WINTERGREEN FUND, INC.
ACCOUNTING, ADMINISTRATION AND
TRANSFER AGENCY SERVICES AGREEMENT
AGREEMENT made as of the ___ day of _________, 2005, by and between
Wintergreen Fund, Inc., a Maryland corporation, with its principal office and
place of business at 000 Xxxxx 00 Xxxx, Xxxxxxxx Xxxxx, XX 00000 (the "CLIENT"
or the "FUND"), and Citigroup Fund Services, LLC, a Delaware limited liability
company with its principal office and place of business at Two Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxx 00000 ("CITIGROUP").
WHEREAS, the Client is registered under the 1940 Act (as defined below) as
an open-end management investment company that issues or intends to issue
shares, $0.001 par value (the "SHARES"); and
WHEREAS, the Client desires that Citigroup perform certain services for the
Fund, and Citigroup is willing to provide those services on the terms and
conditions set forth in this Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, the Client and Citigroup hereby agree as follows:
SECTION 1. DEFINITIONS; APPOINTMENT; DELIVERY OF DOCUMENTS
1.1 FREQUENTLY USED DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings:
(a) "1940 ACT" means the Investment Company Act of 1940, as amended.
(b) "AFFILIATE" means, with respect to any Person, any other Person that is
controlled by, controls, or is under common control with such Person; for
purposes hereof, "CONTROL" of a Person means (i) ownership of, or
possession of the right to vote, more than 25% of the outstanding voting
equity of that person or (ii) the right to control the appointment of the
board of directors, management or executive officers of that person.
(c) "AGREEMENT" means this Agreement and any appendices and schedules
attached hereto, in each case as they may be amended from time to time.
(d) "AUTHORIZED PERSON(S)" shall include: (i) those persons listed on
SCHEDULE 1 hereto and (ii) any natural person that (A) is an executive
officer of the Client or (B) has apparent authority to act on behalf of the
Client with respect to the subject matter of the information request or
instruction.
(e) "CITIGROUP" has the meaning set forth in the preamble to this Agreement
and includes successors-in-interest.
(f) "CLASS" and "CLASSES" have the meaning set forth in the preamble to
this Agreement.
(g) "CLIENT" has the meaning set forth in the preamble to this Agreement
and includes successors-in-interest;.
(h) "EFFECTIVE DATE" means the date first set forth above.
(i) "FUND" has the meaning set forth in the preamble to this Agreement.
(j) "GOVERNING BODY" means, for any entity, the Person or body of Persons
governing the operations of the entity under its Organic Documents (for
example, if the entity is a corporation, its board of directors).
(k) "INSTRUCTION" means any oral and written notice or statement directing
action or inaction, including any such notice or statement transmitted to
Citigroup (i) in electronic format by machine readable input, electronic
mail, CRT data entry or other similar means, or (ii) in person or by
telephone, telecopy, vocal telegram or similar means.
(l) "LAWS" means any statutes, rules and regulations of any governmental
authority and applicable judicial or regulatory interpretations thereof.
(m) "ORGANIC DOCUMENTS" means, for any entity, the documents pursuant to
which the entity was formed as a legal entity, as such documents may be
amended from time to time.
(N) "PARTIES" means the Client and Citigroup.
(o) "PERSON" means any natural person or incorporated or unincorporated
entity.
(p) "POLICIES AND PROCEDURES" means the written policies and procedures of
the Client in any way related to the Services, including any such policies
and procedures contained in the Organic Documents and the Prospectus.
(q) "PROSPECTUS" has the meaning set forth in Section 2.4(a).
(r) "SEC" means the United States Securities and Exchange Commission and
any successor governmental authority.
(s) "SECURITIES ACT" means the Securities Act of 1933, as amended.
(t) "SERVICES" means the services set forth in APPENDICES A, B AND C.
(u) "SERVICES COMMENCEMENT DATE" means, with respect to the Fund, (i) if
the registration statement of the Fund is effective as of the Effective
Date, then such
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Effective Date; (ii), if such registration statement is not effective as of
the Effective Date, then the date such registration statement is declared
effective; or (iii) such other date as may be agreed in writing by the
Parties.
(v) "SHAREHOLDER" means any Person that holds Shares of record.
(w) "SHARES" has the meaning set forth in the preamble to this Agreement.
Other capitalized terms used but not defined in this Section 1.1 shall have the
meanings set forth in this Agreement.
1.2 APPOINTMENT. The Client hereby appoints Citigroup to act as its
administrator, fund accountant and transfer agent and dividend disbursing agent
for the period and on the terms set forth in this Agreement, and Citigroup
hereby accepts such appointment and in connection with such appointment agrees
to provide the Services on the terms and conditions set forth in this Agreement.
