Confidential and Proprietary
Not for Reproduction or Re-Distribution
TRANSFER AGENCY SERVICES AGREEMENT
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THIS AGREEMENT is made as of , 2005 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and BLACKROCK XXXXX CAPITAL CORPORATION, a
Delaware corporation (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund wishes to retain PFPC to provide transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent services
provided for herein, 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:
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(a) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund to give Oral
Instructions or 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.
(b) "Dividend Reinvestment Plan" means the Fund's Dividend
Reinvestment Plan, as the details of such Plan (and any
changes thereto) are provided by the Fund to PFPC from time
to time in writing.
(c) "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.
(d) "Shares" mean the shares of beneficial interest of any
series or class of the Fund.
(e) "Written Instructions" mean (i) written instructions signed
by an Authorized Person (or a person reasonably believed by
PFPC to be 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.
(f) "1940 Act" means the Investment Company Act of 1940, as
amended.
2. Appointment. The Fund hereby appoints PFPC to provide transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent
services 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 will comply with the
requirements of any laws, rules and regulations of governmental
authorities that are applicable to the duties to be performed by PFPC
under this Agreement. Except as specifically set forth in this
Agreement, PFPC assumes no responsibility for compliance by the Fund
with any laws, rules and regulations.
4. Instructions.
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(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 Instructions or Written Instructions
received hereunder are not in any way inconsistent with the
provisions of organizational documents of the Fund or of any
vote, resolution or proceeding of the Fund's board of
directors or 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.
5. Right to Receive Advice.
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(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, by way of Oral Instructions or Written Instructions.
(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
sponsor or adviser or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between Oral
Instructions or Written Instructions and the advice PFPC
receives from counsel, PFPC may rely upon and follow the
advice of counsel.
(d) Protection of PFPC. PFPC shall be indemnified by the Fund
and without liability for any action PFPC takes or does not
take in reliance upon Oral Instructions or Written
Instructions PFPC receives from or on behalf of the Fund or
advice from counsel and which PFPC believes, in good faith,
to be consistent with those Oral Instructions or Written
Instructions or that advice. Nothing in this section shall
be construed so as to impose an obligation upon PFPC (i) to
seek such advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such advice
or Oral Instructions or Written Instructions. Nothing in
this subsection shall excuse PFPC from liability for its
acts or omissions in carrying out such Oral Instructions or
Written Instructions to the extent such acts or omissions
constitute willful misfeasance, bad faith, negligence or
reckless disregard by PFPC of any duties, obligations or
responsibilities set forth in this Agreement.
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. PFPC may house such books and records in a
third party storage facility. Such books and records shall be
prepared and maintained as required by the 1940 Act. The Fund and
Authorized Persons, and such other persons the Fund by means of
Written Instructions reasonably authorizes (including but not limited
to the Fund's independent accountants), shall have access to such
books and records at all times during PFPC's normal business hours;
provided that the Fund shall not authorize access by individuals
employed by PFPC's direct competitors. Upon the reasonable request of
the Fund, copies of any such books and records shall be provided by
PFPC to the Fund, an Authorized Person, or such other person, at the
Fund's expense.
7. Confidentiality. Each party shall keep confidential any information
it receives hereunder 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 and
information, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or PFPC; (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 Confidential
Information and 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
requested or required to be disclosed by the receiving party pursuant
to a court order, subpoena, governmental or regulatory agency request
or law (provided the receiving party will provide the other party
written notice of the same, 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; (g) is necessary or desirable
for PFPC to release such information in connection with the provision
of services under this Agreement; or (g) has been or is independently
developed or obtained by the receiving party.
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 accountants
for the expression of their opinion, 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.
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
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.
11. Compensation.
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(a) As compensation for services set forth herein that are
rendered by PFPC during the term of this Agreement, the Fund
will pay to PFPC a fee or fees as may be agreed to in
writing by the Fund and PFPC. In addition, the Fund agrees
to pay, and will be billed separately in arrears for,
reasonable expenses incurred by PFPC in the performance of
its duties hereunder.
(b) PFPC shall establish certain cash management accounts
("Service Accounts") required to provide services under this
Agreement. The Fund acknowledges (i) PFPC may receive
investment earnings from sweeping the funds in such Service
Accounts into investment accounts including, but not
limited, investment accounts maintained at an affiliate or
client of PFPC; (ii) balance credits earned with respect to
the amounts in such Service Accounts ("Balance Credits")
will be used to offset the banking service fees imposed by
the cash management service provider (the "Banking Service
Fees"); (iii) PFPC shall retain any excess Balance Credits
for its own use; and (iv) Balance Credits will be calculated
and applied toward the Fund's Banking Service Fees
regardless of the Service Account balance sweep described in
sub-section (i) of this Section 11 (b).
