EXHIBIT 2(k)
REGISTRAR, TRANSFER AGENCY AND
DIVIDEND PAYING AGENCY AGREEMENT
between
Corporate High Yield Fund III, Inc.
and
State Street Bank and Trust Company
TABLE OF CONTENTS
-----------------
Article 1. Terms of Appointment; Duties of the Bank....................... 3
Article 2. Fees and Expenses.............................................. 5
Article 3. Representations and Warranties of the Bank..................... 5
Article 4. Representations and Warranties of the Fund..................... 6
Article 5. Confidentiality, Data Access and Proprietary Information....... 6
Article 6. Liabilities/Indemnification.................................... 8
Article 7. Standard of Care............................................... 9
Article 8. Covenants of the Fund and the Bank............................. 10
Article 9. Termination of Agreement....................................... 11
Article 10. Assignment..................................................... 11
Article 11. Amendment...................................................... 11
Article 12. Law to Apply................................................... 12
Article 13. Force Majeure.................................................. 12
Article 14. Consequential Damages.......................................... 12
Article 15. Merger of Agreement............................................ 12
Article 16. Survival....................................................... 12
Article 17. Severability................................................... 12
Article 18. Counterparts................................................... 13
REGISTRAR, TRANSFER AGENCY AND DIVIDEND PAYING AGENCY AGREEMENT
---------------------------------------------------------------
AGREEMENT made as of , by and between Corporate High
----------------
Yield Fund III, Inc. 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
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its registrar,
transfer agent, dividend paying agent and agent in connection with certain other
activities to be agreed to by the parties 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 paying agent and agent in
connection with any distribution reinvestment and Cash Purchase Plan 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 Stockholder 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;
(iv) Prepare and transmit payments in connection with the
redemption of shares or the payment of liquidation proceeds pursuant to
instructions by the Fund;
(v) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon receipt by the Bank of
indemnification satisfactory to the Bank and protecting the Bank and the Fund,
and the Bank at its option, may issue replacement certificates in place of
mutilated stock certificates upon presentation thereof and without such
indemnity;
(vi) Act as agent for Stockholders pursuant to the distribution
reinvestment and cash purchase plan, as amended from time to time.
(b) In addition to and neither in lieu nor in contravention 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 and dividend paying
agent and agent of the distribution reinvestment and Cash Purchase Plan as
described in Article I consistent with those requirements in effect as of the
date of this Agreement. The detailed definition, frequency, limitations and
associated costs (if any) set out in the attached fee schedule, include but are
not limited to: maintaining all Stockholder accounts, preparing Stockholder
meeting lists, mailing proxies, receiving and tabulating proxies and mailing
Stockholder reports to current Stockholders 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
Stockholders, preparing and mailing confirmation forms and statements of account
to Stockholders for all confirmable transactions in Stockholder accounts and
providing Stockholder Account information.
(c) The Bank shall provide additional services on behalf of the
Fund (e.g., escheatment and rights offering services) which may be agreed upon
in writing between the Fund and the Bank.
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 out-of-pocket expenses, including but not
limited to confirmation production, postage, forms, telephone, microfilm,
microfiche, tabulating proxies, records storage, 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 Stockholder accounts shall be advanced to the Bank by the
Fund 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 Fund 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 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 the State of Maryland.
4.02 It is empowered under applicable laws and by its Articles of
Incorporation, as amended and By-Laws to enter into and perform this Agreement.
4.03 All corporate proceedings required by said Articles of
Incorporation, as amended and By-Laws have been taken to authorize it to enter
into and perform this Agreement.
4.04 It is a closed-end, non-diversified investment company
registered under the Investment Company Act of 1940, as amended.
4.05 At all times required by applicable law with respect to all
shares of the Fund being offered for sale, a registration statement under the
Securities Act of 1933, as amended, will be effective and appropriate state
securities law filings will have been made.
4.06 It shall make all required filings under federal and state
securities laws.
Article 5. Confidentiality, Data Access and Proprietary Information
5.01 The Fund acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques, and other
information furnished to the
Fund by the Bank are provided solely in connection with the services rendered
under this Agreement and constitute copyrighted secrets or proprietary
information of substantial value to the Bank. Such databases, programs, formats,
designs, techniques and other information are collectively referred to below as
"Proprietary Information". The Fund agrees that it shall treat all Proprietary
Information as proprietary to the Bank and further agrees that it shall not
divulge any Proprietary Information to any person or organization except as
expressly permitted hereunder. The Fund agrees for itself and its employees and
agents:
(a) to use such programs and databases (i) solely on the Fund
computers, or (ii) solely from equipment at the locations agreed to
between the Fund and the Bank and (iii) in accordance with the
Bank's applicable user documentation;
(b) to refrain from copying or duplicating in any way (other than
in the normal course of performing processing on the Funds'
computers) any part of any Proprietary Information;
(c) to refrain from obtaining unauthorized access to any programs,
data or other information not owned by the Fund, and if such access
is accidentally obtained, to respect and safeguard the same
Proprietary Information;
(d) to refrain from causing or allowing information transmitted
from the Bank's computer to the Funds' terminal to be retransmitted
to any other computer terminal or other device except as expressly
permitted by the Bank (such permission not to be unreasonably
withheld);
(e) that the Fund shall have access only to those authorized
transactions as agreed to between the Fund and the Bank; and
(f) to honor reasonable written requests made by the Bank to
protect at the Bank's expense the rights of the Bank in Proprietary
Information at common law and under applicable statutes.