SECTION 2. SERVICES; OTHER RELATED TERMS AND CONDITIONS
2.1. SERVICES. Subject to the terms and conditions of this Agreement and under
the direction and control of the Governing Body, Citigroup shall provide the
Services.
2.2 OTHER SERVICES. Citigroup shall provide such other services and assistance
relating to the affairs of the Client as the Client may, from time to time,
reasonably request pursuant to mutually acceptable compensation and
implementation arrangements.
2.3 CITIGROUP'S COMPLIANCE WITH LAWS.
(a) Citigroup shall comply in all material respects with all Laws
applicable to Citigroup's delivery of the Services.
(b) Nothing contained herein shall be construed to require Citigroup to
perform any service that could cause Citigroup to be deemed an investment
adviser for purposes of the 1940 Act or the Investment Advisers Act of
1940, as amended, or that could cause the Fund to act in contravention of
its Prospectus or any provision of the 1940 Act.
(c) Except as specifically set forth in this Agreement to the contrary,
Citigroup assumes no responsibility for compliance by the Client with any
Laws applicable to the Client; and, notwithstanding any other provision of
this Agreement to the contrary, Citigroup assumes no responsibility under
this Agreement to Client or any other Person for compliance by the Client
or Citigroup with the Laws of any jurisdiction other than those of the
United States.
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2.4 CERTAIN DOCUMENTS; CHANGES IN POLICIES AND PROCEDURES OR APPLICABLE LAW.
(a) Contemporaneous with or promptly after the Effective Date, the Client
shall deliver to Citigroup copies of the following documents: (i) the
Client's Organic Documents; (ii) the offering documents, prospectuses,
private placement memoranda, subscription agreements and/or other offering
documents for the Fund (collectively, the "PROSPECTUS"); (iii) a copy,
certified by the secretary or other individual or legal entity responsible
for maintaining the official records of the Client, of the resolution of
its Governing Body appointing Citigroup and authorizing the execution and
delivery of this Agreement; and (iv) the Client's Policies and Procedures.
(b) Client shall deliver to Citigroup as soon as is reasonably practical
any and all amendments to the documents required to be delivered under
Section 2.4(a).
(c) Citigroup shall perform the Services in observance of the Policies and
Procedures delivered to Citigroup pursuant to Section 2.4(a), PROVIDED that
with respect to any provision(s) of the Policies and Procedures that are
delivered to Citigroup after the Effective Date, such provision(s) are
commercially reasonable. Notwithstanding the foregoing, in the event the
Client amends the Policies and Procedures or there is a change in Law
related to or affecting the Services, Citigroup need not begin performing
any new service(s), and need not perform any service(s) in a materially
different or more burdensome manner, except upon written agreement by
Citigroup and pursuant to mutually acceptable compensation agreements and
Citigroup's written approval of any amended Policies and Procedures, which
approval shall not be unreasonably withheld or delayed.
2.5. SERVICE DAYS. Nothing contained in this Agreement shall require Citigroup
to perform any functions or duties on any weekend day or on any other day on
which the Client does not accept subscriptions and redemptions of its Shares (a
"BUSINESS DAY"). Functions or duties normally scheduled to be performed on any
day that is not a Business Day shall be performed on, and as of, the next
Business Day, unless otherwise required by applicable Law.
2.6. RELIANCE ON INSTRUCTIONS, DOCUMENTS AND ADVICE.
(a) With respect to the subject matter of this Agreement, Citigroup may
rely on (i) with respect to any matter, advice or Instruction that it
receives and that it reasonably believes in good faith was transmitted by
the Client's Governing Body or an Authorized Person; or (ii) with respect
to any factual matter, any signature, Instruction, request, letter of
transmittal, certificate, opinion of counsel, statement, instrument,
report, notice, consent, order, or other document of or presented by any
Person (including any authorized representative(s) of any predecessor
service providers to the Client).
(b) Notwithstanding any other provisions of this Agreement to the contrary,
Citigroup shall have no duty or obligation to inquire into (i) the
authenticity of any statement, oral or written Instruction, resolution,
signature, request, letter of transmittal, certificate, opinion of counsel,
instrument, report, notice, consent, order, or any other document
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or instrument that Citigroup reasonably believes in good faith to be
genuine; or (ii) the authority or lack thereof of any Person to represent
or act as an agent for any other Person, PROVIDED that Citigroup reasonably
believes in good faith that such -------- authority exists, and, PROVIDED,
FURTHER, that with respect to Instructions of the Client, Citigroup may
-------- ------- only rely on Instructions of the Client's Governing Body
or Authorized Persons.
(c) Citigroup may assume that any Instructions are not in any way
inconsistent with the Organizational Documents, the Prospectus, the
Policies and Procedures or any proceeding or resolution of the Client's
Governing Body or the Shareholders of the Client, unless and until
Citigroup receives written notice to the contrary from the Client's
Governing Body or an Authorized Person.
