AMENDMENT
TO
CUSTODIAN CONTRACT
This amendment to the Custodian Contract (this "Amendment") is made as of
March 7, 2000 by and between EQUITABLE REAL ESTATE HYPERION HIGH YIELD
COMMERCIAL MORTGAGE FUND, INC., a corporation organized and existing under the
laws of the State of Maryland (the "Fund") and STATE STREET BANK AND TRUST
COMPANY, a trust company organized and existing under the laws of the
Commonwealth of Massachusetts (the "Custodian").
WITNESSETH:
WHEREAS, the Fund and the Custodian are party to a Custodian Contract dated
as of October 31, 1995 (as may be amended from time to time, the "Agreement");
and
WHEREAS, the name of the Fund was changed to "Lend Lease Hyperion
High-Yield CMBS Fund, Inc." on or about March 3, 2000 pursuant to an amendment
to the Articles of Incorporation of the Fund and the Fund and the Custodian wish
to amend the Agreement to reflect the change in the name of the Fund.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration the receipt and
adequacy of which is hereby acknowledged, the parties hereto do hereby agree to
amend the Agreement as follows:
1. The Agreement is hereby amended by deleting all references to "Equitable
Real Estate Hyperion High Yield Commercial Mortgage Fund, Inc." and inserting in
place thereof "Lend Lease Hyperion High-Yield CMBS Fund, Inc."
2. Except as otherwise expressly amended by the terms of this Agreement,
the Agreement shall remain in full force and effect as originally executed.
3. This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
4. This Amendment shall be governed by and construed in accordance with the
laws of The Commonwealth of Massachusetts.
930448.1
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as
of the day and year first written above.
LEND LEASE HYPERION HIGH-YIELD CMBS
FUND, INC.
FORMERLY KNOWN AS:
EQUITABLE REAL ESTATE HYPERION HIGH
YIELD COMMERCIAL MORTGAGE FUND, INC.
By: -----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Secretary
STATE STREET BANK AND TRUST COMPANY
By: -----------------------------------
Xxxxxx X. Xxxxx, Vice Chairman
-2-
930448.1
Table of Contents
-----------------
Section 1. Appointment of Agent..........................................1
Section 2. Standard Services..............................................2
Section 3. Fees and Expenses..............................................3
Section 4. Representations and Warranties of the Bank....................5
Section 5. Representations and Warranties of the Company..................6
Section 6. Indemnification................................................7
Section 7. Standard of Care...............................................8
Section 8. Responsibilities of the Bank...................................8
Section 9. Covenants of the Company and the Bank..........................9
Section 10. Data Access and Proprietary Information........................10
Section 11. Term and Termination...........................................12
Section 12. Assignment.....................................................13
Section 13. Unaffiliated Third Parties.....................................13
Section 14. Notices........................................................13
Section 15. Successors.....................................................14
Section 16. Amendment......................................................14
Section 17. Severability...................................................14
Section 18. Governing Law..................................................14
Section 19. Force Majeure..................................................14
Section 20. Consequential Damages..........................................15
Section 21. Descriptive Headings...........................................15
Section 22. Third Party Beneficiaries......................................15
i
Section 23. Survival.......................................................15
Section 24. Merger of Agreement............................................15
Section 25. Counterparts...................................................16
ii
TRANSFER AGENCY AND STOCK TRANSFER SERVICES AGREEMENT
This Transfer Agency and Stock Transfer Services Agreement (the
"Agreement"), dated as of March 13, 2000 is between Lend Lease Hyperion High
Yield CMBS Fund, Inc. (the "Company") and State Street Bank and Trust Company, a
Massachusetts trust company (the "Bank").
WHEREAS, the Board of Directors of the Company has approved and
authorized the appointment of the Bank as transfer agent and registrar and
exchange agent.
WHEREAS, the Bank desires to accept such appointment and perform the
services related to such appointment;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereby agree as follows:
Section 1 Appointment of Agent
---------------------
1.01 The Company hereby appoints the Bank to act as sole transfer agent
and registrar for the common stock of the Company (the "Shares") in accordance
with the terms and conditions hereof, and the Bank hereby accepts such
appointment.
