Exhibit 99.2(k)(1)
TRANSFER AGENCY AGREEMENT
TRANSFER AND NOTICE AGENCY AGREEMENT
AGREEMENT, dated as of April 5, 1988 between Zenith Income Fund Inc. a
corporation organized under the laws of Maryland and having its principal place
of business at Xxx Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, and BOSTON SAFE
DEPOSIT AND TRUST COMPANY (the "Agent"), a Massachusetts trust company with
principal offices at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H:
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That for and in consideration of the mutual promises hereinafter set forth,
the Fund and the Agent agree as follows:
1. Definitions. Whenever used in this Agreement, the following words and
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phrases, unless the context otherwise requires, shall have the following
meanings:
(a) "Articles of Incorporation" shall mean the Articles of Incorporation
of the Fund as the same may be amended from time to time;
(b) "Authorized Person" shall be deemed to include any person, whether
or not such person is an officer or employee of the Fund, duly authorized to
give Oral Instructions or Written Instructions on behalf of the Fund as
indicated in a certificate furnished to the Agent pursuant to Section 4(c)
hereof as may be received by the Agent from time to time;
(c) "Custodian" refers to the custodian and any sub-custodian of all
securities and other property which the Fund may from time to time deposit, or
cause to be deposited or held under the name or account of such custodian
pursuant to the Custodian Agreement;
(d) "Indenture" shall mean the indenture dated as of April __, 1988
between the Fund and Manufacturers Hanover Trust Company, as trustee;
(e) "Oral Instructions" shall mean instructions, other than written
instructions, actually received by the Agent from a person reasonably believed
by the Agent to be an Authorized Person;
(f) "Preferred Shares" refers to be the 9.67% Cumulative Preferred
Shares, $.01 par value per share, of the Fund;
(g) "Shares" refers collectively to the Senior Money Market Notes due
1995, the Preferred Shares and the Common Stock $.01 par value per share of the
Fund as may be issued from time to time; and
(h) "Written Instructions" shall mean a written communication signed by
a person reasonably believed by the Agent to be an Authorized Person and
actually received by the Agent.
2. Appointment of the Agent. The Fund hereby appoints and constitutes the
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Agent as transfer agent for the Shares of the Fund and as shareholder servicing
agent for the Fund. In addition, the Fund hereby appoints and constitutes the
Agent as notice agent with respect to the Preferred Shares of the Fund. The
Agent accepts such appointments and agrees to perform the duties hereinafter set
forth.
3. Compensation
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(a) The Fund will compensate or cause the Agent to be compensated for
the performance of its obligations hereunder in accordance with the fees set
forth in the written schedule of fees annexed hereto as Schedule A and
incorporated herein. Schedule A does not include out-of-pocket disbursements of
the Agent for which the Agent shall be entitled to xxxx the Fund separately. The
Agent will xxxx the Fund as soon as practicable after the end of each calendar
month, and said xxxxxxxx will be detailed in accordance with Schedule A. The
Fund will promptly pay to the Agent the amount of such billing.
Out-of-pocket disbursements shall include, but shall not be limited to,
the items specified in the written schedule of out-of-pocket charges annexed
hereto as Schedule B and incorporated herein. Schedule B may be modified by the
Agent upon not less than 30 days' prior written notice to the Fund. Unspecified
out-of-pocket expenses shall be limited to those out-of-pocket expenses
reasonably incurred by the Agent in the performance of its obligations
hereunder. Reimbursement by the Fund for expenses incurred by the Agent in any
month shall be made as soon as practicable after the receipt of an itemized xxxx
from the Agent.
(b) Any compensation agreed to hereunder may be adjusted from time to
time by attaching to Schedule A of this Agreement a revised Fee Schedule.
