TRANSFER AGENCY AND SERVICE AGREEMENT
BETWEEN
FIRST TRUST INTERMEDIATE DURATION PREFERRED & INCOME FUND
AND
COMPUTERSHARE TRUST COMPANY, N.A.
AND
COMPUTERSHARE INC.
AGREEMENT effective as of the ____day of _____________, 2013 by and between
First Trust Intermediate Duration Preferred & Income Fund, a Massachusetts
business trust, having its principal office and place of business at 000 Xxxx
Xxxxxxx Xxxxx, Xxxxxxx, XX 00000 ("COMPANY"), and Computershare Inc., a Delaware
corporation, and its fully owned subsidiary Computershare Trust Company, N.A., a
federally chartered trust company, having its principal office and place of
business at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (collectively,
"TRANSFER AGENT" or individually, "COMPUTERSHARE" and "TRUST COMPANY",
respectively).
WHEREAS, Company desires to appoint Trust Company as sole transfer agent and
registrar, and administrator of its dividend reinvestment plan or direct stock
purchase plan, and Computershare as processor of all payments received or made
by Company under this Agreement;
WHEREAS, Trust Company and Computershare will each separately provide
specified services covered by this Agreement and, in addition, Trust Company may
arrange for Computershare to act on behalf of Trust Company in providing certain
of its services covered by this Agreement; and
WHEREAS, Trust Company and Computershare desire to accept such respective
appointments and perform the services related to such appointments;
NOW THEREFORE, in consideration of the mutual covenants herein contained, the
parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
1.1 "ACCOUNT" means the account of each Shareholder which reflects any full or
fractional Shares held by such Shareholder, outstanding funds, or
reportable tax information.
1.2 "AGREEMENT" means this agreement and any and all exhibits or schedules
attached hereto and any and all amendments or modifications which may from
time to time be executed.
1.3 "PLANS" means any Dividend Reinvestment, Direct Stock Purchase, or other
investment programs administered by Trust Company for the Company.
1.4 "SERVICES" means all services performed or made available by Transfer
Agent pursuant to this Agreement.
1.5 "SHARE" means Company's common shares, par value $_____ per share, and
Company's preferred shares, par value $_____ per share, authorized by
Company's Declaration of Trust, and other classes of Company's shares to be
designated by Company in writing and which Transfer Agent agrees to service
under this Agreement.
1.6 "SHAREHOLDER" means a holder of record of Shares.
1.7 "SHAREHOLDER DATA" means all information maintained on the records
database of Transfer Agent concerning Shareholders.
2. APPOINTMENT OF AGENT.
2.1 Appointments. Company hereby appoints Trust Company to act as sole transfer
agent and registrar for all Shares and as administrator of Plans in accordance
with the terms and conditions hereof and appoints Computershare as the service
provider to Trust Company and as processor of all payments received or made by
or on behalf of Company under this Agreement, and Trust Company and
Computershare accept the respective appointments. Transfer Agent is engaged in
an independent business and will perform its obligations under this Agreement as
an agent of Company.
2.2 Documents. In connection with the appointments herein, Company has provided
or will provide the following appointment and corporate authority documents to
Transfer Agent:
(a) Copies of resolutions appointing Trust Company as the transfer
agent;
(b) Specimens of all forms of outstanding Share certificates, in
forms approved by the Board of Trustees of Company, with a certificate
of the Secretary of Company as to such approval;
(c) Specimens of the signatures of the officers of Company authorized to
sign Share certificates and authorized to sign written instructions and
requests;
(d) An opinion of counsel for Company addressed to both Trust Company
and Computershare with respect to the following:
(i) Company's organization and existence under the laws of its
state of organization;
(ii) The status of all Shares of Company covered by the appointment
under the Securities Act of
1933, as amended ("1933 ACT"), and any other applicable
federal or state statute, and
(iii) That all issued Shares are, and all unissued Shares will be,
when issued, validly issued, fully paid and non-assessable;
and
(e) A certificate of Company as to the Shares authorized, issued and
outstanding, as well as a description of all reserves of unissued Shares
relating to the exercise of options.
2.3 Records. Transfer Agent may adopt as part of its records all Shareholder
lists, Share ledgers, records, books, and documents which have been employed by
Company or any of its agents and which are certified to be true, authentic and
complete. Transfer Agent shall keep records relating to the Services, in the
form and manner it deems advisable. Transfer Agent agrees that all such records
prepared or maintained by it relating to the Services are the property of
Company and will be preserved, maintained and made available in accordance with
the requirements of law, and will be surrendered promptly to Company in
accordance with its request.
