AMENDED AND RESTATED
TRANSFER AGENCY AND SERVICE AGREEMENT
with
XXXX XXXXXX TRUST FSB
[closed-end funds]
TABLE OF CONTENTS
Page
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Article 1 Terms of Appointment. . . . . . . . . . . . . . . . . .1
Article 2 Fees and Expenses . . . . . . . . . . . . . . . . . . .4
Article 3 Representations and Warranties of DWTFSB. . . . . . . .5
Article 4 Representations and Warranties of the Fund. . . . . . .5
Article 5 Duty of Care and Indemnification. . . . . . . . . . . .6
Article 6 Documents and Covenants of the Fund and DWTFSB. . . . .9
Article 7 Duration and Termination of Agreement . . . . . . . . .12
Article 8 Assignment. . . . . . . . . . . . . . . . . . . . . . .13
Article 9 Affiliations. . . . . . . . . . . . . . . . . . . . . .13
Article 10 Amendment . . . . . . . . . . . . . . . . . . . . . . .14
Article 11 Applicable Law. . . . . . . . . . . . . . . . . . . . .14
Article 12 Miscellaneous . . . . . . . . . . . . . . . . . . . . .14
Article 13 Merger of Agreement . . . . . . . . . . . . . . . . . .16
Article 14 Personal Liability. . . . . . . . . . . . . . . . . . .16
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AMENDEND AND RESTATED TRANSFER AGENCY AND SERVICE AGREEMENT
AMENDED AND RESTATED AGREEMENT made as of the first day of August,
1997 by and between each of the Funds listed on the signature page hereof, each
of such Funds acting severally on its own behalf and not jointly with any of
such other Funds (each such Fund hereinafter referred to as the "Fund"), each
such Fund having its principal office and place of business at Xxx Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, and XXXX XXXXXX TRUST FSB ("DWTFSB"), a
federally chartered savings bank, having its principal office and place of
business at Harborside Financial Center, Plaza Two, Xxxxxx Xxxx, Xxx Xxxxxx
00000.
WHEREAS, the Fund desires to appoint DWTFSB as its transfer agent,
dividend disbursing agent, shareholder servicing agent, registrar and agent in
connection with the Fund's Dividend Reinvestment Plan and DWTFSB desires to
accept such appointment;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
Article 1 TERMS OF APPOINTMENT; DUTIES OF DWTFSB
1.1 Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints DWTFSB to act as, and DWTFSB
agrees to act as, the transfer agent for each series and class of shares of the
Fund ("Shares"), dividend disbursing agent, shareholder servicing agent,
registrar and agent in connection with the Fund's Dividend Reinvestment Plan
(the "Plan").
1.2 DWTFSB agrees that it will perform the following services:
(a) In accordance with procedures established from time to time
by agreement between the Fund and DWTFSB shall:
(i) In accordance with instructions from the Fund given by
Certificate of the Secretary of the Fund, issue Shares upon receipt of payment
therefor, and issue certificates therefore or hold such Shares in book form in
the appropriate Shareholder account;
(ii) Effect transfers of Shares by the registered owners thereof
upon receipt of appropriate instructions;
(iii) Prepare and transmit payments for dividends and
distributions declared by the Fund in accordance with instructions and serve as
the plan agent for the Plan and purchase and issue shares in accordance with
such Plan;
(iv) Maintain records of account for and advise the Fund and its
Shareholders as to the foregoing;
(v) Record the issuance of Shares of the Fund and maintain
pursuant to Rule 17Ad-10(e) under the Securities Exchange Act of 1934 ("1934
Act") a record of the total number of Shares of the Fund which are authorized,
based upon data provided to it by the Fund, and issued and outstanding. DWTFSB
shall also provide to the Fund on a regular basis the total number of Shares
which are authorized, issued and outstanding and shall notify the Fund in case
any proposed issue of Shares by the Fund would result in an overissue. In case
any issue of
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Shares would result in an overissue, DWTFSB shall refuse to issue such Shares
and shall not countersign and issue any certificates requested for such Shares.
When recording the issuance of Shares, DWTFSB shall have no obligation to take
cognizance of any Blue Sky laws relating to the issue of sale of such Shares,
which functions shall be the sole responsibility of the Fund.
