Exhibit 6(iv) under Form N-1A
Exhibit 1 underItem 601/Reg S-K
Institutional Treasury Assets Fund,
(a portfolio of BT Institutional Funds)
Federated Investors Tower
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
October 31, 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, INSTITUTIONAL TREASURY ASSETS FUND, a portfolio of
BT Institutional Funds (the "Trust"), an open-end management investment company
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), organized as a business trust under the laws of the Commonwealth of
Massachusetts, has agreed that Edgewood Services, Inc., a New York corporation
("ESI"), shall be the exclusive placement agent (the "Exclusive Placement
Agent") of beneficial interests ("Trust Interests") of Institutional Treasury
Assets Fund.
1. Services as Exclusive Placement Agent.
1.1 ESI will act as Exclusive Placement Agent of the Trust
Interests. In acting as Exclusive Placement Agent under this Exclusive Placement
Agent Agreement, neither ESI nor its employees or any agents thereof shall make
any offer or sale of Trust Interests in a manner which would require the Trust
Interests to be registered under the Securities Act of 1933, as amended (the
"1933 Act").
1.2 All activities by ESI and its agents and employees as Exclusive
Placement Agent of Trust Interests shall comply with all applicable laws, rules
and regulations, including, without limitation, all rules and regulations
adopted pursuant to the 1940 Act by the Securities and Exchange Commission (the
"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 ESI may reasonably request. The Trust shall also furnish ESI
upon request with: (a) unaudited semiannual statements of the Trust's books and
accounts prepared by the Trust, and (b) from time to time such additional
information regarding the Trust's financial or regulatory condition as ESI may
reasonably request.
1.5 The Trust represents to ESI that all registration statements
filed by the Trust with the Commission under the 1940 Act with respect to Trust
Interests have been prepared in conformity with the requirements of such statute
and the rules and regulations of the Commission thereunder. As used in this
Agreement the term "registration statement" shall mean any registration
statement filed with the Commission, as modified by any amendments thereto that
at any time shall have been filed with the Commission by or on behalf of the
Trust. The Trust represents and warrants to ESI 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 ESI to do so, ESI may, at its option, terminate this Agreement. The Trust
shall not file any amendment to any registration statement without giving ESI
reasonable notice thereof in advance; provided, however, that nothing contained
in this Agreement shall in any way limit 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 ESI, its several
officers and directors, and any person who controls ESI within the meaning of
Section 15 of the 1933 Act or Section 20 of the Securities Exchange Act of 1934
(the "1934 Act") (for purposes of this paragraph 1.6, collectively, the "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, 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
any registration statement, private placement memorandum or other offering
material ("Offering Material") or (ii) any omission to state a material fact
required to be stated in any Offering Material or necessary to make the
statements in any Offering Material not misleading; provided, however, that 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 ESI in its capacity as
Exclusive Placement Agent for use in the answers to any items of any
registration statement or in any statements made in any Offering Material, or
arising out of or based on any omission or alleged omission to state a material
fact in connection with the giving of such information required to be stated in
such answers or necessary to make the answers not misleading; and further
provided that the Trust's agreement to indemnify ESI and the Trust's
representations 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 shall be notified of any action brought against a Covered
Person, such notification to be given by letter or by telegram addressed to the
Trust, Federated Investors Tower, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000-0000, Attention: Secretary, with a copy to Xxxxxx X. Xxxxxxx, Esq.,
Xxxxxxx Xxxx & Xxxxxxxxx, One Citicorp Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
XX 00000, promptly after the summons or other first legal process shall have
been duly and completely served upon such Covered Person. The failure to so
notify the Trust of any such action shall not relieve the Trust (i) from any
liability except to the extent the Trust shall have been prejudiced by such
failure, or (ii) from any liability that the Trust may have to the Covered
Person against whom such action is brought by reason of any such untrue or
alleged untrue statement, or omission or alleged omission, otherwise than on
account of the Trust's indemnity agreement contained in this paragraph. 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 ESI,
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 ESI, the defendant or defendants in such suit shall bear the fees
and expenses of any additional counsel retained by any of them; but in case the
Trust does not elect to assume the defense of any such suit, or in case ESI
reasonably does not approve of counsel chosen by the Trust, the Trust will
reimburse the Covered Person named as defendant in such suit, for the fees and
expenses of any counsel retained by ESI or the Covered Persons. 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 ESI promptly of the commencement of any
litigation or proceedings against the Trust or any of its officers or Trustees
in connection with the issue and sale of any Trust Interests.