(d) Absent specific written notice to the contrary, Citigroup may assume
that Authorized Persons are authorized to deliver instructions relating to
all or any matter under this Agreement. The Client's Governing Body may at
any time (i) change the list of Authorized Persons or (ii) limit an
Authorized Person's authority. Citigroup shall not be deemed to have notice
of any change of Authorized Persons or limitation of authority until
receipt of written notice thereof from the Client's Governing Body or from
at least two then-current (as reflected in Citigroup's records immediately
prior to the receipt of such notice) Authorized Persons.
(e) About any matter related to the Client or the Services, Citigroup may
apply to any Authorized Person for advice or Instructions; about any legal
matter related to the Client or the Services, Citigroup may request advice
from counsel of its own choosing (who may be counsel to the Client or to
Citigroup); and about any accounting or tax matter related to the Client or
the Services, Citigroup may request advice from the independent accountants
of the Client or from other independent accountants with recognized
expertise about the specific subject matter. Any costs related to such
advice or Instructions shall be borne by the Client, except that Citigroup
shall be responsible for costs related to advice from in-house counsel to
Citigroup or any affiliate of Citigroup. In the event of any conflict
between advice or Instructions Citigroup receives from (i) any Authorized
Person or such independent accountant(s) and (ii) advice from counsel,
Citigroup may rely on advice from counsel.
(f) Nothing in this Section 2.6 shall be construed as imposing on Citigroup
any obligation to seek advice or Instructions, or, subject to Section
3.1(c), to act in accordance with such advice or Instructions if and when
received.
2.7. CERTAIN REPRESENTATIVE POWERS; OTHER ACTIVITIES.
(a) In the performance of the Services, Citigroup may use the name of the
Client and sign any necessary letters or other documents for and on behalf
of the Client.
(b) Citigroup may provide services similar to those provided under this
Agreement for any other Person on such terms as may be arranged with such
Person, and Citigroup
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shall not be required to disclose to the Client any fact or thing that may
come to the knowledge of Citigroup in the course of so doing.
(c) Citigroup may acquire, hold or deal with, for its own account or for
the account of any other Person, any shares or securities from time to time
issued by the Client or in which the Client is authorized to invest; and
Citigroup shall not be required to account to the Client for any profit
arising therefrom.
2.8 COOPERATION WITH INDEPENDENT AUDITORS AND COUNSEL. Citigroup shall cooperate
with the independent auditor(s) and attorneys of the Client and shall take
reasonable action to make all necessary information related to the Services
available to such auditors and attorneys for the performance of their duties.
2.9 CERTAIN RESPONSIBILITIES OF THE CLIENT. In order to permit Citigroup to
provide the Services, the Client agrees to:
(a) Comply in all material respects with all Laws applicable to the Client;
(b) Provide, and cause each other agent or service provider to the Client
to provide, to Citigroup all such information (and in such reasonable
medium) that Citigroup may reasonably request in connection with the
Services and this Agreement; and
(c) Deliver to Citigroup in advance of publication thereof any Prospectus
or amendment to a Prospectus in order to permit Citigroup and its agents to
review and comment upon, at Citigroup's discretion, those portions thereof
that describe Citigroup and Citigroup's duties and obligations under this
Agreement, including the indemnity provisions hereof, and the Client shall
not make any reference to Citigroup and such duties, obligations and
indemnities in any Prospectus without Citigroup's consent, which consent
shall not be unreasonably withheld or delayed.
SECTION 3. RECORDKEEPING; PROPRIETARY INFORMATION; CONFIDENTIALITY
3.1 CLIENT RECORDS; OWNERSHIP; INSPECTION; SUCCESSORS.
(a) Citigroup shall prepare and maintain on behalf of the Client the books
and records detailed in the Appendices and such other records as are agreed
from time to time in writing by Citigroup and the Client. The books and
records maintained by Citigroup shall be prepared, maintained and, subject
to Section 3.1(d) below, preserved by Citigroup in such form, for such
periods and in such locations as may be required by applicable Law,
including, without limitation, Section 31 of the 1940 Act and Section 17(A)
of the Securities Exchange Act of 1934, as amended.
(b) To the extent required by Section 31 of the 1940 Act and the rules
thereunder, the books and records maintained by Citigroup ("CLIENT
RECORDS") in Citigroup's possession shall be the property of the Client.
The Client and the Client's authorized representatives
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shall have access to such Client Records at all times during Citigroup's
normal business hours. Upon the reasonable advance request of the Client or
such authorized representatives, copies of any such Client Records shall be
provided by Citigroup, at the Client's expense, to the Client or its
authorized representatives.
