EXHIBIT k.1
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of July , 2003 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and XXXXXXXX-XXXXXXXXX CONVERTIBLE & INCOME
FUND II, 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 PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent and PFPC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in this Agreement:
(a) "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's Board of Trustees 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) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person.
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PFPC may, in its sole discretion in each separate instance, consider
and rely upon instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(h) "Shares" mean the shares of beneficial interest of any series or class
of the Fund.
(i) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. Appointment. The Fund hereby appoints PFPC 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. PFPC accepts
such appointment and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the appointment
of PFPC or its affiliates to provide services to the Fund and
approving this Agreement;
(b) A copy of the Fund's most recent effective registration statement;
(c) A copy of the advisory agreement with respect to the Fund;
(d) A copy of the distribution/underwriting agreement with respect to each
class of Shares of the Fund;
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(e) A copy of the Fund's administration agreements if PFPC is not
providing the Fund with such services;
(f) Copies of any distribution and/or shareholder servicing plans and
agreements made in respect of the Fund;
(g) A copy of the Fund's organizational documents, as filed with the state
in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any and all
amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations. PFPC 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 PFPC hereunder. Except as specifically set
forth herein, PFPC assumes no responsibility for such compliance by the
Fund or any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral 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 Trustees or of
the Fund's shareholders, unless and until PFPC receives Written
Instructions to the contrary.
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(c) The Fund agrees to forward to PFPC Written Instructions confirming
Oral Instructions so that PFPC receives the Written Instructions by
the close of business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions are not
received by PFPC or differ from the Oral Instructions shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC's ability to rely upon
such Oral Instructions. Where Oral Instructions or Written
Instructions reasonably appear to have been received from an
Authorized Person, PFPC shall incur no liability to the Fund in acting
in conformance with such Oral Instructions or Written Instructions
provided that PFPC's actions comply with the other provisions of this
Agreement.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or PFPC, at the option of
PFPC).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC receives from
the Fund, and the advice it receives from counsel, PFPC may rely upon
and follow the advice of counsel.
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Reliance on such advice, however, does not excuse PFPC from its duties
under this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it takes or
does not take in reliance upon directions or advice or Oral
Instructions or Written Instructions it receives from the Fund or from
counsel and which PFPC 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 PFPC (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 unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC's properly taking or
not taking such action.
7. Records; Visits. The books and records pertaining to the Fund, which are in
the possession or under the control of PFPC, shall be the property of the
Fund. Such books and records shall be prepared and maintained as required
by the 1940 Act and other applicable securities laws, rules and
regulations. The Fund and Authorized Persons shall have access to such
books and records at all times during PFPC's normal business hours. Upon
the reasonable request of the Fund, copies of any such books and records
shall be provided by PFPC to the Fund or to an Authorized Person, at the
Fund's expense.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known
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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 PFPC, their respective subsidiaries and
affiliated companies and the customers, clients and suppliers of any of
them; (b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret
in the sense that its confidentiality affords the Fund or PFPC a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential. Notwithstanding
the foregoing, information shall not be subject to such confidentiality
obligations if it: (a) is already known to the receiving party at the time
it is obtained and was obtained through some means other than through the
performance of an agreement between PFPC and an affiliate of the Fund; (b)
is or becomes publicly known or available through no wrongful act of the
receiving party; (c) is rightfully received from a third party who, to the
best of the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third party
without restriction; (e) is required to be disclosed by the receiving party
pursuant to a requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the receiving party will provide the
other party written notice of such requirement, to the extent such notice
is permitted); (f) is relevant to the defense of any claim or cause of
action asserted against the receiving
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party; or (g) has been or is independently developed or obtained by the
receiving party. In addition, PFPC agrees that it will not, at any time
during the term of this Agreement or after its termination, reveal,
divulge, or make known to any person or entity, unless required by law, any
list of shareholders of the Fund or any personal information relating to
such shareholders.
9. Cooperation with Accountants. PFPC 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.
10. PFPC System. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection with
the services provided by PFPC to the Fund.
11. Disaster Recovery. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions for
emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
PFPC shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. PFPC shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure,
provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
obligations under this Agreement.
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12. Compensation. As compensation for services rendered by PFPC during the term
of this Agreement, the Fund will pay to PFPC a fee or fees as may be agreed
to from time to time in writing by the Fund and PFPC. The Fund acknowledges
that PFPC may receive float benefits and/or investment earnings in
connection with maintaining certain accounts required to provide services
under this Agreement.
