Exhibit 99(k)(1)
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STOCK TRANSFER AGENCY AGREEMENT
between
MBIA CAPITAL/CLAYMORE MANAGED DURATION INVESTMENT GRADE
MUNICIPAL FUND
and
THE BANK OF NEW YORK
Dated as of August 26, 2003
ACCOUNT NUMBER(S) 259941
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STOCK TRANSFER AGENCY AGREEMENT
AGREEMENT, made as of August 26, 2003, by and between MBIA Capital/Claymore
Managed Duration Investment Grade Municipal Fund, a statutory trust organized
and existing under the laws of the State of Delaware (hereinafter referred to as
the "Customer"), and THE BANK OF NEW YORK, a New York trust company (hereinafter
referred to as the "Bank").
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have
the following meanings:
1. "Business Day" shall be deemed to be each day on which the Bank is open
for business.
2. "Certificate" shall mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement to be given to the Bank by the
Customer which is signed by any Officer, as hereinafter defined, and actually
received by the Bank.
3. "Officer" shall be deemed to be the Customer's Chief Executive Officer,
President, any Vice President, the Secretary, the Treasurer, the Controller, any
Assistant Treasurer, and any Assistant Secretary duly authorized by the Board of
Directors of the Customer to execute any Certificate, instruction, notice or
other instrument on behalf of the Customer and named in a Certificate, as such
Certificate may be amended from time to time.
4. "Shares" shall mean all or any part of each class of the shares of
capital stock of the Customer which from time to time are authorized and/or
issued by the Customer and identified in a Certificate of the Secretary of the
Customer under corporate seal, as such Certificate may be amended from time to
time, with respect to which the Bank is to act hereunder.
ARTICLE II.
APPOINTMENT OF BANK
1. The Customer hereby constitutes and appoints the Bank as its agent to
perform the services described herein and as more particularly described in
Schedule I
attached hereto (the "Services"), and the Bank hereby accepts appointment as
such agent and agrees to perform the Services in accordance with the terms
hereinafter set forth.
2. In connection with such appointment, the Customer shall deliver the
following documents to the Bank:
(a) A certified copy of the Certificate of Incorporation or other
document evidencing the Customer's form of organization (the "Charter") and all
amendments thereto;
(b) A certified copy of the By-Laws of the Customer;
(c) A certified copy of a resolution of the Board of Directors of the
Customer appointing the Bank to perform the Services and authorizing the
execution and delivery of this Agreement;
(d) A Certificate signed by the Secretary of the Customer specifying:
the number of authorized Shares, the number of such authorized Shares issued and
currently outstanding, and the names and specimen signatures of all persons duly
authorized by the Board of Directors of the Customer to execute any Certificate
on behalf of the Customer, as such Certificate may be amended from time to time;
(e) A Specimen Share certificate for each class of Shares in the form
approved by the Board of Directors of the Customer, together with a Certificate
signed by the Secretary of the Customer as to such approval and covenanting to
supply a new such Certificate and specimen whenever such form shall change;
(f) An executed copy of the opinion of counsel for the Customer
delivered to Customer's underwriter with respect to the offering of Shares, it
being agreed that such opinion need not be addressed to the Bank nor subject to
any reliance letter addressed to the Bank;
(g) A list of the name, address, social security or taxpayer
identification number of each Shareholder, number of Shares owned, certificate
numbers, and whether any "stops" have been placed; and
(h) An opinion of counsel for the Customer, in a form satisfactory to
the Bank, with respect to the due authorization by the Customer and the validity
and effectiveness of the use of facsimile signatures by the Bank in connection
with the countersigning and registering of Share certificates of the Customer.
3. The Customer shall furnish the Bank with a sufficient supply of blank
Share certificates and from time to time will renew such supply upon request of
the Bank. Such blank Share certificates shall be properly signed, by facsimile
or otherwise, by Officers of
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the Customer authorized by law or by the By-Laws to sign Share certificates,
and, if required, shall bear the corporate seal or a facsimile thereof.
ARTICLE III.
AUTHORIZATION AND ISSUANCE OF SHARES
1. The Customer shall deliver to the Bank the following documents on or
before the effective date of any increase, decrease or other change in the total
number of Shares authorized to be issued:
(a) A certified copy of the amendment to the Charter giving effect to
such increase, decrease or change;
(b) An opinion of counsel for the Customer, in a form satisfactory to
the Bank, with respect to the validity of the Shares, the obtaining of all
necessary governmental consents, whether such Shares are fully paid and
non-assessable and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable federal law or regulations (I.E., if
subject to registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor); and
(c) In the case of an increase, if the appointment of the Bank was
theretofore expressly limited, a certified copy of a resolution of the Board of
Directors of the Customer increasing the authority of the Bank.
