EXHIBIT 10.5
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of July 18, 2005 by and between PFPC
INC., a
Massachusetts corporation ("PFPC"), and BLACKROCK KELSO 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:
(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.
(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.
(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.
(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) balan
