TH XXX, XXXXXX INVESTMENT TRUST
INVESTOR SERVICING AGREEMENT
AGREEMENT made as of the _____ day of __________, 2001, between each series
of TH Xxx, Xxxxxx Investment Trust listed in Appendix A attached hereto (as the
same may from time to time be amended to add one or more additional series or to
delete one or more series) each of such Funds acting severally on its own behalf
and not jointly or jointly and severally with any of such other Funds (each of
such Funds being hereinafter referred to as the "Fund") and Xxxxxx Fiduciary
Trust Company (the "Agent"), a Massachusetts trust company.
W I T N E S S E T H:
WHEREAS, the Fund is a closed-end investment company registered under the
Investment Company Act of 1940; and
WHEREAS, the Fund desires to engage the Agent to provide all services
required by the Fund in connection with the establishment, maintenance and
recording of shareholder accounts, including without limitation all related tax
and other reporting requirements, and the administration of any dividend
reinvestment and/or cash purchase plans from time to time offered in connection
with the Fund's shares; and
NOW, THEREFORE, in consideration of the promises and the mutual covenants
set forth herein, the parties hereto agree as follows:
1. APPOINTMENT.
The Fund hereby appoints the Agent as its "Investor Servicing Agent" on the
terms and conditions set forth herein. In such capacity the Agent shall act as
transfer agent, registrar, repurchase agent and distribution disbursing agent
for the Fund and shall act as agent for the Fund in connection with the
administration of any dividend reinvestment and/or cash share purchase plans
from time to time made available to shareholders. The Agent hereby accepts such
appointment and agrees to perform the respective duties and functions of such
offices in accordance with the terms of this Agreement and in a manner generally
consistent with the practices and standards customarily followed by other high
quality investor servicing agents for registered investment companies.
2. GENERAL AUTHORITY AND DUTIES.
By its acceptance of the foregoing appointment, the Agent shall be
responsible for performing all functions and duties which, in the reasonable
judgment of the Fund, are necessary or desirable in connection with the
establishment, maintenance and recording of the Fund's shareholder accounts and
the conduct of its relations with shareholders with respect to their accounts.
Without limiting the generality of the foregoing, the Agent shall be
responsible:
(a) as transfer agent, for performing all functions customarily
performed by transfer agents for closed-end registered investment
companies, including without limitation all functions necessary or
desirable to establish and maintain accounts evidencing the
ownership of securities issued by the Fund and, to the extent
applicable, the issuance of certificates representing such securities,
the recording of all transactions pertaining to such accounts, and
effecting the issuance and redemption of securities issued by the
Fund;
(b) as registrar, for performing all functions customarily performed
by registrars for closed-end registered investment companies;
(c) as repurchase agent for the Fund, for performing all functions
necessary or desirable to effect the repurchase of securities issued
by the Fund under Rule 23c-3 under the Investment Company Act of 1940,
as amended, and payment of the proceeds thereof; and
(d) as distribution disbursing agent, for performing all functions
customarily performed by distribution disbursing agents for closed-end
registered investment companies, including without limitation all
functions necessary or desirable to effect the payment to shareholders
of distributions declared from time to time by the Trustees of the
Fund;
(e) as agent for the Fund, performing all administrative and
bookkeeping functions necessary or desirable to maintain any dividend
reinvestment and/or cash share purchase plans from time to time made
available to shareholders to facilitate the purchase of shares of the
Fund, including without limitation the supervision of any independent
bank or brokerage firm engaged by the Fund to act as agent for the
shareholders of the Fund in connection with such plans, if and to the
extent required by the federal securities laws.
In performing its duties hereunder, in addition to the provisions set forth
herein, the Agent shall comply with the terms of the Declaration of Trust, the
Bylaws, the Registration Statement filed with the Securities and Exchange
Commission, and with the terms of votes adopted from time to time by the
Trustees and shareholders of the Fund, relating to the subject matters of this
Agreement, all as the same may be amended from time to time.
3. STANDARD OF SERVICE; COMPLIANCE WITH LAWS.
The Agent will use its best efforts to provide high quality services to the
Fund's shareholders and in so doing will seek to take advantage of such
innovations and technological improvements as may be appropriate or desirable
with a view to improving the quality and, where possible, reducing the cost of
its services to the Fund. In performing its duties hereunder, the Agent shall
comply with the provisions of all applicable laws and regulations and shall
comply with the requirements of any governmental authority having jurisdiction
over the Agent or the Fund with respect to the duties of the Agent hereunder and
the requirements of any national securities exchange on which shares of the Fund
are listed for trading.
4. COMPENSATION.
The Fund shall pay to the Agent, for its services rendered and its costs
incurred in connection with the performance of its duties hereunder, such
compensation and reimbursements as set forth in Appendix B or as determined from
time to time be approved by vote of the Trustees of the Fund.
2
5. DUTY OF CARE; INDEMNIFICATION.
The Agent will at all times act in good faith and exercise reasonable care
in performing its duties hereunder. The Agent will not be liable or responsible
for delays or errors resulting from circumstances beyond its control, including
acts of civil or military authorities, national emergencies, labor difficulties,
fire, mechanical breakdown beyond its control, flood or catastrophe, acts of
God, insurrection, war, riots or failure beyond its control of transportation,
communication or power supply.
