Transfer Agency and Service Agreement
Among
Each of the Nuveen Closed End Investment Companies
Listed on Exhibit A Hereto
and
State Street Bank and Trust Company
TABLE OF CONTENTS
Page
1. Appointment of Agent ........................................................ 1
2. Standard Services ........................................................... 2
3. Dividend Disbursing Services ................................................ 3
4. Shareholder Internet Services ............................................... 4
5. Fees and Expenses ........................................................... 5
6. Representations and Warranties of the Transfer Agent ........................ 6
7. Representations and Warranties of Customer .................................. 7
8. Data Access and Proprietary Information ..................................... 7
9. Indemnification ............................................................. 9
10. Consequential Damages ....................................................... 11
11. Responsibilities of the Transfer Agent ...................................... 11
12. Confidentiality ............................................................. 12
13. Covenants of the Customer and the Transfer Agent ............................ 12
14. Termination of Agreement .................................................... 13
15. Assignment and Third Party Beneficiaries .................................... 14
16. Subcontractors .............................................................. 15
17. Miscellaneous ............................................................... 15
AGREEMENT made as of the 20th day of September, 2002, by and among each of the
Nuveen closed-end investment companies listed on Exhibit A hereto, each being
either a Minnesota corporation or a Massachusetts business trust as indicated on
Exhibit A (each a "Customer" or the "Customer"), and State Street Bank and Trust
Company, a Massachusetts trust company, having a principal office and place of
business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Transfer
Agent").
WHEREAS, the Customer desires to appoint the Transfer Agent as sole transfer
agent, registrar, administrator of dividend reinvestment plans, option plans,
and direct stock purchase plans, and as dividend disbursing agent and processor
of all payments received or made by Customer under this Agreement.
WHEREAS, the Transfer Agent desires to accept such appointments and perform the
services related to such appointments;
WHEREAS, the Board of Directors of each Customer has approved appointment of the
Transfer Agent.
NOW THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. Appointment of Agent.
1.1 Appointments. The Customer hereby appoints the Transfer Agent to act
as sole transfer agent and registrar for all Shares in accordance with
the terms and conditions hereof and as administrator of plans and
appoints the Transfer Agent as dividend disbursing agent and processor
of all payments received or made by or on behalf of the Customer under
this Agreement, and the Transfer Agent accepts the appointments.
Customer shall provide Transfer Agent with certified copies of
resolutions appointing the Transfer Agent as transfer agent.
1.2 Documents. In connection with the appointing of Transfer Agent as the
transfer agent and registrar for each Customer, the Customer will
provide or has previously provided each of the following documents to
the Transfer Agent:
(a) Copies (in paper, electronic or other agreed upon format) of
Registration Statements and amendments thereto, filed with the
Securities and Exchange Commission for initial public offerings;
(b) Specimens of all forms of outstanding stock certificates, in
forms approved by the Board of Directors of the Customer, with a
certificate of the Secretary of the Customer as to such approval;
and
(c) Specimens of the Signatures of the officers of the Customer
authorized to sign stock certificates and individuals authorized
to sign written instructions and requests.
1.3 Records. Transfer Agent may adopt as part of its records all lists of
holders, records of Customer's shares, books, documents and records
which have been
employed by any former agent of Customer for the maintenance of the
ledgers for the Customer's shares, provided such ledger is certified
by an officer of Customer or the prior transfer agent to be true,
authentic and complete.
1.4 Shares. Customer shall, if applicable, inform Transfer Agent as to (i)
the existence or termination of any restrictions on the transfer of
Shares and in the application to or removal from any certificate of
stock of any legend restricting the transfer of such Shares or the
substitution for such certificate of a certificate without such
legend, (ii) any authorized but unissued Shares reserved for specific
purposes, (iii) any outstanding Shares which are exchangeable for
Shares and the basis for exchange, (iv) reserved Shares subject to
option and the details of such reservation and (v) special
instructions regarding dividends and information of foreign holders.
1.5 Customer's Agent. Transfer Agent represents that it is engaged in an
independent business and will perform its obligations under this
Agreement as an agent of Customer.
