exhibit
(k)(2)
Transfer
Agency and Service Agreement
This Transfer Agency and
Service Agreement (“Agreement”) dated as of December 18, 2018 and effective as of January 4, 2019, is
by and between State Street Bank and Trust Company, a Massachusetts trust company having its principal office and place of business
at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (“State Street” or the “Transfer Agent”),
and each registered investment company identified on Schedule A hereto, each a Delaware statutory trust having its principal
office and place of business at 000 Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 (each, a “Trust”).
WHEREAS, each Trust is a
closed-end, non-diversified management investment company authorized to issue a single class of shares of beneficial interest (“Shares”)
to investors eligible to invest in the Trust.
WHEREAS, each Trust desires
to appoint the Transfer Agent as its transfer agent, dividend disbursing agent, and agent in connection with certain other activities,
and the Transfer Agent desires to accept such appointment;
Now,
Therefore, in consideration of the mutual covenants herein contained, the parties hereto agree as follows:
| 1.1 | Appointment. Subject to the terms and conditions set forth in this Agreement, each Trust
hereby employs and appoints the Transfer Agent to act as, and the Transfer Agent agrees to act as, transfer agent for the Trust’s
authorized and issued Shares, dividend disbursing agent, and agent in connection with any accumulation or similar plans provided
to shareholders (“Shareholders”) of the Trust and set out in the currently effective registration statement
of the Trust (the “Prospectus”), including without limitation any periodic investment plan or periodic
withdrawal program. |
| 1.2 | Transfer Agency Services. In accordance with procedures established from time to time by
agreement between each Trust and the Transfer Agent, the Transfer Agent shall provide the services set forth on Schedule B
hereto. |
| 1.3 | Additional Services. In addition to, and neither in lieu of nor in contravention
of the services set forth in Section 1.2 above, the Transfer Agent shall perform the following services: |
| (i) | Other Customary Services. Perform certain customary services of a transfer agent and
dividend disbursing agent, including, but not limited to: maintaining Shareholder accounts, preparing Shareholder meeting
lists, mailing Shareholder reports, as applicable, to current Shareholders, maintaining on behalf of each Trust such bank
accounts as the Transfer Agent shall deem necessary for the performance of its duties under this Agreement, withholding taxes
on U.S. resident and non-resident alien accounts, 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 Shareholders, preparing
and mailing confirmation forms and statements of account to Shareholders for all purchases and redemptions of Shares and
other confirmable transactions in Shareholder accounts,
preparing and mailing activity statements for Shareholders, and providing Shareholder account information.
|
| (ii) | Lost Shareholder Searches. The Transfer Agent shall conduct lost Shareholder searches as
required by Rule 17Ad-17 under the Securities Exchange Act of 1934, as amended (the “1934 Act”). If a
Shareholder remains lost after the completion of the mandatory Rule 17Ad-17 search, the Transfer Agent shall so notify the applicable
Trust and such Trust shall, in such Trust’s reasonable discretion, authorize and direct the Transfer Agent to escheat the
assets in such lost Shareholder’s account to the U.S. state or territory in the shareholder’s account registration. |
| (iii) | Depository Trust & Clearing Corporation (“DTCC”)/National Securities
Clearing Corporation (“NSCC”). If applicable, the Transfer Agent shall: (a) accept and effectuate
the registration and maintenance of accounts with DTCC/NSCC, and the purchase and redemption of Shares in such accounts, in accordance
with instructions transmitted to and received by the Transfer Agent by transmission from DTCC or NSCC (acting on behalf of its
members); and (b) issue instructions to a Trust’s banks for the settlement of transactions between the Trust and DTCC or
NSCC (acting on behalf of its members and bank participants). |
| (iv) | Performance of Certain Services by the Trust or Affiliates or Agents. New procedures as
to who shall provide certain of these services described in this Section 1 may be established in writing from time to time by agreement
between each Trust and the Transfer Agent. If agreed to in writing by the Trust and the Transfer Agent, the Transfer Agent may
at times perform only a portion of these services, and the Trust or its agent may perform these services on the Trust’s behalf. |
| 1.4 | Authorized Persons. Each Trust hereby agrees and acknowledges that the Transfer Agent
may rely on the current list of authorized persons, as provided or agreed to by the Trust and as may be amended from time to time,
in receiving instructions to issue or redeem the Shares. Each Trust agrees and covenants for itself and each such authorized person
that any order, sale or transfer of, or transaction in the Shares received by it after the close of regular trading on the New
York Stock Exchange shall be effectuated at the net asset value determined on the next business day or as otherwise required pursuant
to the Trust’s then-effective Prospectus, and the Trust or such authorized person shall so instruct the Transfer Agent of
the proper effective date of the transaction. |
| 1.5 | Trust Responsibilities. |
| (i) | State Transaction (“Blue Sky”) Reporting. Each Trust shall be
solely responsible for its “blue sky” compliance and state registration requirements. |
| (ii) | Anti-Money Laundering and Client Screening. With respect to each Trust’s offering
and sale of Shares at any time, and for all subsequent transfers of such interests, the Trust or its delegate shall, directly or
indirectly and to the extent required by law: (i) conduct know your customer/client identity due diligence with respect to potential
investors and transferees in the Shares and shall obtain and retain due diligence records for each investor and transferee; (ii)
use its best efforts to ensure that each investor’s and any transferee’s funds used to purchase Shares |
shall not be derived from, nor
the product of, any criminal activity; (iii) if requested, provide periodic written verifications that such investors/transferees
have been checked against the United States Department of the Treasury Office of Foreign Assets Control database for any non-compliance
or exceptions; and (iv) perform its obligations under this Section in accordance with all applicable anti-money laundering laws
and regulations. In the event that the Transfer Agent has received advice from counsel that access to underlying due diligence
records pertaining to the investors/transferees is necessary for the Transfer Agent to comply with relevant anti-money laundering
(or other applicable) laws or regulations, the Trust shall, upon receipt of written request from the Transfer Agent, provide the
Transfer Agent copies of such due diligence records.
