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