2.4 Shares. Company shall, if applicable, inform Transfer Agent as soon as
reasonably practicable and, if possible, in advance as to (i) the existence or
termination of any restrictions on the transfer of Shares, the application to or
removal from any Share certificate of any legend restricting the transfer of
such Shares, or the substitution for such certificate of a certificate without
such legend; (ii) any authorized but unissued Shares reserved for specific
purposes; (iii) any outstanding Shares which are exchangeable for Shares and the
basis for exchange; (iv) reserved Shares subject to option and the details of
such reservation; (v) any Share split or Share dividend; (vi) any other relevant
event or special instructions which may affect the Shares; and (vii) any
bankruptcy, insolvency or other proceeding regarding Company affecting the
enforcement of creditors' rights.
2.5 Certificates. To the extent Company issues Share certificates, Company shall
provide Transfer Agent with (i) documentation required to print on demand Share
certificates, or (ii) an appropriate supply of Share certificates which contain
a signature panel for use by an authorized xxxxxx of Transfer Agent and state
that such certificates are only valid after being countersigned and registered,
whichever is applicable.
2.6 Company Responsibility. Company shall perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, documents, instruments and assurances as Transfer Agent
may reasonably require in order to carry out or perform its obligations under
this Agreement.
3. STANDARD SERVICES.
3.1 Share Services. Transfer Agent shall perform the Services set forth in the
Fee and Service Schedule ("FEE AND SERVICE SCHEDULE") attached hereto and
incorporated herein. Further, Transfer Agent shall issue and record Shares as
authorized, hold Shares in the appropriate Account, and effect transfers of
Shares upon receipt of appropriate documentation.
3.2 Replacement Shares. Transfer Agent shall issue replacement Shares for those
certificates alleged to have been lost, stolen or destroyed, upon receipt by
Transfer Agent of an open penalty surety bond satisfactory to it and holding it
and Company harmless, absent notice to Transfer Agent that such certificates
have been acquired by a bona fide purchaser. Transfer Agent may, at its option,
issue replacement Shares for mutilated certificates upon presentation thereof
without such indemnity. Transfer Agent may, at its sole option, accept
indemnification from Company to issue replacement Shares for those certificates
alleged to have been lost, stolen or destroyed in lieu of an open penalty bond.
3.3 Internet Services. Transfer Agent shall make available to Company and
Shareholders, through xxx.xxxxxxxxxxxxx.xxx ("WEB SITE"), online access to
certain Account and Shareholder information and certain transaction capabilities
("INTERNET SERVICES"), subject to Transfer Agent's security procedures and the
terms and conditions set forth herein and on the Web Site. Transfer Agent
provides Internet Services "as is," on an "as available" basis, and hereby
specifically disclaims any and all representations or warranties, express or
implied, regarding such Internet Services, including any implied warranty of
merchantability or fitness for a particular purpose and implied warranties
arising from course of dealing or course of performance.
3.4 Proprietary Information. Company agrees that the databases, programs, screen
and report formats, interactive design techniques, Internet Services, software
(including methods or concepts used therein, source code, object code, or
related technical information) and documentation manuals furnished to Company by
Transfer Agent as part of the Services are under the control and ownership of
Transfer Agent or a third party (including its affiliates) and constitutes
copyrighted, trade secret, or other proprietary information (collectively,
"PROPRIETARY INFORMATION"). In no event shall Proprietary Information be deemed
Shareholder Data. Company agrees that Proprietary Information is of substantial
value to Transfer Agent or other third party and will treat all Proprietary
Information as confidential in accordance with Section 11 of this Agreement.
Company shall take reasonable efforts to advise its relevant employees and
agents of its obligations pursuant to this Section 3.4.
3.5 Third Party Content. Transfer Agent may obtain certain data included in the
Services from third parties which were selected by Transfer Agent in good faith
and in the absence of negligence or willful misconduct. Such third parties are
solely responsible for the contents of such data and Company agrees to make no
claim against Transfer Agent arising out of the contents of such data,
including, but not limited to, the accuracy thereof. (For clarification, the
limitation of this paragraph shall not be read to limit the liability of
Transfer Agent for the action or inaction of any third party agent or
subcontractor providing any of the Services on Transfer Agent's behalf in
accordance with Section 14.1 of this Agreement.)
3.6 Lost Shareholders; In-Depth Shareholder Search.
(a) Transfer Agent shall conduct such database searches to locate lost
Shareholders as are required by Rule 17Ad-17 under the Securities
Exchange Act of 1934, as amended ("EXCHANGE ACT"), without charge to the
Shareholder. If a new address is so obtained in a database search for a
lost Shareholder, Transfer Agent shall conduct a verification mailing
and update its records for such Shareholder accordingly.
