Exhibit (h)(3)
Form of PLACEMENT AGENCY AGREEMENT
JPMorgan Securities Lending Collateral Investment Trust
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
JPMorgan Chase Bank
Re: Appointment as Placement Agent
Ladies and Gentlemen:
JPMorgan Securities Lending Collateral Investment Trust, a Massachusetts
business trust (the "Trust"), agrees with you as follows with respect to its
series designated JPMorgan Securities Lending Collateral Investment Fund (the
"Fund"):
1. Fund Offering.
The Fund proposes to issue and to sell shares of beneficial interests
("Interests") in accordance with a Prospectus issued by the Fund dated May 14,
2004, as amended from time to time (the "Prospectus"). JPMorgan Chase Bank
("JPMorgan") has established a securities lending program for its clients. Each
client that participates in the securities lending program as a lender
("Lender") enters into a securities lending agreement with JPMorgan under which,
JPMorgan is authorized to invest the cash collateral securing loans of
securities of each Lender in a variety of investments. The Fund has been
established primarily for the investment and reinvestment of cash collateral on
behalf of Lenders participating in JPMorgan's securities lending program.
2. Definitions.
All capitalized terms used in this Agreement that are not separately
defined in this Agreement have the respective meanings set out in the
Prospectus.
3. Placement of Interests.
(a) Subject to the terms and conditions set forth in this Agreement,
the Fund appoints you as a placement agent in connection with the placement of
Interests. Subject to the performance in all material respects by the Fund of
its obligations under this Agreement, and to the completeness and accuracy in
all material respects of all of the representations and warranties of the Fund
contained in this Agreement, you accept such agency, subject to the requirements
of your duty to each Lender as securities lending agent, and agree on the terms
and conditions set out in this Agreement to qualify subscribers for Interests
and to facilitate the investment of Lender's cash collateral in the Fund. You
will not have any liability to the Fund in the event that any subscriber fails
to consummate the purchase of an Interest for any reason other than your
willful misfeasance, bad faith, negligence or reckless disregard of your duties
under this Agreement.
(b) The offers and sales of Interests are to be effected pursuant to
the exemption from the registration requirements of the Securities Act of 1933
(the "Securities Act"), pursuant to Section 4(2) of that Act and Regulation D
under that Act. Both you and the Fund have established the following procedures
in connection with the offers and sales of Interests and agree that neither of
you will make offers or sales of any Interests except in compliance with such
procedures:
(i) Offers and sales of Interests will be made only in
compliance with Section 4(2) of the Securities Act and Regulation D
under that Act and only to investors that qualify as "accredited
investors," as defined in Rule 501(a) under that Act.
(ii) No sale of an Interest to any one investor will be for less
than the minimum denominations as may be specified in the Prospectus;
provided, that ▇.▇. ▇▇▇▇▇▇ Investment Management Inc., the Fund's
Manager ("JPMIM") may from time to time vary such minimum denominations
with respect to individual investors or categories of investors.
(iii) No offer or sale of an Interest may be made in any state or
foreign jurisdiction, or to any prospective investor located in any
state or foreign jurisdiction, where such Interest has not been
registered or qualified for offer and sale under applicable state or
foreign securities laws unless such Interest is exempt from the
registration or qualification requirements of such laws. In all
instances, the Fund will inform you of the permissible states and
foreign jurisdictions with respect to offers and sales of Interests. No
offers or sales of Interests may be made in any jurisdiction without the
Fund's advance approval.
(c) For purposes of the offering of Interests, the Fund has
furnished to you copies of the Prospectus and subscription documentation that
will be furnished to prospective investors. Additional copies will be furnished
in such numbers as you may reasonably request for purposes of the offering. You
are authorized to furnish to prospective investors only such information
concerning the Fund and the offering as may be contained in the Prospectus or
any written supplements to the Prospectus, and such other materials as you have
prepared and we have reviewed and approved. You will be responsible for the
accuracy of any such other materials which you provide to prospective investors
and you will ensure that all such other materials are in compliance with all
applicable laws and regulations in all relevant states and jurisdictions. You
will keep a record of each prospective investor to which or to whom you furnish
a copy of the Prospectus or other materials and will promptly provide us with
such records at any time upon our written request.
4. Subscriptions for Interests.
(a) The Fund will offer Interests to investors for purchase
("Offerings") subject to the restrictions stated in the Fund's Prospectus. The
Fund expects that Offerings will occur
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continuously and that subscriptions for Interests will be accepted as of the end
of each business day the Fund is open for business.
