EXHIBIT (K)(1)
TRANSFER AGENCY AND SERVICE AGREEMENT
AGREEMENT made as of the ___ day of ________, 2003 by and between
XXXXXX BROTHERS/FIRST TRUST INCOME OPPORTUNITY FUND, a statutory trust organized
under the laws of Delaware (the "Fund"), and INVESTORS BANK & TRUST COMPANY, a
Massachusetts trust company (the "Bank").
WHEREAS, the Fund desires to appoint the Bank as its transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and the Bank desires to accept such appointment;
WHEREAS, the Bank is duly registered as a transfer agent as provided in
Section 17A(c) of the Securities Exchange Act of 1934, as amended, (the "1934
Act");
WHEREAS, the Fund is authorized to issue shares in separate series,
with each such series representing interests in a separate portfolio of
securities and other assets;
NOW, THEREFORE, in consideration of the mutual covenants herein set
forth, the Fund and the Bank agree as follows:
1. Terms of Appointment; Duties of the Bank.
1.1 Subject to the terms and conditions set forth in this
Agreement, the Fund hereby employs and appoints the Bank to act, and the Bank
agrees to act, as transfer agent for Fund's authorized and issued shares of
beneficial interest ("Shares"), dividend disbursing agent and agent in
connection with any accumulation, open-account or similar plans provided to the
shareholders of the Fund ("Shareholders") and set out in the currently effective
prospectus and statement of additional information, as each may be amended from
time to time, (the "Prospectus") of the Fund, including without limitation any
periodic investment plan or periodic withdrawal program.
1.2 The Bank agrees that it will perform the following services:
(a) In connection with procedures established from time
to time by agreement between the Fund and the Bank, the Bank shall:
(i) Receive for acceptance orders for the
purchase of Shares and promptly deliver payment and appropriate documentation
therefor to the custodian of the Fund appointed by the Board of Trustees of the
Fund (the "Custodian");
(ii) Pursuant to purchase orders, issue the
appropriate number of Shares and hold such Shares in the appropriate Shareholder
account;
(iii) Receive for acceptance redemption requests
and redemption directions and deliver the appropriate documentation therefor to
the Custodian;
(iv) At the appropriate time as and when it
receives monies paid to it by the Custodian with respect to any redemption, pay
over or cause to be paid over in the appropriate manner such monies as
instructed by the redeeming Shareholders;
(v) Effect transfers of Shares by the registered
owners thereof upon receipt of appropriate instructions;
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(vi) Prepare and transmit payments for dividends
and distributions declared by the Fund on behalf of a Fund;
(vii) Create and maintain all necessary records
including those specified in Article 10 hereof, in accordance with all
applicable laws, rules and regulations, including but not limited to records
required by Section 31(a) of the Investment Company Act of 1940, as amended (the
"1940 Act"), and those records pertaining to the various functions performed by
it hereunder. All records shall be available for inspection and use by the Fund.
Where applicable, such records shall be maintained by the Bank for the periods
and in the places required by Rule 31a-2 under the 1940 Act;
(viii) Make available during regular business hours
all records and other data created and maintained pursuant to this Agreement for
reasonable audit and inspection by the Fund, or any person retained by the Fund.
