EXHIBIT (k)(3)
REGISTRAR,
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE HYPERION TOTAL RETURN FUND, INC.
and
STATE STREET BANK AND TRUST COMPANY
Table of Contents
Page
Article 1 Terms of Appointment: Duties of the Bank............................1
Article 2 Fees and Expenses...................................................3
Article 3 Representations and Warranties of the Bank..........................3
Article 4 Representations and Warranties of the Fund..........................4
Article 5 Indemnification.....................................................4
Article 6 Covenants of the Fund and the Bank..................................7
Article 7 Termination of Agreement............................................8
Article 8 Assignment..........................................................8
Article 9 Amendment...........................................................9
Article 10 Massachusetts Law to Apply.........................................9
Article 11 Merger of Agreement................................................9
REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 2nd day of August, ___1989, by and between
THE HYPERION TOTAL RETURN FUND, INC., a Maryland corporation, having its
principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, (the "Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
trust company having its principal office and place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (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 the Bank desires to accept such appointment:
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto 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 Fund
hereby employs and appoints the Bank to act as, and the Bank agrees to act as
registrar, transfer agent for the Fund's authorized and issued shares of its
common stock ("Shares"), dividend disbursing agent and agent in connection with
any dividend reinvestment as set out in the prospectus of the Fund,
corresponding to the date of this Agreement.
1.02 The Bank agrees that it will perform the following services:
(a) In accordance with procedures established from time to time by
agreement between the Fund and the Bank, the Bank shall:
(i) issue and record the appropriate number of Shares as authorized and hold
such Shares in the appropriate Shareholder account;
(ii) effect transfers of Shares by the registered owners thereof upon receipt of
appropriate documentation;
(iii)prepare and transmit payments for dividends and distributions declared by
the Fund; and
(iv) act as agent for Shareholders pursuant to the dividend reinvestment and
cash purchase plan as amended from time to time in accordance with the
terms of the agreement to be entered into between the Shareholders and the
Bank in substantially the form attached as Exhibit A hereto.
(b) In addition to and not in lieu of the services set forth in the above
paragraph (a), the Bank shall: (i) perform all of the customary services of a
registrar, transfer agent, dividend disbursing agent and agent of the dividend
reinvestment and cash purchase plan as described in Article 1 consistent with
those requirements in effect as at the date of this Agreement. The detailed
definition, frequency, limitations and associated coats (if any) set out in the
attached fee schedule, include but are not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
receiving and tabulating proxies and mailing Shareholder reports to current
Shareholders, withholding taxes on U.S. resident and non-resident alien accounts
where applicable, 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
confirmation forms and statements of account to Shareholders and providing
Shareholder account information.
Article 2 Fees and Expenses
2.01 For the performance by the Bank pursuant to this Agreement, the Fund agrees
to pay the Bank an annual maintenance fee 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 Fund and the Bank.
2.02 In addition to the fee paid under Section 2.01 above, the Fund agrees to
reimburse the Bank for reasonable 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 Fund, will be reimbursed by the Fund.
2.03 The Fund agrees to pay all fees and reimbursable expenses within five days
following the receipt of the respective billing notice. Postage and the cost of
materials for mailing of dividends, proxies, Fund reports and other mailings to
all Shareholder accounts shall be paid to the Bank by the Fund upon presentation
of billing notice following the mailing date of such materials.
Article 3 Representations and Warranties of the Bank
The Bank represents and warrants to the Fund that:
3.01 It is a trust company duly organized and exiisting and in good
standing under the laws of the Commonwealth of Massachusetts.
3.02 It is duly qualified to carry on its business in the Commonwealth of
Massachusetts.
3.03 It is empowered under applicable laws and by its charter and by-laws
to enter into and perform this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
3.05 It has and will continue to have access to the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
Article 4 Representations and Warranties of the Fund
The Fund represents and warrants to the Bank that:
4.01 It is a corporation duly organized and existing and in good standing
under the laws of Maryland.
4.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said articles of Incorporation
and By-Laws have been taken to authorize it to enter into and perform this
Agreement.
4.04 It is a closed-end, diversified investment company registered under
the Investment Company Act of 1940.
4.05 A registration statement under the Securities Act of 1933 is currently
effective and appropriate state securities law filings have been made with
respect to all Shares of the Fund being offered for sale; information to the
contrary will result in immediate notification to the Bank.
4.06 It shall make all required filings under federal and state securities
laws.
Article 5 Indemnification
5.01 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 liabilities arising out of or
attributable to:
(a) All actions of the Bank or its agents or subcontractors required to be
taken pursuant to this Agreement, provided that such actions are taken in good
faith and without negligence or willful misconduct.
(b) The Fund's refusal or failure to comply with the terms of this
Agreement, or which arise out of the Fund's lack of good faith, negligence or
willful misconduct or which arise out of the breach of any representation or
warranty of the Fund hereunder.