(b) Computershare may facilitate the performance of a more in-depth
search for the purpose of (i) locating lost Shareholders for whom a new
address is not obtained in accordance with clause (a) above, (ii)
identifying Shareholders who are deceased (or locating the deceased
Shareholder's estate representative, heirs or other party entitled to
act with respect to such Shareholder's account ("Authorized
Representative")), and (iii) locating Shareholders whose accounts
contain two or more consecutive uncashed checks, in each case using
the services of a locating service provider selected by
Computershare, which service provider may be an affiliate of
Computershare. Such provider may compensate Computershare for
processing and other services that Computershare provides in
connection with such in-depth search, including providing Computershare
a portion of its service fees.
(c) Upon locating any Shareholder (or such Shareholder's Authorized
Representative) pursuant to clause (b) above, the locating service
provider shall clearly identify to such Shareholder (or such
Shareholder's Authorized Representative) all assets held in such
Shareholder's account. Such provider shall inform any such located
Shareholders (or such Shareholder's Authorized Representative) that
they may choose either (i) to contact Transfer Agent directly to
obtain the assets in such account, at no charge other than any
applicable fees to replace lost certificates, or (ii) to use the
services of such provider for a processing fee, which may not exceed
20% of the asset value of such Shareholder's property where the
registered Shareholder is living, deceased or is not a natural
person; provided that in no case shall such fee exceed the maximum
statutory fee permitted by the applicable state jurisdiction. If
Company selects a locating service provider other than one selected
by Computershare, then Computershare shall not be responsible for
the terms of any agreement with such provider and additional fees
may apply.
(d) Pursuant to Section 9.2 hereof, the Company hereby authorizes and
instructs Computershare to provide a Shareholder file or list of those
Shareholders not located following the required Rule 17Ad-17 searches to
any service provider administering any in-depth shareholder location
program.
3.7 Compliance with Laws. Transfer Agent is obligated and agrees to comply with
all applicable U.S. federal, state and local laws and regulations, codes,
orders and government rules in the performance of its duties under this
Agreement.
4. DIVIDEND REINVESTMENT PLAN SERVICES.
4.1 The Trust Company shall perform all services under the Plans, as the
administrator of such Plans, with the exception of payment processing for which
Computershare has been appointed as agent by Company, and certain other services
that the Trust Company may subcontract to Computershare as permitted by
applicable law (e.g. ministerial services).
4.2 The Transfer Agent shall act as agent for Shareholders pursuant to the Plans
in accordance with the terms and conditions of such Plans.
5. COMPUTERSHARE DIVIDEND DISBURSING AND PAYMENT SERVICES.
5.1 Declaration of Dividends. Upon receipt of written notice from the President,
any Vice President, Secretary, Assistant Secretary, Treasurer or Assistant
Treasurer of Company declaring the payment of a dividend, Computershare shall
disburse such dividend payments provided that Company furnishes Computershare
with sufficient funds one day in advance of the applicable payable date. The
payment of such funds to Computershare for the purpose of being available for
the payment of dividends from time to time is not intended by Company to confer
any rights in such funds on Shareholders whether in trust, contract, or
otherwise.
5.2 Stop Payments. Company hereby authorizes Computershare to stop payment of
checks issued in payment of dividends or for sales proceeds, but not presented
for payment, when the payees thereof allege either that they have not received
the checks or that such checks have been mislaid, lost, stolen, destroyed or,
through no fault of theirs, are otherwise beyond their control and cannot be
produced by them for presentation and collection, and Computershare shall issue
and deliver duplicate checks in replacement thereof, and Company shall indemnify
Transfer Agent against any loss or damage resulting from reissuance of the
checks; provided, however, that this indemnification shall not apply if such
loss or damage results from Transfer Agent's negligence, gross negligence,
willful misconduct, fraud and/or other breach of this Agreement by Transfer
Agent.
5.3 Tax Withholding. Company hereby authorizes Computershare to deduct from all
dividends declared by Company and disbursed by Computershare, as dividend
disbursing agent, the tax required to be withheld pursuant to Sections 1441,
1442 and 3406 of the Internal Revenue Code of 1986, as amended, or by any
federal or state statutes subsequently enacted, and to make the necessary
returns and payment of such tax in connection therewith.
5.4 Plan Payments. Company hereby authorizes Computershare to receive all
payments made to the Company (i.e. optional cash purchases) or the Transfer
Agent under the Plans and make all payments required to be made under such
Plans, including all payments required to be made to the Company.
