EXECUTION COPY
TRANSFER AGENCY AND REGISTRAR SERVICES
AGREEMENT
by and between:
FIRST TRUST ACTIVE DIVIDEND INCOME FUND
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
Dated: August 23, 2007
Table of Contents
Page
Section 1. Appointment of Agent..........................................3
Section 2. Standard Services.............................................4
Section 3. Fees and Expenses.............................................7
Section 4. Representations and Warranties of AST.........................8
Section 5. Representations and Warranties of the Fund....................9
Section 6. Reliance and Indemnification..................................9
Section 7. Standard of Care.............................................12
Section 8. Limitations on AST's Responsibilities........................12
Section 9. Covenants of the Fund and AST................................12
Section 10. Term and Termination; New Funds..............................14
Section 11. Assignment...................................................16
Section 12. Notices......................................................16
Section 13. Successors...................................................16
Section 14. Amendment....................................................17
Section 15. Severability.................................................17
Section 16. Governing Law................................................17
Section 17. Descriptive Headings.........................................17
Section 18. Third Party Beneficiaries....................................17
Section 19. Survival.....................................................17
Section 20. Merger of Agreement..........................................18
Section 21. Counterparts.................................................18
Section 22. Obligations of the Fund......................................18
Section 23. Use of Trade Names...........................................18
Section 24. Disaster Recovery............................................19
Signatures...................................................20
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TRANSFER AGENCY AND REGISTRAR SERVICES AGREEMENT
This Transfer Agency and Registrar Services Agreement (the
"Agreement"), dated as of August 23, 2007 is between First Trust Active Dividend
Income Fund, a Massachusetts business trust (the "Fund"), and American Stock
Transfer & Trust Company, a New York corporation ("AST").
WHEREAS, the Fund desires the appointment of AST as transfer agent,
dividend disbursing agent and agent in connection with certain other activities,
and registrar;
WHEREAS, AST desires to accept such appointment and perform the
services related to such appointment;
NOW, THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the parties hereby agree as follow:
Section 1.........Appointment of Agent
1.01 The Fund hereby appoints AST to act as transfer agent,
dividend disbursing agent and registrar for the common shares
of beneficial interest of the Fund and for any such other
shares as the Fund may request in writing ("the Shares") in
accordance with the terms and conditions hereof, and AST
hereby accepts such appointment.
1.02 In connection with the appointment of AST as transfer agent,
dividend disbursing agent and registrar for the Fund, the
Fund shall provide AST:
(a) A Certificate of Appointment in substantially the
form furnished by AST (and a Supplemental Certificate
each time there is any material change to the
information contained in the original Certificate of
Appointment). It is agreed, however, that any
provisions explicitly addressed in this Agreement
shall govern the relationship between the parties in
the event of a conflict between the Certificate of
Appointment and this Agreement;
(b) If applicable, specimens of all forms of outstanding
stock certificates, in the forms approved by the
Board of Trustees of the Fund, with a certificate of
the Secretary of the Fund as to such approval;
(c) Specimens of the signatures of the officers of the
Fund authorized to sign stock certificates and
specimens of the signatures of the individuals
authorized to sign written instructions and requests;
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(d) A copy of the Declaration of Trust and by-laws of the
Fund and, on a continuing basis, copies of all
material amendments to the Declaration of Trust or
by-laws made after the date of this Agreement (such
amendments to be provided promptly after such
amendments are made); and
(e) A sufficient supply of blank certificates signed by
(or bearing the facsimile signature of) the officers
of the Fund authorized to sign stock certificates (if
any) and bearing the Fund's corporate seal (if
required). Unless otherwise directed, AST may use
certificates bearing the signature of a person who at
the time of use is no longer an officer of the Fund.
