CLOSED-END FUND
INVESTOR SERVICING AGREEMENT
AGREEMENT made as of the 1st day of July, 1991, between each of the
closed-end Xxxxxx Funds listed in Appendix A hereto (as the same may from time
to time be amended to add one or more additional closed-end Xxxxxx Funds or to
delete one or more of such Funds), each of such Funds acting severally on its
own behalf and not jointly with any of such other Funds (each of such Funds
being hereinafter referred to as the "Fund"), and The Xxxxxx Management Company,
Inc. (the "Manager"), a Delaware corporation, and Xxxxxx Fiduciary Trust Company
(the "Agent"), a Massachusetts trust company.
W I T N E S S E T H:
WHEREAS, the Fund is a closed-end investment company registered under
the Investment Company Act of 1940; and
WHEREAS, the Fund desires to engage the Manager and the Agent to
provide all services required by the Fund in connection with the establishment,
maintenance and recording of shareholder accounts, including without limitation
all related tax and other reporting requirements, and the administration of any
dividend reinvestment and/or cash purchase plans from time to time offered in
connection with the Fund's shares; and
WHEREAS, the Agent, an affiliate of the Manager, provides similar
services for the open-end investment companies in the Xxxxxx family of funds and
is willing to provide such services to the Funds on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, the parties hereto agree as follows:
1. APPOINTMENT.
The Fund hereby appoints the Agent as its "Investor Servicing Agent" on
the terms and conditions set forth herein. In such capacity the Agent shall act
as transfer agent, registrar and distribution disbursing agent for the Fund and
shall act as agent for the Fund in connection with the administration of any
dividend reinvestment and/or cash share purchase plans from time to time made
available to shareholders. The Agent hereby accepts such appointment and agrees
to perform the respective duties and functions of such offices in accordance
with the terms of this Agreement and in a manner generally consistent with the
practices and standards customarily followed by other high quality investor
servicing agents for registered investment companies.
Notwithstanding such appointment, however, the parties agree that the
Manager may, upon thirty (30) days prior written notice to the Fund, assume such
appointment and perform such duties and functions itself. Pending any such
assumption, however, the
1
Manager hereby guarantees the performance of the Agent hereunder and shall be
fully responsible to the Fund, financially and otherwise, for the performance by
the Agent of its agreements contained herein.
2. GENERAL AUTHORITY AND DUTIES.
By its acceptance of the foregoing appointment, the Agent shall be
responsible for performing all functions and duties which, in the reasonable
judgment of the Fund, are necessary or desirable in connection with the
establishment, maintenance and recording of the Fund's shareholder accounts and
the conduct of its relations with shareholders with respect to their accounts.
Without limiting the generality of the foregoing, the Agent shall be
responsible:
(a) as transfer agent, for performing all functions customarily
performed by transfer agents for closed-end registered investment
companies, including without limitation all functions necessary or
desirable to establish and maintain accounts evidencing the ownership
of securities issued by the Fund and, to the extent applicable, the
issuance of certificates representing such securities, the recording of
all transactions pertaining to such accounts, and effecting the
issuance and redemption of securities is sued by the Fund;
(b) as registrar, for performing all functions customarily performed by
registrars for closed-end registered investment companies;
(c) as distribution disbursing agent, for performing all functions
customarily performed by distribution disbursing agents for closed-end
registered investment companies, including without limitation all
functions necessary or desirable to effect the payment to shareholders
of distributions declared from time to time by the Trustees of the
Fund;
(d) as agent for the Fund, performing all administrative and
bookkeeping functions necessary or desirable to maintain any dividend
reinvestment and/or cash share purchase plans from time to time made
available to shareholders to facilitate the purchase of shares of the
Fund, including without limitation the supervision of any independent
bank or brokerage firm engaged by the Fund to act as agent for the
shareholders of the Fund in connection with such plans, if and to the
extent required by the federal securities laws.
In performing its duties hereunder, in addition to the provisions set
forth herein, the Agent shall comply with the terms of the Declaration of Trust,
the Bylaws, the Registration Statement filed with the Securities and Exchange
Commission, and with the terms of votes adopted from time to time by the
Trustees and shareholders of the Fund, relating to the subject matters of this
Agreement, all as the same may be amended from time to time.
