EXHIBIT 99.(2)(k)(i)
TRANSFER AGENCY AGREEMENT WITH PFPC
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of September 2, 2003 by and between PFPC
INC., a Massachusetts corporation ("PFPC"), BOULDER GROWTH & INCOME FUND,
INC., a Maryland corporation (the "Fund") and solely with respect to
Sections 11, 12 and 16 hereby, Fund Administrative Services, L.L.C.
("FAS").
W I T N E S S E T H:
WHEREAS, the Fund wishes to retain PFPC to serve as its 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.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Directors or
Trustees to give Oral Instructions and Written Instructions on
behalf of the Fund. An Authorized Person's scope of authority may
be limited by setting forth such limitation in a written document
signed by both parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "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. PFPC may, in its sole discretion in
each separate instance, consider and rely upon instructions it
receives from an Authorized Person via electronic mail as Oral
Instructions.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(h) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
(i) "Written Instructions" mean (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. Delivery of Documents. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Directors or Trustees,
approving the appointment of PFPC or its affiliates to provide
services to the Fund and approving this Agreement;
(b) A copy of the Fund's most recent effective registration
statement;
(c) A copy of the advisory agreement of the Fund;
(d) A copy of the distribution/underwriting agreement with respect to
each class of Shares of the Fund;
(e) A copy of the Fund's administration agreements if PFPC is not
providing the Fund with such services;
(f) Copies of any distribution and/or shareholder servicing plans and
agreements made in respect of the Fund;
(g) A copy of the Fund's organizational documents, as filed with the
state in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any and
all amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations. PFPC undertakes to comply with
all 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 or any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions or Written Instructions.
(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 Directors or 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 so 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 or differ from the
Oral Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC's ability to rely upon such 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.
6. 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 from 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
or advice or Oral Instructions or Written Instructions PFPC
receives from the Fund, and the advice it receives from counsel,
PFPC may rely upon and follow the advice of counsel.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions or advice or
Oral Instructions or Written Instructions it receives from the
Fund or from counsel and which PFPC believes, in good faith, to
be consistent with those directions or 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 or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions
or 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.
7. 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 and maintained as
required by the 1940 Act and other applicable securities laws, rules and
regulations. The Fund and Authorized Persons 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.
8. 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.
9. Cooperation with Accountants. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the
necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. 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.
11. 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 to the
extent appropriate equipment is available. In the event of equipment
failures, PFPC shall, at no additional expense to the Fund or FAS, 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.
12. Compensation. As compensation for services rendered by PFPC during the
term of this Agreement, FAS will pay to PFPC a fee or fees as may be agreed
to from time to time in writing by FAS and PFPC. PFPC agrees that it will
not look to the Fund for compensation of its services hereunder but shall
look solely to FAS. The Fund and FAS acknowledges that PFPC may receive
float benefits and/or investment earnings in connection with maintaining
certain accounts required to provide services under this Agreement.
13. Indemnification. The Fund agrees to indemnify 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) arising directly or
indirectly from any action or omission to act which PFPC takes in
connection with the provision of services to the Fund. Neither PFPC, nor
any of its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) caused by PFPC's or its affiliates'
own willful misfeasance, bad faith, negligence or reckless disregard of its
duties and obligations under this Agreement, provided 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.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or as
may be specifically agreed to by PFPC and the Fund in a written
amendment hereto. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to act
in good faith in performing services provided for under this
Agreement. PFPC shall be liable only for any damages 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.
(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, including without limitation (subject
to Section 11), delays or errors or loss of data occurring by
reason of circumstances beyond PFPC's control, provided that PFPC
has acted in accordance with the standard set forth in Section
14(a) above; and (ii) PFPC shall not be under any duty or
obligation to inquire into and shall not be liable for 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.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or
not the likelihood of such losses or damages was known by PFPC or
its affiliates.
(d) No party may assert a cause of action hereunder against any party
hereto more that 12 months after the date on which the asserting
became aware of such cause of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
15. Description of Services.
(a) Shareholder Information. PFPC shall maintain a record of the
number of Shares held by each Shareholder of record which shall
include name, address, taxpayer identification and which shall
indicate whether such Shares are held in certificates or
uncertificated form.
(b) Shareholder Services. PFPC shall respond as appropriate to all
inquiries and communications from Shareholders relating to
Shareholder accounts with respect to its duties hereunder and as
may be from time to time mutually agreed upon between PFPC and
the Fund.
(c) Share Certificates.
(i) At the expense of the Fund, the Fund shall supply PFPC with
an adequate supply of blank share certificates to meet PFPC
requirements therefor. Such Share certificates shall be
properly signed by facsimile. The Fund agrees that,
notwithstanding the death, resignation, or removal of any
officer of the Fund whose signature appears on such
certificates, PFPC or its agent may continue to countersign
certificates which bear such signatures until otherwise
directed by Written Instructions.
(ii) PFPC shall issue replacement Share certificates in lieu of
certificates which have been lost, stolen or destroyed, upon
receipt by PFPC of properly executed affidavits and lost
certificate bonds, in form satisfactory to PFPC, with the
Fund and PFPC as obligees under the bond.
(iii)PFPC shall also maintain a record of each certificate
issued, the number of Shares represented thereby and the
Shareholder of record. With respect to Shares held in open
accounts or uncertificated form (i.e., no certificate being
issued with respect thereto) PFPC shall maintain comparable
records of the Shareholders thereof, including their names,
addresses and taxpayer identification. PFPC shall further
maintain a stop transfer record on lost and/or replaced
certificates.
(d) Mailing Communications to Shareholders. PFPC will address and
mail to Shareholders of the Fund, all proxy materials and reports
to Shareholders, dividend and distribution notices.
(e) Transfer of Shares.