Section 2.........Standard Services
2.01 In accordance with the procedures established from time to time
by agreement between the Fund and AST, AST shall provide the
following services:
(a) Create and maintain shareholder accounts for all
Shares;
(b) Provide online access capability for the Fund's
personnel, including "read-only" access to individual
shareholder files;
(c) Review transfer documents and certificates for
acceptability;
(d) Complete transfer debit and credit transactions;
(e) Provide for the original issuance of Shares as
directed by the Fund;
(f) Maintain Treasury accounts in book entry;
(g) Furnish clear, simple, and detailed instructions to
shareholders throughout the transfer process, as well
as clear and concise written explanations of rejected
transfers;
(h) Post transfers to the record system daily;
(i) Prepare a list of shareholders entitled to vote at
the annual meeting or any special meeting of
shareholders, as requested by the Fund;
(j) As required by the Fund, prepare and print proxy
cards and mail all proxy materials to shareholders of
record as of the proxy record date or provide a list
of the names (and other relevant information) of such
shareholders of record to a designated third party
for purposes of such mailing (it being understood,
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however, that production of such external files shall
be billable as an expense at AST's standard rates for
the production of external tapes);
(k) Tabulate returned proxy cards unless the Fund selects
a third party proxy tabulator, report on proxies
voted prior to meetings, act as inspector of election
at meetings and certify Shares voted at meetings;
(l) Provide the Fund with access to shareholder voting
records via online access or by written report, prior
to the Fund's annual meeting or special meeting, as
applicable;
(m) Provide appropriate responses to electronic,
telephonic and written inquiries from the Fund's
shareholders, and keep records of all shareholder
correspondence and replies thereto, and of the lapse
of time between the receipt of such correspondence
and the mailing of such replies;
(n) Provide an 800 toll-free number and toll number in
conjunction with an interactive telephone system
capable of providing information and handling
shareholder requests without talking to a
representative;
(o) Prepare and submit appropriate tax and other reports
required by State and Federal agencies, principal
stock exchanges, and shareholders, as requested by
the Fund;
(p) Issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed,
unless AST has received notice that such certificates
were acquired by a bona fide purchaser. AST shall be
entitled to demand an open penalty surety bond
satisfactory to AST holding AST and the Fund
harmless. AST shall be entitled to demand payment of
the premium and processing fee for such open penalty
surety bond from the shareholder. AST, at its option,
may issue replacement certificates in place of
mutilated stock certificates upon presentation
thereof without such indemnity. AST is to perform
required filing of regulatory reports related to the
recording, maintenance, and reporting of lost
certificates;
(q) Compute quarterly dividend payment for each account
as of the record date, balanced to the official share
position;
(r) Prepare and transmit payments for dividends and
distributions declared by the Fund, provided good
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funds for said dividends or distributions are
received by AST prior to the scheduled mailing date
for said dividends or distributions;
(s) Code lost accounts to suppress printing and mailing
of checks in accordance with applicable policies and
guidelines;
(t) Replace lost or stolen dividend checks at a
shareholder's request;
(u) Withhold taxes on dividends at the appropriate rate
when applicable;
(v) Administer an Investors Choice Direct Stock Purchase
and Sale program (if requested);
(w) Prepare and deliver, not less frequently than on a
calendar quarter basis, compliance reports to the
Fund containing volumes and service standards related
to activities AST is performing. Reports shall be
delivered in a format mutually agreed to between the
Fund and AST and provide the Fund with the necessary
data to meet its required oversight of service
providers' responsibilities;
(x) As required by the Fund, mail the Fund's Annual and
Semiannual reports to shareholders. Each report will
be mailed one business day after receipt by AST to
shareholders of record;
(y) Comply with current IRS regulations, processes, and
procedures as outlined in IRS Publication 1281 for
"B" Notice processing. Upon receipt of an IRS "C"
Notice, when appropriate, AST will code the
shareholder account for backup withholding of taxes
on dividends and other distributions at the
appropriate rate. AST will timely file Form 945 with
the IRS to report any amounts withheld on IRS Forms
1099-DIV and 1099-INT;
(z) Mail IRS Forms 1099-DIV and 1099-INT to shareholders
in a timely manner and in accordance with IRS
regulations; and
(aa) Serve as agent for shareholders pursuant to the
Fund's dividend reinvestment plan, as amended from
time to time.
