EXECUTION COPY
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of May 22, 2009 by and between PNC GLOBAL
INVESTMENT SERVICING (U.S.) INC., a Massachusetts corporation ("PNC"), and FIRST
TRUST ACTIVE DIVIDEND INCOME FUND, a Massachusetts business trust (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, 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 to the following statements made in the preceding paragraphs and 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 to give Oral
Instructions and 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.
(d) "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. PNC 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.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" mean the 1933 Act, the 1934 Act and the 0000
Xxx.
(g) "Shares" mean the shares of beneficial interest of any series
or class of the Fund.
(h) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by PNC or (ii) trade
instructions transmitted (and received by PNC) by means of an
electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered electronically (with respect to
sub-item (ii) above ) or 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. PNC shall
be under no duty to take any action hereunder on behalf of the Fund
except as specifically set forth herein or as may be specifically
agreed to by PNC and the Fund in a written amendment hereto. PNC shall
not bear, or otherwise be responsible for, any fees, costs or expenses
charged by any third party service providers engaged by the Fund or by
any other third party service provider to the Fund.
3. 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 or any other entity.
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4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PNC shall act
only upon Oral Instructions or Written Instructions.
(b) PNC 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 PNC to be an Authorized
Person) pursuant to this Agreement. 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 are not received by PNC or
differ from the Oral Instructions shall in no way invalidate
the transactions or enforceability of the transactions
authorized by the Oral Instructions or PNC's ability to rely
upon such Oral Instructions.
5. 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,
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PNC may request advice from counsel of its own choosing (who
may be counsel for the Fund, the Fund's investment adviser or
PNC, at the option of PNC). The Fund shall pay the reasonable
cost of any counsel retained by PNC with prior notice to the
Fund.
(c) Conflicting Advice. In the event of a conflict between
directions or 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 indemnified by the Fund and
without liability for any action PNC takes or does not take in
reliance upon directions or advice or Oral Instructions or
Written Instructions PNC receives from or on behalf of the
Fund or from counsel and which PNC believes, in good faith, to
be consistent with those directions or 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 or advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written
Instructions.
6. RECORDS; VISITS.
(a) 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 provided the Fund
provides PNC with written notice of such laws, rules and
regulations, other than the 1940 Act and the Internal Revenue
Code of 1986, as amended, that are applicable. The Fund and
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Authorized Persons shall have access to such books and records
at all times during PNC's normal business hours upon
reasonable advance notice. 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.
(b) PNC shall keep the following records:
(i) all books and records as are customarily maintained
by the transfer agent for a registered investment
company.
7. CONFIDENTIALITY.
(a) Each party shall keep confidential any information relating to
the other party's business ("Confidential Information").
Confidential Information shall include (i) 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, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or
future business activities of the Fund or PNC and their
respective subsidiaries and affiliated companies; (ii) 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 PNC a competitive advantage over its
competitors; (iii) 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 (iv) anything designated as
confidential.
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(b) Notwithstanding the foregoing, information shall not be
Confidential Information and shall not be subject to such
confidentiality obligations if: (i) it is necessary or
desirable for PNC to release such information in connection
with the provision of services under this Agreement; (ii) it
is already known to the receiving party at the time it is
obtained; (iii) it is or becomes publicly known or available
through no wrongful act of the receiving party; (iv) it is
rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of
confidentiality; (v) it is released by the protected party to
a third party without restriction; (vi) it 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); (vii) it is Fund information provided by
PNC in connection with an independent third party compliance
or other review; (viii) it is relevant to the defense of any
claim or cause of action asserted against the receiving party;
or (ix) it has been or is independently developed or obtained
by the receiving party.
