Exhibit 2(k)(3)
Transfer Agency and Service Agreement
Among
Each of the New Colony Investment Trust
Investment Companies Listed on Exhibit B Hereto
and
EquiServe Trust Company, N.A.
and
EquiServe, Inc.
TABLE OF CONTENTS
Page
----
1. Certain Definitions..................................................................1
2. Appointment of Agent.................................................................2
2.1 Appointments................................................................2
2.2 Documents...................................................................2
2.3 Records.....................................................................3
2.4 Shares......................................................................3
2.5 Customer's Agent............................................................3
2.6 Certificates................................................................3
3. Standard Services....................................................................3
3.1 Transfer Agent Services.....................................................3
3.2 EQI Services................................................................4
3.3 Customary Services..........................................................4
3.4 Compliance with Laws........................................................5
3.5 Unclaimed Property and Lost Shareholders....................................5
3.6 Compliance with Anti-Money Laundering Regulations...........................5
4. Distribution Disbursing Services.....................................................6
4.1 Declaration of Distributions................................................6
4.2 Stop Payments...............................................................6
4.3 Tax Withholding.............................................................7
5. Shareholder Internet Account Access Services.........................................7
5.1 Shareholder Internet Services...............................................7
5.2 Scope of Transfer Agent Shareholder Internet Services Obligations...........7
5.3 No Other Warranties.........................................................7
i
6. Optional Services....................................................................7
7. Fees and Expenses....................................................................8
7.1 Fee and Service Schedules...................................................8
7.2 COLA/Fee Increases..........................................................8
7.3 Adjustments.................................................................8
7.4 Out-of-Pocket Expenses......................................................8
7.5 Conversion Funds............................................................8
7.6 Postage.....................................................................8
7.7 Invoices....................................................................8
7.8 Taxes.......................................................................9
7.9 Late Payments...............................................................9
7.10 Services Required by Legislation............................................9
7.11 Overtime Charges............................................................9
7.12 Bank Accounts...............................................................9
8. Representations and Warranties of Transfer Agent.....................................9
8.1 Governance..................................................................9
8.2 Compliance.................................................................10
8.3 Facilities.................................................................10
8.4 Computer Services..........................................................10
9. Representations and Warranties of Customer..........................................10
9.1 Organizations..............................................................10
9.2 Governance.................................................................10
9.3 Securities Act of 1933.....................................................10
10. Indemnification/Limitation of Liability.............................................11
10.1 Standard of Care...........................................................11
ii
10.2 Customer Indemnity.........................................................11
10.3 Instructions...............................................................12
10.4 Transfer Agent Indemnification/Limitation of Liability.....................12
10.5 Notice.....................................................................12
11. Damages.............................................................................13
12. Responsibilities of the Transfer Agent..............................................13
12.1 ...........................................................................13
12.2 ...........................................................................13
12.3 ...........................................................................13
12.4 ...........................................................................13
13. Covenants of the Customer and Transfer Agent........................................13
13.1 Customer Entity Authority..................................................13
13.2 Transfer Agent Facilities..................................................14
13.3 Records....................................................................14
13.4 Confidentiality............................................................14
13.5 Non-Solicitation of Transfer Agent Employees...............................14
13.6 Notification...............................................................14
14. Data Access Service and Proprietary Information.....................................14
14.1 Data Access Service........................................................14
14.2 Access to Shareholder Data.................................................15
14.3 Procedures for Access......................................................15
14.4 Proprietary Information....................................................15
14.5 Content....................................................................16
14.6 Transactions...............................................................16
15. Confidentiality.....................................................................16
iii
15.1 Covenant...................................................................16
15.2 Request for Records........................................................16
16. Term and Termination................................................................17
16.1 Term.......................................................................17
16.2 Early Termination..........................................................17
16.3 Expiration of Term.........................................................17
16.4 Termination................................................................17
16.5 Records....................................................................18
17. Assignment..........................................................................18
17.1 Affiliates.................................................................18
17.2 Sub-contractors............................................................18
18. Unaffiliated Third Parties..........................................................18
19. Miscellaneous.......................................................................18
19.1 Notices....................................................................18
19.2 Successors.................................................................19
19.3 Amendments.................................................................19
19.4 Severability...............................................................19
19.5 Governing Law..............................................................19
19.6 Force Majeure..............................................................19
19.7 Descriptive Headings.......................................................19
19.8 Third Party Beneficiaries..................................................19
19.9 Survival...................................................................20
19.10 Priorities.................................................................20
19.11 Merger of Agreement.......................................................20
19.12 Counterparts...............................................................20
iv
AGREEMENT made as of the 18th day of November, 2002, by and
among New Colony Investment Trust, a Delaware business trust, having a principal
office and place of business at Suite 2850, The Exchange Tower, 000 Xxxx Xxxxxx
Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0, for and on behalf of those of its series which
are listed on Exhibit B hereto, (each, a "Customer" or the "Customer"), and
EquiServe, Inc., a Delaware corporation, and its fully owned subsidiary
EquiServe Trust Company, N.A., a federally charted trust company doing business
at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 or 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (collectively, the "Transfer Agent" or individually
"EQI" and the "Trust Company", respectively).