5.5 Bank Accounts. Company acknowledges that the bank accounts maintained by
Computershare in connection with the Services will be in Computershare's name as
agent for the Company and that Computershare may receive investment earnings in
connection with the investment at Computershare's risk and for its benefit of
funds held in those accounts from time to time.
6. ADDITIONAL SERVICES. To the extent that Company elects to engage any entity
other than Transfer Agent ("VENDOR") to provide any additional services (e.g.
plans, restricted stock, corporate actions, etc.), Company shall give Transfer
Agent or its affiliates an opportunity to bid on such services upon the same
terms and conditions as Vendor if reasonably practicable under the circumstances
and provided that there is no outstanding dispute between the parties under this
Agreement. Company may in its sole discretion accept or reject any bid proposed
by Transfer Agent for such services.
7. FEES AND EXPENSES.
7.1 Fee and Service Schedules. Company agrees to pay Transfer Agent the fees and
out-of-pocket expenses for Services performed pursuant to this Agreement as set
forth in the Fee and Service Schedule, for the initial term of the Agreement
(the "INITIAL TERM"). At least sixty (60) days before the expiration of the
Initial Term or a Renewal Term (as defined below), whichever is applicable, the
parties to this Agreement will negotiate in good faith and agree upon a new fee
schedule for the upcoming Renewal Term. If no new fee schedule is agreed upon,
the fees will increase as set forth in the Term Section of the Fee and Service
Schedule.
7.2 Out of Proof Funds. If applicable, conversion funding required by any out of
proof condition caused by a prior agent of Company shall be advanced to Transfer
Agent upon discovery of such out of proof condition.
7.3 Invoices. Company agrees to pay all fees and reimbursable expenses within 30
days of the date of the respective billing notice, except for any fees or
expenses that are subject to good faith dispute. In the event of such dispute,
Company must promptly notify Transfer Agent of such dispute and may only
withhold that portion of the fee or expense subject to such dispute. Company
shall settle such disputed amounts within five (5) business days of the date on
which the parties agree on the amount to be paid by payment of the agreed
amount. If no agreement is reached, then such disputed amounts shall be settled
as may be required by law or legal process.
7.4 Late Payments.
(a) If any undisputed amount in an invoice of Transfer Agent (for fees or
reimbursable expenses) is not paid within 30 days after receipt of such
invoice, Transfer Agent may charge Company interest thereon (from the due
date to the date of payment) at a monthly rate equal to one percent
(1.0%). Notwithstanding any other provision hereof, such interest rate
shall be no greater than permitted under applicable law.
(b) The failure by Company to (i) pay the undisputed portion of an invoice
within 90 days after receipt of such invoice or (ii) timely pay the
undisputed portions of two consecutive invoices shall constitute a
material breach pursuant to Section 12.4 below. Transfer Agent shall
provide Company with written notice (which may be via email) of such
material breach within 60 days after the date of such invoice and
Transfer Agent may terminate this Agreement for such material breach
immediately if Company fails within 30 days of receipt of such notice to
cure such breach.
8. REPRESENTATIONS AND WARRANTIES.
8.1 Transfer Agent. Transfer Agent represents and warrants to Company that:
(a) Governance. Trust Company is a federally chartered trust company duly
organized, validly existing, and in good standing under the laws of the
United States and Computershare is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Delaware and each has full power, authority and legal right to execute,
deliver and perform this Agreement; and
(b) Compliance with Laws. The execution, delivery and performance of this
Agreement by Transfer Agent has been duly authorized by all necessary
action, constitutes the legal, valid and binding obligation of Transfer
Agent enforceable against Transfer Agent in accordance with its terms,
will not require the consent of any third party that has not been given,
and will not violate, conflict with or result in the breach of any
material term, condition or provision of (i) any existing law, ordinance,
or governmental rule or regulation to which Transfer Agent is subject,
(ii) any judgment, order, writ, injunction, decree or award of any court,
arbitrator or governmental or regulatory official, body or authority
applicable to Transfer Agent, (iii) Transfer Agent's incorporation
documents or by-laws, or (iv) any material agreement to which Transfer
Agent is a party. Transfer Agent is, and for the term of this Agreement
shall remain, duly registered as a transfer agent under the Exchange Act.
