Transfer Agency and Service Agreement
Between
THE INVESTMENT COMPANIES LISTED ON
SCHEDULE A HERETO
and
EQUISERVE TRUST COMPANY, N.A.
and
EQUISERVE LIMITED PARTNERSHIP
Table of Contents
Page
1. Certain Definitions .................................1
2. Appointment of Agent ................................2
3. Standard Services ...................................3
4. Dividend Disbursing Services ........................4
5. Fees and Expenses ...................................5
6. Representations and Warranties of Transfer Agent ....6
7. Representations and Warranties of Customer ..........6
8. Indemnification .....................................7
9. Damages .............................................7
10. Responsibilities of the Transfer Agent ..............8
11. Covenants of the Customer and Transfer Agent ........8
12. Confidentiality .....................................9
13. Termination ........................................10
14. Assignment .........................................10
15. Unaffiliated Third Parties .........................10
16. Miscellaneous ......................................11
16.1 Notices ............................................11
16.2 Successors .........................................11
16.3 Amendments .........................................11
16.4 Severability .......................................11
16.5 Governing Law ......................................12
16.6 Force Majeure ......................................12
16.7 Descriptive Headings ...............................12
16.8 Third Party Beneficiaries ..........................12
16.9 Survival ...........................................12
16.10 Priorities .........................................12
16.11 Merger of Agreement ................................12
16.12 Counterparts .......................................13
AGREEMENT made as of the 1st day of October, 2001, by and between the
Investment Companies listed on Schedule A hereto having their principal office
and place of business at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, XX 00000 (the
"Customer"), and EquiServe Limited Partnership, a Delaware limited partnership,
and its fully owned subsidiary EquiServe Trust Company, N.A., a federally
charted trust company doing business at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 (the "Transfer Agent").
WHEREAS, the Customer desires to appoint the Transfer Agent as sole
transfer agent, registrar, dividend disbursing agent, administrator of dividend
reinvestment plans, option plans, and direct stock purchase plans.
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) "Dividend Reinvestment Plan" shall mean the services as set forth
in Section 4.
(g) "Effective Date" shall mean the date first stated above.
(h) "Fee and Service Schedule" shall mean the fees and services set
forth in the "Fee and Service Schedule" attached hereto.
(i) "Optional Services" shall mean all services described in Section
5.
(j) "Services" shall mean any and all services as further described
herein and in the "Fee and Service Schedule" or other schedules
attached hereto.
(k) "Share" shall mean Customer's common stock, or shares of
beneficial interest par value $.10 per share, authorized by the
Customer's Articles of Incorporation or Declaration of Trust, as
applicable.
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 the Transfer Agent accepts said appointment.
2.2 Documents. In connection the appointing of Transfer Agent as the
transfer agent and registrar for the Customer, the Customer has provided 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;
(b) Specimens of all forms of outstanding stock certificates, in
forms approved by the Board of Directors/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 stock certificates and individuals authorized
to sign written instructions and requests; and
(d) An opinion of counsel for the Customer 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 stock 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 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.
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 specific purposes, (iii) any outstanding shares which are
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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 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 Services. The Transfer Agent will perform the following services:
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
("Shareholder") account;
(b) effect transfers of Shares by the registered owners thereof upon
receipt of appropriate documentation;
(c) prepare and transmit payments for dividends and distributions
declared by the Customer, provided good funds for said dividends
or distributions are received by the Transfer Agent prior to the
scheduled payable date for said dividends or distributions;
(d) 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;
(e) 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; and
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(f) issue replacement checks and place stop on original checks based
on shareholder's representation that a check was not received or
was lost. Such stops and replacement 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.
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. 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 Customer agrees the Transfer Agent is
obligated to and the Transfer Agent agrees 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.
3.4 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 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, other than a
charge of $3.00 per due diligence notice mailed; provided that after the first
two years, the Transfer Agent will charge Customer its then standard fee plus
any out-of-pocket expenses.
3.5 Compliance with Office of Foreign Asset Control ("OFAC") Regulations.
The Transfer Agent shall ensure compliance with OFAC laws.
4. Dividend Disbursing Services.
4.1 Declaration of Dividends. Upon receipt of a written notice from the
President, any Vice President, Assistant Secretary, Treasurer or Assistant
Treasurer of Customer declaring the payment of a dividend, Transfer Agent shall
disburse such dividend payments provided that in advance of such payment,
Customer furnishes Transfer Agent with sufficient funds. The payment of such
funds to Transfer Agent 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 shareholders whether in trust or in contract or
otherwise.