(c) The 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 Fund, and
(ii) have been prepared and/or maintained by the Fund or any other person or
firm on behalf of the Fund. Such other person or firm shall include any former
transfer agent or former registrar, or co-transfer agent or co-registrar.
(d) The reliance on, or the carrying out by the Bank or its agents or
subcontractors of any instructions or requests of the Fund's representative.
(e) 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 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 Fund harmless from and against any
and all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to any action or failure or omission to
act by the Bank as a result of the Bank's lack of good faith, negligence or
willful misconduct.
5.03 At any time the Bank may apply to any officer of the Fund 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 Fund for any action taken or omitted by it in reliance upon
such instructions or upon the opinion of such counsel (the cost of such opinion
of counsel shall be borne by the Bank unless mutually agreed otherwise). 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 Fund, 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 telephone, in person, machine readable
input, telex, CRT data entry or other similar means authorized by the Fund, and
shall not be held to have notice of any change of authority of any person, until
receipt of written notice thereof from the Fund. 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 officers ofthe Fund, and the proper countersignature
of any former transfer agent or former 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, equipment or
transmission failure or damage reasonably beyond its control, 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.
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.
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 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.
Article 6 Covenants of the Fund and the Bank
6.01 The Fund shall promptly furnish to the Bank the following:
(a) 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.
(b) A copy of the Articles of Incorporation and By-Laws of the Fund and all
amendments thereto.
6.02 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.
6.03 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 property of the Fund and will be preserved, maintained and
made available in accordance with such Section and Rules, and will be
surrendered promptly to the Fund on and is accordance with its request.
6.04 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.
6.05 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 (whose fees shall be paid by Bank)
that it may be held liable for the failure to exhibit the Shareholder records to
such person.
Article 7 Termination of Agreement
7.01 This Agreement may be terminated by either party upon sixty (60) days
written notice to the other.
7.02 Should the Fund exercise its right to terminate, all reasonable
out-of-pocket expenses associated with the movement of records and material will
be borne by the Fund. 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 Fund, subcontract
for the performance hereof with (i) Boston Financial Data Services, Inc., a
Massachusetts corporation ("BFDS") which is duly registered as a transfer agent
pursuant to Section 17A(c)(1) of the Securities Exchange Act of 1934 ("Section
17A(c)(1)"), (ii) a BFDS subsidiary duly registered as a transfer agent pursuant
to Section 17A(c)(1) or (iii) a BFDS affiliate; provided, however, that the Bank
shall be as fully responsible to the Fund for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
Article 9 Amendment
9.01 This Agreement may be amended or modified by a written agreement executed
by both parties and authorized or approved by a resolution of the Board of
Directors of the Fund.
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 HYPERION TOTAL RETURN FUND, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
ATTEST:
STATE STREET BANK AND TRUST COMPANY
BY:
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Vice President
ATTEST:
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Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
Fee Schedule for
Transfer Agent With Dividend Disbursing Services
HYPERION TOTAL RETURN FUND, INC.
Account Maintenance
Per Shareholder Account Per Annum $9.00
All of the basic support functions involved with servicing shareholder accounts,
including:
Maintenance of all shareholder records, including the registration,
address, tax identification number, certificate numbers, shares and
dates of issue and specific geographical and statistical coding.
Preparation, enclosing and mailing to shareholders of record:
Three quarterly or interim reports
The annual report or financial statement
Annual proxy, notice of meeting and statement
One stockholders list
Normal activity for:
Shareholder changes of address
Recording and maintenance of stop transfers.
Processing of irregular and legal transfers
Processing of bonds and/or affidavits to replace lost or stolen certificates
Maintenance of social security and tax identification numbers
Certificate Insurance $1.25 per certificate
Include all the basic support functions involved with establishing a new
shareholder account, including:
Preparation and signing of the new certificates
Inventory control
Posting debits and credits to shareholder
records
Preparation and mailing of one set of transfer sheets
Dividend Services
Calculation, preparation and mailing of four quarterly checks relative to
dividend payments, establishing and funding the dividend account, paying and
reconciling the paid checks. This includes filing the required tax reports of
Form 1099 with the Internal Revenue Services.
Dividend Reinvestment
If you have established a dividend reinvestment plan your fees are:
Per Dividend Reinvestment $.75
Per Cash Infusion $.75
Proxy Service
Receiving and inspecting proxies, recording daily shares votes, tabulating
proxies received and providing a letter showing shares voted by proposal
together with an affidavit of mailing and preparation of list of voted
shareholders. State Street will also act as Teller or Inspector of Election at
your shareholders meeting for a nominal fee:
One person per day plus out-of-pockets $ 100.00
Registrar Services
For the registration of 500 certificates, or any part thereof, per
year
Annual Fee $1,200.00
For the registration of additional certificates in excess of 500 in
any one year
Per certificate $ .15
Other Services
Prices for the following are available upon request:
Reports
A wide range of optional analytical reports which are based on your
requirements are available.
