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FORM OF
THIRD PARTY FEEDER FUND
AGREEMENT
AMONG
RS INVESTMENT TRUST
PFPC DISTRIBUTORS, INC.
AND
MASTER INVESTMENT PORTFOLIO
dated as of
___________________, 2000
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<TABLE>
TABLE OF CONTENTS
<S> <C> <C>
ARTICLE I. REPRESENTATIONS AND WARRANTIES..................................................................
1.1 Trust...........................................................................................
1.2 MIP.............................................................................................
1.3 Distributor.....................................................................................
ARTICLE II. COVENANTS.......................................................................................
2.1 Trust...........................................................................................
2.2 MIP.............................................................................................
2.3 Reasonable Actions..............................................................................
ARTICLE III. INDEMNIFICATION.................................................................................
3.1 Trust...........................................................................................
3.2 Distributor.....................................................................................
3.3 MIP.............................................................................................
ARTICLE IV. ADDITIONAL AGREEMENTS...........................................................................
4.1 Access to Information...........................................................................
4.2 Confidentiality.................................................................................
4.3 Obligations of Trust and MIP ...................................................................
ARTICLE V. TERMINATION, AMENDMENT..........................................................................
5.1 Termination.....................................................................................
5.2 Amendment.......................................................................................
ARTICLE VI. GENERAL PROVISIONS..............................................................................
6.1 Expenses........................................................................................
6.2 Headings........................................................................................
6.3 Entire Agreement................................................................................
6.4 Successors......................................................................................
6.5 Governing Law...................................................................................
6.6 Counterparts....................................................................................
6.7 Third Parties...................................................................................
6.8 Notices.........................................................................................
6.9 Interpretation..................................................................................
6.10 Operation of the Fund...........................................................................
6.11 Relationship of Parties; No Joint Venture, Etc. ................................................
6.12 Use of Name.....................................................................................
</TABLE>
Signatures
Schedule A
Schedule B
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AGREEMENT
THIS AGREEMENT (the "Agreement") made and entered into as of the
____ day of _______________, 2000, by and among RS Investment Trust, a
Massachusetts business trust ("Trust"), on behalf of its series set forth on
Schedule A (each, a Fund and collectively, the "Funds"), PFPC Distributors,
Inc. (the "Distributor"), [a _____________ corporation], and Master
Investment Portfolio ("MIP"), a Delaware business trust, for itself and on
behalf of its series set forth on Schedule B (each, a "Portfolio" and
collectively, the "Portfolios")
WITNESSETH
WHEREAS, Trust and MIP are each registered under the Investment
Company Act of 1940, as amended (the "1940 Act"), as open-end management
investment companies;
WHEREAS, each Fund and its corresponding Portfolio have the same
investment objective and substantially the same investment policies;
WHEREAS, each Fund desires to invest on an ongoing basis all or
substantially all of its investable assets (the "Assets") in exchange for a
beneficial interest in the corresponding Portfolio (the "Investment") on the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
made herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
1.1 TRUST. Trust represents and warrants to MIP that:
(a) ORGANIZATION. Trust is a business trust duly organized,
validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, and the Funds are duly and validly
designated series of Trust. Trust and each Fund has the requisite
power and authority to own its property and conduct its business as
proposed to be conducted pursuant to this Agreement.
(b) AUTHORIZATION OF AGREEMENT. The execution and delivery
of this Agreement by Trust on behalf of the Funds and the conduct of
business contemplated hereby have been duly authorized by all
necessary action on the part of Trust's Board of Trustees and no other
action or proceeding is necessary for the execution and delivery of
this Agreement by Funds, or the performance by Funds of their
obligations hereunder. This Agreement when executed and delivered by
Trust on behalf of the Funds shall constitute a legal, valid and
binding obligation of Trust, enforceable against the Funds in
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accordance with its terms. No meeting of, or consent by, shareholders
of the Funds is necessary to approve or implement the Investments.
(c) 1940 ACT REGISTRATION. Trust is duly registered under
the 1940 Act as an open-end management investment company, and such
registration is in full force and effect.
