EXHIBIT (k)(i)
TRANSFER AGENCY AGREEMENT BETWEEN THE FUND AND PFPC, INC.
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of December 1, 2000 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and BOULDER TOTAL RETURN FUND, INC., a
Maryland corporation (the "Fund").
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 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, 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, 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.
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 the Fund.
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. Xxxxx
Title: Executive Vice President
BOULDER TOTAL RETURN FUND, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Title: President
