EXHIBIT 99.2k2
TRANSFER AGENCY AND SERVICES AGREEMENT
THIS AGREEMENT, dated as of this day of , 1998 between SALOMON BROTHERS
HIGH INCOME FUND II INC (the "Fund"), a corporation having its principal place
of business at and FIRST DATA INVESTOR SERVICES GROUP, INC. ("Investor Services
Group"), a Massachusetts corporation with principal offices at 0000 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
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WHEREAS, the Fund desires to appoint Investor Services Group as its
transfer agent, registrar, dividend disbursing agent and agent in connection
with certain other activities and Investor Services Group desires to accept such
appointment;
NOW THEREFORE, in consideration of the mutual covenants and promises
hereinafter set forth, the Fund and Investor Services Group agree as follows:
Article 1 Definitions.
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1.1 Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
(a) "Articles of Incorporation" shall mean the Articles of
Incorporation, Declaration of Trust, or other similar organizational
document as the case may be, of the Fund as the same may be amended from
time to time.
(b) "Authorized Person" shall be deemed to include (i) any
authorized officer of the Fund; or (ii) any person, whether or not such
person is an officer or employee of the Fund, duly authorized to give Oral
Instructions or Written Instructions on behalf of the Fund as indicated in
writing to Investor Services Group from time to time.
(c) "Board of Directors" shall mean the Board of Directors or Board
of Trustees of the Fund, as the case may be.
(d) "Commission" shall mean the Securities and Exchange Commission.
(e) "Custodian" refers to any custodian or subcustodian of
securities and other property which the Fund may from time to time deposit,
or cause to be deposited or held under the name or account of such a
custodian pursuant to a Custodian Agreement.
(f) "1934 Act" shall mean the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder, all as amended from time
to time.
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(g) "1940 Act" shall mean the Investment Company Act of 1940 and the
rules and regulations promulgated thereunder, all as amended from time to
time.
(h) "Oral Instructions" shall mean instructions, other than Written
Instructions, actually received by Investor Services Group from a person
reasonably believed by Investor Services Group to be an Authorized Person;
(i) "Prospectus" shall mean the most recently dated Fund Prospectus
and Statement of Additional Information, including any supplements thereto
if any, which has become effective under the Securities Act of 1933 and the
1940 Act.
(j) "Shares" refers collectively to such shares of capital stock or
beneficial interest, as the case may be, or class thereof of the Fund as
may be issued from time to time.
(k) "Shareholder" shall mean a record owner of Shares of the Fund.
(l) "Written Instructions" shall mean a written communication signed
by a person reasonably believed by Investor Services Group to be an
Authorized Person and actually received by Investor Services Group.
Written Instructions shall include manually executed originals and
authorized electronic transmissions, including telefacsimile of a manually
executed original or other process.
Article 2 Appointment of Investor Services Group.
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The Fund hereby appoints and constitutes Investor Services Group as
transfer agent and registrar for Shares of the Fund, dividend disbursing agent
and as shareholder servicing agent for the Fund and Investor Services Group
hereby accepts such appointments and agrees to perform the duties hereinafter
set forth.
Article 3 Duties of Investor Services Group.
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3.1 Investor Services Group shall be responsible for:
(a) Administering and/or performing the customary services of a
transfer agent; acting as service agent in connection with dividend and
distribution functions; and for performing shareholder account and
administrative agent functions in connection with the issuance, transfer
and redemption or repurchase (including coordination with the Custodian) of
Shares, as more fully described in the written schedule of Duties of
Investor Services Group annexed hereto as Schedule A and incorporated
herein, and in accordance with the terms of the Prospectus of the Fund,
applicable law and the procedures established from time to time between
Investor Services Group and the Fund.
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(b) Recording the issuance of Shares and maintaining pursuant to Rule
17Ad-10(e) of the 1934 Act a record of the total number of Shares of the
Fund which are authorized, based upon data provided to it by the Fund, and
issued and outstanding. Investor Services Group shall provide the Fund on
a regular basis with the total number of Shares which are authorized and
issued and outstanding and shall have no obligation, when recording the
issuance of Shares, to monitor the issuance of such Shares or to take
cognizance of any laws relating to the issue or sale of such Shares, which
functions shall be the sole responsibility of the Fund.
