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Exhibit (k)(1)
TRANSFER AGENCY AND SERVICES AGREEMENT
AGREEMENT dated as of October 19, 1998, between Xxxxx Xxxxx Senior Income
Trust (the "Fund"), a voluntary association commonly known as a "Massachusetts
business trust" having its principal place of business at 00 Xxxxxxx Xxxxxx,
Xxxxxx, XX 00000, and FIRST DATA INVESTOR SERVICES GROUP, INC. (the "Transfer
Agent" or "FDISG"), a Massachusetts corporation with principal offices at 0000
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H:
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WHEREAS, the Fund desires to retain FDISG as its transfer agent, dividend
disbursing agent and agent in connection with certain other activities, and
FDISG desires to provide such services on the terms herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and FDISG agree as follows:
1. Definitions. Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
(a) "Articles of Organization" shall mean the Articles of Organization,
Declaration of Trust or other charter document of the Fund, as the same may be
amended from time to time;
(b) "Authorized Person" shall be deemed to include any person duly
authorized to give Oral Instructions or Written Instructions on behalf of the
Fund as indicated in writing to FDISG from time to time;
(c) "Commission" shall mean the Securities and Exchange Commission;
(d) "Counsel" shall mean (i) outside legal counsel of the Fund in its
capacity as such and (ii) outside legal counsel of FDISG if such counsel has
been specifically authorized by an Authorized Person of the Fund to render its
opinion on the matter that has arisen;
(e) "Custodian" refers to the custodian and any sub-custodian of all
securities and other property which the Fund may from time to time deposit, or
cause to be deposited or held under the name or account of such custodian duly
engaged by the Fund;
(f) "Trustees" or "Board of Trustees" refers to the duly elected Trustees
or Directors of the Fund;
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(g) "Oral Instructions" shall mean instructions, other than Written
Instructions, actually received by FDISG from a person reasonably believed by
FDISG to be an Authorized Person;
(h) "Prospectus" shall mean the Fund's current prospectus and statement of
additional information, including any supplements thereto, relating to the
registration of the Fund's Shares under the Securities Act of 1933, as amended,
and the 1940 Act;
(i) "Shares" refers to the shares of beneficial interest or common stock of
the Fund (which may be divided into classes);
(j) "Shareholder" means a record owner of Shares;
(k) Written Instructions" means any written communication signed by an
Authorized Person and actually received by FDISG, and shall include manually
executed originals and authorized electronic transmissions of such originals
(including telefacsimile); and
(l) The "1940 Act" refers to the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, all as amended from time to time.
2. Appointment of FDISG. The Fund hereby appoints FDISG as transfer agent
for its Shares and as shareholder servicing agent for the Fund, and FDISG
accepts such appointment and agrees to perform the duties hereinafter set forth.
3. Duties of FDISG.
(a) FDISG shall be responsible for administering and/or performing transfer
agent functions; for acting as service agent in connection with dividend and
distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance and transfer
(including coordination with the Custodian) of Shares. Such duties are described
in the written Schedule of Duties of FDISG annexed hereto as Schedule A. FDISG
shall also act in accordance with the terms of the Prospectus of the Fund,
applicable law and the procedures established from time to time between FDISG
and the Fund.
(b) FDISG shall record the issuance of Shares and maintain pursuant to Rule
17Ad-10(e) under the Securities Act of 1934 a record of the total number of
Shares of the Fund which are authorized (with due authorization based upon data
provided by the Fund), issued and outstanding. FDISG shall provide the Fund on a
regular basis with such information but shall have no obligation, when recording
the issuance of Shares, to monitor the legality of issuance of Shares or to take
cognizance of any laws relating to the proper issue or sale of such Shares,
which functions shall be the sole responsibility of the Fund (or its
administrator).
(c) FDISG shall serve as agent for Shareholders pursuant to the Fund's
dividend reinvestment plan, as amended from time to time.
