1
Exhibit (k)(1)
TRANSFER AGENCY AND REGISTRAR AGREEMENT
AGREEMENT, dated as of July 18, 1988 between Colonial Intermediate High
Income Fund (the "Fund"), a Massachusetts business trust, and having its
principal place of business at Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx,
00000, and BOSTON SAFE DEPOSIT AND TRUST COMPANY (the "Transfer Agent"), a
Massachusetts trust company with principal offices at Xxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
W I T N E S S E T H :
That for and in consideration of the mutual promises hereinafter set
forth, the Fund and the Transfer Agent agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following
words and phrases, unless the
context otherwise requires, shall have the following meanings:
(a) "Authorized Person" shall be deemed to include the President, any
Vice President, the Secretary, any Assistant Secretary, Treasurer, or any
Assistant Treasurer, or any other person, whether or not such person is an
officer or employee of the Fund, duly authorized to give Oral Instructions or
Written Instructions on behalf of the Fund as indicated in a certificate
furnished to the Transfer Agent pursuant to Section 4(c) hereof as may be
received by the Transfer Agent from time to time;
(b) "Custodian" refers to the custodian and any sub-custodian of all
securities and other property which the Fund may from time to time deposit, or
cause to be deposited or held under the name or account of such custodian
pursuant to the custodian agreement;
(c) "Declaration of Trust" shall mean the Agreement and Declaration of
Trust dated May 24, 1988 of the Fund as now in effect and as the same may be
amended from time to time.
(d) "Oral Instructions" shall mean instructions, other than written
instructions, actually received by the Transfer Agent from a person reasonably
believed by the Transfer Agent to be an Authorized Person;
(e) "Shares" refers to the Shares of Beneficial Interest of the Fund as
may be issued by the Fund from time to time; and
(f) "Written Instructions" shall mean a written communication signed by
a person reasonably believed by the Transfer Agent to be an Authorized Person
and actually received by the Transfer Agent.
2. APPOINTMENT OF THE TRANSFER AGENT. The Fund hereby appoints and
constitutes the Transfer Agent as transfer agent and registrar for the Shares of
the Fund and as shareholder servicing agent for the Fund. The Transfer Agent
accepts such appointments and agrees to perform the duties hereinafter set
forth.
2
3. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT. The Transfer
Agent represents and warrants to the Fund that (a) it is a trust company duly
organized and existing and in good standing under the laws of The Commonwealth
of Massachusetts; (b) it is duly qualified to carry on its business in The
Commonwealth of Massachusetts; (c) it is empowered under applicable laws by its
charter and by-laws to enter into and perform this agreement; (d) all requisite
corporate proceedings have been taken to authorize it to enter into and perform
this Agreement, and (e) it has or will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
4. REPRESENTATIONS-AND WARRANTIES OF THE FUND. The Fund represents and
warrants to the Transfer Agent that (a) it is a business trust duly organized
and existing and in good standing under the laws of The Commonwealth of
Massachusetts; (b) it is empowered under applicable laws and by its Declaration
of Trust and by-laws to enter into and perform this Agreement; (c) all
proceedings required by said Declaration of Trust and by-laws have been taken to
authorize it to enter into and perform this Agreement; and (d) it is a
closed-end, diversified investment company registered under the Investment
Company Act of 1940.
5. COMPENSATION. The Fund will compensate or cause the Transfer Agent to
be compensated for the performance of its obligations hereunder in accordance
with the fees set forth in the Fee Agreement dated July 18, 1988. The Fee
Agreement does not include out-of-pocket disbursements of the Transfer Agent for
which the Transfer Agent shall be entitled to xxxx the Fund separately. The
Transfer Agent will xxxx the Fund as soon as practicable after the end of each
calendar month, and said xxxxxxxx will be detailed in accordance with the Fee
Agreement. The Fund will promptly pay to the Transfer Agent the amount of such
billing.
Out-of-pocket disbursements shall include, but shall not be
limited to, the items specified in the written schedule of out-of-pocket charges
annexed hereto as Schedule A and incorporated herein. Schedule A may be modified
by the Transfer Agent upon not less than 30 days prior written notice to the
Fund. Unspecified out-of-pocket expenses shall be limited to those out-of-pocket
expenses reasonably incurred by the Transfer Agent in the performance of its
obligations hereunder. Reimbursement by the Fund for expenses incurred by the
Transfer Agent in any month shall be made as soon as practicable after the
receipt of an itemized xxxx from the Transfer Agent.