1.02 In connection with the appointment of the Bank as transfer agent
and registrar for the Company, the Company will file the following documents
with the Bank:
(a) Copies of Registration Statements and amendments thereto, filed
with the Securities and Exchange Commission;
(b) Specimens of all forms of outstanding stock certificates, in the
forms approved by the Board of Directors of the Company, with a certificate of
the Secretary of the Company as to such approval;
(c) Specimens of the signatures of the officers of the Company
authorized to sign stock certificates and individuals authorized to sign written
instructions and requests; and
1
(d) An opinion of counsel for the Company with respect to:
(i) The Company's organization and existence under the laws of
its state of organization;
(ii) The status of all shares of stock of the Company covered by
the appointment under the Securities Act of 1933, as
amended, and any other applicable federal or state statute;
and
(iii) That all issued shares are, and all unissued shares will be,
when issued, validly issued, fully paid and nonassessable.
Section 2 Standard Services
-----------------
2.01 The Bank will perform the following services:
In accordance with the procedures established from time to time by
agreement between the Company and the Bank, the Bank shall:
(a) issue and record the appropriate number of Shares as
authorized and hold such shares in the appropriate shareholder
("Shareholder") account;
(b) effect transfers of Shares by the registered owners
thereof upon receipt of appropriate documentation;
(c) prepare and transmit payments for dividends and
distributions declared by the Company, provided good funds for said
dividends or distributions are received by the Bank prior to the
scheduled mailing date for said dividends or distributions;
(d) act as agent for Shareholders pursuant to the dividend
reinvestment plan, cash purchase plan, and other investment programs as
amended from time to time in accordance with the terms of the
agreements relating thereto to which the Bank is or will be a party;
and
2
(e) issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon receipt by the Bank
of an open penalty surety bond satisfactory to it and holding it and
the Company harmless, absent notice to the Company and the Bank that
such certificates have been acquired by a bona fide purchaser. The
Bank, at its option, may issue replacement certificates in place of
mutilated stock certificates upon presentation thereof without such
indemnity.
2.02 The Bank shall perform all the customary services of a transfer
agent, dividend disbursing agent, agent of dividend reinvestment plan, cash
purchase plan and other investment programs as described in Section 2.01
consistent with those requirements in effect as of the date of this Agreement.
The detailed services and definition, frequency, limitations and associated
costs (if any) are set out in the attached fee and service schedule ("Fee and
Service Schedule").
2.03 The Bank may provide such additional services to or on behalf of
the Company (e.g., escheatment services) as may be agreed upon in writing
between the Company and the Bank.
Section 3 Fees and Expenses
-----------------
3.01 Fees.
-----
(a) The Company agrees to pay the Bank fees for the services performed
pursuant to this Agreement as set forth in the Fee and Service Schedule attached
hereto, for the initial term of the Agreement as shall also be set forth in the
Fee and Service Schedule (hereinafter, the "Initial Term").
(b) After the Initial Term of the Agreement, providing that service mix
and volumes remain constant, the fees listed in the Fee and Service Schedule
shall be increased by the accumulated change in the National Employment Cost
Index for Service Producing Industries (Finance, Insurance, Real Estate) for the
preceding years of the contract, as published by the Bureau of Labor Statistics
of the United States Department of Labor. Fees will be increased on this basis
on each successive contract anniversary thereafter.
(c) Notwithstanding Section 3.01(b) above, fees, and the out-of-pocket
expenses and advances identified under Section 3.02 below, may be changed from
time to time as agreed upon in writing between the Bank and the Company.
3
3.02 Out of Pocket Expenses.
-----------------------
(a) In addition to the fees paid under Section 3.01 above, the Company
agrees to reimburse the Bank for out-of-pocket expenses, including, but not
limited to, check stock, stationery, envelopes, confirmation production,
postage, forms, insurance, telephone usage, facsimile charges, microfilm,
microfiche, printing of proxies, expenses incurred attending annual meeting,
records storage or advances incurred by the Bank for the items set out in the
Fee and Service Schedule attached hereto. In addition, any other expenses
incurred by the Bank at the request or with the consent of the Company will be
reimbursed by the Company.
(b) All out-of-pocket expenses described in Section 3.02(a) above, will
be billed as incurred subject to Section 3.03(b), provided, however, that
payment for postage expenses in excess of $5,000 must be received by the Bank in
collected funds by 12:00 p.m. Eastern time on the scheduled mailing date.
