DIVIDEND REINVESTMENT PLAN AGENCY AGREEMENT
THIS AGREEMENT is made as of the ________ day of ___________, 2001, by
and between each series of TH Xxx, Xxxxxx Investment Trust (each, a "Fund")
listed in Appendix A hereto (as the same may from time to time be amended to add
one or more additional Funds or to delete one or more of such Funds), each of
such Funds acting severally and not jointly or jointly and severally with any of
such other Funds, and each of such Funds having its principal office and place
of business at Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (each Fund
being referred to herein as the "Fund") and Putnam Fiduciary Trust Company, a
Massachusetts trust company having its principal office and place of business at
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Agent").
WHEREAS, the Fund desires to make available to its shareholders an
opportunity to reinvest their Fund distributions in additional shares of the
Fund pursuant to the terms and conditions of a Dividend Reinvestment Plan in the
form heretofore furnished to the Agent, as the same may be amended from time to
time by the Trustees of the Fund (the "Plan");
WHEREAS, the Fund has engaged the Agent to act as its "Investor
Servicing Agent," including in such capacity acting as its transfer agent,
registrar and distribution disbursing agent;
WHEREAS, the Fund desires to employ the Agent to act as agent for
shareholders of the Fund pursuant to the terms and conditions of the Plan and
the Agent desires to accept such employment; and
WHEREAS, the Agent will provide certain administrative services in
connection with the Plan;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 TERMS OF APPOINTMENT; DUTIES OF THE AGENT.
1.01 Subject to the terms and conditions set forth in this Agreement,
the Fund hereby employs the Agent to act as, and the Agent agrees to act as,
Dividend Reinvestment Plan Agent for the Fund's shareholders pursuant to the
terms and conditions of the Plan.
1
1.02 Upon receipt of the cash distributions payable to shareholders of
the Fund participating in the Plan, the Agent will apply such monies to the
purchase of shares of the Fund in accordance with the terms and conditions of
the Plan. The Agent shall thereafter deliver shares purchased as instructed.
1.03 Pending purchase of shares of the Fund, the Agent shall invest all
of the cash deposited in an interest bearing account for the benefit of the Fund
at the Agent, unless otherwise directed by the Fund.
1.04 The Agent shall provide monthly a complete statement of
transactions in Fund shares on behalf of shareholders in the Plan and a
statement of interest earned under Section 1.03.
1.05 The Agent, pursuant to the terms and conditions of its Investor
Servicing Agreement with the Funds, shall perform all administrative and
bookkeeping services required in connection with the operation of the Plan.
Article 2 REPRESENTATIONS AND WARRANTIES OF THE FUND AND THE AGENT.
2.01 The Fund represents and warrants to the Agent that:
(a) It is a business trust duly organized and existing under the laws
of Massachusetts.
(b) It is empowered under applicable laws and by its Declaration of
Trust and By-Laws to enter into and perform this Agreement.
(c) All proceedings required by said Declaration of Trust and By-Laws
have been taken to authorize it to enter into and perform this Agreement.
(d) It is a closed-end investment company registered under the
Investment Company Act of 1940.
(e) It shall make all filings required to be made by it under federal
and state securities laws.
2.02 The Agent represents and warrants to the Fund that:
(a) It is a trust company duly organized and existing and in good
standing under the laws of Massachusetts.
2
(b) It is empowered under applicable laws and by its Articles of
Organization and Bylaws to enter into and perform this Agreement.
(c) All proceedings required by said Articles of Organization and
Bylaws have been taken to authorize it to enter into and perform this Agreement.
(d) It is duly registered as a transfer agent with the Federal Deposit
Insurance Corporation.
(e) It shall make all filings required to be made by it under federal
and state securities laws.
Article 3 INDEMNIFICATION
3.01 The Agent shall not be responsible for, and the Fund shall
indemnify and hold the Agent harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to:
(a) All actions of the Agent or its agents or subcontractors required
to be taken pursuant to this Agreement, provided that such actions are taken in
good faith consistent with the exercise of reasonable care.
(b) The Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Fund hereunder.
(c) The reliance on or use by the Agent or its agents or subcontractors
of information, records and documents which (i) are received by the Agent or its
agents or subcontractors and furnished to it by or on behalf of the Fund, and
(ii) have been prepared and/or maintained by the Fund or any other person or
firm on behalf of the Fund. Such other person or firm shall include any former
transfer agent or former registrar, or co-transfer agent or co-registrar.
(d) The reliance on, or the carrying out by the Agent or its agents or
subcontractors of, any instructions or requests of the Fund's representative as
certified from time to time by the Fund.
(e) The offer or sale of shares of the Fund in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state or in violation of any stop order or other
determination or ruling by any federal agency or any state with respect to the
offer or sale of such shares in such state.
