Exhibit 99.(k)(2)
TRANSFER AGENCY and SERVICE AGREEMENT
between
THE MASSACHUSETTS HEALTH & EDUCATION TAX EXEMPT TRUST
and
INVESTORS BANK & TRUST COMPANY
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT effective as of the 12th day of January 1996 by and between The
Massachusetts Health & Education Tax Exempt Trust, a business trust organized
under the laws of the Commonwealth of Massachusetts, (the "Company"), and
INVESTORS BANK & TRUST COMPANY, a Massachusetts trust company (the "Bank").
WITNESSETH:
WHEREAS, the Company desires to appoint the Bank as its transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided in
Section 17A(c) of the Securities Exchange Act of 1934, as amended;
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
the Company and the Bank agree as follows:
ARTICLE 1. Terms of Appointment; Duties of the Bank
1.01 Subject to the terms and conditions set forth in this Agreement, the
Company hereby, employs and appoints the Bank to act as, and the Bank agrees to
act as transfer agent for the Company's authorized and issued shares of
beneficial interest and preferred shares ("Shares"), dividend disbursing agent
and agent in connection with any accumulation or similar plans provided to the
shareholders of the Company ("Shareholders") and set out in the prospectuses of
the Company, including without limitation any periodic investment plan.
1.02 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time to time by
agreement between the Company and the Bank, the Bank shall:
(i) Accounts: set up accounts on behalf of each registered
Shareholder, and maintain in such account the appropriate number of Shares
of each such Shareholder. The Bank shall maintain confidential records
showing for each Shareholder's account the following: (i) names, addresses
and tax identification numbers; (ii) numbers of Shares held; (iii)
historical information (as available from prior transfer agents) regarding
the account of each Shareholder, including dividends paid and date and
price of all transactions on a Shareholders account; (iv) any stop or
restraining order placed against a Shareholders account; (v) information
with respect to withholdings; (vi) any capital gain or dividend
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reinvestment order, plan application, dividend address and correspondence
relating to the current maintenance of a Shareholder's account; (vii)
certificate numbers. and denominations for any Shareholders holding
certificates; (viii) any information required in order for the Bank to
perform the calculations contemplated or required by this Agreement; and
(ix) such other information and data as may be required by applicable law.
(ii) Transfers: effect transfers of Shares by the registered owners
thereof upon receipt of appropriate instructions and documentation. If
Shares to be transferred are represented by outstanding certificates, the
Bank will, upon surrender to it of the certificates in proper form for
transfer, and upon cancellation thereof, countersign and issue new
certificates for a like number of Shares and deliver the same. If the
Shares to be transferred are not represented by outstanding certificates,
the Bank will, upon an order therefor by or on behalf of the registered
holder thereof in proper form, credit the same to the transferee on its
books. The Bank 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 for any claims adverse to such
transfer. The Bank may, in effecting transfers, rely upon the 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, which in the opinion of legal counsel for the Company or of its own
legal counsel, protect it in not requiring certain documents in connection
with the transfer of Shares, and the Company shall indemnify the Bank for
any act done or omitted by it in reliance upon such laws or opinions of
counsel of the Company or of its own counsel. The Bank may establish such
additional rules and regulations governing the transfer or registration of
Shares as it may deem advisable and consistent with such rules and
regulations generally adopted by transfer agents, or with the written
consent of the Company, any other rules and regulations.
(iii) Distributions: prepare and transmit payments for dividends and
distributions declared by the Company. The Company will promptly notify
the Bank of the declaration of any dividend or distribution. The Company
shall furnish to the Bank a resolution of the Board of Trustees of the
Company certified by its Secretary: (i) authorizing the declaration of
dividends on a specified periodic basis and authorizing the Bank to rely
on oral instructions or a certificate specifying the date of the
declaration of such dividend or distribution, the date of payment thereof,
the record date as of which Shareholders entitled to payment shall be
determined and the amount payable per share to Shareholders of record as
of the date and the total amount payable to the Bank on the payment date;
or (ii) setting forth the date of the declaration of am' dividend or
distribution, the date of payment thereof, the record date as of which
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Shareholders entitled to payment shall be determined, and the amount
payable per share to the Shareholders of record as of that date and the
total amount payable to the Bank on the payment date. Upon receipt of
funds in a dividend disbursing account equal to the cash amount of any
dividend or distribution to be paid out, the Bank will calculate, prepare
and mail checks to Shareholders (at the address as it appears on the
records of the Bank), or (where appropriate) credit such dividend or
distribution to the account of Shareholders, and maintain and safeguard
all underlying records. The Bank will replace lost checks at its
discretion and in conformity with regular business practices. The Bank
shall not be liable for any improper payments made in accordance with a
resolution of the Board of Trustees of the Company. If the Bank shall not
receive from the Company sufficient cash to make payment to all
Shareholders of the Company as of the record date, the Bank shall, upon
notifying the Company, withhold payment to all Shareholders of record as
of the record date until such sufficient cash is provided to the Bank.