(c) PNC acknowledges and agrees that in connection with its
services under this Agreement it receives non-public
confidential portfolio holdings information ("Portfolio
Information") with respect to the Fund. PNC agrees that,
subject to the foregoing provisions of and the exceptions set
forth in this Section 7 (other than the exception set forth
above in this Section 7 as sub-item (a), which exception set
forth in sub-item (a) shall not be applicable to the Fund's
Portfolio Information), PNC will keep confidential the Fund's
Portfolio Information and will not disclose the Fund's
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Portfolio Information other than pursuant to a Written
Instruction (which Written Instruction may be a standing
Written Instruction); provided that without the need for such
a Written Instruction and notwithstanding any other provision
of this Section 7 to the contrary, the Fund's Portfolio
Information may be disclosed to third party pricing services
which are engaged by PNC in connection with the provision of
services under this Agreement and which shall be subject to a
duty of confidentiality with respect to such Portfolio
Information.
8. 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.
9. PNC SYSTEM. PNC 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
PNC in connection with the services provided by PNC to the Fund.
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. PNC 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
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caused by PNC'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 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. In addition, the Fund agrees to pay, and will be billed
separately in arrears for, reasonable expenses incurred by PNC
in the performance of its duties hereunder.
(b) PNC shall establish certain cash management accounts ("Service
Accounts") required to provide services under this Agreement.
The Fund acknowledges (i) PNC 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 PNC; (ii)
balance credits earned with respect to the amounts in such
Service Accounts ("Balance Credits") will be used to offset
the banking service fees imposed by the cash management
service provider (the "Banking Service Fees"); (iii) PNC shall
retain any excess Balance Credits for its own use; and (iv)
Balance Credits will be calculated and applied toward the
Fund's Banking Service Fees regardless of the Service Account
balance sweep described in Sub-Section (i); and (v) PNC may
use the services of third-party vendors in connection with the
issuance of redemption and distribution checks and shall
retain any benefits obtained from any arrangements with such
vendors, including any commission or return on float paid to
it by any such vendors.
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(c) The undersigned hereby represents and warrants to PNC that (i)
the terms of this Agreement, (ii) the fees and expenses
associated with this Agreement, and (iii) any benefits
accruing to PNC 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 PNC to such adviser or sponsor or any affiliate of the
Fund relating to the Agreement have been fully disclosed to
the board of directors of the Fund and that, if required by
applicable law, such board of directors has approved or will
approve the terms of this Agreement, any such fees and
expenses, and any such benefits.
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold harmless PNC and
its affiliates providing services under this Agreement,
including their respective officers, directors, agents and
employees, from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation,
reasonable attorneys' fees and disbursements and liabilities
arising under the Securities Laws and any state and foreign
securities and blue sky laws) ("Claims") arising directly or
indirectly from any action or omission to act which PNC takes
in connection with the provision of services to the Fund.
Neither PNC, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such
liability) caused by PNC's or its affiliates' own willful
misfeasance, bad faith, negligence or reckless disregard in
the performance of PNC's or its affiliates' activities under
this Agreement, provided that in the absence of a finding to
the contrary the acceptance, processing and/or negotiation of
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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 obligations. The
provisions of this Section 12 shall survive termination of
this Agreement.
(b) Indemnification of the Fund. PNC agrees to defend, indemnify
and hold the Fund and its officers, directors and employees
harmless from any and all Claims arising directly or
indirectly from the negligence, bad faith, reckless disregard
or willful misfeasance of PNC and its affiliates in the
performance of its duties hereunder. Notwithstanding the
foregoing, the Fund shall not be indemnified against any Claim
caused by the Fund's or the Fund's other service providers'
willful misfeasance, bad faith or negligence.
(c) Indemnification Procedure.
(i) Notice of the Action. A party that seeks
indemnification under this Agreement must promptly
give the other party notice of any legal action;
provided, however, that a delay in notice does not
relieve an indemnifying party of any liability to an
indemnified party, except to the extent the
indemnifying party shows that the delay prejudiced
the defense of the action.