(c) The Bank reserves the right to receive compensation from vendors
for services rendered to vendors which relate to services to be provided under
this Agreement, to the extent such services rendered reduce the overall costs of
the services.
3.03 Payment of Fees and Expenses.
-----------------------------
(a) The Company agrees to pay all fees and reimbursable expenses within
thirty (30) days following the receipt of the respective billing notice.
Interest charges will accrue on unpaid balances outstanding for more than
forty-five (45) days.
3.04 Services Required by Legislation.
---------------------------------
Services required by legislation or regulatory mandate that become
effective after the effective date of this Agreement shall not be part of the
standard services, and shall be billed by appraisal.
4
3.05 Overtime Charges.
-----------------
Overtime charges will be assessed in the event of a late delivery to
the Bank of Company material for mailings to shareholders unless the mail date
is rescheduled. Such material includes, but is not limited to, proxy statements,
quarterly and annual reports, dividend enclosures and news releases.
Section 4 Representations and Warranties of the Bank
-------------------------------------------
The Bank represents and warrants to the Company that:
4.01 It is a trust company duly organized and existing in good standing
under the laws of The Commonwealth of Massachusetts;
4.02 It is duly qualified to carry on its business in The Commonwealth
of Massachusetts;
4.03 It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform this Agreement;
4.04 All requisite corporate proceedings have been taken to authorize
it to enter into and perform this Agreement; and
4.05 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
Section 5 Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to the Bank that:
5.01 It is a corporation duly organized and existing and in good
standing under the laws of Maryland;
5.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
5
5.03 All corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable law have been taken to authorize it to
enter into and perform this Agreement; and
5.04 A registration statement under the Securities Act of 1933, as
amended (the "1933 Act") has been filed and is currently effective, or will be
effective prior to the sale of any Shares, and will remain so effective, and all
appropriate state securities law filings have been made with respect to all the
Shares of the Company being offered for sale except for any Shares which are
offered in a transaction or series of transactions which are exempt from the
registration requirements of the 1933 Act and state securities laws; information
to the contrary will result in immediate notification to the Bank.
Section 6 Indemnification
---------------
6.01 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 and expenses, 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 such actions
are taken in good faith and without negligence or willful misconduct;
(b) The Company's lack of good faith, negligence or willful
misconduct or the breach of any representation or warranty of the
Company hereunder;
(c) The reliance 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, and (ii) have been prepared and/or
maintained by the Company or any other person or firm on behalf of the
Company. Such other person or firm shall include any former transfer
agent or former registrar, or co-transfer agent or co-registrar or any
current registrar where the Bank is not the current registrar;
(d) The reliance on, or the carrying out by the Bank or its
agents or subcontractors of any instructions or requests of the
Company's representatives; and
6
(e) The offer or sale of Shares in violation of any federal or
state securities laws requiring that such shares be registered or in
violation of any stop order or other determination or ruling by any
federal or state agency with respect to the offer or sale of such
Shares; and
(f) The negotiations and processing of checks, including
checks made payable to prospective or existing Shareholders which are
tendered to the Bank for the purchase of Shares (commonly known as
"third party checks").
6.02 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 and 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 advice or opinion of such counsel.
The Bank, its agents and subcontractors shall be protected and indemnified in
acting upon any paper or document 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 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 officers of the
Company, and the proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar.
6.03 In order that the indemnification provisions contained in this
Section 6 shall apply, upon the assertion of a claim for which the Company may
be required to indemnify the Bank, the Bank shall promptly notify the Company of
such assertion, and shall keep the Company advised with respect to all
developments concerning such claim. The Company shall have the option to
participate with the Bank in the defense of such claim or to defend against said
claim in its own name or the name of the Bank. The Bank shall in no case confess
any claim or make any compromise in any case in which the Company may be
required to indemnify it except with the Company's prior written consent.
7
Section 7 Standard of Care
----------------
The Bank shall at all times act in good faith and agrees to use its
best efforts within reasonable time 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 negligence, bad faith or willful misconduct or that of its employees.
