Exhibit 15(ii) under Form N-1A
Exhibit 1 under Item 601/Reg. S-K
Institutional Daily Assets Fund,
(a portfolio of BT Institutional Funds)
Federated Investors Tower
0000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
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, INSTITUTIONAL DAILY 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 Daily 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 ``933 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
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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
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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
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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
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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 ``overed 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 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
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the 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 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
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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
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(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
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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,
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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
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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 as President 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.
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Very truly yours,
BT INSTITUTIONAL FUNDS, on behalf of its
Institutional Daily Assets Fund
By:/s/ Xxxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Xxxxx, Xx.
Vice President
Accepted:
EDGEWOOD SERVICES, INC.
By:/s/ X. Xxxxxxx Xxxx