2
3. STANDARD OF SERVICE; COMPLIANCE WITH LAWS.
The Agent will use its best efforts to provide high quality services to
the Fund's shareholders and in so doing will seek to take advantage of such
innovations and technological improvements as may be appropriate or desirable
with a view to improving the quality and, where possible, reducing the cost of
its services to the Fund. In performing its duties hereunder, the Agent shall
comply with the provisions of all applicable laws and regulations and shall
comply with the requirements of any governmental authority having jurisdiction
over the Agent or the Fund with respect to the duties of the Agent hereunder and
the requirements of any national securities exchange on which shares of the Fund
are listed for trading.
4. COMPENSATION.
The Fund shall pay to the Agent, for its services rendered and its
costs incurred in connection with the performance of its duties hereunder, such
compensation and reimbursements as may from time to time be approved by vote of
the Trustees of the Fund.
5. DUTY OF CARE; INDEMNIFICATION.
The Agent will at all times act in good faith and exercise reasonable
care in performing its duties hereunder. The Agent will not be liable or
responsible for delays or errors resulting from circumstances beyond its
control, including acts of civil or military authorities, national emergencies,
labor difficulties, fire, mechanical breakdown beyond its control, flood or
catastrophe, acts of God, insurrection, war, riots or failure beyond its control
of transportation, communication or power supply.
The Agent may rely on certifications of the Clerk, the President, the
Vice Chairman, the Executive Vice President, the Senior Vice President or the
Treasurer of the Fund as to any action taken by the shareholders or trustees of
the Fund, and upon instructions not inconsistent with this Agreement received
from the President, Vice Chairman, the Executive Vice President, the Senior Vice
President or the Treasurer of the Fund. If any officer of the Fund shall no
longer be vested with authority to sign for the Fund, written notice thereof
shall forthwith be given to the Agent by the Fund and, until receipt of such
notice by it, the Agent shall be entitled to recognize and act in good faith
upon certificates or other instruments bearing the signatures or facsimile
signatures of such officers. The Agent may request advice of counsel for the
Fund, at the expense of the Fund, with respect to the performance of its duties
hereunder.
The Fund will indemnify and hold the Agent harmless from any and all
losses, claims, damages, liabilities and expenses (including reasonable fees and
expenses of counsel) arising out of (i) any action taken by the Agent in good
faith consistent with the exercise of reasonable care in accordance with such
certifications, instructions or advice, (ii) any action taken by
3
the Agent in good faith consistent with the exercise of reasonable care in
reliance upon any instrument or certificate for securities believed by it (a) to
be genuine, and (b) to be executed by any person or persons authorized to
execute the same; provided, however, that the Agent shall not be so indemnified
in the event of its failure to obtain a proper signature guarantee to the extent
the same is required by the Declaration of Trust, Bylaws, or Registration
Statement of the Fund or a vote of the Trustees of the Fund, and such
requirement has not been waived by vote of the Trustees of the Fund, or (iii)
any other action taken by the Agent in good faith consistent with the exercise
of reasonable care in connection with the performance of its duties hereunder.
In the event that the Agent proposes to assert the right to be
indemnified under this Section 5 in connection with any action, suit or
proceeding against it, the Agent shall promptly after receipt of notice of
commencement of such action, suit or proceeding notify the Fund of the same,
enclosing a copy of all papers served. In such event, the Fund shall be entitled
to participate in such action, suit or proceeding, and, to the extent that it
shall wish, to assume the defense thereof, and after notice from the Fund to the
Agent of its election so to assume the defense thereof the Fund shall not be
liable to the Agent for any legal or other expenses. The parties shall cooperate
with each other in the defense of any such action, suit or proceeding. In no
event shall the Fund be liable for any settlement of any action or claim
effected without its consent.
6. MAINTENANCE OF RECORDS.
The Agent will maintain and preserve all records relating to its duties
under this Agreement in compliance with the requirements of applicable statutes,
rules and regulations, including without limitation Rule 31a-1 under the
Investment Company Act of 1940, and with the requirements of any national
securities exchange on which shares of the Fund are listed for trading. Such
records shall be the property of the Fund and shall at all times be available
for inspection and use by the officers and agents of the Fund. The Agent shall
furnish to the Fund such information pertaining to the shareholder accounts of
the Fund and the performance of its duties hereunder as the Fund may from time
to time request. The Agent shall notify the Fund promptly of any request or
demand by any third party to inspect the records of the Fund maintained by it
and will act upon the instructions of the Fund in permitting or refusing such
inspection.