(d) SEC FILINGS. Trust has duly filed all forms, reports,
proxy statements and other documents (collectively, the "SEC Filings")
required to be filed with the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "1933 Act"),
the Securities Exchange Act of 1934 (the "1934 Act") and the 1940 Act,
and the rules and regulations thereunder (collectively, the
"Securities Laws"), in connection with the registration of the Funds'
shares, any meetings of the Funds' shareholders and its registration
as an investment company. All SEC Filings relating to the Funds were
prepared to comply in all material respects in accordance with the
requirements of the applicable Securities Laws and did not, when
filed, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading, provided that Trust makes
no representation or warranty hereunder with respect to information
supplied by or on behalf of MIP or any service provider of MIP for use
in Trust's SEC Filings or for use in preparing such Filings, including
but not limited to any written information contained in MIP's current
registration statement relating to the Portfolios.
(e) FUND ASSETS. Each Fund currently intends on an ongoing
basis to invest its Assets solely in the corresponding Portfolio,
although it reserves the right to invest Assets in other securities
and other assets and/or to redeem any or all units of the Portfolio at
any time without notice.
(f) REGISTRATION STATEMENT. Trust has reviewed MIP's and the
Portfolios' most recent registration statement on Form N-lA, as filed
with the SEC.
(g) INSURANCE. Trust has in force a joint errors and
omissions liability insurance policy insuring the Funds, among others,
against loss up to [$______] million for negligence or wrongful acts.
1.2 MIP. MIP represents and warrants to Trust that:
(a) ORGANIZATION. MIP is a trust duly organized, validly
existing and in good standing under the laws of the State of Delaware
and the Portfolios are duly and validly designated series of MIP. MIP
and each Portfolio has the requisite power and authority to own its
property and conduct its business as now being conducted and as
proposed to be conducted pursuant to this Agreement.
(b) AUTHORIZATION OF AGREEMENT. The execution and delivery
of this Agreement by MIP on behalf of the Portfolios and the conduct
of business contemplated
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hereby have been duly authorized by all necessary action on the part
of MIP's Board of Trustees and no other action or proceeding is
necessary for the execution and delivery of this Agreement by the
Portfolios, or the performance by the Portfolios of their obligations
hereunder and the consummation by the Portfolios of the transactions
contemplated hereby. This Agreement when executed and delivered by MIP
on behalf of the Portfolios shall constitute a legal, valid and
binding obligation of MIP and the Portfolios, enforceable against MIP
and the Portfolios in accordance with its terms. No meeting of, or
consent by, interestholders of the Portfolios is necessary to approve
the issuance of the Interests (as defined below) to the Funds.
(c) ISSUANCE OF BENEFICIAL INTEREST. The issuance by MIP of
beneficial interests in the Portfolios ("Interests") in exchange for
the Investments by the corresponding Funds of their Assets has been
duly authorized by all necessary action on the part of the Board of
Trustees of MIP. When issued in accordance with the terms of this
Agreement, the Interests will be validly issued, fully paid and
non-assessable.
(d) 1940 ACT REGISTRATION. MIP is duly registered as an
open-end management investment company under the 1940 Act and such
registration is in full force and effect.
(e) SEC FILINGS; SECURITIES EXEMPTIONS. MIP has duly filed
all SEC Filings, as defined herein, relating to the Portfolios
required to be filed with the SEC under the Securities Laws. Interests
in Portfolios are not required to be registered under the 1933 Act,
because such Interests are offered solely in private placement
transactions which do not involve any "public offering" within the
meaning of Section 4(2) of the 1933 Act. In addition, Interests in the
Portfolios are either noticed or qualified for sale or exempt from
notice or qualification requirements under applicable securities laws
in those states and other jurisdictions in which Interests are offered
and sold. All SEC Filings relating to the Portfolios comply in all
material respects with the requirements of the applicable Securities
Laws and do not, as of the date of this Agreement, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(f) TAX STATUS. Each Portfolio is taxable as a partnership
for federal income tax purposes under the Internal Revenue Code of
1986, as amended (the "Code").
(g) TAXABLE AND FISCAL YEAR. The taxable and fiscal year end
of each Portfolio is December 31.
(h) INSURANCE. MIP has in force an errors and omissions
liability insurance policy insuring the Portfolios against loss up to
[$__5___] million for negligence and wrongful acts.