(i) PFPC shall process all requests to transfer Shares in
accordance with the transfer procedures set forth in the
Fund's Prospectus.
(ii) PFPC will transfer Shares upon receipt of Written
Instructions or otherwise pursuant to the Prospectus and
Share certificates, if any, properly endorsed for transfer,
accompanied by such documents as PFPC reasonably may deem
necessary.
(iii)PFPC reserves the right to refuse to transfer Shares until
it is satisfied that the endorsement on the instructions is
valid and genuine. PFPC also reserves the right to refuse to
transfer Shares until it is satisfied that the requested
transfer is legally authorized, and it shall incur no
liability for the refusal, in good faith, to make transfers
which PFPC in its good judgment, deems improper or
unauthorized, or until it is reasonably satisfied that there
is no basis to any claims adverse to such transfer.
(f) Dividends.
(i) Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with
respect to Shares of the Fund, the Fund shall furnish or
cause to be furnished to PFPC Written Instructions setting
forth the date of the declaration of such dividend or
distribution, the ex-dividend date, the date of payment
thereof, the record date as of which Shareholders entitled
to payment shall be determined, the amount payable per Share
to the Shareholders of record as of that date, the total
amount payable on the payment date and whether such dividend
or distribution is to be paid in Shares at net asset value.
(ii) On or before the payment date specified in such resolution
of the Board of Directors, the Fund will provide PFPC with
sufficient cash to make payment to the Shareholders of
record as of such payment date.
(iii)If PFPC does not receive sufficient cash from the Fund to
make total dividend and/or distribution payments to all
Shareholders of the Fund as of the record date, PFPC will,
upon notifying the Fund, withhold payment to all
Shareholders of record as of the record date until
sufficient cash is provided to PFPC.
(g) Miscellaneous
In addition to and neither in lieu nor in contravention of the
services set forth above, PFPC shall: perform all the customary
services of a transfer agent, registrar, dividend disbursing
agent and agent of the dividend reinvestment and cash purchase
plan as described herein consistent with those requirements in
effect as at the date of this Agreement. The detailed definition,
frequency, limitations and associated costs (if any) set out in
the agreed upon fees, include but are not limited to: maintaining
all Shareholder accounts, preparing Shareholder meeting lists,
mailing proxies, tabulating proxies, 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.
16. Duration and Termination. This Agreement shall continue until
terminated by the Fund or by PFPC on sixty (60) days' prior written notice
to the other party. In the event the Fund gives notice of termination, all
reasonable expenses associated with movement (or duplication) of records
and materials and conversion thereof to a successor transfer agent or other
service provider, and all reasonable trailing expenses incurred by PFPC,
will be borne by FAS.
17. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the
Fund, at 0000 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention:
President 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 or
other communication 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.
18. 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.
19. Assignment. PFPC may assign this Agreement to any majority-owned direct
or indirect subsidiary of The PNC Financial Services Group, Inc., provided
that PFPC remains responsible for the action of its assignees.
20. 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.
21. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
22. 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.
(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.
(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) No Representations or Warranties. Except as expressly provided in
this Agreement, PFPC hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing,
custom or usage of trade), of any services or any goods provided
incidental to services provided under this Agreement. PFPC
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(g) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding execution
hereof by such party.
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: /s/ Xxxxxxx X. XxXxxxxx
Xxxxxxx X. XxXxxxxx
Title: Senior V.P. and General Manager
BOULDER GROWTH & INCOME FUND, INC.
By: /s/ Xxxx Xxxxx
Title: V.P. & Treasurer
Solely with respect to Sections 11, 12 and 16:
FUND ADMINISTRATIVE SERVICES, L.L.C. -
By: /s/ Xxxxxxx X. Xxxxxx
Title: Pres.
September 2, 2003
BOULDER GROWTH & INCOME FUND, INC.
Re: Transfer Agency Services Fees
Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation to be
paid to PFPC Inc. ("PFPC") under the terms of a Transfer Agency Services
Agreement dated September 2, 2003 between Boulder Growth & Income Fund (the
"Fund"), Fund Administrative Services, L.L.C. ("you" or "FAS") and PFPC (the
"Agreement") for service provided on behalf of the Fund. Pursuant to paragraph
12 of the Agreement, and in consideration of the services to be provided to the
Fund, FAS will pay PFPC certain fees and reimburse PFPC for its out-of-pocket
expenses incurred on the Fund's behalf, as follows:
Monthly Base Fee:
$2,083.33 per month.
Out-of-Pocket Expenses. Out-of-Pocket Expenses include, but are not limited to,
postage (direct pass through to the Fund), telephone and telecommunication costs
(including all lease, maintenance and line costs), proxy solicitations
(including mailings and tabulations), shipping, certified and overnight mail
(including related insurance), terminals, communication lines, printers and
other equipment and any expenses incurred in connection with such terminals and
lines, duplicating services, distribution and redemption check issuance, courier
services, Federal Reserve charges for check clearance, overtime (as approved by
the Fund), temporary staff (as approved by the Fund), travel and entertainment
(as approved by the Fund), record retention (including retrieval and destruction
costs, exit fees charged by third party record keeping vendors), third party
audit reviews, insurance.
Any fee or out-of-pocket expenses not paid within 30 days of the date of
the original invoice will be charged a late payment fee of 1% per month until
payment of the fees are received by PFPC.
If the foregoing accurately sets forth our agreement and you intend to be
legally bound thereby, please execute a copy of this letter and return it to us.
Very truly yours,
PFPC INC.
By: /s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxxxx X. XxXxxxxx
Title: Senior V.P. and General Manager
Agreed and Accepted:
BOULDER GROWTH & INCOME FUND, INC.
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: V.P. & Treasurer