Section 8 Responsibilities of the Bank
----------------------------
The Bank undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of which the Company,
by its acceptance hereof, shall be bound:
8.01 Whenever in the performance of its duties hereunder the Bank shall
deem it necessary or desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action hereunder, such fact or
matter may be deemed to be conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
the Company and delivered to the Bank. Such certificate shall be full
authorization to the Bank for any action taken or suffered in good faith by it
under the provisions of this Agreement in reliance upon such certificate.
8.02 The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Bank for the carrying out or performing by the Bank of the provisions of
this Agreement.
8.03 The Bank, any of its affiliates or subsidiaries, and any
stockholder, director, officer or employee of the Bank may buy, sell or deal in
the securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not
appointed as agent under this Agreement. Nothing herein shall preclude the Bank
from acting in any other capacity for the Company or for any other legal entity.
8
8.04 No provision of this Agreement shall require the Bank to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of its rights if it shall
believe in good faith that repayment of such funds or adequate indemnification
against such risk or liability is not reasonably assured to it.
Section 9 Covenants of the Company and the Bank
-------------------------------------
9.01 The Company shall furnish to the Bank the following:
(a) A copy of the Articles of Incorporation and By-Laws of the
Company;
(b) Copies of all material amendments to its Articles of
Incorporation or Bylaws made after the date of this Agreement, promptly
after such amendments are made; and
(c) A certificate of the Company as to the Shares authorized,
issued and outstanding, as well as a description of all reserves of
unissued Shares relating to the exercise of options, warrants or a
conversion of debentures or otherwise.
9.02 The Bank hereby agrees to establish and maintain facilities and
procedures reasonably acceptable to the Company for the safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any,
and for the preparation, use, and recordkeeping of such certificates, forms and
devices.
9.03 The Bank shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. The Bank
agrees that all such records prepared or maintained by it relating to the
services performed hereunder are the property of the Company and will be
preserved, maintained and made available in accordance with the requirements of
law, and will be surrendered promptly to the Company on and in accordance with
its request.
9.04 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.
9
9.05 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Company, other than requests for
records of shareholders pursuant to standard subpoenas from state or federal
government authorities (e.g., in divorce or criminal actions), the Bank will
endeavor to notify the Company and to secure instructions from an authorized
officer of the Company as to such inspection. The Bank expressly reserves the
right, however, to exhibit the Shareholder records to any person whenever it is
advised by counsel that it may be held liable for the failure to exhibit the
Shareholder records to such person.
Section 10 Data Access and Proprietary Information
---------------------------------------
10.01 The Company acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques, and documentation
manuals furnished to the Company by the Bank as part of the Company's ability to
access certain Company related data ("Customer Data") maintained by the Bank on
data bases under the control and ownership of the Bank or other third party
("Data Access Services") constitute copyrighted, trade secret, or other
proprietary information (collectively, "Proprietary Information") of substantial
value to the Bank or other third party. In no event shall Proprietary
Information be deemed Customer Data. The Company agrees to 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 may
be provided hereunder. Without limiting the foregoing, the Company agrees for
itself and its employees and agents:
(a) to access Customer Data solely from locations as may be
designated in writing by the Bank and solely in accordance with the
Bank's applicable user documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any
portion of the Proprietary Information, and if such access is
inadvertently obtained, to inform the Bank in a timely manner of such
fact and dispose of such information in accordance with the Bank's
instructions;
(d) to refrain from causing or allowing the data acquired
hereunder from being retransmitted to any other computer facility or
other location, except with the prior written consent of the Bank;
10
(e) that the Company shall have access only to those
authorized transactions agreed upon by the parties; and
(f) to honor all 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, under federal copyright law and under other
federal or state law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 10.
10.02 If the Company notifies the Bank that any of the Data Access
Services do not operate in material compliance with the most recently issued
user documentation for such services, the Bank shall endeavor in a timely manner
to correct such failure. Organizations from which the Bank may obtain certain
data included in the Data Access Services are solely responsible for the
contents of such data and the Company agrees to make no claim against the Bank
arising out of the contents of such third party data, including, but not limited
to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER PROGRAMS AND
SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED ON AN AS IS,
AS AVAILABLE BASIS. THE BANK EXPRESSLY DISCLAIMS ALL WARRANTIES EXCEPT THOSE
EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.03 If the transactions available to the Company 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 instructions without undertaking any
further inquiry as long as such instructions are undertaken in conformity with
security procedures established by the Bank from time to time.