6. DOCUMENTS. In connection with the appointment of the Transfer Agent,
the Fund shall, on or before the date this Agreement goes into effect, but in
any case, within a reasonable period of time for the Transfer Agent to prepare
to perform its duties hereunder, deliver or cause to be delivered to the
Transfer Agent the following documents:
(a) If applicable, specimens of the certificates for the Shares of
the Fund;
(b) All account application forms and other documents relating to
Shareholder accounts or to any plan, program or service offered by the Fund;
(c) Certified copies of each vote of the Trustees of the Fund
designating Authorized Persons and signature cards bearing the signature of any
officer the Fund or other Authorized Person who will sign Written Instructions.
(d) All documents and papers necessary under the laws of Massachusetts,
under the Fund's Declaration of Trust, and as may be required for the due
performance of the Transfer Agent's duties under this Agreement or for the due
performance of additional duties as may from time to time be agreed upon among
the Fund and the Transfer Agent.
2
3
7. DISTRIBUTIONS PAYABLE IN SHARES. In the event that the Board of
Trustees of the Fund shall declare a distribution payable in Shares, the Fund
shall deliver or cause to be delivered to the Transfer Agent written notice of
such declaration signed on behalf of the Fund by an officer thereof, upon which
the Transfer Agent shall be entitled to rely for all purposes, certifying
(i).the identity of the Shares involved, (ii) the number of Shares involved, and
(iii) that all appropriate action has been taken.
Notwithstanding any of the foregoing provisions of the
Agreement, the Transfer Agent shall be under no duty or obligation to inquire
into, and shall not be liable for: (i) the legality of the issuance or sale of
any Shares or the sufficiency of the amount to be received therefor; (ii) the
legality of the repurchase of any Shares, or the propriety of the amount to be
paid therefor; (iii) the legality of the declaration of any dividend by the
Trustees, or the legality of the issuance of any Shares in payment of any
dividend; or (iv) the legality of any recapitalization or readjustment of the
Shares.
8. DUTIES OF THE TRANSFER AGENT. The Transfer Agent shall be responsible
for administering and/or performing transfer agent functions; for performing all
of the customary services of a registrar; and for performing shareholder account
and administrative agent functions in connection with the issuance, transfer and
repurchase (including coordination with the Custodian) of the Shares consistent
with applicable regulations from time to time in effect. The operating standards
and procedures to be followed shall be determined from time to time by agreement
between the Fund and the Transfer Agent.
9. RECORD KEEPING AND OTHER INFORMATION. The Transfer Agent shall create
and maintain all necessary records in accordance with all applicable laws and
rules and regulations. To the extent required by Section 31 of the Investment
Company Act of 1940, as amended, and the rules thereunder, the Transfer Agent
agrees that all such records prepared or maintained by the Transfer Agent
hereunder are the property of the Fund and will be preserved, maintained and
made available in accordance with such section and rules, and will be
surrendered promptly to the Fund on and in accordance with its request.
The Transfer Agent and the Fund agree that 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 by law.
In the case of any requests or demands for the inspection of the
shareholder records of the Fund, the Transfer Agent will endeavor to notify the
Fund and to secure instructions from an authorized officer of the Fund as to
such inspection. The Transfer Agent reserves the right, however, to exhibit the
shareholder records to any person whenever it is advised by its counsel that it
may be held liable for failure to exhibit the shareholder records to such
person.
10. OTHER DUTIES. In addition, the Transfer Agent shall perform such
other duties and functions, and shall be paid amounts therefor, as may from time
to time be agreed upon in writing among the Fund and the Transfer Agent.
11. RELIANCE BY TRANSFER AGENT: Instructions.
(a) The Transfer Agent will be protected in acting upon Written or Oral
Instructions believed to have been executed or orally communicated by an
Authorized Person and will not be held to have any notice of any change of
authority of any person until receipt of a Written Instruction thereof from an
officer of the Fund. The Transfer Agent will also be protected in processing
Share certificates which it reasonably believes to bear the proper manual or
facsimile
3
4
signatures of the officers of the Fund, provided that such Share certificates
bear the proper countersignature of the Transfer Agent.