Miscellaneous
Services such as payment of stock dividends or splits, maintenance of
mailing lists, taxpayer ID solicitation and verification, state and
foreign tax information, special processing of restricted securities,
shareholder search for lost shareholders and abandoned property reports
are available.
Other Charges
All out-of-pocket expenses such as postage, telephone, microfiche, New York
office deliveries, stationery, supplies, legal fees, insurance and delivery
charges will be billed at cost. Any expenses incurred in traveling to and from
annual meetings or closings will also be billed at cost. In the event of
termination, an appropriate termination fee shall be imposed.
HYPERION TOTAL RETURN FUND, INC. STATE STREET BANK & TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President Title: Vice President
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Date: August __, 1989 Date:
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ADDENDUM TO THE
AGREEMENT FOR
STOCK TRANSFER SERVICES
between
HYPERION TOTAL RETURN FUND, INC.
and
STATE STREET BANK AND TRUST COMPANY
This Addendum allows the inclusion of the Automated Clearing House
Dividend Disbursement Services listed below into the Agreement for Stock
Transfer Services ("The Agreement") between Hyperion Total Return Fund, Inc. and
State Street Bank and Trust Company ("State Street Bank").
A. TERM
The effective date of this Addendum shall be 12/1/96.
B. FEE FOR AUTOMATED CLEARING HOUSE DIVIDEND DISBURSEMENT SERVICES
For the ACH services as stated in Section C provided by State Street
Bank under this Agreement, fees will be as follows:
================================== ===================================
$500.00 Project Management Fee
$ 1.00 Per Account Enrollment Fee
$125.00 On-going Monthly Maintenance Fee
================================== ===================================
C. AUTOMATED CLEARING HOUSE DIVIDEND DISBURSEMENT SERVICES (ACH)
Initial Shareholder Solicitation:
1. Preparing and mailing Introductory material, Authorization Form and Return
Envelope to all Shareholders exclusive of Dividend Reinvestment Plan
participants (if applicable).
2. Receipt and processing of authorization forms.
3. Reviewing cards for accuracy and completeness and identifying cards with
incomplete information.
4. Performing a pre-note test to verify accuracy of financial institution
information provided by the shareholder, to reduce rejections occurring
during the dividend payment.
5. Correcting of authorization form rejections received during pre-note test
process.
6. Coding accounts for ACH.
7. Calculating on a monthly basis the share breakdown for ACH vs. other
dividend payments and notifying Company of funding amount for all dividend
funding due (including ACH transmissions).
8. Crediting ACH designated bank accounts automatically on dividend payable
date
9. Mailing confirmation cards of dividend deposit to ACH shareholders, if
requested by Company.
10. Identifying rejected ACH transmissions; mailing dividend checks and
explanation letter to shareholders with rejected transmissions.
11. Responding to shareholder inquiries concerning the ACH program.
12. Ongoing maintenance of ACH participant file; including coding new ACH
accounts.
13. Processing termination requests as requested by shareholders.
D. ITEMS NOT COVERED
All out-of-pocket expenses such as telephone line charges associated
with toll free telephone calls, overprinting of confirmation cards,
stationery, facsimile charges, cost of disposal of excess material,
etc. will be billed as incurred.
All services not specifically covered under this Agreement will be
billed by appraisal, as applicable.
E. FUNDING
Dividend funds to cover ACII payments must be racrivcd by State Street
Bank one business day prior to the dividend payable date. All remaining
dividend funding due must be received by State Street Bank in
accordance with dividend funding schedule as outlined by State Street
Bank.
F. OTHER TERMS AND CONDITIONS
All other terms and conditions as set forth in the Agreement for Stock
Transfer Services will apply to this Addendum.
G. ASSIGNABILITY
State Street Bank may, without further consent on the part of the
Company, subcontract for the performance hereof with (i) Boston
EquiServe, L.P., a Delaware limited partnership which is duly
registered as a transfer agent pursuant to Section 17A(c)(2) of the
Securities Exchange Act of 1934 ("Section 17A(c)(2)"), (ii) a
subsidiary duly registered as a transfer agent pursuant to Section
17A(c)(2), (iii) an affiliate, or (iv) other subcontractors, which
consent will not be unreasonably withheld; provided, however, that
State Street Bank shall be as fully responsible to the Company for the
acts or omissions of any subcontractor as it is for its own acts or
omissions.
H. CONTRACT ACCEPTANCE
In witness whereof, the parties hereto have caused this Agreement to be
executed by their respective officers, hereunto duly agreed and
authorized, as of the effective date of this Agreement.
STATE STREET BANK AND TRUST COMPANY HYPERION TOTAL RETURN
FUND, INC.
By: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Administration Manager Title: Treasurer
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Date: Date: 11/13/96
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