PLACEMENT AGENCY AGREEMENT
February 13, 2004
PFMAM, Inc.
Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxx & Market Streets
Harrisburg, Pennsylvania 17101
Gentlemen:
This is to confirm that, in consideration of the agreements
hereinafter contained, Cadre Institutional Investors Trust, on behalf of the
series of the Trust named in Schedule A of this Agreement (each, a "Portfolio"
and collectively, the "Portfolios"), organized as a Delaware business trust and
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), as an open-end diversified management investment company, agrees that
PFMAM, Inc. ("PFMAM") shall be the placement agent (the "Placement Agent") of
shares of each Portfolio ("Shares"), and to confirm that PFMAM agrees to serve
in such capacity, in accordance with the terms of this Agreement.
1. Services as Placement Agent.
1.1. PFMAM will act as Placement Agent of the Shares of the
Portfolios. In acting as Placement Agent under this Agreement, neither PFMAM nor
its employees nor any agents thereof shall make any offer or sale of Shares in a
manner which would require the Shares to be registered under the Securities Act
of 1933, as amended (the "1933 Act").
1.2. All activities by PFMAM and its agents and employees as
Placement Agent of Shares shall comply with all applicable laws, rules and
regulations, including, without limitation, all rules and regulations adopted
pursuant to the 1940 Act by the Securities and Exchange Commission (the
"Commission").
1.3. Nothing herein shall be construed to require the Trust to
accept any offer to purchase any Shares, all of which shall be subject to
approval by the Board of Trustees of the Trust.
1.4. The Trust shall furnish for use in connection with the sale of
Shares such information with respect to the Portfolios and Shares as PFMAM may
reasonably request from time to time. The Trust shall also furnish PFMAM upon
request with: (a) unaudited semi-annual and audited annual statements of the
books and accounts of each Portfolio prepared by the Trust, and (b) such
additional information regarding the financial or regulatory condition of the
Trust and the Portfolios as PFMAM may from time to time reasonably request.
1.5. The Trust represents to PFMAM that all registration statements
filed by the Trust with the Commission under the 1940 Act with respect to the
Portfolios have been prepared in conformity with the requirements of such
statute and the rules and regulations of the Commission thereunder. As used in
this Agreement the term "registration statement" shall mean any registration
statement filed by the Trust with the Commission as modified by any amendments
thereto that at any time shall have been filed with the Commission by or on
behalf of the Trust Portfolio. The Trust represents and warrants to PFMAM that
any registration statement will contain all statements required to be stated
therein in conformity with both such statute and the rules and regulations of
the Commission; that all statements of fact contained in any registration
statement will be true and correct in all material respects at the time of
filing of such registration statements or amendments thereto; and that no
registration statement will include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading to a purchaser of Shares.
The Trust may but shall not be obligated to propose from time to
time such amendments to any registration statement as in the light of future
developments may, in the opinion of the Trust's counsel, be necessary or
advisable. If the Trust shall not propose such an amendment and/or supplement
within fifteen days after receipt by the Trust of a written request from PFMAM
to do so, PFMAM may, at its option, terminate this Agreement. The Trust shall
not file any amendment to any registration statement without giving PFMAM
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 PFMAM, its
several officers and directors, and any person who controls PFMAM within the
meaning of Section 15 of the 1933 Act or Section 20 of the Securities and
Exchange Act of 1934 (the "1934 Act") (for purposes of this paragraph 1.6,
collectively, "Covered Persons") free and harmless from and against any and all
claims, demands, liabilities and expenses (including the cost of investigating
or defending such claims, demands or liabilities and any counsel fees incurred
in connection therewith) which any Covered Person may incur under the 1933 Act,
the 1934 Act, common law or otherwise, arising out of or based on any untrue
statement of a material fact contained in any registration statement, private
placement memorandum or other offering material relating to the Portfolios
("Offering Material") or arising out of or based on any omission to state a
material fact required to be stated in any Offering Material or necessary to
make the statements in any Offering Material 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 PFMAM in its
capacity as Placement Agent for use in the answers to any items of any
registration statement or in any statements made in any Offering Material, or
arising out of or based on any omission or alleged omission to state a material
fact in connection with the giving by PFMAM 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 PFMAM and the Trust's
representations and warranties herein before set forth in paragraph 1.5 shall
not be deemed to cover any liability to the Trust or its investors to which a
Covered Person would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of a
Covered Person's reckless disregard of its obligations and duties under this
Agreement.
