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THIRD PARTY FEEDER FUND
AGREEMENT
AMONG
[ATLAS ASSETS, INC.
ATLAS SECURITIES, INC.
AND
MASTER INVESTMENT PORTFOLIO
dated as of
___________________, 2000
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TABLE OF CONTENTS
ARTICLE I. REPRESENTATIONS AND WARRANTIES
1.1 Company
1.2 MIP
1.3 Distributor
ARTICLE II. COVENANTS
2.1 Company
2.2 MIP
2.3 Reasonable Actions
ARTICLE III. INDEMNIFICATION
3.1 Company
3.2 Distributor
3.3 MIP
ARTICLE IV. ADDITIONAL AGREEMENTS
4.1 Access to Information
4.2 Confidentiality
4.3 Obligations of Company 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
Signatures
Schedule A
Schedule B
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AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as of the
____ day of _______________, 2000, by and among ATLAS ASSETS, INC [A MARYLAND
CORPORATION__________ ] (the " COMPANY"), for itself and on behalf of its series
set forth on Schedule A, (each, a Fund and collectively, the "Funds") ATLAS
SECURITIES, INC.(the "Distributor"), A ____CALIFORNIA_________ 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, COMPANY and MIP are each registered under the Investment
Company Act of 1940 (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 Company. Company represents and warrants to MIP that:
(a) ORGANIZATION. Company is a corporation duly organized,
validly existing and in good standing under the laws of the [STATE OF
_MARYLAND_____], and the Funds are duly and validly designated series
of Company. Company 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 Company on behalf of the Funds and the conduct of
business contemplated hereby have been duly authorized by all
necessary action on the part of Company's Board of Directors 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
Company on behalf of the Funds shall constitute a legal, valid and
binding obligation of Company,
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enforceable against the Funds in 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. Company is duly registered under the
Investment Company Act of 1940, as amended (the "1940 Act") as an
open-end management investment company, and such registration is in
full force and effect.
(d) SEC FILINGS. Company 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 its 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 do not to the best
knowledge of the Company, 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, provided that Company makes no
representation or warranty hereunder with respect to information
supplied by MIP or any service provider of MIP for use in Company SEC
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. Company has reviewed MIP's and the
Portfolios' most recent registration statement on Form N-lA, as filed
with the SEC.
(g) INSURANCE. Company has in force an errors and omissions
liability insurance policy insuring the Funds against loss up to
[$______] million for negligence or wrongful acts.
1.2 MIP. MIP represents and warrants to Company 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 to the best knowledge of the Portfolios, 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 31ST_____________
(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
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the part of Distributor and no other action or proceeding is necessary for
the execution and 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 COMPANY. Company covenants that:
(a) ADVANCE REVIEW OF CERTAIN DOCUMENTS. Company 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, Company 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.
Company 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 Company for any
errors or omissions in such documents, whether or not MIP makes any
objection thereto, except to the extent such errors or omissions
result from 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. Company will file all SEC Filings
required to be filed with the SEC under the Securities Laws in
connection with the registration of the Funds' shares, any meetings of
its shareholders, and its registration as a series of an investment
company. Company 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 to the best
knowledge of the Company, 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
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Filings will be prepared in accordance with the requirements of
applicable state and federal law and the rules and regulations
thereunder.
(c) 1940 ACT REGISTRATION. Company 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 __December_31st_________).
(f) PROXY VOTING. If requested to vote on matters pertaining to
MIP or a 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. Company shall use its reasonable best
efforts to 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 provide all required
signature pages to Company for inclusion in any SEC Filings of
Company, provided Company 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. Company 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 provided by MIP for inclusion in such SEC Filing or for
use by Company 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) REDEMPTIONS. Except as otherwise provided in this Section
2.2(b), redemptions of interests owned by a Fund will be effected in
cash pursuant to Section 2.2(c). In the event a Fund desires to
withdraw its entire Investment from a
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corresponding Portfolio, either by submitting a redemption request or
by terminating this agreement in accordance with Section 5.1 hereof,
Portfolio, at its sole discretion, and in accordance with the 1940 Act
and the rules and regulations thereunder, may effect such redemption
"in kind" and in such manner that the securities delivered to Fund or
its custodian approximate the Fund's proportionate share of
Portfolio's net assets immediately prior to such redemption. In
addition, in the event a Fund makes a redemption (or series of
redemptions over any three consecutive business days) of an amount
that exceeds 10% of Portfolio's net asset value, Portfolio, at its
sole discretion, and in accordance with the 1940 Act and the rules and
regulations thereunder, may effect such redemption "in kind" and in
such manner that the securities delivered to the Fund or its custodian
approximate the Fund's proportionate share of Portfolio's net assets
immediately prior to such redemption. Each Portfolio will use its best
efforts to settle redemptions on the business day following the
receipt of a redemption request by a Fund and if such next business
day settlement is not practicable, will immediately notify the Fund
regarding the anticipated settlement date, which shall in all events
be a date permitted under the 1940 Act.
