INVESTMENT COMPANY SERVICE AGREEMENT
April , 1990
Pioneer Growth Trust, a Massachusetts business trust with its principal place of
business at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("Customer") and
Pioneering Services corporation, a Massachusetts corporation ("PSC"), hereby
agree as follows:
1. SERVICES TO BE PROVIDED BY PSC. During the term of this Agreement,
PSC will provide to each series of shares of beneficial interest (the "Series")
of the Customer, which may be established, from time to time, (the "Account"),
with the services described in Exhibits A, B, C, and D (collectively, the
"Exhibits") which are attached hereto and incorporated herein by reference. It
is understood that PSC may subcontract any of such services to one or more firms
designated by PSC, provided that PSC (i) 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 PSC would be liable
to Customer with respect to any such act or omission 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, VERIFICATION AND RECEIPT FOR DATA AND ASSETS. Prior to the
Effective Date, Customer agrees to deliver to PSC all such documentation, data
and materials as PSC may reasonably prescribe to enable it to perform services
contemplated by this Agreement. If PSC so requests, Customer agrees to confirm
the accuracy of any starting records of Customer's assets and accounts produced
from PSC's computer or held in other recording systems. In the event Customer
does not, prior to the Effective Date, comply fully with any of the foregoing
provisions of this Section 3, the date for commencement of PSC's services
hereunder may be postponed by PSC until such compliance has taken place.
Customer shall, from time to time, while this Agreement is in effect
deliver all such materials and data as may be necessary or desirable to enable
PSC to perform its services hereunder, including without limitation, those
described in Section 12 hereof.
4. REPORTS AND MAINTENANCE OF RECORDS BY PSC. PSC will 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, 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. PSC may at its
option at any time, and shall forthwith upon Customer's demand, turn over to
Customer and cease to retain in PSC's files, records and documents created and
maintained by PSC pursuant to this Agreement which are no longer needed by PSC
in the performance if its services or for its protection.
If not so turned over to Customer, such documents and reports will be
retained by PSC for six years from the year of creation, during the first two of
which the same will be in readily accessible form. At the end of six years, such
records and documents, will be turned over to Customer by PSC unless Customer
authorizes their destruction.
5. PSC'S DUTY OF CARE. PSC shall at all time use reasonable care and
act in good faith in performing its duties hereunder. PSC shall incur no
liability to customer in connection with its performance of services hereunder
except to the extent that it does not comply with the foregoing standards.
PSC shall at all times adhere to various procedures and systems
consistent with industry standards in order to safeguard the Customer's checks,
records and other data from loss or damage attributable to fire or theft. PSC
shall maintain insurance adequate to protect against the costs of reconstructing
checks, records and other data in the event of such loss and shall notify the
Customer in the event of a material adverse change in such insurance coverage.
In the event of damage or loss occurring to the Customer's records or data such
that PSC is unable to meet the terms of this Agreement, PSC shall transfer all
records and data to a Transfer Agent of Customer's choosing upon Customer's
written authorization to do so.
Without limiting the generality of the foregoing, PSC shall not be
liable or responsible for delays or errors occurring by reason of circumstances
beyond its control including acts of civil, military or banking authority,
national emergencies, labor
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difficulties, fire, flood or other catastrophies, acts of God, insurrection,
war, riots, failure of transportation, communication or power supply.
6. CONFIDENTIALITY. PSC will keep confidential all records and
information provided by the Customer or by the shareholders of the Account to
PSC, except to the extent disclosures are required by the 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
the Customer, PSC shall make available, during regular business hours, all
records and other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Customer or Customer's agents, including
reasonable visitation by the Customer or Customer's agent, including inspecting
PSC's operation facilities. PSC shall not be liable for injury to or responsible
in any way for the safety of any individual visiting PSC's facilities under the
authority of this section. The Customer will keep confidential and will cause to
keep confidential all confidential information obtained by its employees or
agents or any other individual representing the Customer while on PSC's
premises. Confidential information shall include (1) any information of whatever
nature regarding PSC's operations, security procedures, and data processing
capabilities, (2) financial information regarding PSC, its affiliates, or
subsidiaries, and (30 any information of whatever kind or description regarding
any customer of PSC, its affiliates or subsidiaries.
8. RELIANCE BY PSC ON INSTRUCTIONS AND ADVICE, INDEMNITY. PSC shall be
entitled to seek advice of Customer's legal counsel with respect to PSC's
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
the Customer's legal counsel determines in its sole discretion that the
rendering of advice to PSC would result in a conflict of interest.