The Trust shall be notified of any action brought against a Covered
Person, such notification to be given by letter or by telegram addressed to the
Trust, c/o Xxxxxxx X. Xxxxxxxx, Esq., Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, with a copy to Xxxxxx Xxxxxxxxx, Xxx Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxxx Xxxxx & Xxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000,
promptly after the summons or other first legal process shall have been duly and
completely served upon such Covered Person. The failure to so notify the Trust
of any such action shall not relieve the Trust from any liability except to the
extent that the Trust shall have been prejudiced by such failure, or from any
liability that the Trust may have to the Covered Person against whom such action
is brought by reason of any such untrue statement or omission, otherwise than on
account of the Trust's indemnity agreement contained in this paragraph.
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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 PFMAM, which approval shall not be unreasonably withheld. In the event the
Trust elects to assume the defense of any such suit and retain counsel of good
standing approved by PFMAM, the defendant or defendants in such suit shall bear
the fees and expenses of any additional counsel retained by any of them; but in
case the Portfolio does not elect to assume the defense of any such suit, or in
case PFMAM 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 PFMAM or such Covered Person.
The Trust's indemnification agreement contained in this paragraph
and the Trust's representations and warranties in this Agreement shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of Covered Persons, and shall survive the delivery of any Shares.
This agreement of indemnity will inure exclusively to Covered Persons and their
successors. The Trust agrees to notify PFMAM promptly of the commencement of any
litigation or proceedings against the Trust or any of its officers or Trustees
in connection with the issue and sale of any Shares.
1.7. PFMAM agrees to indemnify, defend and hold the Trust, its
several officers and Trustees, and any person who controls the Trust within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act (for
purposes of this paragraph 1.7, collectively, "Covered Persons") free and
harmless from and against any and all claims, demands, liabilities and expenses
(including the costs of investigating or defending such claims, demands,
liabilities and any counsel fees incurred in connection therewith) that Covered
Persons may incur under the 1933 Act, the 1934 Act, or common law or otherwise,
but only to the extent that such liability or expense incurred by a Covered
Person resulting from such claims or demands shall arise out of or be based on
any untrue statement of a material fact contained in information furnished in
writing by PFMAM in its capacity as Placement Agent for use in the answers to
any of the items of any registration statement or in any statements in any
Offering Material or shall arise out of or be based on any omission to state a
material fact in connection with such information furnished in writing by PFMAM
to the Portfolio required to be stated in such answers or necessary to make such
information not misleading.
PFMAM shall be notified of any action brought against a Covered
Person, such notification to be given by letter or telegram addressed to PFMAM
at Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxx & Market Streets, Harrisburg,
Pennsylvania 17101, Attention: Xxxxxx Xxxxxxxxx, promptly after the summons or
other first legal process shall have been duly and completely served upon such
Covered Person. PFMAM 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 PFMAM'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 PFMAM of any such action shall not relieve PFMAM from any liability
except to the extent that PFMAM shall have been prejudiced by such failure, or
from any liability that PFMAM 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 PFMAM's indemnity agreement contained in this paragraph.
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1.8. No Shares shall be offered by either PFMAM or the Trust under
any of the provisions of this Agreement and no orders for the purchase or sale
of Shares hereunder shall be accepted by the Trust if and so long as the
effectiveness of the registration statement or any necessary amendments thereto
shall be suspended under any of the provisions of the 1940 Act; provided,
however, that nothing contained in this paragraph shall in any way restrict or
have an application to or bearing on the Trust's obligation to redeem Shares
from any investor in accordance with the provisions of the Trust's registration
statement or its Declaration of Trust, as amended from time to time.
