TH XXX, XXXXXX INVESTMENT TRUST
INVESTOR SERVICING AGREEMENT
AGREEMENT made as of the 27th day of July, 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.
WITNESSETH:
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.
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 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 July 27, 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 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.
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
/s/ Xxxxxxx X. Xxxxxxxxxx
By ----------------------------------------------
XXXXXX FIDUCIARY TRUST COMPANY
/s/ Xxxxx X. Gallary
By ----------------------------------------------
Appendix A
TH Xxx, Xxxxxx Emerging Opportunities Portfolio
Appendix B
Fee Schedule = Based on estimated assets of $250 million
Transfer Agent Basis Points
Estimated Cost of Service (Allocation X 125%) 10.8 BPS
Estimated Out-of-pockets net credits 1.7 BPS
Estimated Transfer Agent Expense 12.5 BPS
