TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 23rd day of September, 1996, by and between USF&G
Pacholder Fund, Inc., a Maryland corporation (the "Fund"), and Fifth Third Bank,
an Ohio banking corporation (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its registrar, transfer
agent, dividend disbursing agent, and agent in connection with certain other
activities; and
WHEREAS, the Bank is engaged in the business of providing services for
issuers of securities and desires to accept such appointment;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Terms of Appointment; Duties of the Bank.
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1.01 Subject to the terms and conditions set forth in this Agreement, the
Fund hereby employs and appoints the Bank to act as, and the Bank agrees to act
as, the registrar, transfer agent, dividend disbursing agent and agent in
connection with the dividend reinvestment plan for the authorized and issued
shares of common stock, par value $.01 per share ("Shares"), of the Fund.
1.02 The Bank agrees that it will perform the services listed in the
attached service responsibility schedule in accordance with such procedures as
may be established from time to time by written agreement between the Fund and
the Bank. In addition to and neither in lieu nor in contravention of the
services referred to in the preceding sentence, the Bank shall perform all the
customary services of a registrar, transfer agent, dividend disbursing agent and
dividend reinvestment plan agent, including but not limited to maintaining all
Shareholder accounts, preparing shareholder meeting lists, mailing proxies,
receiving and tabulating proxies, mailing shareholder reports and prospectuses
to current Shareholders, 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 of Shares and
other confirmable transactions in Shareholder accounts, and providing
Shareholder account information.
2. Fees and Expenses.
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2.01 For the services to be performed by the Bank pursuant to this
Agreement, the Fund agrees to pay the Bank the fees provided in the attached fee
schedule.
2.02 In addition to the fee paid under Section 2.01 above, the Fund agrees
to reimburse the Bank promptly for reasonable out-of-pocket expenses or advances
incurred by the Bank in connection with its performance under this Agreement for
the items set out in the fee schedule
attached hereto. In addition, any other special out-of-pocket expenses incurred
by the Bank at the request or with the consent of the Fund will be promptly
reimbursed by the Fund. Postage for mailing of dividends, proxies, shareholder
reports and other mailings to all Shareholder accounts shall be advanced to the
Bank at least three business days prior to the mailing date of such materials.
3. Representations and Warranties.
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3.01 The Bank represents and warrants to the Fund that:
(i) It is a banking corporation duly organized and existing and in good
standing under the laws of the State of Ohio.
(ii) It is duly qualified to carry on its business in the State of Ohio.
(iii) It is empowered under applicable laws and by its charter and bylaws
to enter into and perform this Agreement.
(iv) All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
(v) It has and will continue to have during the term of this Agreement
access to the necessary facilities, equipment and personnel to
perform its duties and obligations hereunder.
3.02 The Fund represents and warrants to the Bank that:
(i) It is a corporation duly organized and existing and in good standing
under the laws of the State of Maryland.
(ii) It is empowered under applicable laws and by its charter and bylaws
to enter into and perform this Agreement.
(iii) All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
(iv) It is a closed-end management investment company registered under
the Investment Company Act of 1940.
(v) Appropriate federal and state securities law filings have been made
and will continue to be made with respect to all Shares being
offered for sale.
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4. Indemnification.
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4.01 The Bank shall not be responsible for, and the Fund shall indemnify
and hold the Bank harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability arising out of or
attributable to:
(i) All actions of the Bank or its agents required to be taken by the
Bank pursuant to this Agreement, provided that the Bank has acted in
good faith and without negligence or willful misconduct.
(ii) The reliance by the Bank on, or use by the Bank of, information,
records and documents or services which have been prepared or
maintained by or on behalf of the Fund or any of the Fund's other
service providers, or have been furnished to the Bank by or on
behalf of the Fund or any of the Fund's other service providers.
(iii) The reliance by the Bank on, or the carrying out by the Bank of, any
instructions or requests of the Fund.
(iv) The offer or sale of Shares in violation of any requirement under
the federal securities laws or regulations or the securities laws or
regulations of any state, or in violation of any stop order or other
determination or ruling by any federal agency or any state with
respect to the offer or sale of Shares in such state, unless such
violation results from any failure by the Bank to comply with the
written instructions of the Fund that no offers or sales of Shares
be made in general or to the residents of a particular state.