(c) If Citigroup receives a request or demand from a third party to inspect
any Client Records, Citigroup will endeavor to notify the Client and to
secure Instructions from the Client or an Authorized Person about such
inspection. Citigroup shall abide by such Instructions for granting or
denying the inspection; PROVIDED, that Citigroup may grant the inspection
without Instructions or in contravention of specific Instructions if
Citigroup is advised by counsel to Citigroup or the Client that failure to
do so is substantially likely to result in liability to Citigroup; and
PROVIDED, FURTHER, that in such event, Citigroup shall endeavor promptly to
advise the Client of such contrary advice, to the extent practicable in
advance of any actual inspection.
(d) Upon termination of this Agreement, Citigroup shall, subject to payment
of all undisputed amounts due to Citigroup hereunder and at the expense and
direction of the Client, transfer to Client or any successor service
provider all Client Records in the electronic or other medium in which such
material is then maintained by Citigroup.
3.2 PROPRIETARY INFORMATION OF CITIGROUP. The Client acknowledges that the
databases, computer programs, screen formats, report formats, interactive design
techniques, and documentation manuals maintained by Citigroup on databases under
the control and ownership of Citigroup or a third party constitute copyrighted,
trade secret, or other proprietary information (collectively, "PROPRIETARY
INFORMATION") of substantial importance to Citigroup or the third party. The
Client agrees to treat all Proprietary Information as proprietary to Citigroup
and further agrees that it shall maintain as confidential any Proprietary
Information, except as may be provided under this Agreement, and that breach by
the Client of this confidentiality obligation would cause irreparable injury to
Citigroup.
3.3 CONFIDENTIALITY.
(a) Each Party (for purposes of this Section 3.3, a "RECEIVING PARTY")
agrees to keep confidential all information disclosed by the other Party
(for purposes of this Section 3.3, a "DISCLOSING PARTY"), including,
without limitation all forms and types of financial, business, marketing,
operations, technical, economic and engineering information of the
Disclosing Party, whether tangible or intangible.
(b) Notwithstanding any provision of this Agreement to the contrary, the
Parties agree that the following information shall not be deemed
confidential information: (i) information that was known to the receiving
Party before receipt thereof from or on behalf of the Disclosing Party;
(ii) information that is disclosed to the Receiving Party by a third person
who has a right to make such disclosure without any obligation of
confidentiality to the Party seeking to enforce its rights under this
Section 3; (iii) information that is or becomes generally known in the
trade without violation of this Agreement by the Receiving Party; or (iv)
information that is independently developed
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by the Receiving Party or its employees or affiliates without reference to
the Disclosing Party's information.
(c) Notwithstanding any provision of this Agreement to the contrary,
Citigroup may: (i) provide information to Citigroup's counsel and to
Persons engaged by Citigroup or the Client to provide services with respect
to the Client; (ii) provide information consistent with the Procedures or
with operating procedures that are customary with respect to the Services
in the industry; (iii) identify the Client as a client of Citigroup for
Citigroup's sales and marketing purposes; and (iv) provide information as
approved by an Authorized Person, PROVIDED, that (A) such approval shall
not be unreasonably withheld or delayed, and (B) Citigroup may release
information without approval of the Client if Citigroup is advised by
counsel to Citigroup or the Client that failure to do so will result in
liability to Citigroup; and PROVIDED, FURTHER, that, in such event
Citigroup shall endeavor promptly to advise the Client of such advice, to
the extent practicable in advance of any actual release of information.
(d) Citigroup acknowledges that certain Shareholder information made
available by the Client to Citigroup or otherwise maintained by Citigroup
under this Agreement may be deemed nonpublic personal information under the
Xxxxx-Xxxxx-Xxxxxx Act and other applicable privacy Laws (collectively,
"PRIVACY LAWS"). Citigroup agrees (i) not to disclose or use such
information except as required to carry out its duties under the Agreement
or as otherwise permitted by law in the ordinary course of business; (ii)
to limit access to such information to authorized representatives of
Citigroup and the Client; (iii) to establish and maintain reasonable
physical, electronic and procedural safeguards to protect such information;
and (iv) to cooperate with the Client and provide reasonable assistance in
ensuring compliance with such Privacy Laws to the extent applicable to
either or both of the Parties.
SECTION 4. RESPONSIBILITY OF CITIGROUP; INDEMNIFICATION; OTHER LIABILITY-RELATED
MATTERS
4.1. RESPONSIBILITY OF CITIGROUP; LIMITATIONS.
(a) Citigroup shall be under no duty to take any action under this
Agreement except as specifically set forth in this Agreement or as may be
specifically agreed to by Citigroup and the Client in a written amendment
to this Agreement.
