EXHIBIT NO. 6
PLACEMENT AGENCY AGREEMENT
February 22, 1991
Landmark Funds Broker-Dealer Services, Inc.
▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, U.S. Treasury Reserves 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 Landmark Funds Broker-Dealer Services, Inc.
("LFBDS") shall be the placement agent (the "Placement Agent") of beneficial
interests of the Portfolio ("Portfolio Interests").
SERVICES AS PLACEMENT AGENT.
1.1 LFBDS will act as Placement Agent of the Portfolio Interests covered by
the registration statement then in effect under the 1940 Act. In acting as
Placement Agent under this Placement Agent Agreement, neither LFBDS nor
its employees nor any agents thereof shall make any offer or sale of
Portfolio Interests in a manner which would require the Interests to be
registered under the Securities Act of 1933, as amended (the "1933 Act").
1.2 All activities by LFBDS 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 Portfolio's 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 LFBDS may reasonably request. The
Portfolio shall also furnish LFBDS 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 LFBDS may
reasonably request.
1.5 The Portfolio represents to LFBDS 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 LFBDS 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 statements or amendments 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 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 LFBDS to do so, LFBDS may, at its option, terminate
this Agreement. The Portfolio shall not file any amendment to any
registration statement without giving LFBDS 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 LFBDS, its several
officers and directors, and any person who controls LFBDS 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 LFBDS 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 to make the answers not
misleading; and further provided that the Portfolio's agreement to
indemnify LFBDS and the Portfolio's representations and warranties herein
before set forth in paragraph 1.5 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, c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
with 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 of any such action shall
not relieve the Portfolio from any liability except to the extent that 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 LFBDS, 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
LFBDS, 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 LFBDS 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 LFBDS or such
Covered Person. 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 LFBDS 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 LFBDS 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 LFBDS
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 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 LFBDS to the Portfolio required to be stated in such answers
or necessary to make such information not misleading. LFBDS shall be
notified of any action brought against a Covered Person, such notification
to be given by letter or telegram addressed to LFBDS at ▇ ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
promptly after the summons or other first legal process shall have been
duly and completely served upon such Covered Person. LFBDS 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 LFBDS'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 LFBDS of any such action shall not relieve LFBDS from any
liability except to the extent that LFBDS shall have been prejudiced by
such failure, or from any liability that LFBDS 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 LFBDS's indemnity agreement
contained in this paragraph.
1.8 No Portfolio Interests shall be offered by either LFBDS 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 LFBDS as soon as reasonably practical by a
notice in writing delivered to LFBDS 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 LFBDS 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 LFBDS 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 LFBDS's duties as Placement Agent, the Portfolio
understands that LFBDS 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 LFBDS's 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.
LFBDS may also provide other investor services, such as communicating with
Portfolio investors and other functions in administering customer accounts for
Portfolio investors.
LFBDS 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 LFBDS 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 LFBDS 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 until February 22,
1993 and thereafter shall continue automatically for successive annual periods,
provided such continuance is specifically approved at least annually by (i) the
Portfolio's Board of Trustees or (ii) by a vote of a majority (as defined in the
▇▇▇▇ ▇▇▇) 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 ▇▇▇▇ ▇▇▇) 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, by vote of a majority (as defined in the ▇▇▇▇
▇▇▇) of the Portfolio's outstanding voting securities, or by LFBDS. 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.
LFBDS 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.
This Agreement is executed and delivered in Boston, Massachusetts, and 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.
If the contract set forth herein is acceptable to you, please so indicate by
executing the enclosed copy of this Agreement and resuming 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,
U.S. TREASURY RESERVES PORTFOLIO
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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President
Accepted:
LANDMARK FUNDS BROKER-DEALER SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Chief Executive Officer