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(d) FDISG acknowledges that the Funds' administrator, Xxxxx Xxxxx
Management ("EVM"), currently employs personnel to provide shareholders with,
among other things, information regarding their accounts and transaction
procedures of FDISG. FDISG acknowledges that EVM is not responsible for transfer
agency services to the Fund. In the event FDISG determines that a particular
transaction requested by a shareholder cannot be processed because it is not
permitted by law or procedures established hereby but EVM or Fund personnel
desire the transaction to be so processed, then FDISG shall nonetheless process
the transaction if EVM provides a standard form indemnification to FDISG. At the
request of EVM, FDISG shall provide a written explanation for its decision.
4. Recordkeeping, and Other Information.
(a) FDISG shall create and maintain all records required of it pursuant to
its duties hereunder and as set forth in Schedule A in accordance with all
applicable laws, rules and regulations, including records required by Section
31(a) of the 1940 Act and the rules thereunder. Where applicable, such records
shall be maintained by FDISG for the periods and the places required by Rule
31a-2 under the 1940 Act.
(b) FDISG agrees that all such records prepared or maintained by FDISG
relating to the services to be performed by FDISG hereunder are the property of
the Fund, and will be surrendered promptly to the Fund on and in accordance with
the Fund's request.
(c) In case of any requests or demands for the inspection of Shareholder
records of the Fund by third parties, FDISG will endeavor to notify the Fund of
such request and secure Written Instructions as to the handling of such request.
FDISG reserves the right, however, to exhibit the Shareholder records to any
person whenever it is required to do so by law.
5. Fund Instructions - Limitations of Liability.
(a) FDISG will have no liability when acting in conformance with Written or
Oral Instructions reasonably believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Fund. FDISG will also have no liability when processing Share
certificates which it reasonably believes them to bear the proper manual or
facsimile signatures of the Officers of the Fund and the proper countersignature
of FDISG.
(b) At any time, FDISG may apply to any Authorized Person of the Fund for
Written Instructions and may, after obtaining prior oral or written approval by
an Authorized Person, seek advise from Counsel with respect to any matter
arising in connection with this Agreement, and it shall not be liable for any
action taken or not taken or suffered by it in good faith in accordance with
such Written Instructions or in accordance with this opinion of Counsel. Written
Instructions requested by FDISG will be provided by the Fund within a reasonable
period of time. In addition, FDISG, its Officers, agents or employees, shall
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accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is
known by FDISG, or its Officers, agents or employees, to be an Authorized
Person. FDISG shall have no duty or obligation to inquire into, nor shall FDISG
be responsible for, the legality of any act done by it upon the request or
direction of an Authorized Person.
(c) Notwithstanding any of the foregoing provisions of this Agreement,
FDISG shall be under no duty or obligation to inquire into, and shall not be
liable for: (i) the legality of the issuance or sale of any Shares or the
sufficiency of the amount to be received therefor; (ii) the propriety of the
amount per share to be paid on any redemption; (iii) the legality of the
declaration of any dividend by the Trustees, or the legality of the issuance of
any Shares in payment of any dividend; or (iv) the legality of any
recapitalization or readjustment of the Shares.
(d) FDISG will not be liable or responsible for delays or errors by reason
of circumstances beyond its control, including acts of civil or military
authority, national emergencies, fire, mechanical breakdown beyond its control,
flood, acts of God, insurrection, war, riots, and loss of communication or power
supply, provided, however, that FDISG shall have acted in accordance with its
Disaster Recovery Plan previously provided to the Xxxxx Xxxxx Group of Funds,
which may be amended from time to time by agreement of the Fund and FDISG.
6. Compensation.
(a) The Fund will compensate FDISG for the performance of its obligations
hereunder in accordance with the fees set forth in the written schedule of fees
annexed hereto as Schedule B and incorporated herein.
(b) Out-of-pocket disbursements shall mean the items specified in the
written schedule of out-of-pocket charges annexed hereto as Schedule C and
incorporated herein. Reimbursement by the Fund for such out-of-pocket
disbursements incurred by FDISG in any month shall be made as soon as
practicable after the receipt of an itemized xxxx from FDISG. Reimbursement by
the Fund for expenses other than those specified in Schedule C shall be upon
mutual agreement of the parties as provided in Schedule C.