Upon reasonable notice by the Fund, the Bank shall make available during regular
business hours its facilities and premises employed in connection with its
performance of this Agreement for reasonable visitation by the Fund, or any
person retained by the Fund;
(ix) At the expense of and at the request of the
Fund, maintain an adequate supply of blank share certificates for each Fund
providing for the issuance of certificates to meet the Bank's requirements
therefor. Such share certificates shall be properly signed by facsimile. The
Fund agrees that, notwithstanding the death, resignation, or removal of any
officer of the Fund whose signature appears on such certificates, the Bank may
continue to countersign certificates which bear such signatures until otherwise
directed by the Fund. Share certificates may be issued and accounted for
entirely by the Bank and do not require any third party registrar or other
endorsing party;
(x) Issue replacement share certificates in lieu
of certificates which have been lost, stolen, mutilated or destroyed, without
any further action by the Board of Trustees or any officer of the Fund, upon
receipt by the Bank of properly executed affidavits and lost certificate bonds,
in form satisfactory to the Bank with the Fund and the Bank as obligees under
the bond. At the discretion of the Bank, and at its sole risk, the Bank may
issue replacement certificates without requiring the affidavits and lost
certificate bonds described above and the Fund agrees to indemnify the Bank
against any and all losses or claims which may arise by reason of the issuance
of such new certificates in the place of the ones allegedly lost, stolen or
destroyed; and
(xi) Record the issuance of Shares of the Fund
and maintain, pursuant to Rule 17Ad-10(e) under the 1934 Act, a record of the
total number of Shares of the Fund which are authorized, based upon data
provided to it by the Fund, and issued and outstanding. The Bank shall also
provide the Fund on a regular basis with the total number of Shares which are
authorized and issued and outstanding and shall have no obligation, when
recording the issuance of Shares, to monitor the issuance of such Shares or to
take cognizance of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Fund.
(b) In addition to and not in lieu of the services set
forth in the above paragraph (a) or in any Schedule hereto, the Bank shall: (i)
perform all of the customary services of a transfer agent, dividend disbursing
agent and, as relevant, agent in connection with accumulation, open-account or
similar plans (including without limitation any periodic investment plan or
periodic withdrawal program); including but not limited to maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
receiving and tabulating proxies, mailing Shareholder reports and prospectuses
to current Shareholders, withholding taxes on all accounts, including
nonresident alien accounts, preparing and filing U.S. Treasury Department Forms
1099 and other appropriate forms required with respect to dividends and
distributions by federal authorities for all Shareholders, preparing and mailing
confirmation
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forms and statements of account to Shareholders for all purchases and
redemptions of Shares and other confirmable transactions in Shareholder
accounts, responding to Shareholder telephone calls and Shareholder
correspondence, preparing and mailing activity statements for Shareholders, and
providing Shareholder account information; and (ii) provide a system which will
enable the Fund to monitor the total number of shares sold in each State. The
Fund shall (i) identify to the Bank in writing those transactions and assets to
be treated as exempt from blue sky reporting for each State and (ii) verify the
establishment of transactions for each State on the system prior to activation
and thereafter monitor the daily activity for each State. The responsibility of
the Bank for a Fund's blue sky state registration status is solely limited to
the initial establishment of transactions subject to blue sky compliance by such
Fund(s) and the reporting of such transactions to the Fund(s) as provided above.
(c) Additionally, the Bank shall utilize a system to
identify all share transactions which involve purchase and redemption orders
that are processed at a time other than the time of the computation of net asset
value per share next computed after receipt of such orders, and shall compute
the net effect upon the Fund(s) of such transactions so identified on a daily
and cumulative basis.
2. Sale of Fund Shares.
2.1 Whenever the Fund shall sell or cause to be sold any Shares of
a Fund, the Fund shall deliver or cause to be delivered to the Bank a document
duly specifying: (i) the name of the Fund whose Shares were sold; (ii) the
number of Shares sold, trade date, and price; (iii) the amount of money to be
delivered to the Custodian for the sale of such Shares and specifically
allocated to such Fund; and (iv) in the case of a new account, a new account
application or sufficient information to establish an account.
2.2 The Bank will, upon receipt by it of a check or other payment
identified by it as an investment in Shares of one of the Funds and drawn or
endorsed to the Bank as agent for, or identified as being for the account of,
one of the Funds, promptly deposit such check or other payment to the
appropriate account postings necessary to reflect the investment. The Bank will
notify the Fund, or its designee, and the Custodian of all purchases and related
account adjustments.
2.3 Under procedures as established by mutual agreement between
the Fund and the Bank, the Bank shall issue to the purchaser or its authorized
agent such Shares, computed to the nearest three decimal points, as he is
entitled to receive, based on the appropriate net asset value of the Funds'
Shares, determined in accordance with the prospectus and any applicable federal
law or regulation. In issuing Shares to a purchaser or its authorized agent, the
Bank shall be entitled to rely upon the latest directions, if any, previously
received by the Bank from the purchaser or its authorized agent concerning the
delivery of such Shares.
