(h)(3)
CLEARSKY
STATE FILING SERVICES AGREEMENT
This AGREEMENT, dated as of this __ day of _______________________, 2003, is by
and between Manufacturers Investment Trust (the "Fund"), and Automated Business
Development Corporation ("ABD").
BACKGROUND:
A. The Fund wishes to retain ABD to provide "blue sky" registration
services for its investment portfolios (and the classes thereof) listed on
Schedule A (each a "Portfolio"), as such Schedule A may be amended from time to
time by the parties (each a "Portfolio"), and ABD wishes to furnish such
services.
B. This Background section and the Schedules attached to this Agreement
are hereby incorporated by reference and made a part of this Agreement.
TERMS:
NOW, THEREFORE, in consideration of the premises and mutual covenants herein
contained, it is agreed between the parties as follows:
1. Appointment. The Fund hereby appoints ABD to provide blue sky filing
services for the Portfolios (and classes thereof) for the period and on the
terms set forth in this Agreement. In connection with the foregoing, the Fund
hereby grants ABD a limited power of attorney on behalf of the Fund and
Portfolios to sign all blue sky filings and other related documents to effect
the purpose of this Agreement. ABD accepts such appointment.
2. Delivery of Documents. The Fund has or will, as appropriate, timely
furnish ABD with copies of each of the following:
(a) A listing of all jurisdictions in which each Portfolio (and class
thereof) is lawfully available for sale as of the date of this Agreement and in
which the Fund desires ABD to effect a blue sky filing;
(b) The Fund's most recent Post-Effective Amendments with respect to each
Portfolio under the Securities Act of 1933 and under the 1940 Act as filed with
the Securities and Exchange Commission (the "SEC") and all amendments thereto;
(c) Upon ABD's request, each Portfolio's most recent prospectus and
statement of additional information and all amendments and supplements thereto
(a "Prospectus"); and
(d) All Notices of Special Meetings of Shareholders and related Proxy
materials which propose the merger, reorganization or liquidation of a
Portfolio.
The Fund will furnish ABD from time to time with copies of all amendments of or
supplements to the foregoing, if any.
3. Services and Duties. Subject to the supervision and control of the
Fund, ABD will:
(a) Effect and maintain, as the case may be, the qualification of shares of
the respective Portfolios for sale under the securities laws of the
jurisdictions indicated for each Portfolio on Schedule A, as it may be amended
from time to time; and
(b) File with each appropriate jurisdiction the applicable materials
relating to the Portfolios (or classes thereof) by the applicable filing
deadline; provided however, that the Fund timely provides ABD in advance of such
filings with (i) the requisite number of copies of each document (i.e.
definitive prospectuses) requested by ABD (to the extent such documents are
required to effect the relevant filing) and (ii) filing fees (as described in
more detail below); and
(c) Convey to the Fund any comments received from the regulatory
authorities with respect to such filings and, if desired by the Fund, responding
to such comments in such manner as authorized by the Fund.
Subject to payment to ABD in advance, ABD will remit to the respective
jurisdictions the requisite filing fees for the shares of the relevant
Portfolio(s) (or classes thereof), and any fees for qualifying or continuing the
qualification of any Portfolios(s) (or classes thereof). The Fund will, from
time to time as specifically agreed between the parties, facilitate a wire
transfer of funds to ABD for the payment of the aforementioned filings fees
promptly upon request by ABD. ABD will request the funds necessary for the
payment of the filing fees in advance of the date the fees become due.
In performing its duties under this Agreement, ABD will act in accordance with
the reasonable instructions and directions of the Fund. Similarly, the Fund will
reasonably cooperate with ABD to enable ABD to perform its duties under this
Agreement.
4. Compensation. The Fund will compensate ABD for the performance of its
duties hereunder in accordance with the fees and charges set forth on Schedule
B.
The Fund agrees to pay all fees to ABD within thirty (30) days following its
receipt of the respective invoice.
5. Limitations of Liability and Indemnification. ABD shall not be
responsible for and the Fund shall indemnify, defend and hold ABD harmless from
and against any and all claims, costs, expenses (including reasonable attorneys'
fees), losses, damages, charges, payments and liabilities of any sort or kind
which may be asserted against ABD or for which ABD may be held to be liable (a
"Claim") arising out of or attributable to any of the following: (a) any actions
of ABD taken or omitted in connection with this Agreement except to the extent
such Claim resulted from a negligent act or omission to act or willful
misconduct by ABD in the performance of its duties hereunder; (b) ABD's
reasonable reliance upon, or reasonable use of, information, data, records and
documents received by ABD from the Fund; (c) any instructions or requests from
the Fund upon which ABD chooses, in its discretion, to act; (d) the Fund's
refusal or failure to comply with the terms of this Agreement, or (e) any Claim
that relates to the Fund's negligence or misconduct or the breach of any
representation or
warranty of the Fund made herein. Without in any way limiting the foregoing, ABD
shall have no liability for failing to file on a timely basis any material to be
provided by the Fund that ABD has not received on a timely basis from the Fund.
ABD shall have no responsibility to review the accuracy or adequacy of materials
it receives from the Fund for filing or bear any liability arising out of the
timely filing of such materials.
The Fund shall not be responsible for and ABD shall indemnify, defend and hold
the Fund harmless from and against any and all claims, costs, expenses
(including reasonable attorneys' fee), losses, damages, charges, payments and
liabilities of any sort or kind which may be asserted against the Fund of for
which the Fund may be held to be liable (a "Claim") arising out of or
attributable to any of the following: (a) ABD's refusal or failure to comply
with the terms of this Agreement; (b) ABD's negligent act or negligent omission
to act or willful misconduct in performance of its duties under this Agreement;
or (c) ABD's breach of any representation or warranty in this Agreement.
Each party shall have the duty to mitigate damages for which the other party may
become responsible.
In no event shall either party be liable hereunder for any consequential,
special or indirect losses or damages, whether or not the likelihood of such
losses or damages was known by the party.
Without limiting the generality of the foregoing or any other provisions of this
Agreement, ABD shall not be liable for delays or failures to perform any of the
services or errors or loss of data occurring by reason of circumstances beyond
its control, including, without limitation, acts of civil or military authority,
national emergencies, labor difficulties, fire, flood, catastrophe, acts of God,
insurrections, war, terrorist acts, riots or failure of the mails,
transportation, communication or power supply, functions or malfunctions of
telecommunications services caused by any of the above, or laws or regulations
imposed after the date of this Agreement.
The Fund agrees and acknowledges that ABD has not prior to the date hereof
assumed, and will not assume, any obligations or liabilities arising out of the
conduct of the Fund prior to the date hereof. The Fund further agrees to
indemnify, defend and hold ABD harmless against any losses, claims, damages or
liabilities to which ABD may become subject in connection with the conduct by
the Fund of such duties prior to the date hereof.
6. Representations and Warranties.
Each party represents and warrants that: (a) its execution, delivery and
performance of this Agreement: (i) have been authorized by all necessary
corporate action, (ii) do not violate the terms of any law, regulation, or court
order to which such party is subject or the terms of any material agreement to
which the party or any of its assets may be subject and (iii) are not subject to
the consent or approval of any third party; (b) this Agreement is the valid and
binding obligation of the representing party, enforceable against such party in
accordance with its terms; and (c) such party is not subject to any pending or
threatened litigation or governmental action which could interfere with such
party's performance of its obligations hereunder.
The Fund represents and warrants that, to the best of its knowledge, as of the
date first set forth above each Portfolio (and class thereof) is lawfully
eligible for sale in each jurisdiction indicated for such Portfolio (and class
thereof) on the list furnished to ABD pursuant to Paragraph 2(a) of this
Agreement.
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ABD
DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE
FUND OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES
REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF
TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES PROVIDED
UNDER THIS AGREEMENT. ABD DISCLAIMS ANY WARRANTY OF TITLE OR NON-INFRINGEMENT
EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT.
7. Service to Other Investment Companies or Accounts. The Fund understands
that the persons employed by ABD to assist in the performance of ABD's duties
hereunder will not devote their full time to such service and nothing contained
herein shall be deemed to limit or restrict the right of ABD or any affiliate of
ABD to engage in and devote time and attention to other businesses or to render
services of whatever kind or nature.
8. Notices. Any notice or other instrument or materials authorized or
required by this Agreement to be given in writing to the Fund or to ABD shall be
sufficiently given if addressed to such party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Fund:
Manulife Financial
00 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX
00000
Attention: Xxxxxx X. Xxxxx
To ABD:
ABD
000 Xxxx Xxxxxx
Schrafft Center Annex
Xxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxx
9. Files. All files maintained by ABD with respect to the Fund shall be
the property of the Fund and shall be returned to the Fund at the termination of
this Agreement or as mutually agreeable to ABD and the Fund.
10. Duration and Termination. This Agreement shall continue hereafter until
terminated by the Fund or ABD on 60 days' written notice to the other party;
provided,
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however, that Sections 5, 7, 10, 12, 13 and 14 shall survive termination.
In the event a termination, ABD will reasonably cooperate with the Fund;
provided that, the Fund shall promptly pay ABD for all expenses associated with
movement of records and materials and conversion thereof to a successor service
provider.
11. Amendment to this Agreement. No provision of this Agreement may be
changed, discharged or terminated orally, but only by an instrument in writing
signed by the party against which enforcement of the change, discharge or
termination is sought.
12. Governing Law. The laws of the state of Delaware, excluding the laws on
conflicts of laws, shall govern the interpretation, validity, and enforcement of
this Agreement.
13. Confidentiality. Subject to the terms of this Section, each party
agrees to maintain all information about the other party that it acquires
pursuant to this Agreement in confidence. The obligations of confidentiality in
this Section shall not apply to any information that: (i) is already known to
the receiving party at the time it is obtained; (ii) is or becomes publicly
known or available through no wrongful act of the receiving party; (iii) is
rightfully received from a third party who, to the best of the receiving party's
knowledge, is not under a duty of confidentiality; (iv) is released by the
protected party to a third party without restriction; (v) is required to be
disclosed by the receiving party pursuant to a requirement of a court order,
subpoena, governmental or regulatory agency, law, or binding discovery request
in pending litigation (provided the receiving party will provide the other party
written notice of such requirement, to the extent such notice is permitted);
(vi) is included on a required basis in any filing made with a federal or state
agency or authority in the course of rendering services; (vii) is relevant to
any claim or cause of action between the parties or the defense of any claim or
cause of action asserted against the receiving party; or (viii) has been or is
independently developed or obtained by the receiving party without reference to
the Confidential Information provided by the protected party.
Each party agrees that if there is a breach or threatened breach of the
provisions of this Section, the other party will not have an adequate remedy in
money or damages and accordingly will be entitled to injunctive relief and/or
specific performance; provided, however, no specification in this Section of any
particular remedy shall be construed as a waiver or prohibition of any other
remedies in the event of a breach or threatened breach of this Section.
14. Miscellaneous.
(a) Entire Agreement. This Agreement (including all schedules) constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior and contemporaneous proposals, agreements,
contracts, representations, and understandings, whether written or oral, between
the parties with respect to the subject matter hereof. No change, termination,
modification, or waiver of any term or condition of the Agreement shall be valid
unless in writing signed (by countersigning or otherwise) by each party.
(b) Severability. The parties intend every provision of this Agreement to
be severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
(b) Successors/Assigns. This Agreement, its benefits and obligations shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement may not be assigned
or otherwise transferred by either party hereto, without the prior written
consent of the other party, which consent shall not be unreasonably withheld;
provided, however, that ABD may, in its sole discretion, assign all its right,
title and interest in, and delegate its obligations under, this Agreement to an
affiliate, parent or subsidiary, or to the purchaser of substantially all of its
business. ABD may, in its sole discretion, engage subcontractors to perform any
of the obligations contained in this Agreement to be performed by ABD.
(c) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original; but such
counterparts shall, together, constitute only one instrument.
(d) Captions. The captions of this Agreement are included for convenience
of reference only and in no way define or limit any of the provisions hereof or
otherwise affect their construction or effect.
(e) Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
(f) No Third Party Rights. Nothing herein expressed or implied is intended
or shall be construed to confer upon or give to any person or entity other than
the parties hereto and their respective successors and assigns, any rights or
remedies under or by reason of this Agreement.
(g) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by such party.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the date and year first above
written.
Manufacturers Investment Trust
By: _________________________________
Name: _________________________________
Title: _________________________________
Automated Business Development Corporation
By: _________________________________
Name: _________________________________
Title: _________________________________
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CLEARSKY
STATE FILING SERVICES AGREEMENT
SCHEDULE A
LIST OF PORTFOLIOS, CLASSES AND JURISDICTIONS
CLEARSKY
STATE FILING SERVICES AGREEMENT
SCHEDULE B
FEES
$67.00 per state notice filing ("permit"), with a minimum annual fee of
$62,500.00, billed monthly in arrears.
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