EXHIBIT 10.4
CUSTODIAN SERVICES AGREEMENT
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THIS AGREEMENT is made as of July 18, 2005 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of
Delaware ("PFPC Trust"), 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 Trust to provide custodian
services provided for herein, and PFPC Trust 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 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) "Book-Entry System" means the Federal Reserve Treasury
book-entry system for United States and federal agency
securities, its successor or successors, and its nominee or
nominees and any book-entry system registered with the
Securities and Exchange Commission under the Securities
Exchange Act of 1934.
(c) "Oral Instructions" mean oral instructions received by PFPC
Trust from an Authorized Person or from a person reasonably
believed by PFPC Trust to be an Authorized Person. PFPC Trust
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) "Property" means:
(i) any and all securities and other investment items
which the Fund may from time to time deposit, or
cause to be deposited, with PFPC Trust or which PFPC
Trust may from time to time hold for the Fund;
(ii) all income in respect of any of such securities or
other investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of Shares issued by the
Fund, which are received by PFPC Trust from time to
time, from or on behalf of the Fund.
(f) "Written Instructions" means (i) written instructions signed by
an Authorized Person (or a person reasonably believed by PFPC
Trust to be an Authorized Person) and received by PFPC Trust or
(ii) trade instructions transmitted (and received by PFPC
Trust) by means of an electronic transaction reporting system
access to which requires use of a password or other authorized
identifier
(g) "1940 Act" means the Investment Company Act of 1940, as
amended.
2. Appointment. The Fund hereby appoints PFPC Trust to provide custodian
services in accordance with the terms set forth in this Agreement. PFPC
Trust accepts such appointment and agrees to furnish such services.
3. Compliance with Rules and Regulations.
PFPC Trust 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 Trust under this Agreement. Except as
specifically set forth in this Agreement, PFPC Trust assumes no
responsibility for compliance by the Fund with any laws, rules and
regulations.
4. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall
act only upon Oral Instructions or Written Instructions.
(b) PFPC Trust 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 Trust to be an
Authorized Person) pursuant to this Agreement. PFPC Trust 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 Trust receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions so that PFPC Trust 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 Trust
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 Trust's ability to
rely upon such Oral Instructions.
5. Right to Receive Advice.
(a) Advice of the Fund. If PFPC Trust is in doubt as to any action
it should or should not take, PFPC Trust may request directions
or advice, by way of Oral Instructions or Written Instructions.
(b) Advice of Counsel. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC Trust may request advice from counsel of its own
choosing (who may be counsel for the Fund, the Fund's sponsor
or adviser or PFPC Trust, at the option of PFPC Trust).
(c) Conflicting Advice. In the event of a conflict between Oral
Instructions or Written Instructions and the advice PFPC Trust
receives from counsel, PFPC Trust may rely upon and follow the
advice of counsel.
(d) Protection of PFPC Trust. PFPC Trust shall be indemnified by
the Fund and without liability for any action PFPC Trust takes
or does not take in reliance upon Oral Instructions or Written
Instructions PFPC Trust receives from or on behalf of the Fund
or advice from counsel and which PFPC Trust 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 Trust (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 Trust 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 Trust 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 Trust, shall be the
property of the Fund. PFPC Trust may house such books and records in a
third party storage facility. 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 Trust's normal business hours; provided that the Fund shall
not authorize access by any individuals employed by PFPC Trust's direct
competitors. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by PFPC Trust 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
Trust; (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
Trust 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 Trust to release such information in
connection with the provision of services under this Agreement; or (h)
has been or is independently developed or obtained by the receiving
party.
8. Cooperation with Accountants. PFPC Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable action to
make any requested information available to such accountants as
reasonably requested by the Fund.
9. PFPC System. PFPC Trust 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 Trust in connection with the services provided by PFPC
Trust to the Fund.
10. Disaster Recovery. PFPC Trust 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 Trust shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC Trust 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 Trust's own willful misfeasance, bad
faith, negligence or reckless disregard of its duties or obligations
under this Agreement.