2.4 The Bank shall not be required to issue any Shares of the Fund
where it has received a written instruction from the Fund or written
notification from any appropriate federal or state authority that the sale of
the Shares of the Fund(s) in question has been suspended or discontinued, and
the Bank shall be entitled to rely upon such written instructions or written
notification.
2.5 Upon the issuance of any Shares of any Fund(s) in accordance
with foregoing provisions of this Section, the Bank shall not be responsible for
the payment of any original issue or other taxes, if any, required to be paid by
the Fund in connection with such issuance.
2.6 The Bank may establish such additional rules and regulations
governing the transfer or registration of Shares as it may deem advisable and
consistent with such rules and regulations generally adopted by transfer agents,
or with the written consent of the Fund, any other rules and regulations.
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3. Returned Checks. In the event that any check or other order for the
transfer of money is returned unpaid for any reason, the Bank will take such
steps as the Bank may, in its discretion, deem appropriate to protect the Fund
from financial loss or as the Fund or its designee may instruct. Provided that
the standard procedures, as agreed upon from time to time, between the Fund and
the Bank, regarding purchases and redemptions of Shares, are adhered to by the
Bank, the Bank shall not be liable for any loss suffered by a Fund as a result
of returned or unpaid purchase or redemption transactions. Legal or other
expenses incurred to collect amounts owed to a Fund as a consequence of returned
or unpaid purchase or redemption transactions shall be an expense of that Fund.
4. Redemptions. Shares of any Fund may be redeemed in accordance with the
procedures set forth in the Prospectus of the Fund and the Bank will duly
process all redemption requests.
5. Transfers and Exchanges. The Bank is authorized to review and process
transfers of Shares of each Fund, exchanges between Funds on the records of the
Funds maintained by the Bank, and exchanges between the Fund and any other
entity as may be permitted by the Prospectus of the Fund. If Shares to be
transferred are represented by outstanding certificates, the Bank will, upon
surrender to it of the certificates in proper form for transfer, and upon
cancellation thereof, countersign and issue new certificates for a like number
of Shares and deliver the same. If the Shares to be transferred are not
represented by outstanding certificates, the Bank will, upon an order therefor
by or on behalf of the registered holder thereof in proper form, credit the same
to the transferee on its books. If Shares are to be exchanged for Shares of
another Fund, the Bank will process such exchange in the same manner as a
redemption and sale of Shares, except that it may in its discretion waive
requirements for information and documentation.
6. Right to Seek Assurances. The Bank reserves the right to refuse to
transfer or redeem Shares until it is satisfied that the requested transfer or
redemption is legally authorized, and it shall incur no liability for the
refusal, in good faith, to make transfers or redemptions which the Bank, in its
judgment, deems improper or unauthorized, or until it is satisfied that there is
no basis for any claims adverse to such transfer or redemption. The Bank may, in
effecting transfers, rely upon the provisions of the Uniform Act for the
Simplification of Fiduciary Security Transfers or the Uniform Commercial Code,
as the same may be amended from time to time, which in the opinion of legal
counsel for the Fund or the Bank's own legal counsel, do not require certain
documents in connection with the transfer or redemption of Shares of any Fund,
and the Fund shall indemnify the Bank for any act done or omitted by it in
reliance upon such laws or opinions of counsel of the Fund or of the Bank.
7. Distributions.
7.1 The Fund will promptly notify the Bank of the declaration of
any dividend or distribution. The Fund shall furnish to the Bank a resolution of
the Board of Trustees of the Fund certified by the Secretary (a "Certificate"):
(i) authorizing the declaration of dividends on a specified periodic basis and
authorizing the Bank to rely on oral instructions or a Certificate specifying
the date of the declaration of such dividend or distribution, the date of
payment thereof, the record date as of which Shareholders entitled to payment
shall be determined and the amount payable per share to Shareholders of record
as of such record date and the total amount payable to the Bank on the payment
date; or (ii) setting forth the date of the declaration of any dividend or
distribution by a Fund, the date of payment thereof, the record date as of which
Shareholders entitled to payment shall be determined, and the amount payable per
share to the Shareholders of record as of that date and the total amount payable
to the Bank on the payment date.