4. Documents. In connection with the appointment of the Agent, the Fund
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shall, on or before the date this Agreement goes into effect, but in any case,
within a reasonable period of time for the Agent to prepare to perform its
duties hereunder, deliver or cause to be delivered to the Agent the following
documents:
(a) If applicable, specimens of the certificates for the Shares of the
Fund;
(b) All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered by the Fund;
(c) A signature card bearing the signatures of any officer of the Fund
or other Authorized Person who will sign Written Instructions;
(d) All documents and papers necessary under the laws of Maryland, under
the Fund's Articles of Incorporation as may be amended from time to time, and as
may be required for the due performance of the Agent's duties under this
Agreement or for the due performance of additional duties as may from time to
time be agreed upon among the Fund and the Agent.
5. Distributions Payable in Shares. In the event that the Board of
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Directors of the Fund shall declare a distribution payable in Shares, the Fund
shall deliver or cause to be delivered
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to the Agent written notice of such declaration signed on behalf of the Fund by
an officer thereof, upon which the Agent shall be entitled to rely for all
purposes, certifying (i) the identity of the Shares involved, (ii) the number of
Shares involved, and (iii) that all appropriate action has been taken.
6. Duties of the Agent. The Agent shall be responsible for administering
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and/or performing transfer agent functions; for acting as service agent in
connection with dividend and distribution functions; and for performing
shareholder account and administrative agent functions in connection with the
issuance, transfer and redemption or repurchase (including coordination with the
Custodian) of the Shares. The operating standards and procedures to be followed
shall be determined from time to time by agreement among the Fund and the Agent.
In addition, the Agent shall receive all notices issued by the Fund respect to
the Preferred Shares in accordance with and pursuant to the Articles of
Incorporation and the Indenture and shall perform such other specific duties as
are set forth in the Articles of Incorporation including the giving of notice of
a special meeting and notice of redemption in the circumstances and otherwise in
accordance with all relevant provisions of the Articles of Incorporation.
7. Record Keeping and other Information. The Agent shall create and
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maintain all necessary records in accordance with all applicable laws and rules
and regulations.
8. Other Duties. In addition, the Agent shall perform such other duties
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and functions, and shall be paid such amounts therefor, as may from time to time
be agreed upon in writing among the Fund and the Agent. The compensation for
such other duties and functions shall be reflected in a written amendment to
Schedule A.
9. Reliance by Agent; Instructions
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(a) The Agent will be protected in acting upon Written or Oral
Instructions believed to have been executed or orally communicated by an
Authorized Person and will not be held to have any notice of any change of
authority of any person until receipt of a Written Instruction thereof from an
officer of the Fund. The Agent will also be protected in processing Share
certificates which it reasonably believes to bear the proper manual or facsimile
signatures of the officers of the Fund and the proper countersignature of the
Agent.
(b) At any time the Agent may apply to any Authorized Person of the Fund
for Written Instructions and may seek advice at the Fund's expense from legal
counsel for the Fund or its own legal counsel, with respect to any matter
arising in connection with this Agreement, and it shall not be liable for any
action taken or not taken or suffered by it in good faith in accordance with
such Written Instructions or in accordance with the opinion of counsel for the
Fund or for the Agent. Written Instructions requested by the Agent will be
provided by the Fund within a reasonable period of time. In addition, the Agent,
its officers, agents or employees, shall accept Oral Instructions or Written
Instructions given to them by any person representing or acting on behalf of the
Fund only if said representative is known by the Agent, or its officers, agents
or employees, to be an Authorized Person. The Agent shall have no duty or
obligation to inquire into, nor shall the Agent be responsible for, the legality
of any act done by it upon the request or direction of a person reasonably
believed by the Agent to be an Authorized Person.
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10. Acts of God, etc. The Agent will not be liable or responsible for
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delays or errors by reason of circumstances beyond its control, including acts
of civil or military authority, national emergencies, labor difficulties, fire,
mechanical breakdown beyond its control, flood or catastrophe, acts of God,
insurrection, war, riots or failure beyond its control of transportation,
communication or power supply.