(b) All subscriptions for Interests and payments by subscribers of
subscription amounts for Interests will be made in accordance with the terms and
conditions set out in the Prospectus and subscription documentation; provided
that JPMIM may from time to time vary the minimum subscription amounts with
respect to individual investors or classes of investors. Subscriptions will be
subject to acceptance by JPMIM, as described in Section 5 below.
(c) All payments received by you under this Agreement for
subscriptions in the name and on behalf of the Fund will be handled by you or
your authorized agent in accordance with the terms of the subscription
documentation.
(d) If JPMIM rejects any subscriptions, it will notify JPMorgan
Chase Bank, as custodian for the Fund, or any other custodian or escrow agent,
if applicable, who may be serving in such capacity at that time, to return all
subscription payments to investors, plus accrued interest, if any.
5. Transmission of Subscriptions.
You are appointed as agent of the Fund for purposes of determining
whether to transmit subscriptions for Interests to JPMIM. Subscriptions will be
transmitted only if the investor: (a) has supplied properly completed
subscription documentation or, in the case of an additional investment by an
existing shareholder, has supplied the proper additional subscription document,
which confirms the representations and statements made in the
previously-supplied subscription documentation; and (b) has made proper payment
for Interests. Subscriptions will not be transmitted if it appears that any of
the terms or conditions applicable to subscriptions for Interests as set out in
the Prospectus, the subscription documentation, or Section 3(b) of this
Agreement have not been satisfied, in which case you will use reasonable efforts
to obtain properly completed subscription documentation and any other necessary
information. Properly completed subscription documentation will be promptly
transmitted to JPMIM. JPMIM reserves the right to reject any subscriptions for
Interests in the Fund and may, in its sole discretion, suspend subscriptions for
Interests at any time and from time to time.
6. Eligibility and Suitability; Investor Servicing.
You are responsible for ensuring that each prospective investor is
eligible to invest in the Fund and satisfies all the conditions set out in the
Prospectus, the subscription documentation and this Agreement and that an
investment in the Fund is a suitable investment for such prospective investor.
You agree to perform administrative and client servicing functions with respect
to investors that you introduce to the Fund, including but not limited to: (a)
responding to investor inquiries regarding account status and history, the
manner in which purchases, tenders and transfers of Interests are effected and
providing copies of the forms relating to such transactions required by the Fund
to such investors; (b) passing on copies (without any amendment thereto) of all
documents supplied by the Fund or their authorized agents for the information of
or completion by investors, including but not limited to the Fund's annual and
semi-annual financial statements and its monthly and quarterly reports, to the
extent such
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documents are not provided directly by the Fund to investors; and (c) other
client servicing functions as you deem appropriate or as may be agreed with
JPMIM from time to time.
7. Representations and Warranties of the Fund.
The Trust, on behalf of itself and the Fund, represents and warrants to
you that:
(a) The Trust has been duly formed and is validly existing as a
business trust under the laws of the Commonwealth of Massachusetts with all
requisite power and authority, all necessary authorizations, approvals, orders,
licenses, certificates and permits of and from all governmental regulatory
officials and bodies, and all necessary rights, licenses and permits from other
parties, to conduct its business as described in the Prospectus.
(b) The Fund engages in business as an open-end, diversified
management investment company and is registered as such under the Investment
Company Act of 1940 ("1940 Act").
(c) Interests in the Fund to be or which may be issued by the Trust
have been duly authorized by the Trust for issuance and sale and, when issued
and delivered by the Trust, Interests will conform in all material respects to
all statements relating to Interests contained in the Prospectus.
(d) The issuance and sale of Interests in the Fund by the Trust and
the execution, delivery and performance of the Fund's and the Trust's
obligations under this Agreement will not result in the violation of any
applicable law.
(e) The Fund will apply the proceeds from the sale of Interests for
the purposes set out in the Prospectus.
(f) The Prospectus does not contain an untrue statement of any
material fact or omit to state any material fact necessary in order to make
statements in the Prospectus not misleading in light of the circumstances under
which they were made.
(g) This Agreement has been duly authorized, executed and delivered
by the Trust, on behalf of the Fund and, assuming your execution of the same,
will constitute a valid and binding agreement of the Trust.