1.3 DISTRIBUTOR. Distributor represents and warrants to MIP that the
execution and delivery of this Agreement by Distributor have been duly
authorized by all necessary action on the part of Distributor and no other
action or proceeding is necessary for the execution and
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delivery of this Agreement by Distributor, or the performance by Distributor of
its obligations hereunder. This Agreement when executed and delivered by
Distributor shall constitute a legal, valid and binding obligation of
Distributor, enforceable against Distributor in accordance with its terms.
ARTICLE II
COVENANTS
2.1 TRUST. Trust covenants that: -----
(a) ADVANCE REVIEW OF CERTAIN DOCUMENTS. Trust will furnish
MIP at least ten (10) business days prior to the earlier of filing or
first use, with drafts of the Funds' registration statement on Form
N-lA and any amendments thereto, and also will furnish MIP at least
five (5) business days prior to the earlier of filing or first use,
with drafts of any prospectus or statement of additional information
supplements. In addition, Trust will furnish or will cause to be
furnished to MIP at least three (3) business days prior to the earlier
of filing or first use, as the case may be, any proposed advertising
or sales literature that contains language that describes or refers to
MIP or the Portfolios and that was not previously approved by MIP.
Trust agrees that it will include in all such Fund documents any
disclosures that may be required by law, and that it will incorporate
in all such Fund documents any material and reasonable comments made
by MIP. MIP will not, however, in any way be liable to Trust for any
errors or omissions in such documents, whether or not MIP makes any
objection thereto, except to the extent such errors or omissions are
based on such comments or on information provided in the Portfolios'
1940 Act registration statement or otherwise provided by MIP for
inclusion therein. In addition, neither the Funds nor Distributor will
make any other written or oral representations about MIP or the
Portfolios other than those contained in such documents without MIP's
prior written consent.
(b) SEC AND BLUE SKY FILINGS. Trust will file all SEC
Filings required to be filed with the SEC under the Securities Laws in
connection with the registration of the shares of each Fund, any
meetings of its shareholders, and its registration as a series of
Trust. Trust will file such similar or other documents as may be
required to be filed with any securities commission or similar
authority by the laws or regulations of any state, territory or
possession of the United States, including the District of Columbia,
in which shares of the Funds are or will be noticed for sale ("State
Filings"). The Funds' SEC Filings will be prepared in all material
respects in accordance with the requirements of the applicable
Securities Laws, and, insofar as they relate to information other than
that supplied or required to be supplied by MIP, will not, at the time
they are filed or used to offer the Funds' shares, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. The Funds' State Filings will be prepared
in accordance with the requirements of applicable state and federal
law and the rules and regulations thereunder.
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(c) 1940 ACT REGISTRATION. Trust will be duly registered as
an open-end management investment company under the 1940 Act.
(d) TAX STATUS. The Funds will qualify for treatment as
regulated investment companies under Subchapter M of the Code for any
taxable year during which this Agreement continues in effect, except
to the extent that a failure to so qualify may result from any action
or omission of the corresponding portfolio or MIP.
(e) FISCAL YEAR. Each Fund shall take appropriate action to
adopt and maintain the same fiscal year end as the corresponding
Portfolio (currently the last day of ____________).
(f) PROXY VOTING. If requested to vote on matters pertaining
to MIP or Portfolio, a Fund will either seek instructions from its
shareholders with regard to the voting of all proxies with respect to
Portfolio's securities and vote such proxies only in accordance with
such instructions, or vote the shares held by it in the same
proportion as the vote of all other holders of Portfolio's securities;
provided that the Fund will not be obligated to take such action if
and to the extent the Fund obtains an exemption from Section
12(d)(1)(E)(iii)(aa) of the 1940 Act.
(g) COMPLIANCE WITH LAWS. Trust shall comply, in all
material respects, with all applicable laws, rules and regulations in
connection with conducting its operations as a registered investment
company.
