EXHIBIT (k)(4)
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of , 2004 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and COLUMBIA FLOATING RATE ADVANTAGE FUND, a
Massachusetts business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end, non-diversified
management investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"); and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent and PFPC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
(c) "1940 ACT" has the meaning set forth in the recitals hereof and
includes the rules and regulations of the SEC promulgated thereunder.
(d) "AUTHORIZED PERSON" means any officer of the Fund and any other person
duly authorized by the Fund's Board of Trustees to give Oral
Instructions or Written Instructions on behalf of the Fund and listed
on the Authorized Persons Appendix attached hereto and made a part
hereof or any amendment thereto as may be received by PFPC. An
Authorized Person's scope of authority may be limited by the Fund by
setting forth such limitation in the Authorized Persons Appendix.
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(e) "BOARD OF TRUSTEES" AND "SHAREHOLDERS" shall have the same meanings as
set forth in the Fund's Amended and Restated Agreement and Declaration
of Trust.
(f) "DECLARATION OF TRUST" means the Fund's Amended and Restated Agreement
and Declaration of Trust, as amended from time to time.
(g) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be an
Authorized Person.
(h) "SEC" means the Securities and Exchange Commission.
(i) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act and the 1940 Act.
(j) "SHARES" mean the Fund's shares of beneficial interest, $0.001 par
value per share.
(k) "WRITTEN INSTRUCTIONS" means (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a password
or other authorized identifier. The instructions may be delivered by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
3. COMPLIANCE WITH RULES AND REGULATIONS. PFPC agrees to comply with the
applicable requirements of the Securities Laws, and any laws, rules and
regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFPC hereunder. Except as
specifically set forth herein, PFPC assumes no responsibility for such
compliance by the Fund.
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4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions, including standing Written
Instructions related to ongoing instructions received electronically.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of organizational documents or this Agreement or of any
vote, resolution or proceeding of the Fund's Board of Trustees or of
the Fund's Shareholders, unless and until PFPC receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming Oral
Instructions (except where such Oral Instructions are given by PFPC or
its affiliates) and shall endeavor to ensure that PFPC receives the
Written Instructions by the close of business on the same day that such
Oral Instructions are received. The fact that such confirming Written
Instructions are not received by PFPC shall in no way invalidate the
transactions or enforceability of the transactions authorized by the
Oral Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized Person, PFPC
shall incur no liability to the Fund in acting upon such Oral
Instructions or Written Instructions provided that PFPC's actions
comply with the other provisions of this Agreement.
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5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may request
advice at its own cost from such counsel of its own choosing (who may
be counsel for the Fund, the Fund's investment adviser or PFPC, at the
option of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC receives from
the Fund, and the advice it receives from counsel, PFPC shall be
entitled to rely upon and follow the advice of counsel provided that
such counsel is selected with reasonable care. PFPC shall promptly
inform the Fund of such conflict and PFPC shall refrain from acting in
the event of a conflict unless counsel advises PFPC that a failure to
take action is likely to result in additional loss, liability or
expense. In the event PFPC relies on the advice of counsel, PFPC
remains liable for any action or omission on the part of PFPC which
constitutes willful misfeasance, bad faith, negligence or reckless
disregard by PFPC of any duties, obligations or responsibilities set
forth in this Agreement.
(d) PROTECTION OF PFPC. PFPC shall be protected in any action it takes or
does not take in reliance upon directions, advice or Oral Instructions
or Written Instructions it receives from the Fund or (to the extent
permitted under clause (c) above) from counsel and which PFPC believes,
in good faith, to be consistent with those directions, advice or Oral
Instructions or Written Instructions. Nothing in this section shall be
construed so as to impose an obligation upon PFPC (i) to seek such
directions, advice or Oral Instructions or Written Instructions, or
(ii) to act in accordance with such directions, advice or Oral
Instructions or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of PFPC's
properly taking or not taking such action. Nothing in this subsection
shall excuse PFPC when an action or omission on the part of PFPC
constitutes willful misfeasance, bad faith, negligence or reckless
disregard by PFPC of any duties, obligations or responsibilities set
forth in this Agreement.
