CLEARSKY STATE FILING SERVICES AGREEMENT
CLEARSKY
This AGREEMENT, dated as of this 12th day of May, 2003, is by and between Manufacturers
Investment Trust (the “Fund”), and Automated Business Development Corporation (“ABD”).
BACKGROUND:
A. The Fund wishes to retain ABD to provide “blue sky” registration services for its investment
portfolios (and the classes thereof) listed on Schedule A (each a “Portfolio”), as such Schedule A
may be amended from time to time by the parties (each a “Portfolio”), and ABD wishes to furnish
such services.
B. This Background section and the Schedules attached to this Agreement are hereby incorporated by
reference and made a part of this Agreement.
TERMS:
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained, it is
agreed between the parties as follows:
1. Appointment. The Fund hereby appoints ABD to provide blue sky filing services for the
Portfolios (and classes thereof) for the period and on the terms set forth in this Agreement. In
connection with the foregoing, the Fund hereby grants ABD a limited power of attorney on behalf of
the Fund and Portfolios to sign all blue sky filings and other related documents to effect the
purpose of this Agreement. ABD accepts such appointment.
2. Delivery of Documents. The Fund has or will, as appropriate, timely furnish ABD with
copies of each of the following:
(a) A listing of all jurisdictions in which each Portfolio (and class thereof) is lawfully
available for sale as of the date of this Agreement and in which the Fund desires ABD to effect a
blue sky filing;
(b) The Fund’s most recent Post-Effective Amendments with respect to each Portfolio under the
Securities Act of 1933 and under the 1940 Act as filed with the Securities and Exchange Commission
(the “SEC”) and all amendments thereto;
(c) Upon ABD’s request, each Portfolio’s most recent prospectus and statement of additional
information and all amendments and supplements thereto (a “Prospectus”); and
(d) All Notices of Special Meetings of Shareholders and related Proxy materials which propose the
merger, reorganization or liquidation of a Portfolio.
The Fund will furnish ABD from time to time with copies of all amendments of or supplements to the
foregoing, if any.
3. Services and Duties. Subject to the supervision and control of the Fund, ABD will:
(a) Effect and maintain, as the case may be, the qualification of shares of the respective
Portfolios for sale under the securities laws of the jurisdictions indicated for each Portfolio on
Schedule A, as it may be amended from time to time; and
(b) File with each appropriate jurisdiction the applicable materials relating to the Portfolios (or
classes thereof) by the applicable filing deadline; provided however, that the Fund timely provides
ABD in advance of such filings with (i) the requisite number of copies of each document (i.e.
definitive prospectuses) requested by ABD (to the extent such documents are required to effect the
relevant filing) and (ii) filing fees (as described in more detail below); and
(c) Convey to the Fund any comments received from the regulatory authorities with respect to such
filings and, if desired by the Fund, responding to such comments in such manner as authorized by
the Fund.
Subject to payment to ABD in advance, ABD will remit to the respective jurisdictions the requisite
filing fees for the shares of the relevant Portfolio(s) (or classes thereof), and any fees for
qualifying or continuing the qualification of any Portfolios(s) (or classes thereof). The Fund
will, from time to time as specifically agreed between the parties, facilitate a wire transfer of
funds to ABD for the payment of the aforementioned filings fees promptly upon request by ABD. ABD
will request the funds necessary for the payment of the filing fees in advance of the date the fees
become due.
In performing its duties under this Agreement, ABD will act in accordance with the reasonable
instructions and directions of the Fund. Similarly, the Fund will reasonably cooperate with ABD to
enable ABD to perform its duties under this Agreement.
4. Compensation. The Fund will compensate ABD for the performance of its duties hereunder
in accordance with the fees and charges set forth on Schedule B.
The Fund agrees to pay all fees to ABD within thirty (30) days following its receipt of the
respective invoice.
5. Limitations of Liability and Indemnification. ABD shall not be responsible for and the
Fund shall indemnify, defend and hold ABD harmless from and against any and all claims, costs,
expenses (including reasonable attorneys’ fees), losses, damages, charges, payments and liabilities
of any sort or kind which may be asserted against ABD or for which ABD may be held to be liable (a
“Claim”) arising out of or attributable to any of the following: (a) any actions of ABD taken or
omitted in connection with this Agreement except to the extent such Claim resulted from a negligent
act or omission to act or willful misconduct by ABD in the performance of its duties hereunder; (b)
ABD’s reasonable reliance upon, or reasonable use of, information, data, records and documents
received by ABD from the Fund; (c) any instructions or requests from the Fund upon which ABD
chooses, in its discretion, to act; (d) the Fund’s refusal or failure to comply with the terms of
this Agreement, or (e) any Claim that relates to the Fund’s negligence or misconduct or the breach
of any representation or warranty of the Fund made herein. Without in any way limiting the
foregoing, ABD shall have no liability for failing to file on a timely basis any material to be
provided by the Fund that ABD has not received
on a timely basis from the Fund. ABD shall have no responsibility to review the accuracy or
adequacy of materials it receives from the Fund for filing or bear any liability arising out of the
timely filing of such materials.