2. Prior to the issuance of any additional Shares pursuant to stock
dividends, stock splits or otherwise, and prior to any reduction in the number
of Shares outstanding, the Customer shall deliver the following documents to the
Bank:
(a) A certified copy of the resolutions adopted by the Board of
Directors and/or the shareholders of the Customer authorizing such issuance of
additional Shares of the Customer or such reduction, as the case may be;
(b) A certified copy of the order or consent of each governmental or
regulatory authority required by law as a prerequisite to the issuance or
reduction of such Shares, as the case may be, and an opinion of counsel for the
Customer that no other order or consent is required; and
(c) An opinion of counsel for the Customer, in a form satisfactory to
the Bank, with respect to the validity of the Shares, the obtaining of all
necessary governmental consents, whether such Shares are fully paid and
non-assessable and the status of such Shares under the Securities Act of 1933,
as amended, and any other applicable law or regulation (I.E., if subject to
registration, that they have been registered and that the Registration Statement
has become effective, or, if exempt, the specific grounds therefor).
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ARTICLE IV.
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or other
capital adjustment requiring a change in the form of Share certificates, the
Bank will issue Share certificates in the new form in exchange for, or upon
transfer of, outstanding Share certificates in the old form, upon receiving:
(a) A Certificate authorizing the issuance of Share certificates in
the new form;
(b) A certified copy of any amendment to the Charter with respect to
the change;
(c) Specimen Share certificates for each class of Shares in the new
form approved by the Board of Directors of the Customer, with a Certificate
signed by the Secretary of the Customer as to such approval;
(d) A certified copy of the order or consent of each governmental or
regulatory authority required by law as a prerequisite to the issuance of the
Shares in the new form, and an opinion of counsel for the Customer that the
order or consent of no other governmental or regulatory authority is required;
and
(e) An opinion of counsel for the Customer, in a form satisfactory to
the Bank, with respect to the validity of the Shares in the new form, the
obtaining of all necessary governmental consents, whether such Shares are fully
paid and non-assessable and the status of such Shares under the Securities Act
of 1933, as amended, and any other applicable law or regulation (I.E., if
subject to registration, that the Shares have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor).
2. The Customer shall furnish the Bank with a sufficient supply of blank
Share certificates in the new form, and from time to time will replenish such
supply upon the request of the Bank. Such blank Share certificates shall be
properly signed, by facsimile or otherwise, by Officers of the Customer
authorized by law or by the By-Laws to sign Share certificates and, if required,
shall bear the corporate seal or a facsimile thereof.
ARTICLE V.
ISSUANCE AND TRANSFER OF SHARES
1. The Bank will issue Share certificates upon receipt of a Certificate
from an Officer, but shall not be required to issue Share certificates after it
has received from an appropriate federal or state authority written notification
that the sale of Shares has been suspended or discontinued, and the Bank shall
be entitled to rely upon such written notification. The Bank shall not be
responsible for the payment of any original issue or
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other taxes required to be paid by the Customer in connection with the issuance
of any Shares.
2. Shares will be transferred upon presentation to the Bank of Share
certificates in form deemed by the Bank properly endorsed for transfer,
accompanied by such documents as the Bank deems necessary to evidence the
authority of the person making such transfer, and bearing satisfactory evidence
of the payment of applicable stock transfer taxes. In the case of small estates
where no administration is contemplated, the Bank may, when furnished with an
appropriate surety bond, and without further approval of the Customer, transfer
Shares registered in the name of the decedent where the current market value of
the Shares being transferred does not exceed such amount as may from time to
time be prescribed by the various states. The Bank reserves the right to refuse
to transfer Shares until it is satisfied that the endorsements on Share
certificates are valid and genuine, and for that purpose it may require, unless
otherwise instructed by an Officer of the Customer, a guaranty of signature by
an "eligible guarantor institution" meeting the requirements of the Bank, which
requirements include membership or participation in STAMP or such other
"signature guarantee program" as may be determined by the Bank in addition to,
or in substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended. The Bank also reserves the right to refuse to transfer
Shares until it is satisfied that the requested transfer is legally authorized,
and it shall incur no liability for the refusal in good faith to make transfers
which the Bank, in its judgment, deems improper or unauthorized, or until it is
satisfied that there is no basis to any claims adverse to such transfer. The
Bank may, in effecting transfers of Shares, rely upon those provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers or the
Uniform Commercial Code, as the same may be amended from time to time,
applicable to the transfer of securities, and the Customer shall indemnify the
Bank for any act done or omitted by it in good faith in reliance upon such laws.