(c) FDISG will xxxx the Fund as soon as practicable after the end of each
calendar month, and said xxxxxxxx will be detailed in accordance with Schedule
B. The Fund will promptly pay to FDISG the amount of such billing.
(d) The parties agree to review at least annually at a Trustees' meeting of
the Fund the services provided, cost thereof, and fees and expenses charged,
including comparative information regarding the transfer agency industry. The
compensation agreed to hereunder may be adjusted from time to time by attaching
to this Agreement a revised Schedule, dated and executed by the parties hereto.
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7. Documents. In connection with the appointment of FDISG, the Fund shall
upon request, on or before the date this Agreement goes into effect, but in any
case within a reasonable period of time for FDISG to prepare to perform its
duties hereunder, furnish FDISG with the following documents:
(a) A certified copy of the Articles of Organization and By-Laws of the
Fund, as amended;
(b) A copy of the resolution of the Trustees authorizing the execution and
delivery of this Agreement;
(c) If applicable, a specimen of the certificate for Shares of the Fund in
the form approved by the Trustees, with a certificate of an Officer of the Fund
as to such approval;
(d) All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered by the Fund; and
(e) With respect to any Fund previously serviced by another transfer agent,
to the extent practicable a certified list of Shareholders of the Fund with the
name, address and taxpayer identification number of each Shareholder, and the
number of shares of the Fund held by each, certificate numbers and denominations
(if any certificates have been issued), lists of any accounts against which stop
transfer orders have been placed, together with the reasons therefor, and the
number of Shares redeemed by the Fund.
8. Representations and Warranties.
(a) FDISG represents and warrants to the Fund that:
(i) it is a corporation duly organized, existing and in good standing under
the laws of the Commonwealth of Massachusetts;
(ii) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(iii) all requisite corporate proceedings have been taken to authorize it
to enter into this Agreement;
(iv) FDISG will maintain its registration as a transfer agent as provided
in Section 17A(c) of the Securities Act of 1934, as amended, (the "1934 Act")
and shall comply with all applicable provisions of Section 17A of the 1934 Act
and the rules promulgated thereunder, as may be amended from time to time,
including rules relating to record retention;
(v) it has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement;
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(vi) to the best of its knowledge, the various procedures and systems which
FDISG has implemented or will implement with regard to safeguarding from loss or
damage attributable to fire, theft or any other cause (including provision for
24 hours-a-day restricted access) of the Fund's records and other data and
FDISG's records, data, equipment, facilities and other property used in the
performance of its obligations hereunder are adequate and that it will make such
changes therein from time to time as in its judgement are required for the
secure performance of its obligations hereunder. The parties shall review such
systems and procedures on a periodic basis; and
(vii) it maintains adequate insurance to enable it to continue its
operations as described herein, including coverage for Year 2000 system
failures. FDISG shall notify the Fund should any of its insurance coverage as
set forth in Schedule F attached hereto be changed for any reason. Such
notification shall include the date of change and reason or reasons therefor.
FDISG shall notify the Fund of any claims against it whether or not they may be
covered by insurance and shall notify the Fund from time to time as may be
appropriate, and at lest within 30 days following the end of each fiscal year of
FDISG, of the total outstanding claims made by FDISG under its insurance
coverage.
(b) The Fund represents and warrants to FDISG that:
(i) it is duly organized, existing and in good standing under the laws of
the jurisdiction in which it is organized;
(ii) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into this Agreement;
(iii) all corporate proceedings required by said Articles of Incorporation,
By-Laws and applicable laws have been taken to authorize it to enter into this
Agreement;
(iv) a registration statement under the Securities Act of 1933, as amended,
and/or the 1940 Act is currently effective and will remain effective, and all
appropriate state securities law filings have been made and will continue to be
made, with respect to all Shares of the Fund being offered for sale; and
(v) all outstanding Shares are validly issued, fully paid and
non-assessable and when Shares are hereafter issued in accordance with the terms
of the Fund's Articles of Incorporation and its Prospectus, such Shares when
issued shall be validly issued, fully paid and non-assessable.