7.2 The Bank, on behalf of the Fund, shall instruct the Custodian
to place in a dividend disbursing account funds equal to the cash amount of any
dividend or distribution to be paid out. The
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Bank will calculate, prepare and mail checks to (at the address as it appears on
the records of the Bank), or (where appropriate) credit such dividend or
distribution to the account of, Fund Shareholders, and maintain and safeguard
all underlying records.
7.3 The Bank will replace lost checks at its discretion and in
conformity with regular business practices.
7.4 The Bank will maintain all records necessary to reflect the
crediting of dividends which are reinvested in Shares of the Fund, including
without limitation daily dividends.
7.5 The Bank shall not be liable for any improper payments made in
accordance with a resolution of the Board of Trustees of the Fund.
7.6 If the Bank shall not receive from the Custodian sufficient
cash to make payment to all Shareholders of the Fund as of the record date, the
Bank shall, upon notifying the Fund, withhold payment to all Shareholders of
record as of the record date until such sufficient cash is provided to the Bank
and shall not be liable for any claim arising out of such withholding.
8. Other Duties. In addition to the duties expressly provided for herein,
the Bank shall perform such other duties and functions and shall be paid such
amounts therefor as may from time to time be agreed to in writing.
9. Taxes. It is understood that the Bank shall file such appropriate
information returns concerning the payment of dividends and capital gain
distributions and tax withholding with the proper Federal, State and local
authorities as are required by law to be filed by the Fund and shall withhold
such sums as are required to be withheld by applicable law.
10. Books and Records.
10.1 The Bank shall maintain confidential records showing for each
Shareholder's account the following: (i) names, addresses and tax identification
numbers; (ii) numbers of Shares held; (iii) historical information (as available
from prior transfer agents) regarding the account of each Shareholder, including
dividends paid and date and price of all transactions on a Shareholder's
account; (iv) any stop or restraining order placed against a Shareholder's
account; (v) information with respect to withholdings; (vi) any capital gain or
dividend reinvestment order, plan application, dividend address and
correspondence relating to the current maintenance of a Shareholder's account;
(vii) certificate numbers and denominations for any Shareholders holding
certificates; (viii) any information required in order for the Bank to perform
the calculations contemplated or required by this Agreement; and (ix) such other
information and data as may be required by applicable law.
10.2 Any records required to be maintained by Rule 31a-1 under the
1940 Act will be preserved for the periods prescribed in Rule 31a-2 under the
1940 Act. Such records may be inspected by the Fund during regular business
hours upon reasonable notice. The Bank may, at its option at any time, and shall
forthwith upon the Fund's demand, turn over to the Fund and cease to retain in
the Bank's files, records and documents created and maintained by the Bank in
performance of its service or for its protection. At the end of the six-year
retention period, such documents will either be turned over to the Fund, or
destroyed in accordance with the Fund's authorization.
10.3 Procedures applicable to the services to be performed
hereunder may be established from time to time by agreement between the Fund(s)
and the Bank. The Bank shall have the right to utilize any shareholder
accounting and recordkeeping systems which, in its opinion, qualifies to perform
any services
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to be performed hereunder. The Bank shall keep records relating to the services
performed hereunder, in the form and manner as it may deem advisable.
11. Fees and Expenses.
11.1 For performance by the Bank pursuant to this Agreement, the
Fund(s) agree to pay the Bank an annual maintenance fee for each Shareholder
account as may be agreed to from time to time in writing between the parties.
Such fees do not include out-of-pocket disbursements or other expenses of the
Bank for which the Bank shall be entitled to xxxx the Fund separately and for
which the Fund shall reimburse the Bank. Out-of-pocket expenses and advances
identified under Section 11.2 below may be changed from time to time subject to
mutual written agreement between the Fund(s) and the Bank.