WHEREAS, the Customer desires to appoint the Transfer Agent as
sole transfer agent, registrar and administrator of distribution reinvestment
plans, and EQI as distribution disbursing agent and processor of all payments
received or made by Customer under this Agreement.
WHEREAS, the Trust Company and EQI desire to accept such
respective appointments and perform the services related to such appointments;
WHEREAS, the Board of Trustees of the Customer has approved
appointment of the Transfer Agent.
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
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) "ADDITIONAL SERVICES" shall mean any and all services
which are not Services as set forth in the Fee and Service Schedule, but
performed by Transfer Agent upon request of Customer.
(c) "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.
(d) "ANNUAL PERIOD" shall mean each twelve (12) month
period commencing on the Effective Date and, thereafter, on each anniversary of
the Effective Date.
(e) "CLOSED ACCOUNT" shall mean an account with a zero
share balance, no outstanding funds or no reportable tax information.
(f) "CUSTOMER ID(S)" shall have the meaning set forth in
Section 13.3.
(g) "DATA ACCESS SERVICE" shall have the meaning set
forth in Section 13.1.
(h) "DISTRIBUTION REINVESTMENT PLAN" shall mean the
services as set forth in Section 4 and in the Fee and Service Schedule.
(i) "EFFECTIVE DATE" shall mean the date first stated
above.
(j) "FEE AND SERVICE SCHEDULE" shall mean the fees and
services set forth in the "Fee and Service Schedule" attached hereto.
(k) "PASSWORD(S)" shall have the meaning set forth in
Section 13.3.
(l) "PROPRIETARY INFORMATION" shall have the meaning set
forth in Section 13.4.
(m) "SECURITY PROCEDURES" shall have the meaning set
forth in Section 5.1.
(n) "SERVICES" shall mean any and all services as further
described herein and in the "Fee and Service Schedule" or other schedules
attached hereto.
(o) "SHARE" shall mean the Customer's units of beneficial
interest authorized by the Customer's Certificate of Formation of Trust and
Agreement and Declaration of Trust and such other series of Customer's units of
beneficial interest as may be designated by the Customer in writing and for
which the Transfer Agent agrees to service under this Agreement.
(p) "SHAREHOLDER" shall mean the holder of record of
Shares.
(q) "SHAREHOLDER DATA" shall have the meaning set forth
in Section 13.2.
(r) "SHAREHOLDER INTERNET SERVICES" shall have the
meaning set forth in Section 5.1.
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 the Distribution
Reinvestment Plan and appoints EQI as distribution 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 EQI accept the appointments. Customer
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 will provide
or has previously provided each of the following documents to the Transfer
Agent:
(a) Copies of Registration Statements and amendments
thereto, filed with the Securities and Exchange Commission for initial public
offerings;
2
(b) Specimens of all forms of outstanding Share
certificates, in forms approved by the Board of Trustees 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 Share 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 EQI 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.
2.3 RECORDS. Transfer Agent may adopt as part of its records all lists
of holders, records of Shares, books, documents and records which have been
employed by any former agent of Customer for the maintenance of the ledgers for
the Shares, provided such ledger is certified by an officer of Customer or the
prior transfer agent to be true, authentic and complete.