9. Duty of Care and Indemnification.
(a) Each party shall fulfill its obligations hereunder by acting with
reasonable care and in good faith;
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(b) The Fund will indemnify FDISG against and hold it harmless from any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action or suit not
resulting from the bad faith or negligence of FDISG, and arising out of, or in
connection with, its duties on behalf of the Fund hereunder. In addition, the
Fund will indemnify FDISG against and hold it harmless from any and all losses,
claims, damages, liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any claim, demand, action or suit as a result of : (i)
any action taken in accordance with Written or Oral Instructions, or share
certificates reasonably believed by FDISG to be genuine and to be signed,
countersigned or executed, or orally communicated by an Authorized Person; (ii)
any action taken in accordance with written or oral advice reasonably believed
by FDISG to have been given by counsel for the Fund; or (iii) any action taken
as a result of any error or omission in any record which FDISG had no reasonable
basis to believe was inaccurate (including but not limited to magnetic tapes,
computer printouts, hard copies and microfilm copies) and was delivered, or
caused to be delivered, by the Fund to FDISG in connection with this Agreement;
(c) FDISG will indemnify the Fund against and hold it harmless from any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action or suit not
resulting from the bad faith or negligence of the Fund, or arising out of, or in
connection with, FDISG's breach of this Agreement;
(d) In any case in which a party may be asked to indemnify or hold the
other party harmless, the indemnifying party shall be advised of all pertinent
facts concerning the situation in question and the party seeking indemnification
shall notify the indemnifying party promptly concerning any situation which
presents or appears likely to present a claim for indemnification. The
indemnifying party shall have the option to defend against any claim which may
be the subject of this indemnification and, in the event that the indemnifying
party so elects, such defense shall be conducted by counsel chosen by the
indemnifying party, and thereupon the indemnifying party shall take over
complete defense of the claim and the party seeking indemnification shall
sustain no further legal or other expenses in such situation for which it seeks
indemnification. The party seeking indemnification will not confess any claim or
make any compromise in any case in which the indemnifying party will be asked to
provide indemnification, except with the indemnifying party's prior written
consent; and
(e) The obligations of the parties hereto under this Section shall survive
the termination of this Agreement.
10. Terms and Termination.
(a) Either party may terminate this Agreement without cause on or after
July 31, 2002 by giving 180 days written notice to the other party;
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(b) Either party may terminate this Agreement if the other party has
materially breached the Agreement by giving the defaulting party 30 days written
notice and the defaulting party has failed to cure the breach within 60 days
thereafter; and
(c) Any written notice of termination shall specify the date of
termination. The Fund shall provide notice of the successor transfer agent
within 30 days of the termination date. Upon termination, FDISG will deliver to
such successor a certified list of shareholders of the Fund (with names,
addresses and taxpayer identification of Social Security numbers and such other
federal tax information as FDISG may be required to maintain), an historical
record of the account of each shareholder and the status thereof, and all other
relevant books, records, correspondence, and other data established or
maintained by the books, records, correspondence, and other data established or
maintained by FDISG under this Agreement in the form reasonably acceptable to
the Fund, and will cooperate in the transfer of such duties and
responsibilities, including provisions for assistance from FDISG's personnel in
the establishment of books, records and other data by such successor or
successors. FDISG shall be entitled to its out-of-pocket expenses set forth in
Schedule C incurred in the delivery of such records net of the fees owed to
FDISG for the last month of service if this Agreement is terminated pursuant to
paragraph (b) immediately above.
(d) If a majority of the non-interested trustees of any of the Funds
determines, in the exercise of their fiduciary duties and pursuant to their
reasonable business judgement after consultation with Xxxxx Xxxxx Management,
that the performance of FDISG has been unsatisfactory or adverse to the
interests of shareholders of any Fund or Funds or that the terms of the
Agreement are no longer consistent with publicly available industry standards,
then the Fund or Funds shall give written notice to FDISG of such determination
and FDISG shall have 60 days (or such longer period if the non-interested
Trustees so determine) to (1) correct such performance to the satisfaction of
the non-interested trustees or (2) renegotiate terms which are satisfactory to
the non-interested trustees of the Funds. If the conditions of the preceding
sentence are not met then the Fund or Funds may terminate this Agreement on
sixty (60) days written notice provided, however, that the provisions of
Paragraph 11(c) shall remain outstanding for an additional 30 days if necessary
to transfer records to a successor transfer agent.