(c) Notwithstanding any of the foregoing provisions of this Agreement,
Investor Services Group shall be under no duty or obligation to inquire
into, and shall not be liable for: (i) the legality of the issuance or
sale of any Shares or the sufficiency of the amount to be received
therefor; (ii) the legality of the redemption of any Shares, or the
propriety of the amount to be paid therefor; (iii) the legality of the
declaration of any dividend by the Board of Directors, or the legality of
the issuance of any Shares in payment of any dividend; or (iv) the legality
of any recapitalization or readjustment of the Shares.
3.2 Investor Services Group shall serve as agent for Shareholders pursuant
to the Fund's dividend reinvestment and cash purchase plan as amended from time
to time in accordance with the terms of the agreement to be entered into between
the Shareholders and Investor Services Group.
3.3 In addition to the duties set forth herein, Investor Services Group
shall perform such other duties and functions, and shall be paid such amounts
therefor, as may from time to time be agreed upon in writing between the Fund
and Investor Services Group.
Article 4 Recordkeeping and Other Information.
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4.1 Investor Services Group shall create and maintain all records required
of it pursuant to its duties hereunder and as set forth in Schedule A in
accordance with all applicable laws, rules and regulations, including records
required by Section 31(a) of the 1940 Act. All records shall be available
during regular business hours for inspection and use by the Fund. Where
applicable, such records shall be maintained by Investor Services Group for the
periods and in the places required by Rule 31a-2 under the 1940 Act.
4.2 Upon reasonable notice by the Fund, Investor Services Group shall make
available during regular business hours such of its facilities and premises
employed in connection with the performance of its duties under this Agreement
for reasonable visitation by the Fund, or any other person retained by the Fund
as may be necessary for the Fund to evaluate the quality of the services
performed by Investor Services Group pursuant hereto.
4.3 To the extent required by Section 31 of the 1940 Act, Investor
Services Group agrees that all such records prepared or maintained by Investor
Services Group relating to the
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services to be performed by Investor Services Group hereunder are the property
of the Fund and will be preserved, maintained and made available in accordance
with such section, and will be surrendered promptly to the Fund on and in
accordance with the Fund's request.
4.4 In case of any requests or demands for the inspection of Shareholder
records of the Fund, Investor Services Group will notify the Fund of such
request and secure Written Instructions as to the handling of such request.
Investor Services Group reserves the right, however, upon prior written notice
to the Fund, to exhibit the Shareholder records to any person whenever it is
advised by its counsel that it may be held liable for the failure to comply with
such request.
Article 5 Fund Instructions.
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5.1 Investor Services Group will have no liability when acting upon
Written or Oral Instructions believed to have been executed or orally
communicated by an Authorized Person and will not be held to have any notice of
any change of authority of any person until receipt of a Written Instruction
thereof from the Fund. Investor Services Group will also have no liability when
processing Share certificates which it reasonably believes to bear the proper
manual or facsimile signatures of the officers of the Fund and the proper
countersignature of Investor Services Group.
5.2 At any time, Investor Services Group may request Written Instructions
from the Fund and may seek advice from legal counsel for the Fund, or its own
legal counsel, with respect to any matter arising in connection with this
Agreement, and it shall not be liable for any action taken or not taken or
suffered by it in good faith in accordance with such Written Instructions or in
accordance with the opinion of counsel for the Fund or for Investor Services
Group. Written Instructions requested by Investor Services Group will be
provided by the Fund within a reasonable period of time.
5.3 Investor Services Group, its officers, agents or employees, shall
accept Oral Instructions or Written Instructions given to them by any person
representing or acting on behalf of the Fund only if said representative is an
Authorized Person. The Fund agrees that all Oral Instructions shall be followed
within one business day by confirming Written Instructions, and that the Fund's
failure to so confirm shall not impair in any respect Investor Services Group's
right to rely on Oral Instructions.
Article 6 Compensation.
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6.1 The Fund will compensate Investor Services Group for the performance
of its obligations hereunder in accordance with the fees set forth in the
written Fee Schedule annexed hereto as Schedule B and incorporated herein.
