Exhibit 9(i) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
September 30, 1996
Edgewood Services, Inc.
Federated Investors Tower
0000 Xxxxxxx Xxxxxx
Pittsburgh, PA 15222-3779
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 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 "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 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 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") 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 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 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
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.
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.
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 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 1940 Act) 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 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 a Board, by a
vote of a majority (as defined in the 1940 Act) 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 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.
Vice President, on behalf of the Trusts listed
on Exhibit A, attached hereto:
Accepted:
EDGEWOOD SERVICES, INC..
By:/s/ X. 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 Portfolio September 30, 1996
Latin American Equity Portfolio September 30, 1996
Small Cap Portfolio September 30, 1996
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(R)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 Portfolio September 30, 1996
Asset Management Portfolio September 30, 1996
Capital Appreciation Portfolio September 30, 1996
Intermediate Tax Free Portfolio September 30, 1996
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