2.2 MIP. MIP covenants that:
(a) SIGNATURE PAGES. MIP shall promptly and timely provide
all required signature pages to Trust for inclusion in any SEC Filings
of Trust, provided Trust is in material compliance with its covenants
and other obligations under this Agreement at the time such signature
pages are provided and included in the SEC Filing. Trust and
Distributor acknowledge and agree that the provision of such signature
pages does not constitute a representation by MIP, its Trustees or
Officers, that such SEC Filing complies with the requirements of the
applicable Securities Laws, or that such SEC Filing does not contain
any untrue statement of a material fact or does not omit to the state
any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading, except with respect to
information supplied by or on behalf of MIP or any service provider of
UIP for use for inclusion in such SEC Filing or for use by Trust in
preparing such filing, which shall in any event include any written
information obtained from MIP's current registration statement on Form
N-1A.
(b) (c) ORDINARY COURSE REDEMPTIONS. Each Portfolio will
effect its redemptions in accordance with the provisions of the 1940
Act and the rules and regulations thereunder. All redemptions will be
effected in cash at the next determined net asset value after the
redemption request is received in proper form. Each Portfolio
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will settle redemptions on the business day following the receipt of a
redemption request by a Fund.
(d) SEC FILINGS. MIP will file all SEC Filings required to
be filed with the SEC under the Securities Laws in connection with any
meetings of the Portfolios' investors and its registration as an
investment company and will provide copies of all such definitive
filings to Trust. The Portfolios' SEC Filings will comply in all
material respects with the requirements of the applicable Securities
Laws, and will not, at the time they are filed or used, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(e) 1940 ACT REGISTRATION. MIP will remain duly registered
as an open-end management investment company under the 1940 Act.
(f) TAX STATUS. Based upon applicable IRS interpretations
and rulings and Treasury Regulations, each Portfolio will continue to
be treated as a partnership for federal income tax purposes. Each
Portfolio will continue to satisfy (i) the income test imposed on
regulated investment companies under Section 851(b)(2) of the Code and
(ii) the asset test imposed on regulated investment companies under
Section 851(b)(3) of the Code as if such Sections applied to it for so
long as this Agreement continues in effect. MIP agrees to forward to
Trust prior to the Funds' initial Investment a copy of its opinion of
counsel or private letter ruling relating to the tax status of the
Portfolios and agrees (and, in the case of any such opinion, has
obtained the agreement of such counsel) that Trust and the Funds may
rely upon such opinion or ruling in connection with the Funds'
investment in the Portfolios.
(g) SECURITIES EXEMPTIONS. Interests in the Portfolios have
been and will continue to be offered and sold solely in private
placement transactions which do not involve any "public offering"
within the meaning of Section 4(2) of the 1933 Act or require
registration or notification under any state law.
(h) ADVANCE NOTICE OF CERTAIN CHANGES. MIP shall provide Trust
with at least one hundred twenty (120) days' advance notice, or such
lesser time as may be agreed to by the parties, of any change in a
Portfolio's investment objective, and at least sixty (60) days' advance
notice, or if MIP has knowledge or should have knowledge that one of
the following changes is likely to occur more than sixty (60) days in
advance of such event, notice shall be provided as soon as reasonably
possible after MIP obtains or should have obtained such knowledge, of
any material change in a Portfolio's investment policies or activities,
any material increase in a Portfolio's fees or expenses, or any change
in a Portfolio's fiscal year or time for calculating net asset value
for purposes of Rule 22c-1.
(i) COMPLIANCE WITH LAWS. MIP shall comply, in all material
respects, with all applicable laws, rules and regulations in
connection with conducting its operations as a registered investment
company.
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2.3 REASONABLE ACTIONS. Each party covenants that it will, subject to
the provisions of this Agreement, from time to time, as and when reasonably
requested by another party or in its own discretion, as the case may be, execute
and deliver or cause to be executed and delivered all such documents,
assignments and other instruments, take or cause to be taken such actions, and
do or cause to be done all things reasonably necessary, proper or advisable in
order to conduct the business contemplated by this Agreement and to carry out
its intent and purpose.