(b) In performing the Services, Citigroup (i) shall act in good faith and
shall be obligated to exercise care and diligence; and (ii) may, without
limiting the generality of any other provision of this Agreement, rely on
Instructions, advice and information pursuant to Section 2.6;
(c) Notwithstanding anything in this Agreement to the contrary, Citigroup
shall be liable to the Client only for any damages arising out of
Citigroup's failure to perform its duties under this Agreement to the
extent such damages were caused solely and directly
8
by Citigroup's willful misfeasance, bad faith, gross negligence or reckless
disregard of such duties.
(d) Citigroup shall not be liable for the delays or errors of Persons that
provide services to the Client or Citigroup (other than employees of
Citigroup) or of other Persons, including the failure by any such Person to
provide information to Citigroup when they have a duty to do so
(irrespective of whether that duty is owed specifically to Citigroup or a
third party). Without limiting the generality of the foregoing, Citigroup
shall not be liable for the actions of omissions of third parties engaged
by Citigroup at the request of the Client or its investment adviser or
distributor to provide services to or for the benefit of the Client
("Non-Discretionary Subcontractors").
4.2 INDEMNIFICATION; NOTIFICATION OF CLAIMS.
(a) Notwithstanding anything in this Agreement to the contrary, Citigroup
shall not be responsible for, and the Client shall indemnify and hold
harmless Citigroup, its employees, directors, officers and managers and any
person who controls Citigroup within the meaning of section 15 of the
Securities Act or section 20 of the Securities Exchange Act of 1934, as
amended, (for purposes of this Section 4.2, "INDEMNITEES") from and
against, any and all losses, damages, costs, charges, reasonable counsel
fees, payments, liability and other expenses of every nature and character
(including, but not limited to, direct and indirect reasonable reprocessing
costs) arising out of or attributable to all and any of the following (for
purposes of this Section 4.2, a "CLAIM"):
(i) any action (or omission to act) of Citigroup or its agents taken in
connection with this Agreement; PROVIDED, that such action (or
omission to act) is taken in good faith and without willful
misfeasance, gross negligence or reckless disregard by Citigroup of
its duties and obligations under this Agreement;
(ii) any material breach of the Client's agreements, representations,
warranties, and covenants in Sections 2.9 and 5.2 of this Agreement or
in the Appendices;
(iii)the Client's lack of good faith or the Client's gross negligence or
willful misfeasance;
(iv) the reliance on or use by Citigroup or its agents or subcontractors of
information, records, documents or services which have been prepared,
maintained or performed by the Client or any other person or firm on
behalf of the Client; and
(v) the reliance on advice, Instructions, and other information, as set
forth in Section 2.6.
(b) In order that the indemnification provisions contained in this Section
4.2 shall apply, upon the assertion of a Claim for which the Client may be
required to indemnify an Indemnitee, the Indemnitee must promptly notify
the Client of such assertion, and shall keep the Client advised with
respect to all developments concerning such Claim.
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The Client shall have the option to participate with the Indemnitee in the
defense of such Claim or to defend against said Claim in its own name or in
the name of the Indemnitee. The Indemnitee shall in no case confess any
Claim or make any compromise in any case in which the Client may be
required to indemnify it except with the Client's prior written consent.
4.3 OTHER LIABILITY-RELATED MATTERS. Notwithstanding anything in this Agreement
to the contrary excepting Section 4.2 or as specifically set forth below:
(a) Neither Party shall be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by reason of
circumstances beyond its reasonable control, including, without limitation,
acts of God; action or inaction of civil or military authority; public
enemy; war; terrorism; riot; fire; flood; sabotage; epidemics; labor
disputes; civil commotion; interruption, loss or malfunction of utilities,
transportation, computer or communications capabilities; insurrection; or
elements of nature;
(b) Neither Party shall be liable for any consequential, special or
indirect losses or damages suffered by the other Party, whether or not the
likelihood of such losses or damages was known by the Party;
(c) No affiliate, director, officer, employee, manager, shareholder,
partner, agent, counsel or consultant of either Party shall be liable at
law or in equity for the obligations of such Party under this Agreement or
for any damages suffered by the other Party related to this Agreement;
(d) No Shareholder or member of the Client's Governing Body may bring any
action under or in the name of the Client in connection with this Agreement
except as is specifically required to be permitted under applicable Law;
(e) There are no third party beneficiaries of this Agreement;
(f) Each Party shall have a duty to mitigate damages for which the other
Party may become responsible;
(g) Except as expressly provided in this Agreement, Citigroup hereby
disclaims all representations and warranties, express or implied, made to
the Client or any other Person, including, without limitation, any
warranties regarding quality, suitability, merchantability, fitness for a
particular purpose or otherwise (irrespective of any course of dealing,
custom or usage of trade), of any services or any goods provided incidental
to Services provided under this Agreement. Citigroup disclaims any warranty
of title or non-infringement except as otherwise set forth in this
Agreement; and
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF CITIGROUP. Citigroup represents and
warrants to the Client that:
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(a) It is a limited liability company duly organized and existing and in
good standing under the laws of the State of Delaware;
(b) It is empowered under applicable Laws and by its Organic Documents to
enter into this Agreement and perform its obligations under this Agreement;
(c) All requisite limited liability company proceedings have been taken to
authorize it to enter into this Agreement and perform its obligations under
this Agreement;
(d) It has access to the necessary facilities, equipment, and personnel to
perform its duties and obligations under this Agreement;
(e) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of Citigroup, enforceable against Citigroup in
accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties; and
(f) It has in effect and will maintain all licenses, permits and other
authorizations necessary or appropriate for Citigroup to perform the
Services.
