Exhibit - 99.e(ii)
August 11, 1998
ICC Distributors, Inc.
Two Portland Square
Portland, ME 041 01
Ladies and Gentlemen:
Re: Exclusive Placement Agent Agreement
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This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned open-end management investment companies (each a
"Trust" and 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 ICC Distributors, Inc.,
a Delaware corporation ("ICC"), shall be the exclusive placement agent (the
"Exclusive Placement Agent") of beneficial interests ("Trust Interests") of each
series of the respective Trusts.
1. Services as Exclusive Placement Agent
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1.1 ICC will act as Exclusive Placement Agent of the Trust Interests. In
acting as Exclusive Placement Agent under this Exclusive Placement Agent
Agreement, neither ICC 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 ICC and its agents and employees as Exclusive
Placement Agent of Trust Interests shall comply with all applicable laws, rules
and regulations of any U.S. governmental authority, 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 or their delegates.
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
ICC may reasonably request. The Trusts shall prepare and furnish, at their own
cost and expense, all offering documents to be used by the Exclusive Placement
Agent to offer Trust Interests, including, without limitation, the Confidential
Private Placement Memorandum, the Confidential Statement of Additional
Information, and the Subscription Agreement (collectively, the "Approved
Offering Documents"). The Trusts shall also furnish ICC 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 ICC may reasonably request.
1.5 Each Trust represents to ICC 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 ICC 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 ICC to do so,
ICC may, at its option, terminate this Agreement. The Trusts shall not file any
amendment to any registration statement without giving ICC 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 ICC, its
several officers and directors, and any person who controls ICC within the
meaning of Section 15 of the 193 3 Act or Section 20 of the Securities Exchange
Act of 1934 (the " 1 934 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, the laws or regulations of any U.S. or foreign
governmental authority, 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 Approved Offering Documents or other `Offering
material from time to time furnished by
or on behalf of the Trust ("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 ICC 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 ICC 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 ICC,
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 ICC, 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 ICC
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 ICC 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 ICC 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 ICC 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, 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
ICC 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 ICC to a Trust required
to be stated in such answers or necessary to make such information not
misleading. ICC shall be notified of any action brought against a Covered
Person, such notification to be given by letter or telegram addressed to ICC 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 ICC of any such action shall not relieve ICC (i) from any liability
except to the extent a Trust shall have been prejudiced by such failure, or (ii)
from any liability that ICC 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 ICC's indemnity
agreement contained in this paragraph. ICC 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 ICC and approved by the Trust, which approval shall not be unreasonably
withheld. In the event that ICC 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 ICC does not elect to assume the
defense of any such suit, or in case a Trust reasonably does not approve of
counsel chosen by ICC, ICC 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. ICC's indemnification agreement contained in this paragraph
and ICC'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. ICC agrees to notify each Trust promptly of the
commencement of any litigation or proceedings against ICC 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 ICC 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 ICC promptly of the
suspension of its registration statement or any necessary amendments thereto,
such notification to be given by letter or telecopy addressed to ICC at
Federated Investors Tower, 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000,
Attention: Secretary.
1.9 Each Trust agree to advise ICC as soon as reasonably practical by
a notice in writing delivered to ICC 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 ICC 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 ICC 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 ICC's duties as Exclusive Placement Agent, the
Trusts understand that ICC 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 ICC'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.
ICC may also provide other investor services, such as communicating
with Trust investors and other functions in administering customer accounts for
Trust investors.
ICC 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 ICC 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 ICC
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 ICC 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 ICC 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, ICC 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 ICC in the performance of its duties or from reckless disregard by ICC
of its obligations and duties under this Agreement.
2. Term.
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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 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 the Board,
by a vote of a majority (as defined in the 0000 Xxx) of a Trust's outstanding
voting securities, or by ICC. 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.
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ICC 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. Activities of ICC
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Except to the extent necessary to perform ICC's obligations hereunder, nothing
herein shall be deemed to limit or restrict ICC's right, or the right of any of
ICC's officers, directors or employees who may also be a trustee, officer or
employee of the Trusts, or persons otherwise affiliated persons of the Trusts to
engage in any other business or to devote time and attention to the management
or other aspects of any other business, whether of a similar or dissimilar
nature, or to render services of any kind to any other corporation, trust, firm,
individual or association.
5. Concerning Applicable Provisions of Law, etc.
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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.
6. Miscellaneous
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(a) No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties hereto.
(b) If any part, ten-n or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected, and the rights and
obligations of the parties
shall be construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
(c) This Agreement may be executed by the parties hereto on any number of
counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
(d) Section headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this Agreement.
(e) Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
(f) The terms "vote of a majority of the outstanding voting interests,"
"interested person," "affiliated person" and "assignment" shall have the
meanings ascribed thereto in the Act to the terms "vote of a majority of the
outstanding voting securities," "interested person," "affiliated person" and
"assignment," respectively.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed all as of the day and year first above written.
Very truly yours,
By: /s/ Xxx X. XXXXXX
Xxx X. Xxxxxx
Secretary, on behalf of the Trusts
listed on Exhibit A hereto
Accepted:
ICC Distributors, Inc.
By: /s/ XXXXX X. XXXXXXXXX
Xxxxx X. Xxxxxxxxx
Secretary
EXHIBIT A
TO
EXCLUSIVE PLACEMENT AGENT AGREEMENT
Pursuant to the Exclusive Placement Agreement, ICC shall be Exclusive
Placement Agent with respect to the following Trust, effective as of the date
indicated below:
Name of Trust Date
BT Institutional Funds:
Daily Assets Institutional Fund August 11, 1998
Treasury Assets Institutional Fund August 11, 1998