(b) In addition to and not in lieu of the services set forth in
the above paragraph (a), DWTFSB shall:
(i) perform all of the customary services of a transfer agent,
dividend disbursing agent, registrar and, as relevant, shareholder servicing
agent, including but not limited to, maintaining all Shareholder accounts,
preparing Shareholder meeting lists, mailing proxies, receiving and tabulating
proxies, mailing shareholder reports, withholding taxes on U.S. resident and
non-resident alien accounts, preparing and filing appropriate forms required
with respect to dividends and distributions by federal tax authorities for all
Shareholders, and providing Shareholder account information;
(ii) open any and all bank accounts which may be necessary or
appropriate in order to provide the foregoing services; and
(iii) provide a system that will enable the Fund to monitor the
total number of Shares sold in each State or other jurisdiction.
(c) DWTFSB shall provide such additional services and functions
not specifically described herein as may be mutually agreed between DWTFSB and
the Fund. Procedures applicable to such services may be established from time
to time by agreement between the Fund and DWTFSB.
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Article 2 FEES AND EXPENSES
2.1 For performance by DWTFSB pursuant to this Agreement, each
Fund agrees to pay DWTFSB an annual maintenance fee for each Shareholder account
and certain transactional fees, if applicable, as set out in the respective fee
schedule attached hereto as Schedule A. Such fees and out-of-pocket expenses
and advances identified under Section 2.2 below may be changed from time to time
subject to mutual written agreement between the Fund and DWTFSB.
2.2 In addition to the fees paid under Section 2.1 above, the
Fund agrees to reimburse DWTFSB for out-of-pocket expenses or advances incurred
by DWTFSB in connection with the services rendered by DWTFSB hereunder. In
addition, any other expenses incurred by DWTFSB at the request or with the
consent of the Fund will be reimbursed by the Fund.
2.3 The Fund agrees to pay all fees and reimbursable expenses
within a reasonable period of time following the mailing of the respective
billing notice. Postage for mailing of dividends, proxies, Fund reports and
other mailings to all Shareholder accounts shall be advanced to DWTFSB by the
Fund upon request prior to the mailing date of such materials.
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Article 3 REPRESENTATIONS AND WARRANTIES OF DWTFSB
DWTFSB represents and warrants to the Fund that:
3.1 It is a federally chartered savings bank whose principal
office is in New Jersey.
3.2 It is and will remain registered with the U.S. Securities
and Exchange Commission ("SEC") as a Transfer Agent pursuant to the requirements
of Section 17A of the 0000 Xxx.
3.3 It is empowered under applicable laws and by its charter and
By-Laws to enter into and perform this Agreement.
3.4 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
3.5 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
3.6 It complies and will continue to comply with New York Stock
Exchange Rule 496.
Article 4 REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to DWTFSB that:
4.1 It is a corporation duly organized and existing and in good
standing
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under the laws of Maryland or a trust duly organized and existing and in good
standing under the laws of Massachusetts, as the case may be.
4.2 It is empowered under applicable laws and by its Articles of
Incorporation or Declaration of Trust, as the case may be, and under its By-Laws
to enter into and perform this Agreement.
4.3 All corporate proceedings necessary to authorize it to enter
into and perform this Agreement have been taken.
4.4 It is a closed-end investment company registered with the
SEC under the Investment Company Act of 1940, as amended (the "1940 Act").
Article 5 DUTY OF CARE AND INDEMNIFICATION
5.1 DWTFSB shall not be responsible for, and the Fund shall
indemnify and hold DWTFSB harmless from and against, any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to:
(a) All actions of DWTFSB or its agents or subcontractors
required to be taken pursuant to this Agreement, provided that such actions are
taken in good faith and without negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Fund's lack of good faith, negligence
or willful misconduct or which arise out of breach of any representation or
warranty of the Fund hereunder.
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(c) The reliance on or use by DWTFSB or its agents or
subcontractors of information, records and documents which (i) are received by
DWTFSB or its agents or subcontractors and furnished to it by or on behalf of
the Fund, and (ii) have been prepared and/or maintained by the Fund or any other
person of firm on behalf of the Fund.
(d) The reliance on, or the carrying out by DWTFSB or its agents
or subcontractors of, any instructions or requests of the Fund.
(e) The offer or sale of Shares in violation of any requirement
under the federal securities laws or regulations or the securities or Blue Sky
laws of any State or other jurisdiction that such Shares be registered in such
State or other jurisdiction or in violation of any stop order or other
determination or ruling by any federal agency or any State or other jurisdiction
with respect to the offer or sale of such Shares in such State or other
jurisdiction.