(b) At any time the Transfer Agent may apply to any Authorized Person of
the Fund for Written Instructions and may seek advice from legal counsel for the
Fund or its own legal counsel, with respect to any matter arising in connection
with this Agreement, and it shall not be liable for any action taken or not
taken or suffered by it in good faith in accordance with such Written
Instructions or in accordance with the opinion of counsel for the Fund or for
the Transfer Agent. Written Instructions requested by the Transfer Agent will be
provided by the Fund within a reasonable period of time. In addition, the
Transfer Agent, its officers, agents or employees, shall accept Oral
Instructions or Written Instructions given to them by any person representing or
acting on behalf of the Fund only if said representative is known by the
Transfer Agent, or its officers, agents or employees, to be an Authorized
Person. The Transfer Agent shall have no duty or obligation to inquire into, nor
shall the Transfer Agent be responsible for, the legality of any act done by it
upon the request or direction of a person reasonably believed by the Transfer
Agent to be an Authorized Person.
12. ACTS OF GOD, ETC. The Transfer Agent will not be liable or
responsible for delays or errors by reason of circumstances beyond its control,
including acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdown beyond its control, flood or
catastrophe, acts of God, insurrection, war, riots or failure beyond its control
of transportation, communication or power supply.
13. DUTY OF CARE AND INDEMNIFICATION. The Fund will indemnify the
Transfer Agent against and hold it harmless from any and all losses, claims,
damages, liabilities or expenses (including reasonable counsel fees and
expenses) resulting from any claim, demand, action or suit not resulting from
the bad faith, negligence or willful misconduct of the Transfer Agent, and
arising out of, or in connection with, its duties hereunder. In addition, the
Fund will indemnify the Transfer Agent against and hold it harmless from any and
all losses, claims, damages, liabilities or expenses (including reasonable
counsel fees and expenses) resulting from any claim, demand, action or suit as a
result of: (i) any action taken in accordance with written or Oral Instructions,
or any other instructions, or Share certificates reasonably believed by the
Transfer Agent to be genuine and to be signed, countersigned or executed, or
orally communicated by an Authorized Person; (ii) any action taken in accordance
with written or oral advice given by counsel for the Fund or its own counsel; or
(iii) any action taken as a result of any error or omission in any record
(including but not limited to magnetic tapes, computer printouts, hard copies
and microfilm copies) delivered, or caused to be delivered by the Fund to the
Transfer Agent in connection with this Agreement.
The Transfer Agent will indemnify the Fund against and hold it
harmless from any and all losses, claims, damages, liabilities or expenses
(including reasonable counsel fees and expenses) arising out of or attributable
to any action or failure or omission to act by the Transfer Agent as a result of
the Transfer Agent's bad faith, negligence or willful misconduct.
In order that the indemnification provisions contained in this
Section 13 shall apply, upon the assertion of a claim for which either party may
be required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised of all pertinent facts concerning the situation in questions and
shall use reasonable care to identify and notify the other party promptly
concerning any situation which presents or appears likely to present a claim for
indemnification under this Section 13. The party who may be required to
indemnify shall have the option to participate with the party seeking
indemnification in the defense of such claim.
4
5
The Fund shall have the option to defend the Transfer Agent
against any claim which may be the subject of this indemnification, and, in the
event that the Fund so elects, such defense shall be conducted by counsel chosen
by the Fund and satisfactory to the Transfer Agent, and thereupon the Fund shall
take over complete defense of the claim and the Transfer Agent shall sustain no
further legal or other expenses in such situation for which it seeks
indemnification under this Section 13. The party seeking indemnification will
not confess any claim or make any compromise in any case in which the other
party will be asked to provide indemnification, except with the other party's
prior written consent. The obligations of the parties hereto under this Section
shall survive the termination of this Agreement.
14. TERM AND TERMINATION. (a) This Agreement shall be effective as of
the date first written above and shall continue until terminated as provided
below.
(b) Either party hereto may terminate this Agreement by giving to the
other party a notice in writing specifying the date of such termination, which
shall be not less than 120 days after the date of receipt of such notice. In the
event such notice is given by the Fund, it shall be accompanied by a resolution
of the Board of Trustees of the Fund, certified by the Secretary of the Fund,
designating a successor transfer agent or transfer agents. Upon such termination
and at the expense of the Fund, the Transfer Agent will deliver to such
successor a certified list of shareholders of the Fund (with names and
addresses), an historical record of the account of each shareholder and the
status thereof, and all other relevant books, records, correspondence, and other
data established or maintained by the Transfer Agent under this Agreement in the
form reasonably acceptable to the Transfer Agent, and will cooperate in the
transfer of such duties and responsibilities, including provisions for
assistance from the Transfer Agent's personnel in the establishment of books,
records and other data by such successor or successors.