3
3.02 The Agent shall indemnify and hold the Fund and the Agent harmless
from and against any and all losses, damages, costs, charges, counsel fees,
payments, expenses and liability arising out of or attributable to any action or
failure or omission to act by the Agent as a result of the Agent's lack of good
faith or failure to exercise reasonable care.
3.03 At any time the Agent may apply to any officer of the Fund for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by the Agent under this
Agreement, and the Agent and its agents or subcontractors shall not be liable
and shall be indemnified by the Fund for any action in good faith taken or
omitted by it in reliance upon such instructions or upon the written opinion of
such counsel. The Agent, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document furnished by or on behalf of
the Fund or the Agent, reasonably believed to be genuine and to have been signed
by the proper person or persons, or upon any instruction, information, data,
records or documents provided to the Agent or its agents or subcontractors by
telephone, in person, machine readable input, telex, CRT data entry or other
similar means authorized by the Fund, and shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from the Fund.
3.04 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage reasonably beyond its control, or other causes
reasonably beyond its control, such party shall not be liable for damages to the
other for any damages resulting from such failure to perform or otherwise from
such causes.
3.05 Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement or for any act
or failure to act hereunder.
3.06 In order that the indemnification provisions contained in this
Article 3 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
Article 4 COVENANTS OF THE FUND AND THE AGENT
4.01 The Fund shall promptly furnish to the Agent the following:
(a) A certified copy of the resolution of the Board of Trustees of the
Fund
4
authorizing the employment of the Agent and the execution and delivery of
this Agreement.
(b) A copy of the Declaration of Trust and By-Laws of the Fund and a
copy of the Articles of Organization and Bylaws of the Agent and all amendments
thereto.
4.02 The Agent and the Agent shall keep records relating to the
services to be performed hereunder, in the form and manner as they may deem
advisable. To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and the Rules thereunder, the Agent agrees that all such
records prepared or maintained by the Agent relating to the services to be
performed by the Agent hereunder are the property of the Fund and will be
preserved, maintained and made available in accordance with such Section and
Rules, and will be surrendered promptly to the Fund on and in accordance with
its request.
4.03 The Agent and the Fund agree that all books, records, information
and data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
4.04 In case of any requests or demands for the inspection of the
records of the Fund or the Agent, the Agent will endeavor to notify the Fund or
the Agent and to secure instructions from an authorized officer of the Fund or
the Agent as to such inspection. The Agent reserves the right, however, to
exhibit such records to any person whenever it is advised by its counsel that it
may be held liable for the failure to exhibit such records to such person.
Article 5 TERMINATION OF AGREEMENT
5.01 This Agreement may be terminated thereafter by either the Fund or
the Agent upon sixty (60) days written notice to the other.
5.02 Should the Fund exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Fund. Additionally, the Agent reserves the right to charge the Fund for any
other reasonable expenses associated with such termination.
Article 6 ASSIGNMENT
6.01 Neither this Agreement nor any rights or obligations hereunder may
be assigned by any party without the written consent of the other party.
6.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
5
Article 7 AMENDMENT
This Agreement may be amended or modified by a written agreement
executed by each party.
Article 8 MASSACHUSETTS LAW TO APPLY
This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
Article 9 MERGER OF AGREEMENT
This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject hereof
whether oral or written.
Article 10 DECLARATION OF TRUST
A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of State of The Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees of the
Fund 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 shareholders
individually but binding only upon the assets and property of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
THE FUNDS LISTED ON APPENDIX A
BY:
---------------------------------
XXXXXX FIDUCIARY TRUST COMPANY
BY:
-----------------------------------
0
XXXXXXXX X
XX Xxx, Xxxxxx Emerging Opportunities Portfolio
7
XXXXXX FIDUCIARY TRUST COMPANY
DIVIDEND REINVESTMENT PLAN AGENT
FEE SCHEDULE
FOR
TH XXX, XXXXXX INVESTMENT TRUST
ANNUAL ADMINISTRATIVE FEE FOR OMNIBUS ACCOUNT:
---------------------------------------------
$3,000.00
TRANSACTIONS: $12.00 Each for DTC
------------ $10.00 Each for DWAC
OUT-OF POCKET EXPENSES AS INCURRED INCLUDING BUT NOT LIMITED TO:
---------------------------------------------------------------
Insurance, Expedited Mail, Duplicating, Fax Charges, Wires in and out,
Microfiche, etc.
8
OVERDRAFT RECOVERY
------------------
Overdraft charge will be calculated on the actual overdraft incurred
plus Federal Reserve requirements and F.D.I.C. assessments.
THE FUNDS LISTED ON APPENDIX A
BY:
-------------------------------
XXXXXX FIDUCIARY TRUST COMPANY
BY:
-------------------------------
9