11. Compensation.
(a) As compensation for custody services that are rendered by PFPC
Trust during the term of this Agreement, the Fund will pay to
PFPC Trust a fee or fees as may be agreed to in writing by the
Fund and PFPC Trust. The Fund acknowledges that PFPC Trust may
receive float benefits in connection with maintaining certain
accounts required to provide services under this Agreement.
(b) The undersigned hereby represents and warrants to PFPC Trust
that (i) the terms of this Agreement, (ii) the fees and
expenses associated with this Agreement, and (iii) any benefits
accruing to PFPC Trust 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 Trust to such adviser or sponsor or any affiliate
of the Fund relating to this 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 Trust and its affiliates (other than the Fund, BlackRock Kelso
Capital Advisors LLC and BlackRock, Inc. and its subsidiaries, to the
extent any of the foregoing may be deemed to be affiliates of PFPC
Trust) including their respective officers, directors, agents and
employees (each, a "PFPC Trust Indemnified Party") 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
Trust takes or omits to take in connection with the provision of
services to the Fund hereunder. No PFPC Trust Indemnified Party shall be
indemnified against any Losses caused by PFPC Trust's or such PFPC Trust
Indemnified Party's own willful misfeasance, bad faith, negligence or
reckless disregard in the performance of PFPC Trust's duties under this
Agreement. The provisions of this Section 12 shall survive termination
of this Agreement.
13. Responsibility of PFPC Trust.
(a) PFPC Trust 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 Trust and the Fund
in a written amendment hereto. In particular but without
limiting the generality of the foregoing, PFPC Trust shall have
no responsibility or obligation under Section 14 of this
Agreement with respect to any loan documentation or with
respect to any loan made or purchased by the Fund unless
specific language in Section 14 of this Agreement states with
specificity that a particular provision of Section 14 of this
Agreement relates to loan documentation or to loans made or
purchased by the Fund. In no event will PFPC Trust have any
duty to review or examine any loan documentation received by it
hereunder, nor in any event will PFPC Trust have any
responsibility for the content or sufficiency of any such loan
documentation. PFPC Trust 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 Trust shall be liable only for any Losses
suffered by the Fund arising out of PFPC Trust's performance of
or failure to perform its duties under this Agreement and only
to the extent such Losses arise out of PFPC Trust's willful
misfeasance, bad faith, negligence or reckless disregard of
such duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i)
PFPC Trust 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 Trust (other than the Fund,
BlackRock Kelso Capital Advisors LLC and BlackRock, Inc. and
its subsidiaries, to the extent any of the foregoing may be
deemed to be affiliates of PFPC Trust)); and (ii) PFPC Trust
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 Trust reasonably believes to be genuine.
Notwithstanding the foregoing, PFPC Trust 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
Trust.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC Trust nor its affiliates (not including the Fund,
BlackRock Kelso Capital Advisors LLC and BlackRock, Inc. and
its subsidiaries, to the extent any of the foregoing may be
deemed to be affiliates of PFPC Trust) 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 Trust or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(e) Notwithstanding anything in this Agreement to the contrary
(other than as specifically provided in Section 14(h)(ii)(B)(4)
and Section 14(h)(iii)(A) of this Agreement), the Fund shall be
responsible for all filings, tax returns and reports on any
transactions undertaken or amounts received pursuant to this
Agreement, or in respect of the Property or any collections
undertaken pursuant to this Agreement, which may be requested
by any relevant authority. In addition, the Fund shall be
responsible for the payment of all taxes and similar items
(including without limitation penalties and interest related
thereto).
(f) The provisions of this Section 13 shall survive termination of
this Agreement.
14. Description of Services.
(a) Delivery of the Property. The Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Fund,
including cash received as a result of the issuance of Shares,
during the term of this Agreement. In addition, the Fund will
deliver or arrange for delivery to PFPC Trust loan
documentation relating to loans made or purchased by the Fund.