8.2 Company. Company represents and warrants to Transfer Agent that:
(a) Governance. It is a business trust duly organized, validly existing and
in good standing under the laws of the Commonwealth of Massachusetts, and
it has full power, authority and legal right to enter into and perform
this Agreement;
(b) Compliance with Laws. The execution, delivery and performance of this
Agreement by Company has been duly authorized by all necessary action,
constitutes the legal, valid and binding obligation of Company
enforceable against Company in accordance with its terms, will not
require the consent of any third party that has not been given, and will
not violate, conflict with or result in the breach of any material term,
condition or provision of (i) any existing law, ordinance, or
governmental rule or regulation to which Company is subject, (ii) any
judgment, order, writ, injunction, decree or award of any court,
arbitrator or governmental or regulatory official, body or authority
applicable to Company, (iii) Company's Declaration of Trust or by-laws,
(iv) any material agreement to which Company is a party, or (v) any
applicable stock exchange rules; and
(c) Securities Act of 1933. A
registration statement under the 1933 Act has been filed and is
currently effeor will be effective prior to the sale of any Shares, and
will remain so effective, and all appropriate state securities law
filings have been made with respect to all Shares being offered for
sale except for any Shares which are offered in a transaction or series
of transactions which are exempt from the registration requirements of
the 1933 Act and state securities laws; Company will immediately notify
Transfer Agent of any information to the contrary.
9. INDEMNIFICATION AND LIMITATION OF LIABILITY.
9.1 Company Indemnity. Company shall indemnify and hold Transfer Agent harmless
from and against, and Transfer Agent shall not be responsible for, any and all
losses, claims, damages, costs, charges, counsel fees and expenses, payments,
expenses and liability (collectively, "LOSSES") arising out of or attributable
to:
(a) all actions of Transfer Agent or its agents or subcontractors
required to be taken pursuant to this Agreement provided such actions
are taken in good faith and without negligence or willful misconduct
or the breach of any representation or warranty of Transfer Agent
hereunder;
(b) Company's lack of good faith, negligence or willful misconduct or the
breach of any representation or warranty of Company hereunder;
(c) The reliance on or use by Transfer Agent or its agents or
subcontractors of any (i) information, records, data, and documents
which have been prepared and/or maintained by
Company or any other person or firm on behalf of Company, including
any former transfer agent or registrar, and provided to Transfer
Agent or its agents or subcontractors; (ii) document reasonably
believed to be genuine and to have been signed by the proper person
or persons, including Shareholders and their authorized agents or
representatives (e.g. power of attorney); and (iii) electronic
instructions from Company or Shareholders and their authorized agents
or representatives (e.g. power of attorney)submitted through Internet
Services or any other electronic means pursuant to security
procedures established by Transfer Agent;
(d) The negotiation and processing of all checks, including checks that
are tendered to Transfer Agent for the purchase of Shares, provided
such actions are taken in good faith and without negligence or
willful misconduct; and
(e) The recognition, acceptance, or processing by Transfer Agent of Share
certificates which are reasonably believed to bear the proper
manual or facsimile signatures of officers of Company, and the
proper countersignature of any former transfer agent or former
registrar, or of a co-transfer agent or co-registrar, provided such
actions are taken in good faith and without negligence or willful
misconduct.
9.2 Instructions. From time to time, Company may provide Transfer Agent with
instructions concerning the Services. In addition, at any time Transfer Agent
may apply to any officer of Company for instruction, and may consult with legal
counsel for Transfer Agent or Company with respect to any matter arising in
connection with the Services to be performed by Transfer Agent under this
Agreement. Transfer Agent and its agents and subcontractors shall not be liable
and shall be indemnified by Company for any action taken or omitted by Transfer
Agent in good faith in reliance upon any Company instructions or upon the advice
or opinion of such counsel. Transfer Agent shall not be held to have notice of
any change of authority of any person, until receipt of written notice thereof
from Company.
9.3 Transfer Agent Indemnification/Limitation of Liability. Transfer Agent shall
be responsible for and shall indemnify and hold Company harmless from and
against any and all Losses arising out of or attributable to: (a) Transfer
Agent's refusal or failure to comply with the terms of this Agreement, (b)
Transfer Agent's bad faith, negligence or willful misconduct, or (c) Transfer
Agent's breach of any representation or warranty hereunder, in each case for
which Transfer Agent is not entitled to indemnification under this Agreement;
provided, however, that excluding Transfer Agent's bad faith and willful
misconduct Transfer Agent's aggregate liability during any term of this
Agreement with respect to, arising from, or arising in connection with this
Agreement, or from all Services provided or omitted to be provided under this
Agreement, whether in contract, or in tort, or otherwise, is limited to, and
shall not exceed, the amounts paid hereunder by Company to Transfer Agent as
fees and charges, but not including reimbursable expenses, during the twelve
(12) months immediately preceding the event for which recovery from Transfer
Agent is being sought.
9.4 Notice. In order that the indemnification provisions contained in this
Section 9 shall apply, upon the assertion of a claim for which one party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The
indemnifying party shall have the option to participate with the indemnified
party in the defense of such claim or to defend against said claim in its own
name or the name of the indemnified party. The indemnified party shall in no
case confess any claim or make any compromise in any case in which the
indemnifying party may be required to indemnify it except with the indemnifying
party's prior written consent.