| (iii) | Escheatment Laws. Notwithstanding Section 1.3(ii) above, each Trust shall be solely responsible
for its compliance with the requirements of any applicable escheatment laws, including without limitation, the laws of any U. S.
state or territory. |
| (iv) | Tax Law. The Transfer Agent shall have no responsibility or liability for any obligations
now or hereafter imposed on a Trust, the Shares, a Shareholder or the Transfer Agent in connection with the services provided by
the Transfer Agent hereunder by the tax laws of any country or of any state or political subdivision thereof. It shall be the responsibility
of each Trust to notify the Transfer Agent of the obligations imposed on the Trust, the Shares, a Shareholder or the Transfer Agent
in connection with the services provided by the Transfer Agent hereunder by the tax law of countries, states and political subdivisions
thereof, including responsibility for withholding and other taxes, assessments or other governmental charges, certifications and
governmental reporting. |
| (v) | Regulation GG. Each Trust represents and warrants that it does not engage in an “Internet
gambling business,” as such term is defined in Section 233.2(r) of Federal Reserve Regulation GG (12 CFR 233) and covenants
that it shall not engage in an Internet gambling business. In accordance with Regulation GG, each Trust is hereby notified that
“restricted transactions,” as such term is defined in Section 233.2(y) of Regulation GG, are prohibited in any dealings
with the Transfer Agent pursuant to this Agreement or otherwise between or among any party hereto. |
2. FEES
AND EXPENSES
| 2.1 | Fee Schedule. For the performance by the Transfer Agent of services provided pursuant to
this Agreement, each Trust agrees to pay the Transfer Agent the fees and expenses set forth in a written fee schedule. |
| 3. | REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT |
The Transfer Agent represents
and warrants to each Trust that:
| 3.1 | It is a trust company duly organized and existing under the laws of The Commonwealth of Massachusetts. |
| 3.2 | It is duly registered as a transfer agent under Section 17A(c)(2) of the 1934 Act, it will remain
so registered for the duration of this Agreement, and it will promptly notify the Trust in the event of any material change in
its status as a registered transfer agent. |
| 3.3 | It is duly qualified to carry on its business in The Commonwealth of Massachusetts. |
| 3.4 | It is empowered under applicable laws and by its organizational documents to enter into and perform
the services contemplated in this Agreement. |
| 3.5 | All requisite organizational proceedings have been taken to authorize it to enter into and perform
this Agreement. |
| 3.6 | It is in compliance with all material federal and state laws, rules and regulations applicable
to its transfer agency business and the performance of its duties, obligations and services under this Agreement. |
| 4. | REPRESENTATIONS AND WARRANTIES OF EACH TRUST |
Each Trust represents and
warrants to the Transfer Agent that:
| 4.1 | The Trust is a business trust duly organized, existing and in good standing under the laws of its
jurisdiction of organization. |
| 4.2 | The Trust is empowered under applicable laws and by its organizational documents to enter into
and perform this Agreement. |
| 4.3 | All proceedings required by the Trust’s governing documents have been taken to authorize
the Trust to enter into, perform and receive services pursuant to this Agreement. |
| 4.4 | The Trust is registered under the Investment Company Act of 1940, as amended (the “1940
Act”), as a closed-end, non-diversified management investment company. |
| 4.5 | Where information provided by the Trust or the Trust’s investors includes information about
an identifiable individual (“Personal Information”), the Trust represents and warrants that it has obtained
all consents and approvals, as required by all applicable laws, regulations, by-laws and ordinances that regulate the collection,
processing, use or disclosure of Personal Information, necessary to disclose such Personal Information to the Transfer Agent, and
as required for the Transfer Agent to use and disclose such Personal Information in connection with the performance of the services
hereunder. The Trust acknowledges that the Transfer Agent may perform any of the services, and may use and disclose Personal Information
outside of the jurisdiction in which it was initially collected by the Trust, including the United States and that information
relating to the Trust, including Personal Information of investors may be accessed by national security authorities, law enforcement
and courts. The Transfer Agent shall be kept indemnified by and be without liability to the Trust for any action taken or omitted
by it in reliance upon this representation and warranty, provided that the Transfer Agent has met the duty of care set forth in
Section 6.1. |
| 5.1 | Each Trust acknowledges that the databases, computer programs, screen formats, report formats,
interactive design techniques, and documentation manuals furnished to the Trust by the Transfer Agent as part of the Trust’s
ability to access certain Trust-related data maintained by the Transfer Agent or another third party on databases under the control
and ownership of the Transfer Agent (“Data Access Services”) constitute copyrighted, trade secret, or
other proprietary information (collectively, “Proprietary Information”) of substantial value to the Transfer
Agent or another third party. In no event shall Proprietary Information be deemed to be Shareholder information or the confidential
information of the Trust. Each Trust agrees to treat all Proprietary Information as proprietary to the Transfer Agent and further
agrees that it shall not divulge any Proprietary Information to any person or organization except as may be provided hereunder.