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 Share certificate 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 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 distributions 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 Share 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.
3. STANDARD SERVICES.
3.1 Transfer Agent Services. The Transfer Agent will perform the
following services:
3
In accordance with the procedures established from time to
time by agreement between the Customer and the Transfer Agent, the Transfer
Agent shall:
(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 Distribution
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) 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 Share 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 EQI Services. In accordance with procedures established from time
to time by agreement between the Customer and EQI, EQI shall:
(a) prepare and transmit payments for distributions declared
by the Customer, provided good funds for said distributions are
received by EQI prior to the scheduled payable date for said
distributions;
(b) issue replacement checks and place stop orders on original
checks based on shareholder's representation that a check was not
received or was lost. Such stop orders and replacements will be deemed
to have been made at the request of Customer, and Customer shall be
responsible for all losses or claims resulting from such replacement;
and
(c) Receive all payments made to the Customer or the Transfer
Agent under the Distribution Reinvestment Plan and make all payments
required to be made under such plans, including all payments required
to be made to the Customer.
3.3 Customary Services. The Transfer Agent shall perform all the
customary services of a transfer agent, agent of Distribution Reinvestment Plan
and other investment programs as described in Section 3.1 consistent with those
requirements in effect as of the date of this Agreement. EQI shall perform all
the customary services of a distribution disbursing agent and a processor of
payments as described in Section 3.2 consistently with those requirements in
effect as of the date of this Agreement. The detailed services and definition,
frequency, limitations and
4
associated costs (if any) of the Services to be performed by the Transfer Agent
are set out in the attached Fee and Service Schedule.
3.4 Compliance with Laws. The Customer agrees that each of the Trust
Company and EQI is obligated to and the Trust Company and EQI agree to comply
with all applicable federal, state and local laws and regulations, codes, order
and government rules in the performance of its duties under this Agreement.
3.5 Unclaimed Property and Lost Shareholders. The Transfer Agent shall
report unclaimed property to each state in compliance with state law and shall
comply with Rule 17Ad-17 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), for lost Shareholders. If the Customer is not in
compliance with applicable state laws, there will be no charge for the first two
years for this service for such Customer, other than a charge of $3.00 per due
diligence notice mailed; provided that after the first two years, the Transfer
Agent will charge such Customer its then standard fee plus any out-of-pocket
expenses.
3.6 Compliance with Anti-Money Laundering Regulations. The Transfer
Agent hereby acknowledges, represents and warrants to the Customer as follows:
(a) the Customer is, or may in the future be, subject to
various anti-money laundering laws, rules, orders and regulations,
including in particular, the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (the "USA Patriots Act") and the Executive Orders
and Regulations issued and administered by the U.S. Department of
Treasury's Office of Foreign Assets control "("OFAC");
(b) the Customer is relying on the following representations
of the Transfer Agent for the purposes of complying with certain of
their obligations under the foregoing laws, rules, orders and
regulations;
(c) in connection with the provision of services to the
Customer hereunder, the Transfer Agent has adopted, implemented and
complies with anti-money laundering policies and procedures as notified
to the Customer in writing (the "AML Program");
(e) the AML Program may be amended and revised from time to
time as required by applicable laws and regulations and as otherwise
deemed appropriate by the Transfer Agent and any material amendments
and revisions shall be provided to the Customer in writing by the
Transfer Agent;
(f) the Transfer Agent may, in its discretion, agree in
writing to variations of, or supplements to, the policies and
procedures set forth in the AML Program specifically in relation to the
services provided to the Customer if requested by the Customer for the
purposes of complying with their own anti-money laundering duties and
obligations. Such agreed variations or supplements shall be included in
the term "AML Program" for the purposes of this Agreement;
(g) the Transfer Agent shall provide such information and
further representations and assurances with respect to its AML Program
as the Customer may
5
reasonably request for the purposes of enabling the Customer to assess
the AML Program and the Transfer Agent's implementation and compliance
with the AML Program, and further agrees that any such representations
and assurances shall form part of, and be governed by, the provisions
of this Agreement;
(h) in accordance with provisions of the AML Program, the
Transfer Agent has appointed an anti-money laundering compliance
officer (the "AML Compliance Officer"), as notified to the Customer in
writing from time to time. The AML Compliance Officer shall have such
duties and responsibilities as are set forth in the AML Program and in
particular, shall be responsible for the full implementation of the AML
Program with respect to the services provided hereunder. The AML
Compliance Officer shall report to the Customer, or any anti-money
laundering compliance officer appointed by the Customer, in the event
that any material issues arise in relation to the implementation of the
AML Program and the services provided hereunder, in accordance with the
procedures set forth in the AML Program or as otherwise agreed in
writing with the Customer;
(i) the Transfer Agent shall submit to such periodic audits by
the Customer'ss representative or agent to assess its implementation of
the AML Program and shall otherwise provide such reports to the
Customer or their anti-money laundering officers' with respect to the
AML Program, as may be agreed from time to time with the Customer; and
(j) in reliance on the foregoing, to the extent permitted by applicable
anti-money laundering laws, rules, orders or regulations, the Customer hereby
delegate to the Transfer Agent, any responsibilities they may have pursuant to
such laws, rules, orders and regulations for the implementation of policies and
procedures comparable to those included in the AML Program. The Transfer Agent
hereby accepts such delegation.
