Exhibit (k)(3)
INVESTMENT COMPANY SERVICE AGREEMENT
PIONEER DIVERSIFIED HIGH INCOME TRUST
___________, 2007
Pioneer Diversified High Income Trust, a Delaware statutory trust with its
principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
("Customer"), and Pioneer Investment Management Shareholder Services, Inc., a
Massachusetts corporation, and a Member of the UniCredito Banking Group,
Register of Banking Groups, with its principal place of business at 00 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("PIMSS"), hereby agree as follows:
1. SERVICES TO BE PROVIDED BY PIMSS. During the term of this Agreement,
PIMSS will provide to the common shares of beneficial interest of Customer (the
"Account"), with the services described in Exhibit B to the Service Agreement
for Sub-Transfer Agency Services (the "Sub-Transfer Agency Agreement") to
Pioneer Diversified High Income Trust, dated the date hereof, between PIMSS and
American Stock Transfer & Trust Company ("AST"), which is incorporated herein by
reference. It is understood that PIMSS may subcontract any of such services to
one or more firms designated by PIMSS, provided that PIMSS (i) except as
provided herein, shall be solely responsible for all compensation payable to any
such firm and (ii) shall be liable to Customer for the acts or omissions of any
such firm to the same extent as PIMSS would be liable to Customer with respect
to any such act or omission hereunder. Customer acknowledges that PIMSS intends
to retain AST to act as its agent in providing the services hereunder, provided
that PIMSS shall be entitled, without Customer's prior consent to terminate AST
[in accordance with Section 11 below] and to appoint another subcontractor with
respect to the services to be provided hereunder.
2. EFFECTIVE DATE. This Agreement shall become effective on the date hereof
(the "Effective Date") and shall continue in effect until it is terminated in
accordance with Section 11 below.
3. DELIVERY OF DOCUMENTATION, MATERIALS AND DATA. Customer shall, from time
to time, while this Agreement is in effect deliver all such documentation,
materials and data as may be necessary or desirable to enable PIMSS to perform
its services hereunder.
4. REPORTS AND MAINTENANCE OF RECORDS BY PIMSS. PIMSS will furnish, or
cause AST to furnish, to Customer and to properly authorized auditors,
examiners, distributors, dealers, underwriters, salesmen, insurance companies,
investors, and others designated by Customer in writing, such books, any and all
records and reports at such times as are prescribed for each service in the
Exhibits attached hereto. Customer agrees to examine or to ask any other
authorized recipient to examine each such report or copy promptly and will
report or cause to be reported any errors or discrepancies therein of which
Customer then has any knowledge. PIMSS may at its option at any time, and shall
forthwith upon Customer's demand, turn over to Customer and cease to retain in
PIMSS' files, any and all records and documents created and maintained by PIMSS
pursuant to this Agreement which are no longer needed by PIMSS in the
performance of its services or for its protection.
If not so turned over to Customer, such documents and reports will be
retained by PIMSS for six years from the year of creation, during the first two
of which the same shall be in readily accessible form. At the end of six (6)
years, such records and documents will be turned over to Customer by PIMSS
unless Customer authorizes their destruction.
5. PIMSS' DUTY OF CARE AND INDEMNIFICATION.
(a) LIMITATION OF LIABILITY. (i) In the absence of gross negligence or
intentional misconduct on its part, PIMSS shall not be liable for any action
taken, suffered, or omitted by it (or any of its agents) or for any error of
judgment made by it (or any of its agents) in the performance of its duties
under this Agreement. In no event will PIMSS be liable for special, indirect,
incidental or consequential losses or damages of any kind whatsoever (including
but not limited to lost profits), even if PIMSS has been advised of the
possibility of such damages. Any liability of PIMSS will be limited in the
aggregate to an amount equal to the fee paid by Customer during the preceding
twelve (12) month period.
(ii) In the event any question or dispute arises with respect to PIMSS'
duties hereunder, PIMSS shall not be required to act or be held liable or
responsible for its failure or refusal to act until the question or dispute has
been (i) judicially settled (and, if appropriate, PIMSS may file a suit in
interpleader or for a declaratory judgment for such purpose) by final judgment
rendered by a court of competent jurisdiction that is binding on all parties
interested in the matter and is no longer subject to review or appeal, or (ii)
settled by a written document in form and substance satisfactory to PIMSS and
Customer and executed by Customer. In addition, PIMSS may require for such
purpose, but shall not be obligated to require, the execution of such written
settlement by parties that may have an interest in the settlement.
(b) INDEMNIFICATION. Customer shall indemnify PIMSS and its agents for, and
hold it harmless against, any loss, liability, claim or expense ("Loss") arising
out of or in connection with its duties under this Agreement or this
appointment, including the costs and expenses of defending itself against any
Loss or enforcing this Agreement, except to the extent that such Loss shall have
been determined by a court of competent jurisdiction to be a result of the gross
negligence or intentional misconduct of PIMSS or its agents.