3. All certificates representing Shares that are subject to restrictions on
transfer (E.G., securities acquired pursuant to an investment representation,
securities held by controlling persons, securities subject to stockholders'
agreement, etc.), shall be stamped with a legend describing the extent and
conditions of the restrictions or referring to the source of such restrictions.
The Bank assumes no responsibility with respect to the transfer of restricted
securities where counsel for the Customer advises that such transfer may be
properly effected.
ARTICLE VI.
DIVIDENDS AND DISTRIBUTIONS
1. The Customer shall furnish to the Bank a copy of a resolution of its
Board of Directors, certified by the Secretary or any Assistant Secretary,
either (i) setting forth the date of the declaration of a dividend or
distribution, the date of accrual or payment, as the case may be, the record
date as of which shareholders entitled to payment, or accrual, as
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the case may be, shall be determined, the amount per Share of such dividend or
distribution, the payment date on which all previously accrued and unpaid
dividends are to be paid, and the total amount, if any, payable to the Bank on
such payment date, or (ii) authorizing the declaration of dividends and
distributions on a periodic basis and authorizing the Bank to rely on a
Certificate setting forth the information described in subsection (i) of this
paragraph.
2. Prior to the payment date specified in such Certificate or resolution,
as the case may be, the Customer shall, in the case of a cash dividend or
distribution, pay to the Bank an amount of cash, sufficient for the Bank to make
the payment, specified in such Certificate or resolution, to the shareholders of
record as of such payment date. The Bank will, upon receipt of any such cash,
(i) in the case of shareholders who are participants in a dividend reinvestment
and/or cash purchase plan of the Customer, reinvest such cash dividends or
distributions in accordance with the terms of such plan, and (ii) in the case of
shareholders who are not participants in any such plan, make payment of such
cash dividends or distributions to the shareholders of record as of the record
date by mailing a check, payable to the registered shareholder, to the address
of record or dividend mailing address. The Bank shall not be liable for any
improper payment made in accordance with a Certificate or resolution described
in the preceding paragraph. If the Bank shall not receive sufficient cash prior
to the payment date to make payments of any cash dividend or distribution
pursuant to subsections (i) and (ii) above to all shareholders of the Customer
as of the record date, the Bank shall, upon notifying the Customer, withhold
payment to all shareholders of the Customer as of the record date until
sufficient cash is provided to the Bank.
3. It is understood that the Bank shall in no way be responsible for the
determination of the rate or form of dividends or distributions due to the
shareholders.
4. It is understood that the Bank shall file such appropriate information
returns concerning the payment of dividends and distributions with the proper
federal, state and local authorities as are required by law to be filed by the
Customer but shall in no way be responsible for the collection or withholding of
taxes due on such dividends or distributions due to shareholders, except and
only to the extent required of it by applicable law.
ARTICLE VII.
CONCERNING THE CUSTOMER
1. The Customer shall promptly deliver to the Bank written notice of any
change in the Officers authorized to sign Share certificates, Certificates,
notifications or requests, together with a specimen signature of each new
Officer. In the event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share certificates shall
die, resign or be removed prior to issuance of such Share certificates, the Bank
may issue such Share certificates as the Share certificates of the Customer
notwithstanding such death, resignation or removal, and the Customer shall
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promptly deliver to the Bank such approvals, adoptions or ratifications as may
be required by law.
2. Each copy of the Charter of the Customer and copies of all amendments
thereto shall be certified by the Secretary of State (or other appropriate
official) of the state of incorporation, and if such Charter and/or amendments
are required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to the Bank. Each copy of the By-Laws and copies of all amendments
thereto, and copies of resolutions of the Board of Directors of the Customer,
shall be certified by the Secretary or an Assistant Secretary of the Customer
under the corporate seal.
3. Customer hereby represents and warrants:
(a) It is a statutory trust duly organized and validly existing under
the laws of Delaware.