Without limiting the foregoing, each Trust agrees for itself and its officers and trustees, and agents, to: |
| (i) | use such programs and databases solely on the Trust’s, or such agents’ computers, or
solely from equipment at the location(s) agreed to between the Trust and the Transfer Agent, and solely in accordance with the
Transfer Agent’s applicable user documentation; |
| (ii) | refrain from copying or duplicating in any way the Proprietary Information; |
| (iii) | refrain from obtaining unauthorized access to any portion of the Proprietary Information, and if
such access is inadvertently obtained, to inform the Transfer Agent in a timely manner of such fact and dispose of such information
in accordance with the Transfer Agent’s instructions; |
| (iv) | refrain from causing or allowing Proprietary Information transmitted from the Transfer Agent’s
computers to the Trust’s, or such agents’ computer to be retransmitted to any other computer facility or other location,
except with the prior written consent of the Transfer Agent; |
| (v) | allow the Trust or such agents to have access only to those authorized transactions agreed upon
by the Trust and the Transfer Agent; |
| (vi) | honor all reasonable written requests made by the Transfer Agent to protect at the Transfer Agent’s
expense the rights of the Transfer Agent in Proprietary Information at common law, under federal copyright law and under other
federal or state law. |
| 5.2 | Proprietary Information shall not include all or any portion of any of the foregoing items that
are or become publicly available without breach of this Agreement; that are released for general disclosure by a written release
by the Transfer Agent; or that are already in the possession of the receiving party at the time of receipt without obligation of
confidentiality or breach of this Agreement. |
| 5.3 | If the Trust notifies the Transfer Agent that any of the Data Access Services do not operate in
material compliance with the most recently issued user documentation for such services, the Transfer Agent shall endeavor in a
timely manner to correct such failure. Organizations from which the Transfer Agent may obtain certain data included in the Data
Access Services are solely responsible for the contents of such data, and the Trust agrees to make no claim against the Transfer
Agent arising out of the contents of such third-party data, including, but not limited to, the accuracy thereof. DATA ACCESS SERVICES
AND |
ALL COMPUTER PROGRAMS AND SOFTWARE
SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. THE TRANSFER AGENT EXPRESSLY
DISCLAIMS ALL WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
| 5.4 | If the transactions available to the Trust include the ability to originate electronic instructions
to the Transfer Agent in order to effect the transfer or movement of cash or Shares, Shareholder information or other information,
then in such event the Transfer Agent shall be entitled to rely on the validity and authenticity of such instruction without undertaking
any further inquiry as long as such instruction is undertaken in conformity with security procedures established by the Transfer
Agent from time to time. |
| 5.5 | Each party shall take reasonable efforts to advise its employees of their obligations pursuant
to this Section. The obligations of this Section shall survive any earlier termination of this Agreement. |
| 5.6 | Notwithstanding Section 5.1, each Trust is granted a non-exclusive, non-transferable and perpetual
right to use reports generated in connection with such Trust’s receipt of transfer agency services hereunder; provided, however,
that (i) such use is limited to the Trust’s internal business purposes and (ii) such reports may not be re-distributed by
the Trust except in the ordinary course of its business to Shareholders, prospective Shareholders and other prospects, agents (including,
without limitation, attorneys, accountants, and auditors) and other service providers and internal organizations for informational
purposes. |
| 6. | STANDARD OF CARE / LIMITATION OF LIABILITY |
| 6.1 | The Transfer Agent shall at all times exercise reasonable care and diligence and act in good faith
in its performance of all the transfer agency and other services performed under this Agreement (the “Standard of Care”),
but assumes no responsibility and shall not be liable for loss or damage due to errors, including encoding and payment processing
errors, unless said errors are caused by its fraud, gross negligence, or willful misconduct or that of its employees or agents.
