
after being sent by certified or registered United States mail, return receipt
requested, postage prepaid, addressed as follows:
If to XXXXXXX: Xxxxxxx Xxxxxxx & Xxxxx, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Mr. Xxxxxx Xxxxxx
Fax:000-000-0000
with a copy to:
Mr. Xxxxxx Xxxxx
Fax: 000-000-0000
If to the Adviser: Bankers Trust Company
0 Xxxxxx Xxxxxx, 0xx Xxxxx
Mailstop 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx X. Xxxxxx
Fax: (000)000-0000
If to the Portfolio: (BT) Equity 500 Index Portfolio
c/o Federated Investors
Federated Towers
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxx, Secretary
Fax: 000-000-0000
If to the Company: Xxxxxxx Investment Trust
c/x Xxxxxxx Xxxxxxx & Xxxxx, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Xxxxxx XxXxxxxxx, Secretary
Fax:000-000-0000
Any party to this Agreement may change the identity of the person to receive
notice by providing written notice thereof to all other parties to the
Agreement.
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9.2 Expenses. All costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby shall be paid by the party incurring
such costs and expenses.
9.3 Headings. The headings and captions contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9.4 Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
9.5 Entire Agreement. This Agreement sets forth the entire understanding between
the parties concerning the subject matter of this Agreement and incorporates or
supersedes all prior negotiations and understandings. There are no covenants,
promises, agreements, conditions or understandings, either oral or written,
between them relating to the subject matter of this Agreement other than those
set forth herein. No representation or warranty has been made by or on behalf of
any party to this Agreement (or any officer, director, trustee, employee or
agent thereof) to induce any other party to enter into this Agreement or to
abide by or consummate any transactions contemplated by any terms of this
Agreement, except representations and warranties expressly set forth herein.
9.6 Successors and Assignments. Each and all of the provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and, except
as otherwise specifically provided in this Agreement, their respective
successors and assigns. Notwithstanding the foregoing, no party shall make any
assignment of this Agreement or any rights or obligations hereunder without the
written consent of all other parties. As used herein, the term "assignment"
shall have the meaning ascribed thereto in the 1940 Act. The parties hereby
consent to the acquisition of a majority interest in XXXXXXX by Zurich Insurance
Company and the acquisition of Xxxx Xxxxx & Co. by the Adviser.
9.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to the
choice of law or conflicts of law provisions thereof.
9.8 Counterparts. This Agreement may be executed in any number of counterparts,
all of which shall constitute one and the same instrument, and any party hereto
may execute this Agreement by signing one or more counterparts.
9.9 Third Parties. Nothing herein expressed or implied is intended or shall be
construed to confer upon or give any person, other than the parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Agreement.
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9.10 Interpretation. Any uncertainty or ambiguity existing herein shall not
presumptively be interpreted against any party, but shall be interpreted
according to the application of the rules of interpretation for arm's length
agreements.
9.11 Limitation of Liability.
(a) The parties hereby acknowledge that the Company has entered into this
Agreement solely on behalf of the Fund and that no other series of the Company
shall have any obligation hereunder with respect to any liability of the Company
arising hereunder. In recognition that the Fund is a business trust, it is
understood and expressly stipulated that none of the trustees, officers, agents
or shareholders of the Fund shall be personally liable hereunder. It is
understood and acknowledged that all persons dealing with the Fund must look
solely to the property of such party for the enforcement of any claims against
such party, as neither the trustees, officers, agents nor shareholders assume
any personal liability for obligations entered into on behalf of the Fund.
(b) Notice is hereby given that this Agreement is made and executed on
behalf of the Portfolio and not by the Trustees or officers of the Portfolio
individually, and each party hereby acknowledges that the obligations of or
arising out of this Agreement are not binding upon the Trustees, officers of, or
investors in, the Portfolio individually but any such obligations of the
Portfolio are binding only upon the assets and property of the Portfolio.
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19
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers, thereunto duly authorized, as of the date first
written above.
XXXXXXX, XXXXXXX & XXXXX, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Managing Director
XXXXXXX INVESTMENT TRUST, on behalf of itself and the XXXXXXX S&P 500 INDEX
FUND, a series thereof
By: /s/ Xxxxxx X. XxXxxxxxx
-----------------------
Name: Xxxxxx X. XxXxxxxxx
Title: Vice President, Secretary and Assistant Treasurer
EQUITY 500 INDEX PORTFOLIO
By: /s/ Xxx X. Xxxxxx
-----------------------
Name: Xxx X. Xxxxxx
Title: Secretary
BANKERS TRUST COMPANY
By: /s/ Xxxxx Xxxxxx
-----------------------
Name: Xxxxx Xxxxxx
Title: Vice President
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