11. Duty of Care and Indemnification. The Fund will indemnify the Agent
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against and hold it harmless from any and all losses, claims, damages,
liabilities or expenses (including reasonable counsel fees and expenses)
resulting from any claim, demand, action or suit not resulting from the bad
faith or negligence of the Agent, and arising out of, or in connection with, its
duties hereunder. In addition, the Fund will indemnify the Agent against and
hold it harmless from any and all losses, claims, damages, liabilities or
expenses (including reasonable counsel fees and expenses) resulting from any
claim, demand, action or suit as a result of: (i) any action taken in accordance
with Written or Oral Instructions, or any other instructions, or share
certificates reasonably believed by the Agent to be genuine and to be signed,
countersigned or executed, or orally communicated by an Authorized Person; (ii)
any action taken in accordance with written or oral advice reasonably believed
by the Agent to have been given by counsel for the Fund or its own counsel; or
(iii) any action taken as a result of any error or omission in any record
(including but not limited to magnetic tapes, computer printouts, hard copies
and microfilm copies) delivered, or caused to be delivered by the Fund to the
Agent in connection with this Agreement.
In any case in which the Fund may be asked to indemnify or hold the
Agent harmless, the Fund shall be advised of all pertinent facts concerning the
situation in question and the Agent will use reasonable care to identify and
notify the Fund promptly concerning any situation which presents or appears
likely to present a claim for indemnification against the Fund. The Fund shall
have the option to defend the Agent against any claim which may be the subject
of this indemnification, and, in the event that the Fund so elects, such defense
shall be conducted by counsel chosen by the Fund and satisfactory to the Agent,
and thereupon the Fund shall take over complete defense of the claim and the
Agent shall sustain no further legal or other expenses in such situation for
which it seeks indemnification under this Section 11. The Agent will not confess
any claim or make any compromise in any case in which the Fund will be asked to
provide indemnification, except with the Fund's prior written consent. The
obligations of the parties hereto under this Section shall survive the
termination of this Agreement.
12. Term and Termination. (a) This Agreement shall be effective as of
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the date first written above and shall continue until April 5, 1989, and
thereafter shall continue automatically for successive annual periods ending on
April 5 of each year, provided such continuance is specifically approved at
least annually by (i) the Fund's Board of Directors or (ii) a vote of a
"majority" (as defined in the 0000 Xxx) of the Fund's outstanding voting
securities, provided that in either event the continuance is also approved by a
majority of the Board of Directors who are not "interested persons" (as defined
in the 0000 Xxx) of any party to this Agreement, by vote cast in person at a
meeting called for the purpose of voting such approval;
(b) Either party 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 60 days after the date of receipt of such notice. In the
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event such notice is given by the Fund, it shall be accompanied by a resolution
of the Board of Directors of the Fund, certified by the Secretary of the Fund,
designating a successor transfer agent or transfer agents or a successor notice
agent or notice agents. Upon such termination and at the expense of the Fund,
the Agent will deliver to such successor a certified list of shareholders of the
Fund (with names and addresses), an historical record of the account of each
shareholder and the status thereof, and all other relevant books, records,
correspondence, and other data established or maintained by the Agent under this
Agreement in the form reasonably acceptable to the Agent, and will cooperate in
the transfer of such duties and responsibilities, including provisions for
assistance from the Agent's personnel in the establishment of books, records and
other data by such successor or successors.
13. Amendment. This Agreement may not be amended or modified in any
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manner except by a written agreement executed by both parties.
14. Subcontracting. The Fund agrees that the Agent may, in its
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discretion, subcontract for certain of the services described under this
Agreement or the Schedules hereto; provided that the appointment of any such
Agent shall not relieve the Agent of its responsibilities hereunder.
15. Miscellaneous
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(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or the Agent, shall be sufficiently
given if addressed to that party and received by it at its office set forth
below or at such other place as it may from time to time designate in writing.
To the Fund:
Zenith Income Fund Inc.
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
To the Agent:
Boston Safe Deposit and Trust Company
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
(b) 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 without the written consent of the other
party.
(c) This Agreement shall be construed in accordance with the laws of the
State of New York.
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(d) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original; but such counterparts shall,
together constitute only one instrument.