The parties agree that any encoding or payment processing errors shall be governed by this Standard of Care, and that Section 4-209
of the Uniform Commercial Code is superseded by this Section. |
| 6.2 | In any event, the Transfer Agent’s cumulative liability for each calendar year (a “Liability
Period”) with respect to the Trust under this Agreement regardless of the form of action or legal theory shall be
limited to its total annual compensation earned and fees payable hereunder during the preceding Compensation Period, as defined
herein, for any liability or loss suffered by the Trust including, but not limited to, any liability relating to qualification
of the Trust as a regulated investment company or any liability relating to the Trust’s compliance with any federal or state
tax or securities statute, regulation or ruling during such Liability Period. “Compensation Period” shall
mean the calendar year ending immediately prior to each Liability Period in which the event(s) giving rise to the Transfer Agent’s
liability for that period have occurred. Notwithstanding the foregoing, the Compensation Period for purposes of calculating the
annual cumulative liability of the Transfer Agent for the Liability Period commencing on the date of this Agreement and terminating
on December 31, 2018 shall be the date of this Agreement through December 31, 2018, calculated on an annualized basis, and the
Compensation Period for the Liability Period commencing January 1, 2019 |
and terminating on December 31, 2019
shall be the date of this Agreement through December 31, 2018, calculated on an annualized basis. In no event shall the Transfer
Agent be liable for special, incidental, indirect, punitive or consequential damages, regardless of the form of action and even
if the same were foreseeable.
| 6.3 | Notwithstanding any other provision set forth herein, in no event shall either party be liable
for any special, indirect, incidental, punitive or consequential damages, including lost profits, of any kind whatsoever (including,
without limitation and except as otherwise set forth herein, attorneys’ fees) under any provision of this Agreement or for
any such damages arising out of any act or failure to act hereunder, each of which is hereby excluded by agreement of the parties
regardless of whether such damages were foreseeable or whether either party or any entity had been advised of the possibility of
such damages. |
| 7.1 | The Transfer Agent shall not be responsible for, and each Trust shall indemnify and hold the Transfer
Agent harmless from and against, any and all losses, damages, costs, charges, counsel fees (including the defense of any lawsuit
in which the Transfer Agent or affiliate is a named party), payments, expenses and liability arising out of or attributable to: |
| (i) | all actions of the Transfer Agent or its agents or subcontractors required to be taken pursuant
to this Agreement, provided that such actions are taken in good faith and without gross negligence or willful misconduct; |
| (ii) | the Trust’s material breach of any representation, warranty or covenant of the Trust hereunder; |
| (iii) | the Trust’s fraud, gross negligence or willful misconduct; |
| (iv) | reliance upon, and any subsequent use of or action taken or omitted, by the Transfer Agent, or
its agents or subcontractors on: (a) any information, records, documents, data, stock certificates or services, which are received
by the Transfer Agent or its agents or subcontractors by machine readable input, facsimile, CRT data entry, electronic instructions
or other similar means authorized by the Trust, and which have been prepared, maintained or performed by the Trust or any other
person or firm on behalf of the Trust, including but not limited to any broker-dealer, third party administrator or previous transfer
agent; (b) any instructions or requests of the Trust or its officers, or the Trust’s agents or subcontractors or their officers
or employees; or (c) any instructions or opinions of legal counsel to the Trust with respect to any matter arising in connection
with the services to be performed by the Transfer Agent under this Agreement which are provided to the Transfer Agent after consultation
with such legal counsel; |
| (v) | the offer or sale of Shares in violation of any requirement under the federal or state securities
laws or regulations requiring that such Shares be registered, or in violation of any stop order or other determination or ruling
by any federal or state agency with respect to the offer or sale of such Shares; |
| (vi) | the negotiation and processing of any checks, wires and ACH transmissions, including without limitation,
for deposit into, or credit to, the Trust’s demand deposit accounts maintained by the Transfer Agent; |
| (vii) | all actions relating to the transmission of Trust or Shareholder data through the NSCC clearing
systems, if applicable; and |
| (viii) | any tax obligations under the tax laws of any country or of any state or political subdivision
thereof, including taxes, withholding and reporting requirements, claims for exemption and refund, additions for late payment,
interest, penalties and other expenses (including legal expenses) that may be assessed, imposed or charged against the Transfer
Agent as transfer agent hereunder. |
| 7.2 | At any time the Transfer Agent may apply to any officer of a Trust for instructions, and may consult
with legal counsel with respect to any matter arising in connection with the services to be performed by the Transfer Agent under
this Agreement, and the Transfer Agent and its agents or subcontractors shall not be liable and shall be indemnified by each Trust
for any action taken or omitted by it in reliance upon such instructions or upon the opinion of such counsel. The Transfer Agent,
its agents and subcontractors shall be protected and indemnified in acting upon any paper or document furnished by or on behalf
of a Trust, reasonably believed to be genuine and to have been signed by the proper person or persons, or upon any instruction,
information, data, records or documents provided the Transfer Agent or its agents or subcontractors by machine readable input,
electronic data entry or other similar means authorized by the Trust, and shall not be held to have notice of any change of authority
of any person, until receipt of written notice thereof from the Trust. The Transfer Agent, its agents and subcontractors shall
also be protected and indemnified in recognizing stock certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Trust, and the proper countersignature of any former transfer agent or former registrar,
or of a co-transfer agent or co-registrar. |
| 7.3 | For the avoidance of doubt, the indemnification obligations of each Trust in this Agreement shall
not apply to any liability or expense to the extent caused by the fraud, gross negligence or willful misconduct of the Transfer
Agent or its employees, agents or subcontractors. For the avoidance of doubt, the indemnification obligations of each Trust described
herein are several and not joint with any other Trust, and are solely as to services provided by the Transfer Agent with respect
to such Trust. |
| 7.4 | In order that the indemnification provisions contained in this Section shall apply, upon the assertion
of a claim for which a Trust may be required to indemnify the Transfer Agent, the Transfer Agent shall notify the Trust of such
assertion, and shall keep the Trust advised with respect to all material developments concerning such claim. The Trust shall have
the option to participate with the Transfer Agent in the defense of such claim or to defend against said claim in its own name.