5.2 DWTFSB shall indemnify and hold the Fund harmless from or
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributable to any action or failure
or omission to act by DWTFSB as a result of the lack of good faith, negligence
or willful misconduct of DWTFSB, its officers, employees or agents.
5.3 At any time DWTFSB may apply to any officer of the Fund for
instructions, and may consult with legal counsel to the Fund, with respect to
any matter arising in connection with the services to be performed by DWTFSB
under this Agreement, and DWTFSB
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and its agents or subcontractors shall not be liable and shall be indemnified by
the Fund for any action taken or omitted by it in reliance upon such
instructions or upon the opinion of such counsel. DWTFSB, its agents and
subcontractors shall be protected and indemnified in acting upon any paper or
document furnished by or on behalf of the Fund, 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 to DWTFSB or its
agents or subcontractors by machine readable input, telex, CRT data entry or
other similar means authorized by the Fund, and shall not be held to have notice
of any change of authority of any person, until receipt of written notice
thereof from the Fund. DWTFSB, 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 signature of the officers of the
Fund, and the proper countersignature of any former transfer agent or registrar,
or of a co-transfer agent or co-registrar.
5.4 In the event either party is unable to perform its
obligations under the terms of this Agreement because of acts of God, strikes,
equipment or transmission failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be liable for
damages to the other for any damages resulting from such failure to perform or
otherwise from such causes.
5.5 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for any
act or failure to act hereunder.
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5.6 In order that the indemnification provisions contained in
this Article 5 shall apply, upon the assertion of a claim for which either 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 party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
Article 6 DOCUMENTS AND COVENANTS OF THE FUND AND DWTFSB
6.1 The Fund shall promptly furnish to DWTFSB the following,
unless previously furnished to Xxxx Xxxxxx Trust Company, the prior transfer
agent of the Fund:
(a) If a corporation:
(i) A certified copy of the resolution of the Board of Directors
of the Fund authorizing the appointment of DWTFSB and the execution and delivery
of this Agreement;
(ii) A certified copy of the Articles of Incorporation and
By-Laws of the Fund and all amendments thereto;
(iii) Certified copies of each vote of the Board of Directors
designating
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persons authorized to give instructions on behalf of the Fund and signature
cards bearing the signature of any officer of the Fund or any other person
authorized to sign written instructions on behalf of the Fund.
(iv) A specimen of the certificate for Shares of the Fund in the
form approved by the Board of Directors, with a certificate of the Secretary of
the Fund as to such approval;
(b) If a business trust:
(i) a certified copy of the resolution of the Board of Trustees
of the Fund authorizing the appointment of DWTFSB and the execution and delivery
of this agreement;
(ii) A certified copy of the Declaration of Trust and By-Laws of
the Fund and all amendments thereto;
(iii) Certified copies of each vote of the Board of Trustees
designating persons authorized to give instructions on behalf of the Fund and
signature cards bearing the signature of any officer of the Fund or any other
person authorized to sign written instructions on behalf of the Fund;
(iv) A specimen of the certificate for Shares of the Fund in the
form approved by the Board of Trustees, with a certificate of the Secretary of
the Fund as to such approval;
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(c) The registration statements and any amendments and
supplements thereto filed with the SEC pursuant to the requirements of the 1933
Act and the 1940 Act;
(d) All account application forms, if any, or other documents
relating to Shareholder accounts and/or relating to any dividend reinvestment
plan or other service offered or to be offered by the Fund; and
(e) Such other certificates, documents or opinions as DWTFSB
deems to be appropriate or necessary for the proper performance of its duties.
6.2 DWTFSB hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund for safekeeping of Share
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
6.3 DWTFSB shall prepare and keep records relating to the
services to be performed hereunder, in the form and manner as it may deem
advisable and as required by applicable laws and regulations. To the extent
required by Section 31 of the 1940 Act, and the Rules and Regulations
thereunder, DWTFSB agrees that all such records prepared or maintained by DWTFSB
relating to the services to be performed by DWTFSB hereunder are the property of
the Fund and will be preserved, maintained and made available in accordance with
such Section 31 of the 1940 Act, and the rules and regulations thereunder, and
will be surrendered promptly to the Fund on and in accordance with its request.