2. Standard Services.
2.1 Transfer Agent Services. The Transfer Agent will perform the following
services:
In accordance with the procedures established from time to time by
agreement between the Customer and the Transfer Agent, the Transfer
Agent shall:
(a) issue and record the appropriate number of Shares as authorized
and hold such Shares in the appropriate Shareholder account;
(b) effect transfers of Shares by the registered owners thereof upon
receipt of appropriate documentation;
(c) act as agent for Shareholders pursuant to dividend reinvestment
plans, and other investment programs as amended from time to time
in accordance with the terms of the agreements relating thereto
to which the Transfer Agent is or will be a party;
(d) issue replacement certificates for those certificates alleged to
have been lost, stolen or destroyed upon receipt by the Transfer
Agent of an open penalty surety bond satisfactory to it and
holding it and the Customer harmless, absent notice to the
Customer and the Transfer Agent that such certificates have been
acquired by a bona fide purchaser. The Transfer Agent, at its
option, may issue replacement certificates in place of mutilated
stock certificates upon presentation thereof without such
indemnity. Further, the Transfer Agent may at its sole option
accept indemnification from a Customer to issue replacement
certificates for those certificates alleged to have been lost,
stolen or destroyed in lieu of an open penalty bond;
(e) prepare and transmit payments for dividends and distributions
declared by
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the Customer, provided good funds for said dividends or
distributions are received by the Transfer Agent prior to the
scheduled payable date for said dividends or distributions;
(f) issue replacement checks and place stop orders on original checks
based on shareholder's representation that a check was not
received or was lost. Such stop orders and replacements will be
deemed to have been made at the request of Customer, and Customer
shall be responsible for all losses or claims resulting from such
replacement; and
(g) Receive all payments made to the Customer or the Transfer Agent
under any dividend reinvestment plan, direct stock purchase plan,
and plans and make all payments required to be made under such
plans, including all payments required to be made to the
Customer.
2.3 Customary Services. The Transfer Agent shall perform all the customary
services of a transfer agent, agent of dividend reinvestment plan,
cash purchase plan and other investment programs and of a dividend
disbursing agent and a processor of payments as described above
consistent with those requirements in effect as of the date of this
Agreement.
2.4 Unclaimed Property and Lost Shareholders. The Transfer Agent shall
report unclaimed property to each state in compliance with state law
and shall comply with Section 17Ad-17 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), for lost Shareholders. If
the Customer is not in compliance with applicable state laws, there
will be no charge for the first two years for this service for such
Customer, other than a charge for due diligence notices (reflected on
Schedule 5.1) provided that after the first two years, the Transfer
Agent will charge such Customer its then standard fee plus any
out-of-pocket expenses.
2.5 Certificates. Customer shall deliver to Transfer Agent an appropriate
supply of stock certificates, which certificates shall provide a
signature panel for use by an officer of or authorized xxxxxx for
Transfer Agent to sign as transfer agent and registrar, and which
shall state that such certificates are only valid after being
countersigned and registered.
3. Dividend Disbursing Services.
3.1 Declaration of Dividends. Upon receipt of a written notice from an
officer of the Customer declaring the payment of a dividend, the
Transfer Agent shall disburse such dividend payments provided that in
advance of such payment, Customer furnishes the Transfer Agent with
sufficient funds. The payment of such funds to the Transfer Agent for
the purpose of being available for the payment of dividend checks from
time to time is not intended by Customer to confer any rights in such
funds on Customer's Shareholders whether in trust or in contract or
otherwise.
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3.2 Stop Payments. Customer hereby authorizes the Transfer Agent to stop
payment of checks issued in payment of dividends, but not presented
for payment, when the payees thereof allege either that they have not
received the checks or that such checks have been mislaid, lost,
stolen, destroyed or, through no fault of theirs, are otherwise beyond
their control and cannot be produced by them for presentation and
collection, and the Transfer Agent shall issue and deliver duplicate
checks in replacement thereof, and Customer shall indemnify Transfer
Agent against any loss or damage resulting from reissuance of the
checks.
3.3 Tax Withholding. The Transfer Agent is hereby authorized to deduct
from all dividends declared by a Customer and disbursed by the
Transfer Agent, as dividend disbursing agent, the tax required to be
withheld pursuant to Sections 1441, 1442 and 3406 of the Internal
Revenue Code of 1986, as amended, or by any Federal or State statutes
subsequently enacted, and to make the necessary return and payment of
such tax in connection therewith.
3.4 Optional Services. To the extent that a Customer elects to engage the
Transfer Agent to provide the services listed below the Customer shall
engage the Transfer Agent to provide such services upon terms and fees
to be agreed upon by the parties:
(a) Corporate actions (including inter alia, odd lot buy backs,
exchanges, mergers, redemptions, subscriptions, capital
reorganization, coordination of post-merger services and special
meetings).
4. Shareholder Internet Services.
4.1 Shareholder Internet Services. The Transfer Agent shall provide
internet access to each Customer's shareholders through a designated
web site ("Shareholder Internet Services"), which will be accessed by
the Customer's shareholders via a link on Customer's web site. The
Shareholder Internet Services will be provided pursuant to established
procedures and will allow shareholders to view their account
information and perform certain on-line transaction request
capabilities. The Shareholder Internet Services shall be provided at
no additional charge, other than the transaction fees currently being
charged for the different transactions as described on the Fee
Schedule. The Transfer Agent reserves the right to charge a fee for
this service in the future.
4.2 Scope of Obligations. Transfer Agent shall at all times use reasonable
care in performing Shareholder Internet Services under this Agreement.
With respect to any claims for losses, damages, costs or expenses
which may arise directly or indirectly from security procedures which
Transfer Agent has implemented or omitted, Transfer Agent shall be
presumed to have used reasonable care if it has followed, in all
material respects, its security procedures then in effect. Transfer
Agent's security procedures for shareholder Internet access reflect
current industry standards and Transfer Agent shall modify such
security procedures from time to time to reflect changes in industry
standards. Transfer Agent also may, but shall not be required to,
modify such security procedures to the extent it believes, in good
faith, that such modifications will enhance the security of
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Shareholder Internet Services. All data and information transmissions
accessed via Shareholder Internet Services are for informational
purposes only, and are not intended to satisfy regulatory requirements
or comply with any laws, rules, requirements or standards of any
federal, state or local governmental authority, agency or industry
regulatory body, including the securities industry, which compliance
is the sole responsibility of Customer.
4.3 No Other Warranties. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION
4.2 OF THIS AGREEMENT, THE SHAREHOLDER INTERNET SERVICES ARE PROVIDED
"AS-IS," ON AN "AS AVAILABLE" BASIS, AND TRANSFER AGENT HEREBY
SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, REGARDING SUCH SERVICES PROVIDED BY TRANSFER AGENT
HEREUNDER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM
COURSE OF DEALING OR COURSE OF PERFORMANCE.
5. Fees and Expenses
5.1 Fee Schedule. For the performance by the Transfer Agent pursuant to
this Agreement, the Customer agrees to pay the Transfer Agent an
annual maintenance fee for each Shareholder account as set forth in
the attached fee schedule ("Schedule 5.1"). Such fees and
out-of-pocket expenses and advances identified under Section 5.2 below
may be changed from time to time subject to mutual written agreement
between the Customer and the Transfer Agent.
5.2 Out-of-Pocket Expenses. In addition to the fee paid under Section 5.1
above, the Customer agrees to reimburse the Transfer Agent for
out-of-pocket expenses, including but not limited to postage, forms,
telephone, microfilm, microfiche, sales taxes, records storage,
exchange and broker fees, or advances incurred by the Transfer Agent
for the items set out in Schedule 5.1 attached hereto. Out-of-pocket
expenses may include the costs to Transfer Agent of certain
administrative expenses so long as such expenses are described in
reasonable detail on the applicable invoice. In addition, any other
expenses incurred by the Transfer Agent at the request or with the
consent of the Customer, will be reimbursed by the Customer.
5.3 Postage. Postage for mailing of dividends, proxies, Customer reports
and other mailings to all shareholder accounts shall be advanced to
the Transfer Agent by the Customer at least seven (7) days prior to
the mailing date of such materials.
5.4 Invoices. The Customer agrees to pay all fees and reimbursable
expenses within thirty (30) days following the receipt of the
respective invoice, except for any fees or expenses that are subject
to good faith dispute. In the event of such a dispute, the Customer
may only withhold that portion of the fee or expense subject to the
good faith dispute. The Customer shall notify the Transfer Agent in
writing within twenty-one (21) calendar days following the receipt of
each
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invoice if the Customer is disputing any amounts in good faith. If the
Customer does not provide such notice of dispute within the required
time, the invoice will be deemed accepted by the Customer. The
Customer shall settle such disputed amounts within five (5) days of
the day on which the parties agree on the amount to be paid by payment
of the agreed amount. If no agreement is reached, then such disputed
amounts shall be settled as may be required by law or legal process.
5.5 Cost of Living Adjustment. For each year following the Initial Term,
unless the parties shall otherwise agree and provided that the service
mix and volumes remain consistent as previously provided in the
Initial Term, the total fee for all services shall equal the fee that
would be charged for the same services based on a fee rate (as
reflected in a fee rate schedule) increased by the percentage increase
for the twelve-month period of such previous calendar year of the
CPI-W (defined below) or, in the event that publication of such index
is terminated, any successor or substitute index, appropriately
adjusted, acceptable to both parties. As used herein, "CPI-W" shall
mean the Consumer Price Index for Urban Wage Earners and Clerical
Workers (Area: Boston-Brockton-Nashua, MA-NH-ME-CT; Base Period:
1982-84=100), as published by the United States Department of Labor,
Bureau of Labor Statistics.
5.6 Late Payments. If any undisputed amount in an invoice of the Transfer
Agent (for fees or reimbursable expenses) is not paid when due,
Customer shall pay the Transfer Agent interest thereon (from the due
date to the date of payment) at a per annum rate equal to one percent
(1.0%) plus the Prime Rate (that is, the base rate on corporate loans
posted by large domestic banks) published by The Wall Street Journal
(or, in the event such rate is not so published, a reasonably
equivalent published rate selected by Customer) on the first day of
publication during the month when such amount was due. Notwithstanding
any other provision hereof, such interest rate shall be no greater
than permitted under applicable provisions of Massachusetts law.
5.7 Bank Accounts. The Customer acknowledges that the bank demand deposit
accounts ("DDAs") maintained by the Transfer Agent in connection with
the Services will be in its name and that the Transfer Agent may
receive investment earnings in connection with the investment of
funds, at the Transfer Agent's risk and for its benefit, held in those
accounts from time to time.
6. Representations and Warranties of the Transfer Agent
The Transfer Agent represents and warrants to Customer that:
6.1 It is a trust company duly organized and existing and in good standing
under the laws of The Commonwealth of Massachusetts.
6.2 It is duly qualified to carry on its business in The Commonwealth of
Massachusetts.
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6.3 It is empowered under applicable laws and by its Charter and By-Laws
to enter into and perform this Agreement.
6.4 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
6.5 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under
this Agreement.
7. Representations and Warranties of Customer
Each Customer represents and warrants to the Transfer Agent that:
7.1 It is a business trust or corporation (as indicated on Exhibit A) duly
organized and existing and in good standing under the laws of its
state of organization.
7.2 It is empowered under applicable laws and by its organizational
documents to enter into and perform this Agreement.
7.3 All corporate proceedings required by said organizational documents
have been taken to authorize it to enter into and perform this
Agreement.
7.4 It is a closed-end management investment company registered under the
Investment Company Act of 1940, as amended.
7.5 A registration statement under the Securities Act of 1933, as amended
is currently effective and will remain effective, and appropriate
state securities law filings have been made and will continue to be
made, with respect to all Shares of the Customer being offered for
sale.
8. Data Access and Proprietary Information
8.1 The Customer acknowledges that the databases, computer programs,
screen formats, report formats, interactive design techniques, and
documentation manuals furnished to the Customer by the Transfer Agent
as part of the Customer's ability to access certain Customer-related
data ("Customer Data") maintained by the Transfer Agent on databases
under the control and ownership of the Transfer Agent or other third
party ("Data Access Services") constitute copyrighted, trade secret,
or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other
third party. In no event shall Proprietary Information be deemed
Customer Data. The Customer agrees to treat all Proprietary
Information as proprietary to the Transfer Agent and further agrees
that it shall not divulge any Proprietary Information to any person or
organization except as may be provided hereunder. Without limiting the
foregoing, the Customer agrees for itself and its employees and agents
to:
(a) Use such programs and databases (i) solely on the Customer's
computers, or (ii) solely from equipment at the location agreed
to between the Customer
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and the Transfer Agent and (iii) solely in accordance with the
Transfer Agent's applicable user documentation;
(b) Refrain from copying or duplicating in any way (other than in the
normal course of performing processing on the Customer's
computer(s)), the Proprietary Information;
(c) Refrain from obtaining unauthorized access to any portion of the
Proprietary Information, and if such access is inadvertently
obtained, to inform in a timely manner of such fact and dispose
of such information in accordance with the Transfer Agent's
instructions;
(d) Refrain from causing or allowing information transmitted from the
Transfer Agent's computer to the Customer's terminal to be
retransmitted to any other computer terminal or other device
except as expressly permitted by the Transfer Agent (such
permission not to be unreasonably withheld);
(e) Allow the Customer to have access only to those authorized
transactions as agreed to between the Customer and the Transfer
Agent; and
(f) 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.
8.2 Proprietary Information shall not include all or any portion of any of
the foregoing items that: (i) are or become publicly available without
breach of this Agreement; (ii) are released for general disclosure by
a written release by the Transfer Agent; or (iii) are already in the
possession of the receiving party at the time of receipt without
obligation of confidentiality or breach of this Agreement.
8.3 The Customer acknowledges that its obligation to protect the Transfer
Agent's Proprietary Information is essential to the business interest
of the Transfer Agent and that the disclosure of such Proprietary
Information in breach of this Agreement would cause the Transfer Agent
immediate, substantial and irreparable harm, the value of which would
be extremely difficult to determine. Accordingly, the parties agree
that, in addition to any other remedies that may be available in law,
equity, or otherwise for the disclosure or use of the Proprietary
Information in breach of this Agreement, the Transfer Agent shall be
entitled to seek and obtain a temporary restraining order, injunctive
relief, or other equitable relief against the continuance of such
breach.
8.4 If the Customer 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 Customer agrees to make no claim against
the Transfer Agent arising out of the contents of such third-party
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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.
8.5 If the transactions available to the Customer include the ability to
originate electronic instructions to the Transfer Agent in order to
(i) effect the transfer or movement of cash or Shares or (ii) transmit
Shareholder information or other information, then in such event the
Transfer Agent shall be entitled to rely on the validity and
authenticity of such 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.
8.6 Each party shall take reasonable efforts to advise its employees of
their obligations pursuant to this Section 8. The obligations of this
Section shall survive any termination of this Agreement.
9. Indemnification.
9.1 The Transfer Agent shall not be responsible for, and the Customer
shall indemnify and hold the Transfer Agent harmless from and against,
any and all losses, claims, damages, costs, charges, counsel fees and
expenses, payments, expenses and liability arising out of or
attributable to:
(a) All actions of the Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement, provided such
actions are taken in good faith and without negligence or willful
misconduct;
(b) The Customer's lack of good faith, negligence or willful
misconduct or the breach of any representation or warranty of the
Customer hereunder;
(c) The reasonable reliance or use by the Transfer Agent or its
agents or subcontractors of information, records and 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 Customer,
and which have been prepared, maintained or performed by the
Customer or any other person or firm on behalf of the Customer
including but not limited to any broker-dealer, TPA or previous
transfer agent;
(d) The reasonable reliance or use by the Transfer Agent or its
agents or subcontractors of any paper or document reasonably
believed to be genuine and to have been signed by the proper
person or persons including Shareholders or electronic
instruction from Shareholders submitted through electronic means
pursuant to security procedures established by the Transfer
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Agent;
(e) The reliance on, or the carrying out by the Transfer Agent or its
agents or subcontractors of any instructions or requests of the
Customer's representatives;
(f) The offer or sale of Shares in violation of any federal or state
securities laws 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;
(g) The negotiation and processing of any checks including without
limitation for deposit into the Customer's DDA maintained by the
Transfer Agent in accordance with the procedures mutually agreed
upon by the parties;
(h) Any actions taken or omitted to be taken by any former agent of
Customer and arising from Transfer Agent's reliance on the
certified list of holders; and
(i) The negotiation, presentment, delivery or transfer of Shares
through the Direct Registration System Profile System.
9.2 Instructions. At any time the Transfer Agent may apply to any officer
of the Customer for instruction, and may consult with legal counsel
for the Transfer Agent or the Customer with respect to any matter
arising in connection with the services to be performed by the
Transfer Agent under this Agreement, and Transfer Agent and its agents
and subcontractors shall not be liable and shall be indemnified by the
Customer for any action taken or omitted by it in reliance upon such
instructions or upon the advice or opinion of such counsel. The
Transfer Agent, its agents and subcontractors shall be protected and
indemnified in acting upon any paper or document reasonably believed
to be genuine and to have been signed by the proper person or persons,
or upon any instruction, information, data, records or documents
provided the Transfer Agent or its agents or subcontractors by
telephone, in person, machine readable input, telex, CRT data entry or
similar means authorized by the Customer, and shall not be held to
have notice of any change of authority of any person, until receipt of
written notice thereof from the Customer. The Transfer Agent, its
agents and subcontractors shall also be protected and indemnified in
recognizing stock certificates which are reasonably believed to bear
the proper manual or facsimile signatures of officers of the Customer,
and the proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
9.3. Standard of Care. The Transfer Agent shall at all times act in good
faith and agrees to use its best efforts within reasonable limits to
ensure the accuracy of all services performed under this Agreement,
but assumes no responsibility and shall not be liable for loss or
damage due to errors, including encoding and payment processing
errors, unless said errors are caused by its negligence, bad faith, or
willful misconduct or that of its employees or agents.