(v) The Fund's refusal or failure to comply with the terms of this
Agreement, or the Fund's bad faith, negligence or willful
misconduct, or the breach of any representation or warranty of the
Fund hereunder.
4.02 The Bank shall indemnify and hold the Fund harmless from and against
any and all losses, damages, costs, charges, counsel fees, payments, expenses
and liability arising out of or attributable to the Bank's refusal or failure to
comply with the terms of this Agreement, or the Bank's bad faith, negligence or
willful misconduct, or the breach of any representation or warranty of the Bank
hereunder.
4.03 At any time the Bank may apply to an authorized officer of the Fund
for instructions, and may consult with the Fund's legal counsel, at the expense
of the Fund, with respect to any matter arising in connection with the services
to be performed by the Bank under this Agreement, and the Bank shall not be
liable and shall be indemnified by the Fund for any action taken or omitted in
good faith by it in reliance upon such instructions or upon the opinion of such
counsel. The Bank shall be protected and indemnified in acting upon any paper
or document reasonably believed by the Bank to be genuine and to have been
signed by the proper person or persons, and shall not be held to have notice of
any change of authority of any person,
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until receipt of written notice thereof from the Fund. The Bank shall also be
protected and indemnified in recognizing stock certificates which the Bank
reasonably believes to bear the proper manual or facsimile signatures of the
officers of the Fund, and the proper countersignature of any former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
4.04 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage, or other causes reasonably beyond its control,
such party shall not be liable for damages to the other for any damages
resulting from such failure to perform or otherwise from such causes.
4.05 In no event and under no circumstances shall either party to this
Agreement be liable to the other party for consequential damages under any
provision of this Agreement or for any act or failure to act hereunder.
4.06 In order that the indemnification provisions contained in this
Article 4 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent.
5. Covenants of the Fund and the Bank.
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5.01 The Fund shall promptly furnish to the Bank the following:
(i) A certified copy of the resolution of the Board of Directors of the
Fund authorizing the appointment of the Bank and the execution and
delivery of this Agreement.
(ii) A certified copy of the Articles of Incorporation and By-Laws of the
Fund and all amendments thereto.
5.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Fund 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.
5.03 The Bank shall keep records relating to the services to be performed
hereunder, in the form and manner as it may deem advisable; provided, however,
that all accounts, books and other records of the Fund prepared or maintained by
the Bank hereunder shall be maintained and kept current in compliance with
Section 31(a) of the Investment Company Act of 1940 and the rules thereunder, as
the same may be amended from time to time. To the extent required by such
section and rules, the Bank agrees that all Fund records prepared or maintained
by the Bank
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hereunder are the property of the Fund and shall be preserved and made available
in accordance with such section and rules, and shall be surrendered promptly to
the Fund on its request.
5.04 The Bank and the Fund agree that all books, records, information and
data pertaining to the business of the other party which are exchanged or
received pursuant to the negotiation or the carrying out of this Agreement shall
remain confidential, and shall not be voluntarily disclosed to any other person,
except as may be required by law.
5.05 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund 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 it may be held
liable for the failure to exhibit the Shareholder records to such person.
6. Effective Period; Termination.
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6.01 This Agreement shall become effective as of its execution and shall
continue in full force and effect until terminated as hereinafter provided.
6.02 This Agreement may be terminated by either party upon sixty days
written notice to the other. Any unpaid fees or reimbursable expenses payable
to the Bank shall be due on any such termination date. The Bank agrees to use
its best efforts to cooperate with the Fund and the successor transfer agent in
accomplishing an orderly transition.
7. Miscellaneous.
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7.01 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the written consent of the other party;
provided, however, that no consent shall be required for any merger of the Fund
with, or sale of all or substantially all the assets of the Fund to, another
investment company.
7.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
7.03 This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio without giving effect to the choice of law
provisions thereof and, to the extent applicable, the federal law of the United
States. To the extent applicable Ohio law or any of the provisions of this
Agreement conflict with applicable provisions of the Investment Company Act of
1940 or other applicable federal laws and regulations, the latter shall control.
7.04 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, and may not be modified except by a written
instrument executed by both parties.
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7.05 If any provision of this Agreement shall be invalid, illegal or
unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions shall not be affected or impaired
thereby.
7.06 The headings of sections in this Agreement are for convenience of
reference only and shall not affect the meaning or construction of any provision
of this Agreement.