ARTICLE III
INDEMNIFICATION
3.1 TRUST
(a) Trust on behalf of each Fund agrees to indemnify and
hold harmless MIP, the Portfolios and the Portfolios' investment
adviser, and any director/trustee, officer, employee or agent of MIP,
the Portfolio or Portfolios' investment adviser (in this Section,
each, a "Covered Person" and collectively, "Covered Persons"), against
any and all losses, claims, demands, damages, liabilities or expenses
(including, with respect to each Covered Person, the reasonable cost
of investigating and defending against any claims therefor and any
reasonable counsel fees incurred in connection therewith, except as
provided in subparagraph (b)) ("Losses"), that:
(i) arise out of or are based upon any violation
or alleged violation by that Fund, or by the Trust or any of
its Trustees, officers, employees or agents acting on behalf
of that Fund, of any of the Securities Laws, or any other
applicable statute, rule, regulation or common law, or are
incurred in connection with or as a result of any formal or
informal administrative proceeding or investigation by a
regulatory agency in respect of any such violation or
alleged violation except to the extent that such violation
or alleged violation results from or comports with acts or
omissions of MIP or any of its trustees, officers,
employees, or agents; or
(ii) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in any advertising or sales literature,
prospectus, registration statement, or any other SEC Filing
relating to the Funds, or any amendments or supplements to
the foregoing (in this Section, collectively "Offering
Documents"), or arise out of or are based upon the omission
or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein in light of the circumstances under which
they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was
not made in the Offering Documents in reliance upon and in
conformity with MIP's registration statement on Form N-1A
and other written information furnished by on or behalf of
MIP or any service provider of MIP for use therein or for
use in preparing such documents, including but not limited
to any written information contained in MIP's current
registration statement on Form N-1A;
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PROVIDED, HOWEVER, that in no case shall Trust be liable for
indemnification hereunder with respect to any claims made against any
Covered Person unless such Covered Person shall have notified Trust in
writing promptly after the summons, other first legal process, notice
of a federal, state or local tax deficiency, or formal initiation of a
regulatory investigation or proceeding giving information of the
nature of the claim shall have properly been served upon or provided
to such Covered Person seeking indemnification. Failure to notify
Trust of such claim shall not relieve Trust from any liability that it
may have to any Covered Person otherwise than on account of the
indemnification contained in this Section.
(b) Trust will be entitled to participate at its own expense
in the defense or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but if Trust elects to assume
the defense, such defense shall be conducted by counsel chosen by
Trust. In the event Trust elects to assume the defense of any such
suit and retain such counsel, each Covered Person in the suit may
retain additional counsel but shall bear the fees and expenses of such
counsel unless (A) Trust shall have specifically authorized the
retaining of and payment of fees and expenses of such counsel or (B)
the parties to such suit include any Covered Person and Trust, and any
such Covered Person has been advised in a written opinion by counsel
reasonably acceptable to Trust that one or more legal defenses may be
available to it that may not be available to Trust, in which case
Trust shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the fees and expenses of one
counsel to all such persons. Trust shall not be required to indemnify
any Covered Person for any settlement of any such claim effected
without its written consent, which consent shall not be unreasonably
withheld or delayed. The indemnities set forth in paragraph (a) will
be in addition to any liability that Trust might otherwise have to
Covered Persons.
3.2 DISTRIBUTOR
(a) Distributor agrees to indemnify and hold harmless MIP,
the Portfolios and the Portfolios' investment adviser, and any
director/trustee, officer, employee or agent of MIP, the Portfolios or
Portfolios' investment adviser (in this Section, each, a "Covered
Person" and collectively, "Covered Persons"), against any and all
losses, claims, demands, damages, liabilities or expenses (including,
with respect to each Covered Person, the reasonable cost of
investigating and defending against any claims therefor and any
counsel fees incurred in connection therewith, except as provided in
subparagraph (b)) ("Losses"), that:
(i) arise out of or are based upon any violation
or alleged violation of any of the Securities Laws, or any
other applicable statute, rule, regulation or common law, or
are incurred in connection with or as a result of any formal
or informal administrative proceeding or investigation by a
regulatory agency, insofar as such violation or alleged
violation, proceeding or investigation arises out of or is
based upon any direct or indirect omission or commission (or
alleged omission or commission) by Trust or Distributor or
by any of its or their
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trustees/directors, officers, employees or agents, but only
insofar as such omissions or commissions relate to the
Funds; or
(ii) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in any advertising or sales literature,
prospectus, registration statement, or any other SEC Filing
relating to the Funds, or any amendments or supplements to
the foregoing (in this Section, collectively "Offering
Documents"), or arise out of or are based upon the omission
or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein in light of the circumstances under which
they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was
not made in the Offering Documents in reliance upon and in
conformity with MIP's registration statement on Form N-1A
and other written information furnished by MIP to the Funds
or by any service provider of MIP for use therein or for use
by the Funds in preparing such documents, including but not
limited to any written information contained in MIP's
current registration statement on Form N-1A;
PROVIDED, HOWEVER, that in no case shall Distributor be
liable for Losses to the extent Trust pays the amount of such Losses
to the Covered Person under Section 3.1(a) hereof, nor shall
Distributor be liable for indemnification hereunder with respect to
any claims made against any Covered Person unless a Covered Person
shall have notified Distributor in writing within a reasonable time
after the summons, other first legal process, notice of a federal,
state or local tax deficiency, or formal initiation of a regulatory
investigation or proceeding giving information of the nature of the
claim shall have properly been served upon or provided to a Covered
Person seeking indemnification. Failure to notify Distributor of such
claim shall not relieve Distributor from any liability that it may
have to any Covered Person otherwise than on account of the
indemnification contained in this Section.
(b) Distributor will be entitled to participate at its own
expense in the defense or, if it so elects, to assume the defense of
any suit brought to enforce any such liability, but if Distributor
elects to assume the defense, such defense shall be conducted by
counsel chosen by Distributor. In the event Distributor elects to
assume the defense of any such suit and retain such counsel, each
Covered Person in the suit may retain additional counsel but shall
bear the fees and expenses of such counsel unless (A) Distributor
shall have specifically authorized the retaining of and payment of
fees and expenses of such counsel or (B) the parties to such suit
include any Covered Person and Distributor, and any such Covered
Person has been advised in a written opinion by counsel reasonably
acceptable to Distributor that one or more legal defenses may be
available to it that may not be available to Distributor, in which
case Distributor shall not be entitled to assume the defense of such
suit notwithstanding its obligation to bear the fees and expenses of
one counsel to all such persons. Distributor shall not be required to
indemnify any Covered Person for any settlement of any such claim
effected without its written consent, which consent shall not be
unreasonably withheld or delayed. The
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indemnities set forth in paragraph (a) will be in addition
to any liability that Distributor might otherwise have to Covered
Persons.
3.3 MIP.
(a) MIP agrees to indemnify and hold harmless Trust, the
Funds, Distributor, and any affiliate providing services to Trust
and/or the Funds, and any trustee/director, officer, employee or agent
of any of them (in this Section, each, a "Covered Person" and
collectively, "Covered Persons"), against any and all losses, claims,
demands, damages, liabilities or expenses (including, with respect to
each Covered Person, the reasonable cost of investigating and
defending against any claims therefor and any counsel fees incurred in
connection therewith, except as provided in subparagraph (b))
("Losses"), that:
(i) arise out of or are based upon any violation
or alleged violation of any of the Securities Laws, or any
other applicable statute, rule, regulation or common law or
are incurred in connection with or as a result of any formal
or informal administrative proceeding or investigation by a
regulatory agency, insofar as such violation or alleged
violation, proceeding or investigation arises out of or is
based upon any direct or indirect omission or commission (or
alleged omission or commission) by MIP, or any of its
trustees, officers, employees or agents; or
(ii) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in any advertising or sales literature,
registration statement, or any other SEC Filing relating to
the Portfolios, or any amendments to the foregoing (in this
Section, collectively, the "Offering Documents") or arise
out of or are based upon the omission or alleged omission to
state therein, a material fact required to be stated
therein, or necessary to make the statements therein in
light of the circumstances under which they were made, not
misleading; or
(iii) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact
contained in any Offering Documents relating to Trust or the
Funds, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in
reliance upon and in conformity with MIP's registration
statement on Form N-1A and other written information
furnished by or on behalf of MIP or any service provider of
MIP for use therein or for use in preparing such documents,
including but not limited to any written information
contained in MIP's current registration statement on Form
N-1A;
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PROVIDED, HOWEVER, that in no case shall MIP be liable for
indemnification hereunder with respect to any claims made against any
Covered Person unless a Covered Person shall have notified MIP in
writing within a reasonable time after the summons, other first legal
process, notice of a federal, state or local tax deficiency, or formal
initiation of a regulatory investigation or proceeding giving
information of the nature of the claim shall have properly been served
upon or provided to a Covered Person seeking indemnification. Without
limiting the generality of the foregoing, MIP's indemnity to Covered
Persons shall include all relevant liabilities of Covered Persons
under the Securities Laws, as if the Offering Documents constitute a
"prospectus" within the meaning of the 1933 Act, and MIP had
registered its interests under the 1933 Act pursuant to a registration
statement meeting the requirements of the 1933 Act. Failure to notify
MIP of such claim shall not relieve MIP from any liability that it may
have to any Covered Person otherwise than on account of the
indemnification contained in this Section.
(b) MIP will be entitled to participate at its own expense
in the defense or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but, if MIP elects to assume
the defense, such defense shall be conducted by counsel chosen by MIP.
In the event MIP elects to assume the defense of any such suit and
retain such counsel, each Covered Person in the suit may retain
additional counsel but shall bear the fees and expenses of such
counsel unless (A) MIP shall have specifically authorized the
retaining of and payment of fees and expenses of such counsel or (B)
the parties to such suit include any Covered Person and MIP, and any
such Covered Person has been advised in a written opinion by counsel
reasonably acceptable to MIP that one or more legal defenses may be
available to it that may not be available to MIP, in which case MIP
shall not be entitled to assume the defense of such suit
notwithstanding its obligation to bear the fees and expenses of one
counsel to such persons. MIP shall not be required to indemnify any
Covered Person for any settlement of any such claim effected without
its written consent, which consent shall not be unreasonably withheld
or delayed. The indemnities set forth in paragraph (a) will be in
addition to any liability that MIP might otherwise have to Covered
Persons.
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 ACCESS TO INFORMATION. Throughout the life of this Agreement,
Trust and MIP shall afford each other reasonable access at all reasonable times
to such party's officers, employees, agents and offices and to all relevant
books and records and shall furnish each other party with all relevant financial
and other data and information as such other party may reasonably request.
4.2 CONFIDENTIALITY. Each party agrees that it shall hold in strict
confidence all data and information obtained from another party (unless such
information is or becomes readily ascertainable from public or published
information or trade sources or public disclosure of such information is
required by law) and shall ensure that its officers, employees and authorized
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representatives do not disclose such information to others without the prior
written consent of the party from whom it was obtained, except if disclosure is
required by the SEC, any other regulatory body, the Funds' or Portfolios'
respective auditors, or in the opinion of counsel to the disclosing party such
disclosure is required by law, and then only with as much prior written notice
to the other parties as is practical under the circumstances. Each party hereto
acknowledges that the provisions of this Section 4.2 shall not prevent Trust or
MIP from filing a copy of this Agreement as an exhibit to a registration
statement on Form N-1A as it relates to the Funds or Portfolios, respectively,
and that such disclosure by Trust or MIP shall not require any additional
consent from the other parties.
4.3 OBLIGATIONS OF TRUST AND MIP. MIP agrees that the financial
obligations of Trust under this Agreement shall be binding only upon the assets
of the Funds, and that MIP shall not seek satisfaction of any such obligation
from the officers, agents, employees, trustees or shareholders of Trust or the
Funds, and in no case shall MIP or any Covered Person have recourse to the
assets of any series of the Trust other than the Funds. Trust agrees that the
financial obligations of MIP under this Agreement shall be binding only upon the
assets of the Portfolios and that, except to the extent liability may be imposed
under relevant Securities Laws, Trust shall not seek satisfaction of any such
obligation from the officers, agents, employees, trustees or shareholders of MIP
or other classes or series of MIP.
ARTICLE V
TERMINATION, AMENDMENT
5.1 TERMINATION. This Agreement may be terminated at any time by the
mutual agreement in writing of all parties, or by any party on ninety (90) days'
advance written notice to the other parties hereto; provided, however, that
nothing in this Agreement shall limit Trust's right to redeem all or a portion
of its units of the Portfolios in accordance with the 1940 Act and the rules
thereunder. The provisions of Article III and Sections 4.2 and 4.3 shall survive
any termination of this Agreement.
5.2 AMENDMENT. This Agreement may be amended, modified or supplemented
at any time in such manner as may be mutually agreed upon in writing by the
parties.
ARTICLE VI
GENERAL PROVISIONS
6.1 EXPENSES. All costs and expenses incurred in connection with this
Agreement and the conduct of business contemplated hereby shall be paid by the
party incurring such costs and expenses.
6.2 HEADINGS. The headings and captions contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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6.3 ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between the parties concerning the subject matter of this
Agreement and incorporates or supersedes all prior negotiations and
understandings. There are no covenants, promises, agreements, conditions or
understandings, either oral or written, between the parties relating to the
subject matter of this Agreement other than those set forth herein. This
Agreement may be amended only in a writing signed by all parties.
6.4 SUCCESSORS. Each and all of the provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; PROVIDED, HOWEVER, that neither this
Agreement, nor any rights herein granted may be assigned to, transferred to or
encumbered by any party, without the prior written consent of the other parties
hereto.
6.5 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California without regard to the
conflicts of laws provisions thereof; PROVIDED, HOWEVER, that in the event of
any conflict between the 1940 Act and the laws of California, the 1940 Act shall
govern.
6.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing one or more counterparts.
6.7 THIRD PARTIES. Except as expressly provided in Article III,
nothing herein expressed or implied is intended or shall be construed to confer
upon or give any person, other than the parties hereto and their successors or
assigns, any rights or remedies under or by reason of this Agreement.
6.8 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made when delivered in person or three days after being sent by certified or
registered United States mail, return receipt requested, postage prepaid,
addressed:
If to Trust:
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If to Distributor:
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If to MIP:
Chief Operating Officer
Master Investment Portfolio
c/o Stephens Inc.
111 Center Street
Little Rock, AR 72201
6.9______INTERPRETATION. Any uncertainty or ambiguity existing herein
shall not be interpreted against any party, but shall be interpreted according
to the application of the rules of interpretation for arms' length agreements.
6.10_____OPERATION OF THE FUNDS. Except as otherwise provided herein,
this Agreement shall not limit the authority of the Funds, Trust or Distributor
to take such action as they may deem appropriate or advisable in connection with
all matters relating to the operation of the Funds and the sale of their shares.
6.11_____RELATIONSHIP OF PARTIES; NO JOINT VENTURE, ETC. It is
understood and agreed that neither Trust nor Distributor shall hold itself out
as an agent of MIP with the authority to bind such party, nor shall MIP hold
itself out as an agent of Trust or Distributor with the authority to bind such
party.
6.12_____USE OF NAME. Except as otherwise provided herein or required
by law (E.G., in Trust's Registration Statement on Form N-1A), neither Trust,
the Funds nor Distributor shall describe or refer to the name of MIP, the
Portfolios or any derivation thereof, or any affiliate thereof, or to the
relationship contemplated by this Agreement in any advertising or promotional
materials without the prior written consent of MIP, nor shall MIP describe or
refer to the name of Trust, the Funds or Distributor or any derivation thereof,
or any affiliate thereof, or to the relationship contemplated by this Agreement
in any advertising or promotional materials without the prior written consent of
Trust, the Funds or Distributor, as the case may be. In no case shall any such
consents be unreasonably withheld or delayed. In addition, the party required to
give its consent shall have at least three (3) business days prior to the
earlier of filing or first use, as the case may be, to review the proposed
advertising or promotional materials.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the date
first written above.
RS INVESTMENT TRUST
on behalf of each Fund severally, and not jointly
By: _______________________________________________
Name:
Title:
PFPC DISTRIBUTORS, INC.
By: _______________________________________________
Name:
Title:
MASTER INVESTMENT PORTFOLIO,
on behalf of itself and [_____________]
MASTER PORTFOLIOS
By: _______________________________________________
Name:
Title:
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SCHEDULE A
[________] FUNDS
[________] Fund
[________] Fund
Approved: [________, 2000]
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SCHEDULE B
MASTER INVESTMENT PORTFOLIOS
[________] Master Portfolio
[________] Master Portfolio
Approved: [________, 2000]
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