September 30, 1996
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 open-end management investment
companies (collectively, the `Trusts'') registered under the Investment
Company Act of 1940, as amended (the `1940 Act''), each organized as a
business trust under the laws of the State of New York, 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 each series of the Trusts.
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 a 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 Trusts 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 Trusts
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 Each 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 a Trust. Each 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
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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 Trusts 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 a 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 Trusts 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 a 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 Each Trust severally 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 ``934 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
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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 (``ffering 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 each 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 each Trust's agreement to
indemnify ESI and each 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. A 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 a 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
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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.
Each 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 a 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 a 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. Each Trust's indemnification
agreement contained in this paragraph and each 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. Each 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 each Trust, its
several officers and trustees, and any person who controls a 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'')
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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 ESI in its capacity
as Exclusive Placement Agent to the Trusts 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 a 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 a
Trust 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 that ESI elects to assume the
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defense in any such suit and retain counsel of good standing approved by a
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 a 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 each 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
Trusts 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
Trusts 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 a 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. Each Trust shall
notify ESI promptly of the suspension of its registration statement or any
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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 Each Trust agree 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 a 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.
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1.10 ESI agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Trusts all records and
other information not otherwise publicly available relative to the Trusts
and their respective 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 a 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 a Trust.
1.11 In addition to ESI's duties as Exclusive Placement Agent,
the Trusts understand 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 Trusts'
transfer agent for processing; reconciliation of all transactions delivered
to the Trusts' transfer agent; and the recording and reporting of these
transactions executed by the Trusts' 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.
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ESI understands that these services may result in cost savings to
the Trusts or to the Trusts' investment manager and neither the Trusts nor
the Trusts' 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
Trusts 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 a Trust in the performance of its duties or
from reckless disregard by a 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 any 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 a 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
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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 with respect to each
Trust by (i) each Trust's Board of Trustees or (ii) by a vote of a majority
(as defined in the 0000 Xxx) of each 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 0000 Xxx) 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 a Board, by a vote of
a majority (as defined in the 0000 Xxx) of a 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 each 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
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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 each Trust has executed this Agreement
not individually, but as President under each 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,
Xxxxxxx X. Xxxxx, Xx.
By:/s/ Xxxxxxx X. Xxxxx, Xx.
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Vice President, on behalf of the Trusts listed
on Exhibit A, attached hereto:
Accepted:
EDGEWOOD SERVICES, INC..
By:/s/ R. Xxxxxxx Xxxx
EXHIBIT A
TO
EXCLUSIVE PLACEMENT AGENT AGREEMENT
Pursuant to the Exclusive Placement Agreement, ESI shall be Exclusive
Placement Agent with respect to the following Trusts, effective as of the
date indicated below:
Name of Trust Date
BT Investment Portfolios:
Liquid Assets Portfolio September 30, 1996
Asset Management Portfolio II September 30, 1996
Asset Management Portfolio III September 30, 1996
Global High Yield Securities PortfolioSeptember 30, 1996
Latin American Equity Portfolio September 30, 1996
Small Cap Portfolio September 30, 1996
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Pacific Basin Equity Portfolio September 30, 1996
European Equity Portfolio September 30, 1996
International Bond Portfolio September 30, 1996
100% Treasury Portfolio September 30, 1996
Growth and Income Portfolio September 30, 1996
U.S. Bond Index Portfolio September 30, 1996
Equity 500 Equal Weighted Index Portfolio September 30, 1996
Small Cap Index Portfolio September 30, 1996
EAFE Equity Index Portfolio September 30, 1996
Cash Management Portfolio September 30, 1996
Treasury Money Portfolio September 30, 1996
Tax Free Money Portfolio September 30, 1996
International Equity Portfolio September 30, 1996
Utility Portfolio September 30, 1996
Equity 500 Index Portfolio September 30, 1996
Short/Intermediate U.S. Government Securities XxxxxxxxxXxxxxxxxx 00, 0000
Xxxxx Management Portfolio September 30, 1996
Capital Appreciation Portfolio September 30, 1996
Intermediate Tax Free Portfolio September 30, 1996
093096
093096
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