9.5 Limitation of Liability of Company. All parties hereto are expressly put on
notice of Company's Declaration of Trust and all amendments thereto, a copy of
which is on file with the Secretary of the Commonwealth of Massachusetts. This
Agreement is executed on behalf of Company by Company's officers as officers and
not individually and the obligations imposed upon Company by this Agreement are
not binding upon any of Company's Trustees, officers or shareholders
individually but are binding only upon the assets and property of Company, and
persons dealing with Company must look solely to the assets of Company for the
enforcement of any claims.
10. DAMAGES. No party shall be liable for any incidental, indirect, special or
consequential damages of any nature whatsoever, including, but not limited to,
loss of anticipated profits, occasioned by a breach of any provision of this
Agreement even if apprised of the possibility of such damages.
11. CONFIDENTIALITY.
11.1 Definition. "CONFIDENTIAL INFORMATION" shall mean any and all technical or
business information relating to a party, including, without limitation,
financial, marketing and product development information, Shareholder Data
(including any non-public information of such Shareholder), Proprietary
Information, and the schedules, exhibits and other attachments to this
Agreement, that is disclosed or otherwise becomes known to the other party or
its affiliates, agents or representatives before or during the term of this
Agreement. Confidential Information constitutes trade secrets and is of great
value to the owner (or its affiliates). Confidential Information shall not
include any information that is: (a) already known to the other party or its
affiliates at the time of the disclosure; (b) publicly known at the time of the
disclosure or becomes publicly known through no wrongful act or failure of the
other party; (c) subsequently disclosed to the other party or its affiliates on
a non-confidential basis by a third party not having a confidential relationship
with the owner and which rightfully acquired such information; or (d)
independently developed by one party without access to the Confidential
Information of the other.
11.2. Use and Disclosure. All Confidential Information of a party will be held
in confidence by the other party with at least the same degree of care as such
party protects its own confidential or proprietary information of like kind and
import, but not less than a reasonable degree of care. Neither party will
disclose in any manner Confidential Information of the other party in any form
to any person or entity without the other party's prior consent. However, each
party may disclose relevant aspects of the other party's Confidential
Information to its officers, affiliates, agents, subcontractors and employees to
the extent reasonably necessary to perform its duties and obligations under this
Agreement and such disclosure is not prohibited by applicable law. Without
limiting the foregoing, each party will implement such physical and other
security measures and controls as are necessary to protect (a) the security and
confidentiality of Confidential Information; (b) against any threats or hazards
to the security and integrity of Confidential Information; and (c) against any
unauthorized access to or use of Confidential Information. To the extent that a
party delegates any duties and responsibilities under this Agreement to an agent
or other subcontractor, the party ensures that such agent and subcontractor are
contractually bound to confidentiality terms consistent with the terms of this
Section 11.
11.3. Required or Permitted Disclosure. In the event that any requests or
demands are made for the disclosure of Confidential Information, other than
requests to Transfer Agent for Shareholder records pursuant to standard
subpoenas from state or federal government authorities (e.g., divorce and
criminal actions), the party receiving such request will promptly notify the
other party to secure instructions from an authorized officer of such party as
to such request and to enable the other party the opportunity to obtain a
protective order or other confidential treatment, unless such notification is
otherwise prohibited by law or court order. Each party expressly reserves the
right, however, to disclose Confidential Information to any person whenever it
is advised by counsel that it may be held liable for the failure to disclose
such Confidential Information or if required by law or court order.
11.4 Unauthorized Disclosure. As may be required by law and without limiting any
party's rights in respect of a breach of this Section 11, each party will
promptly:
(a) notify the other party in writing of any unauthorized possession,
use or disclosure of the other party's Confidential Information by
any person or entity that may become known to such party;
(b) furnish to the other party full details of the unauthorized
possession, use or disclosure; and
(c) use commercially reasonable efforts to prevent a recurrence of any
such unauthorized possession, use or disclosure of Confidential
Information.
11.5 Costs. Each party will bear the costs it incurs as a result of compliance
with this Section 11.
12. TERM AND TERMINATION.
12.1 Term. The Initial Term of this Agreement shall be two (2) years from the
date first stated above unless terminated pursuant to the provisions of this
Section 12. This Agreement will renew automatically from year to year (each a
"RENEWAL TERM"), unless a terminating party gives written notice to the other
party not less than sixty (60) days before the expiration of the Initial Term or
Renewal Term, whichever is in effect, or this Agreement is otherwise terminated
pursuant to the provisions of Section 12 or Section 13 hereof.