6.2 In addition to those fees set forth in Section 6.1 above, the Fund
agrees to pay, and will be billed separately for, out-of-pocket expenses
incurred by Investor Services Group in
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the performance of its duties hereunder. Out-of-pocket expenses shall include,
but shall not be limited to, the items specified in the written schedule of out-
of-pocket charges annexed hereto as Schedule C and incorporated herein. Schedule
C may be modified by written agreement between the parties. Unspecified out-of-
pocket expenses shall be limited to those out-of-pocket expenses reasonably
incurred by Investor Services Group in the performance of its obligations
hereunder.
6.3 Investor Services Group will transmit an invoice to the Fund as soon
as practicable after the end of each calendar month which will be detailed in
accordance with Schedule B, and the Fund agrees to pay all fees and out-of-
pocket expenses within thirty (30) days following the receipt of the respective
invoice.
6.4 Any compensation agreed to hereunder may be adjusted from time to time
by attaching to Schedule B, a revised Fee Schedule executed and dated by the
parties hereto.
Article 7 Documents.
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In connection with the appointment of Investor Services Group, the Fund
shall, on or before the date this Agreement goes into effect, but in any case
within a reasonable period of time for Investor Services Group to prepare to
perform its duties hereunder, deliver or cause to be delivered to Investor
Services Group the documents set forth in the written schedule of Fund Documents
annexed hereto as Schedule D.
Article 8 Transfer Agent System.
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8.1 Investor Services Group 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 Investor Services Group in connection
with the services provided by Investor Services Group to the Fund herein (the
"Investor Services Group System").
8.2 Investor Services Group hereby grants to the Fund a limited license to
the Investor Services Group System for the sole and limited purpose of having
Investor Services Group provide the services contemplated hereunder and nothing
contained in this Agreement shall be construed or interpreted otherwise and such
license shall immediately terminate with the termination of this Agreement.
8.3 In the event that the Fund, including any affiliate or agent of the
Fund or any third party acting on behalf of the Fund is provided with direct
access to the Investor Services Group System for either account inquiry or to
transmit transaction information, including but not limited to maintenance,
exchanges, purchases and redemptions, such direct access capability shall be
limited to direct entry to the Investor Services Group System by means of on-
line mainframe terminal entry or PC emulation of such mainframe terminal entry
and any other non-
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conforming method of transmission of information to the Investor Services Group
System is strictly prohibited without the prior written consent of Investor
Services Group.
Article 9 Representations and Warranties.
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9.1 Investor Services Group represents and warrants to the Fund that:
(a) it is a corporation duly organized, existing and in good standing
under the laws of the Commonwealth of Massachusetts;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
(c) all requisite corporate proceedings have been taken to authorize
it to enter into this Agreement;
(d) it is duly registered with its appropriate regulatory agency as a
transfer agent and such registration will remain in effect for the duration
of this Agreement; and
(e) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and obligations
under this Agreement.
(f) the various procedures and systems which it has implemented with
regard to safeguarding from loss or damage attributable to fire, theft or
any other cause, the Fund's records and other data and Investor Services
Group's records, data equipment facilities and other property used in the
performance of its obligations hereunder are adequate and that it will make
such changes therein from time to time as may be reasonably necessary for
the secure performance of its obligations thereunder.
9.2 The Fund represents and warrants to Investor Services Group that:
(a) it is duly organized, existing and in good standing under the laws
of the jurisdiction in which it is organized;
(b) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into this Agreement;
(c) all corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable laws have been taken to authorize it
to enter into this Agreement;
(d) a registration statement under the Securities Act of 1933, as
amended, and the 1940 Act is currently effective and will remain effective
during the term of this Agreement; and to the extent required by applicable
law, all required state securities law
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filings have been made and will continue to be made, with respect to all
Shares of the Fund being offered for sale; and
(e) all outstanding Shares are validly issued, fully paid and non-
assessable and when Shares are hereafter issued in accordance with the
terms of the Fund's Articles of Incorporation and its Prospectus, such
Shares shall be validly issued, fully paid and non-assessable.
Article 10 Indemnification.
