Republic Portfolios
September __, 1996
BISYS Fund Services (Ireland), Limited
Floor 0, Xxxxx 0, Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Xxxxxx 0, Xxxxxxx
Re: Exclusive Placement Agent Agreement
Ladies and Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Republic Portfolios (the "Portfolio Trust"), an
open-end management investment company registered under the Investment Company
Act of 1940, as amended (the "1940 Act"), a master trust organized under the
laws of the State of New York, has agreed that BISYS Fund Services (Ireland)
Limited ("BISYS Ireland"), formed and existing under the laws of Ireland, shall
be the exclusive placement agent (the "Exclusive Placement Agent") of interests
("Portfolio Interests") in the Portfolio Trust's existing separate and distinct
subtrusts or series (each, a "Portfolio") and other future Portfolios as agreed
to from time to time between the Portfolio Trust and BISYS Ireland.
1. Services as Exclusive Placement Agent.
1.1 BISYS Ireland will act as Exclusive Placement Agent of the Portfolio
Interests described in the Portfolio Trust's registration statement then in
effect under the 1940 Act. In acting as Exclusive Placement Agent under this
Exclusive Placement Agent Agreement, neither the Exclusive Placement Agent nor
its employees nor any agents thereof shall make any offer or sale of Portfolio
Interests in a manner which would require the Portfolio Interests to be
registered under the Securities Act of 1933, as amended (the "1933 Act").
1.2 All activities by BISYS Ireland and its agents and employees as
Exclusive Placement Agent of Portfolio Interests shall comply with all
applicable laws, rules and regulations, including, without limitation, all rules
and regulations adopted pursuant to the 1940 Act by the United States Securities
and Exchange Commission (the "Commission").
1.3 Nothing herein shall be construed to require the Portfolio Trust to
accept any offer to purchase any Portfolio Interests, all of which shall be
subject to approval by the Portfolio Trust's Board of Trustees.
1.4 The Portfolio Trust shall furnish from time to time for use in
connection with the sale of Portfolio Interests such information with respect to
the Portfolio Trust and Portfolio Interests as the Exclusive Placement Agent may
reasonably request. The Portfolio Trust shall also furnish the Exclusive
Placement Agent upon request with: (a) unaudited semiannual statements of any
Portfolio's books and accounts prepared by the Portfolio Trust, and (b) from
time to time such additional information regarding any Portfolio's financial or
regulatory condition as the Exclusive Placement Agent may reasonably request.
1.5 The Portfolio Trust represents to the Exclusive Placement Agent that,
to its knowledge, all registration statements of the Portfolio Trust filed with
the Commission under the 1940 Act 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 the Portfolio Trust. The Portfolio Trust represents and warrants
to the Exclusive Placement Agent that it will use its best efforts to ensure
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 supplied by the
Portfolio Trust contained in any registration statement will, to its knowledge,
be true and correct in all material respects at the time of filing such
registration statement or amendment thereto; and that, to its knowledge, 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 Portfolio Interests. The
Portfolio Trust may, but shall not be obligated to, propose from time to time
such amendment to any registration statement as in the light of future
developments may, in the opinion of the Portfolio Trust's counsel, be necessary
or advisable. The Portfolio Trust shall not file any amendment to any
registration statement without giving the Exclusive Placement Agent reasonable
notice thereof in advance; provided, however, that nothing contained in this
Agreement shall in any way limit the Portfolio Trust's right to file at any time
such amendment to any registration statement as the Portfolio Trust may deem
advisable, such right being in all respects absolute and unconditional.
1.6 The Exclusive Placement Agent represents and warrants to the Portfolio
Trust that it will use its best efforts to ensure 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 supplied by or on behalf of the
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Exclusive Placement Agent contained in any registration statement will, to
its knowledge, be true and correct in all material respects at the time of
filing such registration statement or amendment thereto; and that, to its
knowledge, 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
Portfolio Interests. The Exclusive Placement Agent 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 be necessary or advisable.
