TRANSFER AGENCY AGREEMENT
This Agreement, dated as of December 2, 2004, is between American Express
Certificate Company (the "Company"), a Delaware corporation, and American
Express Client Service Company (the "Transfer Agent"), a Minnesota corporation.
In consideration of the mutual promises set forth below, the Company and the
Transfer Agent agree as follows:
1. Appointment of the Transfer Agent. The Company hereby appoints the Transfer
Agent, as transfer agent for its face-amount certificates and as
certificate owner servicing agent for the Company, and the Transfer Agent
accepts such appointment and agrees to perform the duties set forth below.
2. Compensation.
(a) The Company will compensate the Transfer Agent for the performance of
its obligations as set forth in Schedule A. Schedule A does not
include out-of-pocket disbursements of the Transfer Agent for which
the Transfer Agent shall be entitled to ▇▇▇▇ the Company separately.
(b) The Transfer Agent will ▇▇▇▇ the Company monthly. The fee shall be
paid in cash by the Company to the Transfer Agent within five (5)
business days after the last day of each month.
(c) Out-of-pocket disbursements shall include, but shall not be limited
to, the items specified in Schedule B. Reimbursement by the Company
for expenses incurred by the Transfer Agent in any month shall be made
as soon as practicable after the receipt of an itemized ▇▇▇▇ from the
Transfer Agent.
(d) Any compensation jointly agreed to hereunder may be adjusted from time
to time by attaching to this Agreement a revised Schedule A, dated and
signed by an officer of each party.
3. Documents. The Company will furnish from time to time such certificates,
documents or opinions as the Transfer Agent deems to be appropriate or
necessary for the proper performance of its duties.
4. Representations of the Company and the Transfer Agent.
(a) The Company represents to the Transfer Agent that all outstanding
face-amount certificates are validly issued, fully paid and
non-assessable by the Company. When face-amount certificates are
hereafter issued in accordance with the terms of the Company's
Certificate of Incorporation and the applicable prospectus or other
governing documents, such face-
amount certificates shall be validly issued, fully paid and
non-assessable by the Company.
(b) The Transfer Agent represents that it is registered under Section
17A(c) of the Securities Exchange Act of 1934. The Transfer Agent
agrees to maintain the necessary facilities, equipment and personnel
to perform its duties and obligations under this Agreement and to
comply with all applicable laws.
5. Duties of the Transfer Agent. The Transfer Agent shall be responsible,
separately and through its subsidiaries or affiliates, for the following
functions:
(a) Sale of Face-amount Certificates.
(1) On receipt of an application and payment, wired instructions and
payment, or payment identified as being for the account of a
certificate owner, the Transfer Agent will deposit the payment,
prepare and present the necessary report to the custodian of the
Company (the "Custodian") and record the purchase of face-amount
certificates in a timely fashion in accordance with the terms of
the prospectus. All face-amount certificates shall be held in
book entry form, and no certificate shall be issued unless the
Company is permitted to do so by the prospectus or other
governing documents.
(2) On receipt of notice that payment was dishonored, the Transfer
Agent shall stop surrenders of all face-amount certificates owned
by the purchaser related to that payment, place a stop payment on
any checks that have been issued to redeem face-amount
certificates of the purchaser and take such other action as it
deems appropriate.
(b) Withdrawal of Face-amount Certificates. On receipt of instructions to
surrender face-amount certificates in accordance with the terms of the
applicable prospectus or other governing documents, the Transfer Agent
will record the surrender of face-amount certificates, prepare and
present the necessary report to the Custodian and pay the proceeds of
the surrender to the certificate owner, an authorized agent or legal
representative upon the receipt of the monies from the Custodian.
(c) Transfer or Other Change Pertaining to Face-amount Certificates. On
receipt of instructions or forms acceptable to the Transfer Agent to
transfer to any other face-amount certificate offered by the Company
or to transfer the ownership of the face-amount certificates to the
name of a new owner, change the name or address of the present owner
or take other legal action, the Transfer Agent will take such action
as is requested.