7. FUND ACCOUNTS.
All moneys of the Fund from time to time made available for the payment
of distributions to shareholders, or otherwise coming into the possession or
control of the Agent or its officers, shall be deposited and held in one or more
accounts maintained by the Agent solely for the benefit of the Funds.
4
8. INSURANCE.
The Agent will at all times maintain in effect insurance coverage,
including without limitation Errors and Omissions, Fidelity Bond and Electronic
Data Processing coverages, at levels of coverage consistent with those
customarily maintained by other high quality investor servicing agents for
registered investment companies and with such guidelines as the Trustees of the
Fund may from time to time adopt.
9. EMPLOYEES.
The Agent shall be responsible for the employment, control and conduct
of its agents and employees and for injury to such agents or employees or to
others caused by such agents or employees. The Agent shall assume full
responsibility for its agents and employees under applicable statutes and agrees
to pay all applicable employer taxes thereunder with respect to such agents and
employees, and such agents and employees shall in no event be considered to be
agents or employees of the Fund.
10. EFFECTIVE DATE; TERMINATION.
This Agreement shall take effect on July 1, 1991 and shall continue
indefinitely thereafter until terminated by not less than ninety (90) days prior
written notice given by the Fund to the Agent, or by not less than six months
prior written notice given by the Agent to the Fund.
In the event that in connection with any such termination a successor
to any of the Agent's duties or responsibilities hereunder is designated by the
Fund by written notice to the Agent, the Agent will cooperate fully in the
transfer of such duties and responsibilities, including provision for assistance
by the Agent's personnel in the establishment of books, records and other data
by such successor. The Fund will reimburse the Agent for all expenses incurred
by the Agent in connection with such transfer.
11. MISCELLANEOUS.
This Agreement shall be construed and enforced in accordance with and
governed by the laws of The Commonwealth of Massachusetts.
The captions in this Agreement are included for convenience of
reference only and in no way define or limit any of the provisions of this
Agreement or otherwise affect their construction or effect. This Agreement may
be executed simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the
same instrument.
A copy of the Declaration of Trust (including any amendments thereto)
of the Fund is on file with the Secretary of The Commonwealth of Massachusetts,
and notice is hereby given that this instrument is executed on behalf of the
Trustees of the Fund
5
as Trustees and not individually and that the obligations of or arising out of
this instrument are not binding upon any of the Trustees or officers or
shareholders individually, but binding only upon the assets and property of the
Fund.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date and year first above
written.
THE XXXXXX FUNDS, listed
on Appendix A
/s/Xxxxxxx X. Xxxxxx
By --------------------------
Xxxxxxx X. Xxxxxx
Executive Vice President
XXXXXX FIDUCIARY TRUST COMPANY
/s/Xxxx X. Xxxxxx
By ---------------------------
Xxxx X. Xxxxxx
President
THE XXXXXX MANAGEMENT COMPANY, INC.
/s/Xxxxxx X. Silver
By ----------------------------
Xxxxxx X. Silver
Senior Managing Director
6
Appendix A
List of Closed-End Xxxxxx
Funds Executing Investor
Servicing Agreement dated
as of April , 1995
Xxxxxx High Income Convertible and Bond Fund
Xxxxxx Master Income Trust
Xxxxxx Premier Income Trust
Xxxxxx Master Intermediate Income Trust
Xxxxxx Intermediate Government Income Trust
Xxxxxx Managed Municipal Income Trust
Xxxxxx High Yield Municipal Trust
Xxxxxx Dividend Income Fund
Xxxxxx Investment Grade Municipal Trust
Xxxxxx Tax-Free Health Care Fund
Xxxxxx Investment Grade Municipal Trust II
Xxxxxx California Investment Grade Municipal Trust
Xxxxxx New York Investment Grade Municipal Trust
Xxxxxx Managed High Yield Trust
Xxxxxx Municipal Opportunities Trust
Xxxxxx Investment Grade Intermediate Municipal Trust
Xxxxxx Investment Grade Municipal Trust III
Xxxxxx Convertible Opportunities and Income Trust
7
