Exhibit 9(iv) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
DEUTSCHE PORTFOLIOS
Cardinal Avenue
Grand Cayman, Cayman Islands, BWI
JULY 28, 1997
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, DEUTSCHE PORTFOLIOS (the "Trust"), an open-end
management investment company registered under the Investment Company Act of
1940, as amended (the "1940 Act"), organized as a trust under the laws of the
State of New York, has agreed that Edgewood Services, Inc., a New York
corporation ("Edgewood"), shall be the exclusive placement agent (the "Exclusive
Placement Agent") of beneficial interests ("Trust Interests") of each series of
the Trust.
1. SERVICES AS EXCLUSIVE PLACEMENT AGENT.
1.1 Edgewood will act as Exclusive Placement Agent of the Trust Interests.
In acting as Exclusive Placement Agent under this Exclusive Placement Agent
Agreement, neither EDGEWOOD 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 Edgewood 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
"Commission").
1.3 Nothing herein shall be construed to require the 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 Trust 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 Edgewood may reasonably request. The Trust shall also furnish
Edgewood 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 Edgewood may reasonably request.
1.5 The Trust represents to Edgewood 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 the
Trust. The Trust represents and warrants to Edgewood 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 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 Trust 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 the Trust shall not propose such
amendment and/or supplement within fifteen days after receipt by the Trust of a
written request from Edgewood to do so, Edgewood may, at its option, terminate
this Agreement. The Trust shall not file any amendment to any registration
statement without giving Edgewood 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 Edgewood, its several
officers and directors, and any person who controls Edgewood 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, the
"Covered Persons") free and harmless from and against any and all claims,
demand, 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, 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 ("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
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 Edgewood 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 the Trust's agreement
to indemnify Edgewood and the 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. The Trust should 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 Xxxx
Xxxxxxxxx, Esq., Xxxxxxxx and Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
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 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 Xxxxxxxx, which approval shall not be unreasonably withheld. In the event the
Trust elects to assume the defense in any such suit and retain counsel of good
standing approved by Xxxxxxxx, 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 Trust does not elect to assume the defense of any such suit, or
in case Edgewood 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 Edgewood or the Covered Persons.
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 Trust
Interests. This agreement of indemnity will inure exclusively to Covered Persons
and their successors. The Trust agrees to notify Xxxxxxxx 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 Xxxxxxxx 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, the "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, 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
Edgewood in its capacity as Exclusive Placement Agent to the Trust 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
Edgewood to the Trust required to be stated in such answers or necessary to make
such information not misleading. Xxxxxxxx shall be notified of any action
brought against a Covered Person, such notification to be given by letter or
telegram addressed to Edgewood 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. Xxxxxxxx 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
Xxxxxxxx'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 Edgewood of any such action shall not relieve Edgewood
(i) from any liability except to the extent the Trust shall have been prejudiced
by such failure, or (ii) from any liability that Edgewood 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 Edgewood's indemnity agreement
contained in this paragraph.
1.8 No Trust Interests shall be offered by either Edgewood or the Trust
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 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 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. The Trust shall notify Edgewood promptly of the suspension of the
registration statement or any necessary amendments thereto, such notification to
be given by letter or telegram addressed to Edgewood at Federated Investors
Tower, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Secretary.
1.9 The Trust agrees to advise Xxxxxxxx as soon as reasonably practical by
a notice in writing delivered to Edgewood 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 of any stop order
suspending the effectiveness of the registration statement then in effect or the
initiation by service of process on the 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 Edgewood agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trust all records and other
information not otherwise publicly available relative to the Trust and its
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
the Trust, which approval shall not be unreasonably withheld and may not be
withheld where Edgewood may be exposed to civil or criminal contempt proceedings
for failure to comply, when requested to divulge such information by duly
constituted authorities, or when so requested by the Trust.
1.11 In addition to Xxxxxxxx's duties as Exclusive Placement Agent, the
Trust understands that Edgewood 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 Edgewood's various offices;
creation of a transaction tape and timely delivery of it to the Trust's transfer
agent for processing; reconciliation of all transactions delivered to the
Trust's transfer agent; and the recording and reporting of these transactions
executed by the Trust's transfer agent in customer statements; rendering of
periodic customer statements; and the reporting of IRS Form 1099 information at
year end if required.
Edgewood may also provide other investor services, such as communicating
with Trust investors and other functions in administering customer accounts for
Trust investors.
Xxxxxxxx understands that these services may result in cost savings to the
Trust or to the Trust's investment manager and neither the Trust nor the Trust's
investment manager will compensate Edgewood 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
Edgewood to perform any of the foregoing functions.
1.12 Except as set forth in paragraph 1.6 of this Agreement, the Trust
shall not be liable to Edgewood or any Covered Persons as defined in paragraph
1.6 for any error of judgment or mistake of law or for any loss suffered by
Xxxxxxxx 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 the Trust in the performance of its duties or from reckless
disregard by the Trust of its obligations and duties under this Agreement.
1.13 Except as set forth in paragraph 1.7 of this Agreement, Xxxxxxxx
shall not be liable to the 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 the
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 Edgewood in the performance of its duties or from reckless disregard
by Edgewood of its obligations and duties under this Agreement.
2. TERM.
This Agreement shall become effective on the date first above written and,
unless sooner terminated as provided herein, shall continue until December 1,
1997 and thereafter shall continue automatically for successive annual periods,
provided such continuance is specifically approved at least annually by (i) the
Trust's Board of Trustees or (ii) by a vote of a majority (as defined in the
1940 Act) of the 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
the Board, by a vote of a majority (as defined in the 1940 Act) of the Trust's
outstanding voting securities, or by Edgewood. 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.
Edgewood 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. 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 Commonwealth of Pennsylvania 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 the Trust has executed this Agreement not
individually, but as President under the Trust's Declaration of Trust, dated as
of __________, 1997. 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.
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.
Yours very truly,
DEUTSCHE PORTFOLIOS
By: /S/ XXXXXXX X'XXXXX
Attorney-In-Fact
Accepted:
EDGEWOOD SERVICES, INC.
By: /S/ XXXXXXXX XXXXXXXXXX
