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EXHIBIT k(1)
TRANSFER AGENCY, DIVIDEND DISBURSING AGENCY
AND SHAREHOLDER SERVICING AGENCY AGREEMENT
THIS AGREEMENT made as of the day of 1999 by and
between XXXXXXX XXXXX SENIOR FLOATING RATE FUND II, INC., a Maryland corporation
(the "Fund"), and FINANCIAL DATA SERVICES, INC., a New Jersey Corporation
("FDS").
WITNESSETH:
WHEREAS, the Fund wishes to appoint FDS to be the Transfer Agent,
Dividend Disbursing Agent and Shareholder Servicing Agent for the Fund on, and
subject to, the terms and provisions of this Agreement, and FDS is desirous of
accepting such appointment on, and subject to, such terms and provisions:
NOW, THEREFORE, in consideration of mutual covenants contained in this
Agreement, the Fund and FDS agree as follows:
1. APPOINTMENT OF FDS AS TRANSFER AGENT, DIVIDEND DISBURSING AGENT AND
SHAREHOLDER SERVICING AGENT.
(a) The Fund hereby appoints FDS to act as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund on, and subject
to, the terms and provisions of this Agreement.
(b) FDS hereby accepts the appointment as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund, and agrees to act
as such on, and subject to, the terms and provisions of the Agreement.
2. DEFINITIONS.
(a) In this Agreement:
(1) The term "Act" means the Investment Company Act of 1940, as
amended from time to time, and any rule or regulation thereunder;
(2) The term "Account" means any account of a Shareholder, or, if
the shares are held in an account in the name of MLPF&S for benefit of
an identified customer, such account, including a Plan Account, any
account under a plan (by whatever name referred to in the Prospectus)
pursuant to the Self-Employed Individuals Retirement Act of 1962
("Xxxxx Act Plan") and any plan (by whatever name referred to in the
Prospectus) in conjunction with Section 401 of the Internal Revenue
Code ("Corporation Master Plan");
(3) The term "application" means an application made by a
Shareholder or prospective Shareholder respecting the opening of an
Account;
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(4) The term "MLFD" means Xxxxxxx Xxxxx Funds Distributor, Inc., a
Delaware corporation;
(5) The term "MLPF&S" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, a Delaware corporation;
(6) The term "Officer's Instruction" means an instruction in
writing given on behalf of the Fund to FDS, and signed on behalf of the
Fund by the President, any Vice President, the Secretary or the
Treasurer of the Fund;
(7) The term "Prospectus" means the Prospectus of the Fund, as from
time to time in effect;
(8) The term "Shares" means shares of Common Stock of the Fund; and
(9) The term "Shareholder" means the holder of record of Shares.
3. DUTIES OF FDS AS TRANSFER AGENT, DIVIDEND DISBURSING AGENT AND
SHAREHOLDER SERVICING AGENT.
(a) Subject to the succeeding provisions of the Agreement, FDS hereby
agrees to perform the following functions as Transfer Agent, Dividend Disbursing
Agent and Shareholder Servicing Agent for the Fund;
(1) Issuing, transferring and redeeming Shares;
(2) Opening, maintaining, servicing and closing Accounts;
(3) Acting as agent of the Fund and/or MLPF&S, maintaining such
records as may permit the imposition of such early withdrawal charges
as may be described in the Prospectus, including such reports as may be
reasonably requested by the Fund with respect to such Shares as may be
subject to an early withdrawal charge;
(4) Upon the repurchase pursuant to a tender of Shares subject to
such an early withdrawal charge, calculating and deducting from the
tender offer proceeds thereof the amount of such charge in the manner
set forth in the Prospectus;
(5) Processing tender offers;
(6) Examining and approving legal transfers;
(7) Replacing lost, stolen or destroyed certificates representing
Shares, in accordance with, and subject to, procedures and conditions
adopted by the Fund;
(8) Furnishing such confirmations of transactions relating to their
Shares as required by applicable law;
(9) Acting as agent for the Fund and/or MLPF&S, furnishing such
appropriate periodic statements relating to Accounts, together with
additional enclosures, including
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appropriate income tax information and income tax forms duly completed,
as required by applicable law;
(10) Acting as agent for the Fund and/or MLPF&S, mailing annual,
semi-annual and quarterly reports prepared by or on behalf of the Fund,
and mailing new Prospectuses on their issue to Shareholders as required
by applicable law;
(11) Furnishing such periodic statements of transactions effected
by FDS, reconciliations, balances and summaries as the Fund may
reasonably request;
(12) Maintaining such books and records relating to transactions
effected by FDS as are required by the Act, or by any other applicable
provision of law, rule or regulation, to be maintained by the Fund or
its transfer agent with respect to such transactions, and preserving,
or causing to be preserved any such books and records for such periods
as may be required by any such law, rule or regulation and as may be
agreed on from time to time between FDS and the Fund. In addition, FDS
agrees to maintain and preserve master files and historical computer
tapes on a daily basis in multiple separate locations a sufficient
distance apart to insure preservation of at least one copy of such
information;
(13) Withholding taxes on non-resident alien Accounts, preparing
and filing U.S. Treasury Department Form 1099 and other appropriate
forms as required by applicable law with respect to dividends and
distributions; and
(14) Reinvesting dividends for full and fractional shares and
disbursing cash dividends, as applicable.
(b) FDS agrees to act as proxy agent in connection with the holding of
annual, if any, and special meetings of Shareholders, mailing such notices,
proxies and proxy statements in connection with the holding of such meetings as
may be required by applicable law, receiving and tabulating votes cast by proxy
and communicating to the Fund the results of such tabulation accompanied by
appropriate certificates, and preparing and furnishing to the Fund certified
lists of Shareholders as of such date, in such form and containing such
information as may be required by the Fund.