1.7 The Portfolio Trust agrees to indemnify, defend and hold the Exclusive
Placement Agent, its several officers and directors, and any person who controls
the Exclusive Placement Agent within the meaning of Section 15 of the 1933 Act
or Section 20 of the Securities and Exchange Act of 1934 (the "1934 Act") (for
purposes of this paragraph 1.7, collectively, "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 reasonable counsel fees incurred in connection therewith)
which any Covered Person may incur under the 1933 Act, the 1934 Act, common law
or otherwise arising out of or based on any untrue statement of a material fact
contained in any registration statement, private placement memorandum or other
offering material ("Offering Material") or arising out of or based on any
omission to state a material fact required to be stated in any Offering Material
or necessary to make the statements in any Offering Material not misleading;
provided, however, that the Portfolio 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 to
the Portfolio Trust by BISYS Ireland in its capacity as Exclusive Placement
Agent for use in the answers to any items of any registration statement or in
any statements made in any Offering Material, or arising out of or based on any
omission or alleged omission to state a material fact in connection with the
giving of such information required to be stated in such answers or necessary to
make the answers not misleading; and further provided that the Portfolio Trust's
agreement to indemnify the Exclusive Placement Agent and the Portfolio Trust's
representations and warranties hereinbefore set forth in paragraph 1.5 shall not
be deemed to cover any liability to the Portfolio Trust or the investors in the
Portfolios to which a Covered Person would otherwise be subject by reason of
willful misfeasance, bad faith or negligence in the performance of its duties,
or by reason of a Covered Person's reckless disregard of its obligations and
duties under this Agreement. The Portfolio Trust should be notified of any
action brought against a Covered Person, such notification to be given by letter
or by telegram addressed to the Portfolio Trust, ________________________, with
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a copy to ______________________, promptly after the summons or other first
legal process shall have been duly and completely served upon such Covered
Person. The failure to so notify the Portfolio Trust of any such action shall
not relieve the Portfolio Trust from any liability except to the extent the
Portfolio Trust shall have been prejudiced by such failure or from any liability
that the Portfolio Trust may have to the Covered Person against whom such action
is brought by reason of any such untrue statement or omission, otherwise than on
account of the Portfolio Trust's indemnity agreement contained in this
paragraph. The Portfolio 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
Portfolio Trust and approved by the Exclusive Placement Agent, which approval
shall not be unreasonably withheld. In the event the Portfolio Trust elects to
assume the defense of any such suit and retain counsel of good standing approved
by the Exclusive Placement Agent, the defendant or defendants in such suit shall
bear the fees and expenses of any additional counsel retained by any of them;
but in case the Portfolio Trust does not elect to assume the defense of any such
suit, or in case the Exclusive Placement Agent reasonably does not approve of
counsel chosen by the Portfolio Trust, the Portfolio Trust will reimburse the
Covered Person named as defendant in such suit for the reasonable fees and
expenses of any counsel retained by the Exclusive Placement Agent or the Covered
Persons. The Portfolio Trust's indemnification agreement contained in this
paragraph and the Portfolio 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 Portfolio Interests. This agreement of indemnity will inure
exclusively to Covered Persons and their successors. The Portfolio Trust agrees
to notify the Exclusive Placement Agent promptly of the commencement of any
litigation or proceedings against the Portfolio Trust or any of its officers or
Trustees in connection with the issue and sale of any Portfolio Interests.