15. AMENDMENT. This Agreement may not be amended or modified in any
manner except by a written agreement executed by both parties.
16. SUBCONTRACTING. The Fund agrees that the Transfer Agent may, in its
discretion, subcontract for certain of the services described under this
Agreement or the Schedules hereto; provided that the appointment of any such
subcontractor shall not relieve the Transfer Agent of its responsibilities
hereunder.
17. MISCELLANEOUS.
(a) Any notice or other instrument authorized or required by this
Agreement to be given in writing to the Fund or the Transfer Agent, shall be
sufficiently given if 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:
Colonial Intermediate High Income Fund
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Secretary
To the Transfer Agent:
Boston Safe Deposit and Trust Company
Xxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
5
6
(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.
(d) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original; but such counterparts shall,
together, 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) A copy of the Agreement and Declaration of Trust of the Fund is on
file with the Secretary of The Commonwealth of Massachusetts, and notice is
hereby given that this instrument is executed on behalf of the Trustees of the
Fund as Trustees and not individually and that the obligations of this
instrument are not binding upon any of the Trustees, officers or shareholders
individually but are binding only upon the assets and property of the Fund.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunder duly authorized as of the day
and year first above written.
COLONIAL INTERMEDIATE HIGH INCOME FUND
By: /s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By: /s/ XXXXXXX X. XXXXX
-----------------------------------
Xxxxxxx X. Xxxxx
6
7
Schedule A
OUT-OF-POCKET EXPENSES
The Fund shall reimburse the Transfer Agent monthly for the following
out-of-pocket expenses:
- postage
- mailing, including third party labor charges forms telephone if
- applicable, magnetic tape and freight storage fees for the
- retention of records microfilm/microfiche stationery insurance
- if applicable, terminals, transmitting lines and any expenses
- incurred in connection with such terminals and lines
- all other miscellaneous expenses reasonably incurred by the
Transfer Agent
The Fund agrees that postage and mailing expenses will be paid on the
day of or prior to mailing as agreed with the Transfer Agent and the Transfer
Agent agrees to provide the Fund with an estimate of such postage and mailing
expenses five (5) business days prior to any such mailing. In addition, the Fund
will promptly reimburse the Transfer Agent for any other expenses incurred by
the Transfer Agent as to which the Fund and the Transfer Agent mutually agree
that such expenses are not otherwise properly borne by the Transfer Agent as
part of its duties and obligations under the Agreement.
7
8
Schedule B
DUTIES OF THE AGENT (See Exhibit 1 for Summary of Services)
1. SHAREHOLDER INFORMATION. The Transfer Agent or its agent shall
maintain a record of the number of Shares held by each holder of record which
shall include their addresses and which shall indicate whether such Shares are
held in certificated or uncertificated form.
2. SHAREHOLDER SERVICES. The Transfer Agent or its agent will
investigate all inquiries from shareholders of the Fund relating to Shareholder
accounts and will answer all correspondence from Shareholders and others
relating to its duties hereunder and such other correspondence as may from time
to time be mutually agreed upon between the Transfer Agent and the Fund and
furnish copies of all such inquiries and answers promptly to the Fund.
3. SHARE CERTIFICATES.
(a) At the expense of the Fund, the Transfer Agent or its agent shall
maintain an adequate supply of blank share certificates to meet the Transfer
Agent or its Agent's 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, the Transfer Agent or its agent may continue to countersign
certificates which bear such signatures until otherwise directed by Written
Instructions.
(b) The Transfer Agent or its agent shall issue replacement Share
certificates in lieu of certificates which have been lost, stolen or destroyed,
upon receipt by the Transfer Agent or its agent of properly executed affidavits
and lost certificate bonds, in form satisfactory to the Transfer Agent or its
agent, with the Fund and the Transfer Agent or its agent as obligees under the
bond.