In addition to and neither in lieu nor in contravention of the services
set forth above, AST shall perform all the customary services of a transfer
agent, registrar, dividend disbursing agent and agent of the dividend
reinvestment plan as described herein consistent with those requirements in
effect as of the date of this Agreement.
2.02 The Fund shall have the obligation to discharge all applicable
escheat and notification obligations. Notwithstanding the
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foregoing, upon request, AST will assist the Fund in
discharging these obligations. AST should be responsible for
all escheatment activities and abandoned property filings.
2.03 AST may, at its election, outsource any of the services to be
provided hereunder, but shall retain ultimate responsibility
for any of the services so provided. AST will notify the Fund
when a significant service(s) is outsourced.
2.04 AST may provide further services to, or on behalf of, the Fund
as may be agreed upon between the Fund and AST.
2.05 AST represents and warrants that it is in, and will continue
to be in, substantial compliance with all laws and regulations
applicable to the services to be performed hereunder,
including without limitation Section 17 of the Securities
Exchange Act of 1934 Act (the "1934 Act") and rules thereunder
("Applicable Law"). AST represents and warrants that it is
registered as a transfer agent with the Securities and
Exchange Commission (the "Commission") pursuant to Section 17
of the 1934 Act and hereby undertakes to maintain its
registration so long as it provides services hereunder. In
addition, AST shall provide to the Fund, at the time of
appointment and annually thereafter, a report on the
accounting controls of AST under Rule 17Ad-13 under the 1934
Act as well as such certifications of compliance as may be
reasonably requested by the Fund from time to time.
2.06 AST further represents and warrants that it is in compliance
with Section 17(f) of the 1934 Act and that all AST employees
are properly fingerprinted and that new employees will be
fingerprinted. AST will submit new fingerprints to the
appropriate authority for evaluation. When notified that any
employee(s) or potential employee(s) has been convicted of a
crime, AST will not employ or will dismiss such employee(s).
AST further represents and warrants that it is in compliance
with Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 and its
implementing regulations and that it is in compliance with SEC
Regulation S-P and will safeguard and protect shareholders
information in accordance with Regulation S-P.
Section 3.........Fees and Expenses
3.01. Fees
The Fund agrees to pay AST fees for the services performed
pursuant to this Agreement in the amount of $1,500.00 per
month. Notwithstanding the foregoing, in the event that the
scope of services to be provided by AST is increased
substantially, the parties shall negotiate in good faith to
determine reasonable compensation for such additional
services.
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3.02. Out-of-Pocket Expenses
(a) In addition to the fees paid under Section 3.01
above, the Fund agrees to reimburse AST for all
reasonable out-of-pocket expenses or other charges
incurred by AST in connection with the provision of
services to the Fund (including attorneys fees) at
AST's rates then in effect.
(b) Notwithstanding Section 3.03 below, AST reserves the
right to request advance payment for substantial
out-of-pocket expenditures.
3.03. Payment of Fees and Expenses
The Fund agrees to pay all fees and reimbursable expenses
within thirty (30) days following the receipt of a billing
notice. Interest charges will accrue on unpaid balances
outstanding for more than sixty (60) days.
3.04. Services Required by Legislation
New or materially expanded services required by legislation or
regulatory mandate that become effective after the effective
date of this Agreement shall not be part of the standard
services, and shall be billed by separate written agreement,
provided that this provision shall not relieve AST from its
obligations hereunder to comply with Applicable Law in
providing the services under this Agreement.
Section 4.........Representations and Warranties of AST
AST represents and warrants to the Fund that:
It is a corporation duly organized and validly existing in
good standing under the laws of the State of New York;
It is duly qualified to carry on its business in the State of
New York;
It is empowered under Applicable Laws and by its Charter and
By-laws to enter into and perform this Agreement; and
All requisite corporate proceedings have been taken to
authorize it to enter into and perform this Agreement.