5.02 If the transactions available to the Fund include the ability
to originate electronic instructions to the Bank in order to (i) effect the
transfer or movement of cash or
Shares or (ii) transmit Shareholder information or other information, then in
such event the Bank shall be entitled to rely on the validity and authenticity
of such instruction without undertaking any further inquiry as long as such
instruction is undertaken in conformity with security procedures established by
the Bank from time to time.
5.03 The Bank acknowledges that the identities of the Fund's
Stockholders and information maintained by the Bank regarding the Fund's
Stockholders constitute the valuable property of the Fund. The Bank agrees that
if it should come into possession of any list or compilation of the identities
of, or other information about the Fund's Stockholders pursuant to this
Agreement or any other agreement related to services under this Agreement, the
Bank shall hold such information in confidence and refrain from using,
disclosing or distributing such information except as required to perform its
duties under this Agreement or as may be otherwise required by law.
Article 6. Liabilities/Indemnification
6.01 The Bank shall not be responsible for, and the Fund shall
indemnifies 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 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 lack of good faith, negligence or willful misconduct
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, documents or services which (i) are
received by the Bank or its agents or subcontractors, and (ii) have been
prepared, maintained or performed by the Fund or any other person or firm on
behalf of the Fund including but not limited to any previous transfer agent
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.
(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.
6.02 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.
6.03 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 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 of the Fund, and the proper
countersignature of any former transfer agent or former registrar, or of a
co-transfer agent or co-registrar.
6.04 In order that the indemnification provisions contained in this
Article 6 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 or to defend against
said claim in its own name or in the name of the party seeking indemnification.
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 7. Standard of Care
7.01 The Bank shall at all times act in good faith and agrees to
use its best efforts within reasonable limits to insure the accuracy of all
services performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are caused by
its and/or its employee's negligence, bad faith, or willful misconduct.
Article 8. Covenants of the Fund and the Bank
8.01 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 as amended and By-Laws
of the Fund and all amendments thereto.
8.02 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.
8.03 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 and in accordance with its request.
8.04 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.
8.05 In cases of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such
inspection. The Bank reserves the right, however, to exhibit the Shareholder
records to any person whenever it is advised by its counsel that it may be held
liable for the failure to exhibit the Shareholder records to such person.
Article 9. Termination of Agreement
9.01 This Agreement may be terminated by either party upon one
hundred twenty (120) days written notice to the other.
9.02 Should the Fund exercise its right to terminate, all
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 and under review
by Boston EquiServe or a charge equivalent to the average of three (3) month's
fees.
Article 10. Assignment
10.01 Except as provided in Section 10.03 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
10.02 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
10.03 The Bank may, without further consent on the part of the
Fund, subcontract for the performance hereof with (i) Boston EquiServe Limited
Partnership, a Massachusetts limited partnership ("Boston EquiServe"), 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)"), or (ii) a Boston
EquiServe affiliate duly registered as a transfer agent pursuant to Section
17A(c)(2), 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 11. Amendment
11.01 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 12. Law to Apply
12.01 This Agreement shall be construed and the provisions thereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
Article 13. Force Majeure
13.01 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.
Article 14. Consequential Damages
14.01 Neither party to this Agreement shall be liable to the other
party for consequential damages under any provision of this Agreement or for any
consequential damages arising out of any act or failure to act hereunder.
Article 15. Merger of Agreement
15.01 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.
Article 16. Survival
16.01 All provisions regarding indemnification, warranty, liability
and limits thereon, and confidentiality and/or protection of proprietary rights
and trade secrets shall survive the termination of this Agreement.
Article 17. Severability
17.01 If any provision or provisions of this Agreement shall be
held to be invalid, unlawful, or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired.
Article 18. Counterparts
18.01 This Agreement may be executed by the parties hereto on any
number of counterparts, and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed in their names and on their behalf by and through their duly
authorized officers, as of the day and year first above written.
CORPORATE HIGH YIELD FUND III, INC.
By:
-------------------------------------
ATTEST:
-------------------------
State Street Bank and Trust Company
By:
--------------------------------
Vice President
ATTEST:
-------------------------