8. Covenants of the Trust.
The Trust covenants and agrees with you as follows:
(a) You will be furnished with such documents as you may reasonably
require, from time to time, for the purpose of enabling you to pass upon the
issuance and sale of Interests as contemplated in this Agreement and related
proceedings, or in order to evidence the accuracy of any of the representations
and warranties, or the fulfillment of any of the conditions contained in this
Agreement.
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(b) If, at any time, an event occurs that in the opinion of counsel
to the Trust materially affects the Trust or the Fund and that should be set out
in an amendment to the Prospectus in order to make the statements in the
Prospectus not misleading in light of the circumstances under which they are
made, the Trust will notify you as promptly as practical of the occurrence of
the event and prepare and furnish to you copies of an amendment or supplement to
the Prospectus, in such reasonable quantities as you may request, in order that
the Prospectus will not contain any untrue statement of any material fact or
omit to state a material fact which in the opinion of such counsel is necessary
to make the statements in the Prospectus not misleading in light of the
circumstances under which they are made.
9. Representations and Warranties of the Placement Agent.
You represent and warrant that:
(a) You are duly authorized to enter into and perform, and have duly
executed and delivered, this Agreement.
(b) You have maintained and will maintain all licenses and
registrations necessary under applicable law and regulations (including the
rules of the National Association of Securities Dealers, Inc.) to provide the
services required to be provided by you under this Agreement.
(c) You have not solicited and will not solicit any offers to buy or
offers to sell Interests in any manner that would be inconsistent with
applicable laws and regulations, or with the procedures for solicitations
contemplated by the Prospectus or this Agreement, in any manner that would
constitute a general solicitation or general advertising with respect to
Interests, including, but not limited to, any seminar or meeting conducted whose
attendees have been invited by any general solicitation or general advertising,
or any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television, radio or
other means of electronic communication, unless access to that communication is
limited to those persons eligible to purchase Interests.
(d) You will furnish to each subscriber of an Interest, identified
either by you or the Fund, or otherwise confirm the receipt by such subscriber
of, a current copy of the Prospectus, including any current amendments to the
Prospectus provided to you by the Fund pursuant to Section 8(b) of this
Agreement, the subscription documentation (in the case of a new subscriber), the
additional subscription documentation (in the case of an existing shareholder),
and any other such additional information as the Fund or JPMIM sees fit or as
may be reasonably requested by the Fund or JPMIM or required by applicable law
or regulation, prior to the subscriber's admission as a shareholder of the Fund,
or, in the case of an additional investment by an existing shareholder, prior to
the acceptance of an additional subscription (to the extent such shareholder has
not already received such documentation) from such existing member.
10. Compensation of Placement Agent.
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(a) Subject to any more specific terms that you may from time to
time agree with JPMIM, you are not entitled to charge a sales commission on the
purchase price of an Interest.
(b) Except as may otherwise be agreed to by the Fund, you will be
responsible for the payment of all costs and expenses incurred by you in
connection with the performance of your obligations under this Agreement,
including the costs associated with the preparation, printing and distribution
of any sales materials (other than those costs associated with preparing and
updating the Prospectus, which costs will be borne by the Fund) and ensuring the
compliance of such subscription materials with all applicable laws and
regulations, and the costs of performing the obligations set out in Section 6
above. You must receive the approval of JPMIM prior to the distribution of any
sales materials.
11. Indemnification.
The parties agree to indemnify one another as follows:
(a) The Trust on behalf of the Fund agrees to indemnify and hold
harmless you and each person who controls you within the meaning of Section 15
of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934
(the "Exchange Act") ("controlling person") against any and all losses,
liabilities, claims, damages and expenses whatsoever (including, but not limited
to, attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation) ("Losses", and individually, a "Loss") to which you
or a controlling person may become subject under the Securities Act, the
Exchange Act or any other law or statute in any jurisdiction, insofar as such
Losses (or actions in respect of such Losses) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Prospectus or the subscription documentation as such documents may be amended or
supplemented from time to time, 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 the light of the
circumstances under which they were made, not misleading; provided, however,
that the Fund will not be liable to you or any controlling person in any case to
the extent, but only to the extent, that any such Loss arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Fund by you or through you expressly for the use
therein; and further provided that this indemnity will not protect you or any
other person who may otherwise be entitled to indemnity under this Agreement
from or against any liability to which you or they would be subject by reason of
your own or their own willful misfeasance, bad faith, negligence or reckless
disregard of your or their duties under this Agreement. Any determination by the
Fund to indemnify you for the foregoing liabilities will be made in
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accordance with the requirements of Section 17 of the 1940 Act. This indemnity
will be in addition to any liability that the Fund may otherwise have incurred
under this Agreement.