12.2 Early Termination. Notwithstanding anything herein to the contrary, should
Company terminate this Agreement prior to the expiration of the then current
Initial or Renewal Term, for any reason, including but not limited to, its
liquidation, acquisition, merger or restructuring, Company shall pay to Transfer
Agent (a) the fees and expenses incurred as of the termination date, (b)
additional fees accelerated through the end of, and including all months that
would have remained in the Initial Term and a maximum of six months that would
have remained in the Renewal Term, as applicable and (c) conversion costs and
expenses in accordance with Section 12.3 of this Agreement. The fees set forth
in Section 12.2(b) will be calculated using the rates, volumes, and Services in
effect as of the termination date. If Company does not provide notice of early
termination within the time period referenced in Section 12.1 of this Agreement,
Transfer Agent shall make a good faith effort, but cannot guarantee, to convert
the Company's records on the date requested by Company. This Section 12.2 shall
not apply if Transfer Agent is terminated pursuant to Section 12.4 of this
Agreement.
12.3 Costs and Expenses. In the event of the expiration or termination of this
Agreement by either party, Company agrees to pay all costs and expenses
associated with the movement of records, materials, and services to Company or
the successor agent, including (a) all reasonable out-of-pocket costs and (b) a
conversion fee of $5,000.00 for the standard conversion services listed on the
attached Exhibit A to this Agreement. In the event any of the extended
conversion services listed on Exhibit A are requested by Company, the fee for
each extended conversion service will be $2,500.00.
12.4 Termination. This Agreement may be terminated in accordance with the
following: (a) at any time by any party upon a material breach of a
representation, covenant or term of this Agreement by any other party which is
not cured within a period not to exceed thirty (30) days after the date of
written notice thereof by one of the other parties; and
(b) at any time by any party, in the event that during the term of this
Agreement, a bankruptcy or insolvency proceeding is filed by or against any
other party or a trustee or receiver is appointed for any substantial part of
such other party's property (and in a case of involuntary bankruptcy, insolvency
or receivership proceeding, there is entered an order for relief, or order
appointing a receiver or some similar order or decree and the affected party
does not succeed in having such order lifted or stayed within sixty (60) days
from the date of its entry), or such other party makes an assignment of all or
substantially all of its property for the benefit of creditors or ceases to
conduct its operations in the normal course of business.
12.5 Termination Assistance. If this Agreement is terminated pursuant to the
provisions of Section 12 or Section 13 hereof, Transfer Agent agrees to
reasonably cooperate with Company or another service provider designated by
Company in order to facilitate the transfer of records to Company or such other
service provider.
13. ASSIGNMENT. Neither this Agreement nor any rights or obligations hereunder
may be assigned by Company or Transfer Agent without the written consent of the
other; provided, however, that Transfer Agent may, without further consent of
Company, assign any of its rights and obligations hereunder to any affiliated
transfer agent registered under Rule 17Ac2-1 promulgated under the Exchange Act.
14. SUBCONTRACTORS AND UNAFFILIATED THIRD PARTIES.
14.1 Subcontractors. Transfer Agent may, without further consent of Company,
subcontract with (a) any affiliates, or (b) unaffiliated subcontractors for such
services as may be required from time to time (e.g. lost shareholder searches,
escheatment, telephone and mailing services); provided, however, that Transfer
Agent shall be as fully responsible to Company for the acts and omissions of any
subcontractor as it is for its own acts and omissions. Transfer Agent shall
provide Company each year, upon request, and otherwise upon reasonable request,
with a list of its unaffiliated subcontractors who have access to Company's
Shareholder Data.
14.2 Unaffiliated Third Parties. Nothing herein shall impose any duty upon
Transfer Agent in connection with or make Transfer Agent liable for the actions
or omissions to act of unaffiliated third parties (other than subcontractors
referenced in Section 14.1 of this Agreement) such as, by way of example and not
limitation, airborne services, delivery services, the U.S. mails, and
telecommunication companies, provided, if Transfer Agent selected such company,
Transfer Agent exercised due care in selecting the same.
15. MISCELLANEOUS.
15.1 Notices. Any notice or communication by Transfer Agent or Company to the
other pursuant to this Agreement is duly given if in writing and delivered in
person or sent by overnight delivery service or first class mail, postage
prepaid, to the other's address:
If to Company: First Trust Intermediate Duration Preferred
& Income Fund
000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: W. Xxxxx Xxxxxxx
If to Transfer Agent: Computershare Trust Company, N.A.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: General Counsel
15.2 No Expenditure of Funds. No provision of this Agreement shall require
Transfer Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the exercise
of its rights if it shall believe in good faith that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
15.3 Successors. All the covenants and provisions of this Agreement by or for
the benefit of Company or Transfer Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
15.4 Amendments. This Agreement may be amended or modified by a written
amendment executed by the parties hereto and, to the extent required, authorized
by a resolution of the Board of Trustees of Company.