(b) This Agreement has been duly authorized, executed and delivered on
its behalf and constitutes the legal, valid and binding obligation of Customer.
The execution, delivery and performance of this Agreement by Customer do not and
will not violate any applicable law or regulation and do not require the consent
of any governmental or other regulatory body except for such consents and
approvals as have been obtained and are in full force and effect.
ARTICLE VIII.
CONCERNING THE BANK
1. The Bank shall not be liable and shall be fully protected in acting upon
any writing or document reasonably believed by it to be genuine and to have been
given, signed or made by the proper person or persons and shall not be held to
have any notice of any change of authority of any person until receipt of
written notice thereof from an Officer of the Customer. It shall also be
protected in processing Share certificates which it reasonably believes to bear
the proper manual or facsimile signatures of the duly authorized Officer or
Officers of the Customer and the proper countersignature of the Bank.
2. The Bank may establish such additional procedures, rules and regulations
governing the transfer or registration of Share certificates as it may deem
advisable and consistent with such rules and regulations generally adopted by
bank transfer agents.
3. The Bank may keep such records as it deems advisable but not
inconsistent with resolutions adopted by the Board of Directors of the Customer.
The Bank may deliver to the Customer from time to time at its discretion, for
safekeeping or disposition by the Customer in accordance with law, such records,
papers, Share certificates which have been cancelled in transfer or exchange and
other documents accumulated in the
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execution of its duties hereunder as the Bank may deem expedient, other than
those which the Bank is itself required to maintain pursuant to applicable laws
and regulations, and the Customer shall assume all responsibility for any
failure thereafter to produce any record, paper, cancelled Share certificate or
other document so returned, if and when required. The records maintained by the
Bank pursuant to this paragraph which have not been previously delivered to the
Customer pursuant to the foregoing provisions of this paragraph shall be
considered to be the property of the Customer, shall be made available upon
request for inspection by the Officers, employees and auditors of the Customer,
and shall be delivered to the Customer upon request and in any event upon the
date of termination of this Agreement, as specified in Article IX of this
Agreement, in the form and manner kept by the Bank on such date of termination
or such earlier date as may be requested by the Customer.
4. The Bank may employ agents or attorneys-in-fact at the expense of the
Customer to perform its obligations hereunder, and shall not be liable for any
loss or expense arising out of, or in connection with, the actions or omissions
to act of its agents or attorneys-in-fact, so long as the Bank acts in good
faith and without negligence or willful misconduct in connection with the
selection of such agents or attorneys-in-fact.
5. The Bank shall only be liable for any loss or damage arising out of its
own negligence or willful misconduct, provided, however, that the Bank shall not
be liable for any indirect, special, punitive or consequential damages.
6. The Customer shall indemnify and hold harmless the Bank from and against
any and all claims (whether with or without basis in fact or law), costs,
demands, expenses and liabilities, including reasonable attorney's fees, which
the Bank may sustain or incur or which may be asserted against the Bank except
for any liability which the Bank has assumed pursuant to the immediately
preceding section. The Bank shall be deemed not to have acted with negligence
and not to have engaged in willful misconduct by reason of or as a result of any
action taken or omitted to be taken by the Bank without its own negligence or
willful misconduct in reliance upon (i) any provision of this Agreement, (ii)
any instrument, order or Share certificate reasonably believed by it to be
genuine and to be signed, countersigned or executed by any duly authorized
Officer of the Customer, (iii) any Certificate or other written instructions of
an Officer, (iv) any opinion of legal counsel for the Customer or the Bank, or
(v) any law, act, regulation or any interpretation of the same even though such
law, act, or regulation may thereafter have been altered, changed, amended or
repealed. Nothing contained herein shall limit or in any way impair the right of
the Bank to indemnification under any other provision of this Agreement.
7. Specifically, but not by way of limitation, the Customer shall indemnify
and hold harmless the Bank from and against any and all claims (whether with or
without basis in fact or law), costs, demands, expenses and liabilities,
including reasonable attorney's fees, of any and every nature which the Bank may
sustain or incur or which
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may be asserted against the Bank in connection with the genuineness of a Share
certificate, the Bank's due authorization by the Customer to issue Shares and
the form and amount of authorized Shares.
