EXHIBIT NO. 6
PLACEMENT AGENCY AGREEMENT
August 23, 1991
The Landmark Funds Broker-Dealer Services, Inc.
▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
This is to confirm that, in consideration of the agreements hereinafter
contained, the undersigned, Tax Free 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
Massachusetts business Trust, has agreed that The 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 (as defined below) then in effect under the 1940
Act. In acting as Placement Agent under this Placement Agency 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 ru1es 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 Portfolio ees 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 Portfolio ees, 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
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 Portfolio, 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 Share 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 May 24, 1992
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 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,
LANDMARK TAX FREE RESERVES PORTFOLIO
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
President
Accepted:
THE LANDMARK FUNDS BROKER-DEALER SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Chief Executive Officer