(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. Except as described in Section
2.2(b), 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 will use its best efforts to settle
redemptions on the business day following the receipt of a redemption
request by a Fund and if such next business day settlement is not
practicable, will immediately notify the Fund regarding the
anticipated settlement date, which shall in all events be a date
permitted under the 1940 Act.
(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 Company. The Portfolios' SEC Filings will comply in all
material respects with the requirements of the applicable Securities
Laws, and will not to the best knowledge of the Portfolios, 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.
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MIP agrees to forward to Company 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 that Company
and the Funds may rely upon such opinion or ruling during the term of
this Agreement.
(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 Company
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.
2.3 REASONABLE ACTIONS. Each party covenants that it will, subject to
the provisions of this Agreement, from time to time, as and when 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 COMPANY
(a) Company 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
counsel fees incurred in connection therewith, except as provided in
subparagraph (b)) ("Losses"), that:
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(i) arise out of or are based upon any violation or alleged
violation of tax treatment 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 Company or by any of its
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 Company be liable for
indemnification hereunder with respect to any claims made against any
Covered Person unless a Covered Person shall have notified Company 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 Company of such claim shall not relieve Company from any
liability that it may have to any Covered Person otherwise than on
account of the indemnification contained in this Section.
(b) Company 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 Company elects to assume
the defense, such defense shall be conducted by counsel chosen by
Company. In the event Company elect(s) 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) Company 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 Company , and
any such Covered Person has been advised in a written opinion by
counsel reasonably
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acceptable to Company that one or more legal defenses may be available
to it that may not be available to Company in which case Company 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. Company 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 Company 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 Company or Distributor or by any of its or their
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;
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PROVIDED, HOWEVER, that in no case shall Distributor be liable
for Losses to the extent Company 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 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 Company , the
Funds, Distributor, and any affiliate providing services to Company
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,
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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, or any other SEC Filing relating
to the Portfolios, or any amendments to the foregoing (in this
Section, collectively, the "Offering Documents") relating to the
Portfolios, 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 Company 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 written
information furnished to the Funds by 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 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, Portfolio'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
<PAGE>
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, Company
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
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 Company
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 Company or MIP shall not require any additional
consent from the other parties.
4.3 OBLIGATIONS OF COMPANY AND MIP. MIP agrees that the financial
obligations of Company under this Agreement shall be binding only upon the
assets of the Funds, and that except to the extent liability may be imposed
under relevant Securities Laws, MIP shall not seek satisfaction of any such
obligation from the officers, agents, employees, trustees or shareholders of
Company or the Funds, and in no case shall MIP or any covered person have
recourse to the assets of any series of the Company other than the Funds.
Company 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, Company
<PAGE>
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 Company'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.
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.
<PAGE>
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 Company :
Chief Operating Officer
Atlas Assets, Inc.
794 Davis Street
San Leandro, CA 94577
If to Distributor:
Chief Operating Officer
Atlas Securities, Inc.
794 Davis Street
San Leandro, CA 94577
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, Company 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
<PAGE>
neither Company 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 Company 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 Company's Registration Statement on Form N-1A), neither Company , 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 Company , 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
Company , 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.
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.
[] ATLAS ASSETS, INC.
on behalf of itself and the
[FUND NAMES] ATLAS S&P INDEX FUND
By: _______________________________________________
Name: LARRY E. LACASSE
Title: GROUP SENIOR VICE PRESIDENT,
CHIEF OPERATING OFFICER
[DISTRIBUTOR]
By: _______________________________________________
Name: LARRY E. LACASSE
Title: GROUP SENIOR VICE PRESIDENT,
CHIEF OPERATING OFFICER
MASTER INVESTMENT PORTFOLIO,
on behalf of itself and [_____________]
MASTER PORTFOLIOS
By: _______________________________________________
Name:
Title:
<PAGE>
SCHEDULE A
[__ATLAS______] FUNDS
[__ATLAS S & P 500 INDEX______] Fund
Approved: [________, 2000]
<PAGE>
SCHEDULE B
MASTER INVESTMENT PORTFOLIO
[________] Master Portfolio
[________] Master Portfolio
Approved: [________, 2000]