11.2 In addition to the fee paid under Section 11.1 above, the
Fund(s) agree to reimburse the Bank for out-of-pocket expenses or advances
incurred by the Bank. In addition, any other expenses incurred by the Bank at
the request or with the consent of the Fund(s) including, without limitation,
any equipment or supplies which the Fund specifically orders or requires the
Bank to purchase, will be reimbursed by the Fund(s).
11.3 Fees and expenses will be calculated monthly. Fees and
expenses owed to the Bank for any month may be charged against any cash balance
held by the Fund beginning on the first (1st) business day after the end of such
month based on information then available. Fees charged to an account may result
in an overdraft that will be subject to normal interest charges. The Fund will
have thirty (30) days after the receipt of an invoice to dispute any charge that
appears on such invoice. After such thirty (30) day period, the invoice will be
deemed to be complete and accurate and may no longer be disputed.
12. Representations and Warranties of the Bank.
The Bank represents and warrants to the Fund that:
12.1 It is a trust company duly organized and existing and in good
standing under the laws of the Commonwealth of Massachusetts.
12.2 It is empowered under applicable laws and by its charter and
by-laws to enter into and perform this Agreement.
12.3 All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
12.4 It has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations under
this Agreement.
13. Representations and Warranties of the Fund.
The Fund represents and warrants to the Bank that:
13.1 It is a statutory trust duly organized and existing and in
good standing under the laws of the State of Delaware.
13.2 It is empowered under applicable laws and by its charter
documents and by-laws to enter into and perform this Agreement.
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13.3 All proceedings required by said charter documents and by-laws
have been taken to authorize it to enter into and perform this Agreement.
13.4 It is a closed-end investment company registered under the
1940 Act.
13.5 A registration statement on Form N-2 (including a prospectus
and statement of additional information) under the Securities Act of 1933 and
the 1940 Act is currently effective and will remain effective, and appropriate
state securities law filings have been made and will continue to be made, with
respect to all Shares of the Fund being offered for sale.
13.6 When Shares are hereafter issued in accordance with the terms
of the Prospectus, such Shares shall be validly issued, fully paid and
nonassessable by the Fund(s).
14. Indemnification.
14.1 Notwithstanding anything in this Agreement to the contrary, in
no event shall the Bank or any of its officers, directors, employees or agents
(collectively, the "Indemnified Parties") be liable to the Fund, any Fund or any
third party, and the Fund and each Fund shall indemnify and hold the Bank and
the Indemnified Parties harmless from and against any and all loss, damage,
liability, actions, suits, claims, costs and expenses, including legal fees, (a
"Claim") arising as a result of any act or omission of the Bank or any
Indemnified Party under this Agreement, except for any Claim resulting solely
from the gross negligence, willful misfeasance or bad faith of the Bank or any
Indemnified Party. Without limiting the foregoing, neither the Bank nor the
Indemnified Parties shall be liable for, and the Bank and the Indemnified
Parties shall be indemnified against, any Claim arising as a result of:
(a) Any actions taken or omitted to be taken by the Bank
or its agents or subcontractors in good faith in reliance on, or use by the Bank
or its agents or subcontractors of, information, records and documents which (i)
are received by the Bank or its agents or subcontractors and furnished to such
party by or on behalf of the Fund(s), (ii) have been prepared and/or maintained
by the Fund(s) or any other person or firm on behalf of the Fund(s), or (iii)
were received by the Bank or its agents or subcontractors from a prior transfer
agent.
(b) Any action taken or omitted to be taken by the Bank
in good faith reliance upon any law, act, regulation (a "Regulation") or
interpretation of a Regulation even though such Regulation may thereafter have
been altered, changed, amended or repealed.
(c) The Fund(s)' refusal or failure to comply with the
terms of this Agreement, or which arise out of the Funds' lack of good faith,
negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Fund(s) hereunder.
(d) The reliance on, or the carrying out by the Bank or
its agents or subcontractors of any instructions or requests, whether written or
oral, of the Fund(s).
