High Yield Fixed Income Portfolio
Xxxxxxxxxxx House
Fort Street, P.O. Box 2330
Xxxxxx Town, Grand Cayman
Cayman Islands, BWI
May 9, 2000
00 Xxxx Xxxxxx Distributors, Inc.
00 Xxxx Xxxxxx
Xxxxxx, XX 00000
Gentlemen:
Re: Placement Agent Agreement
This is to confirm that, in consideration of the agreements
hereinafter contained, the undersigned, High Yield Fixed Income Portfolio (the
"Portfolio"), an open-end diversified management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), organized
as a New York trust, has agreed that 00 Xxxx Xxxxxx Distributors, Inc. ("59 Wall
Street Distributors") shall be the placement agent (the "Placement Agent") of
beneficial interests of the Portfolio ("Portfolio Interests").
1. Services as Placement Agent.
1.1 00 Xxxx Xxxxxx Distributors will act as Placement Agent of
the Portfolio Interests covered by the Portfolio's registration statement then
in effect under the 1940 Act. In acting as Placement Agent under this Placement
Agent Agreement, neither 00 Xxxx Xxxxxx Distributors nor its employees or 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 00 Xxxx Xxxxxx Distributors and its
agents and employees as 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 Securities and
Exchange Commission (the "Commission").
1.3 Nothing herein shall be construed to require the Portfolio
to accept any offer to purchase any Portfolio Interests, all of which shall be
subject to approval by the Board of Trustees.
1.4 The Portfolio shall furnish from time to time for use in
connection with the sale of Portfolio Interests such information with respect to
the Portfolio and Portfolio Interests as 00 Xxxx Xxxxxx Distributors may
reasonably request. The Portfolio shall also furnish 00 Xxxx Xxxxxx Distributors
upon request with: (a) unaudited semiannual statements of the Portfolio's books
and accounts prepared by the Portfolio and (b) from time to time such additional
information regarding the Portfolio's financial or regulatory condition as 00
Xxxx Xxxxxx Distributors may reasonably request.
1.5 The Portfolio represents to 00 Xxxx Xxxxxx Distributors
that all registration statements filed by the Portfolio with the Commission
under the 1940 Act with respect to Portfolio Interests have been prepared in
conformity with the requirements of such statute and the rules and regulations
of the Commission thereunder. As used in this Agreement the term "registration
statement" shall mean any registration statement filed with the Commission as
modified by any amendments thereto that at any time shall have been filed with
the Commission by or on behalf of the Portfolio. The Portfolio represents and
warrants to 00 Xxxx Xxxxxx Distributors that any registration statement will
contain all statements required to be stated therein in conformity with both
such statute and the rules and regulations of the Commission; that all
statements of fact contained in any registration statement will be true and
correct in all material respects at the time of filing of such registration
statement or amendment thereto; and that no registration statement will as of
its filing date 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 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's counsel, be necessary or advisable. If
the Portfolio shall not propose such amendment and/or supplement within fifteen
days after receipt by the Portfolio of a written request from 00 Xxxx Xxxxxx
Distributors to do so, 00 Xxxx Xxxxxx Distributors may, at its option, terminate
this Agreement. The Portfolio shall not file any amendment to any registration
statement without giving 00 Xxxx Xxxxxx Distributors reasonable notice thereof
in advance; provided, however, that nothing contained in this Agreement shall in
any way limit the Portfolio's right to file at any time such amendment to any
registration statement as the Portfolio may deem advisable, such right being in
all respects absolute and unconditional.
1.6 The Portfolio agrees to indemnify, defend and hold 00 Xxxx
Xxxxxx Distributors, its several officers and directors, and any person who
controls 00 Xxxx Xxxxxx Distributors 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 1.6, 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 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's agreement to indemnify Covered Persons
shall not be deemed to cover any claims, demands, liabilities or expenses
arising out of any financial and other statements as are furnished in writing to
the Portfolio by 00 Xxxx Xxxxxx Distributors in its capacity as Placement Agent
for use in the answers to any items of any registration statement or in any
statements made in any other 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's
agreement to indemnify 00 Xxxx Xxxxxx Distributors and the Portfolio's
representations and warranties hereinbefore set forth in paragraph 1.6 shall not
be deemed to cover any liability to the Portfolio or its investors to which a
Covered Person would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of a
Covered Person's reckless disregard of its obligations and duties under this
Agreement. The Portfolio shall be notified of any action brought against a
Covered Person, such notification to be given by letter or by telegram addressed
to the Portfolio, Butterfield House, Fort Street, P.O. Box 2330, Xxxxxx Town,
Grand Cayman, Cayman Islands, BWI with copies to: Xxxx X. Xxxxxxxxxxx, Xx.,
Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and Xxxxx
Brothers Xxxxxxxx & Co., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxx X. Xxxxxxx, 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 of any such action shall not relieve the Portfolio from any
liability except to the extent the Portfolio shall have been prejudiced by such
failure, or from any liability that the Portfolio 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's indemnity agreement
contained in this paragraph. The Portfolio 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 and approved by 00 Xxxx Xxxxxx Distributors, which approval
shall not be unreasonably withheld. In the event the Portfolio elects to assume
the defense of any such suit and retain counsel of good standing approved by 00
Xxxx Xxxxxx Distributors, 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 does not elect to assume the defense of any such suit or in
case 00 Xxxx Xxxxxx Distributors reasonably does not approve of counsel chosen
by the Portfolio, the Portfolio will reimburse the Covered Person named as
defendant in such suit for the fees and expenses of any counsel retained by 00
Xxxx Xxxxxx Distributors or it. The Portfolio's indemnification agreement
contained in this paragraph and the Portfolio'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 agrees to
notify 00 Xxxx Xxxxxx Distributors promptly of the commencement of any
litigation or proceedings against the Portfolio or any of its officers or
Trustees in connection with the issue and sale of any Portfolio Interests.
1.7 00 Xxxx Xxxxxx Distributors agrees to indemnify, defend
and hold the Portfolio, its several officers and trustees, and any person who
controls the Portfolio within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act (for purposes of this paragraph 1.7, collectively,
"Covered Persons") free and harmless from and against any and all claims,
demands, liabilities and expenses (including the costs of investigating or
defending such claims, demands, liabilities and any counsel fees incurred in
connection therewith) that Covered Persons may incur under the 1933 Act, the
1934 Act or common law or otherwise, but only to the extent that such liability
or expense incurred by a Covered Person resulting from such claims or demands
shall arise out of or be based on any untrue statement of a material fact
contained in information furnished in writing by 00 Xxxx Xxxxxx Distributors in
its capacity as Placement Agent to the Portfolio for use in the answers to any
of the items of any registration statement or in any statements in any other
Offering Material or shall arise out of or be based on any omission to state a
material fact in connection with such information furnished in writing by 00
Xxxx Xxxxxx Distributors to the Portfolio required to be stated in such answers
or necessary to make such information not misleading. 00 Xxxx Xxxxxx
Distributors shall be notified of any action brought against a Covered Person,
such notification to be given by letter or telegram addressed to 00 Xxxx Xxxxxx
Distributors at 00 Xxxx Xxxxxx, Xxxxxx, XX 00000 attention: Xxxxx X. Mugler,
Secretary, promptly after the summons or other first legal process shall have
been duly and completely served upon such Covered Person. 00 Xxxx Xxxxxx
Distributors shall have the right of first control of the defense of the action
with counsel of its own choosing satisfactory to the Portfolio if such action is
based solely on such alleged misstatement or omission on 00 Xxxx Xxxxxx
Distributors' part, and in any other event each Covered Person shall have the
right to participate in the defense or preparation of the defense of any such
action. The failure to so notify 00 Xxxx Xxxxxx Distributors of any such action
shall not relieve 00 Xxxx Xxxxxx Distributors from any liability except to the
extent the Portfolio shall have been prejudiced by such failure, or from any
liability that 00 Xxxx Xxxxxx Distributors 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 00 Xxxx Xxxxxx Distributors' indemnity agreement
contained in this paragraph.
1.8 No Portfolio Interests shall be offered by either 00 Xxxx
Xxxxxx Distributors or the Portfolio 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 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's obligation to redeem Portfolio
Interests from any investor in accordance with the provisions of the Portfolio's
registration statement or Declaration of Trust, as amended from time to time.
1.9 The Portfolio agrees to advise 00 Xxxx Xxxxxx Distributors
as soon as reasonably practical by a notice in writing delivered to 00 Xxxx
Xxxxxx Distributors or its counsel:
(a) of any request by the Commission for amendments to the
registration statement then in effect or for additional information;
(b) in the event of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement then in effect
or the initiation by service of process on the Portfolio of any proceeding for
that purpose;
(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 1.9, informal requests by or
acts of the Staff of the Commission shall not be deemed actions of or requests
by the Commission.
1.10 00 Xxxx Xxxxxx Distributors agrees on behalf of itself
and its employees to treat confidentially and as proprietary information of the
Portfolio all records and other information not otherwise publicly available
relative to the Portfolio and its prior, present or potential investors and not
to use such records and information for any purpose other than performance of
its responsibilities and duties hereunder, except after prior notification to
and approval in writing by the Portfolio, which approval shall not be
unreasonably withheld and may not be withheld where 00 Xxxx Xxxxxx Distributors
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.
1.11 In addition to 00 Xxxx Xxxxxx Distributors' duties as
Placement Agent, the Portfolio understands that 00 Xxxx Xxxxxx Distributors 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 00 Xxxx Xxxxxx
Distributors' various offices; creation of a transaction tape and timely
delivery of it to the Portfolio's transfer agent for processing; reconciliation
of all transactions delivered to the Portfolio's transfer agent and the
recording and reporting of these transactions executed by the Portfolio's
transfer agent in customer statements; rendering of periodic customer
statements; and the reporting of IRS Form 1099 information at year end if
required.
00 Xxxx Xxxxxx Distributors may also provide other investor
services, such as communicating with Portfolio investors and other functions in
administering customer accounts for Portfolio investors.
00 Xxxx Xxxxxx Distributors understands that these services
may result in cost savings to the Portfolio or to the Portfolio's investment
manager and neither the Portfolio nor the Portfolio's investment manager will
compensate 00 Xxxx Xxxxxx Distributors 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 00
Xxxx Xxxxxx Distributors to perform any of the foregoing functions.
2. Term.
This Agreement shall become effective on the date first above
written and, unless sooner terminated as provided herein, shall continue
automatically for successive annual periods, provided such continuance is
specifically approved at least annually by (i) the Board of Trustees of the
Portfolio or (ii) by a vote of a majority (as defined in the 0000 Xxx) of the
Portfolio's outstanding voting securities, provided that in either event the
continuance is also approved by the majority of the Portfolio's Trustees who are
not interested persons (as defined in the 0000 Xxx) of the Portfolio and who
have no direct or indirect financial interest in this Agreement, by vote cast in
person at a meeting called for the purpose of voting on such approval. This
Agreement is terminable without penalty, on not less than 60 days' notice, by
the Board of Trustees of the Portfolio, by vote of a majority (as defined in the
0000 Xxx) of the Portfolio's outstanding voting securities, or by 00 Xxxx Xxxxxx
Distributors. 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.
00 Xxxx Xxxxxx Distributors and the Portfolio 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.
The laws of the State of New York shall, except to the extent
that any applicable provisions of federal law shall be controlling, govern the
construction, validity and effect of this Agreement, without reference to
principles of conflicts of law.
The Trustees have authorized the execution of this Agreement in their
capacity as Trustees and not individually and the Placement Agent agrees that
neither investors nor the Trustees nor any officer, employee, representative or
agent of the Portfolio shall be personally liable upon, nor shall resort be had
to their private property for the satisfaction of, obligations given, executed
or delivered on behalf of or by the Portfolio, that neither investors nor the
Trustees, officers, employees, representatives or agents of the Portfolio shall
be personally liable hereunder, and that the Placement Agent shall look solely
to the property of the Portfolio for the satisfaction of any claim hereunder.
If the contract set forth herein is acceptable to you, please
so indicate by executing the enclosed copy of this Agreement and returning the
same to the undersigned, whereupon this Agreement shall constitute a binding
contract between the parties hereto effective at the closing of business on the
date hereof.
Yours very truly,
HIGH YIELD FIXED INCOME PORTFOLIO
By:/s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
President
Accepted:
00 XXXX XXXXXX DISTRIBUTORS, INC.
By: /s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
WS5265A