The Transfer Agent shall not enter into any settlement with respect to a claim pursuant to which the Trust may be required to indemnify
the Transfer Agent, without first obtaining with the Trust’s prior written consent to such settlement, which shall not be
unreasonably withheld, conditioned or delayed. |
| 8. | ADDITIONAL COVENANTS OF THE TRUST AND THE TRANSFER AGENT |
| 8.1 | Delivery of Documents. Each Trust shall promptly furnish to the Transfer Agent the following: |
| (i) | A certificate of the Secretary of the Trust certifying the resolution of the Board of Trustees
of the Trust authorizing the appointment of the Transfer Agent and the execution and delivery of this Agreement. |
| (ii) | A copy of the Declaration of Trust and By-Laws of the Trust and all amendments thereto. |
| 8.2 | Certificates, Checks, Facsimile Signature Devices. The Transfer Agent hereby agrees to establish
and maintain facilities and procedures for safekeeping of any stock certificates, check forms and facsimile signature imprinting
devices; and for the preparation or use, and for keeping account of, such certificates, forms and devices. |
| 8.3 | Records. In compliance with the requirements of Rule 31a-3 under the 1940 Act, the Transfer
Agent agrees that all records which it maintains for the Trust shall at all times remain the property of the Trust, shall be readily
accessible during normal business hours, and shall be promptly surrendered upon the termination of the Agreement or otherwise on
written request except as otherwise provided in Section 11. The Transfer Agent further agrees that all records that it maintains
for the Trust pursuant to Rule 31a-1 under the 1940 Act will be preserved for the periods prescribed by Rule 31a-2 under the 1940
Act unless any such records are earlier surrendered as provided above. Records may be surrendered in either written or machine-readable
form, at the option of the Transfer Agent. In the event that the Transfer Agent is requested or authorized by the Trust, or required
by subpoena, administrative order, court order or other legal process, applicable law or regulation, or required in connection
with any investigation, examination or inspection of the Trust by state or federal regulatory agencies, to produce the records
of the Trust or the Transfer Agent’s personnel as witnesses or deponents with respect to an action brought against or investigation
of the Trust (or the Trust’s investment manager in connection with the operation of the Trust), the Trust agrees to pay the
Transfer Agent for the Transfer Agent’s time and expenses, as well as the fees and expenses of the Transfer Agent’s
counsel, incurred in such production. |
| 9. | CONFIDENTIALITY AND USE OF DATA |
| 9.1 | All information provided under this Agreement by a party (the “Disclosing Party”)
to the other party (the “Receiving Party”) regarding the Disclosing Party’s business and operations
shall be treated as confidential. Subject to Section 9.2 below, all confidential information provided under this Agreement by Disclosing
Party shall be used, including disclosure to third parties, by the Receiving Party, or its agents or service providers, solely
for the purpose of performing or receiving the services and discharging the Receiving Party’s other obligations under the
Agreement or managing the business of the Receiving Party and its Affiliates (as defined in Section 9.2 below), including financial
and operational management and reporting, risk management, legal and regulatory compliance and client service management. The foregoing
shall not be applicable to any information (a) that is publicly available when provided or thereafter becomes publicly available,
other than through a breach of this Agreement, (b) that is independently derived by the Receiving Party without the use of any
information provided by the Disclosing Party in connection with this Agreement, (c) that is disclosed to comply with any legal
or regulatory proceeding, investigation, audit, examination, subpoena, civil investigative demand or other similar process, (d)
that is disclosed as required by operation of law or regulation or as required to comply with the requirements of any market infrastructure
that the Disclosing Party or its agents direct the Transfer Agent or its Affiliates to employ (or which |
is required in connection with the
holding or settlement of instruments included in the assets subject to this Agreement), or (e) where the party seeking to disclose
has received the prior written consent of the party providing the information, which consent shall not be unreasonably withheld.