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10.1 Each party hereto (the "Indemnifying Party") will indemnify the
other party (the "Indemnified Party") against and hold it harmless from any and
all losses, claims, damages, liabilities or expenses of any sort or kind
(including reasonable counsel fees and expenses) resulting from any claim,
demand, action or suit or other proceeding (a "Claim") relating to this
Agreement or such Indemnified Party's duties under this Agreement unless such
Claim has resulted from a negligent failure to act or omission to act or bad
faith of the Indemnified Party in the performance of its duties hereunder. In
addition, Investor Services Group shall not be responsible for and the Fund
shall indemnify and hold Investor Services Group harmless from and against, any
Claim which may be asserted against Investor Services Group or for which
Investor Services Group may be held to be liable arising out of or attributable
to any of the following:
(a) any actions of Investor Services Group required to be taken
pursuant to this Agreement unless such Claim resulted from a negligent act
or omission to act or bad faith by Investor Services Group in the
performance of its duties hereunder;
(b) Investor Services Group's reasonable reliance on, or reasonable
use of information, data, records and documents (including but not limited
to magnetic tapes, computer printouts, hard copies and microfilm copies)
received by Investor Services Group from the Fund, or any authorized third
party acting on behalf of the Fund, including but not limited to the prior
transfer agent for the Fund, in the performance of Investor Services
Group's duties and obligations hereunder;
(c) the reliance on, or the implementation of, any Written or Oral
Instructions or any other instructions or requests of the Fund; and
(d) the offer or sales of shares in violation of any requirement
under the securities laws or regulations of any state that such shares be
registered in such state or in violation of any stop order or other
determination or ruling by any state with respect to the offer or sale of
such shares in such state provided that Investor Services Group has
complied with its obligations under this Agreement.
10.2 In any case in which the Indemnifying Party may be asked to
indemnify or hold the Indemnified Party harmless, the Indemnified Party will
notify the Indemnifying Party promptly
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after identifying any situation which it believes presents or appears likely to
present a claim for indemnification against the Indemnifying Party although the
failure to do so shall not prevent recovery by the Indemnified Party and shall
keep the Indemnifying Party advised with respect to all developments concerning
such situation. The Indemnifying Party shall have the option to defend the
Indemnified Party 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
reasonably satisfactory to the Indemnified Party, and thereupon the Indemnifying
Party shall take over complete defense of the Claim and the Indemnified Party
shall sustain no further legal or other expenses in respect of such Claim. The
Indemnified Party 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. The obligations of the
parties hereto under this Article 10 shall survive the termination of this
Agreement.
10.3 Any claim for indemnification under this Agreement must be made prior
to one year after the Indemnifying Party becomes aware of the event for which
indemnification is claimed.
10.4 Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Article 10 shall be
Investor Services Group's sole and exclusive remedy for claims or other actions
or proceedings to which the Fund's indemnification obligations pursuant to this
Article 10 may apply.
Article 11 Standard of Care.
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11.1 Investor Services Group shall at all times act in good faith and
agrees to use its best efforts within commercially reasonable limits to ensure
the accuracy of all services performed under this Agreement, but assumes no
responsibility for loss or damage to the Fund unless said errors are caused by
Investor Services Group's own negligence, bad faith or willful misconduct or
that of its employees.
11.2 Each party shall have the duty to mitigate damages for which the
other party may become responsible.
Article 12 Consequential Damages.
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IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY UNDER THIS
AGREEMENT BE LIABLE TO THE OTHER PARTY FOR INDIRECT LOSS OF PROFITS, REPUTATION
OR BUSINESS OR ANY OTHER CONSEQUENTIAL OR SPECIAL DAMAGES UNDER ANY PROVISION OF
THIS AGREEMENT OR FOR ANY ACT OR FAILURE TO ACT THEREUNDER.
Article 13 Term and Termination.
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13.1 This Agreement shall be effective on the date first written above and
shall continue for a period of three (3) years (the "Initial Term").
13.2 Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) years ("Renewal Terms")
each, unless the Fund or Investor Services Group 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.
13.3 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 will be borne by the Fund. Investor Services Group
will reasonably cooperate with the Fund and any successor transfer agent or
agents in the substitution process.