(iv) Dividend Reinvestment Plan Agent: act as agent for Shareholders
pursuant to any dividend reinvestment plan or other similar plan as may be
agreed upon from time to time by the Company and the Bank.
(v) Records: The Bank shall keep records relating to the services to
be performed hereunder, in the form and manner as it may deem advisable.
To the extent required by Section 31 of the Investment Company Act of
1940, as amended, and the Rules thereunder, the Bank agrees that all such
records prepared or maintained by the Bank relating to the services to be
performed by the Bank hereunder are the confidential property of the
Company and will be preserved, maintained and made available in accordance
with such Section and Rules, and will be surrendered to the Company on and
in accordance with its request. All records shall be reasonably available
for inspection and use by the Company.
(vi) Certificates: at the expense of the Company, the Bank shall
maintain an adequate supply of blank share certificates with respect to
the Shares providing for the issuance of certificates to meet the Bank's
requirements therefor. Such share certificates shall be properly signed by
facsimile. The Company agrees that, notwithstanding the death,
resignation, or removal of any officer of the Company whose signature
appears on such certificates, the Bank may continue to countersign
certificates which bear such signatures until otherwise directed by the
Company. Share certificates may be issued and accounted for entirely by
the Bank and do not require any third party registrar or other endorsing
party.
(vii) Replacement Certificates: issue replacement share certificates
in lieu of certificates which have been lost, stolen. mutilated or
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destroyed, without any further action by the Board of Trustees or any
officer of the Company, upon receipt by the Bank of properly executed
affidavits and lost certificate bonds, in form satisfactory to the Bank
with the Company and the Bank as obligees under the bond. At the
discretion of the Bank, and at its sole risk, the Bank may issue
replacement certificates without requiring the affidavits and lost
certificate bonds described above and the Bank agrees to indemnify the
Company against any and all losses or claims which may arise by reason of
the issuance of such new certificates in the place of the ones allegedly
lost, stolen or destroyed.
(viii) Issuance of Shares: Record the issuance of Shares of the
Company and maintain pursuant to SEC Rule l7Ad-10(e) a record of the total
number of Shares of the Company which are authorized, based upon data
provided to it by the Company, and issued and outstanding. The Bank shall
have no obligation, when recording the issuance of Shares, to monitor the
issuance of such Shares or to take cognizance of any laws relating to the
issue or sale of such Shares, which functions shall be the sole
responsibility of the Company.
(b) In addition to and not in lieu of the services set forth in the
above paragraph (a) or in any Schedule hereto, if any, the Bank shall: (i)
perform all of the customary services of a registrar, transfer agent, dividend
disbursing agent and, as relevant, agent in connection with accumulation or
similar plans (including without limitation any periodic investment plan),
including but not limited to: preparing Shareholder meeting lists, mailing
proxies, receiving and tabulating proxies, mailing Shareholder reports and
prospectuses to current Shareholders, withholding taxes on accounts as
applicable, including 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 registered
Shareholders, preparing and mailing confirmations, and statements of account to
Shareholders for all confirmable transactions in Shareholder accounts,
responding to Shareholder telephone calls and Shareholder correspondence,
preparing and mailing activity statements for Shareholders, and providing
Shareholder account information.
(c) In addition to the duties expressly provided for herein, the
Bank shall perform such other duties and functions and shall be paid such
amounts therefore as may from time to time be agreed to in writing and attached
as a schedule to this Agreement.
(d) Procedures applicable to the services to be performed hereunder
may be established from time to time by agreement between the Company and the
Bank. The Bank shall have the right to utilize any shareholder accounting and
recordkeeping systems which, in its opinion. qualifies to perform any services
to be performed hereunder.
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ARTICLE 2. Fees and Expenses
2.01 For performance by the Bank pursuant to this Agreement, the Company
agrees to pay the Bank such fees as set out in the initial fee schedule attached
hereto. Such fees and out-of-pocket expenses and advances identified under
Section 2.02 below may be changed from time to time subject to mutual written
agreement between the Company and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Company
agrees to reimburse the Bank for out-of-pocket expenses or advances incurred by
the Bank for the items set out in the fee schedule attached hereto. In addition,
any other expenses incurred by the Bank at the request or with the consent of
the Company including, without limitation, any equipment or supplies
specifically ordered by the Company or required to be purchased by the Company,
will be reimbursed by the Company.
2.03 The Company agrees to pay all fees and reimbursable expenses within
five days following the mailing of the respective billing notice. Postage for
mailing of dividends, proxies, reports and other mailings to all Shareholder
accounts shall be advanced to the Bank by the Company at least seven (7) days
prior to the mailing date of such materials.