The Fund shall not be responsible for and ABD shall indemnify, defend and hold the Fund harmless
from and against any and all claims, costs, expenses (including reasonable attorneys’ fee), losses,
damages, charges, payments and liabilities of any sort or kind which may be asserted against the
Fund of for which the Fund may be held to be liable (a “Claim”) arising out of or attributable to
any of the following: (a) ABD’s refusal or failure to comply with the terms of this Agreement; (b)
ABD’s negligent act or negligent omission to act or willful misconduct in performance of its duties
under this Agreement; or (c) ABD’s breach of any representation or warranty in this Agreement.
Each party shall have the duty to mitigate damages for which the other party may become
responsible.
In no event shall either party be liable hereunder for any consequential, special or indirect
losses or damages, whether or not the likelihood of such losses or damages was known by the party.
Without limiting the generality of the foregoing or any other provisions of this Agreement, ABD
shall not be liable for delays or failures to perform any of the services or errors or loss of data
occurring by reason of circumstances beyond its control, including, without limitation, acts of
civil or military authority, national emergencies, labor difficulties, fire, flood, catastrophe,
acts of God, insurrections, war, terrorist acts, riots or failure of the mails, transportation,
communication or power supply, functions or malfunctions of telecommunications services caused by
any of the above, or laws or regulations imposed after the date of this Agreement.
The Fund agrees and acknowledges that ABD has not prior to the date hereof assumed, and will not
assume, any obligations or liabilities arising out of the conduct of the Fund prior to the date
hereof. The Fund further agrees to indemnify, defend and hold ABD harmless against any losses,
claims, damages or liabilities to which ABD may become subject in connection with the conduct by
the Fund of such duties prior to the date hereof.
6. Representations and Warranties.
Each party represents and warrants that: (a) its execution, delivery and performance of this Agreement: (i) have been authorized by all necessary corporate action, (ii) do not violate the terms of any law, regulation, or court order to which such party is subject or the terms of any material agreement to which the party or any of its assets may be subject and (iii) are not subject to the consent or approval of any third party; (b) this Agreement is the valid and binding obligation of the representing party, enforceable against such party in accordance with its terms; and (c) such party is not subject to any pending or threatened litigation or governmental action which could interfere with such party’s performance of its obligations hereunder.
Each party represents and warrants that: (a) its execution, delivery and performance of this Agreement: (i) have been authorized by all necessary corporate action, (ii) do not violate the terms of any law, regulation, or court order to which such party is subject or the terms of any material agreement to which the party or any of its assets may be subject and (iii) are not subject to the consent or approval of any third party; (b) this Agreement is the valid and binding obligation of the representing party, enforceable against such party in accordance with its terms; and (c) such party is not subject to any pending or threatened litigation or governmental action which could interfere with such party’s performance of its obligations hereunder.
The Fund represents and warrants that, to the best of its knowledge, as of the date first set forth
above each Portfolio (and class thereof) is lawfully eligible for sale in each jurisdiction
indicated for such Portfolio (and class thereof) on the list furnished to ABD pursuant to Paragraph
2(a) of this Agreement.
THIS IS A SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ABD DISCLAIMS ALL
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, MADE TO THE FUND OR ANY OTHER PERSON, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE)
OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO SERVICES PROVIDED UNDER THIS AGREEMENT. ABD
DISCLAIMS ANY WARRANTY OF TITLE OR NON-INFRINGEMENT EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT.
7. Service to Other Investment Companies or Accounts. The Fund understands that the
persons employed by ABD to assist in the performance of ABD’s duties hereunder will not devote
their full time to such service and nothing contained herein shall be deemed to limit or restrict
the right of ABD or any affiliate of ABD to engage in and devote time and attention to other
businesses or to render services of whatever kind or nature.
8. Notices. Any notice or other instrument or materials authorized or required by this
Agreement to be given in writing to the Fund or to ABD shall be sufficiently given if addressed to
such party and received by it at its office set forth below or at such other place as it may from
time to time designate in writing.