13.4 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.
Article 14 Confidentiality.
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14.1 The parties agree that the Proprietary Information (defined below)
and the contents of this Agreement (collectively "Confidential Information") are
confidential information of the parties and their respective licensors. The
Fund and Investor Services Group shall exercise at least the same degree of
care, but not less than reasonable care, to safeguard the confidentiality of the
Confidential Information of the other as it would exercise to protect its own
confidential information of a similar nature. The Fund and Investor Services
Group shall not duplicate, sell or disclose to others the Confidential
Information of the other, in whole or in part, without the prior written
permission of the other party. The Fund and Investor Services Group may,
however, disclose Confidential Information to their respective parent
corporation, their respective affiliates, their subsidiaries and affiliated
companies and employees, provided that each shall use reasonable efforts to
ensure that the Confidential Information is not duplicated or disclosed in
breach of this Agreement. The Fund and Investor Services Group may also
disclose the Confidential Information to independent contractors, auditors, and
professional advisors, provided they first agree to be bound by the
confidentiality obligations substantially similar to this Section 14.1.
Notwithstanding the previous sentence, in no event shall either the Fund or
Investor Services Group disclose the Confidential Information to any competitor
of the other without specific, prior written consent.
14.2 Proprietary Information means:
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(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, finance, operations,
customer relationships, customer profiles, sales estimates, business plans,
and internal performance results relating to the past, present or future
business activities of the Fund or Investor Services Group, 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 Investor Services
Group a competitive advantage over its competitors; and
(c) all confidential or proprietary concepts, documentation, reports,
data, specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, show-how and trade secrets,
whether or not patentable or copyrightable.
14.3 Confidential Information includes, without limitation, all documents,
inventions, substances, engineering and laboratory notebooks, drawings,
diagrams, specifications, bills of material, equipment, prototypes and models,
and any other tangible manifestation of the foregoing of either party which now
exist or come into the control or possession of the other. The term
"Confidential Information" does not include any information which (i) at the
time of disclosure or thereafter is generally available to the public (other
than as a result of disclosure directly or indirectly by either party in
violation hereof), (ii) is or becomes available to either party on a
nonconfidential basis from a source other than the Fund or Investor Services
Group, as the case may be, provided that, after due inquiry, such source was not
prohibited from disclosing such information to such party by a legal,
contractual or fiduciary obligation owed to either party or (iii) either party
can establish is already in such party's possession (other than information
furnished by or on behalf of either party).
14.4 If either party becomes legally compelled (including by deposition,
interrogatory, request for documents, subpoena, civil investigative demand or
similar process) to disclose any Confidential Information, such party will
provide the other party with prompt prior written notice of such requirements so
that such other party may seek a protective order or other appropriate remedy.
If such protective order or other remedy is not obtained, each party agrees to
disclose only that portion of the Confidential Information which such party is
advised by written opinion of outside counsel is legally required to be
disclosed and to take all reasonable steps to preserve the confidentiality of
the Confidential Information (including by obtaining an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Confidential Information). In addition, each party agrees to not oppose any
action (and will, if and to the extent requested by the other party, cooperate
with, assist and join with the other party at the other party's expense, in any
reasonable action) by the other party to obtain an appropriate
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protective order or other reliable assurance that confidential treatment will be
accorded the Confidential Information.
Article 15 Force Majeure.
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No party shall be liable for any default or delay in the performance of its
obligations under this Agreement if and to the extent such default or delay is
caused, directly or indirectly, by (i) fire, flood, elements of nature or other
acts of God; (ii) any outbreak or escalation of hostilities, war, riots or civil
disorders in any country, (iii) any act or omission of any governmental
authority; (iv) any labor disputes (whether or not the employees' demands are
reasonable or within the party's power to satisfy); or (v) nonperformance by a
third party or any similar cause beyond the reasonable control of such party,
including without limitation, failures or fluctuations in telecommunications or
other equipment. In any such event, the non-performing party shall be excused
from any further performance and observance of the obligations so affected only
for as long as such circumstances prevail and such party continues to use
commercially reasonable efforts to recommence performance or observance as soon
as practicable.
