PAYING AND TRANSFER AGENCY AGREEMENT
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This Agreement is made as of July 15, 1992 by and between The Greater China
Fund, Inc., a Maryland corporation (the "Fund"), and Provident National Bank
("Provident"), a national banking association.
The Fund is registered as a closed-end management investment company under
the Investment Company Act of 1940 (the "1940" Act), as amended. The Fund wishes
to retain Provident to provide paying and transfer agency services, and
Provident wishes to furnish such services.
In consideration of the promises and mutual covenants herein contained, the
parties agree as follows:
1. Definitions.
(a) "Authorized Person". The term "Authorized Person" shall mean any
officer of the Fund and any other person, who is duly authorized by the Fund's
Governing Board, to give Oral and Written Instructions on behalf of the Fund.
Such persons are listed in the Certificate attached hereto as the Authorized
Persons Appendix. If Provident provides more than one service hereunder, the
Fund's designation of Authorized Persons may vary by service.
(b) "CFTC". The term "CFTC" shall mean the Commodities Futures Trading
Commission.
(c) "Governing Board". The term "Governing Board" shall mean the
Fund's Board of Directors if the Fund is a corporation or
the Fund's Board of Trustees if the Fund is a trust, or, where duly authorized,
a competent committee thereof.
(d) "Oral Instructions". The term "Oral Instructions" shall mean oral
instructions received by Provident from an Authorized Person or from a person
reasonably believed by Provident to be an Authorized Person.
(e) "SEC". The term "SEC" shall mean the Securities and Exchange
Commission.
(f) "Securities and Commodities Laws". The terms the "1933 Act" shall
mean the Securities Act of 1933, the "1934 Act" shall mean the Securities
Exchange Act of 1934, the "1940 Act" shall mean the Investment Company Act of
1940, as amended, and the "CEA" shall mean the Commodities Exchange Act, as
amended.
(g) "Shares". The term "Shares" shall mean the shares of stock of any
series or class of the Fund, or, where appropriate, units of beneficial interest
in a trust where the Fund is organized as a Trust.
(h) "Property". The term "Property" shall mean:
(i) Any and all securities and other investment items which the
Fund may from time to time deposit, or cause to be
deposited, with Provident or which Provident may from time
to time hold for the Fund;
(ii) All income in respect of any of such securities or other
investment items;
(iii) All proceeds of the sale of any of such securities or
investment items; and
(iv) All proceeds of the sale of securities issued by the Fund,
which are received by Provident from time to time, from or
on behalf of the Fund.
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(i) "Written Instructions". The term "Written Instructions" shall mean
written instructions signed by one Authorized Person and received by Provident.
The instructions may be delivered by hand, mail, tested telegram, cable, telex
or facsimile sending device.
2. Appointment. The Fund hereby appoints Provident to provide paying and
transfer agency services and to act as agent in connection with the Fund's
dividend reinvestment plan, in accordance with the terms set forth in this
Agreement, and Provident accepts such appointment and agrees to furnish such
services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide Provident with the following:
(a) Certified or authenticated copies of the resolutions of the Fund's
Governing Board, approving the appointment of Provident or its affiliates to
provide services;
(b) A copy of the Fund's most recent effective registration statement;
(c) A copy of the Fund's advisory agreement or agreements;
(d) A copy of the Fund's distribution agreement or agreements;
(e) A copy of the Fund's administration agreement if Provident is not
providing the Fund with such services;
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(f) Copies of any shareholder servicing agreements made in respect of
the Fund; and
(g) Certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. Compliance with Government Rules and Regulations. Provident undertakes
to comply with all applicable requirements of the 1933 Act, the 1934 Act, the
1940 Act, and the CEA, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to all duties to be performed by
Provident hereunder. Except as specifically set forth herein, Provident assumes
no responsibility for such compliance by the Fund.
5. Instructions. Unless otherwise provided in this Agreement, Provident
shall act only upon Oral and Written Instructions.
Provident shall be entitled to rely upon any Oral and Written Instruction
it receives from an Authorized Person (or from a person reasonably believed by
Provident to be an Authorized Person) pursuant to this Agreement. Provident may
assume that any Oral or Written Instruction received hereunder is not in any way
inconsistent with the provisions of organizational documents or this Agreement
or of any vote, resolution or proceeding of the Fund's Governing Board or of the
Fund's shareholders.
The Fund agrees to forward to Provident Written Instructions confirming
Oral Instructions so that Provident receives the Written
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Instructions by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written Instructions
are not received by Provident shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions. The Fund
further agrees that Provident shall incur no liability to the Fund in acting
upon Oral or Written Instructions provided such instructions reasonably appear
to have been received from an Authorized Person.
6. Right to Receive Advice.
(a) Advice of the Fund. If Provident is in doubt as to any action is
should or should not take, Provident may request directions or advice, including
Oral or Written Instructions, from the Fund.
(b) Advice of Counsel. If Provident shall be in doubt as to any
question of law pertaining to any action is should or should not take, Provident
may request advice at its own cost from such counsel of its own choosing (who
may be counsel for the Fund, the Fund's advisor or Provident, at the option of
Provident).