ARTICLE 3. Representations and Warranties of the Bank
The Bank represents and warrants to the Company that:
3.01 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
3.02 It is empowered under applicable laws and by its charter and By-laws
to enter into and perform this Agreement.
3.03 All requisite corporate proceedings have been taken to authorize it
to enter into and perform this Agreement.
3.04 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement and it maintains and will continue to maintain insurance in connection
with its business as transfer agent.
ARTICLE 4. Representations and Warranties of the Company
The Company represents and warrants to the Bank that:
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4.01 It is a business trust duly organized and existing and in good
standing under the laws of the state of its organization as set forth in the
preamble hereto.
4.02 It is empowered under applicable laws and by its charter documents
and By-Laws to enter into and perform this Agreement.
4.03 All proceedings required by said charter documents and By-Laws have
been taken to authorize it to enter into and perform this Agreement.
4.04 It is a closed-end investment company registered under the Investment
Company Act of 1940.
4.05 A registration statement on Form N-2 (including a prospectus and
statement of additional information) under the Securities Act of 1933 is
currently effective and appropriate federal and state securities law filings
have been made and will continue to be made, with respect to all Shares of the
Company being offered for sale.
ARTICLE 5. Indemnification
5.01 Except as set forth in Section 5.02 hereof, the Bank shall not be
responsible for, and the Company 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:
(a) All actions taken or omitted to be taken by the Bank or its
agent or subcontractors in good faith in reliance on or use by the Bank or its
agents or subcontractors of information, records and documents which (i) are
received by the Bank or its agents or subcontractors and furnished to it by or
on behalf of the Company, (ii) have been prepared and/or maintained by the
Company or any other person or firm on behalf of the Company, and (iii) were
received by the Bank or its agents or subcontractors from a prior transfer
agent.
(b) Any action taken or omitted to be taken by the Bank in
connection with its appointment in good faith in reliance upon any law, act,
regulation or interpretation of the same even though the same may thereafter
have been altered, changed, amended or repealed.
(c) The Company's refusal or failure to comply with the terms of
this Agreement, or which arise out of the Company's lack of good faith,
negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Company hereunder.
(d) The reliance on, or the carrying out by the Bank or its agents
or subcontractors of any instructions or requests, whether written or oral, of
the Company.
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(e) The offer or sale of Shares by the Company in violation of any
requirement under the federal securities laws or regulations or the securities
laws or regulations of any state that such Shares be registered in such 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 such Shares in such
state.
5.02 The Bank shall indemnify and hold the Company harmless from and
against any and all losses, damages, costs, charges, counsel fees, payments,
expenses and liability arising out of or attributed to any action or failure or
omission to act by the Bank as a result of the Banks lack of good faith,
negligence, willful misconduct, knowing violation of law or fraud.
5.03 At any time the Bank may apply to any officer of the Company for
instructions, and may consult with legal counsel with respect to any matter
arising in connection with the services to be performed by the Bank under this
Agreement, and the Bank and its agents or subcontractors shall not be liable and
shall be indemnified by the Company for any action taken or omitted by it in
reliance upon such instructions or upon the opinion of such counsel. The Bank,
its agents and subcontractors shall be protected and indemnified in acting upon
any paper or document furnished by or on behalf of the Company, reasonably
believed to be genuine and to have been signed by the proper person or persons,
or upon any instruction, information, data, records or documents provided the
Bank or its agents or subcontractors by machine readable input, telex, CRT data
entry or other similar means authorized by the Company, and shall not be held to
have notice of any change of authority of any person, until receipt of written
notice thereof from the Company. The Bank, its agents and subcontractors shall
also be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of the
officer of the Company, and one proper countersignature of any former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
5.04 In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, interruption of
electrical power or other utilities, equipment or transmission failure or damage
reasonably beyond its control, or other causes reasonably beyond its control,
such party shall not be liable to the other for any damages resulting from such
failure to perform or otherwise from such causes.
5.05 Neither party to this Agreement shall be liable to the other party
for consequential damages under any provision of this Agreement or for any act
or failure to act hereunder as contemplated by this Agreement.
5.06 In order that the indemnification provisions contained in this
Article 5 shall apply. upon the assertion of a claim for which either party may
be required to
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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, which consent shall not be unreasonably withheld.
ARTICLE 6. Covenants of the Company and the Bank
6.01 The Company shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Trustees of the
Company authorizing the appointment of the Bank and the execution and delivery
of this Agreement.
(b) A copy of the charter documents and By-Laws of the Company and
all amendments thereto.
(c) Copies of each vote of the Trustees designating authorized
persons to give instructions to the Bank.