To the best of its knowledge, the various procedures and
systems which it has implemented or will implement with regard
to safeguarding from loss or damage attributable to fire,
theft or any other cause (including provision for 24
hours-a-day restricted access) of the Fund's records and other
data and its records, data, equipment, facilities and other
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property used in the performance of its obligations hereunder
are adequate and it will make such changes therein from time
to time as in its judgment are required for the secure
performance of its obligations hereunder. The parties shall
review such systems and procedures on a periodic basis.
It will maintain adequate insurance to enable it to continue
its operations as described herein.
Section 5.........Representations and Warranties of the Fund
The Fund represents and warrants to AST that:
It is a trust duly organized and validly existing and in good
standing under the laws of the Commonwealth of Massachusetts;
It is empowered under applicable laws and governing
instruments to enter into and perform this Agreement;
All corporate proceedings required by said governing
instruments and applicable law have been taken to authorize it
to enter into and perform this Agreement;
All certificates representing Shares which were not issued
pursuant to an effective registration statement under the
Securities Act of 1933, as amended, bear a legend in
substantially the following form:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933, as
amended (the "Act"). The shares may not be sold,
transferred or assigned in the absence of an
effective registration for these shares under the Act
or an opinion of the Fund's counsel that registration
is not required under the Act."
All Shares not so registered were issued or transferred in a
transaction or series of transactions exempt from the
registration provisions of the Act, and in each such issuance
or transfer, the Fund was so advised by its legal counsel.
Section 6.........Reliance and Indemnification
6.01 AST may rely on any written or oral instructions received from
any person it believes in good faith to be an officer,
authorized agent or employee of the Fund, UNLESS, prior
thereto, (a) the Fund shall have advised AST in writing that
it is entitled to rely only on written instructions of
designated officers of the Fund; (b) it furnishes AST with an
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appropriate incumbency certificate for such officers and their
signatures; and (c) the Fund thereafter keeps such designation
current with an annual (or more frequent, if required)
re-filing. AST may also rely on advice, opinions or
instructions received from the Fund's legal counsel, provided
that AST acts reasonably pursuant to such advice. AST may, in
any event, rely on advice received from its legal counsel at
its own expense, provided that AST acts reasonably pursuant to
such advice. AST may rely (a) on any writing or other
instruction believed by it in good faith to have been
furnished by or on behalf of the Fund or a shareholder; (b) on
any statement of fact contained in any such writing or other
instruction which it in good faith does not believe to be
inaccurate; (c) on the apparent authority of any person to act
on behalf of the Fund or a shareholder as having actual
authority to the extent of such apparent authority; (d) on the
authenticity of any signature (manual or facsimile) appearing
on any writing; and (e) on the conformity to original of any
copy. AST shall further be entitled to rely on any
information, records and documents provided to AST by a former
transfer agent or former registrar on behalf of the Fund.
6.02 AST shall not be responsible for, and the Fund shall indemnify
and hold AST harmless from and against, any and all losses,
damages, costs, charges, judgments, fines, amounts paid in
settlement, reasonable counsel fees and expenses, payments,
general expenses and/or liability (collectively, "Losses")
arising out of or attributable to:
(a) AST's (and/or its agents' or subcontractors')
actions performed in its capacity as transfer agent
and/or registrar, provided that such actions are
taken in good faith and without negligence or
willful misconduct;
(b) The Fund's lack of good faith, negligence or willful
misconduct or the breach of any representation or
warranty of the Fund hereunder;
(c) Any action(s) taken in accordance with section 6.01
above provided that such actions are taken in good
faith and without negligence or willful misconduct;
(d) Any action(s) performed pursuant to a written order
or request issued by a statutory, regulatory,
governmental or quasi-governmental body (AST shall,
however, provide the Fund with prompt notice upon
receiving such order or request, unless AST is
legally compelled not to do so), provided that AST's
actions in response to such order or request are
reasonable and that AST furnishes information only
to the extent it is legally required, unless the
Fund has consented to such disclosure; or
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(e) Any reasonable expenses, including reasonable
attorney fees, incurred in seeking to enforce the
foregoing indemnities.