In the event of any disclosure of confidential information by a Receiving Party pursuant to clause (c) or (d) of the preceding
sentence, (i) provided that the Receiving Party is not prohibited from providing notice to the Disclosing Party, the Receiving
Party shall provide notice to the Disclosing Party, if reasonably practicable, prior to making such disclosure or, if not, then
within a reasonably prompt period of time following such disclosure; and (ii) the Receiving Party shall continue to treat such
information as confidential in accordance with this Section 9.1 with respect to any subsequent disclosure.
| 9.2 | (i) In connection with the provision of the services and the discharge of its other obligations
under this Agreement, the Transfer Agent (which term for purposes of this Section 9.2 includes each of its parent company, branches
and affiliates (“Affiliates”)) may collect and store information regarding each Trust and share such information with
its Affiliates, agents and service providers in order and to the extent reasonably necessary (i) to carry out the provision of
services contemplated under this Agreement and other agreements between the Trust and the Transfer Agent or any of its Affiliates
and (ii) to carry out management of its businesses, including, but not limited to, financial and operational management and reporting,
risk management, legal and regulatory compliance and client service management. |
(ii) Except
as expressly contemplated by this Agreement, nothing in this Section 9.2 shall limit the confidentiality and data-protection obligations
of the Transfer Agent and its Affiliates under this Agreement and applicable law. The Transfer Agent shall cause any Affiliate,
agent or service provider to which it has disclosed Data pursuant to this Section 9.2 to comply at all times with confidentiality
and data-protection obligations as if it were a party to this Agreement.
| 9.3 | The Transfer Agent affirms that it has, and will continue to have throughout the term of this Agreement,
procedures in place that are reasonably designed to protect the privacy of non-public personal consumer/customer financial information
to the extent required by applicable laws, rules and regulations. |
| 10. | Effective Period and Termination |
This Agreement shall
remain in full force and effect for an initial term ending three years from the date hereof (the “Initial Term”).
After the expiration of the Initial Term, this Agreement shall automatically renew for successive one-year terms (each, a “Renewal
Term”) unless a written notice of non-renewal is delivered by the non-renewing party no later than ninety (90) days prior
to the expiration of the Initial Term or any Renewal Term, as the case may be. During the Initial Term and thereafter, either party
may terminate this Agreement: (i) in the event of the other party’s material breach of a material provision of this Agreement
that the other party has either (a) failed to cure or (b) failed to establish a remedial plan to cure that is reasonably acceptable,
within 60 days’ written notice of such breach, or (ii) in the event of the appointment of a conservator or receiver for the
other party or upon the happening of a like event to the other party at the direction of an appropriate agency or court of competent
jurisdiction. Upon termination of this Agreement pursuant to this paragraph with respect to any Trust, the Trust shall pay Transfer
Agent any compensation then due and shall reimburse Transfer Agent for its costs, expenses and disbursements then due as agreed
upon from time to time in writing by the Trust and Transfer Agent.
Termination of this Agreement
with respect to any one Trust shall in no way affect the rights and duties under this Agreement with respect to any other Trust.
In the event that
any management investment company in addition to those listed on Schedule A desires to engage the Transfer Agent to render
services as transfer agent under the terms hereof, it shall so notify the Transfer Agent in writing, and if the Transfer Agent
agrees in writing to provide such services, such management investment company shall become a Trust hereunder.
| 12.1 | Except as provided in Section 14 below, neither this Agreement nor any rights or obligations hereunder
may be assigned by either party without the written consent of the other party. |
| 12.2 | Except as explicitly stated elsewhere in this Agreement, nothing under this Agreement shall be
construed to give any rights or benefits in this Agreement to anyone other than the Transfer Agent and the Trusts, and the duties
and responsibilities undertaken pursuant to this Agreement shall be for the sole and exclusive benefit of the Transfer Agent and
the Trusts. This Agreement shall inure to the benefit of, and be binding upon, the parties and their respective permitted successors
and assigns. |
| 12.3 | This Agreement does not constitute an agreement for a partnership or joint venture between the
Transfer Agent and the Trust. Other than as provided in Section 14, neither party shall make any commitments with third parties
that are binding on the other party without the other party’s prior written consent. |
| 14.1 | Amendment. This Agreement may be amended or modified by a written agreement executed by
both parties. |
| 14.2 | Massachusetts Law to Apply. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of Massachusetts without giving effect to any conflict of
laws rules. |
| 14.3 | Force Majeure. The Transfer Agent shall take commercially reasonable steps to minimize service
interruptions in the event of equipment failure, work stoppage, governmental action, communication disruption or other impossibility
of performance beyond the Transfer Agent’s control. The Transfer Agent shall enter into and shall maintain in effect at all
times during the term of this Agreement with appropriate parties one or more agreements making reasonable provision for (i) periodic