PFPC Trust will safekeep loan documentation received by it
hereunder and PFPC Trust will in accordance with Oral
Instructions or Written Instructions transfer, release or
dispose of loan documentation received by it hereunder, but
notwithstanding anything in this Agreement to the contrary PFPC
Trust will not otherwise have any responsibility with respect
to any loan documentation received by it hereunder. PFPC Trust
will not be responsible for any assets or loan documentation
until actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon
Written Instructions, shall open and maintain a separate
account for the Fund (the "Account") and shall maintain in the
Account all cash and other assets received from or for the
Fund. PFPC Trust will also in accordance with Oral Instructions
or Written Instructions reflect on its books and records the
loans made or purchased by the Fund (provided PFPC Trust has
been informed of such loans pursuant to Oral Instructions or
Written Instructions).
PFPC Trust shall make cash payments from or for the Account
only for:
(i) purchases of securities in the name of the Fund, PFPC
Trust, PFPC Trust's nominee or a sub-custodian or
nominee thereof as provided in sub-section (j) and for
which PFPC Trust has received a copy of the broker's
or dealer's confirmation or payee's invoice, as
appropriate;
(ii) loans made or purchased by the Fund, upon receipt of
Written Instructions;
(iii) purchase or redemption of Shares of the Fund delivered
to PFPC Trust;
(iv) payment of, subject to Written Instructions, interest,
taxes (provided that tax which PFPC Trust considers is
required to be deducted or withheld "at source" will
be governed by Section 14(h)(iii)(B) of this
Agreement), and administration, accounting,
distribution, advisory, management and other fees
which are to be borne by the Fund;
(v) payment to, subject to receipt of Written
Instructions, the Fund's transfer agent, as agent for
the shareholders, of an amount equal to the amount of
dividends and distributions stated in the Written
Instructions to be distributed in cash by the transfer
agent to shareholders, or, in lieu of paying the
Fund's transfer agent, PFPC Trust may arrange for the
direct payment of cash dividends and distributions to
shareholders in accordance with procedures mutually
agreed upon from time to time by and among the Fund,
PFPC Trust and the Fund's transfer agent;
(vi) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender
of securities owned or subscribed to by the Fund and
held by or delivered to PFPC Trust;
(vii) payments of the amounts of dividends received with
respect to securities sold short;
(viii) payments to PFPC Trust for its services hereunder;
(ix) payments made to a sub-custodian; and
(x) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received as custodian
for the Account.
(c) Receipt of Securities; Subcustodians.
PFPC Trust shall hold all securities received by it for the Account in a
separate account that physically segregates such securities from those
of any other persons, firms or corporations, except for securities held
in a Book-Entry System or through a sub-custodian or depository. All
such securities shall be held or disposed of only upon Written
Instructions or otherwise pursuant to the terms of this Agreement. In
addition, PFPC Trust will hold all loan documentation received by it for
the Fund in a separate account that physically segregates such loan
documentation from that relating to any other persons, firms or
corporations. PFPC Trust shall have no power or authority to assign,
hypothecate, pledge or otherwise dispose of any securities or other
investments, except upon the express terms of this Agreement or upon
Written Instructions authorizing the transaction. In no case may any
member of the Fund's board of directors, or any officer, employee or
agent of the Fund withdraw any securities.
At PFPC Trust's own expense and for its own convenience, PFPC Trust may
enter into sub-custodian agreements with other banks or trust companies
to perform duties with respect to domestic assets and with respect to
loan documentation maintained within the U.S. Such bank or trust company
shall have aggregate capital, surplus and undivided profits, according
to its last published report, of at least one million dollars
($1,000,000), if it is a subsidiary or affiliate of PFPC Trust, or at
least twenty million dollars ($20,000,000) if such bank or trust company
is not a subsidiary or affiliate of PFPC Trust. Any such arrangement
will not be entered into without prior written notice to the Fund (or as
otherwise provided in the 1940 Act).