5.2 REPRESENTATIONS AND WARRANTIES OF THE CLIENT. The Client represents and
warrants to Citigroup that:
(a) It is duly organized and existing and in good standing under the laws
of the jurisdiction of its organization;
(b) It is empowered under applicable Laws and by its Organic Documents to
enter into this Agreement and perform its obligations under this Agreement;
(c) All requisite corporate or similar proceedings have been taken to
authorize it to enter into this Agreement and perform its obligations under
this Agreement;
(d) This Agreement, when executed and delivered, will constitute a legal,
valid and binding obligation of the Client, enforceable against the Client
in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
the rights and remedies of creditors and secured parties;
(e) With respect to all Shares from time to time being offered for sale to
the public, a registration statement under the Securities Act (the
"REGISTRATION STATEMENT") is currently effective or will be effective at
the time of sale, and will remain effective, and all appropriate Federal
and State securities law filings have been made and will continue to be
made;
(f) The Prospectuses and, if Shares are offered for sale to the public,
Registration Statement, have been, and any amendment thereto will be, as
the case may be, carefully
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prepared in conformity with the requirements of the Securities Act and the
1940 Act and the rules and regulations thereunder, and all statements of
fact contained or to be contained in the Registration Statement or
Prospectuses are or will be true and correct in all material respects at
the time indicated or on the effective date, as the case may be; and
neither the Registration Statement nor any Prospectus, when they shall
become effective or be authorized for use, will include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading to a
purchaser of Shares, except that no representation is made with respect to
information furnished to the Client with the written approval of Citigroup
expressly for use in the Registration Statement or Prospectus; and
(g) It will from time to time amend its Registration Statement or
Prospectuses as, in the light of then-current and then-prospective
developments, shall, in the opinion of its counsel, be necessary in order
to have the Registration Statement and Prospectuses at all times contain
all material facts required to be stated therein or necessary to make any
statements therein not misleading to a purchaser of Shares;
SECTION 6. COMPENSATION AND EXPENSES
6.1 COMPENSATION. In consideration of the Services provided by Citigroup
pursuant to this Agreement, the Client shall pay Citigroup the fees as from time
to time set forth in a separate written agreement between Citigroup and the
Client (the "FEE SCHEDULE").
6.2 EXPENSES.
(a) Citigroup shall be responsible for expenses incurred in providing
office space, equipment, and personnel as may be necessary or convenient to
provide the Services, including the compensation of any Citigroup employee
who serves as an officer of the Client.
(b) In connection with the Services, the Client agrees to reimburse
Citigroup for its out-of-pocket expenses as listed in the FEE SCHEDULE.
(c) Notwithstanding any other provisions of this Agreement to the contrary,
the Client is responsible for and assumes the obligation for payment (or
reimbursement to Citigroup) of all Client expenses, including those listed
below:
(i) the fees and expenses payable under the Client's various services
agreements;
(ii) expenses of issue, repurchase and redemption of Shares;
(iii) interest, taxes and brokerage fees and commissions;
(iv) premia for D&O and E&O insurance and for Fidelity and other bonds;
(v) costs of membership in trade associations;
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(vi) costs of forming the Client and maintaining its existence;
(vii) expenses of meetings of shareholders and proxy solicitations
therefor;
(viii) fees and expenses of the Client's Governing Body and its committees,
officers, employees and corporate meetings,
(ix) other professional services including audit and legal expenses;
(x) SEC, state, territory or foreign securities laws registration fees and
related expenses; and
(xi) fees and expenses payable in accordance with any distribution, service
or similar plan or agreement related to similar matters.
6.3 ACCRUAL AND PAYMENT OF FEES AND EXPENSES; EXTRAORDINARY AUDITS.
(a) All fees and reimbursable expenses (or an estimate thereof) shall be
accrued daily by the Client and shall be payable monthly in arrears on the
first day of each calendar month for services performed or expenses
incurred during the prior calendar month.
