EXHIBIT 99.(2)(k)(iv)
ADMINISTRATION AGREEMENT WITH IBT
ADMINISTRATION AGREEMENT
AGREEMENT made as of 29th day of September 2004 by and between Boulder
Growth & Income Fund, Inc., a corporation organized under the laws of Maryland
(the "Fund"), and INVESTORS BANK & TRUST COMPANY, a Massachusetts trust company
(the "Bank").
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Fund desires to retain the Bank to render certain
administrative services to the Fund;
WHEREAS, the Fund and the Bank have entered into a Custodian Agreement and
Delegation Agreement of even date herewith (the "Custody Agreement" and
"Delegation Agreement"); and
WHEREAS, the Bank is willing to render such services, subject to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein set forth,
it is agreed between the parties hereto as follows:
1. Appointment. The Fund hereby appoints the Bank to act as Administrator
of the Fund on the terms set forth in this Agreement. The Bank accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided.
2. Delivery of Documents. The Fund has furnished the Bank with copies, duly
certified or authenticated to the Bank's satisfaction, of each of the following:
(a) Resolutions of the Fund's Board of Directors authorizing and/or
approving (i) the appointment of the Bank to provide certain administrative
services to the Fund, (ii) this Agreement, (iii) certain officers and
employees of the Fund to give instructions to the Bank pursuant to this
Agreement, and (iv) certain officers and employees of the Fund to sign
checks and pay expenses on behalf of the Fund;
(b) The Fund's incorporating documents filed with the state of
Maryland on [date] and all amendments thereto (the "Articles");
(c) The Fund's by-laws and all amendments thereto (the "By-Laws");
(d) The Fund's agreements with all service providers including,
without limitation, any investment advisory agreements, sub-investment
advisory agreements, custody agreements, and transfer agency agreements
(collectively, the "Agreements");
(e) Each of the Fund's Registration Statements on Form N-2 (the
"Registration Statements") filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended and under the 1940
Act, and all amendments thereto;
(f) The Fund's most recent prospectus and statement of additional
information (the "Prospectus"); and
(g) Such other documents, certificates or opinions of counsel as the
Bank may, in its reasonable discretion, deem necessary or appropriate in
the proper performance of its duties hereunder.
The Fund will immediately furnish the Bank with copies of all amendments of
or supplements to the foregoing and with any new Registration Statements.
Furthermore, the Fund will notify the Bank as soon as possible of any matter
which may materially affect the performance by the Bank of its services under
this Agreement.
3. Duties of Administrator. Subject to the supervision and direction of the
Board of Directors of the Fund, the Bank, as Administrator, will assist in
conducting various aspects of the Fund's administrative operations and
undertakes to perform the services described in Appendix A hereto. The Bank may,
from time to time, perform additional duties and functions which shall be set
forth in an amendment to such Appendix A executed by both parties. At such time,
the fee schedule included in Appendix B hereto shall be appropriately amended.
In performing all services under this Agreement, the Bank shall act in
conformity with the Fund's Articles and By-Laws and the 1940 Act, as the same
may be amended from time to time, and the investment objectives, investment
policies and other practices and policies set forth in the Fund's Registration
Statement, as the same may be amended from time to time, or as set forth in the
Fund's annual or semi-annual reports to shareholders. Notwithstanding any item
discussed herein, the Bank has no discretion over the Fund's assets or choice of
investments and cannot be held liable for any losses arising from such assets or
choice of investments.
4. Duties of the Fund.
(a) The Fund will perform such actions and provide the Bank with such
information as described in Appendix A hereto.
(b) The Fund is solely responsible (through its transfer agent or
otherwise) for (i) providing timely and accurate reports ("Share Reports")
which will enable the Bank as Administrator to monitor the total number of
shares outstanding and (ii) providing timely and accurate notice of the
issuance of any new shares.
(c) The Fund agrees to make its legal counsel available to the Bank
for instruction with respect to any matter of law arising in connection
with the Bank's duties hereunder, and the Fund further agrees that the Bank
shall be entitled to rely on such instruction without further investigation
on the part of the Bank.
5. Fees and Expenses.
(a) For the services to be rendered and the facilities to be furnished
by the Bank, as provided for in this Agreement, the Fund will compensate
the Bank in accordance with the fee schedule attached as Appendix B hereto.