In addition, PFPC Trust may enter into arrangements with sub-custodians
with respect to services regarding foreign assets and with respect to
services regarding loan documentation maintained outside the U.S. Any
such arrangement will not be entered into without prior written notice
to the Fund (or as otherwise provided in the 1940 Act).
PFPC Trust shall remain responsible for the acts and omissions of any
sub-custodian chosen by PFPC Trust under the terms of this sub-section
(c) to the same extent that PFPC Trust is responsible for its own acts
and omissions under this Agreement.
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC
Trust shall:
(i) deliver any securities held for the Fund against the
receipt of payment for the sale of such securities or
otherwise in accordance with standard market practice;
(ii) execute and deliver to such persons as may be
designated in such Oral Instructions or Written
Instructions, proxies, consents, authorizations, and
any other instruments whereby the authority of the
Fund as owner of any securities may be exercised;
(iii) deliver any securities to the issuer thereof, or its
agent, when such securities are called, redeemed,
retired or otherwise become payable at the option of
the holder; provided that, in any such case, the cash
or other consideration is to be delivered to PFPC
Trust;
(iv) deliver any securities held for the Fund against
receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization,
refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise
of any conversion privilege;
(v) deliver any securities held for the Fund to any
protective committee, reorganization committee or
other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization
or sale of assets of any corporation, and receive and
hold under the terms of this Agreement such
certificates of deposit, interim receipts or other
instruments or documents as may be issued to it to
evidence such delivery;
(vi) make such transfer or exchanges of the assets of the
Fund and take such other steps as shall be stated in
said Oral Instructions or Written Instructions to be
for the purpose of effectuating a duly authorized plan
of liquidation, reorganization, merger, consolidation
or recapitalization of the Fund;
(vii) release securities belonging to the Fund to any bank
or trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the Fund;
provided, however, that securities shall be released
only upon payment to PFPC Trust of the monies
borrowed, except that in cases where additional
collateral is required to secure a borrowing already
made, subject to proper prior authorization, further
securities may be released for that purpose; and repay
such loan upon redelivery to it of the securities
pledged or hypothecated therefor and upon surrender of
the note or notes evidencing the loan;
(viii) release and deliver securities owned by the Fund in
connection with any repurchase agreement entered into
by the Fund, but only on receipt of payment therefor;
and pay out monies of the Fund in connection with such
repurchase agreements, but only upon the delivery of
the securities;
(ix) release and deliver or exchange securities owned by
the Fund in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities to a broker in
connection with the broker's custody of margin
collateral relating to futures and options
transactions;
(xi) release and deliver securities owned by the Fund for
the purpose of redeeming in kind Shares of the Fund
upon delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities or other
assets (not including cash) owned by the Fund for
other purposes.
(e) Use of Book-Entry System or Other Depository. PFPC Trust will
deposit in Book-Entry Systems and other depositories all
securities belonging to the Fund eligible for deposit therein
and will utilize Book-Entry Systems and other depositories to
the extent possible in connection with settlements of purchases
and sales of securities by the Fund, and deliveries and returns
of securities loaned, subject to repurchase agreements or used
as collateral in connection with borrowings. PFPC Trust shall
continue to perform such duties until it receives Written
Instructions or Oral Instructions authorizing contrary actions.
Notwithstanding anything in this Agreement to the contrary,
PFPC Trust's use of a Book-Entry System shall comply with the
requirements of Rule 17f-4 under the 1940 Act.
PFPC Trust shall administer a Book-Entry System or other depository as
follows:
(i) With respect to securities of the Fund which are
maintained in a Book-Entry System or another
depository, the records of PFPC Trust shall identify
by book-entry or otherwise those securities as
belonging to the Fund.
(ii) Assets of the Fund deposited in a Book-Entry System or
another depository will (to the extent consistent with
applicable law and standard practice) at all times be
segregated from any assets and cash controlled by PFPC
Trust in other than a fiduciary or custodian capacity
but may be commingled with other assets held in such
capacities.