Article 16 Assignment and Subcontracting.
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This Agreement, its benefits and obligations shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned or otherwise transferred
by either party hereto, without the prior written consent of the other party,
which consent shall not be unreasonably withheld; provided, however, that
Investor Services Group may, in its sole discretion, assign all its right, title
and interest in this Agreement to an affiliate, parent or subsidiary, or upon
prior written consent of the Fund to the purchaser of substantially all of its
business. Investor Services Group may, in its sole discretion, engage
subcontractors to perform any of the obligations contained in this Agreement to
be performed by Investor Services Group provided that Investor Services Group
shall remain liable hereunder for any acts or omissions of any subcontractor as
if performed by Investor Services Group.
Article 17 Notice.
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Any notice or other instrument authorized or required by this Agreement to
be given in writing to the Fund or Investor Services Group, shall be
sufficiently given if addressed to that party and received by it at its office
set forth below or at such other place as it may from time to time designate in
writing.
To the Fund:
To Investor Services Group:
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First Data Investor Services Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
with a copy to Investor Services Group's General Counsel
Article 18 Governing Law/Venue.
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The Agreement shall be governed exclusively by the laws of the State of New
York without reference to the choice of law provisions thereof. Each party
hereto hereby agrees that (i) the Supreme Court of New York sitting in New York
County shall have exclusive jurisdiction over any and all disputes arising
hereunder; (ii) hereby consents to the personal jurisdiction of such court over
the parties hereto, hereby waiving any defense of lack of personal jurisdiction;
and (iii) appoints the person to whom notices hereunder are to be sent as agent
for service of process.
Article 19 Counterparts.
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This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original; but such counterparts shall, together,
constitute only one instrument.
Article 20 Captions.
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The captions of this Agreement are included for convenience of reference
only and in no way define or limit any of the provisions hereof or otherwise
affect their construction or effect.
Article 21 Publicity.
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Neither Investor Services Group nor the Fund shall release or publish news
releases, public announcements, advertising or other publicity relating to this
Agreement or to the transactions contemplated by it without the prior review and
written approval of the other party; provided, however, that either party may
make such disclosures as are required by legal, accounting or regulatory
requirements after making reasonable efforts in the circumstances to consult in
advance with the other party.
Article 22 Relationship of Parties/Non-Solicitation.
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The parties agree that they are independent contractors and not partners or
co-venturers and nothing contained herein shall be interpreted or construed
otherwise.
Article 23 Entire Agreement; Severability.
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23.1 This Agreement, including Schedules, Addenda, and Exhibits hereto,
constitutes the entire Agreement between the parties with respect to the subject
matter hereof and supersedes all prior and contemporaneous proposals,
agreements, contracts, representations, and understandings, whether written or
oral, between the parties with respect to the subject matter hereof. No change,
termination, modification, or waiver of any term or condition of the Agreement
shall be valid unless in writing signed by each party. A party's waiver of a
breach of any term or condition in the Agreement shall not be deemed a waiver of
any subsequent breach of the same or another term or condition.
23.2 The parties intend every provision of this Agreement to be severable.
If a court of competent jurisdiction determines that any term or provision is
illegal or invalid for any reason, the illegality or invalidity shall not affect
the validity of the remainder of this Agreement. In such case, the parties
shall in good faith modify or substitute such provision consistent with the
original intent of the parties. Without limiting the generality of this
paragraph, if a court determines that any remedy stated in this Agreement has
failed of its essential purpose, then all other provisions of this Agreement,
including the limitations on liability and exclusion of damages, shall remain
fully effective.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first above
written.
SALOMON BROTHERS HIGH INCOME FUND II INC
By:_________________________________________
Title:______________________________________
FIRST DATA INVESTOR SERVICES GROUP, INC.
By:_________________________________________
Title:______________________________________
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Schedule A
Duties of Investor Services Group
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1. Shareholder Information. Investor Services Group shall maintain a
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record of the number of Shares held by each Shareholder of record which shall
include name, address, taxpayer identification and which shall indicate whether
such Shares are held in certificates or uncertificated form.