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6. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of PFPC, shall be the
property of the Fund. Such books and records shall be prepared,
preserved and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Fund and its
duly authorized officers, employees and agents and the staff of the SEC
shall have access to such books and records at all times during PFPC's
normal business hours. Upon the reasonable request of the Fund, copies
of any such books and records shall be provided by PFPC to the Fund or
to an Authorized Person, at the Fund's expense. No records will be
destroyed without the Fund's written consent.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or PFPC, their respective subsidiaries
and affiliated companies and the customers, clients and suppliers of
any of them; (b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality affords the
Fund or PFPC a competitive advantage over its competitors; (c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, and trade secrets, whether or
not patentable or copyrightable; and (d) anything designated as
confidential. Notwithstanding the foregoing, information shall not be
subject to such confidentiality obligations if it: (a) is already known
to the receiving party at the time it is obtained; (b) is or becomes
publicly known or available through no wrongful act of the receiving
party; (c) is rightfully received from a third party who, to the best
of the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third
party without restriction; (e) is required to be disclosed by the
receiving party pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency or law (provided the receiving party
will provide the other party written notice of such requirement, to the
extent such notice is permitted); (f) is relevant to the defense of any
claim or cause of action asserted against the receiving party; or (g)
has been or is independently developed or obtained by the receiving
party.
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8. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable action in
the performance of its obligations under this Agreement to ensure that
the necessary information is made available to such independent public
accountants as reasonably requested by the Fund.
9. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC to
the Fund.
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10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment.
In the event of equipment failures, PFPC shall, at no additional
expense to the Fund, take reasonable steps to minimize service
interruptions. PFPC shall have no liability with respect to the loss of
data or service interruptions caused by equipment failure, provided
such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties
or obligations under this Agreement.
11. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may
be agreed to from time to time in writing by the Fund and PFPC. The
Fund acknowledges that PFPC may receive float benefits and/or
investment earnings in connection with maintaining certain accounts
required to provide services under this Agreement.
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold harmless PFPC and its
affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including without limitation reasonable attorneys' fees
and disbursements and liabilities arising under the Securities Laws and
any state and foreign securities and blue sky laws) (collectively,
"Losses") arising directly or indirectly from any action or omission to
act which PFPC takes (i) at the request or on the direction of or in
reliance on the advice of the Fund or (ii) upon Oral Instructions or
Written Instructions; provided, however, neither PFPC, nor any of its
affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) arising out of PFPC's or its affiliates'
own willful misfeasance, bad faith, negligence or reckless disregard of
its duties and obligations under this Agreement; provided further that
in the absence of a finding to the contrary the acceptance, processing
and/or negotiation of a fraudulent payment for the purchase of Shares
shall be presumed not to have been the result of PFPC's or its
affiliates own willful misfeasance, bad faith, negligence or reckless
disregard of such duties and obligations under this Agreement.
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(b) Notwithstanding anything in this Agreement to the contrary, the Fund
shall not be liable to PFPC Trust or its affiliates for any
consequential, special or indirect losses or damages which PFPC Trust
or its affiliates may incur or suffer as a consequence of this
Agreement, whether or not the likelihood of such damages or losses was
known by the Fund.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the Fund
except as necessary to fulfill its duties and obligations as
specifically set forth herein or as may be specifically agreed to by
PFPC in writing. PFPC shall be obligated to exercise care and diligence
in the performance of its duties hereunder and to act in good faith and
to use its best efforts, within reasonable limits, in performing
services provided for under this Agreement. PFPC agrees to indemnify
and hold harmless the Fund from Losses arising out of PFPC's failure to
perform its duties under this Agreement to the extent such damages
arise out of PFPC's willful misfeasance, bad faith, negligence or
reckless disregard of such duties.