PFPC Trust will provide the Fund with such reports on its own system of
internal control as the Fund may reasonably request from time to time.
In addition, if permitted to do so PFPC Trust will provide the Fund with
copies of any report obtained by PFPC Trust regarding the system of
internal accounting control of the Book-Entry System promptly after
receipt of such a report by PFPC Trust.
(f) Registration of Securities. All securities held for the Fund
which are issued or issuable only in bearer form, except such
securities maintained in the Book-Entry System or in another
depository, shall be held by PFPC Trust in bearer form; all
other securities maintained for the Fund may be registered in
the name of the Fund, PFPC Trust, a Book-Entry System, another
depository, a sub-custodian, or any duly appointed nominee of
the Fund, PFPC Trust, Book-Entry System, depository or
sub-custodian. The Fund reserves the right to instruct PFPC
Trust as to the method of registration and safekeeping of the
securities of the Fund. The Fund agrees to furnish to PFPC
Trust appropriate instruments to enable PFPC Trust to maintain
or deliver in proper form for transfer, or to register in the
name of its nominee or in the name of the Book-Entry System or
in the name of another appropriate entity, any securities which
it may maintain for the Account. With respect to uncertificated
securities which are registered in the name of the Fund or a
nominee thereof (for clarity, such reference is not intended to
include loans made or purchased by the Fund), PFPC Trust will
reflect such securities on its records based upon the holdings
information provided to it by the issuer of such securities,
but notwithstanding anything in this Agreement to the contrary
PFPC Trust shall not be obligated to safekeep such securities
or to perform other duties with respect to such securities
other than to make payment for the purchase of such securities
upon receipt of Oral or Written Instructions, accept in sale
proceeds received by PFPC Trust upon the sale of such
securities of which PFPC Trust is informed pursuant to Oral or
Written Instructions, and accept in other distributions
received by PFPC Trust with respect to such securities or
reflect on its records any reinvested distributions with
respect to such securities of which it is informed by the
issuer of the securities.
(g) Voting and Other Action. Neither PFPC Trust nor its nominee
shall vote any of the securities held pursuant to this
Agreement by or for the account of the Fund, except in
accordance with Written Instructions. PFPC Trust, directly or
through the use of another entity, shall execute in blank and
promptly deliver all notices, proxies and proxy soliciting
materials received by PFPC Trust as custodian of the Property
to the registered holder of such securities. If the registered
holder is not the Fund, then Written Instructions or Oral
Instructions must designate the person who owns such
securities.
(h) Transactions Not Requiring Instructions. Notwithstanding
anything in this Agreement requiring instructions in order to
take a particular action, in the absence of a contrary Written
Instruction, PFPC Trust is authorized to take the following
actions without the need for instructions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the Fund,
all income, dividends, distributions, coupons,
option premiums, other payments and similar
items, included or to be included in the
Property, and, in addition, promptly advise the
Fund of such receipt and credit such income to
the Account;
(B) endorse and deposit for collection, in the name
of the Fund, checks, drafts, or other orders for
the payment of money;
(C) receive and hold for the account of the Fund all
securities received as a distribution on the
Fund's securities as a result of a stock
dividend, share split-up or reorganization,
recapitalization, readjustment or other
rearrangement or distribution of rights or
similar securities issued with respect to any
securities belonging to the Fund and held by
PFPC Trust hereunder;
(D) present for payment and collect the amount
payable upon all securities which may mature or
be called, redeemed, retired or otherwise become
payable (on a mandatory basis) on the date such
securities become payable; and
(E) take any action which may be necessary and
proper in connection with the collection and
receipt of such income and other payments and
the endorsement for collection of checks,
drafts, and other negotiable instruments.
(ii) Miscellaneous Transactions.