2. Shareholder Services. Investor Services Group shall respond as
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appropriate to all inquiries and communications from Shareholders relating to
Shareholder accounts with respect to its duties hereunder and as may be from
time to time mutually agreed upon between Investor Services Group and the Fund.
Investor Services Group shall provide the Fund with reports concerning
shareholder inquiries and the responses thereto by Investor Services Group, in
such form and at such times as are agreed to by the Fund and Investor Services
Group.
3. Share Certificates.
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(a) At the expense of the Fund, the Fund shall supply Investor
Services Group with an adequate supply of blank share certificates to meet
Investor Services Group requirements therefor. Such Share certificates shall be
properly signed by facsimile. The Fund agrees that, notwithstanding the death,
resignation, or removal of any officer of the Fund whose signature appears on
such certificates, Investor Services Group or its agent may continue to
countersign certificates which bear such signatures until otherwise directed by
Written Instructions.
(b) Investor Services Group shall issue replacement Share certificates
in lieu of certificates which have been lost, stolen or destroyed, upon receipt
by Investor Services Group of properly executed affidavits and lost certificate
bonds, in form satisfactory to Investor Services Group, with the Fund and
Investor Services Group as obligees under the bond.
(c) Investor Services Group shall also maintain a record of each
certificate issued, the number of Shares represented thereby and the Shareholder
of record. With respect to Shares held in open accounts or uncertificated form
(i.e., no certificate being issued with respect thereto) Investor Services Group
shall maintain comparable records of the Shareholders thereof, including their
names, addresses and taxpayer identification. Investor Services Group shall
further maintain a stop transfer record on lost and/or replaced certificates.
4. Mailing Communications to Shareholders; Proxy Materials. Investor
-------------------------------------------------------
Services Group will address and mail to Shareholders of the Fund, all reports to
Shareholders, dividend and distribution notices and proxy material for the
Fund's meetings of Shareholders. In connection with meetings of Shareholders,
Investor Services Group will prepare Shareholder lists, mail and certify as to
the mailing of proxy materials, process and tabulate returned proxy cards,
report on proxies voted prior to meetings, act as inspector of election at
meetings and certify Shares voted at meetings.
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5. Transfer.
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(a) Investor Services Group shall process all requests to transfer
Shares in accordance with the transfer procedures set forth in the Fund's
Prospectus.
(b) Investor Services Group will transfer Shares upon receipt of Oral
or Written Instructions or otherwise pursuant to the Prospectus and Share
certificates, if any, properly endorsed for transfer, accompanied by such
documents as Investor Services Group reasonably may deem necessary.
(c) Investor Services Group reserves the right to refuse to transfer
Shares until it is satisfied that the endorsement on the instructions is valid
and genuine. Investor Services Group also reserves the right to refuse to
transfer Shares until it is satisfied that the requested transfer is legally
authorized, and it shall incur no liability for the refusal, in good faith, to
make transfers which Investor Services Group, in its good judgment, deems
improper or unauthorized, or until it is reasonably satisfied that there is no
basis to any claims adverse to such transfer.
6. Dividends.
---------
(a) Upon the declaration of each dividend and each capital gains
distribution by the Board of Directors of the Fund with respect to Shares of the
Fund, the Fund shall furnish or cause to be furnished to Investor Services Group
Written Instructions setting forth the date of the declaration of such dividend
or distribution, the ex-dividend date, the date of payment thereof, the record
date as of which Shareholders entitled to payment shall be determined, the
amount payable per Share to the Shareholders of record as of that date, the
total amount payable on the payment date and whether such dividend or
distribution is to be paid in Shares at net asset value.
(b) On or before the payment date specified in such resolution of the
Board of Directors, the Fund will provide Investor Services Group with
sufficient cash to make payment to the Shareholders of record as of such payment
date.
(c) If Investor Services Group does not receive sufficient cash from
the Fund to make total dividend and/or distribution payments to all Shareholders
of the Fund as of the record date, Investor Services Group will, upon notifying
the Fund, withhold payment to all Shareholders of record as of the record date
until sufficient cash is provided to Investor Services Group.