4. DISTRIBUTION DISBURSING SERVICES.
4.1 Declaration of Distributions. 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 distribution, EQI
shall disburse such distribution payments provided that in advance of such
payment, Customer furnishes EQI with sufficient funds. The payment of such funds
to EQI for the purpose of being available for the payment of distribution 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 EQI to stop payment of
checks issued in payment of distributions, 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 EQI 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.
6
4.3 Tax Withholding. EQI is hereby authorized to deduct from all
distributions declared by the Customer and disbursed by EQI, as distribution
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.
5. SHAREHOLDER INTERNET ACCOUNT ACCESS SERVICES.
5.1 Shareholder Internet Services. The Transfer Agent shall provide
internet access to Shareholders through Transfer Agent's web site,
xxx.xxxxxxxxx.xxx ("Shareholder Internet Services"), pursuant to its established
procedures ("Security Procedures"), to allow Shareholders to view their account
information and perform certain on-line transaction request capabilities. The
Shareholder Internet Services shall be provided at no additional charge at this
time, other than the transaction fees currently being charged for the different
transactions as described on the Fee and Service Schedule. The Transfer Agent
reserves the right to charge a fee for this service at any time in the future.
5.2 Scope of Transfer Agent Shareholder Internet Services Obligations.
Transfer Agent shall at all times use reasonable care in performing Shareholder
Internet Services under this Agreement. With respect to any claims for losses,
damages, costs or expenses which may arise directly or indirectly from Security
Procedures which Transfer Agent has implemented or omitted, Transfer Agent shall
be presumed to have used reasonable care if it has followed, in all material
respects, its Security Procedures then in effect. Transfer Agent may, but shall
not be required to, modify such Security Procedures from time to time to the
extent it believes, in good faith, that such modifications will enhance the
security of Shareholder Internet Services. All data and information
transmissions accessed via Shareholder Internet Services are for informational
purposes only, and are not intended to satisfy regulatory requirements or comply
with any laws, rules, requirements or standards of any federal, state or local
governmental authority, agency or industry regulatory body, including the
securities industry, which compliance is the sole responsibility of Customer.
5.3 No Other Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN
SECTION 5.2 OF THIS AGREEMENT, 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.
6. OPTIONAL SERVICES.
To the extent that a Customer elects to engage the Transfer
Agent to provide the services listed below, the Customer shall engage the
Transfer Agent to provide such services upon terms and fees to be agreed upon by
the parties:
7
(a) Corporate actions (including, inter alia, odd lot buy
backs, exchanges, mergers, redemptions, subscriptions, capital reorganization,
coordination of post-merger services and special meetings).
7. FEES AND EXPENSES.
7.1 Fee and Service Schedules. The 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").
7.2 COLA/Fee Increases. After the Initial Term of the Agreement,
providing that service mix and volumes remain constant, the fees listed in the
Fee and Service Schedule shall be increased (a) by the accumulated change in the
National Employment Cost Index for Service Producing Industries (Finance,
Insurance, Real Estate) for the preceding years of the contract, as published by
the Bureau of Labor Statistics of the United States Department of Labor or (b)
to the Transfer Agent's minimum fee then in effect, whichever is greater. Fees
will be increased on this basis on each successive contract anniversary
thereafter.