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9.4. Notice. In order that the indemnification provisions contained in
this Section shall apply, upon the assertion of a claim for which
the Customer may be required to indemnify the Transfer Agent, the
Transfer Agent shall promptly notify the Customer of such
assertion, and shall keep the Customer advised with respect to all
developments concerning such claim. The Customer 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 or the
name of the Transfer Agent. The Transfer Agent shall in no case
confess any claim or make any compromise in any case in which the
Customer may be required to indemnify it except with the
Customer's prior written consent.
10. Consequential Damages.
NO PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, BUT NOT
LIMITED TO, LOSS OF ANTICIPATED PROFITS, OCCASIONED BY A BREACH OF ANY
PROVISION OF THIS AGREEMENT EVEN IF APPRISED OF THE POSSIBILITY OF SUCH
DAMAGES.
11. Responsibilities of the Transfer Agent.
The Transfer Agent undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the
Customer, by its acceptance hereof, shall be bound:
11.1 Whenever in the performance of its duties hereunder the Transfer
Agent shall deem it necessary or desirable that any fact or matter
be proved or established prior to taking or suffering any action
hereunder, such fact or matter may be deemed to be conclusively
proved and established by a certificate signed by an officer of
the Customer and delivered to the Transfer Agent. Such certificate
shall be full authorization to the recipient for any action taken
or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
11.2 The Customer agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Transfer Agent for
the carrying out, or performing by the Transfer Agent of the
provisions of this Agreement.
11.3 Transfer Agent, any of its affiliates or subsidiaries, and any
stockholder, director, officer or employee of the Transfer Agent
may buy, sell or deal in the securities of the Customer or become
pecuniarily interested in any transaction in which the Customer
may be interested, or contract with or lend money to the Customer
or otherwise act as fully and freely as though it were not
appointed as agent under this Agreement. Nothing herein shall
preclude the Transfer Agent from acting in any other capacity for
the Customer or for any other legal entity.
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11.4 No provision of this Agreement shall require the Transfer Agent to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in
the exercise of its rights if it shall believe in good faith that
repayment of such funds or adequate indemnification against such
risk or liability is not reasonably assured to it.
12. Confidentiality
12.1 The Transfer Agent and the Customer agree that they will not, at
any time during the term of this Agreement or after its
termination, reveal, divulge, or make known to any person, firm,
corporation or other business organization, any Customers' lists,
trade secrets, cost figures and projections, profit figures and
projections, or any other secret or confidential information
whatsoever, whether of the Transfer Agent or of the Customer, used
or gained by the Transfer Agent or the Customer during performance
under this Agreement. The Customer and the Transfer Agent further
covenant and agree to retain all such knowledge and information
acquired during and after the term of this Agreement respecting
such lists, trade secrets, or any secret or confidential
information whatsoever in trust for the sole benefit of the
Transfer Agent or the Customer and their successors and assigns.
In the event of breach of the foregoing by either party, the
remedies provided by Section 8.3 shall be available to the party
whose confidential information is disclosed. The above prohibition
of disclosure shall not apply to the extent that the Transfer
Agent must disclose such data to its sub-contractor or Customer's
agent for purposes of providing services under this Agreement.
12.2 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Customer, other than
request for records of Shareholders pursuant to standard subpoenas
from state or federal government authorities (i.e., divorce and
criminal actions), the Transfer Agent will endeavor to notify the
Customer and to secure instructions from an authorized officer of
the Customer as to such inspection. The Transfer Agent expressly
reserves the right, however, to exhibit the Shareholder records to
any person whenever it is advised by counsel that it may be held
liable for the failure to exhibit the Shareholder records to such
person or if required by law or court order.
13. Covenants of the Customer and the Transfer Agent
13.1 Documentation. The Customer shall promptly furnish to the Transfer
Agent the following:
(a) A certified copy of the resolution of the Board of Trustees
or the Board of Directors of the Customer authorizing the
appointment of the Transfer Agent and the execution and
delivery of this Agreement; and
(b) A copy (in paper, electronic or other agreed upon format)
of the organizational documents of the Customer and all
amendments thereto.