(c) FORCE MAJEURE. Neither PIMSS nor its agents shall be liable for any
failures, delays or losses, arising directly or indirectly out of conditions
beyond its reasonable control, including, but not limited to, acts of
government, exchange or market ruling, suspension of trading, work stoppages or
labor disputes, civil disobedience, riots, rebellions, electrical or mechanical
failure, computer hardware or software failure, communications facilities
failures including telephone failure, war, fires, earthquakes, storms, floods,
acts of God or similar occurrences.
6. CONFIDENTIALITY. PIMSS will keep confidential all records and
information provided by Customer or by the shareholders of the Account to PIMSS,
except to the extent disclosures are required by this Agreement, are required by
the Customer's Prospectus and Statement of Additional Information, or are
required by a valid subpoena or warrant issued by a court of competent
jurisdiction or by a state or federal agency or governmental authority.
7. CUSTOMER INSPECTION. Upon reasonable notice, in writing signed by
Customer, PIMSS shall make available or cause AST to make available, during
regular business hours, all records and other data created and maintained
pursuant to this Agreement for reasonable audit and inspection by Customer or
Customer's agents, including reasonable visitation by Customer or Customer's
agents, including inspecting PIMSS' or its agent's operation facilities. PIMSS
shall not be liable for injury to or responsible in any way for the safety of
any individual visiting PIMSS' or its agent's facilities under the authority of
this section. Customer will keep confidential and will cause to keep
confidential all confidential information obtained by its employees or agents or
any other individual representing Customer while on PIMSS' premises.
Confidential information shall include (1) any information of whatever nature
regarding PIMSS' or its agent's operations, security procedures, and data
processing capabilities, (2) financial information regarding PIMSS, its agents,
its affiliates, or subsidiaries, and (3) any information of whatever kind or
description regarding any customer of PIMSS, its agents, its affiliates or
subsidiaries.
8. RELIANCE BY PIMSS ON INSTRUCTIONS AND ADVICE; INDEMNITY. PIMSS and its
agents shall be entitled to seek advice of Customer's legal counsel with respect
to PIMSS' responsibilities and duties hereunder and shall in no event be liable
to Customer for any action taken pursuant to such advice, except to the extent
that Customer's legal counsel determines in its sole discretion that the
rendering of advice to PIMSS would result in a conflict of interest.
Whenever PIMSS is authorized to take action hereunder pursuant to proper
instructions from Customer, PIMSS shall be entitled to rely upon any
certificate, letter or other instrument or telephone call or Internet
transaction reasonably believed by PIMSS to be genuine and to have been properly
made or signed by an officer or other authorized agent of Customer, and shall be
entitled to receive as conclusive proof of any fact or matter required to be
ascertained by it hereunder a certificate signed by an officer of Customer or
any other person authorized by Customer's Board of Trustees.
Customer agrees to indemnify and hold PIMSS, its employees, agents and
nominees harmless from any and all claims, demands, actions and suits, whether
groundless or otherwise, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character arising out of or in any way relating to PIMSS'
action or non-action upon information, instructions or requests given or made to
PIMSS by Customer with respect to the Account.
Notwithstanding the above, whenever Customer may be asked to indemnify or
hold PIMSS harmless, Customer shall be advised of all pertinent facts arising
from the situation in question. Additionally, PIMSS will use reasonable care to
identify and notify Customer promptly concerning any situation, which presents,
actually or potentially, a claim for indemnification against Customer. Customer
shall have the option to defend PIMSS against any claim for which PIMSS is
entitled to indemnification from Customer under the terms hereof, and in the
event Customer so elects, it will notify PIMSS and, thereupon, Customer shall
take over complete defense of the claim and PIMSS shall sustain no further legal
or other expenses in such a situation for which indemnification shall be sought
or entitled. PIMSS may in no event confess any claim or make any compromise in
any case in which Customer will be asked to indemnify PIMSS except with
Customer's prior written consent.
9. MAINTENANCE OF DEPOSIT ACCOUNTS. PIMSS shall maintain on behalf of
Customer such deposit accounts as are necessary or desirable from time to time
to enable PIMSS to carry out the provisions of this Agreement.
10. COMPENSATION AND REIMBURSEMENT TO PIMSS. For the services rendered by
PIMSS under this Agreement, Customer agrees to pay or reimburse PIMSS for the
fees and expenses of AST set forth on Exhibit B, but shall not be entitled to
any other compensation hereunder.
11. TERMINATION. Either PIMSS or Customer may at any time terminate this
Agreement by giving ninety (90) days' prior written notice to the other.
After the date of termination, for so long as PIMSS in fact continues to
perform any one or more of the services contemplated by this Agreement or the
Exhibits, the provisions of this Agreement, including without limitation the
provisions of Section 8 dealing with indemnification, shall where applicable
continue in full force and effect.