(e) The captions of this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof or
otherwise affect their construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers thereunder duly authorized as of
the day and year first above written.
ZENITH INCOME FUND INC.
By: /s/ Xxxxx X. XxXxxxxx
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BOSTON SAFE DEPOSIT AND TRUST COMPANY
By: /s/ Boston Safe Deposit and Trust Company
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Transfer Agent Fee
Schedule A
The Fund shall pay the Transfer Agent an annualized fee of $8.00 per
shareholder account. Such fee shall be prorated on billed by the Transfer Agent
monthly on a prorated basis of 1/12 of the annualized fee.
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Schedule B
OUT-OF-POCKET EXPENSES
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The Fund shall reimburse the Agent monthly for the following out-of-pocket
expenses:
. postage and mailing
. forms
. outgoing wire charges
. telephone
. Federal Reserve charges for check clearance
. if applicable, magnetic tape and freight
. retention of records
. microfilm/microfiche
. stationery
. insurance
. if applicable, terminals, transmitting lines and any expenses incurred in
connection with such terminals and lines
. all other miscellaneous expenses reasonably incurred by the Agent
The Fund agrees that postage and mailing expenses will be paid on the day
of or prior to mailing as agreed with the Agent. In addition, the Fund will
promptly reimburse the Agent for any other expenses incurred by the Agent as to
which the Fund and the Agent mutually agree that such expenses are not otherwise
properly borne by the Agent as part of its duties and obligations under the
Agreement.
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Schedule C
DUTIES OF THE AGENT (See Exhibit 1 for Summary of Services)
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1. Shareholder Information. The Agent or its agent shall maintain a
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record of the number of Shares held by each holder of record which shall include
their addresses and which shall indicate whether such Shares are held in
certificated or uncertificated form.
2. Shareholder Services. The Agent or its agent will investigate all
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inquiries from shareholders of the Fund relating to Shareholder accounts and
will answer all correspondence from Shareholders and others relating to its
duties hereunder and such other correspondence as may from time to time be
mutually agreed upon between the Agent and the Fund.
3. Share Certificates
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(a) At the expense of the Fund, the Agent or its agent shall maintain
an adequate supply of blank share certificates to meet the Agent or its agent's
requirements therefor. Such Share certificates shall be properly signed by
facsimile. The Fund agrees that, notwithstanding the death, resignation, or
removal of any officer of the Fund whose signature appears on such certificates,
the Agent or its agent may continue to countersign certificates which bear such
signatures until otherwise directed by Written Instructions.
(b) The Agent or its agent shall issue replacement Share certificates
in lieu of certificates which have been lost, stolen or destroyed, upon receipt
by the Agent or its agent of properly executed affidavits and lost certificate
bonds, in form satisfactory to the Agent or its agent, with the Fund and the
Agent or its agent as obligees under the bond.
(c) The Agent or its agent shall also maintain a record of each
certificate issued, the number of Shares represented thereby and the holder of
record. With respect to Shares held in open accounts or uncertificated form,
i.e., no certificate being issued with respect thereto, the Agent or its agent
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shall maintain comparable records of the record holders thereof, including their
names and addresses. The Agent or its agent shall further maintain a stop
transfer record on lost and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials. The Agent or
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its agent will address and mail to Shareholders of the Fund, all reports to
Shareholders, dividend and distribution notices and proxy material for any of
the Fund's meetings of Shareholders. In connection with meetings of
Shareholders, the Agent or its agent will prepare Shareholder lists, mail and
certify as to the mailing of proxy materials, process and tabulate returned
proxy cards, report on proxies voted prior to meetings, act as inspector of
election at meetings and certify Shares voted at meetings.
5. Sales of Shares
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(a) Processing of Investment Checks or Other Investments. Upon
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receipt of any check or other instrument drawn or endorsed to it as agent for,
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or identified as being for the account of, the Fund or drawn or endorsed to the
Distributor of the Fund's Shares for the purchase of Shares, the Agent or its
agent shall stamp the check with the date of receipt, shall forthwith process
the same for collection and shall record the number of Shares sold, the trade
date and price per Share, and the amount of money to be delivered to the
Custodian of the Fund for the sale of such Shares.