back-up of the computer files and data with respect to the Companies and (ii) emergency use of electronic data processing equipment
as necessary to provide services under this Agreement. Upon reasonable request, the Transfer Agent shall discuss with each Trust
any business continuity/disaster recovery plan of the Transfer Agent and/or provide a high-level presentation summarizing such
plan. |
| 14.4 | Data Protection. State Street will implement and maintain a comprehensive written information
security program that contains appropriate security measures to safeguard the personal information of the Trust’s shareholders,
employees, directors and/or officers that the Transfer Agent receives, stores, maintains, processes or otherwise accesses in connection
with the provision of services hereunder. For these purposes, “personal information” shall mean (i) an individual’s
name (first initial and last name or first name and last name), address or telephone number plus (a) social security number,
(b) driver’s license number, (c) state identification card number, (d) debit or credit card number, (e) financial account
number or (f) personal identification number or password that would permit access to a person’s account or (ii) any combination
of the foregoing that would allow a person to log onto or access an individual’s account. Notwithstanding the foregoing “personal
information” shall not include information that is lawfully obtained from publicly available information, or from federal,
state or local government records lawfully made available to the general public. |
| 14.5 | Survival. All provisions regarding indemnification, warranty, liability, and limits thereon,
and confidentiality and/or protections of proprietary rights and trade secrets shall survive the termination of this Agreement. |
| 14.6 | Severability. If any provision or provisions of this Agreement shall be held invalid, unlawful,
or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired. |
| 14.7 | Priorities Clause. In the event of any conflict, discrepancy or ambiguity between the terms
and conditions contained in this Agreement and any schedules or attachments hereto, the terms and conditions contained in this
Agreement shall take precedence. |
| 14.8 | Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement
on any occasion shall not be considered a waiver nor shall it deprive such party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement or the failure of a party hereto to exercise or any delay in exercising any
right or remedy under this Agreement shall not constitute a waiver of any such term, right or remedy or a waiver of any other rights
or remedies, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of
the right or remedy or the exercise of any other right or remedy. Any waiver must be in writing signed by the waiving party. |
| 14.9 | Entire Agreement. This Agreement and any schedules, exhibits, attachments or amendments
hereto constitute the entire agreement between the parties hereto and supersedes any prior agreement with respect to the subject
matter hereof whether oral or written. |
| 14.10 | Counterparts. This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original, and all such counterparts taken together shall constitute one and the same Agreement. Counterparts
may be executed in either original or electronically transmitted form (e.g., faxes or emailed portable document format (PDF) form),
and the parties hereby adopt as original any signatures received via electronically transmitted form. |
| 14.11 | Reproduction of Documents. This Agreement and all schedules, exhibits, attachments and amendments
hereto may be reproduced by any photographic, photostatic, microfilm, |
micro-card, miniature photographic
or other similar process. The parties hereto all/each agree that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction
was made by a party in the regular course of business, and that any enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible in evidence.
| 14.12 | Notices. Any notice instruction or other instrument required to be given hereunder will
be in writing and may be sent by hand, or overnight delivery by any recognized delivery service, to the parties at the following
address or such other address as may be notified by any party from time to time: |
(a) If
to Transfer Agent, to:
State Street Bank and Trust Company
Transfer Agency
Attention: Compliance
Xxx Xxxxxxxx Xxxxx Xxxxxxxx
0 Xxxxxxxx Xxxxx
Mail Stop OHD0100
North Xxxxxx XX 00000
With a copy to:
State Street Bank and Trust Company
Legal Division – Global Services Americas
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Senior Vice President and Senior Managing Counsel
c/o Xxxx Xxxxxxx Life Insurance Company
(U.S.A.)
000 Xxxxxxxxx Xxxxxx X-00
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Managing Director,
Private Markets Operations
Telephone: (000) 000-0000
With a copy to:
c/o Xxxx Xxxxxxx Life Insurance Company
(U.S.A.)
000 Xxxxxxxxx Xxxxxx X-00
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx, Senior
Managing Director & Chief Counsel, North American Investment Law
Telephone: (000) 000-0000
| 14.13 | Interpretive and Other Provisions. In connection with the operation of this Agreement, the
Transfer Agent and the Trusts, may from time to time agree on such provisions interpretive of or in addition to the provisions
of this Agreement as may in their joint opinion be consistent with the general tenor of this Agreement. Any such interpretive or |
additional provisions shall be in a
writing signed by all parties, provided that no such interpretive or additional provisions shall contravene any applicable laws
or regulations or any provision of a Trust’s governing documents. No interpretive or additional provisions made as provided
in the preceding sentence shall be deemed to be an amendment of this Agreement.