(b) You agree to indemnify and hold harmless the Fund, its Trustees,
JPMIM, and each controlling person of the Fund against any Losses to which you
or they may become subject under the Securities Act, the Exchange Act or any
other law or statute in any jurisdiction, insofar as such Losses (or actions in
respect of such Losses) arise out of or are based upon a breach by you of any of
the covenants, agreements, representations or warranties contained in this
Agreement, or upon any untrue statement or alleged untrue statement of a
material fact made by you, or an omission or alleged omission to state a
material fact necessary to make a statement made by you, in the light of the
circumstances under which it was made, not misleading, in connection with your
placement of Interests; provided, however, that you will not be liable to the
Fund or any controlling person of the Fund in any case to the extent, but only
to the extent, that any such Loss arises out of or is based upon a statement by
you in reliance on or in conformity with the Prospectus or the subscription
documentation, as such documents may be amended or supplemented from time to
time, or other written information furnished to you or on your behalf through
you by the Fund expressly for use in connection with the placement of Interests.
This indemnity will be in addition to any liability that you may otherwise have
incurred under this Agreement.
(c) Promptly after receipt by an indemnified party under Section
12(a) or (b) of this Agreement of notice of the commencement of any action, the
indemnified party will, if a claim in respect of the action is to be made
against the indemnifying party under Section 12(a) or (b) of this Agreement,
notify the party against whom indemnification is to be sought in writing of the
commencement of the action. The failure so to notify an indemnifying party will
not relieve it from any other liability which it may have otherwise than under
this Section 12. In case any such action is brought against any indemnified
party, and it notifies an indemnifying party of the commencement of the action,
the indemnifying party will be entitled to participate in the action and, to the
extent it may elect by written notice delivered to the indemnified party
promptly after receiving the notice from the indemnified party, to assume the
defense of the action with counsel reasonably satisfactory to the indemnified
party; provided, however, that if, in the reasonable judgment of the indemnified
party, a conflict of interest exists where it is advisable for the indemnified
party to be represented by separate counsel, the indemnified party will have the
right to employ separate counsel in any such action, in which event the fees and
expenses of the separate counsel will be borne by the indemnifying party or
parties. After notice from the indemnifying party to the indemnified party of
its election to assume such defense and the approval by the indemnified party of
counsel, the indemnifying party will not be liable to the indemnified party
under Section 12(a) and (b) of this Agreement for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by the
indemnified party, in connection with the defense of such action other than
reasonable costs of investigation unless (i) the indemnified party will have
employed separate counsel in accordance with this Section 12(c) (it being
understood, however, that the indemnifying party or parties will not be liable
for the expenses of more than one separate counsel representing the indemnified
parties under Section 12(a) of this Agreement who are parties to such action),
(ii) the indemnifying party or parties will not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party or parties have authorized the employment of counsel for the
indemnified
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party at the expense of the indemnifying party or parties; and except that, if
clause (i) or (iii) is applicable, liability for expenses will be only in
respect of the counsel referred to in such clause (i) or (iii). No indemnifying
party will, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought under this Agreement by the indemnified party, unless such settlement
includes an unconditional release of the indemnified party from all liability on
claims that are the subject matter of the proceeding.
12. Representations and Indemnities to Survive Delivery.
The agreements, representations, warranties, indemnities and other
statements of the parties and their officers set out in or made in accordance
with this Agreement will remain in full force and effect, regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of
you, or the Fund, JPMIM, any Trustees of the Fund or directors or officers of
any of the foregoing or any person controlling any of the foregoing, and (c)
acceptance of any payments for Interests under this Agreement. The provisions of
this Section 13 will survive the termination or cancellation of this Agreement.
13. Intellectual Property Rights.
(a) For purposes of this clause:
(i) "IPR" means all intellectual property rights including,
without limitation, copyrights, design rights, patent rights, know-how,
trade marks, business names, domain names and copyrights in computer
software belonging to the Fund.
(ii) "Promotional Materials" means all materials used in the
advertising and promotion of the Fund including, without limitation,
brochures, web sites and the Prospectus, whether in paper, electronic or
other form.
(iii) "Trade Marks" means the registered and unregistered trade
marks and trade ▇▇▇▇ applications that the Fund or JPMIM may license to
you to use in a territory in respect of the Fund.
