PLACEMENT AGENT AGREEMENT
April 30, 1997
Xxxxxx Investors' Service Distributors, Inc.
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, The Xxxxxx Blue Chip Master Portfolio Trust (the
"Portfolio Trust"), an open-end management investment company registered under
the Investment Company Act of 1940, as amended (the "1940 Act"), and organized
as a New York trust, has agreed, on behalf of the Series of the Portfolio Trust
set forth on Schedule I hereto, that Xxxxxx Investors' Service Distributors,
Inc. ("WISDI") shall be the placement agent (the "Placement Agent") of Interests
in each such Series of the Portfolio Trust ("Trust Interests").
1. Services as Placement Agent.
1.1 WISDI will act as Placement Agent of the Trust Interests covered by
the Portfolio Trust's registration statement then in effect under the 1940 Act.
In acting as Placement Agent under this Placement Agent Agreement, neither WISDI
nor its employees nor any agents thereof shall make any offer or sale of Trust
Interests in a manner which would require the Trust Interests to be registered
under the Securities Act of 1933, as amended (the "1933 Act").
1.2 All activities by WISDI and its agents and employees as Placement
Agent of Trust 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 Trust,
on behalf of any one or more of the Series, to accept any offer to purchase any
Trust Interests, all of which shall be subject to approval by the Board of
Trustees.
1.4 The Portfolio Trust shall furnish from time to time for use in
connection with the sale of Trust Interests such information with respect to the
Portfolio Trust, the Series and Trust Interests as WISDI may reasonably request.
The Portfolio Trust shall also furnish WISDI upon request with: (a) unaudited
semiannual statements of the Portfolio Trust's books and accounts prepared by
the Portfolio Trust, and (b) from time to time such additional information
regarding the Portfolio Trust's financial or regulatory condition as WISDI may
reasonably request.
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1.5 The Portfolio Trust represents to WISDI that all registration
statements filed by the Portfolio Trust with the Commission under the 1940 Act
with respect to Trust Interests have been prepared in conformity with the
requirements of such statute and the rules and regulations of the Commission
thereunder. As used in this Agreement, the term "registration statement" shall
mean any registration statement filed with the Commission as modified by any
amendments thereto that at any time shall have been filed with the Commission by
or on behalf of the Portfolio Trust. The Portfolio Trust represents and warrants
to WISDI that any registration statement will contain all statements required to
be stated therein in conformity with both such statute and the rules and
regulations of the Commission; that all statements of fact contained in any
registration statement will be true and correct in all material respects at the
time of filing of such registration statement or amendment thereto; and that no
registration statement will include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading to a purchaser of Trust Interests. The
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.
If the Portfolio Trust shall not propose such amendment and/or supplement within
fifteen days after receipt by the Portfolio Trust of a written request from
WISDI to do so, WISDI may, at its option, terminate this Agreement. The
Portfolio Trust shall not file any amendment to any registration statement
without giving WISDI 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 Portfolio Trust agrees to indemnify, defend and hold WISDI, its
several officers and directors, and any person who controls WISDI 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 Trust's agreement
to indemnify Covered Persons shall not be deemed to cover any claims, demands,
liabilities or expenses arising out of any financial and other statements as are
furnished in writing to the Portfolio Trust by WISDI 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 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
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to make the answers not misleading; and further provided that the Portfolio
Trust's agreement to indemnify WISDI and the Portfolio Trust's representations
and warranties hereinbefore set forth in this paragraph 1.6 shall not be deemed
to cover any liability to the Portfolio Trust or its investors to which a
Covered Person would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its duties, or by reason of a
Covered Person's reckless disregard of its obligations and duties under this
Agreement. The Portfolio Trust should be notified of any action brought against
a Covered Person, such notification to be given by a writing addressed to the
Portfolio Trust, 00 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, with a copy to
the Adviser of the Portfolio Trust, Xxxxxx Investors' Service, Inc., at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, promptly after the summons
or other first legal process shall have been duly and completely served upon
such Covered Person. The failure to so notify 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 WISDI, 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 WISDI, 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 WISDI 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 fees and
expenses of any counsel retained by WISDI or it. 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 Trust Interests. This
agreement of indemnity will inure exclusively to Covered Persons and their
successors. The Portfolio Trust agrees to notify WISDI 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 Trust
Interests.
1.7 WISDI 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 1.7, 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
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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 WISDI in its capacity as Placement Agent to 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 shall arise out
of or be based on any omission to state a material fact in connection with such
information furnished in writing by WISDI to the Portfolio Trust required to be
stated in such answers or necessary to make such information not misleading.