Such fees do not include out-of-pocket disbursements (as delineated on the
fee schedule or other expenses with the prior approval of the Fund's
management) of the Bank for which the Bank shall be entitled to xxxx the
Fund separately and for which the Fund shall reimburse the Bank.
(b) The Bank will bear all of its own expenses in connection with the
performance of its services under this Agreement. The Fund will bear
certain expenses to be incurred in its operation, including: taxes,
interest, brokerage fees and commissions, if any; fees of the members of
the Board of the Fund who are not officers, directors, or employees of the
Bank or its affiliates or any person who is an affiliate of any person to
whom duties may be delegated by the Bank hereunder; SEC fees and any state
blue sky qualification fees; any stock exchange fees; charges of custodians
and transfer and dividend disbursing agents; insurance premiums,
professional association dues and/or assessments; outside auditing and
legal expenses; costs of maintaining the Fund's existence; costs
attributable to investor services, including, without limitation, telephone
and personnel expenses; costs of preparing, printing and filing
registration statements or amendments thereto, prospectuses and statements
of additional information for regulatory purposes and for distribution to
existing or prospective shareholders; costs of shareholders' reports,
meetings of the officers or Board and any extraordinary expenses.
(c) The Bank shall not be required to pay any expenses incurred by the
Fund.
6. Limitation of Liability.
(a) The Bank, its directors, officers, employees, shareholders,
nominees and agents, whether past, present or future, shall not be liable
for any error of judgment or mistake of law or for any loss or damage
resulting from the performance or nonperformance of its obligations and
duties under this Agreement, except a loss resulting from willful
misfeasance, bad faith or negligence in the performance of such obligations
and duties, or by reason of its reckless disregard thereof. The Fund will
indemnify the Bank, its directors, officers, employees and agents against
and hold it and them harmless from any and all losses, claims, damages,
liabilities or expenses (including legal fees and expenses) resulting from
any claim, demand, action or suit (i) arising out of the actions or
omissions of the Fund; (ii) arising out of the offer or sale of any
securities of the Fund in violation of (x) any requirement under the
Federal securities laws or regulations, (y) any requirement under the
securities laws or regulations of any state, or (z) any stop order or other
determination or ruling by any Federal or state agency with respect to the
offer or sale of such securities; or (iii) not resulting from the willful
misfeasance, bad faith or negligence of the Bank in the performance of such
obligations and duties or by reason of its reckless disregard thereof.
(b) The Bank may apply to the Fund at any time for instructions and
may consult counsel for the Fund, or its own counsel, and with accountants
and other experts with respect to any matter arising in connection with its
duties hereunder, and the Bank shall not be liable or accountable for any
action taken or omitted by it in good faith in accordance with such
instruction, or with the opinion of such counsel, accountants, or other
experts. The Bank shall not be liable for any act or omission taken or not
taken in reliance upon any document, certificate or instrument which it
reasonably believes to be genuine and to be signed or presented by the
proper person or persons. The Bank shall not be held to have notice of any
change of authority of any officers, employees, or agents of the Fund until
the Bank shall have received written notice thereof from the Fund.
(c) In the event the Bank is unable to perform, or is delayed in
performing, its obligations under the terms of this Agreement because of of
God, strikes, legal constraint, government actions, war, emergency
conditions, earthquakes, fires, floods, storms or other disturbances of
nature, epidemics, riots, nationalization, expropriation, currency
restrictions, interruption, loss or malfunction of electrical power or
other utilities, transportation, or telecommunication systems, or computers
and computer facilities (hardware or software), equipment or transmission
failure, damage reasonably beyond its control or other causes reasonably
beyond its control, the Bank shall not be liable to the Fund for any
damages resulting from such failure to perform, delay in performance, or
otherwise from such causes.
(d) Notwithstanding anything to the contrary in this Agreement, in no
event shall the Bank be liable for special, incidental or consequential
damages, even if advised of the possibility of such damages.
(e) The indemnification contained herein shall survive the termination
of this Agreement.
7. Termination of Agreement.
(a) The term of this Agreement shall be one year, commencing upon the
date hereof (the "Initial Term"), unless earlier terminated as provided
herein. After the expiration of the Initial Term, the term of this
Agreement shall automatically renew for successive one-year terms (each a
"Renewal Term") unless written notice of non-renewal is delivered by the
non-renewing party to the other party no later than ninety days prior to
the expiration of the Initial Term or any Renewal Term, as the case may be.
