AMENDED AND RESTATED INVESTOR SERVICING AGREEMENT
This AGREEMENT is made as of the 1st day of January, 2005, between each
of the Xxxxxx Funds listed in Appendix A hereto (as the same may from
time to time be amended to add one or more additional Xxxxxx Funds or
to delete one or more of such Funds), each of such Funds acting
severally on its own behalf and not jointly with any of such other
Funds (each of such Funds being hereinafter referred to as the "Fund"),
and Xxxxxx Investment Management, LLC (the "Manager"), a Delaware
limited liability company, and Xxxxxx Fiduciary Trust Company (the
"Agent"), a Massachusetts trust company, and amends and restates the
Investor Servicing Agreement dated as of June 3, 1991 between each of
the Funds, Xxxxxx Investment Management, Inc., as predecessor in
interest to the Manager, and the Agent.
W I T N E S S E T H:
WHEREAS, the Fund is an investment company registered under the
Investment Company Act of 1940; and
WHEREAS, the Fund desires to engage the Manager and 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 implementation of investment and redemption
arrangements offered in connection with the sale of the Fund's shares;
and
WHEREAS, the Agent, an affiliate of the Manager, is willing to provide
such services on the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the premises 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, distribution disbursing and redemption agent for
the Fund and shall act as agent for the shareholders of the Fund in
connection with the various shareholder investment and/or redemption 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.
Notwithstanding such appointment, however, the parties agree that the
Manager may, upon thirty (30) days prior written notice to the Fund,
assume such appointment and perform such duties and functions itself.
Pending any such assumption, however, the Manager hereby guarantees the
performance of the Agent hereunder and shall be fully responsible to the
Fund, financially and otherwise, for the performance by the Agent of its
agreements contained herein.
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 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 distribution disbursing agent, for performing all functions
customarily performed by distribution disbursing agents for 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;
(c) as redemption agent for the Fund, for performing all functions
necessary or desirable to effect the redemption of securities issued by
the Fund and payment of the proceeds thereof; and
(d) as agent for shareholders of the Fund, performing all functions
necessary or desirable to maintain all plans or arrangements from time to
time made available to shareholders to facilitate the purchase or
redemption of securities issued by the Fund.
The Agent shall also be responsible for performing the foregoing functions
and duties, to the extent applicable, with respect to participants in
retirement plans administered by Xxxxxx XX Outsourcing, LLC (MHRO) that
have invested, through such plans, in the Fund. At its own cost and
expense, the Agent may hire MHRO to provide some or all of such services
with respect to such participants; provided that (a) the Trustees of the
Fund have approved the appointment of MHRO; (b) MHRO agrees to be bound by
the terms of an agreement with the Agent (i) whereby MHRO extends to the
Fund all of the rights it would have had against the Agent if the Agent
were providing the services directly to the Fund pursuant to this
Agreement and (ii) which requires MHRO to provide such services in a
manner generally consistent with the practices and standards customarily
followed by other high quality retirement plan servicing agents; (c) the
Agent shall be fully responsible to the Fund, financially and otherwise,
for the performance by MHRO of such services, it being understood by the
parties that the duties and obligations of the Agent are in no way
relieved by the appointment of MHRO and that the Agent remains fully
liable to the Fund for any and all losses arising out of the provision of,
or the failure to provide, such services by MHRO (pursuant to Section 6
hereof or otherwise), to the same extent that the Agent would have been
liable if MHRO had not been appointed; (d) without in any way limiting the
applicability to the Agent of the other provisions of this Agreement, the
Agent shall enter into an agreement with MHRO that requires MHRO to comply
with the provisions of the last paragraph of this Section 2 and the
provisions of Sections 4, 7, 9 and 10 of this Agreement in substantially
the same manner as if MHRO were a party to this Agreement; and (e) the
Agent shall continually monitor the nature and quality of the services
performed by MHRO, reporting to the Trustees at such times and in such
manner as requested by the Trustees. For avoidance of doubt, MHRO shall
have no rights under this Agreement, including any rights to
indemnification. The Agent shall provide to the Fund a copy of the
agreement referred to herein and a copy of any amendments to such
agreement promptly upon execution. The Agent shall be permitted at any
time to terminate the agreement referred to herein pursuant to the terms
of such agreement; provided that the Agent shall provide notice to the
Fund at least 90 days prior to any proposed termination of such agreement.
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 and the current Prospectus and Statement of Additional
Information of the Fund, 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. OTHER THIRD PARTY SERVICING ARRANGEMENTS
Servicing arrangements may currently exist or may in the future be
established with various third parties who have agreed to provide services
to shareholders or to retirement plans and their participants who invest
in the Fund. The Agent, and not the Fund, shall be fully responsible for
the payment of all amounts owing to such service providers and shall
monitor the provision of such services to such shareholders or plans and
participants, reporting to the Trustees at such times and in such manner
as the Trustees may request from time to time.
4. 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.
5. 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 may from time to time be approved by
vote of the Trustees of the Fund.
6. 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, the Vice
Chairman, the Executive Vice President, the Senior 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 President, Vice Chairman, the Executive Vice
President, the Senior 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, current Prospectus or Statement of
Additional Information 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 6 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.
7. 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. 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.
8. FUND ACCOUNTS.
All moneys of the Fund from time to time made available for the payment of
distributions to shareholders or redemptions 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.
9. 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 policies as the
Trustees of the Fund may from time to time adopt.
10. 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.
11. TERMINATION.
This Agreement shall continue indefinitely 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.