(c) The undersigned hereby represents and warrants to PFPC that
(i) the terms of this Agreement, (ii) the fees and expenses
associated with this Agreement, and (iii) any benefits
accruing to PFPC or to the adviser or sponsor to the Fund in
connection with this Agreement, including but not limited to
any fee waivers, conversion cost reimbursements, up front
payments, signing payments or periodic payments made or to
be made by PFPC to such adviser or sponsor or any affiliate
of the Fund relating to the Agreement have been fully
disclosed to the board of directors of the Fund and that, if
required by applicable law, such board of directors has
approved or will approve the terms of this Agreement, any
such fees and expenses, and any such benefits.
12. Indemnification. The Fund agrees to indemnify, defend and hold
harmless PFPC and its affiliates (other than the Fund, BlackRock
Xxxxx Capital Advisors LLC and BlackRock, Inc. and its subsidiaries,
to the extent any of the foregoing may be deemed to be affiliates of
PFPC) including their respective officers, directors, agents and
employees (each a "PFPC Indemnified Person"), from all taxes,
charges, expenses, assessments, claims and liabilities (including,
without limitation, reasonable attorneys' fees and disbursements and
liabilities arising under applicable 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 or omits to take in connection with the provision of
services to the Fund hereunder. No PFPC Indemnified Party shall be
indemnified against any Losses caused by PFPC's or such PFPC
Indemnified Party's own willful misfeasance, bad faith, negligence or
reckless disregard in the performance of PFPC's duties 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. The
provisions of this Section 12 shall survive termination of this
Agreement.
13. Responsibility of PFPC.
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(a) PFPC shall be under no duty hereunder to take any action 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 Losses suffered by the Fund arising out of PFPC's
performance of or failure to perform its duties under this
Agreement and only to the extent such Losses arise out of
PFPC's willful misfeasance, bad faith, negligence or
reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary,
(i) PFPC shall not be liable for losses, delays, failure,
errors, interruption or loss of data occurring directly or
indirectly by reason of circumstances beyond its reasonable
control, including without limitation acts of God; action or
inaction of civil or military authority; public enemy; war;
terrorism; riot; fire; flood; sabotage; epidemics; labor
disputes; civil commotion; interruption, loss or malfunction
of utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or
non-performance by a third party (other than employees,
officers or affiliates of PFPC (other than the Fund,
BlackRock Xxxxx Capital Advisors LLC and BlackRock, Inc. and
its subsidiaries, to the extent any of the foregoing may be
deemed to be affiliates of PFPC)); and (ii) PFPC shall not
be under any duty or obligation to inquire into and shall
not be liable for the validity or invalidity, authority or
lack thereof, or truthfulness or accuracy or lack thereof,
of any instruction, direction, notice, instrument or other
information which PFPC reasonably believes to be genuine.
Notwithstanding the foregoing, PFPC shall use commercially
reasonable efforts to mitigate the effect of events
enumerated in clause (i) of the preceding sentence, although
such efforts shall not impute any liability to PFPC.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates (not including the Fund,
BlackRock Xxxxx Capital Advisors LLC and BlackRock, Inc. and
its subsidiaries, to the extent any of the foregoing may be
deemed to be affiliates of PFPC) 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) Each party shall have a duty to mitigate damages for which
the other party may become responsible.
(e) The provisions of this Section 13 shall survive termination
of this Agreement.
14. Description of Services.
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(a) Services Provided on an Ongoing Basis, If Applicable.
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(i) Maintain shareholder registrations;
(ii) Provide toll-free lines for shareholder and
broker-dealer use;
(iii) Provide periodic shareholder lists and statistics;
(iv) Mailing of year-end tax information; and
(v) Periodic mailing of shareholder Dividend Reinvestment
Plan account information and Fund financial reports.