(e) If the Board of Trustees hereafter establishes and designates a new
Fund, FDISG agrees that it will act as transfer agent and shareholder servicing
agent for such new Fund in accordance with the terms set forth herein. The
Trustees shall cause a written notice to be sent to FDISG to the effect that it
has established a new Fund and that it appoints FDISG as transfer agent and
shareholder servicing agent for the new Fund. Such written notice must be
received by FDISG in a reasonable period of time prior to the commencement of
operations of the new Fund to allow FDISG, in the ordinary course of its
business, to prepare to perform its duties.
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11. Confidentiality of Records.
(a) FDISG agrees to treat all records and other information relative to the
Fund and its prior, present or potential Shareholders in confidence except that,
after prior notification to and approval in writing by the Fund, which approval
shall not be unreasonably withheld and may not be withheld where FDISG may be
exposed to civil or criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted authorities, or when
so requested by the Fund.
(b) FDISG shall make available during regular business hours all records
and other data created and maintained pursuant to this Agreement for reasonable
audit and inspection by the Fund, or any person retained by the Fund. Upon
reasonable notice by the Fund, FDISG shall make available during regular
business hours its facilities and premises employed in connection with its
performance of this Agreement for reasonable visitation by the Fund, or any
person retained by the Fund, to inspect its operating capabilities or for any
other reason.
(c) The Fund agrees to keep all records and information of FDISG (including
trade secrets) in confidence, unless such is required to be divulged pursuant to
law or where the Fund may be exposed to or criminal contempt proceedings for
failure to comply. FDISG acknowledges that such records and information may be
disclosed to Xxxxx Xxxxx Management personnel and to Fund auditors consistent
with the responsibilities of such parties, and in such cases the Fund shall take
reasonable precautions to safeguard the confidentiality of such data to the
extent practicable.
12. Amendment, Assignment and Subcontracting.
(a) This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties.
(b) This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that any
assignment of this Agreement (as defined in the 0000 Xxx) to an entity shall
require the written consent of the other party.
(c) The Fund agrees that FDISG may, in its discretion, subcontract for
certain of the services described under this Agreement or the Schedules hereto;
provided that the appointment of any such Agent shall not relieve FDISG of its
responsibilities hereunder.
13. Use of Trade Names.
(a) FDISG shall approve all reasonable uses of its name which merely refer
in accurate terms to its appointment hereunder or which are required by the
Commission or a state securities commission. Notwithstanding the foregoing, any
reference to FDISG shall include a statement to the effect that it is a wholly
owned subsidiary of First Data Corporation.
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(b) FDISG shall not use the name of the Fund or material relating to the
Fund on any documents or forms for other than internal use in a manner not
approved prior thereto in writing; provided, that the Fund shall approve all
reasonable uses of its name which merely refer in accurate terms to the
appointment of FDISG or which are required by the Commission or a state
securities commission.
14. Notice. Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or FDISG, shall be sufficiently
given if addressed to that party and received by it at its office set forth
below or at such other place as it may from time to time designate in writing.
To the Fund:
Xxxxx Xxxxx Senior Income Trust
00 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Fund Secretary
To FDISG:
First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
with a copy to FDISG's General Counsel
15. Governing Law/Venue. The laws of the Commonwealth of Massachusetts,
excluding the laws on conflicts of laws, shall govern the interpretation,
validity, and enforcement of this agreement. All actions arising from or related
to this Agreement shall be brought in the state and federal courts sitting in
the City of Boston, and the parties hereby submit themselves to the exclusive
jurisdiction of those courts.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original; but such
counterparts shall, together, constitute only one instrument.
17. Captions. The captions of this Agreement are included for convenience
or reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect.
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18. Severability. The parties intend every provision of this Agreement to
be severable. If a court of competent jurisdiction determines that any term or
provision is illegal or invalid for any reason, the illegality or invalidity
shall not affect the validity of the remainder of this Agreement. In such case,
the parties shall in good faith modify or substitute such provision consistent
with the original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement failed
of its essential purpose, then all provisions of this Agreement, including the
limitations on liability and exclusion of damages, shall remain fully effective.