(b) If fees begin to accrue in the middle of a month or if this Agreement
terminates before the end of any month, all fees for the period from that
date to the end of that month or from the beginning of that month to the
date of termination, as the case may be, shall be prorated according to the
proportion that the period bears to the full month in which the
effectiveness or termination occurs.
(c) Upon the termination of this Agreement, the Client shall pay to
Citigroup such fees as shall be payable prior to the effective date of
termination and shall also pay any applicable termination costs pursuant to
Section 7.4 of the Agreement.
(d) The Client shall reimburse Citigroup for all reasonably incurred
expenses and employee time attributable to (i) any review of the Client's
accounts and records by the Client's independent accountants or any
regulatory body outside of routine and normal periodic reviews and (ii) any
material, non-routine Services.
6.4 OTHER COMPENSATION. Notwithstanding anything in this Agreement to the
contrary, Citigroup and its affiliates may receive compensation or reimbursement
from the Client with respect to any services not included under this Agreement.
SECTION 7. EFFECTIVENESS, DURATION, TERMINATION; ASSIGNMENT; ADDITIONAL FUNDS
AND CLASSES
7.1 EFFECTIVENESS. This Agreement shall become effective on the Effective Date,
and shall become effective with respect to the Fund on the Services Commencement
Date.
13
7.2 DURATION. This Agreement shall have a minimum term of one year from the
Effective Date (the "BASE Term") and shall thereafter continue in effect until
terminated.
7.3 TERMINATION. This Agreement may be terminated at any time without the
payment of any penalty:
(a) with or without cause, at any time AFTER the expiration of the Base
Term, by either Party on at least ninety (90) days' written notice to the
other Party.
(b) for cause, and before or after the expiration of the Base Term, by the
non breaching Party on at least thirty (30) days' written notice thereof to
the other Party, if the other party has materially breached any of its
obligations hereunder including, with respect to Citigroup, the failure by
Citigroup to act consistently with the standard of care set forth in
Section 4.1(b); PROVIDED, HOWEVER, that (i) the termination notice shall
describe the breach, and (ii) no such termination shall be effective if,
with respect to any breach that is capable of being cured prior to the date
set forth in the termination notice, the breaching Party has cured such
breach to the reasonable satisfaction of the non-breaching Party.
(c) by the Client, if the operations of the Client are wound up and
discontinued, and the assets of the Client are distributed to the
Shareholders after the Client's Governing Body determines that it is no
longer in the Shareholders' best interest to continue the operations of the
Client; PROVIDED, however, that the Client shall be required to pay a
Default Payment (as defined below) if
(i) such distribution to Shareholders is incident to a merger,
consolidation or reorganization to which the Fund is a party that (A)
is treated as a tax-free reorganization pursuant to Section 368 of the
Internal Revenue Code of 1986, as amended or (B) as a result of which
the Fund is the accounting successor under generally accepted
accounting principles (a "FUND REORGANIZATION"); and
(ii) after the Fund Reorganization, Citigroup does NOT continue to provide
services with respect to the Fund, or any successor fund, pursuant to
this Agreement or any substantially similar agreement.
7.4 DEFAULT PAYMENT. The Client agrees that if the Client terminates this
Agreement prior to the expiration of the Base Term then the Client shall be in
default of this Agreement, unless the Agreement is properly terminated by the
Client (x) for "cause" pursuant to Section 7.3(b) after the notice and cure
period provided therein or (y) because the Fund is being liquidated under the
circumstances described in Section 7.3(c) and such liquidation is not incident
to a Fund Reorganization. Inasmuch as a default by Client will cause substantial
damages to Citigroup and because of the difficulty of estimating the damages
that will result, the Client agrees to pay to Citigroup, as liquidated damages
for such default, an amount equal to (i) the average monthly fees payable to
Citigroup pursuant to Section 6.1 of this Agreement for the last six (6) months
preceding default, multiplied by (ii) the number of full and partial months
remaining until the
14
expiration of the Base Term (the "Default Payment"). The Parties agree that this
sum is a reasonable forecast of probable actual loss to Citigroup and that this
sum is agreed to as liquidated damages and not as a penalty.
7.5 SURVIVAL. The provisions of Sections 2.8, 3.1(d), 3.2, 3.3, 4, 6.1, 6.2, 7
and 8 shall survive any termination of this Agreement.