7.3 Adjustments. Notwithstanding Section 7.1 above, fees, and the
out-of-pocket expenses and advances identified under Section 7.4 below, may be
changed from time to time as agreed upon in writing between the Transfer Agent
and the Customer.
7.4 Out-of-Pocket Expenses. In addition to the fees paid under Section
7.1 above, the Customer agrees to reimburse the Transfer Agent for reasonable
out-of-pocket expenses, including but not limited to postage, forms, telephone,
microfilm, microfiche, taxes, records storage, exchange and broker fees, or
advances incurred by the Transfer Agent for the items set out in Exhibit A
attached hereto. Out-of-pocket expenses may include the costs to transfer agent
of administrative expenses. 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.
7.5 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.
7.6 Postage. Postage for mailing of distributions, proxies, Customer
reports and other mailings to all Shareholder Accounts shall be advanced to the
Transfer Agent by the Customer prior to commencement of the mailing date of such
materials.
7.7 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 notify the
Transfer Agent in writing within twenty-one (21) calendar days following the
receipt of each billing notice if the Customer is disputing any amounts in good
faith. If the Customer does not provide such notice of dispute within the
required time, the billing notice will be deemed accepted by the Customer. 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
8
agreed amount. If no agreement is reached, then such disputed amounts shall be
settled as may be required by law or legal process.
7.8 Taxes. Customer shall pay all sales or use taxes in lieu thereof
with respect to the Services (if applicable) provided by Transfer Agent under
this Agreement.
7.9 Late Payments.
(a) If any undisputed amount in an invoice of the
Transfer Agent (for fees or reimbursable expenses) is not paid when due, 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 banks)
published by 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, such interest rate shall be no
greater than permitted under applicable provisions of Massachusetts or 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
16.4(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.
7.10 Services Required by Legislation. Services required by legislation
or regulatory mandate that become effective after the Effective Date of this
Agreement shall not be part of the Services, and shall be billed by appraisal.
7.11 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, distribution
enclosures and news releases.
7.12 Bank Accounts. The Customer acknowledges that the bank accounts
maintained by EQI in connection with the Services will be in its name and that
EQI may receive investment earnings in connection with the investment at EQI's
risk and for its benefit of funds held in those accounts from time to time.
8. REPRESENTATIONS AND WARRANTIES OF TRANSFER AGENT.
8.1 Governance. The Trust Company is a federally chartered limited
purpose national bank duly organized under the laws of the United States and EQI
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.
9
8.2 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 judgement, 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.
8.3 Facilities. The Transfer Agent has and will continue to have access
to the necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
8.4 Computer Services. DATA ACCESS SERVICE AND ALL COMPUTER PROGRAMS
AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS
IS, AS AVAILABLE BASIS. TRANSFER AGENT EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT
THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER
HEREBY ACKNOWLEDGES THAT THE DATA ACCESS SERVICE MAY NOT BE OR BECOME AVAILABLE
DUE TO ANY NUMBER OF FACTORS INCLUDING WITHOUT LIMITATION PERIODIC SYSTEM
MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE,
TELECOMMUNICATIONS INFRASTRUCTURE OR DELAY OR DISRUPTION ATTRIBUTABLE TO
VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, AND ACTIONS
AND OMISSIONS OF THIRD PARTIES. THEREFORE TRANSFER AGENT EXPRESSLY DISCLAIMS ANY
EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR DATA ACCESS SERVICE
AVAILABILITY, ACCESSABILITY, OR PERFORMANCE.
9. REPRESENTATIONS AND WARRANTIES OF CUSTOMER.
The Customer represents and warrants to the Transfer Agent that:
9.1 Organizations. It is a business trust duly organized and existing
and in good standing under the laws of Delaware;
9.2 Governance. It is empowered under applicable laws and by its
Agreement and Declaration of Trust to enter into and perform this Agreement. All
corporate proceedings required by said Agreement and Declaration of Trust 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") and the Investment Company
Act of 1940, as amended (the "1940 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
10
requirements of the 1933 Act, the 1940 Act and state securities laws;
information to the contrary will result in immediate notification to the
Transfer Agent.