(b) The Fund and JPMIM hereby grant to you the non-exclusive right
to use the Trade Marks and other IPR in the Promotional Materials for the
purpose of advertising, promoting and selling the Fund in accordance with the
terms of and for the duration of this Agreement.
(c) The ownership of any and all IPR that exists in the Promotional
Materials and the Fund, howsoever disseminated or used by you, including any
changes, adaptations, modifications or improvements to the Promotional Materials
or the Fund, will remain the property of the Fund and will not vest in you or
any of your officers, employees, delegates or agents.
(d) The Fund and JPMIM make no representations or warranties as to
the validity or enforceability of the Trade Marks or other IPR nor as to whether
the same infringe upon any intellectual property rights of third parties.
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(e) You will enter into any document necessary for the recording,
registration or safeguarding of IPR and for the assignment to the Fund of rights
in the changes, adaptations, modifications or improvements referred to in
Section 14(c).
14. Effective Date and Term of Agreement.
This Agreement will become effective for all purposes as of the date of
its execution and will remain in effect for an initial term of one year from
such date, unless terminated by either party in accordance with the terms of
this Agreement. Thereafter, this Agreement will continue in effect from year to
year, provided that each continuance is approved by the Trustees of the Trust,
including the vote of a majority of the Trustees who are not "interested
persons," as defined by the 1940 Act and the rules under that Act, of the Trust.
15. Termination.
Either party may terminate this Agreement without cause by written
notice to the other on not less than thirty (30) days' notice, or, if there has
been a material breach of any condition, warranty, representation or other term
of this Agreement, by written notice from the non-breaching party to the party
in breach at any time.
16. Delegation of Powers.
You will be entitled to delegate all or any of your duties, functions or
powers under this Agreement to another person or persons as sub-agent or
sub-agents subject to the approval of JPMIM. You will be solely responsible,
however, for the acts and omissions of any such sub-agent as if such acts or
omissions were your own and for the payment of any remuneration to such
sub-agent.
17. Notices.
Any notice, consent, instruction or other instrument or communication
required or permitted to be given hereunder by a party may be delivered in
person, sent by courier service or certified or registered post,
postage-prepaid, faxed or transmitted via e-mail to the address of the other
parties set forth below or such other address as may be notified in writing to
the other parties, and shall be deemed to have been properly delivered or given
hereunder and shall be effective on: (i) the date of delivery if delivered in
person or sent by Federal Express or other recognized courier who obtains a
signature acknowledging receipt; (ii) the date of transmission, if faxed or
transmitted via e-mail, provided that receipt of a facsimile or e-mail is
verified by telephone (and failing such verification, only upon actual receipt);
or (iii) five days after the same has been tendered for delivery by the post if
sent by certified or registered post, postage prepaid.
If to the Placement Agent:
▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
[ADDRESS]
Attention: [___________________]
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If to the Fund:
JPMorgan Securities Lending Collateral Investment Fund
c/o JPMorgan Securities Lending Collateral Investment Trust
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Copy to:
▇▇ ▇▇▇▇▇▇ Investment Management Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
18. Miscellaneous.
(a) This Agreement may be executed in two or more counterparts, each
of which when so executed and delivered will constitute one and the same
instrument. This Agreement will inure to the benefit of and be binding upon the
parties to this Agreement and their respective successors and assigns and no
other person will have any right or obligation under this Agreement.
(b) This Agreement supersedes all prior agreements and
understandings relating to the subject matter of this Agreement, and neither
this Agreement nor any of its terms may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought. The
headings in this Agreement are for purposes of reference only and will not limit
or otherwise affect the meaning of this Agreement.
19. Governing Law.
This Agreement will be governed by and construed in accordance with the
laws of the State of New York without regard to the conflicts of laws provisions
of such laws, and with the provisions of the 1940 Act. In the event of any
conflict between the provisions of the laws of New York and those of the 1940
Act, the 1940 Act provisions will control.
19. Bound Parties.
The parties to this Agreement agree that the obligations of the Fund
under this Agreement will not be binding upon any Trustees or shareholders of
the Trust or the Fund, or upon any officers, employees or agents, whether past,
present or future, of the Fund, individually, but are binding only upon the
assets and property of the Trust.
If the foregoing correctly sets out our understanding with you, please
indicate your acceptance in the space provided below.
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Very truly yours,
JPMORGAN SECURITIES LENDING
COLLATERAL INVESTMENT TRUST
By:
-------------------------------------
Date:
Agreed to and accepted:
JPMORGAN CHASE BANK
By:
Name:
Title:
Date: