TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
XXXXXX XXXXXXX CLOSED END FUNDS
AND
COMPUTERSHARE TRUST COMPANY, N.A.
AND
COMPUTERSHARE SHAREHOLDER SERVICES, INC.
TABLE OF CONTENTS
Page
Section 1. Certain Definitions
1
Section 2. Appointment of Agent
1
2.1 Appointments
1
2.2 Documents
2
2.3 Records
2
2.4 Shares
2
2.5 Customer's Agent
3
2.6 Certificates
3
Section 3. Standard Services
3
3.1 Certificate Replacement
3
3.2 Customary Services
3
3.3 Compliance with Laws
3
3.4 Unclaimed Property and Lost Shareholders
3
3.5 Compliance with Office of Foreign Asset Control
("OFAC") Regulation
4
Section 4. Dividend Disbursing and Dividend Reinvestment
Plan Services
4
4.1 Declaration of Dividends
4
4.2 Stop Payments
4
4.3 Tax Withholding
4
4.4 Dividend Reinvestment
4
Section 5. Optional Services and Standards
4
5.1 Optional Services
4
5.2 Shareholder Internet Services
5
Section 6. Fees and Expenses
5
6.1 Fee and Service Schedules
5
6.2 Out-of-Pocket Expenses
5
6.3 Conversion Funds
5
6.4 Invoices
5
6.5 Late Payments
5
6.6 Overtime Charges
6
6.7 Bank Accounts
6
Section 7. Representations and Warranties of Transfer Agent
6
7.1 Governance
6
7.2 Compliance
6
Section 8. Computer Services
6
i
TABLE OF CONTENTS
(continued)
Page
8.1 Transfer Agent
6
8.2 Procedures for Access
7
8.3 Proprietary Information
7
8.4 Content
7
8.5 Transactions
8
Section 9. Representations and Warranties of Customer
8
9.1 Organizations
8
9.2 Governance
8
9.3 Securities Act of 1933
8
Section 10. Indemnification/Limitation of Liability
8
10.1 Standard of Care
8
10.2 Customer Indemnity
8
10.3 Instructions
9
10.4 Transfer Agent Indemnification/Limitation of Liability
9
10.5 Notice
9
Section 11. Damages
10
Section 12. Responsibilities of the Transfer Agent
10
Section 13. Covenants of the Customer and Transfer Agent
10
13.1 Notification
10
13.2 Records
10
Section 14. Confidentiality
10
14.1 Covenant
10
14.2 Request for Records
11
Section 15. Term and Termination
11
15.1 Term
11
15.2 Early Termination
11
15.3 Expiration of Term
11
15.4 Termination
11
15.5 Records
12
15.6 Privacy Act Information Definition
12
Section 16. Assignment
12
16.1 Consent
12
16.2 Affiliates
12
16.3 Sub-contractors
13
ii
TABLE OF CONTENTS
(continued)
Page
Section 17. Unaffiliated Third Parties.
13
Section 18. Miscellaneous.
13
18.1 Notices
13
18.2 Successors
13
18.3 Amendments
13
18.4 Severability
13
18.5 Governing Law
14
18.6 Force Majeure
14
18.7 Third Party Beneficiaries
14
18.8 Survival
14
18.9 Priorities
14
18.10 Merger of Agreement
14
18.11 Counterparts
14
iii
AGREEMENT made as of the 26th day of September 2006,
by and among certain Xxxxxx Xxxxxxx Closed End Funds as set forth in
Appendix A, as may be amended from time to time to add and delete
funds, having their principal office and place of business at Harborside
Financial Xxxxxx, Xxxxx XX, Xxxxxx Xxxx, XX00000 (collectively, the
"Customers", or individually, the "Customer"), and Computershare
Trust Company, N.A. and Computershare Shareholder
Services, Inc.(collectively, the "Transfer Agent").
WHEREAS, the Customer desires to appoint the Transfer
Agent as sole transfer agent, registrar and administrator of its dividend
reinvestment plan or direct stock purchase plan, and CSS as dividend
disbursing agent and processor of all payments received or made by
Customer under this Agreement.
WHEREAS, the Trust Company and CSS desire to accept
such respective appointments and perform the services related to such
appointments;
NOW THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
Section 1. Certain Definitions.
(a) "Account" or "Accounts" shall mean the
account of each Shareholder which account shall hold any full or
fractional shares of stock held by such Shareholder and/or outstanding
funds or tax reporting to be done.
(b) "Agreement" shall mean this agreement and
any and all exhibits or schedules attached hereto and any and all
amendments or modifications, which may from time to time be
executed.
(c) "Closed Account" shall mean an account
with a zero share balance, no outstanding funds or no reportable tax
information.
(d) "Share" shall mean Customer's common
stock, par value $0.01 per share and Customer's preferred stock, par
value per share authorized by the Customer's Articles of Incorporation,
and other classes of Customer's stock to be designated by the Customer
in writing and for which the Transfer Agent agrees to service under this
Agreement.
(e) "Shareholder" shall mean the holder of
record of Shares.
(f) "Shareholder Data" shall mean all
Shareholder, Customer and proxy information maintained on the
records database of the Transfer Agent.
(g) "Shareholder Internet Services" shall have
the meaning set forth in Section 5.2.
(h) "Dividend Reinvestment Plan" and "Direct
Stock Purchase Plan" shall mean the services as set forth in Section 4
and in the Fee and Service Schedule.
Section 2. Appointment of Agent.
2.1 Appointments. The Customer hereby appoints the
Transfer Agent to act as sole transfer agent and registrar for all Shares
in accordance with the terms and conditions hereof and as administrator
of Plans and appoints CSS as dividend disbursing agent and processor
of all payments received or made by or on behalf of the Customer
under this Agreement, and the Transfer Agent and CSS accept the
appointments. Customer has provided or shall provide Transfer Agent
with certified copies of resolutions dated the date hereof appointing the
Trust Company as Transfer Agent.
2.2 Documents. In connection with the appointing of
Transfer Agent as the transfer agent and registrar for the Customer, the
Customer has provided or will provide the attached appointment
documents to the Transfer Agent, and Customer corporate authority
documents.
(a) Copies of Registration Statements and
amendments thereto, filed with the Securities and Exchange
Commission for initial public offerings;
(b) Specimens of all forms of outstanding stock
certificates, in forms approved by the Board of Directors of the
Customer, with a certificate of the Secretary of the Customer as to such
approval;
(c) Specimens of the Signatures of the officers
of the Customer authorized to sign stock certificates and individuals
authorized to sign written instructions and requests; and
(d) An opinion of counsel for the Customer
addressed to both the Trust Company and CSS with respect to:
(i) The Customer's organization and
existence under the laws of its state of organization;
(ii) The status of all Shares of the
Customer covered by the appointment under the Securities Act of 1933,
as amended, and any other applicable federal or state statute; and
(iii) That all issued Shares are, and all
unissued Shares will be, when issued, validly issued, fully paid and
non-assessable.
(e) A copy of the Articles of Incorporation and
By-Laws of the Customer;
(f) Copies of all material amendments to its
Articles of Incorporation or By-Laws made after the date of this
Agreement, promptly after such amendments are made; and
(g) A certificate of the Customer as to the
Shares authorized, issued and outstanding, as well as a description of
all reserves of unissued Shares relating to the exercise of options.
2.3 Records. Transfer Agent may adopt as part of its
records all lists of holders, records of Customer's stock, books,
documents and records which have been employed by any former agent
of Customer for the maintenance of the ledgers for such shares,
provided such ledger is certified by an officer of Customer or the prior
transfer agent to be true, authentic and complete. The Transfer Agent
shall keep records relating to the services to be performed hereunder, in
the form and manner as it may deem advisable. The Transfer Agent
agrees that all such records prepared or maintained by it relating to the
services performed hereunder are the property of the Customer and will
be preserved, maintained and made available in accordance with the
requirements of law, and will be surrendered promptly to the Customer
on and in accordance with its request.
2.4 Shares. Customer shall, if applicable, inform
Transfer Agent as to (i) the existence or termination of any restrictions
on the transfer of Shares and in the application to or removal from any
certificate of stock of any legend restricting the transfer of such Shares
or the substitution for such certificate of a certificate without such
legend, (ii) any authorized but unissued Shares reserved for
2
specific purposes, (iii) any outstanding Shares which are exchangeable
for Shares and the basis for exchange, (iv) reserved Shares subject to
option and the details of such reservation and (v) special instructions
regarding dividends and information of foreign holders.
2.5 Customer's Agent. Transfer Agent represents that it
is engaged in an independent business and will perform its obligations
under this Agreement as an agent of Customer.
2.6 Certificates. Customer shall deliver to Transfer
Agent an appropriate supply of stock certificates, which certificates
shall provide a signature panel for use by an officer of or authorized
xxxxxx for Transfer Agent to sign as transfer agent and registrar, and
which shall state that such certificates are only valid after being
countersigned and registered.
Section 3. Standard Services.
3.1 Certificate Replacement. The Transfer Agent will
perform the following services:
(a) issue and record the appropriate number of
Shares as authorized and hold such Shares in the appropriate
Shareholder account;
(b) effect transfers of Shares by the registered
owners thereof upon receipt of appropriate documentation;
(c) act as agent for Shareholders pursuant to the
Dividend Reinvestment Plan and other investment programs as
amended from time to time in accordance with the terms of the
agreements relating thereto to which the Transfer Agent is or will be a
party; and
(d) The Transfer Agent will issue replacement
certificates for those certificates alleged to have been lost stolen or
destroyed upon receipt by the Transfer Agent of an open penalty surety
bond satisfactory to it and holding it and the Customer harmless, absent
notice to the Customer and the Transfer Agent that such certificates
have been acquired by a bona fide purchaser. The Transfer Agent, at
its option, may issue replacement certificates in place of mutilated
stock certificates upon presentation thereof without such indemnity.
Further, the Transfer Agent may at its sole option accept
indemnification from a Customer to issue replacement certificates for
those certificates alleged to have been lost, stolen or destroyed in lieu
of an open penalty bond.
3.2 Customary Services. The Transfer Agent shall
perform all the customary services of a transfer agent, dividend
disbursing agent, agent of dividend reinvestment plan, cash purchase
plan and other investment programs as described in Section 3.1
consistent with those requirements in effect as of the date of this
Agreement and in compliance with applicable laws as set forth in
Section 3.3; provided, however, the Transfer Agent shall not be
required to take shareholder telephone calls or respond to written
shareholder inquiries. All such shareholder inquiries in writing or by
telephone shall be handled by Customer. Any correspondence or
telephone inquiries from shareholders received by the Transfer Agent
will be forwarded to Customers. The detailed services and definition,
frequency, limitations and associated costs (if any) are set out in the
attached fee and service schedule ("Fee and Service Schedule").
3.3 Compliance with Laws. The Trust Company and
CSS are obligated to and agree to comply with all applicable federal,
state and local laws and regulations, codes, order and government
rules in the performance of their duties under this Agreement.
3.4 Unclaimed Property and Lost Shareholders. The
Transfer Agent shall report unclaimed property to each state in
compliance with state law and Section 17Ad-17 of the Exchange Act of
1934 as
3
amended (the "Exchange Act") for lost shareholders. If the Customers
are not in compliance with applicable state laws, there will be no
charge for the first two years for this service; provided that after the
first two years, the Transfer Agent will charge Customers its then
standard fee plus any out-of-pocket expenses.
3.5 Compliance with Office of Foreign Asset Control
("OFAC") Regulation. The Transfer Agent shall ensure compliance
with OFAC laws.
Section 4. Dividend Disbursing and Dividend Reinvestment
Plan Services.
4.1 Declaration of Dividends. Upon receipt of a written
notice from the President, any Vice President, Secretary, Assistant
Secretary, Treasurer or Assistant Treasurer of Customer declaring the
payment of a dividend, CSS shall disburse such dividend payments
provided that in advance of such payment, Customer furnishes CSS
with sufficient funds. The payment of such funds to CSS for the
purpose of being available for the payment of dividend checks from
time to time is not intended by Customer to confer any rights in such
funds on Customer's Shareholders whether in trust or in contract or
otherwise.
4.2 Stop Payments. Customer hereby authorizes CSS to
stop payment of checks issued in payment of dividends, but not
presented for payment, when the payees thereof allege either that they
have not received the checks or that such checks have been mislaid,
lost, stolen, destroyed or, through no fault of theirs, are otherwise
beyond their control and cannot be produced by them for presentation
and collection, and CSS shall issue and deliver duplicate checks in
replacement thereof, and Customer shall indemnify Transfer Agent
against any loss or damage resulting from reissuance of the checks.
4.3 Tax Withholding. CSS is hereby authorized to
deduct from all dividends declared by Customer and disbursed by CSS,
as dividend disbursing agent, the tax required to be withheld pursuant
to Sections 1441, 1442 and 3406 of the Internal Revenue Code of 1986,
as amended, or by any Federal or State statutes subsequently enacted,
and to make the necessary return and payment of such tax in
connection therewith.
4.4 Dividend Reinvestment. Receive all payments made
to the Customer or the Transfer Agent under the Dividend
Reinvestment Plan and make all payments required to be made under
such plans, including all payments required to be made to the
Customer.
Section 5. Optional Services and Standards.
5.1 Optional Services. To the extent that a Customer
elects to engage the Transfer Agent to provide the services listed below
the Customers shall engage the transfer Agent to provide such services
upon terms and fees to be agreed upon by the parties:
(a) Employee Plan Services;
(b) Employee Stock Purchase Plan Programs;
and
(c) Corporate actions (including inter alia, odd
lot buy backs, exchanges, mergers, redemptions, subscriptions, capital
reorganization, coordination of post-merger services and special
meetings.
4
In the event that the Customer Vendor provides the above services, the
Customer shall pay the Transfer Agent its standard fees and expenses
charged by the Transfer Agent for services rendered to support the
above services rendered by the Customer Vendor for the benefit of the
Customer.
5.2 Shareholder Internet Services. The Transfer Agent
shall provide internet access to Customer's Shareholders through
Transfer Agent's web site,Xxxxxxxxxxxxx.xxx ("Shareholder Internet
Services"), pursuant to its established procedures ("Security
Procedures") and fees, to allow Shareholders to view their account
information and perform certain on-line transaction request capabilities.
The Shareholder Internet Services are provided "as is," on an "as
available" basis, and Transfer Agent hereby specifically disclaims any
and all representations or warranties, express or implied, regarding such
services provided by Transfer Agent hereunder, including any implied
warranty of merchantability or fitness for a particular purpose and
implied warranties arising from course of dealing or course of
performance.
Section 6. Fees and Expenses.
6.1 Fee and Service Schedules. Customer agrees to pay
Transfer Agent the fees for Services performed pursuant to this
Agreement as set forth in the Fee and Service Schedule attached hereto,
for the initial term of the Agreement (the "Initial Term"). Sixty (60)
days before the expiration of the Initial Term or a Renewal Term, the
parties to this Agreement will agree upon a Fee Schedule for the
upcoming Renewal Term. If no new fee schedule is agreed upon, the
fees will increase as set forth in the Term Section of the Fee and
Service Schedule.
6.2 Out-of-Pocket Expenses. In addition to the fees paid
under Section 6.1 above, the Customer agrees to reimburse the Transfer
Agent for out-of-pocket expenses, including but not limited to postage,
Transfer Agent administrative costs, forms, telephone, microfilm,
microfiche, taxes, records storage, exchange and broker fees, or
advances incurred by the Transfer Agent for the items setout in the Fee
and Service Schedule attached hereto. In addition, any other expenses
incurred by the Transfer Agent at the request or with the consent of the
Customer, will be reimbursed by the Customer.
6.3 Conversion Funds. Conversion funding required by
any out of proof condition caused by a prior agents' services shall be
advanced to Transfer Agent prior to the commencement of services.
6.4 Invoices. The Customer agrees to pay all fees and
reimbursable expenses within 30 days of the date of the respective
billing notice, except for any fees or expenses that are subject to good
faith dispute. In the event of such a dispute, the Customer may only
withhold that portion of the fee or expense subject to the good faith
dispute. The Customer shall settle such disputed amounts within
five (5) business days of the day on which the parties agree on the
amount to be paid by payment of the agreed amount. If no agreement
is reached, then such disputed amounts shall be settled as may be
required by law or legal process.
6.5 Late Payments.
(a) If any undisputed amount in an invoice of
the Transfer Agent (for fees or reimbursable expenses) is not paid
within 30 days after receipt of such invoice, the Customer shall pay the
Transfer Agent interest thereon (from the due date to the date of
payment) at a per annum rate equal to one percent (1.0%) plus the
Prime Rate (that is, the base rate on corporate loans posted by large
domestic Transfer Agent) published by the New York edition of The
Wall Street Journal (or, in the event such rate is not so published, a
reasonably equivalent published rate selected by Customer on the first
day of publication during the month when such amount was due.
Notwithstanding any other provision hereof,
5
such interest rate shall be no greater than the greater/lesser rate
permitted under applicable provisions of New Jersey law.
(b) The failure by Customer to pay an invoice
within 90 days after receipt of such invoice or the failure by the
Customer to timely pay two consecutive invoices shall constitute a
material breach pursuant to Section 15.3(a) below. The Transfer Agent
may terminate this Agreement for such material breach immediately
and shall not be obligated to provide the Customer with 30 days to cure
such breach.
6.6 Overtime Charges. Overtime charges will be
assessed in the event of a late delivery to the Transfer Agent of
Customer material for mailings to Shareholders, unless the mail date is
rescheduled. Such material includes, but is not limited to, proxy
statements, quarterly and annual reports and news releases.
6.7 Bank Accounts. The Customer acknowledges that
the bank accounts maintained by CSS in connection with the Services
will be in its name and that CSS may receive investment earnings in
connection with the investment at CSS's risk and for its benefit of
funds held in those accounts from time to time.
Section 7. Representations and Warranties of Transfer Agent.
7.1 Governance. The Trust Company is a federally
chartered limited purpose national bank duly organized under the laws
of the United States and CSS is a corporation validly existing and in
good standing under the laws of the State of Delaware and each has full
corporate power, authority and legal right to execute, deliver and
perform this Agreement. The execution, delivery and performance of
this Agreement by Transfer Agent has been duly authorized by all
necessary corporate action and constitutes the legal valid and binding
obligation of Transfer Agent enforceable against Transfer Agent in
accordance with its terms.
7.2 Compliance. The execution, delivery and
performance of the Agreement by Transfer Agent will not violate,
conflict with or result in the breach of any material term, condition or
provision of, or require the consent of any other party to, (i) any
existing law, ordinance, or governmental rule or regulation to which
Transfer Agent is subject, (ii) any judgment, order, writ, injunction,
decree or award of any court, arbitrator or governmental or regulatory
official, body or authority which is applicable to Transfer Agent,
(iii) the incorporation documents or by-laws of, or any material
agreement to which Transfer Agent is a party.
7.3 It is duly qualified to carry on its business in The
Commonwealth of Massachusetts.
7.4 It has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
7.5 It will comply with all applicable sections of the
Exchange Act necessary to enter into and perform this Agreement.
7.6 It has and will continue to have a commercially
reasonable disaster recovery plan.
Section 8. Computer Services.
8.1 Transfer Agent. Has developed a data access service
that enables the Customer to access the Customer's Shareholder records
maintained on the Transfer Agent's computer system through the
6
Internet or remote access, as the case maybe (the "Data Access
Service"). The Customer wishes to use such Data Access Service
subject to the terms and conditions set forth herein.
8.2 Procedures for Access. Access is accomplished by
entering a unique Customer identification ("Customer ID(s)") and
passwords ("Password(s)")assigned to the Customer by Transfer Agent.
Each Customer ID and Password assigned to the Customer is for use
only by the Customer. The Customer shall establish and maintain
reasonable security and control over each Customer ID. After Transfer
Agent assigns the Customer a Password, the Customer shall change the
Password. The Password is within the Customer's exclusive control
after the necessary change. Customer agrees to notify Transfer Agent
immediately if any employee of Customer granted access to the Data
Access Service leaves the employ of the Customer, in order to enable
Transfer Agent to terminate such employee's access.
8.3 Proprietary Information. The Customer
acknowledges that the databases, computer programs, screen formats,
report formats, interactive design techniques, and documentation
manuals furnished to the Customer by Transfer Agent as part of the
Data Access Service to access Shareholder Data maintained by the
Transfer Agent on data bases under the control and ownership of the
Transfer Agent or other third party constitute copyrighted, trade secret,
or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other third
party. In no event shall Proprietary Information be deemed
Shareholder Data. The Customer agrees to treat all Proprietary
Information as proprietary to the Transfer Agent and further agrees that
it shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without limiting
the foregoing, the Customer agrees for itself and its employees and
agents:
(a) to refrain from copying or duplicating in any
way the Proprietary Information, other than to print out pages reflecting
Shareholder Data to provide to Shareholders or for Customer's internal
use;
(b) to refrain from obtaining unauthorized
access to any portion of the Proprietary Information, and if such access
is inadvertently obtained, to inform Transfer Agent in a timely manner
of such fact and dispose of such information in accordance with
Transfer Agent's instructions;
(c) to refrain from causing or allowing the
Proprietary Information from being retransmitted to any other computer
facility or other location, except with the prior written consent of the
Transfer Agent;
(d) that the Customer shall have access only to
those authorized transactions agreed upon by the parties; and
(e) to honor all reasonable written requests
made by Transfer Agent to protect at Transfer Agent's expense the
rights of Transfer Agent Proprietary Information at common law, under
federal copyright law and under other federal or state law.
8.4 Content. If the Customer notifies the Transfer Agent
that any part of the Data Access Service does not operate in material
compliance with the user documentation provided by the Transfer
Agent for such service, the Transfer Agent shall endeavor in a timely
manner to correct such failure. Organizations from which the Transfer
Agent may obtain certain data included in the services are solely
responsible for the contents of such data and the Customer agrees to
make no claim against the Transfer Agent arising out of the contents of
such third party data, including, but not limited to, the accuracy thereof.
7
8.5 Transactions. If the transactions available to the
Customer include the ability to originate electronic instructions to the
Transfer Agent in order to (i) effect the transfer or movement of Shares
or direct CSS to transfer cash or (ii) transmit Shareholder information
or other information, then in such event the Transfer Agent shall be
entitled to rely on the validity and authenticity of such instructions
without undertaking any further inquiry as long as such instructions are
undertaken in conformity with security procedures established by the
Transfer Agent from time to time.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 8.
Section 9. Representations and Warranties of Customer.
The Customer represents and warrants to the Transfer Agent
that:
9.1 Organizations. It is a corporation duly organized and
existing and in good standing under the laws of Maryland;
9.2 Governance. It is empowered under applicable laws
and by its Articles of Incorporation and By-Laws to enter into and
perform this Agreement. All corporate proceedings required by said
Articles of Incorporation, By-Laws and applicable law have been taken
to authorize it to enter into and perform this Agreement; and
9.3 Securities Act of 1933. A registration statement
under the Securities Act of 1933, as amended (the "1933 Act") has
been filed and is currently effective, or will be effective prior to the sale
of any Shares, and will remain so effective, and all appropriate state
securities law filings have been made with respect to all the Shares of
the Customer being offered for sale except for any Shares which are
offered in a transaction or series of transactions which are exempt from
the registration requirements of the 1933 Act and state securities laws;
information to the contrary will result in immediate notification to the
Transfer Agent.
Section 10. Indemnification/Limitation of Liability.
10.1 Standard of Care. The Transfer Agent shall at all
times act in good faith and agrees to use its best efforts within
reasonable time limits to insure the accuracy of all services performed
under this Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors unless said errors are caused by
its negligence, bad faith or willful misconduct or that of its employees
as set forth and subject to the limitations set forth in Section 10.4
below.
10.2 Customer Indemnity. The Transfer Agent shall not
be responsible for, and the Customer shall indemnify and hold the
Transfer Agent harmless from and against, any and all losses, claims,
damages, costs, charges, counsel fees and expenses, payments,
expenses and liability arising out of or attributable to:
(a) all actions of the Transfer Agent or its
agents or subcontractors required to be taken pursuant to this
Agreement provided such actions are taken in good faith and without
negligence or willful misconduct;
(b) the Customer's lack of good faith,
negligence or willful misconduct or the breach of any representation or
warranty of the Customer hereunder;
8
(c) the reliance or use by the Transfer Agent or
its agents or subcontractors of information, records and documents
which have been prepared and/or maintained by the Customer or any
other person or firm on behalf of the Customer. Such other person or
firm shall include any former transfer agent or former registrar, or co-
transfer agent or co-registrar or any current registrar where the Transfer
Agent is not the current registrar;
(d) the reliance or use by the Transfer Agent or
its agents or subcontractors of any paper or document reasonably
believed to be genuine and to have been signed by the proper person or
persons including Shareholders or electronic instruction from
Shareholders submitted through the Shareholder Internet Services or
other electronic means pursuant to security procedures established by
the Transfer Agent; and
(e) the negotiations and processing of all
checks, including checks made payable to prospective or existing
shareholders which are tendered to the Transfer Agent for the purchase
of Shares (commonly known as "third party checks").
10.3 Instructions. At any time the Transfer Agent may
apply to any officer of the Customer for instruction, and may consult
with legal counsel for the Transfer Agent or the Customer with respect
to any matter arising in connection with the services to be performed by
the Transfer Agent under this Agreement, and Transfer Agent and its
agents and subcontractors shall not be liable and shall be indemnified
by the Customer for any action taken or omitted by it in reliance upon
such instructions or upon the advice or opinion of such counsel. The
Transfer Agent, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document 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 the Transfer Agent or its agents or subcontractors by
telephone, in person, machine readable input, telex, CRT data entry or
similar means authorized by the Customer, and shall not be held to
have notice of any change of authority of any person, until receipt of
written notice thereof from the Customer. The Transfer Agent, its
agents and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to bear the
proper manual or facsimile signatures of officers of the Customer, and
the proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
10.4 Transfer Agent Indemnification/Limitation of
Liability. Transfer Agent shall be responsible for and shall indemnify
and hold the Customer harmless from and against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability
arising out of or attributable to Transfer Agent's refusal or failure to
comply with the terms of this Agreement, or which arise out of
Transfer Agent's negligence or willful misconduct or which arise out of
the breach of any representation or warranty of Transfer Agent
hereunder, for which Transfer Agent is not entitled to indemnification
under this Agreement; provided, however, that Transfer Agent's
aggregate liability during any term of this Agreement with respect to,
arising from, or arising in connection with this Agreement, or from all
services provided or omitted to be provided under this Agreement,
whether in contract, or in tort, or otherwise, is limited to, and shall not
exceed $1,000,000.00 (one million dollars).
10.5 Notice. In order that the indemnification provisions
contained in this Section shall apply, upon the assertion of a claim for
which one 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 indemnifying party shall
have the option to participate with the indemnified party in the defense
of such claim or to defend against said claim in its own name or the
name of the indemnified party. The indemnified party shall in no case
confess any claim or make any compromise in any case in which the
indemnifying party may be required to indemnify it except with the
indemnifying party's prior written consent.
9
Section 11. Damages.
No party shall be liable for any incidental, indirect, special or
consequential damages of any nature whatsoever, including, but not
limited to, loss of anticipated profits, occasioned by a breach of any
provision of this Agreement even if apprised of the possibility of such
damages.
Section 12. Responsibilities of the Transfer Agent.
12.1 The Customer agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts, instruments
and assurances as may reasonably be required by the Transfer Agent
for the carrying out, or performing by the Transfer Agent of the
provisions of this Agreement.
12.2 No provision of this Agreement shall require the
Transfer Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or in
the exercise of its rights if it shall believe in good faith that repayment
of such funds or adequate indemnification against such risk or liability
is not reasonably assured to it.
Section 13. Covenants of the Customer and Transfer Agent.
13.1 Notification. Customer shall notify Transfer Agent
as soon as possible in advance of any stock split, stock dividend or
similar event which may affect the Shares, and any bankruptcy,
insolvency, moratorium or other proceeding regarding Customer
affecting the enforcement of creditors' rights. Notwithstanding any
other provision of the Agreement to the contrary, Transfer Agent will
have no obligation to perform any Services under the Agreement
subsequent to the commencement of any bankruptcy, insolvency,
moratorium or other proceeding regarding Customer affecting the
enforcement of creditor' rights unless Transfer Agent receives
assurance satisfactory to it that it will receive full payment for such
services.
13.2 Records. The Transfer Agent shall keep records
relating to the services to be performed hereunder, in the form and
manner as it may deem advisable. The Transfer Agent agrees that all
such records prepared or maintained by it relating to the services
performed hereunder are the property of the Customers and will be
preserved, maintained and made available in accordance with the
requirements of law, and will be surrendered promptly to the
Customers on and in accordance with its request, to the extent such
surrender does not conflict with, or is not prohibited by, applicable
laws.
Section 14. Confidentiality.
14.1 Covenant. The Transfer Agent and the Customer
agree that they will not, at any time during the term of this Agreement
or after its termination, reveal, divulge, or make known to any person,
firm, corporation or other business organization, any customers' lists,
trade secrets, cost figures and projections, profit figures and
projections, or any other secret or confidential information whatsoever,
whether of the Transfer Agent or of the Customer, used or gained by
the Transfer Agent or the Customer during performance under this
Agreement. The Customer and the Transfer Agent further covenant
and agree to retain all such knowledge and information acquired during
and after the term oft his Agreement respecting such lists, trade secrets,
or any secret or confidential information whatsoever in trust for the sole
benefit of the Transfer Agent or the Customer and their successors and
assigns. The above prohibition of disclosure shall not apply to the
extent that the Transfer Agent must disclose such data to its sub-
contractor or agent for purposes of providing services under this
Agreement.
10
14.2 Request for Records. In the event that any requests
or demands are made for the inspection of the Shareholder records of
the Customer, other than request for records of Shareholders pursuant
to standard subpoenas from state or federal government authorities
(e.g., in divorce and criminal actions), the Transfer Agent will endeavor
to notify the Customer and to secure instructions from an authorized
officer of the Customer as to such inspection. The Transfer Agent
expressly reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by counsel that it may be
held liable for the failure to exhibit the Shareholder records to such
person or if required bylaw or court order.
Section 15. Term and Termination.
15.1 Term. The Initial Term of this Agreement shall be
three (3) years from the date first stated above unless terminated
pursuant to the provisions of this Section 15. Unless a terminating
party gives written notice to the other party sixty (60) days before the
expiration of the Initial Term this Agreement will renew automatically
from year to year ("Renewal Term"). If, after the Initial Term, any
party to this Agreement may terminate this Agreement by providing
notice to the other parties 60 days prior to the anticipated termination
date. Sixty (60) days prior to the Initial Term or a Renewal Term, the
parties to this Agreement will mutually agree upon a Fee Schedule for
the upcoming Renewal Term.
15.2 Early Termination. Notwithstanding anything
contained in this Agreement to the contrary, should Customer desire to
move any of its services provided by the Transfer Agent hereunder to a
successor service provider prior to the expiration of the then current
Initial or Renewal Term, or without the required notice period, the
Transfer Agent shall make a good faith effort to facilitate the
conversion on such prior date, however, there can be no guarantee that
the Transfer Agent will be able to facilitate a conversion of services on
such prior date. In connection with the foregoing, should services be
converted to a successor service provider, or if the Customer is
liquidated or its assets merged or purchased or the like with another
entity which does not utilize the services of the Transfer Agent, the fees
payable to the Transfer Agent shall be calculated as if the services had
remained with the Transfer Agent until the expiration of the then
current Initial or Renewal Term and calculated at existing rates on the
date notice of termination was given to the Transfer Agent, and the
payment of fees to the Transfer Agent as set forth herein shall be
accelerated to the date prior to the conversion or termination of
services. Section 15.2 shall not apply if the Transfer Agent is
terminated for cause under Section 15.4(a) of this Agreement. Once
this Agreement is terminated, any and all other services provided by
Transfer Agent for the Customer will be deemed terminated on said
date.
15.3 Expiration of Term. After the expiration of the Initial
Term or Renewal Term whichever currently is in effect, should either
party exercise its right to terminate, all reasonable out-of-pocket
expenses associated with the movement of records and material will be
borne by the Customer. Additionally, the Transfer Agent will charge a
de-conversion/transition fee in an amount equal to 10% of the
aggregate fees incurred by Customer during the immediately preceding
twelve (12) month period, provided, however, such fee shall in no event
be less than one thousand ($1,000.00) dollars.
15.4 Termination.
This Agreement may be terminated in accordance with the
following:
(a) At any time by any party upon a material
breach of a representation, covenant or term of this Agreement by any
other unaffiliated party which is not cured within a period not to exceed
thirty (30) days after the date of written notice thereof by one of the
other parties; and
11
(b) By Transfer Agent, at any time, in the event
that during the term of this Agreement, a bankruptcy or insolvency
proceeding is filed by or against Customer or a trustee or receiver is
appointed for any substantial part of Customer's property (and in a case
of involuntary bankruptcy, insolvency or receivership proceeding, there
is entered an order for relief, or order appointing a receiver or some
similar order or decree and Customer does not succeed in having such
order lifted or stayed within sixty (60) days from the date of its entry),
or Customer makes an assignment of all or substantially all of its
property for the benefit of creditors or ceases to conduct its operations
in the normal course or business.
15.5 Records. Upon receipt of written notice of
termination, the parties will use commercially practicable efforts to
effect an orderly termination of this Agreement. Without limiting the
foregoing, Transfer Agent will deliver promptly to Customers, in
machine readable form on media as reasonably requested by
Customers, all stockholder and other records, files and data supplied to
or compiled by Transfer Agent on behalf of Customers.
15.6 Privacy Act Information Definition.
(a) Definition. Transfer Agent may receive
information from Customer or may come into possession of
information that Customer is required to protect under Title V of the
Xxxxxx-Xxxxx-Xxxxxx Act of 1999 ("Privacy Act") in connection with
providing services to Customer under this Agreement. For purposes of
this Agreement, "Privacy Act Information" shall mean the following
types of information and other information of a similar nature (whether
or not reduced to writing): Shareholder Information, non public
personal information including" personally identifiable financial
information" whether provided directly by the Shareholder in
connection with obtaining a service or obtained from other sources,
Shareholder financial information, Shareholder names and other
information related to Shareholders.
(b) Ownership. All notes, data, reference,
materials, memoranda, documentation and records, in any way
incorporating or reflecting any of the Privacy Act Information shall
belong exclusively at all times to Customer. Transfer Agent agrees to
turn over shareholder records to Customer upon request or upon
termination of this Agreement, subject to applicable law.
(c) Confidentiality. Transfer Agent agrees
during the term of this Agreement and thereafter to hold in confidence
and not to directly or indirectly reveal, report, publish, disclose or
transfer any of the Privacy Act Information to any person or entity, or
utilize any of the Privacy Act Information for any purpose, except in
connection with providing services hereunder or as required by law;
provided, however, Transfer Agent may disclose such Privacy Act
Information to its third-party vendors for purposes of performing
services for Customer provided such third party vendors are
contractually bound to keep such information confidential.
Section 16. Assignment.
16.1 Consent. Except as otherwise provided in
Section 16.2 below, neither this Agreement nor any rights or
obligations hereunder may be assigned or delegated by either party
without the written consent of the other.
16.2 Affiliates. The Transfer Agent may, without further
consent of the Customer assign its rights and obligations hereunto to
any affiliated transfer agent registered under Section 17A(c)(2) of the
Exchange Act. The Transfer Agent may not assign its rights or
obligations to unaffiliated third parties without the written consent of
the Customer.
12
16.3 Sub-contractors. Transfer Agent may, without
further consent on the part of Customer, subcontract with other
subcontractors for telephone and mailing services as may be required
from time to time; provided, however, that the Transfer Agent shall be
as fully responsible to the Customer for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
Section 17. Unaffiliated Third Parties.
Nothing herein shall impose any duty upon the Transfer Agent
in connection with or make the Transfer Agent liable for the actions or
omissions to act of unaffiliated third parties such as, by way of example
and not limitation, airborne services, the U.S. mails and
telecommunication companies, provided, if the Transfer Agent selected
such company, the Transfer Agent shall have exercised due care in
selecting the same.
Section 18. Miscellaneous.
18.1 Notices. Any notice or communication by the
Transfer Agent or the Customer to the other is duly given if in writing
and delivered in person or mailed by first class mail, postage prepaid,
telex, telecopier or overnight air courier guaranteeing next day delivery,
to the other's address:
If to the Customer:
Xxxxxx Xxxxxxx Trust
Harborside Xxxxxxxxx Xxxxxx
Xxxxx XX
Xxxxxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: General Counsel
If to the Transfer Agent:
Computershare Trust Company, N.A.
c/o Computershare Shareholder Services, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: General Counsel
18.2 Successors. All the covenants and provisions of this
agreement by or for the benefit of the Customer or the Transfer Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
18.3 Amendments. This Agreement may be amended or
modified by a written amendment executed by the parties hereto and, to
the extent required, authorized or approved by a resolution of the Board
of Directors of the Customer.
18.4 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, the
remainder of the terms, provision, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
13
18.5 Governing Law. This Agreement shall be governed
by the laws of the Commonwealth of Massachusetts, without reference
to its conflicts of law provisions.
18.6 Force Majeure. Notwithstanding anything to the
contrary contained herein, Transfer Agent shall not be liable for any
delays or failures in performance resulting from acts beyond its
reasonable control including, without limitation, acts of God, shortage
of supply, breakdowns or malfunctions, interruptions or malfunction of
computer facilities, or loss of data due to power failures or mechanical
difficulties with information storage or retrieval systems, labor
difficulties, war, or civil unrest.
18.7 Third Party Beneficiaries. The provisions of this
Agreement are intended to benefit only the Transfer Agent, the
Customer and their respective permitted successors and assigns. No
rights shall be granted to any other person by virtue of this agreement,
and there are no third party beneficiaries hereof.
18.8 Survival. All provisions regarding indemnification,
warranty, liability and limits thereon, and confidentiality and protection
of proprietary rights and trade secrets shall survive the termination of
this Agreement.
18.9 Priorities. In the event of any conflict, discrepancy,
or ambiguity between the terms and conditions contained in this
Agreement and any schedules or attachments hereto, the terms and
conditions contained in this Agreement shall take precedence.
18.10 Merger of Agreement. This agreement constitutes
the entire agreement between the parties hereto and supersedes any
prior agreement with respect to the subject matter hereof, whether oral
or written.
18.11 Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
14
IN WITNESS WHEREOF, each of the parties hereto has
caused this Agreement to be executed by one of its officers thereunto
duly authorized, all as of the date first written above.
Xxxxxx Xxxxxxx
Closed End
Funds Set Forth
In
Appendix A
("Xxxxxx Xxxxxxx
Closed-End
Funds")
B
Y:
/s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Treasurer and Chief Financial
Officer
of each of the Xxxxxx Xxxxxxx
Closed-End
Funds
Computershare
Shareholder
Services, Inc.
Computershare
Trust Company,
N.A. On Behalf
Of
Both Entities
B
Y:
/s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Managing Director
APPENDIX A
Xxxxxx Xxxxxxx China A Share Fund, Inc.
Xxxxxx Xxxxxxx Emerging Markets Domestic Debt Fund, Inc.
Xxxxxx Xxxxxxx Frontier Emerging Markets Fund, Inc.
The Turkish Investment Fund, Inc.
A-1
AMENDMENT NO. 1 TO
TRANSFER AGENCY AND SERVICE AGREEMENT
This Amendment No. 1 ("Amendment"), effective as of April 24,
2009 ("Effective Date"), is to the Transfer Agency and Service
Agreement dated as of September 26, 2006 ("Agreement"), by
and between certain Xxxxxx Xxxxxxx Closed End Funds as set
forth in Appendix A of the Agreement (collectively, "Customers"
or individually, "Customer"), and Computershare Inc. (f/k/a
Computershare Shareholder Services, Inc.), and its fully-owned
subsidiary Computershare Trust Company, N.A. (collectively,
"Transfer Agent").
WHEREAS, the Customers and Transfer Agent are
parties to the Agreement;
WHEREAS, the Customers and Transfer Agent now
desire to amend the Agreement;
NOW, THEREFORE, in consideration of the premises and
mutual agreements herein set forth, the parties hereby agree as
follows:
1. Amendment of Introductory Section. The
Introductory Section of the Agreement is
hereby amended by deleting "Harborside Financial
Xxxxxx, Xxxxx XX, Xxxxxx Xxxx, XX 00000" in its entirety
and replacing it with "522 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000".
2. Amendment of Section 18. Section 18 of the
Agreement is hereby amended by
deleting the "If to Customer" notice address in its
entirety and replacing it with the following:
Xxxxxx Xxxxxxx Trust
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
3. Amendment of Name. The Agreement is hereby
amended by deleting each reference to "Computershare
Shareholder Services, Inc." and replacing each such
reference with "Computershare Inc."
4. Amendment of Appendix A. Appendix A to the
Agreement is hereby deleted in its entirety and replaced
with the new Appendix A attached hereto.
5. Effect on Agreement. Except as otherwise amended,
all other terms of the Agreement shall remain in full
force and effect.
6. Counterparts. This Amendment may be executed in
any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together
constitute but one and the same instrument. A
signature to this Agreement transmitted electronically
shall have the same authority, effect, and enforceability
as an original signature.
IN WITNESS WHEREOF each of the parties hereto has caused
this Amendment to be executed by one of its officers thereunto
duly authorized, all as of the Effective Date.
Computershare Inc. and
Xxxxx
x Xxxxxxx Closed End Funds set forth
Computershare Trust Company, N. A. in
Appendix A
On Behalf of Both Entities:
By: By:
Name: Xxxxxx X. Xxxxxx Name:
Xxxxx Xxxxxxx
Title: Managing Director Title:
Treasurer and Chief Financial Officer of
each of
the Xxxxxx Xxxxxxx Closed-End Funds
Appendix A
As amended April 24, 2009
Xxxxxx Xxxxxxx Asia-Pacific Fund, Inc.
Xxxxxx Xxxxxxx California Insured Municipal Income Trust
Xxxxxx Xxxxxxx California Quality Municipal Securities
Xxxxxx Xxxxxxx China "A" Share Fund, Inc.
Xxxxxx Xxxxxxx Eastern Europe Fund, Inc.
Xxxxxx Xxxxxxx Emerging Markets Debt Fund, Inc.
Xxxxxx Xxxxxxx Emerging Markets Domestic Debt Fund, Inc.
Xxxxxx Xxxxxxx Emerging Markets Fund, Inc.
Xxxxxx Xxxxxxx Frontier Emerging Markets Fund, Inc.
Xxxxxx Xxxxxxx Global Opportunity Bond Fund, Inc.
Xxxxxx Xxxxxxx High Yield Fund, Inc.
Xxxxxx Xxxxxxx Income Securities Inc.
Xxxxxx Xxxxxxx India Investment Fund, Inc.
Xxxxxx Xxxxxxx Insured California Municipal Securities
Xxxxxx Xxxxxxx Insured Municipal Bond Trust
Xxxxxx Xxxxxxx Insured Municipal Income Trust
Xxxxxx Xxxxxxx Insured Municipal Securities
Xxxxxx Xxxxxxx Insured Municipal Trust
Xxxxxx Xxxxxxx Municipal Income Opportunities Trust
Xxxxxx Xxxxxxx Municipal Income Opportunities Trust II
Xxxxxx Xxxxxxx Municipal Income Opportunities Trust III
Xxxxxx Xxxxxxx Municipal Premium Income Trust
Xxxxxx Xxxxxxx New York Quality Municipal Securities
Xxxxxx Xxxxxxx Quality Municipal Income Trust
Xxxxxx Xxxxxxx Quality Municipal Investment Trust
Xxxxxx Xxxxxxx Quality Municipal Securities
The Latin American Discovery Fund, Inc.
The Malaysia Fund, Inc.
The Thai Fund, Inc.
The Turkish Investment Fund, Inc.
AMENDMENT
NO. 2 TO
TRANSFER AGENCY AND
SERVICE AGREEMENT
This Amendment No. 2 ("Amendment), effective as of June 1, 2010 (
"Effective Date"), is to the Transfer Agency and Service Agreement
dated as of September 26, 2006 ("Agreement"), by and between certain
Xxxxxx Xxxxxxx Closed End Funds as set forth in Appendix A of the
Agreement (collectively, "Customers" or individually, "Customer"),
and Computershare Inc. (f/k/a Computershare Shareholder Services,
Inc.), and its fully owned subsidiary Computershare Trust Company,
N.A. (collectively, "Transfer Agent").
WHEREAS, the Customers and Transfer Agent are
parties to the Agreement;
WHEREAS, the Customers and Transfer Agent now
desire to amend the Agreement;
NOW, THEREFORE, in consideration of the
premises and mutual agreements herein set forth, the parties hereby
agree as follows:
1. Amendment of Amended Appendix A. Amended Appendix
A to the Agreement is hereby deleted in its entirety and
replaced with the new Amended Appendix A attached hereto.
2. Effect on Agreement. Except as otherwise amended, all
other terms of the Agreement shall remain in full force and
effect.
3. Counterparts. This Amendment may be executed in any
number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument. A signature to this Agreement transmitted
electronically shall have the same authority, effect, and
enforceability as an original signature.
IN WITNESS WHEREOF each of the parties hereto has caused this
Amendment to be executed by one of its officers thereunto duly
authorized, all as of the Effective Date.
Computershare Inc. and Xxxxxx Xxxxxxx
Closed End Funds
Computershare Trust Company, N.A. set forth in
Amended Appendix A
On Behalf of Both Entities:
By: /s/ Xxxxxx X. Moccia______ By: /s/ Xxxxx
Smith____________
Name: Xxxxxx X. Xxxxxx _______ Name: Xxxxx
Smith_____________
Title: Manager, Contract Administration Title: Treasurer,
Xxxxxx Xxxxxxx Closed-end Funds
Appendix A
As Amended April 29, 2010
Xxxxxx Xxxxxxx Asia-Pacific Fund, Inc.
Xxxxxx Xxxxxxx Eastern Europe Fund Inc.
Xxxxxx Xxxxxxx Emerging Markets Fund
Xxxxxx Xxxxxxx Emerging Markets Debt Fund
Xxxxxx Xxxxxxx Global Opportunity Xxxx
Xxxxxx Xxxxxxx Income Securities Inc.
Xxxxxx Xxxxxxx India Investment Fund
The Latin American Discovery Fund Inc.
The Malaysia Fund Inc.
The Thai Fund Inc.
The Turkish Investment Fund Inc.
Xxxxxx Xxxxxxx China A Share Fund
Xxxxxx Xxxxxxx Emerging Markets Domestic Debt Fund
Xxxxxx Xxxxxxx Frontier Emerging Market Fund
(revised: 4/29/2010)
00000000.0.XXXXXXXX