(e) The offer or sale of Shares by the Fund in violation
of (i) any requirement under the federal securities laws or regulations; (ii)
any requirement under the securities laws or regulations of any state; or (iii)
any stop order or other determination or ruling by any federal or state agency
with respect to the offer or sale of such Shares.
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14.2 The Bank shall indemnify and hold the Fund harmless from and
against any Claim to the extent such Claim arises from the gross negligence,
willful misfeasance or bad faith of the Bank or any Indemnified Party.
14.3 At any time the Bank may apply to any officer of the Fund for
instructions, and may consult with legal counsel of the Bank or the Fund with
respect to any matter arising in connection with the services to be performed by
the Bank under this Agreement, and the Bank and its agents or subcontractors
shall not be liable and shall be indemnified by the Fund for any action taken or
omitted by it in reliance upon such instructions or upon the opinion of such
counsel except for a knowing violation of law. The Bank, its agents and
subcontractors shall be protected and indemnified in acting upon any paper or
document furnished by or on behalf of the Fund(s), reasonably believed to be
genuine and to have been signed by the proper person or persons, or upon any
instruction, information, data, records or documents provided to the Bank or its
agents or subcontractors by e-mail, ftp, or other computerized transmission,
machine readable input, telex, CRT data entry or other similar means authorized
by the Fund(s), and the Bank, its agents and subcontractors shall not be held to
have notice of any change of authority of any person, until receipt of written
notice thereof from the Fund(s). The Bank, its agents and subcontractors shall
also be protected and indemnified in recognizing stock certificates which are
reasonably believed to bear the proper manual or facsimile signatures of an
officer of the Fund, and one proper countersignature of any former transfer
agent or registrar, or of a co-transfer agent or co-registrar.
14.4 In the event either party is unable to perform its obligations
under the terms of this Agreement because of acts of God, strikes, interruption
of electrical power or other utilities, equipment or transmission failure or
damage reasonably beyond its control, or other causes reasonably beyond its
control, such party shall not be liable to the other for any damages resulting
from such failure to perform or otherwise from such causes.
14.5 Neither party to this Agreement shall be liable to the other
party for special, incidental or consequential damages, even if the other party
has been advised of the possibility of such damages, under any provision of this
Agreement or for any act or failure to act hereunder as contemplated by this
Agreement.
14.6 In order that the indemnification provisions contained in this
Article 14 shall apply, upon the assertion of a claim for which such party may
be required to indemnify the other, the party seeking the 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 party
seeking indemnification shall give the indemnifying party full and complete
authority, information and assistance to defend such claim or proceeding, and
the indemnifying party shall have, at its option, sole control of the defense of
such claim or proceeding and all negotiations for its compromise or settlement.
The party seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it
except with the other party's prior written consent, which consent shall not be
unreasonably withheld.
15. Covenants of the Fund and the Bank.
15.1 The Fund shall promptly furnish to the Bank the following:
(a) A certified copy of the resolution of the Trustees of
the Fund authorizing the appointment of the Bank and the execution and delivery
of this Agreement.
(b) A copy of the charter documents and by-laws of the
Fund and all amendments thereto.
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(c) Copies of each vote of the Trustees designating
authorized persons to give instructions to the Bank, and a Certificate providing
specimen signatures for such authorized persons.
(d) Certificates as to any change in any officer or
Director of the Fund.
(e) If applicable a specimen of the certificate of Shares
in each Fund of the Fund in the form approved by the Trustees, with a
Certificate as to such approval.
(f) Specimens of all new certificates for Shares,
accompanied by the Trustees' resolutions approving such forms.
(g) All account application forms and other documents
relating to shareholder accounts or relating to any plan, program or service
offered by the Fund.
(h) A list of all Shareholders of the Fund(s) with the
name, address and tax identification number of each Shareholder, and the number
of Shares of the Fund(s) held by each, certificate numbers and denominations (
if any certificates have been issued), lists of any account against which stops
have been placed, together with the reasons for said stops, and the number of
Shares redeemed by the Fund(s).
(i) An opinion of counsel for the Fund with respect to
the validity of the Shares and the status of such Shares under the Securities
Act of 1933.