(b) Dividends and Distributions. PFPC must receive a resolution
of the Fund's board of directors authorizing the declaration
and payment of dividends and distributions. Upon receipt of
the resolution, PFPC shall issue the dividends and
distributions in cash, or, if the resolution so provides,
pay such dividends and distributions in Shares. Such
issuance or payment 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 timely send to the Fund's
shareholders 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 maintain and
file with the U.S. Internal Revenue Service and other
appropriate taxing authorities reports relating to all
dividends above a stipulated amount (currently $10.00
accumulated yearly dividends) paid by the Fund to its
shareholders as required by tax or other law, rule or
regulation.
In accordance with such procedures and controls as are
mutually agreed upon from time to time by and among the
Fund, PFPC and the Fund's custodian, PFPC shall process
applications from Fund shareholders relating to the Fund's
Dividend Reinvestment Plan and will effect purchases of
Shares in connection with the Dividend Reinvestment Plan. As
the dividend disbursing agent, PFPC shall, on or before the
payment date of any dividend or distribution by the Fund,
notify the Fund's accounting agent or sub-accounting agent
of the estimated amount required to pay any portion of said
dividend or distribution which is payable in cash, and on or
before the payment date of such dividend or distribution,
the Fund shall instruct the Fund's custodian to make
available to PFPC sufficient funds for the cash amount to be
paid out. If a shareholder is entitled to receive additional
Shares, by virtue of any dividend or distribution,
appropriate credits will be made to the shareholder's
account and/or certificates delivered where requested, all
in accordance with the Dividend Reinvestment Plan.
(c) Communications to Shareholders. Upon timely Written
Instructions, PFPC shall mail all communications by the Fund
to its shareholders, including:
(i) Reports to shareholders;
(ii) Monthly or quarterly (whichever is requested pursuant
to Written Instructions) Dividend Reinvestment Plan
statements;
(iii) Dividend and distribution notices;
(iv) Proxy material; and
(v) Tax form information.
PFPC will receive and tabulate the proxy cards for the
meetings of the Fund's shareholders.
(d) Records. PFPC shall maintain records of the accounts for
each shareholder showing the following information:
(i) Name, address and U.S. Tax Identification or Social
Security number;
(ii) Number and class of shares held and number and class
of Shares for which certificates, if any, have been
issued, including certificate numbers and
denominations;
(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 contemplated or required by this
Agreement.
(e) Shareholder Inspection of Stock Records. Upon request from a
Fund shareholder to inspect stock records, PFPC will notify
the Fund and require instructions granting or denying each
such request. Unless PFPC has acted contrary to the Fund's
instructions, the Fund agrees to release PFPC from any
liability for refusal of permission for a particular
shareholder to inspect the Fund's shareholder records.
15. 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 expenses associated with movement (or duplication)
of records and materials and conversion thereof to a successor
service provider (or each successive service provider), including
expenses incurred after termination, will be borne by the Fund and
paid by the Fund to PFPC.
16. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such
other address as PFPC may inform the Fund in writing); (b) if to the
Fund, at c/o BlackRock Xxxxx Capital Advisors LLC, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxx (or such
other address as the Fund may inform PFPC in writing) 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
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.
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. Assignment. PFPC may assign this Agreement to any majority owned
direct or indirect subsidiary of PFPC or of The PNC Financial
Services Group, Inc. (other than BlackRock, Inc. and its
subsidiaries), provided that PFPC gives the Fund 30 days' prior
written notice of such assignment.
19. Subcontractors. PFPC may, in its sole discretion, engage
subcontractors to perform any of the obligations contained in this
Agreement to be performed by PFPC; provided, however, PFPC shall
remain responsible for the acts and omissions of any such
sub-contractors to the same extent that PFPC is responsible for its
own acts and omissions under this Agreement.
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.
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(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 compensation of
PFPC.
(b) No Changes that Materially Affect Obligations.
Notwithstanding anything in this Agreement to the contrary,
the Fund agrees not to make any modifications to its
offering document or registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC hereunder without the prior written
approval of PFPC, which approval shall not be unreasonably
withheld or delayed.
(c) 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.
(d) Information. The Fund will provide such information and
documentation as PFPC may reasonably request in connection
with services provided by PFPC to the Fund.
(e) 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.
(f) 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.
(g) 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.
(h) 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.
(i) Facsimile Signatures. The facsimile signature of any party
to this Agreement shall constitute the valid and binding
execution hereof by such party.
(j) Regulation S-P. PFPC 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.
(k) Customer Identification Program Notice. 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's affiliates are financial
institutions, and as a matter of policy PFPC will request
(or already has 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:
Title:
BLACKROCK XXXXX CAPITAL
CORPORATION
By:
Title:
