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EXHIBIT 2(k)(2)
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of June , 1998 by and between PNC BANK, NATIONAL
ASSOCIATION, a national banking association ("PNC"), and CHARTWELL DIVIDEND AND
INCOME FUND, INC., a Maryland corporation (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PNC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to the Fund
and PNC 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 to give Oral
Instructions and Written Instructions on behalf of the Fund and listed on the
Authorized Persons Appendix attached hereto and made a part hereof or any
amendment thereto as may be received by PNC. An Authorized Person's scope of
authority may be limited by the Fund by setting forth such limitation in the
Authorized
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Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by PNC from
an Authorized Person or from a person reasonably believed by PNC to be an
Authorized Person.
(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 common stock of any series or class
of the Fund.
(i) "Written Instructions" mean written instructions signed by an
Authorized Person and received by PNC. The instructions may be delivered by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PNC 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. PNC accepts
such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable,
will provide PNC with the following:
(a) Certified or authenticated copies of the resolutions of the
Fund's Board of Directors, approving the appointment of PNC or
its affiliates to provide services to the Fund and approving
this Agreement;
(b) A copy of the Fund's Registration Statement on Form N-2 under
the 1933 Act and the 1940 Act filed with the SEC;
(c) A copy of the Fund's advisory agreement;
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(d) A copy of the Fund's underwriting agreement;
(e) A copy of the Fund's administration agreement; and
(f) Copies (certified or authenticated where applicable) of any
and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. PNC 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 PNC hereunder. Except as specifically set forth
herein, PNC assumes no responsibility for such compliance by the Fund.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PNC shall act only
upon Oral Instructions and Written Instructions.
(b) PNC shall be entitled to rely upon any Oral Instructions and
Written Instructions it receives from an Authorized Person (or from a person
reasonably believed by PNC to be an Authorized Person) pursuant to this
Agreement. Subject to Section 14(i) hereof, PNC 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 of
the Fund's shareholders, unless and until PNC receives Written Instructions to
the contrary.
(c) The Fund agrees to forward to PNC Written Instructions
confirming Oral Instructions so that PNC 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
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are not received by PNC shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions. Where
Oral Instructions or Written Instructions reasonably appear to have been
received from an Authorized Person, PNC shall incur no liability to the Fund in
acting upon such Oral Instructions or Written Instructions provided that PNC's
actions comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PNC is in doubt as to any action it
should or should not take, PNC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PNC shall be in doubt as to any question
of law pertaining to any action it should or should not take, PNC may request
advice at its own cost from such counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or PNC, at the option of PNC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral Instructions or Written Instructions PNC receives
from the Fund, and the advice it receives from counsel, PNC may rely upon and
follow the advice of counsel.
(d) Protection of PNC. PNC shall be protected in any action it takes
or does not take in reliance upon directions, advice or Oral Instructions or
Written Instructions it receives from the Fund or from counsel and which PNC
believes, in good faith, to be consistent with those directions, advice or Oral
Instructions or Written Instructions. Nothing in this section shall be construed
so as to impose an obligation upon PNC (i) to seek such directions, advice or
Oral Instructions or Written Instructions, or (ii) to act in accordance with
such directions, advice or
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Oral Instructions or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of PNC's properly taking
or not taking such action. Nothing in this subsection shall excuse PNC when an
action or omission on the part of PNC constitutes willful misfeasance, bad
faith, gross negligence or reckless disregard by PNC of any duties, obligations
or responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of PNC, 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 PNC's normal business hours. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by PNC to the Fund or to
an Authorized Person, at the Fund's expense.
8. CONFIDENTIALITY. PNC agrees to keep confidential all records of the
Fund and information relating to the Fund and its shareholders, unless the
release of such records or information is otherwise consented to, in writing, by
the Fund. The Fund agrees that such consent shall not be unreasonably withheld
and may not be withheld where PNC may be exposed to civil or criminal contempt
proceedings or when required to divulge such information or records to duly
constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. PNC 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.
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10. DISASTER RECOVERY. PNC 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, PNC shall, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions.
11. COMPENSATION. As compensation for services rendered by PNC during
the term of this Agreement, the Fund will pay to PNC a fee or fees as may be
agreed to from time to time in writing by the Fund and PNC.
12. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless PNC
and its affiliates from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws, and
amendments thereto), and expenses, including (without limitation) reasonable
attorneys' fees and disbursements, arising directly or indirectly from (i) any
action or omission to act which PNC takes (a) at the request or on the direction
of or in reliance on the advice of the Fund or (b) upon Oral Instructions or
Written Instructions or (ii) the acceptance, processing and/or negotiation of
checks or other methods utilized for the purchase of Shares. Neither PNC, nor
any of its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) arising out of PNC'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 PNC's or its affiliates own willful misfeasance, bad faith, negligence or
reckless disregard of such duties and
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obligations.
13. RESPONSIBILITY OF PNC.
(a) PNC shall be under no duty to take any action on behalf of the
Fund except as specifically set forth herein or as may be specifically agreed to
by PNC in writing. PNC shall be obligated to exercise care and diligence in the
performance of its duties hereunder, to act in good faith and to use its best
efforts, within reasonable limits, in performing services provided for under
this Agreement. PNC shall be liable for any damages arising out of PNC's failure
to perform its duties under this Agreement to the extent such damages arise out
of PNC's willful misfeasance, bad faith, gross negligence or reckless disregard
of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PNC shall not be liable for losses beyond its
control, provided that PNC has acted in accordance with the standard of care set
forth above; and (ii) PNC shall not be under any duty or obligation to inquire
into and shall not be liable for (A) the validity or invalidity or authority or
lack thereof of any Oral Instruction or Written Instruction, notice or other
instrument which conforms to the applicable requirements of this Agreement, and
which PNC reasonably believes to be genuine; or (B) subject to Section 10,
delays or errors or loss of data occurring by reason of circumstances beyond
PNC's control, including acts of civil or military authority, national
emergencies, labor difficulties, fire, flood, catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PNC nor its affiliates shall be liable to the Fund for any
consequential, special or indirect losses or damages which the Fund may incur or
suffer by or as a consequence of PNC's or its affiliates'
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performance of the services provided hereunder, whether or not the likelihood of
such losses or damages was known by PNC or its affiliates.
(d) PNC is in the process of preparing its electronic data
processing systems and programs for the arrival of the year 2000, and will
inform the Fund of the status of such preparations upon reasonable request. Such
systems and programs utilized by PNC to provide services to the Fund under this
Agreement will be able to process date-related data on and after January 1,
2000.
14. DESCRIPTION OF SERVICES
(a) Services Provided on an Ongoing Basis by PNC to the Fund.
(i) Maintain proper shareholder registrations;
(ii) Countersign certificates of stock;
(iii) Provide toll-free lines for direct shareholder use, plus
customer liaison staff for on-line inquiry response;
(iv) Provide periodic shareholder lists and statistics;
(v) Mailing of year-end tax information; and
(vi) Periodic mailing of shareholder account information and
Fund financial reports.
(b) Cancellation and Reissuance of Shares. Upon receipt of
appropriate notification of cancellation and reissuance, PNC shall cancel,
reissue and credit the account of the investor or other recordholder with Shares
in accordance with standard industry practice.
(c) Dividends and Distributions. PNC 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, PNC 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
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withheld in accordance with any applicable tax laws or other laws, rules or
regulations. PNC 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.
Pursuant to Written Instructions, PNC may arrange for the direct payment
of cash dividends and distributions to shareholders by the Fund's custodian,
instead of PNC Bank disbursing such funds to the shareholder after receipt from
the Fund's custodian.
PNC shall maintain and file with the United States 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 the Prospectus and such procedures and controls as are
mutually agreed upon from time to time by and among the Fund, PNC and the Fund's
Custodian, PNC shall process applications from Shareholders relating to the
Fund's Dividend Reinvestment Plan ("Dividend Reinvestment Plan") and will effect
purchases of Shares in connection with the Dividend Reinvestment Plan. As the
dividend disbursing agent, PNC shall, on or before the payment date of any such
dividend or distribution, notify the fund 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 distribution, the
Fund shall instruct the custodian to make available to the dividend disbursing
agent sufficient funds for the cash amount to be paid out. If a shareholder is
entitled to receive additional Shares, by virtue of any distribution or
dividend, appropriate credits will be made to his or her account and/or
certificates delivered
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where requested, all in accordance with the Dividend Reinvestment Plan.
(d) Communications to Shareholders. Upon timely written
instructions, PNC shall mail all communications by the Fund to its shareholders,
including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
PNC will receive and tabulate the proxy cards for the meetings
of the Fund's shareholders.
(e) Records. PNC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class of shares held 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 the transfer agent
to perform any calculations contemplated or required by
this Agreement.
(f) Lost or Stolen Certificates. PNC shall place a stop notice
against any certificate reported to be lost or stolen and comply with all
applicable federal regulatory
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requirements for reporting such loss or alleged misappropriation.
A new certificate shall be registered and issued upon:
(i) Shareholder's pledge of a lost instrument bond or such
other appropriate indemnity bond issued by a surety
company approved by PNC Bank; and
(ii) Completion of a release and indemnification agreement
signed by the shareholder to protect the Fund and PNC.
(g) Shareholder Inspection of Stock Records. Upon requests from Fund
shareholders to inspect stock records, PNC will notify the Fund and require
instructions granting or denying each such request.
Unless PNC has acted contrary to the Fund's instructions, the Fund agrees
to release PNC from any liability for refusal of permission for a particular
shareholder to inspect the Fund's shareholder records.
(h) (IF APPLICABLE) Withdrawal of Shares and Cancellation of
Certificates. Upon receipt of Written Instructions, PNC shall cancel outstanding
certificates surrendered by the Fund to reduce the total amount of outstanding
shares by the number of shares surrendered by the Fund.
(i) Registration of Original Issue Stock Certificates. PNC, as
registrar, will register original issues of stock certificates upon the
presentation to it for that purpose by the transfer agent of signed and
countersigned stock certificates. PNC shall record issues of Shares of the stock
of the Fund, and shall notify the Fund in case any proposed issue of Shares by
the Fund would result in an over-issue as defined by Article 8 of the Uniform
Commercial Code and, in such event, shall refuse to credit such Shares and shall
not countersign and issue certificates
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for such Shares.
15. DURATION AND TERMINATION. This Agreement shall be effective on the
date first above written and shall continue in effect for an initial period of
two (2) years. Thereafter, this Agreement shall continue automatically for
successive terms of one (1) year; provided, however, that this Agreement may be
terminated on its anniversary date by either party upon 90 days' written notice
to the other party.
16. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. Notices shall be addressed (a) if to PNC, c/o PFPC
Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (b) if to the Fund,
c/o Chartwell Investment Partners, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ , Attn: 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.
17. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
18. DELEGATION; ASSIGNMENT. PNC may assign its rights and delegate its
duties hereunder to any wholly-owned direct or indirect subsidiary of PNC Bank,
National Association or PNC Bank Corp., provided that (i) the Fund has consented
thereto in writing; (ii) the delegate
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(or assignee) agrees with PNC and the Fund to comply with all relevant
provisions of the 1940 Act; and (iii) PNC and such delegate (or assignee)
promptly provide such information as the Fund may request, and respond to such
questions as the Fund may ask, relative to the delegation (or assignment),
including (without limitation) the capabilities of the delegate (or assignee).
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
21. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody in one or more separate documents their agreement, if any, with
respect to delegated duties and Oral Instructions.
(b) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(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
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be affected thereby.
(e) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
(f) Facsimile Signatures. The facsimile signature of any party
to this Agreement shall constitute the valid and binding execution hereof by
such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PNC BANK, NATIONAL ASSOCIATION
By:_________________________________
Title:______________________________
CHARTWELL DIVIDEND AND INCOME FUND, INC.
By:_________________________________
Title:______________________________
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
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June , 1998
CHARTWELL DIVIDEND AND INCOME FUND, INC.
RE: TRANSFER AGENCY SERVICES FEES
Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation to be
paid to PNC Bank, National Association ("PNC") for services provided under the
terms of a Transfer Agency Services Agreement dated June , 1998 between PNC
and Chartwell Dividend and Income Fund, Inc. ("you" or the "Fund") (the
"Agreement"). Pursuant to paragraph 11 of the Agreement, and in consideration
of the services to be provided to the Fund, the Fund will pay PNC certain fees
and reimburse PNC for its out-of-pocket expenses incurred on its behalf, as
follows:
1) Account Fee:
Monthly Dividend: $15.00 per account per annum
Inactive Account: $ .30 per account per month
Fees shall be calculated and paid monthly based on one-twelfth (1/12th) of
the annual fee. An inactive account is defined as having a zero balance
with no dividend payable. Inactive accounts are purged annually after
year-end tax reporting.
2) Minimum Monthly Fee:
$2,500 for each retail closed-end portfolio; excluding out-of-pocket
expenses.
3) Out-of-pocket expenses include but are not limited to: telephone lines;
forms; envelopes; postage; overnight delivery; mailgrams; microfilm/microfiche;
mailing charges; costs of proxy solicitation, mailing and tabulating; record
retention/storage; notice mailing; account transcripts; costs of locating lost
shareholders; fulfillment; maintenance of accounts payable/broker invoices; New
York site drop agency fees; ad hoc reports/labels/user tapes; conversion
expenses; developing/programming costs; travel expenses incurred at the request
of the Fund; training expenses; and expenses incurred at the direction of the
Fund.
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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 PNC.
The fee for the period from the date hereof until the end of the year shall
be prorated according to the proportion which such period bears to the full
annual period.
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,
PNC BANK, NATIONAL ASSOCIATION
By: _________________
Title: ______________
Agreed and Accepted:
CHARTWELL DIVIDEND AND INCOME FUND, INC.
By: _________________
Title: ______________