13.2 Facilities. The Transfer Agent hereby agrees to establish and
maintain facilities
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and procedures reasonably acceptable to the Customer for
safekeeping of stock certificates, check forms and facsimile
signature imprinting devices, if any; and for the preparation or
use, and for keeping account of, such certificates, forms and
devices.
13.3 Records. The Transfer Agent shall keep records relating to the
services to be performed hereunder, in the form and manner as it
may deem advisable. The Transfer Agent agrees that all such
records prepared or maintained by it relating to the services
performed hereunder are the property of the Customer and will be
preserved, maintained and made available in accordance with the
requirements of law, and will be surrendered promptly to the
Customer on and in accordance with its request.
13.4 Non-Solicitation of Transfer Agent Employees. Customer shall not
attempt to hire or assist with the hiring of an employee of the
Transfer Agent or of its affiliated companies or encourage any
employee to terminate their relationship with the Transfer Agent
or its affiliated companies.
14. Termination of Agreement
14.1 Term. The initial term of this Agreement (the "Initial Term")
shall be three (3) years from the date first stated above unless
terminated pursuant to the provisions of this Section 14. Unless a
terminating party gives written notice to the other party one
hundred and twenty (120) days before the expiration of the Initial
Term or any Renewal Term, this Agreement will renew automatically
from year to year (each such year-to-year renewal term a "Renewal
Term"). One hundred and twenty (120) days before the expiration of
the Initial Term or a Renewal Term the parties to this Agreement
will agree upon a Fee Schedule for the upcoming Renewal Term.
Otherwise, the fees shall be increased pursuant to Section 5.5 of
this Agreement.
14.2 Early Termination. Notwithstanding anything contained in this
Agreement to the contrary, should the Customer desire to move any
of its services provided by the Transfer Agent hereunder to a
successor service provider prior to the expiration of the then
current Initial or Renewal Term, or without the required notice,
the Transfer Agent shall make a good faith effort to facilitate
the conversion on such prior date; however, there can be no
guarantee or assurance that the Transfer Agent will be able to
facilitate a conversion of services on such prior date. In
connection with the foregoing, should services be converted to a
successor service provider, or if the Customer is liquidated or
its assets merged or purchased or the like with or by another
entity which does not utilize the services of the Transfer Agent,
the fees payable to the Transfer Agent shall be calculated as if
the services had been performed by the Transfer Agent until the
expiration of the then current Initial or Renewal Term and
calculated at the asset and/or Shareholder account levels, as the
case may be, on the date notice of termination was given to the
Transfer Agent, and the payment of all fees to the Transfer Agent
as set forth herein shall be accelerated to the business day
immediately prior to the conversion or termination of services or
such later date or dates as may be mutually agreed by the parties.
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14.3 Expiration of Term. During the Initial Term or Renewal Term,
whichever currently is in effect, should either party exercise its
right to terminate, all out-of-pocket expenses or costs associated
with the movement of records and material will be borne by the
Customer. Additionally, the Transfer Agent reserves the right to
charge for any other reasonable expenses associated with such
termination.
14.4 Confidential Information. Upon termination of this Agreement, each
party shall return to the other party all copies of confidential
or proprietary materials or information received from such other
party hereunder, other than materials or information required to
be retained by such party under applicable laws or regulations.
14.5 Unpaid Invoices. The Transfer Agent may terminate this Agreement
immediately upon an unpaid invoice payable by the Customer to the
Transfer Agent being outstanding for more than ninety (90) days,
except with respect to any amount subject to a good faith dispute
within the meaning of Section 5.4 of this Agreement.
14.6 Bankruptcy. Either party hereto may terminate this Agreement
by notice to the other party, effective at any time specified
therein, in the event that (a) the other party ceases to carry
on its business or (b) an action is commenced by or against
the other party under Title 11 of the United States Code or a
receiver, conservator or similar officer is appointed for the
other party and such suit, conservatorship or receivership is
not discharged within sixty (60) days.
15. Assignment and Third Party Beneficiaries
15.1 Except as provided in Section 16.1 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party. Any attempt
to do so in violation of this Section shall be void. Unless
specifically stated to the contrary in any written consent to an
assignment, no assignment will release or discharge the assignor
from any duty or responsibility under this Agreement.