Either party hereto may terminate this Agreement prior to the expiration of
the Initial Term or any Renewal Term in the event of a Default. A "Default"
shall exist if a party fails to substantially perform its material
obligations under this Agreement or otherwise violates any material
provision of this Agreement, provided that the violating party does not
cure such violation within thirty days of receipt of written notice from
the non-violating party of such violation (a "Notice of Violation"), or if
the nature of the violation is such that it cannot be cured within such
thirty-day period, the party does not commence substantive action to cure
such violation within thirty days of the Notice of Violation.
(b) A Default under this Agreement shall constitute a simultaneous
default under the Custody Agreement and Delegation Agreement giving rise to
all appropriate remedies thereunder, including early termination.
Similarly, a default under the Custody Agreement or Delegation Agreement
shall constitute a simultaneous Default hereunder giving rise to all
remedies set for herein, including early termination.
(b) At any time after the termination of this Agreement, the Fund may,
upon written request, have reasonable access to the records of the Bank
relating to its performance of its duties as Administrator.
8. Miscellaneous.
(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or the Bank shall be
sufficiently given if transmitted by facsimile or addressed to that party
and received by it at its office set forth below or at such other place as
it may from time to time designate in writing.
To the Fund:
Boulder Growth & Income Fund, Inc.
0000 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, President & General Counsel
To the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, XX 00000-0000
Facsimile 000-000-0000
Attention: Xxxxx X. Xxxxx, SeniorDirector, Client Management
With a copy to: Xxxx X. Xxxxx, General Counsel
(b) This Agreement shall extend to and shall be binding upon the
parties hereto and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable without the written
consent of the other party.
(c) This Agreement shall be construed in accordance with the laws of
the Commonwealth of Massachusetts, without regard to its conflict of laws
provisions.
(d) This Agreement may be executed in any number of counterparts each
of which shall be deemed to be an original and which collectively shall be
deemed to constitute only one instrument.
(e) The captions of 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.
(f) This Agreement may not be altered or amended, except by an
instrument in writing, executed by both parties.
9. Confidentiality. 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 in the performance of duties hereunder or as otherwise required by law.
10. Use of Name. The Fund shall not use the name of the Bank or any of its
affiliates in any prospectus, statement of additional information, shareholder
report, sales literature or other material relating to the Fund in a manner not
approved by the Bank prior thereto in writing; provided however, that the
approval of the Bank shall not be required for any use of its name which merely
refers in accurate and factual terms to its appointment hereunder or which is
required by the Securities and Exchange Commission or any state securities
authority or any other appropriate regulatory, governmental or judicial
authority; provided further, that in no event shall such approval be
unreasonably withheld or delayed.
11. Non-exclusive Services. The Fund understands that the Bank now acts and
will continue to act as administrator of various investment companies and
fiduciary of other managed accounts, and the Fund has no objection to the Bank's
so acting. In addition, it is understood that the persons employed by the Bank
to assist in the performance of its duties hereunder may not devote their full
time to such services and nothing herein contained shall be deemed to limit or
restrict the right of the Bank or any affiliate of the Bank to engage in and
devote time and attention to other businesses or to render services of whatever
kind or nature.
12. Business Continuity. The Bank represents that it has in place a
reasonable business continuity plan.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed and delivered by their duly authorized officers as of the date
first written above.
Boulder Growth & Income Fund, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
INVESTORS BANK & TRUST OMPANY
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: SVP
Appendices
Appendix A............................................................ Services
Appendix B........................................................ Fee Schedule
APPENDIX B
Investors Bank & Trust
Summary of Administration Functions
The Boulder Funds
Function Investors Bank & Trust Boulder
MANAGEMENT REPORTING
& TREASURY ADMINISTRATION
Monitor portfolio compliance in Perform tests of certain specific Continuously monitor portfolio
accordance with the current Prospectus portfolio activity designed from activity and Fund operations in
and SAI. provisions of the Fund's Prospectus conjunction with 1940 Act,
and SAI. Follow-up on potential Prospectus, SAI and any other
violations. Applicable laws and regulations.
Monitor testing results and
approve resolution of
compliance issues.
Frequency: Daily
Provide compliance summary package. Provide a report of compliance Review report.
testing results.
