EXHIBIT (k)(1)
REGISTRAR,
TRANSFER AGENCY AND SERVICE AGREEMENT
between
THE FIRST AUSTRALIA PRIME INCOME FUND, INC.
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
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Page
Article 1 Terms of Appointment; Duties of the Bank ....................... 1
Article 2 Fees and Expenses .............................................. 2
Article 3 Representations and Warranties of the Bank ..................... 3
Article 4 Representations and Warranties of the Fund ..................... 3
Article 5 Indemnification ................................................ 4
Article 6 Covenants of the Fund and the Bank ............................. 6
Article 7 Termination of Agreement ....................................... 7
Article 8 Assignment ..................................................... 8
Article 9 Amendment ...................................................... 8
Article 10 Massachusetts Law to Apply ..................................... 8
Article 11 Merger of Agreement ............................................ 8
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REGISTRAR, TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the 11th day of April, 1986, by and between THE
FIRST AUSTRALIA PRIME INCOME FUND, INC., a Maryland corporation, having its
principal office and place of business at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, (the "Fund"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
corporation 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 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 of the Fund's Common Stock, $.01 par value (the "Common
Stock"), transfer agent for the authorized and issued shares of Common Stock
("Shares"), dividend disbursing agent and agent for the shareholders of the Fund
(the "Shareholders") in connection with any dividend reinvestment as set out in
the prospectus of the Fund, corresponding to the date of this Agreement (the
"Dividend Reinvestment Plan").
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 shares of the Common Stock from the Fund's
authorized but unissued Common Stock or from shares held
in the Fund's treasury
upon receipt of appropriate instructions and record
the appropriate number of Shares, as authorized by the
Shareholders 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 Plan as amended from time to time in
accordance with the terms of the agreement to be
entered into between the Shareholders anal 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 consistent with those
regulations in effect as at the date of this Agreement as more fully described
in the attached fee schedule, including but 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 for all confirmable
transactions in Shareholder accounts, and providing Shareholder account
information.
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Article 2 Fees and Expenses
2.01. For the performance by the Bank of the provisions of 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 fee 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 or advances incurred by
the Bank for the items set out in the fee schedule attached hereto. In addition,
the Fund agrees to reimburse the Bank any other expenses incurred by the Bank at
the request or with the consent of the Fund.
2.03. The Fund agrees to pay all fees and reimbursable expenses within
five days following the mailing 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 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.
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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, with an authorized capital stock of
70,000,000 shares of Common Stock.
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, non-diversified management 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 will remain effective and appropriate state securities
law filings have been made and will continue to be 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.
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 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.
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(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.
(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 of Common Stock or 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 of Common Stock or 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, 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 (including counsel to the Fund)
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
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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.
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 losses, damages, costs, charges, counsel fees, payments, expenses
or liability 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
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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 shall 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 in 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.
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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 that it may be held
liable for the failure to exhibit the Shareholder records to such person.
6.06. The Fund shall make all required filings under federal and state
securities laws.
Article 7 Termination of Agreement
7.01. This Agreement may be terminated by either party upon one hundred
twenty (120) days written notice to the other.
7.02. 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/or a charge
equivalent to the average of three (3) month's fees.
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)), or (ii) a BFDS subsidiary duly registered as a
transfer
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agent pursuant to Section 17A(c)(1); 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.
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THE FIRST AUSTRALIA PRIME INCOME FUND, INC.
BY: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Assistant Treasurer
ATTEST:
/s/ Xxxxx Xxxxxxx
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Assistant Secretary
STATE STREET BANK AND TRUST COMPANY
BY: /s/ Illegible signature
---------------------------------
Vice President
ATTEST:
/s/ Illegible signature
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Assistant Secretary
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