WISDI shall be notified of any action brought against a Covered Person, such
notification to be given by a writing addressed to WISDI at 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000, promptly after the summons or other
first legal process shall have been duly and completely served upon such Covered
Person. WISDI shall have the right of first control of the defense of the action
with counsel of its own choosing satisfactory to the Portfolio Trust if such
action is based solely on such alleged misstatement or omission on WISDI's 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 WISDI of any such action shall not relieve WISDI from any liability
except to the extent the Portfolio Trust shall have been prejudiced by such
failure, or from any liability that WISDI 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 WISDI's indemnity agreement contained in this
paragraph.
1.8 No Trust Interests shall be offered by either WISDI or the
Portfolio Trust under any of the provisions of this Agreement and no orders for
the purchase or sale of Trust Interests hereunder shall be accepted by the
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 1933 Act or 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 Trust 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.
1.9 The Portfolio Trust agrees to advise WISDI as soon as reasonably
practical by a notice in writing delivered to WISDI 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 Trust of any proceeding for
that purpose;
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(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 WISDI agrees on behalf of itself and its employees to treat
confidentially and as proprietary information of the Portfolio Trust all records
and other information not otherwise publicly available relative to the Portfolio
Trust 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 Trust, which approval shall not be unreasonably withheld and
may not be withheld where WISDI 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.
2. Duration and Termination of this Agreement.
This Agreement shall become effective upon the date of its execution,
and, unless terminated as herein provided, shall remain in full force and effect
through and including February 28, 1998 and shall continue in full force and
effect indefinitely thereafter, but only so long as such continuance after
February 28, 1998 is specifically approved at least annually (i) by the Board of
Trustees of the Portfolio Trust or by vote of a majority of the outstanding
voting securities of the Portfolio Trust and (ii) by the vote of a majority of
those Trustees of the Portfolio Trust who are not interested persons of WISDI or
the Portfolio Trust cast in person at a meeting called for the purpose of voting
on such approval.
Either party hereto may, at any time on sixty (60) days' prior written
notice to the other, terminate this agreement without the payment of any
penalty, by action of Trustees of the Portfolio Trust or the Directors of WISDI,
as the case may be, and the Portfolio Trust may, at any time upon such written
notice to WISDI, terminate this Agreement by vote of a majority of the
outstanding voting securities of the Portfolio Trust. This Agreement shall
terminate automatically in the event of its assignment.
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3. Representations and Warranties.
WISDI 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. Limitation of Liability.
WISDI expressly acknowledges the provision in the Declaration of Trust
of the Portfolio Trust (Sections 5.2 and 5.6) limiting the personal liability of
the Trustees and officers of the Portfolio Trust, and WISDI hereby agrees that
it shall have recourse to the Portfolio Trust for payment of claims or
obligations as between the Portfolio Trust and WISDI arising out of this
Agreement and shall not seek satisfaction from any Trustee or officer of the
Portfolio Trust. WISDI also expressly acknowledges that each Series is liable
only for its own obligations to WISDI under this Agreement and each Series shall
not be jointly or severally liable for the obligations of any other Series
hereunder.
5. Certain Definitions.
The terms "assignment" and "interested persons" when used herein shall
have the respective meanings specified in the Investment Company Act of 1940 as
now in effect or as hereafter amended subject, however, to such exemptions as
may be granted by the Commission by any rule, regulation or order. The term
"vote of a majority of the outstanding voting securities" shall mean the vote,
at a meeting of Holders of one or more Series as the context may require, of the
lesser of (a) 67 per centum or more of the Interests in one or more Series as
the context may require present or represented by proxy at the meeting if the
Holders of more than 50 per centum of the outstanding Interests in such one or
more Series are present or represented by proxy at the meeting, or (b) more than
50 per centum of the outstanding Interests in such one or more Series. The terms
"Holders," "Interests" and "Series" when used herein shall have the respective
meanings specified in the Declaration of Trust of the Portfolio Trust.
6. 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 Commonwealth of Massachusetts 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.
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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 at the closing of business on the date
hereof.
Yours very truly,
THE XXXXXX BLUE CHIP MASTER
PORTFOLIO TRUST
By: /s/ Xxxxx X. Xxxxxxx
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President
Accepted:
XXXXXX INVESTORS' SERVICE
DISTRIBUTORS, INC.
By: /s/ A. M. Xxxxx III
------------------------
President
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SCHEDULE I
Selected Blue Chip Equities Portfolio
Junior Blue Chip Equities Portfolio
International Blue Chip Equities Portfolio
U.S. Treasury Portfolio
U.S. Treasury Near Term Portfolio
Current Income Portfolio
(each of the above, a "Series")
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