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(d) Right to Seek Assurance. The Transfer Agent may refuse to transfer,
exchange or redeem face-amount certificates of the Company or take any
action requested by a certificate owner until it is satisfied that the
requested transaction or action is legally authorized or until it is
satisfied there is no basis for any claims adverse to the transaction
or action. It may rely on the provisions of the Uniform Act for the
Simplification of Fiduciary Security Transfers or the Uniform
Commercial Code as adopted in the applicable jurisdiction. The Company
shall indemnify the Transfer Agent for any act done or omitted to be
done in reliance on such laws or for refusing to transfer, exchange or
surrender face-amount certificates or taking any requested action if
it acts on a good faith belief that the transaction or action is
illegal or unauthorized.
(e) Certificate Owner Records, Reports and Services.
(1) The Transfer Agent shall maintain all certificate owner accounts,
which shall contain all required tax, legally imposed and
regulatory information; shall provide certificate owners, and
file with federal and state agencies, all required tax and other
reports pertaining to certificate owners accounts; shall prepare
certificate owner mailing lists; shall cause to be printed and
mailed all required prospectuses, and other mailings to
certificate owners ; and shall provide other transfer agent
services as the Company and the Transfer Agent shall agree.
(2) The Transfer Agent shall respond to all valid inquiries related
to its duties under this Agreement.
(3) The Transfer Agent shall create and maintain all records in
accordance with all applicable laws, rules and regulations,
including, but not limited to, the records required by Section
31(a) of the Investment Company Act of 1940.
(f) Interest. The Transfer Agent shall prepare and present the necessary
report to the Custodian, or another person as directed by the Company
and shall cause to be prepared and transmitted the payment of interest
or cause to be recorded the investment of such interest in applicable
face-amount certificates of the Company or as directed by instructions
or forms acceptable to the Transfer Agent.
(g) Confirmations and Statements. The Transfer Agent shall confirm each
transaction either at the time of the transaction or through periodic
reports as may be legally permitted.
(h) Lost or Stolen Checks. The Transfer Agent will replace lost or stolen
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checks issued to the certificate owners upon receipt of proper
notification and will maintain any stop payment orders against the
lost or stolen checks as it is economically desirable to do.
(i) Reports to Company. The Transfer Agent will provide reports pertaining
to the services provided under this Agreement as the Company may
request to ascertain the quality and level of services being provided
or as required by law.
(j) Other Duties. The Transfer Agent may perform other duties for
additional compensation if agreed to in writing by the parties to this
Agreement.
6. Ownership and Confidentiality of Records.
(a) General. The Transfer Agent agrees that all records prepared or
maintained by it relating to the services to be performed by it under
the terms of this Agreement are the property of the Company and may be
inspected by the Company or any person retained by the Company at
reasonable times. The Company and Transfer Agent agree to protect the
confidentiality of those records.
(b) Regulation S-P.
(1) In accordance with Regulation S-P of the Securities and Exchange
Commission, "Nonpublic Personal Information" includes (1) all
personally identifiable financial information; (2) any list,
description, or other grouping of consumers (and publicly
available information pertaining to them) that is derived using
any personally identifiable financial information that is not
publicly available information; and (3) any information derived
therefrom.
(2) The Transfer Agent must not use or disclose Nonpublic Personal
Information for any purpose other than to carry out the purpose
for which Nonpublic Personal Information was provided to the
Transfer Agent as set forth in this Agreement, and agrees to
cause the Transfer Agent, and its employees, agents,
representatives, or any other party to whom the Transfer Agent
may provide access to or disclose Nonpublic Personal Information
to limit the use and disclosure of Nonpublic Personal Information
to that purpose.
(3) The Transfer Agent agrees to implement appropriate measures
designed to ensure the security and confidentiality of Nonpublic
Personal Information, to protect such information against any
anticipated threats or hazards to the security or integrity of
such information, and to protect against unauthorized access to,
or use of, Nonpublic Personal Information that could result in
substantial
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harm or inconvenience to any certificate owner ; the Transfer
Agent further agrees to cause all its agents, representatives,
subcontractors, or any other party to whom the Transfer Agent may
provide access to, or disclose, Nonpublic Personal Information to
implement appropriate measures designed to meet the objectives
set forth in this paragraph.
(4) With respect only to the provisions of this Section 6(b), the
Transfer Agent agrees to indemnify and hold harmless the Company,
and any officer or director of the Company, against losses,
claims, damages, expenses, or liabilities to which the Company ,
or any officer or director of the Company, may become subject as
the result of (1) a material breach of the provisions of this
section of the Agreement or (2) any acts or omissions of the
Transfer Agent, or of any of its officers, directors, employees,
or agents, that are not in substantial accordance with this
Agreement, including, but not limited to, any violation of any
federal statute or regulation. Notwithstanding the foregoing, no
party shall be entitled to indemnification pursuant to this
Section 6(b)(4) if such loss, claim, damage, expense, or
liability is due to the willful misfeasance, bad faith, gross
negligence, or reckless disregard of duty by the party seeking
indemnification.