19. Liability of Trustees, Officers and Shareholders. The execution and
delivery of this Agreement have been authorized by the Trustees of the Fund and
signed by an authorized Officer of the Fund, acting as such, and neither such
authorization by such Trustees nor such execution and delivery by such Officer
shall be deemed to have been made by any of them individually or to impose any
liability on any of them personally, and the obligations of this Agreement are
not binding upon any of the Trustees or shareholders of the Fund, but bind only
the property of the Fund. No class of the Fund shall be liable for the
obligations of another class.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective Officers thereunder duly authorized as of the day
and year first above written.
Xxxxx Xxxxx Senior Income Trust
Attest: /s/ Xxxx X. Xxxxxxxx By: /s/ Payson S. Swaffied
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First Data Investors Services Group, Inc.
Attest: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxxxx
---------------------- ------------------------
Xxxxxx X. Xxxxxxxx Xxxx Xxxxxxxx
Executive Vice President
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SCHEDULE A
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DUTIES OF FDISG
1. Shareholder Information. FDISG shall maintain a record of the number of
Shares held by each Shareholder of record which shall include name, address,
taxpayer identification and which shall indicate whether such Shares are held in
certificates or uncertificated form.
2. Shareholder Services. FDISG will investigate all shareholder inquiries
relating to Shareholder accounts and will answer all communications from
Shareholders and others with respect to its duties hereunder. FDISG shall keep
records of all Shareholder correspondence and replies thereto, and of lapse of
time between the receipt of such correspondence and the mailing of such replies.
3. Share Certificates.
(a) At the expense of the Fund, the Fund shall supply FDISG with an
adequate supply of blank share certificates to meet FDISG requirements therefor.
Such Share certificates shall be properly signed by facsimile. The Fund agrees
that, notwithstanding the death, resignation, or removal of any officer of the
Fund whose signature appears on such certificates, FDISG or its agent may
continue to countersign certificates which bear such signatures until otherwise
directed by Written Instructions.
(b) FDISG shall issue replacement Share certificates in lieu of
certificates which have been lost, stolen or destroyed, upon receipt by FDISG of
properly executed affidavits and lost certificate bonds, in form satisfactory to
FDISG, with the Fund and FDISG as obligees under the bond.
(c) FDISG shall also maintain a record of each certificate issued, the
number of Shares represented thereby and the Shareholder of record. With respect
to Shares held in open accounts or uncertificated form (i.e., no certificate
being issued with respect thereto) FDISG shall maintain comparable records of
the Shareholders thereof, including their names, addresses and taxpayer
identification numbers. FDISG shall further maintain a stop transfer record on
lost and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials. FDISG will
address and mail to Shareholders of the Fund, all reports to Shareholders,
dividend and distribution notices and proxy material for the Fund's meetings of
Shareholders, and such other communications as the Fund may authorize. In
connection with meetings of Shareholders, FDISG will prepare Shareholder lists,
mail and certify as to the mailing of proxy materials, process and tabulate
returned proxy cards, report on proxies voted prior to meetings, act as
inspector of election at meetings and certify Shares voted at meetings.
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5. Transfer of Shares.
(a) FDISG shall process all requests to transfer Shares in accordance with
the transfer procedures set forth in the Fund's Prospectus.
(b) FDISG will transfer Shares upon receipt of Written Instructions or
otherwise pursuant to the Prospectus and Share certificates, if any, properly
endorsed for transfer, accompanied by such documents as FDISG reasonably may
deem necessary.
(c) FDISG reserves the right to refuse to transfer Shares until it is
satisfied that the endorsement on the instructions is valid and genuine. FDISG
also reserves the right to refuse to transfer Shares until it is satisfied that
the requested transfer is legally authorized, and it shall incur no liability
for the refusal, in good faith, to make transfers which FDISG in its good
judgment, deems improper or unauthorized, or until it is reasonably satisfied
that there is no basis to any claims adverse to such transfer.
7. Dividends.
(a) Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to Shares of the
Fund, the Fund shall furnish or cause to be furnished to FDISG Written
Instructions setting forth the date of the declaration of such dividend or
distribution, the ex-dividend date, the date of payment thereof, the record date
as of which Shareholders entitled to payment shall be determined, the amount
payable per Share to the Shareholders of record as of that date, the total
amount payable on the payment date and whether such dividend or distribution is
to be paid in Shares at net asset value.