1.8 The Exclusive Placement Agent agrees to indemnify, defend and hold the
Portfolio Trust, its several officers and trustees, and any person who controls
the Portfolio Trust within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act (for purposes of this paragraph 1.8, collectively, "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 reasonable counsel fees incurred in
connection therewith) that Covered Persons may incur under the 1933 Act, the
1934 Act, common law or otherwise arising out of or based on any untrue
statement of a material fact contained in information furnished by XXXXX Xxxxxxx
in its capacity as Exclusive Placement Agent to
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the Portfolio Trust for use in the answers to any of the items of any
registration statement or in any statements in any other Offering Material or
that shall arise out of or be based on any omission to state a material fact in
connection with such information furnished by the Exclusive Placement Agent to
the Portfolio Trust required to be stated in such answers or necessary to make
such information not misleading; and further provided that the Exclusive
Placement Agent's agreement to indemnify the Portfolio Trust and the Exclusive
Placement Agent's representations and warranties hereinbefore set forth in
paragraph 1.6 shall not be deemed to cover any liability to which a Covered
Person would otherwise be subject by reason of willful misfeasance, bad faith or
negligence in the performance of its duties, or by reason of a Covered Person's
reckless disregard of its obligations and duties under this Agreement. The
Exclusive Placement Agent shall be notified of any action brought against a
Covered Person, such notification to be given by letter or telegram addressed to
the Exclusive Placement Agent at Floor 0, Xxxxx 0, Xxxxxxxx Xxxxxx, Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxx, Attention:______________________, promptly after the
summons or other first legal process shall have been duly and completely served
upon such Covered Person. The failure to so notify the Exclusive Placement Agent
of any such action shall not relieve the Exclusive Placement Agent from any
liability except to the extent the Exclusive Placement Agent shall have been
prejudiced by such failure, or from any liability that the Exclusive Placement
Agent may have to Covered Persons by reason of any such untrue or alleged untrue
statement, or omission or alleged omission, otherwise than on account of the
Exclusive Placement Agent's indemnity agreement contained in this paragraph. The
Exclusive Placement Agent 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 Exclusive
Placement Agent and approved by the Portfolio Trust, which approval shall not be
unreasonably withheld. In the event the Exclusive Placement Agent elects to
assume the defense of any such suit and retain counsel of good standing approved
by the Portfolio 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
the Exclusive Placement Agent does not elect to assume the defense of any such
suit, or in case the Portfolio Trust reasonably does not approve of counsel
chosen by the Exclusive Placement Agent, the Exclusive Placement Agent will
reimburse the Covered Person named as defendant in such suit, for the reasonable
fees and expenses of any counsel retained by the Portfolio Trust or the Covered
Persons. The Exclusive Placement Agent's indemnification agreement contained in
this paragraph and 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 Portfolio
Interests. This agreement
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of indemnity will inure exclusively to Covered Persons and their
successors. The Exclusive Placement Agent agrees to notify the Portfolio Trust
promptly of the commencement of any litigation or proceedings against the
Exclusive Placement Agent or any of its officers or directors in connection with
the sale of any Portfolio Interests.
1.9 No Portfolio Interests shall be offered by either the Exclusive
Placement Agent or the Portfolio Trust under any of the provisions of this
Agreement and no orders for the purchase or sale of Portfolio Interests
hereunder shall be accepted by the Portfolio Trust if and so long as the
effectiveness of the registration statement or any necessary amendments thereto
shall be suspended under any of the provisions of the 1940 Act; provided,
however, that nothing contained in this paragraph shall in any way restrict or
have an application to or bearing on the Portfolio Trust's obligation to redeem
Portfolio Interests from any investor in accordance with the provisions of the
Portfolio Trust's registration statement or Declaration of Trust, as amended
from time to time.
1.10 The Portfolio Trust agrees to advise the Exclusive Placement Agent as
soon as reasonably practical by a notice in writing delivered to the Exclusive
Placement Agent 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 order
suspending or revoking the registration of the Portfolio Trust or any prior
notice of the Commission advising of same;
(c) of the happening of any event that makes untrue any statement 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 1.10, informal requests by or acts of the
staff of the Commission shall not be deemed actions of or requests by the
Commission.