Section 11 Term and Termination
--------------------
11.01 As noted in Section 3.01(a) above, the Initial Term of this
Agreement shall be set forth in the Fee and Service Schedule attached hereto.
After the Initial Term, this Agreement shall be self-renewing.
11
11.02 Either party may terminate this Agreement after written notice to
the other if one party has materially breached its obligation under this
Agreement, and the breaching party has failed to cure such material breach
within thirty (30) calendar days of receipt of such notice.
11.03 Should the Company exercise its right to terminate this Agreement
for reasons other than a material breach by the Bank as provided in Section
11.02 above, the Company shall pay the Bank for all reasonable out-of-pocket
expenses associated with the movement of records and material. In addition, the
Bank will charge the Company a conversion fee of 25% of the fees billed during
the preceding twelve (12) months (with a minimum charge of $3,750.00). The
charge will cover the coordination of the Bank's conversion process and the cost
of transferring the Company's records to a successor Transfer Agent or to the
Company, as directed by the Company, and the Bank will perform its services in
assisting with the transfer of records in a diligent and professional manner.
11.04 This Agreement may be terminated by either party upon ninety (90)
days written notice to the other.
Section 12 Assignment
----------
12.01 Except as provided in Section 12.03 below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
12.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
12.03 The Bank may, without further consent on the part of the Company,
(i) subcontract for the performance hereof with Boston EquiServe Limited
Partnership, 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, as amended, or (ii) subcontract with other subcontractors for telephone
and mailing services as may be required from time to time; provided, however,
that the Bank shall be as fully responsible to the Company for the acts and
omissions of any subcontractor as it is for its own acts and omissions.
12
Section 13 Unaffiliated Third Parties
--------------------------
Nothing herein shall impose any duty upon the Bank in connection with
or make the Bank liable for the actions or omissions to act of unaffiliated
third parties such as, by way of example and not limitation, Airborne Services,
the U.S. mails and telecommunication companies, provided, if the Bank selected
such company, the Bank shall have exercised due care in selecting the same.
Section 14 Notices
-------
Any notice or communication by the Bank or the Company to the other is
duly given if in writing and delivered in person or mailed by first class mail,
postage prepaid, telex, telecopier or overnight air courier guaranteeing next
day delivery, to the other's address:
If to Lend Lease Hyperion High-Yield CMBS Fund, Inc.
Lend Lease Hyperion Capital Advisors, L.L.C.
Xxx Xxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Compliance Officer
If to the Bank:
State Street Bank and Trust Company
c/o Boston EquiServe Limited Partnership
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: President
The Bank and the Company may, by notice to the other, designate
additional or different addresses for subsequent notices or communications.
Section 15 Successors
----------
13
All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Bank shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 16 Amendment
---------
This Agreement may be amended or modified by a written amendment
executed by both parties hereto and authorized or approved by a resolution of
the Board of Directors of the Company.
Section 17 Severability
------------
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section 18 Governing Law
-------------
This Agreement shall be governed by the laws of The Commonwealth of
Massachusetts.
Section 19 Force Majeure
--------------
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 party resulting from such failure to perform or otherwise from such
causes.
Section 20 Consequential Damages
---------------------
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or any consequential
damages arising out of any act or failure to act hereunder.
14
Section 21 Descriptive Headings
--------------------
Descriptive headings of the several sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 22 Third Party Beneficiaries
-------------------------
The provisions of this Agreement are intended to benefit only the Bank
and the Company and their respective permitted successors and assigns. No rights
shall be granted to any other person by virtue of this Agreement, and there are
no third party beneficiaries hereof.
Section 23 Survival
--------
All provisions regarding indemnification, warranty, liability and
limits thereon, and confidentiality and protection of proprietary rights and
trade secrets shall survive the termination of this Agreement.
Section 24 Merger of Agreement
-------------------
This agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
15
Section 25 Counterparts
------------
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by one of its officers thereunto duly authorized, all
as of the date first written above.
LEND LEASE HYPERION HIGH-YIELD CMBS FUND, INC.