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(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for losses
beyond its control, provided that PFPC has acted in accordance with the
standard of care set forth above; and (ii) PFPC shall not be liable for
(A) the validity or invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument which
conforms to the applicable requirements of this Agreement, and which
PFPC reasonably believes to be genuine; or (B) subject to Section 9,
delays or errors or loss of data occurring by reason of circumstances
beyond PFPC's control, including acts of civil or military authority,
national emergencies, labor difficulties, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC nor its affiliates shall be liable to the Fund for any
consequential, special or indirect losses or damages which the Fund may
incur or suffer by or as a consequence of PFPC's or its affiliates'
performance of the services provided hereunder, whether or not the
likelihood of such losses or damages was known by PFPC or its
affiliates.
14. DESCRIPTION OF SERVICES.
(a) SERVICES PROVIDED ON AN ONGOING BASIS, IF APPLICABLE.
(i) Calculate service fee payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with shareholders to
complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify shareholder lists in conjunction with
proxy solicitations;
(vi) Prepare and mail to shareholders confirmation of direct
activity;
(vii) Provide toll-free lines for broker-dealer use, plus customer
liaison staff for on-line inquiry response;
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(viii) Mail duplicate confirmations to broker-dealers of their
clients' activity, when executed directly with PFPC;
(ix) Provide periodic shareholder lists and statistics to the Fund;
(x) Provide detailed data for underwriter/broker confirmations;
(xi) Prepare periodic mailing of year-end tax and statement
information;
(xii) Notify on a timely basis the investment adviser, accounting
agent, and custodian of fund activity; and
(xiii) Perform other participating broker-dealer shareholder services
as may be agreed upon from time to time.
(b) SERVICES PROVIDED BY PFPC UNDER ORAL INSTRUCTIONS OR WRITTEN
INSTRUCTIONS.
(i) Accept and post share purchases and redemptions;
(ii) Accept, post and perform shareholder transfers; and
(iii) Pay dividends and other distributions.
(c) PURCHASE OF SHARES. PFPC shall issue and credit an account of an
investor, in the manner described in the Fund's prospectus, once it
receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder account; and
(iii) Confirmation of receipt or crediting of funds for such order to
the Fund's custodian.
(d) REDEMPTION OF SHARES. Shares shall be redeemed and payment therefor
shall be made in accordance with the Fund's prospectus, when the
recordholder tenders shares in proper form and directs the method of
redemption. If shares are received in proper form, shares shall be
redeemed before the funds are provided to PFPC from the Fund's
custodian (the "Custodian"). If the recordholder has not directed that
redemption proceeds be wired, when the Custodian provides PFPC with
funds, the redemption check shall be sent to and made payable to the
recordholder, unless:
(i) transfer authorizations are signed by the recordholder
when shares are held in book-entry form.
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When a broker-dealer notifies PFPC of a redemption desired by a
customer, and the Custodian provides PFPC with funds, PFPC shall
prepare and send the redemption check to the broker-dealer and made
payable to the broker-dealer on behalf of its customer.
(e) DIVIDENDS AND DISTRIBUTIONS. Upon receipt of a resolution of the Fund's
Board of Trustees authorizing the declaration and payment of dividends
and distributions, PFPC shall issue dividends and distributions
declared by the Fund in shares, or, upon shareholder election, pay such
dividends and distributions in cash, if provided for in the Fund's
prospectus. Such issuance or payment, as well as payments upon
redemption as described above, shall be made after deduction and
payment of the required amount of funds to be withheld in accordance
with any applicable tax laws or other laws, rules or regulations. PFPC
shall mail to the Fund's direct shareholders such tax forms and other
information, or permissible substitute notice, relating to dividends
and distributions paid by the Fund as are required to be filed and
mailed by applicable law, rule or regulation. PFPC shall prepare,
maintain and file with the IRS and other appropriate taxing authorities
reports relating to all dividends above a stipulated amount paid by the
Fund to its shareholders as required by tax or other law, rule or
regulation.