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;
(c) The reliance or use by the Transfer Agent or its
agents or subcontractors of information, records and documents which (i) are
received by the Transfer Agent or its agents or subcontractors and furnished to
it by or on behalf of the Customer, and (ii) 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;
(e) The reliance on, or the carrying out by the Transfer
Agent or its agents or subcontractors of any instructions or requests of the
Customer's representatives;
(f) The offer or sale of Shares in violation of any
federal or state securities laws requiring that such Shares be registered or in
violation of any stop order or other determination or ruling by any federal or
state agency with respect to the offer or sale of such Shares;
(g) 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");
11
(h) Any actions taken or omitted to be taken by any
former agent of Customer and arising from Transfer Agent's reliance on the
certified list of holders; and
(i) The negotiation, presentment, delivery or transfer of
Shares through the Direct Registration System Profile System.
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 Share
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, the amounts paid hereunder by the Customer to
Transfer Agent as fees and charges, but not including reimbursable expenses,
during the six (6) calendar months immediately preceding the event for which
recovery from the Transfer Agent is being sought.
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.
12
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.
12. RESPONSIBILITIES OF THE TRANSFER AGENT.
The Transfer Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, by all of
which the Customer, by its acceptance hereof, shall be bound:
12.1 Whenever in the performance of its duties hereunder the Transfer
Agent shall deem it necessary or desirable that any fact or matter be proved or
established prior to taking or suffering any action hereunder, such fact or
matter may be deemed to be conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any Vice President, the
Chief Financial Officer, the Treasurer, any Assistant treasurer, the Secretary
or any Assistant Secretary of the Customer and delivered to the Transfer Agent.
Such certificate shall be full authorization to the recipient for any action
taken or suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
12.2 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.
12.3 Transfer Agent, any of its affiliates or subsidiaries, and any
stockholder, director, officer or employee of the Transfer Agent may buy, sell
or deal in the securities of the Customer or become pecuniary interested in any
transaction in which the Customer may be interested, or contract with or lend
money to the Customer or otherwise act as fully and freely as though it were not
appointed as agent under this Agreement. Nothing herein shall preclude the
Transfer Agent from acting in any other capacity for the Customer or for any
other legal entity.
12.4 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.
13. COVENANTS OF THE CUSTOMER AND TRANSFER AGENT.
13.1 Customer Entity Authority. The Customer shall furnish to the
Transfer Agent the following:
(a) A copy of the Certificate of Formation of Trust,
Agreement and Declaration of Trust and By-Laws of the Customer;
13
(b) Copies of all material amendments to its Agreement and
Declaration of Trust made after the date of this Agreement, promptly
after such amendments are made; and
(c) 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,
warrants or a conversion of debentures or otherwise.
13.2 Transfer Agent Facilities. The Transfer Agent hereby agrees to
establish and maintain facilities and procedures reasonably acceptable to the
Customer for the safekeeping of Share certificates, check forms and facsimile
signature imprinting devices, if any, and for the preparation, use, and
recordkeeping of such certificates, forms and devices.
13.3 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 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.
13.4 Confidentiality. The Transfer Agent and the Customer agree that
all books, records, information and data pertaining to the business of the other
party which are exchanged or received pursuant to the negotiation or the
carrying out of this Agreement shall remain confidential, and shall not be
voluntarily disclosed to any other person, except as may be required by law.
13.5 Non-Solicitation of Transfer Agent Employees. Customer shall not
attempt to hire or assist with the hiring of an employee of EquiServe or
affiliated companies or encourage any employee to terminate their relationship
with EquiServe or its affiliated companies.
13.6 Notification. Customer shall notify Transfer Agent as soon as
possible in advance of any stock split, stock distribution 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. Further, Customer may not assume the
Agreement after the filing of a bankruptcy petition without transfer agents
written consent.