7.6 ASSIGNMENT. Except as otherwise provided in this Agreement, neither this
Agreement nor any rights or obligations under this Agreement may be assigned by
any party without the written consent of the other party. This Agreement shall
inure to the benefit of and be binding upon the Parties and their respective
permitted successors and assigns. Citigroup may, without further consent on the
part of the Client, (i) assign this agreement to any affiliate of Citigroup or
(ii) subcontract for the performance hereof with any entity, including an
affiliate of Citigroup; PROVIDED, that, subject to Section 4.1(d) with respect
to Non-Discretionary Subcontractors, Citigroup shall be as fully responsible to
the Client for the acts and omissions of any subcontractor as Citigroup is for
its own acts and omissions.
7.7 ADDITIONAL FUNDS AND CLASSES. In the event that the Client requests
Citigroup to provide services with respect to one or more additional funds
and/or classes of the Client after the Effective Date, such funds and/or classes
shall become Funds and/or classes under this Agreement for all purposes hereof
upon the execution of a joinder to this Agreement by the Client and Citigroup,
which joinder shall specify such Funds and/or classes and the compensation due
Citigroup for providing Services with respect thereto.
SECTION 8. MISCELLANEOUS
8.1 AMENDMENTS. No provisions of this Agreement may be amended or modified in
any manner except by a written agreement properly authorized and executed by the
Parties; PROVIDED, that the Client may amend SCHEDULE 1 as permitted by Section
2.6(d).
8.2 GOVERNING OF LAW. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the Laws of the State of
Delaware, without giving effect to the conflicts of laws, principles and rules
thereof.
8.3 ENTIRE 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.
8.4 COUNTERPARTS. This Agreement may be executed by the Parties hereto in any
number of counterparts, and all of the counterparts taken together shall be
deemed to constitute one and the same instrument.
8.5 SEVERABILITY. If any part, term or provision of this Agreement is held to be
illegal, in conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and unaffected, and the rights and
obligations of the Parties shall be construed and
15
enforced as if the Agreement did not contain the particular part, term or
provision held to be illegal or invalid.
8.6 HEADINGS. Section and paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or interpret this Agreement.
8.7 NOTICES AND OTHER COMMUNICATIONS; ELECTRONIC RECORDS.
(a) Notices, requests, instructions and communications related to matters
described in Sections 7.1 to 7.6 of this Agreement shall be delivered in
writing as set forth below:
IF TO CITIGROUP:
Citigroup Fund Services, LLC
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
XXX
Fax: (000) 000-0000
Attn: Legal Department
IF TO CLIENT:
Wintergreen Fund, Inc.
000 Xxxxx 00 Xxxx
Xxxxxxxx Xxxxx, XX 00000
Fax:
Attn:
Notices received by the Parties at such addresses, or at such other
principle business addresses as they shall specify in writing, shall be
deemed to have been properly given.
(b) Other notices between the Parties and their agents and employees may be
sent in person, by telecopy, by mail or overnight courier, or through
electronic messages at such addresses as shall be specified by the Parties
or their agents.
(c) This Agreement and electronic signatures and records delivered and
maintained under the Agreement shall be effective to the fullest extent
permitted by Law, PROVIDED that references in this Agreement to written
approval or approval in writing of either Party shall be restricted to a
writing executed by a then-current executive officer of such Party. Each
Party agrees to maintain a copy of this Agreement and any amendments to
this Agreement for its records.
8.8 INTERPLEADER. In the event of a dispute about any funds of the Client held
by Citigroup from time to time under this Agreement, Citigroup or its agents may
commence an action in interpleader and pay the disputed funds into a court of
competent jurisdiction, and the Client
16
shall reimburse Citigroup for its reasonable costs and expenses related to
any such action in interpleader.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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 or representatives, as of the day and year first above written.
WINTERGREEN FUND, INC.
By:
--------------------------------------------------
[Authorized Officer]
CITIGROUP FUND SERVICES, LLC
By:
--------------------------------------------------
Director
LIST OF SCHEDULES AND APPENDICES THAT ARE PART OF THIS AGREEMENT:
SCHEDULE 1 Authorized Persons
APPENDIX A Fund Administration Services
APPENDIX B Fund Accounting Services
APPENDIX C Transfer Agency Services
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ACCOUNTING, ADMINISTRATION AND
TRANSFER AGENCY SERVICES AGREEMENT
SCHEDULE 1
AUTHORIZED PERSONS
1. AUTHORIZED PERSONS:
In addition to the officers (including assistant officers) of the Client, the
following persons are authorized to give Instructions to Citigroup with respect
to this Agreement:
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NAME TITLE
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2. CHANGE IN AUTHORIZED PERSONS
Any change in Authorized Persons shall only be made in accordance with Section
2.6(d) of the Agreement.
Schedule 2 page 1
ACCOUNTING, ADMINISTRATION AND
TRANSFER AGENCY SERVICES AGREEMENT
APPENDIX A
SERVICES
[SEE DOCUMENT SEPARATELY PROVIDED]
Appendix B
Page 1