(c) Conflicting Advice. In the event of a conflict between directions,
advice or Oral or Written Instructions Provident receives from the Fund, and the
advice it receives from counsel, Provident shall be entitled to rely upon and
follow the advice of counsel.
(d) Protection of Provident. Provident shall be protected in any
action it takes or does not take in reliance upon directions, advice or Oral or
Written Instructions it receives from
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the Fund or from counsel and which Provident believes, in good faith, to be
consistent with those directions, advice or Oral or Written Instructions.
Nothing in this paragraph shall be construed so as to impose an obligation
upon Provident (i) to seek such directions, advice or Oral or Written
Instructions, or (ii) to act in accordance with such directions, advice or Oral
or Written Instructions unless, under the terms of other provisions of this
Agreement, the same is a condition of Provident's properly taking or not taking
such action.
7. Records. The books and records pertaining to the Fund, which are in the
possession of Provident, shall be the property of the Fund. Such books and
records shall be prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Fund, or the Fund's
Authorized Persons, shall have access to such books and records at all times
during Provident's normal business hours. Upon the reasonable request of the
Fund, copies of any such books and records shall be provided by Provident to the
Fund or to an Authorized Person of the Fund, at the Fund's expense.
8. Confidentiality. Provident agrees to keep confidential all records of
the Fund and information relative to the Fund and its shareholders (past,
present and potential), unless the release of such records or information is
otherwise consented to, in writing, by the Fund. The Fund agrees that such
consent shall not be unreasonably withheld. The Fund further agrees that, should
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Provident be required to provide such information or records to duly constituted
authorities (who may institute civil or criminal contempt proceedings for
failure to comply), Provident shall not be required to seek the Fund's consent
prior to disclosing such information.
9. Cooperation with Accountants. Provident shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the necessary
information is made available to such accountants for the expression of their
opinion, as required by the Fund.
10. Disaster Recovery. Provident shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provision for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. In the event of equipment failures,
Provident shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions but shall have no liability with respect thereto.
11. Compensation. As compensation for Services rendered by Provident during
the term of this Agreement, the Fund will pay to Provident a fee or fees as may
be agreed to from time to time in writing by the Fund and Provident.
12. Indemnification. The Fund agrees to indemnify and hold harmless
Provident and its nominees from all taxes, charges, expenses, assessments,
claims and liabilities (including, without
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limitation, liabilities arising under the 1933 Act, the 1934 Act, the 1940 Act,
the CEA, and any state and foreign securities and blue sky laws, and amendments
thereto, and expenses, including (without limitation) attorneys' fees and
disbursements, arising directly or indirectly from any action which Provident
takes or does not take (i) at the request or on the direction of or in reliance
on the advice of the Fund or (ii) upon Oral or Written Instructions. Neither
Provident, nor any of its nominees, shall be indemnified against any liability
to the Fund or to its shareholders (or any expenses incident to such liability)
arising out of Provident's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties and obligations under this Agreement.
13. Responsibility of Provident. Provident shall be under no duty to take
any action on behalf of the Fund except as specifically set forth herein or as
may be specifically agreed to by Provident, in writing. Provident shall be
obligated to exercise care and diligence in the performance of its duties
hereunder, to act in good faith and to use its best efforts, within reasonable
limits, in performing services provided for under this Agreement. Provident
shall be responsible for its own negligent failure to perform its duties under
this Agreement.
Without limiting the generality of the foregoing or of any other provision
of this Agreement, Provident, in connection with its duties under this
Agreement, shall not be under any duty or obligation to inquire into and shall
not be liable for (a) the
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validity or invalidity or authority or lack thereof of any Oral or Written
Instruction, notice or other instrument which conforms to the applicable
requirements of this Agreement, and which Provident reasonably believes to be
genuine; or (b) delays or errors or loss of data occurring by reason of
circumstances beyond Provident's control, including acts of civil or military
authority, national emergencies, labor difficulties, fire, flood or catastrophe,
acts of God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply. Notwithstanding the foregoing, Provident shall
not be responsible for losses beyond its control, provided that Provident has
acted in accordance with the standard of care set forth above; and provided
further that Provident shall only be responsible for that portion of losses or
damages suffered by the Fund that are attributable to the negligence of
Provident.
Notwithstanding anything in this Agreement to the contrary, Provident shall
have no liability to the fund for any consequential, special or indirect losses
or damages which the Fund may incur or suffer by or as a consequence of
Provident's performance of the services provided hereunder, whether or not the
likelihood of such losses or damages was known by Provident.
14. Description of Services.
(a) Services Provided on an Ongoing Basis by Provident to the Fund.
(i) Maintain proper shareholder registrations;
(ii) Countersign securities;
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(iii) Provide toll-free lines for direct shareholder use, plus
customer liaison staff for on-line inquiry response;
(iv) Provide periodic shareholder lists and statistics to the
clients;
(v) Periodic mailing of year-end tax and statement information;
and
(vi) Timely notification of investment advisor, accounting agent,
and custodian of fund activity.