14. DATA ACCESS SERVICE AND PROPRIETARY INFORMATION.
14.1 Data Access Service. Transfer Agent has developed a data access
service that enables the Customer to access Shareholder records maintained on
Transfer Agent's computer system through the Internet or remote access, as the
case may be (the "Data Access Service"). The Customer wishes to use such Data
Access Service subject to the terms and conditions set forth herein. Therefore,
the Customer and Transfer Agent agree as follows:
14
14.2 Access to Shareholder Data. The Data Access Service provided to
the Customer pursuant to this Agreement shall include granting the Customer
access to the Customer's unique shareholder information ("Shareholder Data")
maintained on the records database of the computer system, at EquiServe for the
purpose of examining with respect to an individual Shareholder such
Shareholder's (a) name, (b) social security or other taxpayer identification
number, (c) number of Shares, (d) address, and (e) limited distribution payment
history.
14.3 Procedures for Access. To use the Data Access Service, the
Customer must access through the Internet or remote terminal, as the case may
be, pursuant to the procedures provided by Transfer Agent. Such access is
accomplished by entering a unique Customer identification ("Customer ID(s)") and
passwords ("Password(s)") assigned to the Customer by Transfer Agent. The
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 all such Customer IDs and Passwords. Transfer Agent shall maintain
reasonable security and control over the Customer ID. After Transfer Agent
assigns the Customer a Password, the Customer shall change the Password. The
Customer recognizes that Transfer Agent does not have knowledge of the Password,
which is selected by the Customer and is within the Customer's exclusive control
after the necessary change. The Customer may change any Password thereafter at
any time. 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.
14.4 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 the 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 Transfer
Agent;
15
(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.
Each party shall take reasonable efforts to advise its
employees of their obligations pursuant to this Section 14.
14.5 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.
14.6 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 EQI 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.
15. CONFIDENTIALITY.
15.1 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 of
this 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.
15.2 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
16
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 by law
or court order.
16. TERM AND TERMINATION.
16.1 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 16. 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"). 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 Section
7.2.
16.2 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 16.2 shall not apply if the Transfer Agent is terminated for cause under
Section 16.4(a) of this Agreement.
16.3 Expiration of Term. After the expiration of the Initial Term or
Renewal Term whichever currently in effect, should either party exercise its
right to terminate, all reasonable out-of-pocket expenses or costs associated
with the movement of records and material will be borne by the Customer.
Additionally, the Transfer Agent reserves the right to charge for any other
reasonable expenses associated with such termination and a
de-conversion/transition fee in an amount equal to [25%] of the aggregate fees
incurred by Customer during the immediately preceding twelve (12) month period,
provided, however, such fee shall in no event be more than [five thousand
dollars].
16.4 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
17
(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.
16.5 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 Customer, in machine readable form on media as
reasonably requested by Customer, all Shareholder and other records, files and
data supplied to or compiled by Transfer Agent on behalf of Customer.
17. ASSIGNMENT.
17.1 Affiliates. The Transfer Agent may, upon notice to the Customer,
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.
17.2 Sub-contractors. Transfer Agent may, upon notice to the Customer,
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.
18. 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.
19. MISCELLANEOUS.
19.1 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:
New Colony Equity Income Fund
Suite 2850, The Exchange Tower
000 Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx X0X 0X0
18
Telecopy No.: (000) 000-0000
Attn: Chief Financial Officer
If to the Transfer Agent:
EquiServe Trust Company, N.A.
c/o EquiServe, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: General Counsel
The Transfer Agent and the Customer may, by notice to the
other, designate additional or different addresses for subsequent notices or
communications.
19.2 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.
19.3 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 Trustees of the Customer.
19.4 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.
19.5 Governing Law. This Agreement shall be governed by the laws of New
York.
19.6 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, terrorist acts 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, war, or civil unrest.
19.7 Descriptive Headings. Descriptive headings of the several sections
of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
19.8 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.
19
19.9 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.
19.10 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.
19.11 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.
19.12 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.
20
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.
NEW COLONY INVESTMENT TRUST,
for and on behalf of
NEW COLONY EQUITY INCOME FUND
By:
-------------------------------------
Name:
Title:
EQUISERVE, INC.
By:
-------------------------------------
Name:
Title:
EQUISERVE TRUST COMPANY, N.A.
By:
-------------------------------------
Name:
Title:
21
EXHIBIT A
[EquiServe to provide.]
EXHIBIT B
1. New Colony Income Fund