4.2 Stop Payments. Customer hereby authorizes Transfer Agent 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 Transfer Agent 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.
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4.3 Tax Withholding. Transfer Agent is hereby authorized to deduct from
all dividends declared by Customer and disbursed by Transfer Agent, 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.
5. Fees and Expenses.
5.1 Fee and Service Schedules. Customer agrees to pay Transfer Agent 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.
5.2 Fees. Providing that the service mix and volumes remain constant, the
fees listed in the Fee and Service Schedule shall be negotiated in good faith by
both parties at least 60 days prior to the end of the term of the Fee and
Service Schedule. This Agreement shall remain in effect unless terminated in
accordance with Section 13.
5.3 Adjustment. Notwithstanding Section 5.1 above, fees, and the
out-of-pocket expenses and advances identified under Section 5.4 below, may be
changed from time to time as agreed upon in writing between the Transfer Agent
and the Customer.
5.4 Out-of-Pocket Expenses. In addition to the fees paid under Section 5.1
above, the Customer agrees to reimburse the Transfer Agent for 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.
5.5. 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.
5.6 Invoices. The Customer agrees to pay all fees and reimbursable
expenses upon receipt 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 a mutually agreed upon timeframe 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.
5.7 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.
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5.8 Late Payments. 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
13.4(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.
5.9 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 standard services, and fees for these
services will be communicated in writing prior to the service.
5.10 Bank Accounts. The Customer acknowledges that the Transfer Agent may
receive float benefits and/or investment earnings in connection with maintaining
certain bank accounts required to provide services under this Agreement (e.g.
dividend disbursing accounts).
6. Representations and Warranties of Transfer Agent.
6.1 Governance. EquiServe Trust Company, N.A., is a federally chartered
limited purpose national bank duly organized under the laws of the United States
and EquiServe Limited Partnership is a limited partnership validly existing and
in good standing under the laws of the State of Delaware and they have 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.
6.2 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 governmental or
regulatory official, body or authority which is applicable to EquiServe, (iii)
the incorporation documents or by-laws of, or any material agreement to which
Transfer Agent is a party.
6.3 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.
7. Representations and Warranties of Customer.
The Customer represents and warrants to the Transfer Agent that:
7.1 Organizations. It is a corporation duly organized and existing and in
good standing under the laws of the State of Maryland or the Commonwealth of
Massachusetts;
7.2 Governance. It is empowered under applicable laws and by its Articles
of Incorporation or Declaration of Trust and By-Laws to enter into and perform
this Agreement.
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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
7.3 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.
8. Indemnification.
The Customer covenants and agrees to indemnify and to hold the Transfer
Agent harmless against any costs, expenses (including reasonable fees of its
legal counsel), losses or damages, which may be paid, incurred or satisfied by
or to which it may become subject, arising from or out of, directly or
indirectly, any claims or liability resulting from its actions as Transfer Agent
pursuant to this Agreement; provided, that such covenant and agreement does not
extend to, and the Transfer Agent shall not be indemnified with respect to, such
costs, expenses, losses and damages incurred or suffered by the Transfer Agent
as a result of, or arising out of, its negligence, bad faith, or willful
misconduct. Promptly after the receipt by the Transfer Agent of notice of any
demand or claim or the commencement of any action, suit, proceeding or
investigation, the Transfer Agent shall, if a claim in respect thereof is to be
made against the Customer, notify the Customer thereof in writing. The Customer
shall be entitled to participate at its own expense in the defense of any such
claim or proceeding, and, if it so elects at any time after receipt of such
notice, it may assume the defense of any suit brought to enforce any such claim
or of any other legal action or proceeding. For the purposes of this Section,
the term "expense or loss" means any amount paid or payable to satisfy any
claim, demand, action, suit or proceeding settled with the express written
consent of the Transfer Agent, and all reasonable costs and expenses, including,
but not limited to, reasonable counsel fees and disbursements, paid or incurred
in investigating or defending against any such claim, demand, action, suit,
preceding or investigation.
8.1 Standard of Care. The Transfer Agent shall at all times act in good
faith and with reasonable care, and agrees to use its best efforts within
reasonable 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.
9. Damages.
NEITHER 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.
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10. 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:
10.1 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
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 Transfer Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
10.2 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.
10.3 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 acquire a pecuniary interest 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.
10.4 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.
11. Covenants of the Customer and Transfer Agent.
11.1 Customer Corporate Authority. The Customer has already furnished, to
the Transfer Agent the following:
(a) A copy of the Articles of Incorporation and By-Laws of the
Customer;
(b) 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
(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.