(ii) Participating in or Assuming the Defense. The
indemnifying party may participate in the defense at
any time or it may assume the defense by giving
notice to the other party. After assuming the
defense, the indemnifying party:
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(1) must select an attorney that is satisfactory
to the other party;
(2) is not liable to the other party for any
later attorney's fees or for any other later
expenses that the other party incurs, except
for reasonable investigation costs;
(3) must not compromise or settle the action
without the other party's consent (but the
other party must not unreasonably withhold
its consent); and
(4) is not liable for any compromise or
settlement made without its consent.
(iii) Failing to Assume the Defense. If the indemnifying
party fails to participate in or assume the defense
within 15 days after receiving notice of the action,
the indemnifying party is bound by any determination
made in the action or by any compromise or settlement
made by the other party.
13. RESPONSIBILITY OF PNC.
(a) PNC shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or
as may be specifically agreed to by PNC and the Fund in a
written amendment hereto. PNC shall be obligated to exercise
commercially reasonable care and diligence in the performance
of its duties hereunder and to act in good faith in performing
services provided for under this Agreement. As set forth
herein, and as may be agreed to in writing from time to time
by PNC and the Fund with regard to such matters of liability,
PNC shall be liable only 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, negligence or reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary,
(i) PNC shall not be liable for losses, delays, failure,
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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; failure of the mails; or
functions or malfunctions of the internet, firewalls,
encryption systems or security devices caused by any of the
above; and (ii) PNC 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 PNC reasonably
believes to be genuine. PNC shall not be liable for any
damages arising out of any action or omission to act by any
prior service provider of the Fund or for any failure to
discover any such error or omission.
(c) Notwithstanding anything in this Agreement to the contrary,
neither party to this Agreement nor their respective
affiliates shall be liable for any consequential, incidental,
exemplary, punitive, special or indirect losses or damages,
whether or not the likelihood of such losses or damages was
known by such party.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(e) The provisions of this Section 13 shall survive termination of
this Agreement.
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14. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Maintain shareholder registrations;
(ii) Provide toll-free lines for shareholders relating to
shareholder accounts;
(iii) Provide periodic shareholder lists and statistics;
(iv) Mailing of year-end tax information; and
(v) Periodic mailing of shareholder dividend reinvestment
plan account information and Fund financial reports.
(b) Dividends and Distributions. 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 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.
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
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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 where requested, all in accordance with the Dividend
Reinvestment Plan.
(c) Communications to Shareholders. Upon timely written
instructions, PNC shall mail all communications by the Fund to
its shareholders, including:
(i) Reports to shareholders;
(ii) Monthly or quarterly dividend reinvestment plan
statements;
(iii) Dividend and distribution notices;
(iv) Proxy material; and
(v) Tax form information.
PNC will receive and tabulate the proxy cards for the meetings
of the Fund's shareholders.
(d) Records. PNC shall maintain records of the accounts for each
shareholder showing the following information:
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(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.
(e) 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.
15. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written
above and unless terminated pursuant to its terms shall
continue until June 12, 2010 (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year
("Renewal Terms") each, unless the Fund or PNC provides
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written notice to the other of its intent not to renew. Such
notice must be received not less than ninety (90) days prior
to the expiration of the Initial Term or the then current
Renewal Term.
(c) In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and
conversion thereof to a successor transfer agent(s) (and any
other service provider(s)), and all trailing expenses incurred
by PNC, will be borne by the Fund and paid to PNC if known at
such time prior to any such conversion.
(d) If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party")
the other party (the "Non-Defaulting Party") may give written
notice thereof to the Defaulting Party, and if such material
breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting
Party may terminate this Agreement by giving thirty (30) days
written notice of such termination to the Defaulting Party. In
all cases, termination by the Non-Defaulting Party shall not
constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against
the Defaulting Party.