In any case in which a party may be asked to indemnify or hold
the other party harmless, the indemnifying party shall be
advised of all pertinent facts concerning the situation in
question and the party seeking indemnification shall notify
the indemnifying party promptly concerning any situation which
presents or appears likely to present a claim for
indemnification. The indemnifying party shall have the option
to defend against any claim which may be the subject of this
indemnification and, in the event that the indemnifying party
so elects, such defense shall be conducted by counsel chosen
by the indemnifying party, and thereupon the indemnifying
party shall take over complete defense of the claim and the
party seeking indemnification shall sustain no further legal
or other expenses in such situation for which it seeks
indemnification. The party seeking indemnification will not
confess any claim or make any compromise in any case in which
the indemnifying party will be asked to provide
indemnification, except with the indemnifying party's prior
written consent;
6.03 AST will research the records delivered to it on its
appointment as agent if it receives a stock certificate not
reflected in said records. If neither the Fund nor AST is able
to reconcile said certificate with said records (so that the
transfer of said certificate on the records maintained by AST
would create an overissue), the Fund shall either increase the
number of its issued shares, or acquire and cancel a
sufficient number of issued shares, to correct the overissue.
6.04 AST agrees to defend, indemnify and hold the Fund and its
officers, directors and employees harmless from any and all
taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, reasonable attorneys' fees and
disbursements and liabilities arising under the federal
securities laws and any state and foreign securities and blue
sky laws) ("Claims") arising directly or indirectly from the
negligence, bad faith or willful misfeasance of AST 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.
6.05 The foregoing indemnities shall not terminate on termination
of AST's acting as transfer agent and/or registrar, and they
are irrevocable. AST's acceptance of its appointment as
transfer agent, dividend disbursing agent and/or registrar,
evidenced by its acting as such for any period, on the one
hand, and the Fund's receipt of such services, on the other
hand, shall be deemed sufficient consideration for the
foregoing indemnities.
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Section 7.........Standard of Care
AST shall, at all times, act in good faith and without
negligence or willful misconduct. AST agrees to use its best
efforts, within reasonable time limits, to ensure the accuracy
of all services performed under this Agreement.
Section 8.........Limitations on AST's Responsibilities
AST shall not be responsible for the validity of the issuance,
presentation or transfer of stock; the genuineness of
endorsements; the authority of presentors; or the collection
or payment of charges or taxes incident to the issuance or
transfer of stock. AST may, however, delay or decline an
issuance or transfer if it deems it to be in its or the Fund's
best interests to receive evidence or assurance of such
validity, authority, collection or payment. AST shall not be
responsible for any discrepancies in its records or between
its records and those of the Fund, if it is a successor
transfer agent or successor registrar, unless no discrepancy
existed in the records of the Fund and any predecessor
transfer agent or predecessor registrar. AST shall not be
deemed to have notice of, or to be required to inquire
regarding, any provision of the Fund's Declaration of Trust,
or by-laws, any court or administrative order, or any other
document, unless it is specifically advised of such in a
writing from the Fund, which writing shall set forth the
manner in which it affects the Shares. In no event shall AST
be responsible for any transfer or issuance not effected by
it.
AS TO ANY CLAIMS BETWEEN THE PARTIES (EXCLUDING THIRD PARTY
CLAIMS), IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR
ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL
DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, DATA OR COST OF
COVER.
Section 9.........Covenants of the Fund and AST
9.01 AST agrees to establish and maintain facilities and procedures
reasonably acceptable to the Fund for the safekeeping of stock
certificates.
9.02 AST shall keep records relating to the services to be
performed hereunder, in the form and manner as it may deem
advisable. AST agrees that all such records prepared or
maintained by it relating to the services performed hereunder
are the property of the Fund and will be preserved, maintained
and made available to the Fund in accordance with the
requirements of law, and will be surrendered promptly to the
Fund on and in accordance with its request. However,
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AST shall be entitled to destroy or otherwise dispose of
records belonging to the Fund in accordance with AST's
standard document and record retention practices and/or
procedures so long as such destruction or disposal is
consistent with Applicable Law and AST has provided
reasonable notice to the Fund.