1.11 The Exclusive Placement Agent agrees on behalf of itself and its
employees to treat confidentially and as proprietary information of the
Portfolio Trust all records and
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other information not otherwise publicly available relative to the
Portfolios and their prior, present or potential investors and not to use such
records and information for any purpose other than performance of its
responsibilities and duties hereunder, except after prior notification to and
approval in writing by the Portfolio Trust, which approval shall not be
unreasonably withheld and may not be withheld where the Exclusive Placement
Agent may be exposed to civil or criminal contempt proceedings for failure to
comply, when requested to divulge such information by duly constituted
authorities, or when so requested by the Portfolio Trust.
1.12 In addition to BISYS Ireland's duties as Exclusive Placement Agent,
the Portfolio Trust understands that BISYS Ireland may, in its discretion,
perform additional functions in connection with transactions in Portfolio
Interests.
The processing of Portfolio Interest transactions may include, but is not
limited to, compilation of all transactions from the Exclusive Placement Agent's
various offices; creation of a transaction tape and timely delivery of it to the
Portfolios' transfer agent(s) for processing; reconciliation of all transactions
delivered to the Portfolios' transfer agent(s); and the recording and reporting
of these transactions executed by the Portfolios' transfer agent(s) in customer
statements; rendering of periodic customer statements; and the reporting of IRS
Form 1099 information at year end if required.
The Exclusive Placement Agent may also provide other investor services,
such as communicating with the Portfolios' investors and other functions in
administering customer accounts for the Portfolios' investors.
The Exclusive Placement Agent understands that these services may result in
cost savings to the Portfolio Trust or to the Portfolios' investment manager(s)
and neither the Portfolio Trust nor the Portfolios' investment manager(s) will
compensate the Exclusive Placement Agent for all or a portion of the costs
incurred in performing functions in connection with transactions in Portfolio
Interests.
Nothing herein is intended, nor shall be construed, as requiring the
Exclusive Placement Agent to perform any of the foregoing functions.
2. Term
This Agreement shall continue in effect with respect to each Portfolio for
a period of no more than two years from the date the Portfolio commences
investment operations after this Agreement shall have been approved by the Board
of Trustees of the Portfolio Trust and, unless sooner terminated with respect to
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any Portfolio as provided herein, shall continue automatically for
successive annual periods, provided such continuance is specifically approved at
least annually by (i) the Portfolio Trust's Board of Trustees or (ii) by a vote
of a majority (as defined in the 1940 Act) of such Portfolio's outstanding
voting interests, provided that in either event the continuance is also approved
by the majority of the Portfolio Trust's Trustees who are not interested persons
(as defined in the 1940 Act) of the Portfolio 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 with respect to any Portfolio without penalty, on not less than 60
days' notice, by the Board, by vote of a majority (as defined in the 1940 Act)
of such Portfolio's outstanding voting securities, or by the Exclusive Placement
Agent. 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.
The Exclusive Placement Agent and the Portfolio Trust each hereby
represents and warrants to the other that it has all requisite authority to
enter into, execute, deliver and perform its obligations under this Agreement
and that, with respect to it, this Agreement is legal, valid and binding, and
enforceable in accordance with its terms.
4. Concerning Applicable Provisions of Law, etc.
This Agreement shall be subject to all applicable provisions of law,
including the applicable provisions of the 1940 Act and to the extent that any
provisions herein contained conflict with any such applicable provisions of law,
the latter shall control.
This Agreement is executed and delivered in _________________, and the laws
of _____________ shall, except to the extent that any applicable provisions of
Federal Law shall be controlling, govern the construction, validity and effect
of this Agreement, without reference to principles of conflicts of law.
The undersigned officer of the Portfolio Trust has executed this Agreement
not individually, but as an officer of the Portfolio Trust under the Portfolio
Trust's Declaration of Trust, dated November 1, 1994, as amended. The
obligations of this Agreement are not binding upon any of the Portfolio Trust's
Trustees or investors in the Portfolios individually, but bind only the trust
estate.
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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 as of October 1, 1996.
Yours very truly,
REPUBLIC PORTFOLIOS
By: _________________________
Name:
Title:
Accepted:
BISYS FUND SERVICES (IRELAND), LIMITED
By: _________________________
Name:
Title:
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