16. NOTICES. Notices shall be addressed (a) if to PNC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such
other address as the PNC may inform the fund in writing); (b) if to the
Fund, at 000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, XX 00000, Attention: W. Xxxxx
Xxxxxxx fax (000) 000-0000 (or such other address as the Fund may
inform PNC in writing); or (c) if to neither of the foregoing, at such
other address as shall have been given by like notice to the sender of
any such notice or other communication by the other party. If notice is
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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 majority-owned direct or indirect subsidiary of
PNC or of The PNC Financial Services Group, Inc., provided that PNC
gives the Fund 30 days prior written notice of such assignment or
delegation. To the extent required by the rules and regulations of the
NSCC and in order for PNC to perform the NSCC related services, the
Fund agrees that PNC may delegate its duties to any affiliate of PNC
that is a member of the NSCC. In addition, PNC may, in its sole
discretion, engage subcontractors to perform any of the obligations
contained in this Agreement to be performed by PNC, provided, however,
PNC shall remain responsible for the acts or omissions of any such
sub-contractors.
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.
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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.
(b) Non-Solicitation. During the term of this Agreement and for
one year thereafter, the Fund shall not (with the exceptions
noted in the immediately succeeding sentence) knowingly
solicit or recruit for employment or hire any of PNC's
employees, and the Fund shall cause the Fund's sponsor and the
Fund's affiliates to not (with the exceptions noted in the
immediately succeeding sentence) knowingly solicit or recruit
for employment or hire any of PNC's employees. To "knowingly"
solicit, recruit or hire within the meaning of this provision
does not include, and therefore does not prohibit,
solicitation, recruitment or hiring of a PNC employee by the
Fund, the Fund's sponsor or an affiliate of the Fund if the
PNC employee was identified by such entity solely as a result
of the PNC employee's response to a general advertisement by
such entity in a publication of trade or industry interest or
other similar general solicitation by such entity.
(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 registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PNC hereunder without the
prior written approval of PNC, which approval shall not be
unreasonably withheld or delayed. The scope of services to be
provided by PNC under this Agreement shall not be increased as
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a result of new or revised regulatory or other requirements
that may become applicable with respect to the fund, unless
the parties hereto expressly agree in writing to any such
increase.
(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 PNC may reasonably request in connection with
services provided by PNC 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) Parties in Interest. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Except as may be
explicitly stated in this Agreement, (i) this Agreement is not
for the benefit of any other person or entity and (ii) there
shall be no third party beneficiaries hereof.
(i) No Representations or Warranties. Except as expressly provided
in this Agreement, PNC 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
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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. PNC disclaims any warranty of title or
non-infringement except as otherwise set forth in this
Agreement.
(j) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
(k) The Fund and PNC agree that the obligations of the Fund under
the Agreement shall not be binding upon any of the directors,
shareholders, nominees, officers, employees or agents, whether
past, present or future, of the Fund individually, but are
binding only upon the assets and property of the Fund (or
applicable series thereof), as provided in the Declaration of
Trust. The execution and delivery of this Agreement have been
authorized by the directors of the Fund, and signed by an
authorized officer of the Fund, acting as such, and neither
such authorization by such directors nor such execution and
delivery by such officer shall be deemed to have been made by
any of them or any shareholder of the Fund individually or to
impose any liability on any of them or any shareholder of the
Fund personally, but shall bind only the assets and property
of the Fund (or applicable series thereof), as provided in the
Articles of Incorporation or Declaration of Trust.
(l) Customer Identification Program Notice. To help the U.S.
government fight the funding of terrorism and money laundering
activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information
that identifies each person who initially opens an account
with that financial institution on or after October 1, 2003.
Certain of PNC's affiliates are financial institutions, and
20
PNC may, as a matter of policy, request (or may have already
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. PNC may also ask (and may have
already asked) for additional identifying information, and PNC
may take steps (and may have already taken steps) to verify
the authenticity and accuracy of these data elements.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PNC GLOBAL INVESTMENT SERVICING (U.S.) INC.
By: /s/ Xxxxxxx XxXxxxxx
Name: Xxxxxxx XxXxxxxx
Title: Executive Vice President, Senior
Managing Director
FIRST TRUST ACTIVE DIVIDEND INCOME FUND
By: /s/ W. Xxxxx Xxxxxxx
Name: W. Xxxxx Xxxxxxx
Title: Secretary