15.5 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms, provision, covenants
and restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
15.6 Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
15.7 Force Majeure. Notwithstanding anything to the contrary contained herein,
Transfer Agent shall not be liable for any delays or failures in performance
resulting from acts beyond its reasonable control including, without limitation,
acts of God, terrorist acts, shortage of supply, breakdowns or malfunctions,
interruptions or malfunction of computer facilities, or loss of data due to
power failures or mechanical difficulties with information storage or retrieval
systems, labor difficulties, war, or civil unrest. Transfer Agent agrees that it
shall maintain a business continuity and disaster recovery plan appropriate for
an entity performing the Services as set forth in this Agreement, and that it
will resume performance as soon after any such delay or failure as is
commercially reasonable under the circumstances.
15.8 Third Party Beneficiaries. The provisions of this Agreement are intended to
benefit only Transfer Agent, Company and their respective permitted successors
and assigns. No rights shall be granted to any other person by virtue of this
Agreement, and there are no third party beneficiaries hereof.
15.9 Survival. All provisions regarding indemnification, warranty, liability and
limits thereon, and confidentiality and protection of proprietary rights and
trade secrets shall survive the termination or expiration of this Agreement.
15.10 Priorities. In the event of any conflict, discrepancy, or ambiguity
between the terms and conditions contained in this Agreement and any schedules
or attachments hereto, the terms and conditions contained in this Agreement
shall take precedence.
15.11 Merger of Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes any prior agreement with respect to
the subject matter hereof, whether oral or written.
15.12 No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event any ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by all parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provision of this Agreement.
15.13 Descriptive Headings. Descriptive headings contained in this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
15.14 Counterparts. This Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument. A signature to this Agreement transmitted electronically shall
have the same authority, effect, and enforceability as an original signature.
15.15 Waiver. No term or provision hereof shall be deemed waived and no breach
hereof shall be deemed consented to, unless such waiver or consent, as the case
may be, is express and in writing signed by the party claimed to have waived or
consented. No such waiver shall constitute a waiver of any other term or
provision hereof, and no such consent shall constitute a consent to any other
breach hereof.
[The remainder of page intentionally left blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed by one of its officers thereunto duly authorized, all as of the date
first written above.
COMPUTERSHARE INC. AND
COMPUTERSHARE TRUST COMPANY, N. A. FIRST TRUST INTERMEDIATE DURATION PREFERRED
ON BEHALF OF BOTH ENTITIES: & INCOME FUND
By: By:
------------------------------------------------ ------------------------------------------------
Name: Name:
--------------------------------------------- ---------------------------------------------
Title: Title:
------------------------------------------- -------------------------------------------
[SIGNATURE PAGE TO TRANSFER AGENCY AND SERVICE AGREEMENT]
EXHIBIT A
STANDARD AND EXTENDED CONVERSION SERVICES
TERMINATION PHASE STANDARD SERVICES. $5,000.00 FEE PER EXTENDED SERVICES.
$2,500.00 FOR EACH OF THE TERMINATION INDIVIDUAL SERVICES
LISTED BELOW.
Test of Conversion o Not applicable o Test full audit extracts files (which are Services either
transmitted to the agent or copied on to a protected CD);
test Full Registered List, all classes Opened and/or Closed
o Additional test audit extracts (includes all
shareholder details. Control totals & codes sent w/extracts)
o Test separate exchange lists for each class
o Test certificate stop list
o Test certificate legend list
o Test RPO accounts
o Test full transactions lists
o Test ACH debit list including plan shares and
reinvestment code
o Test ACH credit list and secondary address list
Final Conversion o Full audit extracts o Separate exchange lists for each class
Services o Full registered list opened o Full transactions list
and closed o ACH Debit including plan shares and
o Certificate stop list reinvestment code*
o Certificate legend list o ACH Credit list and secondary address list*
o RPO accounts o 1099D detailed report*
o End of year tax report* o 1042S detailed report*
o Parallel processing for up to 4 days o Parallel processing for more than 4 days (each
o Communications with new agent as additional day is considered one extended service)
applicable
Post Conversion o Certification letter o Not applicable
Services o Due Diligence statement
o 3 months post conversion
o Check extract files
o Check reports
o Check reports and extracts to CDs
o Communications with new agent as
applicable
* Not applicable to terminations for non-dividend payers.