7.07 This Agreement may be executed in one or more counterparts, and by
the parties hereto on separate counterparts, each of which shall be deemed an
original but all of which together shall constitute but one and the same
instrument.
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.
ATTEST: USF&G PACHOLDER FUND, INC.
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary Senior Vice President
ATTEST: FIFTH THIRD BANK
By:
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Name:
Assistant Secretary Title:
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SERVICE RESPONSIBILITY SCHEDULE
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A. Transfer Agent Services
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i. Maintaining Shareholder account records, including name, address,
taxpayer identification number, Shares held and certificate
numbers.
ii. Processing of all transfers of certificates including the review
of those transfer items requiring supporting documents commonly
referred to as "legal transfers".
iii. Furnishing a list of Shareholders as of each dividend record
date if requested by the Fund.
iv. Furnishing a journal sheet reflecting the daily transfer activity
if requested by the Fund.
v. Maintaining a record of all certificates against which a stop
transfer notice has been placed.
B. Registrar Services
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i. Maintaining a record of the number of authorized and outstanding
Shares.
ii. Registering upon original issue or transfer all certificates for
securities.
C. Dividend Disbursing Agent Services
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i. Preparing dividend checks for each Shareholder of record as of
the record date established for such dividend or dividend credit
for those Shareholders who participate in the dividend
reinvestment plan.
ii. Mailing dividend checks by first-class regular mail.
iii. Maintaining a checking account against which checks will be paid
with funds to be supplied by the Fund.
iv. Preparing applicable Internal Revenue Service forms, mailing
copies of such forms to the Shareholders annually and furnishing
a computer tape summary of such forms to the U.S. Treasury
Department.
v. Mailing quarterly financial reports of the Fund.
vi. Obtaining U.S. Treasury forms or other certificates with respect
to Taxpayer Identification Numbers as may be required under U.S.
Treasury regulations.
vii. Withholding of federal income tax on such dividends and
processing the payment of that tax over to the U.S. Treasury as
may from time to time be required by the U.S. Treasury
regulations.
viii. Filing tax information returns on Shares held and dividends
paid with the various states as requested by the Fund.
D. Dividend Reinvestment Services
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i. Collecting the dividends from the Shareholders.
ii. Purchasing of Shares at market price on a quarterly basis.
iii. Crediting full and fractional Shares to the participant
accounts.
iv. Updating and balancing participant records as transactions
occur.
v. Generating quarterly reports for the Fund.
vi. Generating quarterly statements for the participants.
vii. Issuing, as applicable, all Internal Revenue Service forms.
E. Proxy Agent Services
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Mailing broker-search cards prior to the voting record date of annual
and special meetings of shareholders, preparing one set of proxies for the
general annual or any special meeting of shareholders for each Shareholder
of record on the record date established for such meeting. If requested by
the Fund mailing those proxies along with the proxy statement and annual
report; tabulating those proxies voted and furnishing the Fund with interim
reports and a summary of such vote; and providing the Fund with a
Shareholder list as of record date of the proxy, in alphabetical sequence
for the annual meeting of shareholders.
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FEE SCHEDULE
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Annual Account Maintenance/Transaction Fee $4,000
Conversion/Acceptance Fee WAIVED*
Fee includes: all routine maintenance, ordinary 1099 quarterly dividend
disbursements (including direct deposit), related 1099 reporting, proxy mailing
and tabulation, toll free shareholder inquiry service, transactions for
registered shareholders with limitations as noted below:
* Maintenance of 1,000 open accounts excess
@ $3.75
* Preparation of ten full and four partial lists, reports, or mailing
labels as required by the Fund
* Administration and processing of four dividend reinvestment
purchases annually 300 participants each, excess @ $1.50
* Issuance of up to 200 certificates or transfer credits annually
excess @ $1.30 per transaction
Special projects such as stock dividends, stock splits, non-routine (other
than 1099 DIV) tax reporting, merger activity, etc. are not considered routine
transactions and will be billed on an appraisal basis.
Out-of-pocket expenses include but are not limited to: postage, insurance,
stationary and telephone line charges.
* Fee waived provided that automated data is provided for conversion. The Bank
agrees to a one time credit of $1,000 towards the cost of certificate re-
silvering, transfer agent change card, etc.
