TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of May 18, 2009 by and between PNC GLOBAL
INVESTMENT SERVICING (U.S.) INC., a Massachusetts corporation ("PNC"), and FIRST
TRUST/FOUR CORNERS SENIOR FLOATING RATE INCOME FUND II, a Massachusetts business
trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as a closed-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PNC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent, and PNC
wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree to the following statements made in the preceding paragraphs and as
follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund to give Oral Instructions and
Written Instructions on behalf of the Fund. An Authorized Person's
scope of authority may be limited by setting forth such limitation
in a written document signed by both parties hereto.
(d) "Oral Instructions" mean oral instructions received by PNC from an
Authorized Person or from a person reasonably believed by PNC to be
an Authorized Person. PNC may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" mean the 1933 Act, the 1934 Act and the 1940 Act.
(g) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
(h) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PNC or (ii) trade instructions
transmitted (and received by PNC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered electronically (with respect to sub-item (ii) above ) or
by hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Fund hereby appoints PNC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. PNC
accepts such appointment and agrees to furnish such services. PNC shall be
under no duty to take any action hereunder on behalf of the Fund except as
specifically set forth herein or as may be specifically agreed to by PNC
and the Fund in a written amendment hereto. PNC shall not bear, or
otherwise be responsible for, any fees, costs or expenses charged by any
third party service providers engaged by the Fund or by any other third
party service provider to the Fund.
3. COMPLIANCE WITH RULES AND REGULATIONS. PNC undertakes to comply with all
applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect
to the duties to be performed by PNC hereunder. Except as specifically set
forth herein, PNC assumes no responsibility for such compliance by the
Fund or any other entity.
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4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PNC shall act only upon
Oral Instructions or Written Instructions.
(b) PNC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PNC to be an Authorized Person) pursuant to
this Agreement. PNC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with
the provisions of organizational documents or this Agreement or of
any vote, resolution or proceeding of the Fund's board of directors
or of the Fund's shareholders, unless and until PNC receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to PNC Written Instructions confirming
Oral Instructions so that PNC receives the Written Instructions by
the close of business on the same day that such Oral Instructions
are received. The fact that such confirming Written Instructions are
not received by PNC or differ from the Oral Instructions shall in no
way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions or PNC's ability to
rely upon such Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PNC is in doubt as to any action it should or
should not take, PNC may request directions or advice, including
Oral Instructions or Written Instructions, from the Fund.
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(b) Advice of Counsel. If PNC shall be in doubt as to any question of
law pertaining to any action it should or should not take, PNC may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment adviser or PNC, at the option of
PNC). The Fund shall pay the reasonable cost of any counsel retained
by PNC with prior notice to the Fund.
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PNC receives
from the Fund, and the advice it receives from counsel, PNC may rely
upon and follow the advice of counsel.
(d) Protection of PNC. PNC shall be indemnified by the Fund and without
liability for any action PNC takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions
PNC receives from or on behalf of the Fund or from counsel and which
PNC believes, in good faith, to be consistent with those directions
or advice or Oral Instructions or Written Instructions. Nothing in
this section shall be construed so as to impose an obligation upon
PNC (i) to seek such directions or advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written Instructions.
6. RECORDS; VISITS.
(a) The books and records pertaining to the Fund, which are in the
possession or under the control of PNC, shall be the property of the
Fund. Such books and records shall be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules
and regulations provided the Fund provides PNC with written notice
of such laws, rules and regulations, other than the 1940 Act and the
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Internal Revenue Code of 1986, as amended, that are applicable. The
Fund and Authorized Persons shall have access to such books and
records at all times during PNC's normal business hours upon
reasonable advance notice. Upon the reasonable request of the Fund,
copies of any such books and records shall be provided by PNC to the
Fund or to an Authorized Person, at the Fund's expense.
(b) PNC shall keep the following records:
(i) all books and records as are customarily maintained by the
transfer agent for a registered investment company.
7. CONFIDENTIALITY.
(a) Each party shall keep confidential any information relating to the
other party's business ("Confidential Information"). Confidential
Information shall include (i) 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 PNC and
their respective subsidiaries and affiliated companies; (ii) 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 PNC a
competitive advantage over its competitors; (iii) 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 (iv) anything designated as
confidential.
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(b) Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality
obligations if: (i) it is necessary or desirable for PNC to release
such information in connection with the provision of services under
this Agreement; (ii) it is already known to the receiving party at
the time it is obtained; (iii) it is or becomes publicly known or
available through no wrongful act of the receiving party; (iv) 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;
(v) it is released by the protected party to a third party without
restriction; (vi) 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); (vii) it is Fund information provided by
PNC in connection with an independent third party compliance or
other review; (viii) it is relevant to the defense of any claim or
cause of action asserted against the receiving party; or (ix) it has
been or is independently developed or obtained by the receiving
party.