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6.4 DWTFSB and the Fund agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential and shall not be voluntarily disclosed to
any other person except as may be required by law or with the prior consent of
DWTFSB and the Fund.
6.5 In case of any request or demands for the inspection of the
Shareholder records of the Fund, DWTFSB will endeavor to notify the Fund and to
secure instructions from an authorized officer of the Fund as to such
inspection. DWTFSB reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
Article 7 DURATION AND TERMINATION OF AGREEMENT
7.1 This Agreement shall remain in full force and effect until
August 1, 2000 and from year-to-year thereafter unless terminated by either
party as provided in Section 7.2 hereof.
7.2 This Agreement may be terminated by the Fund on 60 days
written notice and by DWTFSB on 90 days written notice to the other party
without payment of any penalty.
7.3 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and other
materials will be borne by the Fund. Additionally, DWTFSB reserves the right to
charge for any other reasonable fees and expenses
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associated with such termination.
Article 8 ASSIGNMENT
8.1 Except as provided in Section 8.3 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
8.2 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
8.3 DWTFSB may, in its sole discretion and without further
consent by the Fund, subcontract, in whole or in part, for the performance of
its obligations and duties hereunder with any person or entity including but not
limited to companies which are affiliated with DWTFSB; PROVIDED, HOWEVER, that
such person or entity has and maintains the qualifications, if any, required to
perform such obligations and duties and that DWTFSB shall be as fully
responsible to the Fund for the acts and omissions of any agent or subcontractor
as it is for its own acts or omissions under this Agreement.
Article 9 AFFILIATIONS
9.1 DWTFSB may now or hereafter, without the consent of or
notice to the Fund, function as transfer agent, registrar and/or shareholder
servicing agent for any other investment company registered with the SEC under
the 1940 Act and for any other issuer, including without limitation any
investment company whose adviser, administrator, sponsor or principal
underwriter is or may become affiliated with Xxxxxx Xxxxxxx, Xxxx Xxxxxx,
Discover &
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Co. or any of its direct or indirect subsidiaries or affiliates.
9.2 It is understood and agreed that the Directors or Trustees
(as the case may be), officers, employees, agents and shareholders of the Fund,
and the directors, officers, employees, agents and shareholders of the Fund's
investment adviser and/or distributor, are or may be interested in DWTFSB as
directors, officers, employees, agents and shareholders or otherwise, and that
the directors, officers, employees, agents and shareholders of DWTFSB may be
interested in the Fund as Directors or Trustees (as the case may be), officers,
under the laws of Maryland or a trust duly organized and existing and in good
standing under the laws of Massachusetts, as the case may be. employees, agents
and shareholders or otherwise, or in the investment adviser and/or distributor
as directors, officers, employees, agents, shareholders or otherwise.
Article 10 AMENDMENT
10.1 This Agreement may be amended or modified by a written
agreement executed by both parties and authorized or approved by a resolution of
the Board of Directors or the Board of Trustees (as the case may be) of the
Fund.
Article 11 APPLICABLE LAW
11.1 This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of New
York.
Article 12 MISCELLANEOUS
12.1 In the event that one or more additional investment
companies managed or administered by Xxxx Xxxxxx InterCapital Inc. ("Additional
Xxxx Xxxxxx Funds") desires to retain DWTFSB to act as transfer agent, dividend
disbursing agent and/or shareholder
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servicing agent, and DWTFSB desires to render such services, such services shall
be provided pursuant to a letter agreement, substantially in the form of Exhibit
A hereto, between DWTFSB and each Additional Xxxx Xxxxxx Fund.
12.2 In the event of an alleged loss or destruction of any Share
certificate, no new certificate shall be issued in lieu thereof, unless there
shall first be furnished to DWTFSB an affidavit of loss or non-receipt by the
holder of Shares with respect to which a certificate has been lost or destroyed,
supported by an appropriate bond satisfactory to DWTFSB and the Fund issued by a
surety company satisfactory to DWTFSB, except that DWTFSB may accept an
affidavit of loss and indemnity agreement executed by the registered holder (or
legal representative) without surety in such form as DWTFSB deems appropriate
indemnifying DWTFSB and the Fund for the issuance of a replacement certificate,
in cases where the alleged loss is in the amount of $1,000 or less.
12.3 Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or to DWTFSB 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.