Frequency: Monthly
Perform asset diversification testing to Perform asset diversification tests at Continuously monitor portfolio
establish qualification as a RIC. each tax quarter end. Follow-up on activity in conjunction with IRS
issues. requirements. Review test
results and take any necessary
action. Approve tax positions
taken.
Frequency: Quarterly
Perform qualifying income testing to Perform qualifying income testing Continuously monitor portfolio
establish qualification as a RIC. (on book basis income, unless activity in conjunction with IRS
material differences are anticipated) requirements. Review test
on quarterly basis and as may results and take any necessary
otherwise be necessary. Follow-up action. Approve tax positions
on issues. taken.
Frequency: Quarterly
APPENDIX B
MANAGEMENT REPORTING
& TREASURY ADMINISTRATION
(CONTINUED)
Prepare the Fund's annual expense Prepare preliminary expense budget. Provide asset level projections
budget. Establish daily accruals. Notify fund accounting of new and vendor fee information.
accrual rates. Approve expense budget.
Frequency: Annually
Monitor the Fund's expense budget. Monitor actual expenses updating Provide asset level projections
budgets/ expense accruals and notify quarterly. Provide vendor
FAS of any proposed adjustments. information as necessary.
Review expense analysis and
approve budget revisions.
Frequency: Quarterly
Receive and coordinate payment of fund Propose allocations of invoice among Approve invoices and
expenses. funds and obtain authorized approval allocations of payments. Send
to process payment. expense Authorizations and
Calculate various contractual invoices to IBT in a timely
expenses (e.g. advisory, manner.
administrative and custody fees).
Frequency: As often as necessary
Calculate periodic dividend rates to be Calculate amounts available for Establish and maintain dividend.
declared in accordance with management distribution. Coordinate review by and distribution policies.
guidelines. management and/or auditors. Notify Approve distribution rates per
custody and transfer agent of share and aggregate amounts.
authorized dividend rates in Obtain Board approval when
accordance with Board approved required.
policy. Report dividends to Board as
required.
Frequency: In accordance with the
Funds' dividend policy
APPENDIX B
MANAGEMENT REPORTING
& TREASURY ADMINISTRATION
(CONTINUED)
Calculate pre-tax total return information Provide SEC total return calculations. Review total return information.
on Funds as defined in the current
Prospectus and SAI.
Frequency: Monthly
Prepare disinterested trustee Form 1099- Summarize amounts paid to Provide social security numbers
Misc. directors/trustees during the calendar and current mailing addresses for
year. Prepare and mail Form 1099- trustees. Review and approve
Misc. information provided for Form
1099-Misc.
Frequency: Annually
Prepare selected portfolio and financial Prepare selected portfolio and Review financial information.
information for presentation to Fund financial information for inclusion in
Management and Board of Directors. board material.
Frequency: Quarterly (board materials)
Prepare and file Form N-SAR. Prepare form for filing. Obtain any Provide appropriate responses.
necessary supporting documents. Review and authorize filing.
File with SEC via XXXXX.
Frequency: Semi-annually
APPENDIX B
FINANCIAL REPORTING
Coordinate the annual audit and semi- Coordinate the creation of templates Provide past financial
Annual and quarterly preparation and reflecting client-selected standardized statements and other
printing of financial statements and notes appearance and text of financial information required to create
with management, fund accounting and statements and footnotes. Draft and templates, including report style
the fund auditors. manage production cycle. and graphics. Approve format
Coordinate with IBT fund accounting and text as standard. Approve
the electronic receipt of portfolio and production cycle and assist in
general ledger information. Assist in managing to the cycle.
resolution of accounting issues. Coordinate review and approval
Using templates, draft financial by portfolio managers of
statements, coordinate auditor and portfolio listing to be included
management review, and clear in financial statements. Prepare
comments. Coordinate NCSR and appropriate management letter
NQ filings, printing of reports, and coordinate production of
XXXXX conversion with outside Management Discussion and
Printer and filing with the SEC via Analysis. Review and approve
XXXXX. entire report. Make appropriate
representations in conjunction
with audit. Review and approve
Form N-CSR and NQ. Forward
signed Form N-CSR and NQ to
IBT prior to filing report.
Frequency: Annually/semi-annually,
Quarterly
APPENDIX B
LEGAL
Prepare agenda and board materials for Assist FAS in maintaining annual Review and approve board
quarterly board meetings. calendar of required quarterly and materials and board and
annual approvals. Prepare agenda, committee meeting minutes.
resolutions and certain board
materials for quarterly board
meetings. Prepare supporting
information and materials when
necessary. Assemble, check and
distribute books in advance of
meeting. Attend board and
committee meeting and prepare
minutes.