9.03 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, 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 AST and their
respective subsidiaries and affiliated companies; (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 AST 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 Confidential Information and shall not be subject to
such confidentiality obligations if: (a) it is necessary for
AST to release such information in connection with the
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 requested or required to be disclosed
by the receiving party pursuant to a court order, subpoena,
governmental or regulatory agency request or law (provided the
receiving party will provide the other party written notice of
the same, to the extent such notice is permitted); (g) it is
relevant to the defense of any claim or cause of action
asserted against the receiving party; (h) it has been or is
independently developed or obtained by the receiving party; or
(i) it is necessary for AST to release such information to
AST's internal or external accountants or legal counsel who
are subject to a duty of confidentiality. AST acknowledges and
agrees that in connection with its services under this
Agreement it receives non-public confidential portfolio
holdings information ("Portfolio Information") with respect to
the Fund. AST agrees that, subject to the foregoing provisions
of and the exceptions set forth in this Section 9.03 (other
than the exception set forth above in this Section 9.03 as
sub-item (a), which exception set forth in sub-item (a) shall
not be applicable to the Fund's Portfolio Information), AST
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will keep confidential the Fund's Portfolio Information and
will not disclose the Fund's Portfolio Information other than
pursuant to a written certification or instructions; provided
that without the need for such a written certification or
instructions and notwithstanding any other provision of this
Section 9.03 to the contrary, the Fund's Portfolio Information
may be disclosed to any third party pricing services which are
engaged by AST in connection with the provision of services
under this Agreement and which shall be subject to a duty of
confidentiality with respect to such Portfolio Information.
9.04 AST and the Fund agree that all confidential 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 or as permitted
by AST's privacy policy as then in effect.
9.05 AST shall 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, AST 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, to inspect its
operating capabilities or for any other reason.
Section 10........Term and Termination; New Funds
10.01 This Agreement shall be effective on the date first written
above and shall continue until June 12, 2008 (the "Initial
Term"). 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 AST
provides written notice to the other of its intent not to
renew. Such notice must be received not less than 90 days
prior to the expiration of the Initial Term or the then
current Renewal Term. The term of this appointment shall be
governed in accordance with this paragraph, notwithstanding
the cessation of active trading in the capital stock of the
Fund.
10.02 In the event that AST commits any continuing breach of its
material obligations under this Agreement, and such breach
remains uncured for more than sixty (60) days after written
notice by the Fund (which notice shall explicitly reference
this provision of the Agreement), the Fund shall be entitled
to terminate this Agreement with no further payments other
than (a) payment of any amounts then outstanding under this
Agreement and (b) payment of any amounts required pursuant to
Section 10.05 hereof.
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10.03 In the event that the Fund terminates this Agreement other
than pursuant to Sections 10.01 and 10.02 above, the Fund
shall be obligated to immediately pay all amounts that would
have otherwise accrued during the term of the Agreement
pursuant to Section 3 above, as well as the charges accruing
pursuant to Section 10.05 below.
10.04 In the event that the Fund commits any breach of its material
obligations to AST, including non-payment of any amount owing
to AST, and such breach remains uncured for more than sixty
(60) days, AST shall have the right to terminate or suspend
its services after written notice by AST (which notice shall
explicitly reference this provision of this Agreement) to the
Fund. During such time as AST may suspend its services, AST
shall have no obligation to act as transfer agent and/or
registrar on behalf of the Fund, and shall not be deemed its
agent for such purposes.
10.05 Should the Fund elect not to renew this Agreement or otherwise
terminate this Agreement, AST shall be entitled to reasonable
costs for records for delivery to its successor or to the
Fund, and for forwarding and maintaining records with respect
to certificates received after such termination. AST will
perform its services in assisting with the transfer of records
in a diligent and professional manner.