| 14.14 | Delegation. The Transfer Agent shall retain the right to employ agents, subcontractors,
consultants and other third parties, including, without limitation, affiliates (each, a “Delegate” and collectively,
the “Delegates”) to provide or assist it in the provision of any part of the services stated herein or the discharge
of any other obligations or duties under this Agreement without the consent or approval of the Trust. The Transfer Agent shall
be responsible for the acts and omissions of any such Delegate so employed as if the Transfer Agent had committed such acts and
omissions itself. The Transfer Agent shall be responsible for the compensation of its Delegates. |
| 14.15 | Insurance. The Transfer Agent will maintain, at all times during the term of this Agreement,
insurance of the types and in the amounts as the Transfer Agent shall, in its discretion, deem reasonable and appropriate taking
into account the nature of its business, the associated risks and the cost and availability of insurance. The Transfer Agent agrees
to provide each Trust with certificates of its applicable insurance coverage, and shall provide an update at a Trust’s written
request. |
| 14.17 | Reports. Upon reasonable request, the Transfer Agent shall provide each Trust with a copy
of the Transfer Agent’s Service Organization Control (SOC) 1 reports, or the successor report thereto, prepared in accordance
with the requirements of AT section 801, Reporting on Controls at a Service Organization (formerly Statement on Standards for Attestation
Engagements (SSAE) No. 16). The Transfer Agent shall use commercially reasonable efforts to provide each Trust with such reports
as a Trust may reasonably request or otherwise reasonably require to fulfill its duties under Rule 38a-1 of the 1940 Act or similar
legal and regulatory requirements in the ordinary course of its business. |
| 14.18 | Audit Rights. Upon request of a Trust (which shall include reasonable advance notice), the
Transfer Agent shall allow the Trust and the Trust’s auditors (including internal audit staff and external auditors) inspectors,
regulators and other authorized representatives to perform periodic on-site audits as may be reasonably required to examine the
Transfer Agent’s performance of the Services hereunder. Such audits shall be conducted at the Trust’s expense (which
shall include costs related to providing materials, copying, faxing, retrieving stored materials, and similar expenses) and shall
occur during the Transfer Agent’s regular business hours and, except as otherwise agreed to by the parties or for regulatory
audits, no more frequently than once a year. Audits will be conducted with representatives of the Transfer Agent present at all
times. The Company’s representatives will comply with all standard safety, confidentiality and security procedures of the
Transfer Agent. In connection with such audits, the Trust’s representatives shall not attempt to access, nor will they review,
the records of any other clients of the Transfer Agent and the Trust shall conduct the visit/inspection in a manner that will not
interfere with the Transfer Agent’s normal and customary conduct of its business activities, including the provision of services
to the Companies and to other clients. The Transfer Agent shall have the right to immediately require the removal of any the Trust’s
representatives from its premises in the event that their actions, in the reasonable opinion of the Transfer Agent, jeopardize
the information security of its systems and/or other client data or otherwise are disruptive to the business of the Transfer Agent.
The Transfer Agent may require any persons seeking |
access to its facilities to provide
reasonable evidence of their authority. The Transfer Agent may also reasonably require any of the Trust’s representatives
to execute a confidentiality agreement before granting such individuals access to its facilities. Nothing contained herein shall
obligate the Transfer Agent to provide access to or otherwise disclose: (i) any information that is unrelated to the Transfer Agent
or the Trusts and the provision of the services hereunder; (ii) any information that is treated as confidential under the Transfer
Agent’s corporate policies, including, without limitation, internal audit reports, compliance or risk management plans or
reports, work papers and other reports and information relating to management functions; (iii) any other documents, reports or
other information that the Transfer Agent is obligated to maintain in confidence by contract, by its regulators or otherwise as
a matter of law, legal privilege or regulation; or (iv) access to the extent that such access would, in the Transfer Agent’s
reasonable opinion, compromise the security of its technology systems or the confidentiality of its customers.
[Remainder of Page Intentionally Left Blank]
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.
|
State
Street Bank and Trust Company
|
|
| By: |
/s/ Xxxxxx Xxxxxxxx |
|
| |
Name: |
Xxxxxx Xxxxxxxx |
|
| |
Title: |
Executive Vice President |
|
|
each
registered investment company identified on Schedule A hereto
|
|
| By: |
/s/ E. Xxxxx Xxxxxxxx |
|
| |
Name: |
E. Xxxxx Xxxxxxxx |
|
| |
Title: |
Sole Trustee |
|
Schedule A
List of Trusts
| Trust Name |
Fund Type (Senior Loan Fund, Commercial Mortgage Fund, or Private Debt Fund) |
| XXXX XXXXXXX GA MORTGAGE TRUST |
Commercial Mortgage Fund |
| XXXX XXXXXXX GA SENIOR LOAN TRUST |
Senior Loan Fund |
| XXXX XXXXXXX GA PRIVATE PLACEMENT TRUST |
Private Debt Fund |
Schedule B
List of Services
| 1. | Maintenance of the Shareholder registry for each Trust, including: |
| a. | Receive orders for the purchase of Shares from the Trust, and promptly deliver payment and appropriate documentation thereof
to the custodian of the Trust as identified by the Trust (the “Custodian”); |
| b. | Pursuant to such purchase orders (withdrawals), issue (redeem) the appropriate number of Shares and book such Share issuance
(redemption) to the appropriate Shareholder account; |
| c. | Pursuant to capital calls, when applicable, hold any drawdown monies received in the appropriate account on behalf of a Shareholder; |
| d. | Book such Share issuance to the appropriate Shareholder account |
| e. | With respect to the transactions in items (a) and (b) above, the Transfer Agent shall process transactions received directly
from broker-dealers or other intermediaries authorized by the Trust who shall thereby be deemed to be acting on behalf of the Trust; |
| 2. | Investor commitment and capital call queue tracking and management; |
| 3. | Calculate preliminary dividend/income distribution owed to Shareholders; |
| 4. | Calculate final dividend/income distribution owed to Shareholders. |