7. Action by Board and Opinion of Counsel. The Transfer Agent may rely on
resolutions of the Board of Directors (the "Board") and on opinion of
counsel for the Company.
8. Duty of Care. It is understood and agreed that, in furnishing the Company
with the services as herein provided, neither the Transfer Agent, nor any
officer, director or agent thereof shall be held liable for any loss
arising out of or in connection with their actions under this Agreement so
long as they act in good faith and with due diligence, and are not
negligent or guilty of any willful misconduct. It is further understood and
agreed that the Transfer Agent may rely upon information furnished to it
reasonably believed to be accurate and reliable. In the event the Transfer
Agent is unable to perform its obligations under the terms of this
Agreement because of an act of God, strike or equipment or transmission
failure reasonably beyond its control, the Transfer Agent shall not be
liable for any damages resulting from such failure.
9. Term and Termination. This Agreement shall become effective on the date
first set forth above and shall continue in effect from year to year
thereafter as the parties may mutually agree; provided that either party
may terminate this Agreement by giving the other party 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 event such notice is
given by the Company, it shall be accompanied by a vote of the Board,
certified by the Secretary, electing to terminate this
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Agreement and designating a successor transfer agent or transfer agents.
Upon such termination and at the expense of the Company, the Transfer Agent
will deliver to such successor a certified list of owners of certificates
(with name, address and taxpayer identification or Social Security number),
a historical record of the account of each certificate owner and the status
thereof, and all other relevant books, records, correspondence, and other
data established or maintained by the Transfer Agent under this Agreement
in the form reasonably acceptable to the Company, and will cooperate in the
transfer of such duties and responsibilities, including provisions for
assistance from the Transfer Agent's personnel in the establishment of
books, records and other data by such successor or successors.
10. Amendment. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties.
11. Subcontracting. The Company agrees that the Transfer Agent may subcontract
for certain of the services described under this Agreement with the
understanding that there shall be no diminution in the quality or level of
the services and that the Transfer Agent remains fully responsible for the
services. Except for out-of-pocket expenses identified in Schedule B, the
Transfer Agent shall bear the cost of subcontracting such services, unless
otherwise agreed by the parties.
12. Miscellaneous.
(a) 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.
(b) This Agreement shall be governed by the laws of the State of
Minnesota.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers as of the day and year written above.
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AMERICAN EXPRESS CERTFICATE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President
AMERICAN EXPRESS CLIENT SERVICE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇
Senior Vice President
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Schedule A
COMPENSATION TO TRANSFER AGENT
For services provided under this Agreement, the Transfer Agent shall be paid the
fees and costs described in Section I of this Schedule. Section 2 of this
Schedule describes computation, invoicing and payment terms.
1. Compensation Items
a. Fees. The Transfer Agent shall be paid a monthly fee for each month during
the term of this Agreement in an amount equal to one-twelfth of $10.353 per
certificate owner account maintained by the Transfer Agent under this Agreement.
For these purposes, the number of certificate owner accounts in a month shall be
an average of the number of such accounts on the first and last days of the
month.
b. Effective Period; Material Changes. The fees set out in this Schedule shall
be effective until the parties agree otherwise.
2. Computation, Invoicing and Payment Terms
Each month, the Transfer Agent shall prepare an invoice setting forth the amount
payable by the Company under this Agreement. The fees described herein shall be
paid by the Company monthly in arrears within five (5) business days after
receipt by the Company of the invoice for such month.
Schedule B
OUT-OF-POCKET EXPENSES
The Company shall reimburse the Transfer Agent monthly for the following
out-of-pocket expenses:
o printing, paper, envelopes and postage for interest notices, interest
checks, records of account, purchase confirmations, exchange
confirmations and surrender confirmations, surrender checks,
confirmations on changes of address and any other communication (other
than prospectuses) required to be sent to certificate owners, and
envelopes and postage for prospectuses;
o stop orders;
o outgoing wire charges; and
o other expenses incurred at the request or with the consent of the
Company.
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