Frequency: Quarterly
Provide some assistance with updating Make annual filing of fidelity bond Obtain required fidelity bond
and filing with the SEC of fidelity bond insurance material with the SEC. insurance coverage. Provide
insurance coverage and the directors and Monitor level of fidelity bond materials to IBT for SEC filing.
officers errors and omission insurance insurance maintained in accordance
policies. with required coverage.
Frequency: Annually
Respond to regulatory audits. Compile and provide documentation Coordinate with regulatory
pursuant to audit requests. Assist auditors to provide requested
client in resolution of audit inquiries.Documentation and resolutions
to inquiries.
Frequency: As needed
APPENDIX B
LEGAL (CONTINUED)
Assist with SEC Post-Effective Prepare, coordinate with the Review and approve filings.
Amendments Fund's counsel and file with the
SEC Post-Effective Amendments
to the Fund's Registration
Statement as needed. (PEAs for a
rights offerings are not included in
current fee schedule).
Frequency: As needed
Assist with SEC notices of Annual or Coordinate with the Fund and Prepare notices and proxy
Special Meetings of Shareholders. Fund's counsel and file with the materials relating to
SEC notices of Annual or Special shareholder meetings.
Meetings of Shareholders and
proxy materials relating to such
meetings.
Frequency: As needed (at least
annually)
Review of Annual and Semi-Annual Review drafts prepared by Review and approve entire
Reports Financial Reporting focusing on report.
MDFP, Notes to Financial
Statements for accurate descriptions
of: registrant's organization,
valuation policies and procedures,
service providers, contracts and
expenses, Board of
Directors/Trustees. Review for
disclosure regarding availability of
proxy voting policies and proxy
voting record and matters submitted
to a vote of shareholders during
period covered by report.
Frequency: Semi-annually
APPENDIX B
Review Form N-SAR. Review responses with respect to Provide appropriate responses.
fidelity bond coverage and provide Review and authorize filing.
information with respect to
shareholder meetings.
Frequency: Semi-annually
APPENDIX B
TAX
Prepare income tax provisions. Calculate investment company Provide transaction information
taxable income, net tax exempt as requested. Identify Passive
interest, net capital gain and spillbackForeign Investment Companies
dividend requirements. Identify (PFICs). Approve tax
book-tax accounting differences. Accounting positions to be
Track required information relating taken. Approve provisions.
to accounting differences.
Frequency: Annually
Calculate excise tax distributions. Calculate required distributions to Provide transaction information
avoid imposition of excise tax. As requested. Identify Passive
- Calculate capital gain net Foreign Investment Companies
income and foreign currency (PFICs). Approve tax
gain/loss through October 31. accounting positions to be
- Calculate ordinary income and taken. Review and approve all
distributions through a specified income and distribution
cut off date. calculations, including
- Project ordinary income projected income and dividend
from cut off date to December shares. Approve distribution
31. rates per share and aggregate
- Ascertain dividend shares. amounts. Obtain Board
Identify book-tax accounting approval when required.
differences. Track required
information relating to accounting
differences. Coordinate review by
management and fund auditors.
Notify custody and transfer agent of
authorized dividend rates in
accordance with Board approved
policy. Report dividends to Board as
required.
Frequency: Annually
APPENDIX B
TAX (CONTINUED)
Prepare tax returns Prepare excise and RIC tax returns Review and sign tax return.
(both Federal and State).
Frequency: Annually
Prepare Form 1099 Obtain yearly distribution Review and approve
information. Calculate 1099 information provided for Form
reclasses and coordinate with transfer 1099.
agent.
Frequency: Annually
Prepare other year-end tax-related Obtain yearly income distribution Review and approve
disclosures information. Calculate disclosures information provided.
(i.e., dividend received deductions,
foreign tax credits, tax-exempt
income, income by jurisdiction,
QDI) and coordinate with transfer
agent.
Frequency: Annually
Review and Approval
The attached Summary of Administration Functions has been reviewed and
represents the services currently being provided.
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx 10-05-04
__________________________________
Signature of Account Director/Date
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President 9/30/04
___________________________________________________
Signature of Authorized Client Representative/ Date
