TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of __________, 2004 by and between PFPC INC.,
a Massachusetts corporation ("PFPC"), and FIRST TRUST/FOUR CORNERS SENIOR
FLOATING RATE 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 to give Oral Instructions and
Written Instructions on behalf of the Fund. An Authorized
Person's scope of authority may be limited by setting forth such
limitation in a written document signed by both parties hereto.
(d) "Oral Instructions" mean oral instructions received by PFPC from
an Authorized Person or from a person reasonably believed by PFPC
to be an Authorized Person. 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.
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(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" mean the 1933 Act, the 1934 Act and the 0000
Xxx.
(g) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
(h) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by 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 directors, 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
the Fund;
(e) A copy of the Fund's administration agreement if PFPC is not
providing the Fund with such services;
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(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 directors 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.
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.
(d) Protection of PFPC. PFPC shall be indemnified by the Fund and
without liability for any action PFPC takes or does not take in
reliance upon directions or advice or Oral Instructions or
Written Instructions PFPC receives from or on behalf of the Fund
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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.
7. RECORDS; VISITS.
(a) 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.
(b) PFPC shall keep the following records:
(i) all books and records as are customarily maintained by the
transfer agent for a registered investment company.
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 to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
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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: (a) release of such information is
necessary or desirable in connection with PFPC's provision of services
under this Agreement; (b) it is already known to the receiving party at
the time it is obtained; (c) it is or becomes publicly known or
available through no wrongful act of the receiving party; (d) it is
rightfully received from a third party who, to the best of the receiving
party's knowledge, is not under a duty of confidentiality; (e) it is
released by the protected party to a third party without restriction;
(f) it 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); (g) it is relevant to the defense of any claim or cause of
action asserted against the receiving party; or (h) it has been or is
independently developed or obtained by the receiving party.
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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.
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.
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13. INDEMNIFICATION.
(a) 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, reasonable attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state and
foreign securities and blue sky laws) ("Claims") arising directly
or indirectly from any action or omission to act which 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,
negligence or reckless disregard in the performance of PFPC's
activities 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, negligence or
reckless disregard of such duties and obligations. The provisions
of this Section 13 shall survive termination of this Agreement.
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(b) Indemnification of the Fund. PFPC agrees to defend, indemnify and
hold the Fund and its officers, directors and employees harmless
from any and all Claims arising directly or indirectly from the
negligence, bad faith or willful misfeasance of PFPC in the
performance of its duties hereunder. Notwithstanding the
foregoing, the Fund shall not be indemnified against any Claim
caused by the Fund's or the Fund's other service providers'
willful misfeasance, bad faith or negligence.
(c) Indemnification Procedure.
(i) Notice of the Action. A party that seeks indemnification
under this Agreement must promptly give the other party
notice of any legal action; provided, however, that a
delay in notice does not relieve an indemnifying party of
any liability to an indemnified party, except to the
extent the indemnifying party shows that the delay
prejudiced the defense of the action.
(ii) Participating in or Assuming the Defense. The indemnifying
party may participate in the defense at any time or it may
assume the defense by giving notice to the other party.
After assuming the defense, the indemnifying party:
(1) must select an attorney that is satisfactory to the
other party;
(2) is not liable to the other party for any later
attorney's fees or for any other later expenses that the
other party incurs, except for reasonable investigation
costs;
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(3) must not compromise or settle the action without the
other party's consent (but the other party must not
unreasonably withhold its consent); and
(4) is not liable for any compromise or settlement made
without its consent.
(iii) Failing to Assume the Defense. If the indemnifying party
fails to participate in or assume the defense within 15
days after receiving notice of the action, the
indemnifying party is bound by any determination made in
the action or by any compromise or settlement made by the
other party.
14. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or as
may be specifically agreed to by PFPC and the Fund in a written
amendment hereto. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to act
in good faith in performing services provided for under this
Agreement. PFPC 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) Notwithstanding anything in this Agreement to the contrary, (i)
PFPC shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire;
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flood; sabotage; epidemics; labor disputes; civil commotion;
interruption, loss or malfunction of utilities, transportation,
computer or communications capabilities; insurrection; elements
of nature; or non-performance by a third party; and (ii) PFPC
shall not be under any duty or obligation to inquire into and
shall not be liable for the validity or invalidity, authority or
lack thereof, or truthfulness or accuracy or lack thereof, of any
instruction, direction, notice, instrument or other information
which PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC 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 PFPC or
its affiliates.
(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 shareholders relating to
shareholder accounts;
(iii) Provide periodic shareholder lists and statistics;
(iv) Mailing of year-end tax information; and
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(v) Periodic mailing of shareholder dividend reinvestment plan
account information and Fund financial reports.
(b) Dividends and Distributions. PFPC must receive a resolution of
the Fund's board of directors authorizing the declaration and
payment of dividends and distributions. Upon receipt of the
resolution, 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 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
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the payment date of any such dividend or distribution, notify the
fund accounting agent of the estimated amount required to pay any
portion of said dividend or distribution which is payable in
cash, and on or before the payment date of such distribution, the
Fund shall instruct the custodian to make available to the
dividend disbursing agent sufficient funds for the cash amount to
be paid out. If a shareholder is entitled to receive additional
Shares, by virtue of any distribution or dividend, appropriate
credits will be made to his or her account and/or certificates
delivered where requested, all in accordance with the Dividend
Reinvestment Plan.
(c) Communications to Shareholders. Upon timely written instructions,
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;
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(ii) Number and class of shares held and number and class of
shares for which certificates, if any, have been issued,
including certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid
and the date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the current maintenance of
a shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for the transfer agent
to perform any calculations contemplated or required by
this Agreement.
(e) Shareholder Inspection of Stock Records. Upon requests from Fund
shareholders to inspect stock records, 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.
(a) This Agreement shall be effective on the date first written above
and shall continue until June 12, 2008 (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year
("Renewal Terms") each, unless the Fund or PFPC provides written
notice to the other of its intent not to renew. Such notice must
be received not less than ninety (90) days prior to the
expiration of the Initial Term or the then current Renewal Term.
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(c) In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and
conversion thereof to a successor transfer agent(s) (and any
other service provider(s)), and all trailing expenses incurred by
PFPC, will be borne by the Fund.
(d) If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party") the
other party (the "Non-Defaulting Party") may give written
notice thereof to the Defaulting Party, and if such material
breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting
Party may terminate this Agreement by giving thirty (30) days
written notice of such termination to the Defaulting Party. In
all cases, termination by the Non-Defaulting Party shall not
constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against
the Defaulting Party.
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 Xxxxxxxxxxx Xxxx, Xxxxx, XX 00000, Attention: W. Xxxxx
Xxxxxxx 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
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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.
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 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.
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(g) No Representations or Warranties. Except as expressly provided in
this Agreement, PFPC hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing,
custom or usage of trade), of any services or any goods provided
incidental to services provided under this Agreement. PFPC
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.
(i) The Fund and PFPC agree that the obligations of the Fund under
the Agreement shall not be binding upon any of the directors,
shareholders, nominees, officers, employees or agents, whether
past, present or future, of the Fund individually, but are
binding only upon the assets and property of the Fund (or
applicable series thereof), as provided in the Declaration of
Trust. The execution and delivery of this Agreement have been
authorized by the directors of the Fund, and signed by an
authorized officer of the Fund, acting as such, and neither such
authorization by such directors nor such execution and delivery
by such officer shall be deemed to have been made by any of them
or any shareholder of the Fund individually or to impose any
liability on any of them or any shareholder of the Fund
personally, but shall bind only the assets and property of the
Fund (or applicable series thereof), as provided in the Articles
of Incorporation or Declaration of Trust.
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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:
FIRST TRUST/FOUR CORNERS SENIOR
FLOATING RATE INCOME FUND II
By:
Title:
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