(A) PFPC Trust is authorized to deliver or cause to
be delivered Property against payment or other
consideration or written receipt therefor in the
following cases:
(1) for examination by a broker or dealer
selling for the account of the Fund in
accordance with street delivery
custom;
(2) for the exchange of interim receipts
or temporary securities for definitive
securities; and
(3) for transfer of securities into the
name of the Fund or PFPC Trust or a
sub-custodian or a nominee of one of
the foregoing, or for exchange of
securities for a different number of
bonds, certificates, or other
evidence, representing the same
aggregate face amount or number of
units bearing the same interest rate,
maturity date and call provisions, if
any; provided that, in any such case,
the new securities are to be delivered
to PFPC Trust.
(B) PFPC Trust shall:
(1) pay all income items held by it which
call for payment upon presentation,
and hold the cash received by it upon
such payment for the account of the
Fund;
(2) collect interest and cash dividends
received, with notice to the Fund, to
the account of the Fund;
(3) hold for the account of the Fund all
stock dividends, rights and similar
securities issued with respect to any
securities held by PFPC Trust; and
(4) subject to receipt of such
documentation and information as PFPC
Trust may request, execute as agent on
behalf of the Fund all necessary
ownership certificates required by a
national governmental taxing authority
or under the laws of any U.S. state
now or hereafter in effect, inserting
the Fund's name on such certificate as
the owner of the securities covered
thereby, to the extent it may lawfully
do so.
(iii) Other Matters.
(A) subject to receipt of such documentation and
information as PFPC Trust may request, PFPC
Trust will, in such jurisdictions as PFPC Trust
may agree from time to time, seek to reclaim or
obtain a reduction with respect to any
withholdings or other taxes relating to assets
maintained hereunder (provided that PFPC Trust
will not be liable for failure to obtain any
particular relief in a particular jurisdiction);
and
(B) PFPC Trust is authorized to deduct or withhold
any sum in respect of tax which PFPC Trust
considers is required to be deducted or withheld
"at source" by any relevant law or practice.
(i) Segregated Accounts. PFPC Trust shall upon receipt of Written
Instructions or Oral Instructions establish and maintain
segregated accounts on its records for and on behalf of the
Fund. Such accounts may, among other things, be used to
transfer cash and other assets of the Fund.
(j) Purchases of Securities. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written
Instructions that specify:
(i) the name of the issuer and the title of the
securities, including CUSIP number if applicable;
(ii) the number of shares or the principal amount purchased
and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase; and
(vi) the name of the person from whom or the broker through
whom the purchase was made. PFPC Trust shall upon
receipt of securities purchased by or for the Fund (or
otherwise in accordance with standard market practice)
pay out of the monies held for the account of the Fund
the total amount payable to the person from whom or
the broker through whom the purchase was made,
provided that the same conforms to the total amount
payable as set forth in such Oral Instructions or
Written Instructions.
(k) Sales of Securities. PFPC Trust shall settle sold securities
upon receipt of Oral
Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and
accrued interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(vi) the name of the broker through whom or the person to
whom the sale was made; and
(vii) the location to which the security must be delivered
and delivery deadline, if any.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Fund upon such sale, provided that the total
amount payable is the same as was set forth in the Oral Instructions or
Written Instructions. Notwithstanding anything to the contrary in this
Agreement, PFPC Trust may accept payment in such form as is consistent
with standard market practice and may deliver assets and arrange for
payment in accordance with standard market practice.
(l) Reports; Proxy Materials.
(i) PFPC Trust shall furnish to the Fund the following
reports:
(A) such periodic and special reports as the Fund
may reasonably request;
(B) a monthly statement (1) summarizing the
transactions and entries for the account of the
Fund during such month (including cash
disbursements and including loans made or
purchased by the Fund (provided PFPC Trust has
been informed of such loan transaction
information pursuant to Oral Instructions or
Written Instructions)) and (2) listing each
portfolio security belonging to the Fund (with
the corresponding security identification
number) held at the end of such month, the loans
reflected on PFPC Trust's books and records as
both made or purchased by the Fund and held by
the Fund at the end of such month, and the cash
balance of the Fund held at the end of such
month;
(C) the reports required to be furnished to the Fund
pursuant to Rule 17f-4 of the 1940 Act; and
(D) such other information as may be agreed upon
from time to time between the Fund and PFPC
Trust.