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11.2 Transfer Agent Facilities. The Transfer Agent hereby agrees to
establish and maintain facilities and procedures reasonably acceptable to the
Customer for the safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any, and for the preparation, use, and
recordkeeping of such certificates, forms and devices.
11.3 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.
11.4 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.
11.5 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.
11.6 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 creditors'
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.
12. Confidentiality.
12.1 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 Customer agent for purposes of
providing services under this Agreement.
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12.2 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 by
law or court order.
12.3 Xxxxx-Xxxxx Xxxxxx Act. Notwithstanding any provision herein to the
contrary, each party hereto agrees that any Nonpublic Personal Information, as
defined under Section 248.3(t) of Regulation S-P ("Regulation S-P"), promulgated
under the Xxxxx-Xxxxx-Xxxxxx Act (the "Act"), disclosed by a party hereunder is
for the specific purpose of permitting the other party to perform the services
set forth in this Agreement. Each party agrees that, with respect to such
information, it will comply with Regulation S-P and the Act to the extent they
are applicable to it and that it will not disclose any Nonpublic Personal
Information received in connection with this Agreement to any other party,
except to the extent as necessary to carry out the services set forth in this
Agreement and consistent with such other party's privacy notice to its
customers, or as otherwise permitted by Regulation S-P or the Act.
13. Termination.
13.1 This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
Should the Fund exercise its right to terminate, all out-of-pocket expenses
associated with the movement of records and material will be borne by the Fund.
Additionally, the Transfer Agent reserves the right to charge for any other
reasonable expenses associated with such termination and charge the equivalent
to the average of three (3) month's fees. Payment of such expenses or costs
shall be in accordance with Section 5.6 of this agreement.
14. Assignment
14.1 Affiliates. The Transfer Agent may, upon written consent to and from
the Customer, assign its right and obligations hereunto to any affiliated and
registered transfer agent under Section 17(A)(c)(2) of the Securities and
Exchange Act.
14.2 Sub-contractors. Transfer Agent may, without further consent on the
part of Customer, subcontract with DST Output; provided, however, that the
Transfer Agent shall be fully responsible to the Customer for the acts and
omissions of any subcontractor as it is for its own acts and omissions. Transfer
Agent will obtain consent from Customer for utilizing any other subcontractors
not listed.
15. 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
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telecommunication companies, provided, if the Transfer Agent selected such
company, the Transfer Agent shall have exercised due care in selecting the same.
16. Miscellaneous.
16.1 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:
Xxxxxxx Xxxxx Asset Management
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxxx Xxxxx
If to the Transfer Agent:
State Street Bank And Trust Company
c/o EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: President
The Transfer Agent and the Customer may, by notice to the other, designate
additional or different addresses for subsequent notices or communications.
16.2 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.
16.3 Amendments.
This Agreement may be amended or modified by a written amendment executed
by both parties hereto and authorized or approved by a resolution of the Board
of Directors of the customer.
16.4 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
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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.
16.5 Governing Law.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts without reference to the conflict of laws provisions of the
Commonwealth of Massachusetts.
16.6 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.
16.7 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.
16.8 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
right shall be granted to any other person by virtue of this Agreement, and
there are no third party beneficiaries hereof.
16.9 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.
16.10 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.
16.11 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.
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16.12 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.
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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.
Xxxxxxx Xxxxx Investment Managers
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
OR
EquiServe Trust Company, N.A. EquiServe Limited Partnership
By: By:
--------------------------- ----------------------------------
Name: Name:
------------------------- --------------------------------
Title: Title:
------------------------ -------------------------------
14
Schedule A
Corporate High Yield Fund, Inc. (Par Value $0.10)
Corporate High Yield Fund II, Inc. (Par Value $0.10)
Corporate High Yield Fund III, Inc. (Par Value $0.10)
Corporate High Yield Fund IV, Inc. (Per Value $0.10)
Corporate High Yield Fund V, Inc. (Par Value $0.10)
MuniEnhanced Fund, Inc. (Par Value $0.10)
MuniInsured Fund, Inc, (Par Value $0.10)
MuniHoldings Insured Fund II, Inc. (Par Value $0.10)
MuniHoldings Michigan Insured Fund II, Inc. (Par Value $0.10)
MuniYield California Insured Fund II, Inc. (Par Value $0.10)
MuniYield Insured Fund, Inc. (Par Value $0.10)
MuniYield Pennsylvania Insured Fund (Par Value $0.10)
MuniYield Quality Fund, Inc. (Par Value $0.10)
The S & P Protected Equity Fund, Inc. (Par Value $0.10)
15