8. The Bank shall not incur any liability hereunder if by reason of any act
of God or war or other circumstances beyond its control, it, or its employees,
officers or directors shall be prevented, delayed or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of this Agreement it is provided shall be done
or performed or by reason of any nonperformance or delay, caused as aforesaid,
in the performance of any act or thing which by the terms of this Agreement it
is provided shall or may be done or performed.
9. At any time the Bank may apply to an Officer of the Customer for written
instructions with respect to any matter arising in connection with the Bank's
duties and obligations under this Agreement, and the Bank shall not be liable
for any action taken or omitted to be taken by the Bank in good faith in
accordance with such written instructions. Such application by the Bank for
instructions from an Officer of the Customer may, at the option of the Bank, set
forth in writing any action proposed to be taken or omitted to be taken by the
Bank with respect to its duties or obligations under this Agreement and the date
on and/or after which such action shall be taken, and the Bank shall not be
liable for any action taken or omitted to be taken in accordance with a proposal
included in any such application on or after the date specified therein unless,
prior to taking or omitting to take any such action, the Bank has received
written instructions in response to such application specifying the action to be
taken or omitted. The Bank may consult counsel to the Customer or its own
counsel, at the expense of the Customer, and shall be fully protected with
respect to anything done or omitted by it in good faith in accordance with the
opinion of such counsel.
10. When mail is used for delivery of non-negotiable Share certificates,
the value of which does not exceed the limits of the Bank's Blanket Bond, the
Bank shall send such non-negotiable Share certificates by first class mail, and
such deliveries will be covered while in transit by the Bank's Blanket Bond.
Non-negotiable Share certificates, the value of which exceed the limits of the
Bank's Blanket Bond, will be sent by insured registered mail. Negotiable Share
certificates will be sent by insured registered mail. The Bank shall advise the
Customer of any Share certificates returned as undeliverable after being mailed
as herein provided for.
11. The Bank may issue new Share certificates in place of Share
certificates represented to have been lost, stolen or destroyed upon receiving
instructions in writing from an Officer and indemnity satisfactory to the Bank.
Such instructions from the Customer shall be in such form as approved by the
Board of Directors of the Customer in accordance with applicable law or the
By-Laws of the Customer governing such matters. If the Bank receives written
notification from the owner of the lost, stolen or destroyed Share certificate
within a reasonable time after he has notice of it, the Bank shall
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promptly notify the Customer and shall act pursuant to written instructions
signed by an Officer. If the Customer receives such written notification from
the owner of the lost, stolen or destroyed Share certificate within a reasonable
time after he has notice of it, the Customer shall promptly notify the Bank and
the Bank shall act pursuant to written instructions signed by an Officer. The
Bank shall not be liable for any act done or omitted by it pursuant to the
written instructions described herein. The Bank may issue new Share certificates
in exchange for, and upon surrender of, mutilated Share certificates.
12. The Bank will issue and mail subscription warrants for Shares, Shares
representing stock dividends, exchanges or splits, or act as conversion agent
upon receiving written instructions from an Officer and such other documents as
the Bank may deem necessary.
13. The Bank will supply shareholder lists to the Customer from time to
time upon receiving a request therefor from an Officer of the Customer.
14. In case of any requests or demands for the inspection of the
shareholder records of the Customer, the Bank will notify the Customer and
endeavor to secure instructions from an Officer as to such inspection. The Bank
reserves the right, however, to exhibit the shareholder records to any person
whenever it is advised by its counsel that there is a reasonable likelihood that
the Bank will be held liable for the failure to exhibit the shareholder records
to such person.
15. At the request of an Officer, the Bank will address and mail such
appropriate notices to shareholders as the Customer may direct.
16. Notwithstanding any provisions of this Agreement to the contrary, the
Bank shall be under no duty or obligation to inquire into, and shall not be
liable for:
(a) The legality of the issue, sale or transfer of any Shares, the
sufficiency of the amount to be received in connection therewith, or the
authority of the Customer to request such issuance, sale or transfer;
(b) The legality of the purchase of any Shares, the sufficiency of the
amount to be paid in connection therewith, or the authority of the Customer to
request such purchase;
(c) The legality of the declaration of any dividend by the Customer,
or the legality of the issue of any Shares in payment of any stock dividend; or
(d) The legality of any recapitalization or readjustment of the
Shares.
17. The Bank shall be entitled to receive and the Customer hereby agrees to
pay to the Bank for its performance hereunder (i) out-of-pocket expenses
(including legal
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expenses and attorney's fees) incurred in connection with this Agreement and its
performance hereunder, and (ii) the compensation for services as set forth in
Schedule I.