(b) Services Provided by Provident Under Oral or Written Instructions
of the Fund.
(i) Pay dividends and other distributions; and
(ii) Issue and cancel certificates.
(c) Cancellation and Reissuance of Shares. Upon receipt of appropriate
notification of cancellation and reissuance, Provident National Bank shall
cancel, reissue and credit the account of the investor or other recordholder
with Shares in accordance with standard industry practice.
(d) Dividends and Distributions. Provident must receive a resolution
of the Fund's Governing Board authorizing the declaration and payment of
dividends and distributions. Upon receipt of the resolution, Provident shall
issue the dividends and distributions in shares, or, upon shareholder election,
pay such dividends and distributions in cash, if provided for in the Fund's
prospectus. Such issuance or payment shall be made after deduction and payment
of the required amount of funds to be withheld in accordance with any applicable
tax laws or other laws, rules or regulations. The Fund's shareholders shall
receive tax forms and other information, or permissible substitute notice,
relating to dividends and distributions, paid by the Fund as are required to be
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filed and mailed by applicable law, rule or regulation.
Pursuant to Written Instructions, Provident may arrange for the direct
payment of cash dividends and distributions to shareholder by the Fund's
custodian, instead of Provident disbursing such funds to the shareholder after
receipt from the Fund's custodian.
Provident shall maintain and file with the IRS and other appropriate taxing
authorities reports relating to all dividends above a stipulated amount paid by
the Fund to its shareholders as required by tax or other law, rule or
regulation.
In accordance with the Prospectus and such procedures and controls as are
mutually agreed upon from time to time by and among the Fund, Provident and the
Fund's Custodian, the Transfer Agent shall process applications from
Shareholders relating to the Fund's Dividend Reinvestment Plan ("Dividend
Reinvestment Plan") and will effect purchases of Shares in connection with the
Dividend Reinvestment Plan.
(e) Communications to Shareholders. Upon timely written instructions,
Provident shall mail all communications by the Fund to its shareholders,
including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
Provident will receive and tabulate the proxy cards for the meetings of the
Fund's shareholders.
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(f) Records. Provident shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or Social
Security number;
(ii) Number and class of shares held and number and class of
shares for which certificates, if any, have been issued,
including certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid and
the date and price for all transactions on a shareholder's
account;
(iv) Any stop or restraining order placed against a shareholder's
account;
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for the transfer agent to
perform any calculations contemplated or required by this
Agreement.
(h) Lost or Stolen Certificates. Provident shall place a stop notice
against any certificate reported to be lost or stolen and comply with all
applicable federal regulatory requirements for reporting such loss or alleged
misappropriation.
A new certificate shall be registered and issued upon:
(i) Shareholder's pledge of a lost instrument bond or such and
other appropriate indemnity bond issued by a surety company
approved by Provident; and
(ii) Completion of a release and indemnification agreement to
protect Provident signed by the shareholder and Provident.
(i) Shareholder Inspection of Stock Records. Upon requests from Fund
shareholders to inspect stock records, Provident will notify the Fund and
require instructions granting or denying each such request.
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Unless Provident has acted contrary to the Fund's instructions, the Fund
agrees to release Provident from any liability for refusal of permission for a
particular shareholder to inspect the Fund's shareholder records.
(j) Withdrawal of Shares and Cancellation of Certificates. Upon
receipt of Written Instructions, Provident shall cancel outstanding certificates
surrendered by the Fund to reduce the total amount of outstanding shares by the
number of shares surrendered by the Fund.
15. Duration and Termination. This Agreement shall continue until
terminated by the Fund or by Provident on sixty (60) days prior written notice
to the other party.
16. Notices. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. Notice shall be address (a) if to Provident at
Provident's address, 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to
the Fund, at the address of the Fund; or (c) if to neither of the foregoing, at
such other address as shall have been notified to the sender of any such Notice
or other communication. If notice is sent by confirming telegram, cable telex or
facsimile sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been given three
days after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
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17. Amendments. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
18. Delegation. Provident may assign its rights and delegate its duties
hereunder to any wholly-owned direct or indirect subsidiary of Provident
National Bank or PNC Financial Corp., provided that (i) Provident gives the Fund
thirty (30) days prior written notice; (ii) the delegate agrees with Provident
to comply with all relevant provisions of the 1940 Act; and (iii) Provident and
such delegate promptly provide such information as the Fund may request, and
respond to such questions as the Fund may ask, relative to the delegation,
including (without limitation) the capabilities of the delegate.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
21. Miscellaneous. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody in one or more separate documents their agreement, if any, with
respect to delegated and/or Oral Instructions.
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The captions in this Agreement are included for convenience of reference
only and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect.
This Agreement shall be governed by Delaware law. If any provision of this
Agreement shall be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be affected thereby. This
Agreement shall be binding and shall inure to the benefit of the parties hereto
and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first above
written.
PROVIDENT NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxxx
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THE GREAT CHINA FUND, INC.
By: /s/ Xxxxx X.X. Xxxxxxxxxx
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