Whenever PSC is authorized to take action hereunder pursuant to proper
instructions from Customer, PSC shall be entitled to rely upon any certificate,
letter or other instrument or telephone call reasonably believed by PSC 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
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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.
Subject to the provisions of Section 13 of this Agreement, Customer
agrees to indemnify and hold PSC, its demand, 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 PSC's action
or non-action upon information, instructions or requests given or made to PSC by
the Customer with respect to the Account.
Notwithstanding the above, whenever the Customer may be asked to
indemnify or hold PSC harmless, the customer shall be advised of all pertinent
facts arising from the situation in question. Additionally, PSC will use
reasonable care to identify and notify the Customer promptly concerning any
situation which presents, actually or potentially, a claim for indemnification
against the Customer. The Customer shall have the option to defend PSC against
any claim for which PSC is entitled to indemnification from the Customer under
the terms hereof, and in the event the Customer so elects, it will notify PSC
and, thereupon, the Customer shall take over complete defense of the claim and
PSC shall sustain no further legal or other expenses in such a situation for
which indemnification shall be sought or entitled. PSC may in no event confess
any claim or make any compromise in any case in which the Customer will be asked
to indemnify PSC except with the Customer's prior written consent.
9. MAINTENANCE OF DEPOSIT ACCOUNTS. PSC shall maintain on behalf of
Customer such deposit accounts as are necessary or desirable from time to time
to enable PSC to carry out the provisions of this Agreement.
10. COMPENSATION AND REIMBURSEMENT TO PSC. For the services rendered by
PSC under this Agreement, Customer agrees to pay a monthly fees to PSC, such fee
to be equal to $_____ per account of each series. In addition, Customer shall
reimburse PSC monthly for out-of-pocket expenses such as postage, forms,
envelopes, checks, "outside" mailings, telephone lines, mailgrams, mail
insurance on certificates and data processing file recovery insurance.
11. TERMINATION. Either PSC or Customer may at any time terminate this
Agreement by giving 90 days prior written notice to the other.
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After the date of termination, for so long as PSC in fact continues to
perform any one or more of the services 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. REQUIRED DOCUMENTS. Customer agrees to furnish to PSC prior to the
Effective Date the following (to the extent no previously provided):
A. Two (2) copies of the Declaration of Trust of Customer, and of
any amendments thereto, certified by the proper official of the
State where the Declaration of Trust is filed.
B. Two (2) copies of the following documents, currently certified by
the Secretary of Customer:
a. Customer's By-laws and any amendment thereto.
b. Certified copies of resolutions of Customer's Board of
Trustees covering the following matters.
(1) Approval of this Agreement.
(2) Authorization of specified officers of Customers to
instruct PSC hereunder (if different from other
officers of Customer previously specified by Customer
as to other Customer accounts being serviced by PSC).
C. List of all officers of Customer together with specimen
signatures of those officers who are authorized to sign share
certificates and to instruct PSC in all other matters.
D. Two (2) copies of the following:
a. Prospectus
b. Statement of Additional Information
c. Management Agreement
d. Registration Statement
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E. Opinion of counsel for Customer as to the due authorization by
and binding effect of this Agreement on Customer, the
applicability of the Securities Act of 1933, as amended, and the
Investment Company Act of 1940, as amended, and the approval by
such public authorities as may be prerequisite to lawful sale and
deliver in the various states.
F. Amendments to, and changes in, any of the foregoing forthwith
upon such amendments and changes becoming effective.
13. INDEMNIFICATION. 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 the Customer or its
Trustees set forth herein to indemnify any party to this Agreement or any other
person, shall be satisfied out of the assets of the Account first and then of
Customer and that no Trustee, officer or holder of shares of beneficial interest
of the Customer shall be personally liable for any of the foregoing liabilities.
The Customer's Declaration of Trust, as amended from time to time, is on file in
the Office of the Secretary of State of The Commonwealth of Massachusetts. Such
Declaration of Trust describes in detail the respective responsibilities and
limitations on liability of the Trustee, officers, and holders of shares of
beneficial interest of the Customer.
14. MISCELLANEOUS. In connection with the operation of this Agreement
PSC 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 shall be construed in accordance with the laws of The
Commonwealth of Massachusetts.
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IN WITNESS WHEREOF, Customer and PSC 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.
ATTEST: PIONEERING SERVICES CORPORATION
By:
PIONEER GROWTH TRUST
By:
Secretary President
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