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To the Fund:
[Name of Fund]
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
To DWTFSB:
Xxxx Xxxxxx Trust FSB
Harborside Financial Center, Xxxxx Xxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: President
Article 13 MERGER OF AGREEMENT
13.1 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.
Article 14 PERSONAL LIABILITY
14.1 In the case of a Fund organized as a Massachusetts business
trust, a copy of the Declaration of Trust of the Fund is on file with the
Secretary of The Commonwealth of Massachusetts, and notice is hereby given that
this instrument is executed on behalf of the Board of Trustees of the Fund as
Trustees and not individually and that the obligations of this instrument are
not binding upon any of the Trustees or shareholders individually but are
binding only upon the assets and property of the Fund; provided, however, that
the Declaration of Trust
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of the Fund provides that the assets of a particular Series of the Fund shall
under no circumstances be charged with liabilities attributable to any other
Series of the Fund and that all persons extending credit to, or contracting with
or having any claim against, a particular Series of the Fund shall look only to
the assets of that particular Series for payment of such credit, contract or
claim.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
1. High Income Advantage Trust
2. High Income Advantage Trust II
3. High Income Advantage Trust III
4. Prime Income Trust
5. InterCapital Income Securities Inc.
6. Xxxx Xxxxxx Government Income Trust
7. InterCapital Insured Municipal Bond Trust
8. InterCapital Insured Municipal Trust
9. InterCapital Insured Municipal Income Trust
10. InterCapital Insured Municipal Securities
11. InterCapital California Insured Municipal Income Trust
12. InterCapital Insured California Municipal Securities
13. InterCapital Quality Municipal Investment Trust
14. InterCapital Quality Municipal Income Trust
15. InterCapital Quality Municipal Securities
16. InterCapital California Quality Municipal Securities
17. InterCapital New York Quality Municipal Securities
18. Municipal Income Trust
19. Municipal Income Trust II
20. Municipal Income Trust III
21. Municipal Income Opportunities Trust
22. Municipal Income Opportunities Trust II
23. Municipal Income Opportunities Trust III
24. Municipal Premium Income Trust
25. TCW/DW Term Trust 2000
26. TCW/DW Term Trust 2002
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27. TCW/DW Term Trust 2003
28. TCW/DW Emerging Markets Opportunities Trust
By:
-----------------------------
Xxxxx Xxxx
Vice President, Secretary and
General Counsel
ATTEST:
---------------------------------
Assistant Secretary
XXXX XXXXXX TRUST FSB
BY:
-----------------------
Xxxx Van Heuvelen
President
ATTEST:
---------------------------------
Executive Vice President
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EXHIBIT A
Xxxx Xxxxxx Trust FSB
Harborside Financial Xxxxxx, Xxxxx Xxx
Xxxxxx Xxxx, XX 00000
Gentlemen:
The undersigned, (NAME OF INVESTMENT COMPANY), a (Maryland
corporation/Massachusetts business trust) (the "Fund"), desires to employ and
appoint Xxxx Xxxxxx Trust FSB ("DWTFSB") to act as transfer agent for each
series and class of shares of the Fund, dividend disbursing agent shareholder
servicing agent, registrar and agent in connection with the Fund's Dividend
Reinvestment Plan.
The Fund hereby agrees that, in consideration for the payment by the
Fund to DWTFSB of fees as set out in the fee schedule attached hereto as
Schedule A, DWTFSB shall provide such services to the Fund pursuant to the terms
and conditions set forth in the Transfer Agency and Service Agreement annexed
hereto, as if the Fund was a signatory thereto.
Please indicate DWTFSB's acceptance of employment and appointment by
the Fund in the capacities set forth above by so indicating in the space
provided below.
Very truly yours,
(NAME OF FUND)
By:
---------------------------
ACCEPTED AND AGREED TO:
XXXX XXXXXX TRUST FSB
By:
-------------------
Its:
------------------
Date:
-----------------
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SCHEDULE A
Fund: Prime Income Trust
Fees: (1) Annual maintenance fee of $10.00 per shareholder account,
payable monthly.
(2) A fee equal to 1/12 of the fee set forth in (1) above, for
providing Forms 1099 for accounts closed during the year, payable
following the end of the calendar year.
(3) Out-of-pocket expenses in accordance with Section 2.2 of the
Agreement.
(4) Fees for additional services not set forth in this Agreement
shall be as negotiated between the parties.