By:
---------------------
Name: Xxxxxxxx X. Xxx
-------------------
Title: President
------------------
STATE STREET BANK AND TRUST COMPANY
By:
---------------------
Name: Xxxxxxx X. Xxxxx
-------------------
Title: Vice President
------------------
00
XXXXX XXXXXX BANK AND TRUST COMPANY
DOMESTIC CUSTODY AND ACCOUNTING FEE SCHEDULE
LEND LEASE HYPERION HIGH-YIELD CMBS FUND, INC.
I. CUSTODY, PORTFOLIO AND FUND ACCOUNTING
Custody: Maintain custody of fund assets. Settle portfolio purchases and
sales. Report buy and sell fails. Determine and collect portfolio income.
Make cash disbursements and report cash transactions. Monitor corporate
actions. Report portfolio positions.
Portfolio and Fund Accounting: Maintain investment ledgers, provide
selected portfolio transactions, position and income reports. Maintain
general ledger and capital stock accounts. Prepare daily trial balance.
Calculate net asset value daily. Provide selected general ledger reports.
Securities yield or market value quotations will be provided to State
Street via State Street's Automated Pricing System (see Section V) or by
the fund.
The fee shown below is an annual charge, billed and payable monthly, based
on average monthly net assets.
ANNUAL FEES PER PORTFOLIO
-------------------------
Custody, Portfolio
Fund Net Assets and Fund Accounting
--------------- -------------------
First $20 Million 1/15 of 1%
Next $80 Million 1/30 of 1%
Excess 1/100 of 1%
Minimum Monthly Charges $3,000
II. PORTFOLIO TRANSACTIONS
State Street Bank Repos $7.00
DTC or Fed Book Entry $12.00
New York Physical Settlements $25.00
Maturity Collections $8.00
PTC Purchase, Sale, Deposit or Withdrawal $20.00
Per paydown $2.00
All Other Trades $25.00
930512.1
III. FUTURES AND OPTIONS
Option charge for each option written or closing contract,
per issue, per broker $25.00
Option expiration or exercised charge, per issue, per broker $15.00
Futures transactions - no security movement $8.00
IV. HOLDINGS CHARGE
For each issue maintained - monthly charge $5.00
V. NAVIGATOR AUTOMATED PRICING
Monthly Base Charge $175.00
Monthly Quote Charge:
Municipal Bonds via Xxxxx/S&P or Xxxxxx Data $16.00
Corporate, Municipal, Convertible, Government Bond
and Adjustable Rate Preferred Stocks Via IDSI $13.00
Government, Corporate Bonds via Xxxxx/S&P or
Xxxxxx $11.00
Government, Corporate and Convertible Bonds via
Xxxxxxx Xxxxx $11.00
Foreign Bonds via Extel $10.00
Options, Futures and Private Placements $6.00
Listed Equities (including International) and OTC Equities $6.00
For billing purposes, the monthly quote charge will be based on the average
number of positions in the portfolio at month end.
VI. SPECIAL SERVICES
Fees for activities of a non-recurring nature such as fund consolidations
or reorganizations, extraordinary security shipments and the preparation of
special reports will be subject to negotiation. Fees for SEC yield
calculation, fund administration activities, self directed securities
lending transactions, XxXxXx financial reporting, multiple class and
core/feeder accounting, and other special items will be negotiated
separately.
-2-
930512.1
VII. OUT-OF-POCKET EXPENSES
A billing for the recovery of applicable out-of-pocket expenses will be
made as of the end of each month. Out-of-pocket expenses include, but are
not limited to, the following:
- Telephone - Transfer Fees
- Wire Charges ($5.25 in and $5 out) - Sub-custodian Charges
- Postage and Insurance - Price Waterhouse Audit Letter
- Courier Service - Federal Reserve Fee for Return Check items
- Duplicating over $2,500 ($4.25 each)
- Legal Fees - GNMA Transfer ($15 each)
- Supplies Related to Fund Records - PTC Deposit/Withdrawal for same day
- Rush Transfer ($8 each) turnaround ($50 each)
- Items held in Street name over
record date at the request of traders
$50 each)
VIII. PAYMENT
The above fees will be charged against the fund's custodian checking
account five (5) days after the invoice is mailed to the fund's offices.