10.06 If the Board of Trustees hereafter establishes and designates
a new fund, if requested by such new fund, AST agrees that it
will act as transfer agent, dividend disbursing agent and
registrar for such new fund in accordance with the terms set
forth herein (including without limitation the amount of fees
to be paid by such new fund per month, which shall be equal to
the amount set forth in Section 3.01 of this Agreement). In
that regard, the Trustees shall cause a written notice to be
sent to AST to the effect that they have established a new
fund and that they appoint AST as transfer agent, dividend
disbursing agent and registrar for the new fund. Such written
notice must be received by AST in a reasonable period of time
prior to the commencement of operations of the new fund to
allow AST, in the ordinary course of its business, to prepare
to perform its duties. Notwithstanding the foregoing, at the
discretion of the new fund, the new fund and AST shall amend
the terms of this Agreement to include such new fund or enter
into a new agreement the provisions of which shall be
substantially identical to those set forth in this Agreement
(including without limitation the provisions of Section 3.01
of this Agreement).
Section 11........Assignment
Neither this Agreement, nor any rights or obligations
hereunder, may be assigned by either party without the written
consent of the other party.
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Section 12........Notices
Any notice or communication by AST or the Fund to the other is
duly given if in writing and delivered in person or mailed by
first class mail (postage prepaid), telex, telecopier or
overnight air courier to the other's address:
If to the Fund:
First Trust Active Dividend Income Fund
0000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
Confirm: (000) 000-0000
If to AST:
Xx. Xxxxxx Xxxxxxxxx
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
With a copy to:
American Stock Transfer & Trust Company
Attn: General Counsel
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
AST and the Fund may, by notice to the other, designate
additional or different addresses for subsequent notices or
communications.
Section 13........Successors
All the covenants and provisions of this Agreement by or for
the benefit of the Fund or AST shall bind and inure to the
benefit of their respective successors and assigns hereunder.
Section 14........Amendment
This Agreement may be amended or modified by a written
amendment executed by both parties hereto.
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Section 15........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, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated. To the
extent that any provision hereof is deemed to be unenforceable
under applicable law, it shall be deemed replaced by an
enforceable provision to the same or nearest possible effect.
Section 16........Governing Law
This Agreement shall be governed by the laws of the State of
New York.
Section 17........Descriptive Headings
Descriptive headings of the several sections of this Agreement
are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions
hereof.
Section 18........Third Party Beneficiaries
The provisions of this Agreement are intended to benefit only
AST and the Fund and their respective 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.
Section 19........Survival
All provisions regarding indemnification, liability and limits
thereon shall survive the termination of this Agreement.
Section 20........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.
Section 21........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.
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Section 22........Obligations of the Fund
It is expressly acknowledged and agreed that the obligations
of the Fund hereunder shall not be binding upon any of the
shareholders, Trustees, officers, employees or agents of the
Fund personally, but shall bind only the assets and property
of the Fund as provided in the Fund's Declaration of Trust.
The execution and delivery of this Agreement have been
authorized by the Trustees of the Fund and signed by an
officer of such Fund, acting as such, and neither such
authorization by such Trustees nor such execution and delivery
by such officer shall be deemed to have been made by any of
them individually or to impose any liability on any of them
personally, but shall bind only the assets and property of the
Fund as provided in the Fund's Declaration of Trust.
Section 23........Use of Trade Names
23.01 AST shall approve all reasonable uses of its name which merely
refer in accurate terms to its appointment hereunder or which
are required by the Commission or a state securities
commission.
23.02 AST shall not use the name of the Fund or material relating to
the Fund on any documents or forms for other than internal use
in a manner not approved prior thereto in writing, provided,
that the Fund shall approve all reasonable uses of its name
which merely refer in accurate terms to the appointment of AST
or which are required by the Commission or a state securities
commission.
Section 24........Disaster Recovery
AST 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, AST shall, at no additional
expense to the Fund, take reasonable steps to minimize service
interruptions. AST 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
AST's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or obligations under this
Agreement.
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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.
FIRST TRUST ACTIVE DIVIDEND
INCOME FUND
By:____________________________
Name:__________________________
Title:_________________________
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By:____________________________
Name:__________________________
Title:_________________________
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