(ii) PFPC Trust shall transmit promptly to the Fund any
proxy statement, proxy material, notice of a call or
conversion or similar communication received by it as
custodian of the Property. PFPC Trust shall be under
no other obligation to inform the Fund as to such
actions or events. For clarification, upon termination
of this Agreement PFPC Trust shall have no
responsibility to transmit such material or to inform
the Fund or any other person of such actions or
events.
(m) Crediting of the Account. PFPC Trust may in its sole discretion
credit the Account with respect to income, dividends,
distributions, coupons, option premiums, other payments or
similar items prior to PFPC Trust's actual receipt thereof, and
in addition PFPC Trust may in its sole discretion credit or
debit the assets in the Account on a contractual settlement
date with respect to any sale, exchange, purchase or other
transaction applicable to the Fund; provided that nothing in
this Agreement or otherwise shall require PFPC Trust to make
any advances or to credit any amounts until PFPC Trust's actual
receipt thereof. If PFPC Trust credits the Account with respect
to (a) income, dividends, distributions, coupons, option
premiums, other payments or similar items on a contractual
payment date or otherwise in advance of PFPC Trust's actual
receipt of the amount due, (b) the proceeds of any sale or
other disposition of assets on the contractual settlement date
or otherwise in advance of PFPC Trust's actual receipt of the
amount due or (c) provisional crediting of any amounts due, and
(i) PFPC Trust is subsequently unable to collect full and final
payment for the amounts so credited within a reasonable time
period using reasonable efforts or (ii) pursuant to standard
industry practice, law or regulation PFPC Trust is required to
repay to a third party such amounts so credited, or if any
Property has been incorrectly credited, PFPC Trust shall have
the absolute right in its sole discretion without demand to
reverse any such credit or payment, to debit or deduct the
amount of such credit or payment from the Account, and to
otherwise pursue recovery of any such amounts so credited from
the Fund. The Fund hereby grants to PFPC Trust and to each
sub-custodian utilized by PFPC Trust in connection with
providing services to the Fund a first priority contractual
possessory security interest in and a right of setoff against
the assets maintained in the Account in the amount necessary to
secure the return and payment to PFPC Trust and to each such
sub-custodian of any advance or credit made by PFPC Trust
and/or by such sub-custodian (including charges related
thereto) to the Account. Notwithstanding anything in this
Agreement to the contrary, PFPC Trust shall be entitled to
assign any rights it has under this sub-section (m) to any
sub-custodian utilized by PFPC Trust in connection with
providing services to the Fund which sub-custodian makes any
credits or advances with respect to the Fund.
(n) Collections. All collections of monies or other property in
respect, or which are to become part, of the Property (but not
the safekeeping thereof upon receipt by PFPC Trust) shall be at
the sole risk of the Fund. If payment is not received by PFPC
Trust within a reasonable time after proper demands have been
made by PFPC Trust, PFPC Trust shall notify the Fund in
writing, including copies of all demand letters, any written
responses and memoranda of all oral responses thereto and shall
await instructions from the Fund. PFPC Trust shall not be
obliged to take legal action for collection unless and until
reasonably indemnified to its satisfaction. PFPC Trust shall
also notify the Fund as soon as reasonably practicable whenever
income due on securities is not collected in due course and
shall provide the Fund with periodic status reports of such
income collected after a reasonable time. Notwithstanding
anything in this Agreement to the contrary, PFPC Trust shall
have no duty to take any action (other than to transfer or
release loan documentation in accordance with Oral or Written
Instructions as set forth in Section 14(a) of this Agreement)
to collect any principal, interest or other payments with
respect to any loans made or purchased by the Fund; rather,
upon receipt of such payments (and upon receipt of further
documentation and clarification if required by PFPC Trust),
PFPC Trust's only duty will be to post such payments to the
Account and then to safekeep such amounts as provided herein.