(c) The Transfer Agent or its agent shall also maintain a record of each
certificate issued, the number of Shares represented thereby and the holder of
record. With respect to Shares held in open accounts or uncertificated form,
i.e., no certificate being issued with respect thereto, the Transfer Agent or
its agent shall maintain comparable records of the record holders thereof,
including their names and addresses. The Transfer Agent or its agent shall
further maintain a stop transfer record on lost and/or replaced certificates.
4. MAILING COMMUNICATIONS TO SHAREHOLDERS; PROXY MATERIALS. At the
expense of the Fund, the Transfer Agent or its agent will address and mail to
Shareholders of the Fund, all reports to Shareholders, dividend and distribution
notices and proxy material for any of the Fund's meetings of Shareholders. In
connection with meetings of Shareholders, the Transfer Agent or its agent, at
the expense of the Fund will prepare Shareholder lists, mail and certify as to
the mailing of proxy materials, process and tabulate returned proxy cards,
report on proxies voted prior to meetings, act as inspector of election at
meetings and certify Shares voted at meetings.
5. DIVIDENDS.
(a) NOTICE TO TRANSFER AGENT AND CUSTODIAN. Upon the declaration of each
dividend and each capital gains distribution by the Board of Trustees of the
Fund with respect to Shares of the Fund, the Transfer Agent shall furnish or
cause to be furnished to the Transfer Agent or its agent a copy of a resolution
of the Fund's Board of Trustees certified by the Secretary of the Fund setting
forth the date of the declaration of such dividend or distribution, the
ex-dividend date, the
8
9
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 to the Transfer Agent or its
agent on the payment date and whether such dividend or distribution is to be
paid in Shares of such class at net asset value.
On or before the payment date specified in such resolution of
the Board of Trustees, the Custodian of the Fund will pay to the Transfer Agent
or its agent sufficient cash to make payment to the Shareholders of record as of
such payment date.
(b) INSUFFICIENT FUNDS FOR PAYMENTS. If the Transfer Agent or its agent
does not receive sufficient cash from the Custodian to make total dividend
and/or distribution payments to all Shareholders of the Fund as of the record
date, the Transfer Agent or its agent will, upon notifying the Fund, withhold
payment to all Shareholders of record as of the record date until such
sufficient cash is provided to the Transfer Agent or its agent.
9
10
Exhibit 1
to
Schedule B
Summary of Services
The services to be performed by the Transfer Agent or agent shall be as
follows:
A. DAILY RECORDS
-------------
Maintain daily on disc the following information with respect to
each Shareholder account as received:
- Name and Address (Zip Code)
- Class of Shares
- Balance of Shares held by Transfer Agent
- Beneficial owner code: i.e. male, female, joint
tenant, etc.
- Dividend code (reinvestment)
- Complete register information including the number
of Shares held in certificate form, date of issuance
and certificate numbers
B. OTHER DAILY ACTIVITY
--------------------
- Answer written inquiries relating to Shareholder
accounts (matters relating to portfolio management
distribution of Shares and other management policy
questions wil1 be referred to the Fund).
- Examine and process all transfers of Shares, ensuring
that all transfer requirements and legal documents have
been supplied.
- Issue and mail replacement checks. Issue and mail
replacement certificates.
C. REPORTS PROVIDED TO THE FUND
----------------------------
Furnish the following reports to the Fund:
- Daily financial totals
- Monthly report of outstanding
- Shares Monthly analysis of accounts by beneficial
owner code
- Monthly analysis of accounts by Share range
D. DIVIDEND ACTIVITY
-----------------
- Calculate, process, prepare and mail Share dividends,
checks and statements as instructed by the Fund.
- Compute, prepare and mail all necessary reports to
Shareholders or various authorities as requested by the
Fund.
- Prepare and mail 1099 Statements.
10
11
E. MEETINGS OF SHAREHOLDERS
------------------------
- Cause to be mailed proxy and related material for all
meetings of Shareholders. Tabulate returned proxies
(proxies must be adaptable to mechanical equipment of
the Transfer Agent or its agents) and supply daily
reports when sufficient proxies have been received.
- Prepare and submit to the Fund an Affidavit of
Mailing.
- At the time of the meeting, furnish a certified list
of Shareholders, hard copy, microfilm or microfiche
and, if requested by the Fund, Inspectors of election.
F. PERIODIC ACTIVITIES
-------------------
- Cause to be mailed reports, Fund, and any other
enclosures requested by the Fund (material must be
adaptable to mechanical equipment of Transfer Agent or
its agents).
11