15.2 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 Customer, and the duties and responsibilities undertaken
pursuant to this Agreement shall be for the sole and exclusive
benefit of the Transfer Agent and the Customer. This Agreement
shall inure to the benefit of and be binding upon the parties and
their respective permitted successors and assigns.
15.3 This Agreement does not constitute an agreement for a partnership
or joint venture between the Transfer Agent and the Customer.
Other than as provided in Section 16.1, neither party shall make
any commitments with third parties that are binding on the other
party without the other party's prior written consent.
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16. Subcontractors
16.1 The Transfer Agent may, without further consent on the part of the
Customer, subcontract for the performance hereof with (i) Boston
Financial Data Services, Inc., a Massachusetts corporation
("Boston Financial") which is duly registered as a transfer agent
pursuant to Section 17A(c)(2) of the Securities Exchange Act of
1934, as amended, (ii) a Boston Financial subsidiary duly
registered as a transfer agent or (iii) a Boston Financial
affiliate duly registered as a transfer agent; provided however,
that the Transfer Agent shall be as fully responsible to the
Customer for the acts and omissions of such subcontractor as it is
for its own acts and omissions.
16.2 Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions
or omissions to act of unaffiliated third parties such as by way
of example and not limitation, Airborne Services, Federal Express,
United Parcel Service, the U.S. Mails, the NSCC and
telecommunication companies, provided, if the Transfer Agent
selected such company, the Transfer Agent shall have exercised due
care in selecting the same.
17. Miscellaneous
17.1 Amendment. This Agreement may be amended or modified by a written
amendment executed by the parties hereto and, to the extent
required, authorized or approved by a resolution of the Board of
Directors of the Customer.
17.2 Massachusetts Law to Apply. This Agreement shall be construed and
the provisions thereof interpreted under and in accordance with
the laws of The Commonwealth of Massachusetts.
17.3 Force Majeure. Notwithstanding anything to the contrary contained
herein, neither party shall be liable for any delays or failures
in performance resulting from acts beyond its reasonable control
including, without limitation, acts of God, acts of war or
terrorism, shortage of supply, breakdowns or malfunctions,
interruptions or malfunction of computer facilities, or loss of
data due to power failures or mechanical difficulties with
information storage or retrieval systems, labor difficulties or
civil unrest. Notwithstanding the foregoing, in the event of such
an occurrence, each party agrees to make a good faith effort to
perform its obligations hereunder.
17.4 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.
17.5 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the
remainder of the terms, provision, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
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17.6 Successors. All the covenants and provisions of this agreement by
or for the benefit of the Customer or the Transfer Agent shall
bind and inure to the benefit of their respective successors and
assigns hereunder.
17.7 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.
17.8 Waiver. No waiver by either party or any breach or default of any
of the covenants or conditions herein contained and performed by
the other party shall be construed as a waiver of any succeeding
breach of the same or of any other covenant or condition.
17.9 Merger of Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior
agreement with respect to the subject matter hereof whether oral
or written.
17.10 Counterparts. This Agreement may be executed by the parties hereto
on any number of counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument.
17.11 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 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 shall likewise be admissible in evidence.
17.12 Notices. Any notice or communication by the Transfer Agent or the
Customer to the other is duly given if in writing and delivered in
person or mailed by first class mail, postage prepaid, telex,
telecopier or overnight air courier guaranteeing next day
delivery, to the other's address:
(a) If to the Transfer Agent, to:
State Street Bank and Trust Company
c/o Boston Financial Data Services, Inc.
0 Xxxxxxxx Xxxxx, 0/xx/ Xxxxx
Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Legal Department
Facsimile: (000) 000-0000
(b) If to the Customer, to:
Nuveen Funds
c/o Nuveen Investments
000 X. Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Legal Department
Facsimile: (000) 000-0000
Section 18. Limitation of Liability
For each Customer that is a business trust, the Customer's Declaration
of Trust is on file with the Secretary of The Commonwealth of
Massachusetts. This Agreement is executed on behalf of the Customer by
the Customer's officers as officers and not individually. The
obligations imposed upon the Customer by this Agreement are not binding
upon any of the Customer's Trustees, officers or shareholders
individually but are binding only upon the assets and property of the
Customer.
The Transfer Agent and the Customer may, by notice to the other, designate
additional or different addresses for subsequent notices or communications.
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.
CUSTOMER
BY: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
as an Authorized Officer on behalf of each
of the Funds indicated on Exhibit A
ATTEST:
/s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------
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