(b) Issuance of Shares. Upon receipt of notification that the
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Custodian has received the amount of money specified in the immediately
preceding paragraph, the Agent or its agent shall issue to and hold in the
account of the purchaser/shareholder, or if no account is specified therein, in
a new account established in the name of the purchaser, the number of Shares
such purchaser is entitled to receive.
(c) Suspension of Sale of Shares. The Agent or its agent shall not be
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required to issue any Shares of the Fund where it has received a Written
Instruction from the Fund or official notice from the appropriate authority that
the sale of the Shares of the Fund has been suspended or discontinued, and the
Agent or its agent shall be entitled to rely upon such Written Instructions or
such official notice.
(d) Returned Checks. In the event that any check or other order for
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the payment of money is returned unpaid for any reason, the Agent or its agent
will: (i) give prompt notice of such return to the Fund or its designee; (ii)
place a stop transfer order against all Shares issued as a result of such check
or order; and (iii) take such actions as the Agent may from time to time deem
appropriate.
6. Transfer and Repurchases
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(a) Requirements for Transfer or Repurchase of Shares. The Agent or
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its agent shall process all requests to transfer or repurchase Shares in
accordance with the transfer or repurchase procedures got forth in the Fund's
Prospectus.
The Agent or its agent will transfer or repurchase Shares upon receipt
of Written Instructions and Share certificates, if any, properly endorsed for
transfer or repurchase, accompanied by such documents as the Agent or its agent
reasonably may deem necessary.
The Agent or its agent reserves the right to refuse to transfer or
repurchase Shares until it is satisfied that the endorsement on the instructions
is valid and genuine. The Agent or its agent also reserves the right to refuse
to transfer or repurchase Shares until it is satisfied that the requested
transfer or repurchase is legally authorized, and it shall incur no liability
for the refusal, in good faith, to make transfers or repurchases which the Agent
or its agent, in its good judgment, deems improper or unauthorized, or until it
is reasonably satisfied that there is no basis to any claims adverse to such
transfer or repurchase.
(b) Notice to Custodian and Fund. When Shares are repurchased, the
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Agent or its agent shall, upon receipt of the instructions and documents in
proper form, deliver to the Custodian and the Fund or its designee a
notification setting forth the number of Shares to be repurchased. Such
repurchased Shares shall be reflected on appropriate accounts maintained by the
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Agent or its agent reflecting outstanding Shares of the Fund and Shares
attributed to individual accounts.
(c) Payment of Repurchase Proceeds. The Agent or its agent shall,
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upon receipt of the moneys paid to it by the Custodian for the repurchase of
Shares, pay such moneys as are received from the Custodian, all in accordance
with the procedures described in the written instruction received by the Agent
or its agent from the Fund.
The Agent or its agent shall not process or effect any repurchase with
respect to Shares of the Fund after receipt by the Agent or its agent of
notification of the suspension of the determination of the net asset value of
the Fund.
7. Dividends
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(a) Notice to Agent and Custodian. Upon the declaration of each
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dividend and each capital gains distribution by the Board of Directors of the
Fund with respect to Shares of the Fund, the Agent shall furnish or cause to be
furnished to the Agent or its agent a copy of a resolution of the Fund's Board
of Directors certified by the Secretary of the Fund setting forth the date of
the declaration of such dividend or distribution, the ex-dividend date, the date
of payment thereof, the record date as of which Shareholders entitled to payment
shall be determined, the amount payable per Share to the Shareholders of record
as of that date, the total amount payable to the Agent or its agent on the
payment date and whether such dividend or distribution is to be paid in Shares
of such class at net asset value.
On or before the payment date specified in such resolution of the
Board of Directors, the Custodian of the Fund will pay to the Agent or its agent
sufficient cash to make payment to the Shareholders of record as of such payment
date.