(o) Excess Cash Sweep. PFPC Trust will, consistent with applicable
law, sweep any net excess cash balances daily into an
investment vehicle or other instrument designated in writing by
the Fund, so long as the investment vehicle or instrument is
acceptable to PFPC Trust, subject to a fee, paid to PFPC Trust
for such service, to be agreed between the parties. Such
investment vehicle or instrument may be offered by an affiliate
of PFPC Trust or by a PFPC Trust client and PFPC Trust may
receive compensation therefrom.
(p) Foreign Exchange. PFPC Trust and/or sub-custodians may enter
into or arrange foreign exchange transactions (at such rates as
they may consider appropriate) in order to facilitate
transactions under this Agreement, and such entities and/or
their affiliates may receive compensation in connection with
such foreign exchange transactions. Any foreign exchange
transactions with affiliates of the Fund shall be subject to
the applicable requirements of the 1940 Act.
15. Duration and Termination. This Agreement shall continue until terminated
by the
Fund or PFPC Trust on sixty (60) days' prior written notice to the
other party. In the event this Agreement is terminated (pending
appointment of a successor to PFPC Trust or vote of the shareholders of
the Fund to dissolve or to function without a custodian of its cash,
securities or other property), PFPC Trust shall not deliver cash,
securities, other property or loan documentation to the Fund. It may
deliver them to a bank or trust company of PFPC Trust's choice, having
aggregate capital, surplus and undivided profits, as shown by its last
published report, of not less than twenty million dollars
($20,000,000), as a custodian for the Fund to be held under terms
similar to those of this Agreement. PFPC Trust shall not be required to
make any delivery or payment of assets or loan documentation upon
termination until full payment shall have been made to PFPC Trust of
all of its fees, compensation, costs and expenses (including without
limitation fees and expenses associated with conversion to another
service provider and other trailing expenses incurred by PFPC Trust).
PFPC Trust shall have a first priority contractual possessory security
interest in and shall have a right of setoff against the Property and
the loan documentation as security for the payment of such fees,
compensation, costs and expenses.
16. Notices. Notices shall be addressed (a) if to PFPC Trust, at 8800
Tinicum Boulevard, 3rd Floor, Philadelphia, Pennsylvania 19153,
Attention: Sam Sparhawk (or such other address as PFPC Trust may inform
the Fund in writing); (b) if to the Fund, at c/o BlackRock Kelso Capital
Advisors LLC, 40 East 52nd Street, new York, New York 10022, Attention:
Frank Gordon; 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 hereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
18. Assignment. PFPC Trust may assign this Agreement to any majority owned
direct or indirect subsidiary of PFPC Trust or of The PNC Financial
Services Group, Inc. (other than BlackRock, Inc. and its subsidiaries),
provided that PFPC Trust gives the Fund 30 days' prior written notice of
such assignment.
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. 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 compensation of PFPC Trust.
(b) No Representations or Warranties. Except as expressly provided
in this Agreement, PFPC Trust 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 Trust disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement.
(c) 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 Trust
hereunder without the prior written approval of PFPC Trust,
which approval shall not be unreasonably withheld or delayed.
(d) 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.
(e) Information. The Fund will provide such information and
documentation as PFPC Trust may reasonably request in
connection with services provided by PFPC Trust to the Fund.
(f) 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.
(g) 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.
(h) 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.
(i) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding execution
hereof by such party.
(j) 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.
Consistent with this requirement, PFPC Trust 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 Trust may also ask (and may have already
asked) for additional identifying information, and PFPC Trust
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 TRUST COMPANY
By: /s/ Edward A. Smith, III
-------------------------
Title: Vice President
BLACKROCK KELSO CAPITAL CORPORATION
By: /s/ Frank Gordon
--------------------------
Title: Chief Financial Officer