1.9. The Trust agrees to advise PFMAM as soon as reasonably
practical by a notice in writing delivered to PFMAM or its counsel:
(a) of any request by the Commission for amendments to the
registration statement then in effect or for additional information;
(b) in the event of the issuance by the Commission or by a
court of any order suspending the effectiveness of the registration statement
then in effect or prohibiting the offering or sale of Shares, or the initiation
by service of process on the Trust of any proceeding for any such purposes;
(c) of the happening of any event that makes untrue any
statement of a material fact made in the registration statement then in effect
or that requires the making of a change in such registration statement in order
to make the statements therein not misleading; and
(d) of all action of the Commission with respect to any
amendment to any registration statement that may from time to time be filed with
the Commission.
For purposes of this paragraph 1.9, informal requests by or acts of
the Staff of the Commission shall not be deemed actions of or requests by the
Commission.
1.10. In addition to the services provided by PFMAM as Placement
Agent pursuant to this Agreement, PFMAM and its affiliates provide various other
services to the Trust and the Portfolios for which they receive compensation.
PFMAM therefore agrees to provide services pursuant to this Agreement without
the payment by the Trust or the Portfolios of any compensation therefor.
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2. Term.
This Agreement shall become effective on the date first above
written and, unless sooner terminated as provided herein, shall continue until
February 13, 2006, and thereafter shall continue in effect with respect to a
Portfolio automatically for successive annual periods, provided such continuance
is specifically approved at least annually on behalf of such Portfolio by (i)
the Board of Trustees of the Trust or (ii) by a vote of a majority (as defined
in the 0000 Xxx) of the Portfolio's outstanding voting securities, provided that
in either event the continuance is also approved by the majority of the Trustees
of the Trust who are not interested persons (as defined in the 0000 Xxx) of the
Trust or PFMAM, by vote cast in person at a meeting called for the purpose of
voting on such approval. This Agreement is terminable without penalty with
respect to the Trust or any Portfolio, on not less than 60 days' notice: by the
Board of Trustees of the Trust; by vote of a majority (as defined in the 0000
Xxx) of a Portfolio's outstanding voting securities (but only with respect to
such Portfolio); or by PFMAM. This Agreement will also terminate automatically
in the event of its assignment (as defined in the 1940 Act and the rules
thereunder). The provisions of paragraphs 1.6 and 1.7 shall survive the
termination of this Agreement.
3. Representations and Warranties.
PFMAM and the Trust each hereby represents and warrants to the other
that it has all requisite authority to enter into, execute, deliver and perform
its obligations under this Agreement and that, with respect to it, this
Agreement is legal, valid and binding, and enforceable in accordance with its
terms.
4. Governing Law, etc.
This Agreement shall be governed and interpreted in accordance with
the laws of the State of New York (without reference to conflict of law
principles) and the applicable provisions of the 1940 Act. To the extent that
any provisions of New York law conflict with the 1940 Act, the latter shall
control.
The Trust and PFMAM agree that the obligations of the Trust under
this Agreement shall not be binding upon any of the members of the Board of
Trustees, shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Trust, individually, but are binding only upon the
assets and property of the Portfolios, as provided in the Declaration of Trust.
* * *
If the foregoing is acceptable to you, please so indicate by
executing the enclosed copy of this Agreement and returning the same to the
undersigned, whereupon this Agreement shall constitute a binding contract
between the parties hereto effective upon commencement of the operations of the
Portfolios.
Yours very truly,
CADRE INSTITUTIONAL INVESTORS TRUST
PORTFOLIO
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
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Title: Treasurer
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Accepted:
PFMAM, INC.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: President
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Schedule A
U.S. Government Money Market Portfolio
Money Market Portfolio
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