(f) SHAREHOLDER ACCOUNT SERVICES.
(i) PFPC may arrange, in accordance with the prospectus, for
issuance of shares obtained through:
- Direct purchases through broker wire orders, checks and
applications.
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(g) COMMUNICATIONS TO SHAREHOLDERS. Upon timely Written Instructions, PFPC
shall mail all communications by the Fund to its direct shareholders,
including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices; and
(v) Tax form information.
(h) RECORDS. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or Social
Security number;
(ii) Number and class of shares held;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid and
the date and price for all transactions on a shareholder's
account;
(iv) Any stop or restraining order placed against a shareholder's
account;
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform any
calculations required by this Agreement.
(i) SHAREHOLDER INSPECTION OF STOCK RECORDS. Upon a request from any Fund
shareholder to inspect stock records, PFPC will notify the Fund and the
Fund will issue instructions granting or denying each such request.
Unless PFPC has acted contrary to the Fund's instructions, the Fund
agrees to and does hereby release PFPC from any liability for refusal
of permission for a particular shareholder to inspect the Fund's stock
records.
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(j) LOST SHAREHOLDERS. PFPC shall perform such services as are required in
order to comply with Rules 17a-24 and 17Ad-17 of the 1934 Act (the
"Lost Shareholder Rules"), including, but not limited to, those set
forth below. PFPC may, in its sole discretion, use the services of a
third party to perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to comply
with the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the Lost
Shareholder Rules.
Except as set forth above, PFPC shall have no responsibility for any
escheatment services.
(k) PRINT MAIL. In addition to performing the foregoing services, the Fund
hereby engages PFPC as its exclusive print/mail service provider with
respect to those items and for such fees as may be agreed to from time
to time in writing by the Fund and PFPC.
15. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or by PFPC on nintey (90) days' prior written
notice to the other party. In the event the Fund gives notice of
termination, all expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor accounting
and administration services agent(s) (and any other service
provider(s)), and all trailing expenses incurred by PFPC, will be borne
by the Fund.
16. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to
the Fund, at __________________ or (c) if to neither of the foregoing,
at such other address as shall have been given by like notice to the
sender of any such notice by the other party. If notice is sent by
confirming telegram, cable, telex or facsimile sending device, it shall
be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given three days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
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17. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
18. DELEGATION; ASSIGNMENT. This Agreement and the rights and duties of the
parties herein may not be assigned or delegated by any party without
the written consent of each party.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
20. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
21. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided that
the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties and Oral
Instructions.
(b) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
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(c) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to principles of
conflicts of law.
(d) PARTIAL INVALIDITY. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(g) PRIVACY. Each party hereto acknowledges and agrees that, subject to the
reuse and re-disclosure provisions of Xxxxxxxxxx X-X, 00 XXX Part
248.11, it shall not disclose the non-public personal information of
investors in the Fund obtained under this agreement, except as
necessary to carry out the services set forth in this agreement or as
otherwise permitted by law or regulation.
(h) The Fund will provide such information and documentation as PFPC may
reasonably request in connection with services provided by PFPC to the
Fund.
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(i) To help the U.S. government fight the funding of terrorism and money
laundering activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information that
identifies each person who initially opens an account with that
financial institution on or after October 1, 2003. Certain of PFPC and
certain of its affiliates are financial institutions, and PFPC may, as
a matter of policy, request (or may have already requested) the Fund's
name, address and taxpayer identification number or other
government-issued identification number, and, if such party is a
natural person, that party's date of birth. PFPC may also ask (and may
have already asked) for additional identifying information, and PFPC
may take steps (and may have already taken steps) to verify the
authenticity and accuracy of these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
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Title:
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COLUMBIA FLOATING RATE ADVANTAGE FUND
By:
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Title:
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