(b) On or before the payment date specified in such resolution of the Board
of Directors, the Fund will provide FDISG with sufficient cash to make payment
to the Shareholders of record as of such payment date.
(c) If FDISG does not receive sufficient cash from the Fund to make total
dividend and/or distribution payments to all Shareholders of the Fund as of the
record date, FDISG will, upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until sufficient cash is provided
to FDISG.
8. Miscellaneous
In addition to and neither in lieu nor in contravention of the services set
forth above, FDISG shall perform all the customary services of a transfer agent
registrar dividend disbursing agent and agent of the dividend reinvestment plan
as described herein consistent with those requirements in effect as at the date
of this Agreement. The detailed definition, frequency, limitations and
associated costs (if any) set out in the attached fee schedule, include but are
not limited to: maintaining all Shareholder accounts, preparing Shareholder
meeting lists, mailing proxies, tabulating proxies, mailing Shareholder reports
to current Shareholders, withholding taxes on U.S. resident and non-resident
alien accounts where applicable, preparing and filing U.S. Treasury Department
Forms 1099 and other appropriate forms required with respect to dividends and
distributions by federal authorities for all registered Shareholders.
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SCHEDULE B
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FEE SCHEDULE
1. Initial Public Offering Fees
IPO Project Administration Fee: $10,000.00
IPO Project Administration Fee covers:
Issuance of up to 1,000 certificates - Issuance of certificates in
excess of 1,000 to be billed at $2.00 per certificate
Administrative coordination with IPO client, underwriter and legal
representatives
Attendance at closing (out of pocket expenses associated with such
attendance will be billed as incurred)
Set-up, testing and implementation of electronic settlement and
delivery of shares through The Depository Trust Company
2. Over-allotment Fee: $5,000.00
Applies in the event that the underwriters elect to exercise an
over-allotment option which requires a second closing
3. Standard Service Fees: The following fees shall apply with respect to the
initial class of shares offered by the Fund. Should the Fund issue
additional classes of shares, the fees for such shall be mutually agreed to
in writing by the parties.
Annual Service Fee $15.00 Per Account
Monthly Minimum Fee $5,000.00
After the one year anniversary of the effective date of this Agreement,
FDISG may adjust the above fees once per calendar year, upon thirty
(30) days prior written notice in an amount not to exceed the
cumulative percentage increase in the Consumer Price Index for All
Urban Consumers (CPI-U) U.S. City Average, All items (unadjusted) -
(1982-84=100), published by the U.S. Department of Labor since the last
such adjustment in the Fund's monthly fees (or the Effective Date
absent a prior such adjustment).
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SCHEDULE C
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OUT-OF-POCKET EXPENSES
The Fund shall reimburse FDISG monthly for applicable out-of-pocket
expenses, including, but not limited to the following items:
- Microfie/microfilm production
- Magnetic media tapes and freight
- Printing costs, including certificates, envelopes, checks and
stationery
- Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct pass
through to the Fund
- Due diligence mailings
- Telephone and telecommunication costs, including all lease, maintenance
and line costs
- Ad hoc reports
- Proxy solicitations, mailings and tabulations
- Daily & Distribution advice mailings
- Shipping, Certified and Overnight mail and insurance
- Year-end form production and mailings
- Terminals, communication lines, printers and other equipment and any
expenses incurred in connection with such terminals and lines
- Duplicating services
- Courier services
- Incoming and outgoing wire charges
- Federal Reserve charges for check clearance
- Overtime, as approved by the Fund
- Temporary staff, as approved by the Fund
- Travel and entertainment, as approved by the Fund
- Record retention, retrieval and destruction costs, including, but not
limited to exit fees charged by third party record keeping vendors
- Third party audit reviews
- Ad hoc SQL time Insurance
- Such other miscellaneous expenses reasonably incurred by FDISG in
performing its duties and responsibilities under this Agreement.
The Fund agrees that postage and mailing expenses will be paid on the day
of or prior to mailing as agreed with FDISG. In addition, the Fund will promptly
reimburse FDISG for any other unscheduled expenses incurred by FDISG whenever
the Fund and FDISG mutually agree that such expenses are not otherwise properly
borne by FDISG as part of its duties and obligations under the Agreement.