(c) FDS agrees to deal with, and answer in a timely manner, all
correspondence and inquires relating to the functions of FDS under this
Agreement with respect to Accounts.
(d) FDS agrees to furnish to the Fund such information and at such
intervals as is necessary for the Fund to comply with the registration and/or
the reporting requirements (including applicable escheat laws) of the Securities
and Exchange Commission, Blue Sky authorities or other governmental authorities.
(e) FDS agrees to provide to the Fund such information as may
reasonably be required to enable the Fund to reconcile the number of outstanding
Shares between FDS's records and the account books of the Fund.
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(f) Notwithstanding anything in the foregoing provisions of this
paragraph, FDS agrees to perform its functions thereunder subject to such
modification (whether in respect of particular cases or in any particular class
of cases) as may from time to time be contained in an Officer's Instruction.
4. COMPENSATION.
The charges for services described in this Agreement, including
"out-of-pocket" expenses, will be set forth in the Schedule of Fees attached
hereto.
5. RIGHT OF INSPECTION.
FDS agrees that it will in a timely manner make available to, and
permit, any officer, accountant, attorney or authorized agent of the Fund to
examine and make transcripts and copies (including photocopies and computer or
other electronical information storage media and print-outs) of any and all of
its books and records which relate to any transaction or function performed by
MLFDS under or pursuant to this Agreement.
6. CONFIDENTIAL RELATIONSHIP.
FDS agrees that it will, on behalf of itself and its officers and
employees, treat all transactions contemplated by this Agreement, and all
information germane thereto, as confidential and not to be disclosed to any
person (other than the Shareholder concerned, or the Fund, or as may be
disclosed in the examination of any books or records by any person lawfully
entitled to examine the same) except as may be authorized by the Fund by way of
an Officer's Instruction.
7. INDEMNIFICATION.
The Fund shall indemnify and hold FDS harmless from any loss, costs,
damage and reasonable expenses, including reasonable attorney's fees (provided
that such attorney is appointed with the Fund's consent, which consent shall not
be unreasonably withheld), incurred by it resulting from any claim, demand,
action, or suit in connection with the performance of its duties hereunder,
provided that this indemnification shall not apply to actions or omissions of
FDS in cases of willful misconduct, failure to act in good faith or negligence
by FDS, its officers, employees or agents, and further provided, that prior to
confessing any claim against it which may be subject to this indemnification,
FDS shall give the Fund reasonable opportunity to defend against said claim in
its own name or in the name of FDS. An action taken by FDS on any Officer's
Instruction reasonably believed by it to have been properly executed shall not
constitute willful misconduct, failure to act in good faith or negligence under
this Agreement.
8. REGARDING FDS.
(a) FDS hereby agrees to hire, purchase, develop and maintain such
dedicated personnel, facilities, equipment, software, resources and capabilities
as may be reasonably determined by the Fund to be necessary for the satisfactory
performance of the duties and responsibilities of FDS. FDS warrants and
represents that its officers and supervisory personnel charged with carrying out
its functions as Transfer Agent, Dividend Disbursing Agent and
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Shareholder Servicing Agent for the Fund possess the special skill and technical
knowledge appropriate for that purpose. FDS shall at all times exercise due care
and diligence in the performance of its functions as Transfer Agent, Dividend
Disbursing Agent and Shareholder Servicing Agent for the Fund. FDS agrees that,
in determining whether it has exercised due care and diligence, its conduct
shall be measured by the standard applicable to persons possessing such special
skill and technical knowledge.
(b) FDS warrants and represents that it is duly authorized and
permitted to act as Transfer Agent, Dividend Disbursing Agent, and Shareholder
Servicing Agent under all applicable laws and that it will immediately notify
the Fund of any revocation of such authority or permission or of the
commencement of any proceeding or other action which may lead to such
revocation.
9. TERMINATION.
(a) This Agreement shall become effective as of the date first above
written and shall thereafter continue from year to year. This Agreement may be
terminated by the Fund or FDS (without penalty to the Fund or FDS) provided that
the terminating party gives the other party written notice of such termination
at least sixty (60) days in advance, except that the Fund may terminate this
Agreement immediately on written notice to FDS if the authority or permission of
FDS to act as Transfer Agent, Dividend Disbursing Agent and Shareholder
Servicing Agent has been revoked or if any proceeding or other action which the
Fund reasonably believes will lead to such revocation has been commenced.
(b) Upon termination of this Agreement, FDS shall deliver all unissued
and cancelled stock certificates representing Shares remaining in its
possession, and all Shareholder records, books, stock ledgers, instruments and
other documents (including computerized or other electronically stored
information) made or accumulated in the performance of its duties as Transfer
Agent, Disbursing Agent and Shareholder Servicing Agent for the Fund along with
a certified locator document clearly indicating the complete contents therein,
to such successor as may be specified in a notice of termination or Officer's
Instruction; and the Fund assumes all responsibility for failure thereafter to
produce any paper, record or documents so delivered and identified in the
locator document, if and when required to be produced.
10. AMENDMENT.
Except to the extent that the performance by FDS or its functions under
this Agreement may from time to time be modified by an Officer's Instruction,
this Agreement may be amended or modified only by further written Agreement
between the parties.
11. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of New
Jersey.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective duly authorized officers as of the date first above
written.
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND II, INC.
By
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Title:
FINANCIAL DATA SERVICES, INC.
By
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Title:
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