LEND LEASE HYPERION HIGH-YIELD CMBS STATE STREET BANK & TRUST COMPANY
FUND, INC.
By By
---------------------------- -----------------------------
Title Title
---------------------------- -----------------------------
Date Date
---------------------------- -----------------------------
-3-
930512.1
STATE STREET BANK AND TRUST COMPANY
Transfer Agent and Register Services
Fee Agreement for
EQUITABLE REAL ESTATE HYPERION HIGH-YIELD
COMMERCIAL MORTGAGE FUND, INC.
ONGOING TRANSFER AGENT FEES
---------------------------
$9.00 per shareholder account per annum. Includes the issuance and registration
of the first 2,000 credit certificates in a calendar year. Excess credits beyond
2,000 to be billed at $1.25 each within a calendar year.
For each dividend reinvestment per participant $.75
For each optional cash infusion $.75
TRANSFER AGENT SERVICES
-----------------------
ACCOUNT MAINTENANCE SERVICES
----------------------------
o Establishing new accounts
o Preparation and mailing of W-9 solicitation to new accounts without
T.I.N.s.
o Address changes
o Processing T.I.N. changes
o Processing routine and non-routine transfers of ownership
o Issuance of credit certificates (see limits)
o Posting debit and credit transactions
o Providing a daily transfer journal of ownership changes
o Responding to written shareholder communications
o Responding to shareholder telephone inquiries; toll-free number
o Placing and releasing stop transfers
o Replacing lost certificates
930945.1
o Registration of credit certificates (see limits)
DIVIDEND DISBURSEMENT SERVICES
------------------------------
o Generate and mail twelve dividend checks with one enclosure
o Replace lost dividend checks
o Processing of backup withholding and remittance
o Preparation and filing of Federal Tax Forms 1099 and 1042
o Preparation and filing of State Tax information as directed
o Processing of non-resident alien withholding and remittance
o Preparation of escheatment information (shares and dividends)
DIVIDEND REINVESTMENT SERVICES PROVIDED
---------------------------------------
o Processing optional cash investments and acknowledging same
o The reinvestment of dividend proceeds for participants
o Participant withdrawal or sell requests
o Preparation, mailing and filing of Federal Tax Form 1099B for sales
o Preparation and mailing of monthly reinvestment statements
ANNUAL MEETING SERVICES
-----------------------
o Coordination of mailing of proxies, proxy statement, annual report and
business reply envelope (out-of-pocket expenses such as typesetting of
proxy card, envelopes, and postage will be billed as incurred)
o Providing one set of labels of banks, brokers and nominees for broker
search
o Providing record date list
o Tabulation of returned proxies
o Daily reporting of tabulation results
o Interface support during solicitation effort
o Providing one inspector of election at annual meeting (out-of-pocket
expenses billed at cost as incurred)
o Providing an annual meeting voted list
930945.1
ADDRESSING AND MAILING SERVICES
-------------------------------
o Providing for the mailing of three (3) quarterly reports
o Addressing and mailing new shareholder welcome materials on a biweekly
basis or as agreed
INFORMATION SERVICES PROVIDED
-----------------------------
o One complete statistical report per calendar year
-- shareholders by state
-- shareholders by classification code
-- shareholders by share grouping
TERMS OF FEE AGREEMENT
----------------------
o Minimum $1,000 per month
o Escalation Clause - The per account annual fee in upon renewal shall be
equal to the current fee increased by the lesser of (i) 6% or, (ii) the
percentage increase in the U.S. Department of Labor national index of "Cost
of Services Less Rent" for the period current at renewal.
MISCELLANEOUS
-------------
o All out-of-pocket expenses such as postage, stationery, etc. will be billed
as incurred.
ADDITIONAL SERVICES
-------------------
o Services over and above this Fee Schedule will be invoiced in accordance
with our current Schedule of Services or priced by appraisal.
EQUITABLE REAL ESTATE HYPERION
HIGH-YIELD COMMERCIAL MORTGAGE
FUND, INC. STATE STREET BANK AND TRUST CO.
By: By:
------------------------------ ----------------------------
Title: Title:
--------------------------- -------------------------
Date: Date:
---------------------------- --------------------------
930945.1