1.7 ESI agrees to indemnify, defend and hold 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, xxxxxxxxxxx and any
counsel fees incurred in connection therewith) that Covered Persons may incur
under the 1933 Act, the 1934 Act, common law, or otherwise, but only to the
extent that such liability or expense incurred by a Covered Person resulting
from such claims or demands shall arise out of or be based on (i) any untrue
statement of a material fact contained in information furnished in writing by
ESI in its capacity as Exclusive Placement Agent to the 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 ESI to the Trust
required to be stated in such answers or necessary to make such information not
misleading. ESI shall be notified of any action brought against a Covered
Person, such notification to be given by letter or telegram addressed to ESI at
Federated Investors Tower, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000,
Attention: Secretary, promptly after the summons or other first legal process
shall have been duly and completely served upon such Covered Person. The failure
to so notify ESI of any such action shall not relieve ESI (i) from any liability
except to the extent the ESI shall have been prejudiced by such failure, or (ii)
from any liability that ESI may have to the Covered Person against whom such
action is brought by reason of any such untrue or alleged untrue statement, or
omission or alleged omission, otherwise than on account of ESI's indemnity
agreement contained in this paragraph. ESI will be entitled to assume the
defense of any suit brought to enforce any such claim, demand or liability, but
in such case such defense shall be conducted by counsel of good standing chosen
by ESI and approved by the Trust, which approval shall not be unreasonably
withheld. In the event the ESI elects to assume the defense in any such suit and
retain counsel of good standing approved by the Trust, the defendant or
defendants in such suit shall bear the fees and expenses of any additional
counsel retained by any of them; but in case ESI does not elect to assume the
defense of any such suit, or in case the Trust reasonably does not approve of
counsel chosen by ESI, ESI will reimburse the Covered Person named as defendant
in such suit, for the fees and expenses of any counsel retained by the Trust or
the Covered Persons. ESI's indemnification agreement contained in this paragraph
and ESI's representations and warranties in this Agreement shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of Covered Persons, and shall survive the delivery of any Trust
Interests. This agreement of indemnity will inure exclusively to Covered Persons
and their successors. ESI agrees to notify the Trust promptly of the
commencement of any litigation or proceedings against ESI or any of its officers
or directors in connection with the issue and sale of any Trust Interests.
1.8 No Trust Interests shall be offered by either ESI or the 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 ESI promptly of the suspension of the
registration statement or any necessary amendments thereto, such notification to
be given by letter or telegram addressed to ESI at Federated Investors Tower,
0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000, Attention: Secretary.
1.9 The Trust agrees to advise ESI as soon as reasonably practical by a
notice in writing delivered to ESI 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 ESI 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 ESI 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 ESI's duties as Exclusive Placement Agent, the
Trust understands that ESI may, in its discretion, perform additional functions
in connection with transactions in Trust Interests.
The processing of Trust Interest transactions may include, but is
not limited to, compilation of all transactions from ESI's various offices;
creation of a transaction tape and timely delivery of it to the 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.
ESI may also provide other investor services, such as communicating
with Trust investors and other functions in administering customer accounts for
Trust investors.
ESI understands that these services may result in cost savings to
the Trust or to the Trust's investment manager and neither the Trust nor the
Trust's investment manager will compensate ESI for all or a portion of the costs
incurred in performing functions in connection with transactions in Trust
Interests. Nothing herein is intended, nor shall be construed, as requiring ESI
to perform any of the foregoing functions.
1.12 Except as set forth in paragraph 1.6 of this Agreement, the
Trust shall not be liable to ESI 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 ESI
in connection with the matters to which this Agreement relates, except a loss
resulting from the willful misfeasance, bad faith or gross negligence on the
part of 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, ESI
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 ESI in the performance of its duties or from reckless disregard by
ESI of its obligations and duties under this Agreement.
2. Term.
This Agreement shall become effective on the date first written
above and, unless sooner terminated as provided herein, shall continue until one
year from the date first written above, and thereafter shall continue
automatically for successive annual periods, provided such continuance is
specifically approved at least annually 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 ESI. This Agreement will also terminate automatically
in the event of its assignment (as defined in the 1940 Act and the rules
thereunder).
3. Representations and Warranties.
ESI and 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 State of New York shall, except to the extent that
any applicable provisions of Federal law shall be controlling, govern the
construction, validity and effect of this Agreement, without reference to
principles of conflicts of law.
The undersigned officer of the Trust has executed this Agreement not
individually, but solely in the capacity of an officer of the Trust under the
Trust's Declaration of Trust, as amended. Pursuant to the Declaration of Trust
the obligations of this Agreement are not binding upon any of the Trustees or
investors of the Trust individually, but bind only the trust estate.
If the contract set forth herein is acceptable to you, please so indicate
by executing the enclosed copy of this Agreement and returning the same to the
undersigned, whereupon this Agreement shall constitute a binding contract
between the parties hereto effective at the closing of business on the date
hereof.
Very truly yours,
BT INSTITUTIONAL FUNDS,
on behalf of its
Institutional Treasury Assets Fund
By:/s/ Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Vice President
Accepted:
EDGEWOOD SERVICES, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxx
Name: Xxxxxxxx Xxxxxxxxxx
Title: President