The Agent may rely on certifications of the Clerk, the President, any Vice
President or the Treasurer of the Fund as to any action taken by the
shareholders or Trustees of the Fund, and upon instructions not inconsistent
with this Agreement received from the Clerk, the President, any Vice President
or the Treasurer of the Fund. If any officer of the Fund shall no longer be
vested with authority to sign for the Fund, written notice thereof shall
forthwith be given to the Agent by the Fund and, until receipt of such notice by
it, the Agent shall be entitled to recognize and act in good faith upon
certificates or other instruments bearing the signatures or facsimile signatures
of such officers. The Agent may request advice of counsel for the Fund, at the
expense of the Fund, with respect to the performance of its duties hereunder.
The Fund will indemnify and hold the Agent harmless from any and all
losses, claims, damages, liabilities and expenses (including reasonable fees and
expenses of counsel) arising out of (i) any action taken by the Agent in good
faith consistent with the exercise of reasonable care in accordance with such
certifications, instructions or advice, (ii) any action taken by the Agent in
good faith consistent with the exercise of reasonable care in reliance upon any
instrument or certificate for securities believed by it (a) to be genuine, and
(b) to be executed by any person or persons authorized to execute the same;
PROVIDED, HOWEVER, that the Agent shall not be so indemnified in the event of
its failure to obtain a proper signature guarantee to the extent the same is
required by the Declaration of Trust, Bylaws, or Registration Statement of the
Fund or a vote of the Trustees of the Fund, and such requirement has not been
waived by vote of the Trustees of the Fund, or (iii) any other action taken by
the Agent in good faith consistent with the exercise of reasonable care in
connection with the performance of its duties hereunder.
In the event that the Agent proposes to assert the right to be indemnified
under this Section 5 in connection with any action, suit or proceeding against
it, the Agent shall promptly after receipt of notice of commencement of such
action, suit or proceeding notify the Fund of the same, enclosing a copy of all
papers served. In such event, the Fund shall be entitled to participate in such
action, suit or proceeding, and, to the extent that it shall wish, to assume the
defense thereof, and after notice from the Fund to the Agent of its election so
to assume the defense thereof the Fund shall not be liable to the Agent for any
legal or other expenses. The parties shall cooperate with each other in the
defense of any such action, suit or proceeding. In no event shall the Fund be
liable for any settlement of any action or claim effected without its consent.
6. MAINTENANCE OF RECORDS.
The Agent will maintain and preserve all records relating to its duties
under this Agreement in compliance with the requirements of applicable statutes,
rules and regulations, including without limitation Rule 31a-1 under the
Investment Company Act of 1940, and with the requirements of any national
securities exchange on which shares of the Fund are listed for
3
trading. Such records shall be the property of the Fund and shall at all times
be available for inspection and use by the officers and agents of the Fund. The
Agent shall furnish to the Fund such information pertaining to the shareholder
accounts of the Fund and the performance of its duties hereunder as the Fund may
from time to time request. The Agent shall notify the Fund promptly of any
request or demand by any third party to inspect the records of the Fund
maintained by it and will act upon the instructions of the Fund in permitting or
refusing such inspection.
7. FUND ACCOUNTS.
All moneys of the Fund from time to time made available for the payment of
distributions to shareholders or repurchases of shares, or otherwise coming into
the possession or control of the Agent or its officers, shall be deposited and
held in one or more accounts maintained by the Agent solely for the benefit of
the Funds.
8. INSURANCE.
The Agent will at all times maintain in effect insurance coverage,
including without limitation Errors and Omissions, Fidelity Bond and Electronic
Data Processing coverages, at levels of coverage consistent with those
customarily maintained by other high quality investor servicing agents for
registered investment companies and with such guidelines as the Trustees of the
Fund may from time to time adopt.
9. EMPLOYEES.
The Agent shall be responsible for the employment, control and conduct of
its agents and employees and for injury to such agents or employees or to others
caused by such agents or employees. The Agent shall assume full responsibility
for its agents and employees under applicable statutes and agrees to pay all
applicable employer taxes thereunder with respect to such agents and employees,
and such agents and employees shall in no event be considered to be agents or
employees of the Fund.
10. EFFECTIVE DATE; TERMINATION.
This Agreement shall take effect on ______________, 2001 and shall continue
indefinitely thereafter until terminated by not less than ninety (90) days prior
written notice given by the Fund to the Agent, or by not less than six months
prior written notice given by the Agent to the Fund.
In the event that in connection with any such termination a successor to
any of the Agent's duties or responsibilities hereunder is designated by the
Fund by written notice to the Agent, the Agent will cooperate fully in the
transfer of such duties and responsibilities, including provision for assistance
by the Agent's personnel in the establishment of books, records and other data
by such successor. The Fund will reimburse the Agent for all expenses incurred
by the Agent in connection with such transfer.
11. MISCELLANEOUS.
This Agreement shall be construed and enforced in accordance with and
governed by
4
the laws of The Commonwealth of Massachusetts.
The captions in this Agreement are included for convenience of reference
only and in no way define or limit any of the provisions of this Agreement or
otherwise affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
A copy of the Declaration of Trust (including any amendments thereto) of
the Fund is on file with the Secretary 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
officers or shareholders individually, but binding only upon the assets and
property of the Fund.
5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers as of the date and year first above written.
TH XXX, XXXXXX INVESTMENT TRUST, on behalf of its
series, listed on Appendix A
By_____________________________
XXXXXX FIDUCIARY TRUST COMPANY
By_____________________________
0
XXXXXXXX X
XX Xxx, Xxxxxx Emerging Opportunities Portfolio
APPENDIX B
[Fees to be proposed]