(b) Insufficient Funds for Payments. If the Agent or its agent does
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not receive sufficient cash from the Custodian to make total dividend and/or
distribution payments to all Shareholders of the Fund as of the record date, the
Agent or its agent will, upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until such sufficient cash is
provided to the Agent or its agent.
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Exhibit 1
to
Schedule C
Summary of Services
The services to be performed by the Agent or its agent shall be as follows:
A. DAILY RECORDS
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Maintain daily on disc the following information with respect to each
Shareholder account as received:
. Name and Address (Zip Code)
. Class of Shares
. Balance of Shares held by Agent
. Beneficial owner code: i.e. male, female, joint tenant, etc.
. Dividend code (reinvestment)
. Number of Shares held in certificate form
B. OTHER DAILY ACTIVITY
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. Answer written inquiries relating to Shareholder accounts (matters relating to
portfolio management, distribution of Shares and other management policy
questions will be referred to the Fund).
. Process additional payments into established Shareholder accounts in
accordance with Written instruction from the Agent.
. Upon receipt of proper instructions and all required documentation, process
requests for repurchase of Shares.
. Identify repurchase requests made with respect to accounts in which Shares
have been purchased within an agreed-upon period of time for determining
whether good funds have been collected with respect to such purchase and
process as agreed by the Agent in accordance with Written Instruction set
forth by the Fund.
. Examine and process all transfers of Shares, ensuring that all transfer
requirements and legal documents have been supplied.
. Issue and mail replacement checks.
C. REPORTS PROVIDED TO THE FUND
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Furnish the following reports to the Fund:
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. Daily financial totals
. Monthly report of outstanding Shares
. Monthly analysis of accounts by beneficial owner code
. Monthly analysis of accounts by Share range
D. DIVIDEND ACTIVITY
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. Calculate and process Share dividends and distributions as instructed by the
Fund.
. Compute, prepare and mail all necessary reports to Shareholders or various
authorities as requested by the Fund.
E. MEETINGS OF SHAREHOLDERS
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. Cause to be mailed proxy and related material for all meetings of
Shareholders. Tabulate returned proxies (proxies must be adaptable to
mechanical equipment of the Agent or its agents) and supply daily reports
when sufficient proxies have been received.
. Prepare and submit to the Fund an Affidavit of Mailing.
. At the time of the meeting, furnish a certified list of Shareholders, hard
copy, microfilm or microfiche and, if requested by the Fund, Inspectors of
Section.
F. PERIODIC ACTIVITY
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. Cause to be mailed reports, Fund, and any other enclosures requested by the
Fund (material must be adaptable to mechanical equipment of Agent or its
agents).
. Receive all notices issued by the Fund with respect to the Preferred Shares
in accordance with and pursuant to the Articles of Incorporation and the
Indenture and perform such other specific duties as are set forth in the
Articles of Incorporation including in giving of notice of a special meeting
and notice of redemption in the circumstances and otherwise in accordance
with all relevant provisions of the Articles of Incorporation.
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Transfer Agent Fee
Schedule A
The Fund shall pay the Transfer Agent an annualized fee of $8.00 per
shareholder account. Such fee shall be prorated on billed by the Transfer Agent
monthly on a prorated basis of 1/12 of the annualized fee.
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Schedule B
OUT-OF-POCKET EXPENSES
----------------------
The Fund shall reimburse the Agent monthly for the following out-of-pocket
expenses:
. postage and mailing
. forms
. outgoing wire charges
. telephone
. Federal Reserve charges for check clearance
. if applicable, magnetic tape and freight
. retention of records
. microfilm/microfiche
. stationery
. insurance
. if applicable, terminals, transmitting lines and any expenses incurred in
connection with such terminals and lines
. all other miscellaneous expenses reasonably incurred by the Agent
The Fund agrees that postage and mailing expenses will be paid on the day
of or prior to mailing as agreed with the Agent. In addition, the Fund will
promptly reimburse the Agent for any other expenses incurred by the Agent as to
which the Fund and the Agent mutually agree that such expenses are not otherwise
properly borne by the Agent as part of its duties and obligations under the
Agreement.
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