12. REPRESENTATIONS AND WARRANTIES; REQUIRED DOCUMENTS.
12.1 REPRESENTATIONS AND WARRANTIES OF PIMSS. PIMSS represents and warrants
to the Customer that:
(a) It is a corporation duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
(b) It is duly qualified to carry on its business in The Commonwealth of
Massachusetts and the State of Nebraska.
(c) All requisite corporate proceedings have been taken to authorize it to
enter into this Agreement.
(d) It is empowered under all applicable laws and by its Articles of
Organization and By Laws to enter into and perform this Agreement.
12.2 REPRESENTATIONS AND WARRANTIES OF CUSTOMER. Customer represents and
warrants to PIMSS and any of its agents (including AST, which is specifically
entitled to rely upon such representations) that:
(a) the common shares issued and outstanding on the date hereof (other than
the common shares issued to Pioneer Investment Management, Inc. in connection
with the initial capitalization of the Customer) have been duly authorized,
validly issued and are fully paid and are non-assessable; and any common shares
to be issued hereunder, when issued, shall have been duly authorized, validly
issued and fully paid and will be non-assessable;
(b) the common shares issued and outstanding on the date hereof have been
duly registered under the Securities Act of 1933, as amended (the "Securities
Act"), and such registration has become effective, or are exempt from such
registration; and have been duly
registered under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or are exempt from such registration;
(c) any common shares to be issued hereunder, when issued shall have been
duly registered under the Securities Act, and such registration shall have
become effective or shall be exempt from such registration; and shall have been
duly registered under the Exchange Act, or shall be exempt from such
registration;
(d) the Customer has paid or caused to be paid all taxes, if any, that were
payable upon or in respect of the original issuance of the common shares issued
and outstanding on the date hereof;
(e) the execution and delivery of this Agreement, and the issuance and any
subsequent transfer of the common shares hereunder, do not and will not conflict
with, violate, or result in a breach of, the terms, conditions or provisions of,
or constitute a default under, the Agreement and Declaration of Trust or the
By-Laws of the Customer, any law or regulation, any order or decree of any court
or public authority having jurisdiction, or any mortgage, indenture, contract,
agreement or undertaking to which the Customer is a party or by which it is
bound; and this Agreement is enforceable against the Customer in accordance with
its terms, except as may be limited by bankruptcy, insolvency, moratorium,
reorganization and other similar laws affecting the enforcement of creditors'
rights generally; and
(f) the Customer agrees to provide to PIMSS and AST, on or before the
Effective Date, the documentation and notifications listed in Exhibit C to the
Sub-Transfer Agency Agreement.
12.3 CUSTOMER DOCUMENT DELIVERY. Customer shall promptly furnish to PIMSS
the following:
(a) A copy of Customer's Agreement and Declaration of Trust and By-Laws and
all amendments related thereto.
(b) A certified copy of the resolution of the Customer's Board of Trustees
authorizing the appointment of PIMSS and the execution and delivery of this
Agreement.
(c) A copy of Customer's registration statement on Form N-2, and all
amendments thereto.
13. LIABILITIES OF THE CUSTOMER NOT OBLIGATIONS OF TRUSTEES OR
SHAREHOLDERS. The parties to this Agreement acknowledge and agree that all
liabilities arising, directly or indirectly, under this Agreement, of any and
every nature whatsoever, including without limitation, liabilities arising in
connection with any agreement of Customer or its Trustees set forth herein to
indemnify any party to this Agreement or any other person, shall be satisfied
solely out of the assets of the Account and that no Trustee, officer or holder
of shares of beneficial interest of Customer shall be personally liable for any
of the foregoing liabilities. Customer's Agreement and Declaration of Trust
describes in detail the respective responsibilities and limitations on liability
of the Trustees, officers, and holders of shares of beneficial interest of
Customer.
14. MISCELLANEOUS. In connection with the operation of this Agreement,
PIMSS and Customer may agree from time to time on such provisions interpretive
of or in addition to the provisions of this Agreement as may in their joint
opinion be consistent with the general tenor of this Agreement. Any such
interpretive or additional provisions are to be signed by both parties and
annexed hereto, but no such provision shall contravene any applicable federal
and state law or regulation, and no such provision shall be deemed to be an
amendment of this Agreement.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject matter hereof
whether written or oral.
If any provision or provisions of this Agreement shall be held invalid,
unlawful or unenforceable, the validity, legality, and enforceability of the
remaining provisions of the Agreement shall not in any way be affected or
impaired.
This Agreement shall be construed in accordance with the laws of The
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Customer and PIMSS have caused this Agreement to be executed
in their respective names by their respective officers thereunto duly authorized
as of the date first written above.
PIONEER INVESTMENT MANAGEMENT
SHAREHOLDER SERVICES, INC.
By:
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Name: Xxxxx Xxxxxxxx
Title: President and Chief Executive
Officer
PIONEER DIVERSIFIED HIGH INCOME TRUST
By:
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Name: Xxxxxxx Xxxx
Title: Treasurer