13. Indemnification. The Fund agrees to indemnify, defend and hold harmless
PFPC and its affiliates, including their respective officers, directors,
agents and employees, from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC takes in
connection with the provision of services to the Fund. Neither PFPC, nor
any of its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) caused by PFPC's or its affiliates'
own willful misfeasance, bad faith, gross negligence or reckless disregard
of its duties and obligations under this Agreement, provided that in the
absence of a finding to the contrary the acceptance, processing and/or
negotiation of a fraudulent payment for the purchase of Shares shall be
presumed not to have been the result of PFPC's or its affiliates' own
willful misfeasance, bad faith, gross negligence or reckless disregard of
such duties and obligations. The provisions of this Section 13 shall
survive termination of this Agreement.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of
the Fund
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except as specifically set forth herein or as may be specifically
agreed to by PFPC and the Fund in a written amendment hereto. PFPC
shall be obligated to exercise customary care and diligence in the
performance of its duties hereunder and to act in good faith in
performing services provided for under this Agreement. PFPC shall be
liable only for any damages arising out of PFPC's failure to perform
its duties under this Agreement to the extent such damages arise out
of PFPC's willful misfeasance, bad faith, negligence or reckless
disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC shall not be liable for losses
beyond its control, including without limitation (subject to Section
11), delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, provided that PFPC has acted in
accordance with the standard set forth in Section 14(a) above and has
otherwise fulfilled its obligation under this Agreement; and (ii) PFPC
shall not be under any duty or obligation to inquire into and shall
not be liable for the validity or invalidity or authority or lack
thereof of any Oral Instruction or Written Instruction, notice or
other instrument which conforms to the applicable requirements of this
Agreement, and which PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither party nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or not
the likelihood of such losses or damages was known by the party or its
affiliates and (ii) excluding fees owed by the Fund under this
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Agreement for services rendered by PFPC, a party's cumulative
liability for all losses, claims, suits, controversies, breaches or
damages for any cause whatsoever (including but not limited to those
arising out of or related to this Agreement) and regardless of the
form of action or legal theory shall not exceed $100,000 plus
reasonable attorney's fees.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) The provisions of this Section 14 shall survive termination of this
Agreement.
15. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Maintain shareholder registrations;
(ii) Provide toll-free lines for shareholder and broker-dealer use;
(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. PFPC must receive Written Instructions
authorizing the declaration and payment of dividends and
distributions. Upon receipt of the resolution, PFPC 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
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other laws, rules or regulations. PFPC 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.
PFPC 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, PFPC
and the Fund's Custodian, PFPC shall 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, PFPC 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
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Plan.
(c) Communications to Shareholders. Upon timely written instructions, PFPC
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.
PFPC will receive and tabulate the proxy cards for the meetings of the
Fund's shareholders.
(d) Records. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(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.
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(e) Shareholder Inspection of Stock Records. Upon requests from Fund
shareholders to inspect stock records, PFPC will notify the Fund and
require instructions granting or denying each such request. Unless
PFPC has acted contrary to the Fund's instructions, the Fund agrees to
release PFPC from any liability for refusal of permission for a
particular shareholder to inspect the Fund's shareholder records.
16. Duration and Termination. This Agreement shall continue until terminated by
the Fund or by PFPC on sixty (60) days' prior written notice to the other
party. In the event the Fund gives notice of termination, all expenses
associated with movement (or duplication) of records and materials and
conversion thereof to a successor transfer agent or other service provider,
and all trailing expenses incurred by PFPC directly attributable to
termination, will be borne by the Fund.
17. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the
Fund, at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Secretary or (c) if to neither of the foregoing, at such other address as
shall have been given by like notice to the sender of any such notice or
other communication by the other party. If notice is sent by confirming
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.
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18. 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.
19. Delegation; Assignment. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or of
The PNC Financial Services Group, Inc., provided that PFPC gives the Fund
thirty (30) days' prior written notice of such assignment or delegation. In
addition, PFPC may, in its sole discretion, engage subcontractors to
perform any of the obligations contained in this Agreement to be performed
by PFPC, provided, however, PFPC shall remain responsible for the acts or
omissions of any such sub-contractors.
20. 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.
21. Further Actions. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
22. 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.
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(b) 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 PFPC hereunder without the prior written approval
of PFPC, which approval shall not be unreasonably withheld or delayed.
(c) 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.
(d) 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.
(e) 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.
(f) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(g) No Representations or Warranties. Except as expressly provided in this
Agreement, each party hereby disclaims all representations and
warranties, express or implied, made to the other party or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom or
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usage of trade), of any services or any goods provided incidental to
services provided under this Agreement. Each party disclaims any
warranty of title or non-infringement except as otherwise set forth in
this Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
Title:
XXXXXXXX-XXXXXXXXX CONVERTIBLE & INCOME FUND II
By:
Title:
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