(d) Certificates as to any change in any officer or Director of the
Company.
(e) If applicable, a specimen of the certificate of Shares of the
Company in the form approved by the Trustees, with a certificate of the
Secretary of the Company as to such approval.
(f) Specimens of all new certificates for Shares, accompanied by the
Trustees' resolutions approving such forms.
(g) All account application forms and other documents relating to
shareholder accounts or relating to any plan, program or service offered by the
Company.
(h) A list of Shareholders of the Company with the name, address and
tax identification number of each Shareholder, and the number of Shares of the
Company held by each, certificate numbers and denominations (if any certificates
have been issued), lists of any account against which stops have been placed,
together with the reasons for said stops, and the number of Shares redeemed by
the Company.
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(i) An opinion of counsel for the Company with respect to the
validity of the Shares and the status of such Shares under the Securities Act of
1933.
(j) Copies of the Company registration statement on Form N-2. its
current prospectus and statement of additional information, if any.
(k) Such other certificates, documents or opinions as may mutually
be deemed necessary or appropriate for the Bank in the proper performance of its
duties.
6.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Company 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.
6.03 The Bank and the Company 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.
6.04 In case of any requests or demands for the inspection of the
Shareholder records of the Company, the Bank will endeavor to notify the Company
and to secure instructions from an authorized officer of the Company as to such
instruction. 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.
6.05 The Company shall not use the name of the Bank or any of its
affiliates in any prospectus, sales literature or other material relating to the
Company in a manner not approved by the Bank prior thereto in writing; provided,
however, that the approval of the Bank shall not be required for any use of its
name which merely refers in accurate and factual terms to its appointment
hereunder or which is required by the Securities and Exchange Commission or any
state securities authority or any other appropriate regulatory, governmental or
judicial authority; provided, further, that in no event shall such approval be
unreasonably withheld or delayed.
ARTICLE 7. Term of Agreement
7.01 This Agreement shall become effective on the date hereof (the
"Effective Date") and shall continue in effect from year to year thereafter,
provided that this Agreement may be terminated by either party at any time
without payment of any penalty upon ninety (90) days written notice to the
other. In the event such notice is given by the Company. it shall be accompanied
by a resolution of the Board of Trustees, certified
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by the Secretary, electing to terminate this Agreement and designating a
successor transfer agent.
7.02 Should the Company exercise its right to terminate, all out-of-pocket
expenses associated with the movement of records and material will be borne by
the Company. Additionally, the Bank reserves the right to charge for any other
reasonable expenses associated with such termination.
ARTICLE 8. Assignment
8.01 Except as provided in Section 8.03 below, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party without the
written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding upon the
parties and their respective permitted successors and assigns.
8.03 The Bank, may without further consent on the part of the Company,
subcontract for the performance of services to be provided hereunder to third
parties, including any affiliate of the Bank, provided that the Bank shall
remain liable hereunder for any acts or omissions of any subcontractor as if
performed by the Bank.
ARTICLE 9. Amendment
9.01 This Agreement may be amended or modified by a written agreement
executed by both parties.
ARTICLE 10. Massachusetts Law to Apply
10.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
ARTICLE 11. Merger of Agreement
11.01 This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject hereof
whether oral or written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
The Massachusetts Health & Education Tax Exempt Trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
ATTEST:
[ILLEGIBLE]
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Investors Bank & Trust Company
By: /s/ ▇. ▇▇▇▇
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EMD
ATTEST:
[ILLEGIBLE]
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MASS HEALTH AND EDUCATION TAX EXEMPT TRUST
CUSTODY, FUND ACCOUNTING, PRICING AND TRANSFER AGENCY
FEE SCHEDULE
A. Custody. Fund Accounting~ and Pricing:
5 Basis Points - 1st $250 million
3 Basis Points - 2nd $250 million
1 Basis Point - Greater than $500 million
Custody Activity Charges:
Book Entry $30.00
Physical $18.00 per security
Redemptions in Kind $18.00 per security
Purchase in Kind $5.00
Principal Payments $18.00
Options/Futures $18.00
B. Transfer Agency: $30,000.00
C. Out-of-Pocket. Balance Credits
Out-of-Pocket
These charges consist of:
- Pricing & Verification Services
- Printing, Delivery & Postage
- Telephone
- Legal Costs
- Proxy Tabulation
- Checkbooks
- Micro Rental
- Forms & Supplies
- Support Equipment Rental
- 3rd Party Review
- Ad Hoc reporting
- 800 Number Fees
Balance Credit
We allow balance credit against fees (excluding out-of-pocket charges) for
fund balances arising out of the custody relationship. The credit is based
on collected balances reduced by balances required to support the activity
charges of the accounts. The monthly earnings allowance is equal to 75% of
the 90-day T-▇▇▇▇ rate.