To the Fund:
Manulife Financial
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
To ABD:
ABD
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Schrafft Center Annex
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Schrafft Center Annex
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9. Files. All files maintained by ABD with respect to the Fund shall be the property of
the Fund and shall be returned to the Fund at the termination of this Agreement or as mutually
agreeable to ABD and the Fund.
10. Duration and Termination. This Agreement shall continue hereafter until terminated by
the Fund or ABD on 60 days’ written notice to the other party; provided, however, that Sections 5,
7, 10, 12, 13 and 14 shall survive termination.
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In the event a termination, ABD will reasonably cooperate with the Fund; provided that, the Fund
shall promptly pay ABD for all expenses associated with movement of records and materials and
conversion thereof to a successor service provider.
11. Amendment to this Agreement. No provision of this Agreement may be changed, discharged
or terminated orally, but only by an instrument in writing signed by the party against which
enforcement of the change, discharge or termination is sought.
12. Governing Law. The laws of the state of Delaware, excluding the laws on conflicts of
laws, shall govern the interpretation, validity, and enforcement of this Agreement.
13. Confidentiality. Subject to the terms of this Section, each party agrees to maintain
all information about the other party that it acquires pursuant to this Agreement in confidence.
The obligations of confidentiality in this Section shall not apply to any information that: (i) is
already known to the receiving party at the time it is obtained; (ii) is or becomes publicly known
or available through no wrongful act of the receiving party; (iii) is rightfully received from a
third party who, to the best of the receiving party’s knowledge, is not under a duty of
confidentiality; (iv) is released by the protected party to a third party without restriction; (v)
is required to be disclosed by the receiving party pursuant to a requirement of a court order,
subpoena, governmental or regulatory agency, law, or binding discovery request in pending
litigation (provided the receiving party will provide the other party written notice of such
requirement, to the extent such notice is permitted); (vi) is included on a required basis in any
filing made with a federal or state agency or authority in the course of rendering services; (vii)
is relevant to any claim or cause of action between the parties or the defense of any claim or
cause of action asserted against the receiving party; or (viii) has been or is independently
developed or obtained by the receiving party without reference to the Confidential Information
provided by the protected party.
Each party agrees that if there is a breach or threatened breach of the provisions of this Section,
the other party will not have an adequate remedy in money or damages and accordingly will be
entitled to injunctive relief and/or specific performance; provided, however, no specification in
this Section of any particular remedy shall be construed as a waiver or prohibition of any other
remedies in the event of a breach or threatened breach of this Section.
14. Miscellaneous.
(a) Entire Agreement. This Agreement (including all schedules) constitutes the entire
agreement between the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous proposals, agreements, contracts, representations, and understandings, whether
written or oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement shall be valid
unless in writing signed (by countersigning or otherwise) by each party.
(b) Severability. The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or provision is illegal or invalid
for any reason, the illegality or invalidity shall not affect the validity of the remainder of this
Agreement. In such case, the parties shall in good faith modify or substitute such provision
consistent with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement, including the limitations on
liability and exclusion of damages, shall remain fully effective.
(b) Successors/Assigns. This Agreement, its benefits and obligations shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned or otherwise transferred by either party hereto,
without the prior written consent of the other party, which consent shall not be unreasonably
withheld; provided, however, that ABD may, in its sole discretion, assign all its right, title and
interest in, and delegate its obligations under, this Agreement to an affiliate, parent or
subsidiary, or to the purchaser of substantially all of its business. ABD may, in its sole
discretion, engage subcontractors to perform any of the obligations contained in this Agreement to
be performed by ABD.
(c) Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original; but such counterparts shall, together, constitute only one
instrument.
(d) Captions. The captions of this Agreement are included for convenience of reference
only and in no way define or limit any of the provisions hereof or otherwise affect their
construction or effect.
(e) Further Actions. Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
(f) No Third Party Rights. Nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person or entity other than the parties hereto and their
respective successors and assigns, any rights or remedies under or by reason of this Agreement.
(g) Facsimile Signatures. The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their officers
designated below as of the date and year first above written.
Manufacturers Investment Trust
By:
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Name:
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Title:
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Vice President and Chief Financial Officer | |||
| Automated Business Development Corporation | ||||
By:
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Name:
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Title:
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Presiden, CEO | |||
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CLEARSKY
STATE FILING SERVICES AGREEMENT
STATE FILING SERVICES AGREEMENT
SCHEDULE B
FEES
$67.00 per state notice filing (“permit”), with a minimum annual fee of $62,500.00, billed monthly
in arrears.
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