7. In addition to and neither in lieu nor in contravention of the
services set forth above, Investor Services Group shall: (i) perform all the
customary services of a transfer agent, registrar, dividend disbursing agent and
agent of the dividend reinvestment and cash purchase plan as described herein
consistent with those requirements in effect as at the date of this Agreement.
The detailed definition, frequency, limitations and associated costs (if any)
set out in
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the attached fee schedule, include but are not limited to: maintaining all
Shareholder accounts, preparing Shareholder meeting lists, mailing proxies,
tabulating proxies, mailing Shareholder reports to current Shareholders,
withholding taxes on U.S. resident and non-resident alien accounts where
applicable, preparing and filing U.S. Treasury Department Forms 1099 and other
appropriate forms required with respect to dividends and distributions by
federal authorities for all Shareholders.
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Schedule B
FEE SCHEDULE
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1. Standard Fees.
Annual Per Account Fee: $ 10.50
Monthly Minimum Fee: $2,500.00
2. IPO Fees.
IPO Project Administration Fee: $7,500.00
IPO Project Administration Fee covers:
. Issuance of up to 1000 certificates - Issuance of certificates in excess
of 1000 to be billed at $2.00 per certificate
. Administration coordination with IPO client, underwriter and legal
representatives
. Attendance at closing (out of pocket expenses associated with such
attendance will be billed as incurred)
. Electronic delivery of shares to underwriters at closing
. Overallotment coordination
Overallotment Fee: $5,000.00
Schedule C
OUT-OF-POCKET EXPENSES
----------------------
The Fund shall reimburse Investor Services Group monthly for applicable
out-of-pocket expenses, including, but not limited to the following items:
. Microfiche/microfilm production
. Magnetic media tapes and freight
. Printing costs, including certificates, envelopes, checks and stationery
. Postage (bulk, pre-sort, ZIP+4, barcoding, first class) direct pass
through to the Fund
. Due diligence mailings
. Telephone and telecommunication costs, including all lease, maintenance
and line costs
. Ad hoc reports
. Proxy solicitations, mailings and tabulations
. Daily & Distribution advice mailings
. Shipping, Certified and Overnight mail and insurance
. Year-end form production and mailings
. Terminals, communication lines, printers and other equipment and any
expenses incurred in connection with such terminals and lines
. Duplicating services
. Courier services
. Incoming and outgoing wire charges
. Federal Reserve charges for check clearance
. Overtime, as approved by the Fund
. Temporary staff, as approved by the Fund
. Travel and entertainment, as approved by the Fund
. Record retention, retrieval and destruction costs, including, but not
limited to exit fees charged by third party record keeping vendors
. Third party audit reviews
. Ad hoc SQL time
. Insurance
. Such other miscellaneous expenses reasonably incurred by Investor
Services Group in performing its duties and responsibilities under this
Agreement.
The Fund agrees that postage and mailing expenses will be paid on the day
of or prior to mailing as agreed with Investor Services Group. In addition, the
Fund will promptly reimburse Investor Services Group for any other unscheduled
expenses incurred by Investor Services Group whenever the Fund and Investor
Services Group mutually agree that such expenses are not otherwise properly
borne by Investor Services Group as part of its duties and obligations under the
Agreement.
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Schedule D
FUND DOCUMENTS
--------------
. Certified copy of the Articles of Incorporation of the Fund, as amended
. Certified copy of the By-laws of the Fund, as amended,
. Copy of the resolution of the Board of Directors authorizing the execution
and delivery of this Agreement
. Specimens of the certificates for Shares of the Fund, if applicable, in the
form approved by the Board of Directors of the Fund, with a certificate of
the Secretary of the Fund as to such approval
. All account application forms and other documents relating to Shareholder
accounts or to any plan, program or service offered by the Fund
. Certified list of Shareholders of the Fund with the name, address and
taxpayer identification number of each Shareholder, and the number of Shares
of the Fund held by each, certificate numbers and denominations (if any
certificates have been issued), lists of any accounts against which stop
transfer orders have been placed, together with the reasons therefore, and
the number of Shares redeemed by the Fund
. All notices issued by the Fund with respect to the Shares in accordance with
and pursuant to the Articles of Incorporation or By-laws of the Fund or as
required by law.
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