(j) Copies of the Fund(s) registration statement on Form
N-2 (if applicable) as amended and declared effective by the Securities and
Exchange Commission and all post-effective amendments thereto.
(k) Such other certificates, documents or opinions as the
Bank may deem necessary or appropriate for the Bank in the proper performance of
its duties hereunder.
15.2 The Bank hereby agrees to establish and maintain facilities
and procedures reasonably acceptable to the Fund for safekeeping of stock
certificates, check forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of, such certificates,
forms and devices.
15.3 The Bank shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem advisable. To the
extent required by Section 31 of the 1940 Act and the Rules thereunder, the Bank
agrees that all such records prepared or maintained by the Bank relating to the
services to be performed by the Bank hereunder are the confidential property of
the Fund and will be preserved, maintained and made available in accordance with
such Section and Rules, and will be surrendered to the Fund on and in accordance
with its request.
15.4 The Bank and the Fund agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily disclosed to
any other person, except as may be required by law.
15.5 In case of any requests or demands for the inspection of the
Shareholder records of the Fund, the Bank will endeavor to notify the Fund and
to secure instructions from an authorized officer of the Fund as to such request
or demand. The Bank reserves the right, however, to exhibit the Shareholder
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records to any person whenever it is advised by its counsel that it may be
subject to enforcement or other action by any court or regulatory body for the
failure to exhibit the Shareholder records to such person.
16. Term of Agreement.
16.1 Termination of Agreement. The term of this Agreement shall be
three years commencing upon the date hereof (the "Initial Term"), unless earlier
terminated as provided herein. After the expiration of the Initial Term, the
term of this Agreement shall automatically renew for successive three-year terms
(each a "Renewal Term") unless written notice of non-renewal is delivered by the
non-renewing party to the other party no later than ninety days prior to the
expiration of the Initial Term or any Renewal Term, as the case may be.
Either party hereto may terminate this Agreement prior to the
expiration of the Initial Term or any Renewal Term in the event the other party
violates any material provision of this Agreement, provided that the
non-violating party gives written notice of such violation to the violating
party and the violating party does not cure such violation within ninety days of
receipt of such notice.
16.2 Should the Fund exercise its right to terminate, all
out-of-pocket expenses associated with the movement of records and material will
be borne by the Fund. Additionally, the Bank reserves the right to recover from
the Fund any other reasonable expenses associated with such termination.
17. Additional Funds. In the event that the Fund establishes one or more
series with respect to which it desires to have the Bank render services as
transfer agent under the terms hereof, it shall so notify the Bank in writing,
and if the Bank agrees in writing to provide such services, such series shall
become a Fund hereunder.
18. Assignment.
18.1 Except as provided in Section 18.3 below, neither this
Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
18.2 This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors and assigns.
18.3 The Bank, may without further consent on the part of the Fund,
subcontract for the performance of any of the services to be provided hereunder
to third parties, including any affiliate of the Bank.
19. Amendment. This Agreement may be amended or modified only by a written
agreement executed by both parties.
20. Governing Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the
Commonwealth of Massachusetts, without regard to its conflict of laws
provisions.
21. Merger of Agreement and Severability.
21.1 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
hereof whether oral or written.
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21.2 In the event any provision of this Agreement shall be held
unenforceable or invalid for any reason, the remainder of the Agreement shall
remain in full force and effect.
21.3 This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original; but such counterparts shall
together, constitute only one instrument.
22. Notices. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below:
For the Fund(s):
XXXXXX BROTHERS/FIRST TRUST INCOME OPPORTUNITY FUND
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
For the Bank:
Investors Bank & Trust Company
000 Xxxxxxxxx Xxxxxx, X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxxxxxx Xxxxx, Director, Client Management
With a copy to: Xxxx X. Xxxxx, General Counsel
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and the year first above written.
XXXXXX BROTHERS/FIRST TRUST
INCOME OPPORTUNITY FUND
By: __________________________
Name:
Title:
INVESTORS BANK & Trust Company
By: __________________________
Name:
Title:
[Signature Page to Transfer Agency and Service Agreement]