18. The Bank shall not be responsible for any money, whether or not
represented by any check, draft or other instrument for the payment of money,
received by it on behalf of the Customer, until the Bank actually receives and
collects such funds.
19. In no event shall the Bank be required to accept or act upon any oral
instructions; regardless of the circumstances.
20. The Bank shall have no duties or responsibilities whatsoever except
such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied against the Bank in
connection with this Agreement.
ARTICLE IX.
TERMINATION
Either of the parties hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall be not less than 30 days after the date of receipt of such notice. In the
event such notice is given by the Customer, it shall be accompanied by a copy of
a resolution of the Board of Directors of the Customer, certified by its
Secretary, electing to terminate this Agreement and designating a successor
transfer agent or transfer agents. In the event such notice is given by the
Bank, the Customer shall, on or before the termination date, deliver to the Bank
a copy of a resolution of its Board of Directors certified by its Secretary
designating a successor transfer agent or transfer agents. In the absence of
such designation by the Customer, the Bank may designate a successor transfer
agent. If the Customer fails to designate a successor transfer agent and if the
Bank is unable to find a successor transfer agent, the Customer shall, upon the
date specified in the notice of termination of this Agreement and delivery of
the records maintained hereunder, be deemed to be its own transfer agent and the
Bank shall thereafter be relieved of all duties and responsibilities hereunder.
Upon termination hereof, the Customer shall pay to the Bank such compensation as
may be due to the Bank as of the date of such termination, and shall reimburse
the Bank for any disbursements and expenses made or incurred by the Bank and
payable or reimbursable hereunder.
ARTICLE X.
MISCELLANEOUS
1. The indemnities contained herein shall be continuing obligations of the
Customer, its successors and assigns, notwithstanding the termination of this
Agreement.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Customer shall be sufficiently given if
addressed to the Customer and mailed or delivered to it at 1065 Avenue of the
Xxxxxxxx, 00xx Xxxxx, Xxx
00
Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxx, or at such other place as the
Customer may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Bank shall be sufficiently given if addressed
to the Bank and mailed or delivered to it at its office at 000 Xxxxxxx Xxxxxx
(00X), Xxx Xxxx, Xxx Xxxx 00000 or at such other place as the Bank may from time
to time designate in writing.
4. This Agreement may not be amended or modified in any manner except by a
written agreement duly authorized and executed by both parties. Any duly
authorized Officer may amend any Certificate naming Officers authorized to
execute and deliver Certificates, instructions, notices or other instruments,
and the Secretary or any Assistant Secretary may amend any Certificate listing
the shares of capital stock of the Customer for which the Bank performs Services
hereunder.
5. This Agreement shall extend to and shall be binding upon the parties
hereto and their respective successors and assigns; provided, however, that this
Agreement shall not be assignable by either party without the prior written
consent of the other party, and provided, further, that any reorganization,
merger, consolidation, or sale of assets, by the Bank shall not be deemed to
constitute an assignment of this Agreement.
6. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. The parties agree that, all actions and
proceedings arising out of this Agreement or any of the transactions
contemplated hereby, shall be brought in the United States District Court for
the Southern District of New York or in a New York State Court in the County of
New York and that, in connection with any such action or proceeding, submit to
the jurisdiction of, and venue in, such court. Each of the parties hereto also
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of this Agreement or the transactions contemplated
hereby.
7. This Agreement may be executed in any number of counterparts each of
which shall be deemed to be an original; but such counterparts, together, shall
constitute only one instrument.
8. The provisions of this Agreement are intended to benefit only the Bank
and the Customer, and no rights shall be granted to any other person by virtue
of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and year
first above written.
Attest:
By: /s/ Xxxx Xxxxxx
--------------------- ------------------------------------
Attest: THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxx
--------------------- ------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------
Title: Managing Director
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SCHEDULE I
1. Distribution Payments via check or ACH
2. Provide customer distribution statements
3. Reinvestement Service through DTC's DRP program
4. Issue shares as part of underwriting process
5. Issue Certificates of ownership
6. Track physical and book entry positions
7. Perform OFAC reviews
8. Observe state escheatment laws regarding abandoned property
9. Observe all privacy rulings
10. Distribute tax information and provide 1099s to registered holders
11. Provide proxy services for shareholder voting
12. Provide all transfer agency services within established SEC guidelines