12. 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.
THE XXXXXX FUNDS, listed on Appendix A
/s/ Xxxxxxx X. Xxxxxx
By _____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
XXXXXX FIDUCIARY TRUST COMPANY
/s/ Xxxxxx X. Xxxxxxxx
By _____________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: President
XXXXXX INVESTMENT MANAGEMENT, LLC
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
By _____________________________________
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: President
APPENDIX A
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Xxxxxx American Government Income Fund
Xxxxxx Arizona Tax Exempt Income Fund
Xxxxxx Asset Allocation Funds
-Balanced Portfolio
-Conservative Portfolio
-Growth Portfolio
Xxxxxx California Tax Exempt Income Fund
Xxxxxx Capital Appreciation Fund
Xxxxxx Classic Equity Fund
Xxxxxx Convertible Income-Growth Trust
Xxxxxx Discovery Growth Fund
Xxxxxx Diversified Income Trust
Xxxxxx Equity Income Fund
Xxxxxx Europe Equity Fund
Xxxxxx Florida Tax Exempt Income Fund
Xxxxxx Funds Trust
-Xxxxxx Floating Rate Income Fund
-Xxxxxx Income Opportunities Fund
-Xxxxxx International Growth and Income Fund
-Xxxxxx Prime Money Market Fund
-Xxxxxx Small Cap Growth Fund
The Xxxxxx Xxxxxx Fund of Boston
Xxxxxx Global Equity Fund
Xxxxxx Global Income Trust
Xxxxxx Global Natural Resources Fund
The Xxxxxx Fund for Growth and Income
Xxxxxx Health Sciences Trust
Xxxxxx High Yield Advantage Fund
Xxxxxx High Yield Trust
Xxxxxx Income Fund
Xxxxxx International Equity Fund
Xxxxxx Investment Funds
-Xxxxxx Capital Opportunities Fund
-Xxxxxx Growth Opportunities Fund
-Xxxxxx International New Opportunities Fund
-Xxxxxx International Capital Opportunities Fund
-Xxxxxx Mid Cap Value Fund
-Xxxxxx New Value Fund
-Xxxxxx Research Fund
-Xxxxxx Small Cap Value Fund
Xxxxxx Investors Fund
Xxxxxx Limited Duration Government Income Fund
Xxxxxx Massachusetts Tax Exempt Income Fund
Xxxxxx Michigan Tax Exempt Income Fund
Xxxxxx Minnesota Tax Exempt Income Fund
Xxxxxx Money Market Fund
Xxxxxx New Jersey Tax Exempt Income Fund
Xxxxxx New Opportunities Fund
Xxxxxx New York Tax Exempt Income Fund
Xxxxxx Ohio Tax Exempt Income Fund
Xxxxxx OTC & Emerging Growth Fund
Xxxxxx Pennsylvania Tax Exempt Income Fund
Xxxxxx RetirementReady[REGISTRATION XXXX] Funds
-Xxxxxx RetirementReady 2050 Fund
-Xxxxxx RetirementReady 2045 Fund
-Xxxxxx RetirementReady 2040 Fund
-Xxxxxx RetirementReady 2035 Fund
-Xxxxxx RetirementReady 2030 Fund
-Xxxxxx RetirementReady 2025 Fund
-Xxxxxx RetirementReady 2020 Fund
-Xxxxxx RetirementReady 2015 Fund
-Xxxxxx RetirementReady 2010 Fund
-Xxxxxx RetirementReady Maturity Fund
Xxxxxx Tax Exempt Income Fund
Xxxxxx Tax Exempt Money Market Fund
Xxxxxx Tax-Free Income Trust
-Xxxxxx AMT-Free Insured Municipal Fund
-Xxxxxx Tax-Free High Yield Fund
Xxxxxx Tax Smart Funds Trust
-Xxxxxx Tax Smart Equity Fund[REGISTRATION XXXX]
Xxxxxx U.S. Government Income Trust
Xxxxxx Utilities Growth and Income Fund
Xxxxxx Variable Trust
-Xxxxxx VT American Government Income Fund
-Xxxxxx VT Capital Appreciation Fund
-Xxxxxx VT Capital Opportunities Fund
-Xxxxxx VT Discovery Growth Fund
-Xxxxxx VT Diversified Income Fund
-Xxxxxx VT Equity Income Fund
-Xxxxxx VT The Xxxxxx Xxxxxx Fund of Boston
-Xxxxxx VT Global Asset Allocation Fund
-Xxxxxx VT Global Equity Fund
-Xxxxxx VT Growth and Income Fund
-Xxxxxx VT Growth Opportunities Fund
-Xxxxxx VT Health Sciences Fund
-Xxxxxx VT High Yield Fund
-Xxxxxx VT Income Fund
-Xxxxxx VT International Equity Fund
-Xxxxxx VT International Growth and Income Fund
-Xxxxxx VT International New Opportunities Fund
-Xxxxxx VT Investors Fund
-Xxxxxx VT Mid Cap Value Fund
-Xxxxxx VT Money Market Fund
-Xxxxxx VT New Opportunities Fund
-Xxxxxx VT New Value Fund
-Xxxxxx VT OTC & Emerging Growth Fund
-Xxxxxx VT Research Fund
-Xxxxxx VT Small Cap Value Fund
-Xxxxxx VT Utilities Growth and Income Fund
-Xxxxxx VT Vista Fund
-Xxxxxx VT Voyager Fund
Xxxxxx Vista Fund
Xxxxxx Voyager Fund
