DIVIDEND REINVESTMENT PLAN AGENCY AGREEMENT
THIS AGREEMENT is made as of the 27th day of July, 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.
1.02 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.
(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.
3.02 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 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.
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
/s/ Xxxxxxx X. Xxxxxxxxxx
By: --------------------------------
XXXXXX FIDUCIARY TRUST COMPANY
/s/ Xxxxx X. Gallary
By: --------------------------------
Appendix A
TH Xxx, Xxxxxx Emerging Opportunities Portfolio
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.
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
/s/ Xxxxxxx X. Xxxxxxxxxx
By: --------------------------------
XXXXXX FIDUCIARY TRUST COMPANY
/s/ Xxxxx X. Gallary
By: --------------------------------