(c) PNC 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. PNC agrees that, subject to the foregoing provisions of and
the exceptions set forth in this Section 7 (other than the exception
set forth above in this Section 7 as sub-item (a), which exception
set forth in sub-item (a) shall not be applicable to the Fund's
Portfolio Information), PNC will keep confidential the Fund's
Portfolio Information and will not disclose the Fund's Portfolio
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Information other than pursuant to a Written Instruction (which
Written Instruction may be a standing Written Instruction); provided
that without the need for such a Written Instruction and
notwithstanding any other provision of this Section 7 to the
contrary, the Fund's Portfolio Information may be disclosed to third
party pricing services which are engaged by PNC 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.
8. COOPERATION WITH ACCOUNTANTS. PNC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in
the performance of its obligations under this Agreement to ensure that the
necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
9. PNC SYSTEM. PNC 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 PNC in connection with
the services provided by PNC to the Fund.
10. DISASTER RECOVERY. PNC 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,
PNC shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. PNC shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure,
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provided such loss or interruption is not caused by PNC's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION.
(a) As compensation for services rendered by PNC during the term of this
Agreement, the Fund will pay to PNC a fee or fees as may be agreed
to from time to time in writing by the Fund and PNC. In addition,
the Fund agrees to pay, and will be billed separately in arrears
for, reasonable expenses incurred by PNC in the performance of its
duties hereunder.
(b) PNC shall establish certain cash management accounts ("Service
Accounts") required to provide services under this Agreement. The
Fund acknowledges (i) PNC may receive investment earnings from
sweeping the funds in such Service Accounts into investment accounts
including, but not limited, investment accounts maintained at an
affiliate or client of PNC; (ii) balance credits earned with respect
to the amounts in such Service Accounts ("Balance Credits") will be
used to offset the banking service fees imposed by the cash
management service provider (the "Banking Service Fees"); (iii) PNC
shall retain any excess Balance Credits for its own use; and (iv)
Balance Credits will be calculated and applied toward the Fund's
Banking Service Fees regardless of the Service Account balance sweep
described in Sub-Section (i); and (v) PNC may use the services of
third-party vendors in connection with the issuance of redemption
and distribution checks and shall retain any benefits obtained from
any arrangements with such vendors, including any commission or
return on float paid to it by any such vendors.
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(c) The undersigned hereby represents and warrants to PNC that (i) the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to PNC or to the
adviser or sponsor to the Fund in connection with this Agreement,
including but not limited to any fee waivers, conversion cost
reimbursements, up front payments, signing payments or periodic
payments made or to be made by PNC to such adviser or sponsor or any
affiliate of the Fund relating to the Agreement have been fully
disclosed to the board of directors of the Fund and that, if
required by applicable law, such board of directors has approved or
will approve the terms of this Agreement, any such fees and
expenses, and any such benefits.
12. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend and hold harmless PNC and its
affiliates providing services under this Agreement, including their
respective officers, directors, agents and employees, from all
taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, reasonable attorneys' fees and
disbursements and liabilities arising under the Securities Laws and
any state and foreign securities and blue sky laws) ("Claims")
arising directly or indirectly from any action or omission to act
which PNC takes in connection with the provision of services to the
Fund. Neither PNC, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such liability)
caused by PNC's or its affiliates' own willful misfeasance, bad
faith, negligence or reckless disregard in the performance of PNC's
or its affiliates' activities under this Agreement, provided that in
the absence of a finding to the contrary the acceptance, processing
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and/or negotiation of a fraudulent payment for the purchase of
Shares shall be presumed not to have been the result of PNC's or its
affiliates own willful misfeasance, bad faith, negligence or
reckless disregard of such duties and obligations. The provisions of
this Section 12 shall survive termination of this Agreement.
(b) Indemnification of the Fund. PNC agrees to defend, indemnify and
hold the Fund and its officers, directors and employees harmless
from any and all Claims arising directly or indirectly from the
negligence, bad faith, reckless disregard or willful misfeasance of
PNC and its affiliates in the performance of its duties hereunder.
Notwithstanding the foregoing, the Fund shall not be indemnified
against any Claim caused by the Fund's or the Fund's other service
providers' willful misfeasance, bad faith or negligence.
(c) Indemnification Procedure.
(i) Notice of the Action. A party that seeks indemnification under
this Agreement must promptly give the other party notice of
any legal action; provided, however, that a delay in notice
does not relieve an indemnifying party of any liability to an
indemnified party, except to the extent the indemnifying party
shows that the delay prejudiced the defense of the action.
(ii) Participating in or Assuming the Defense. The indemnifying
party may participate in the defense at any time or it may
assume the defense by giving notice to the other party. After
assuming the defense, the indemnifying party:
(1) must select an attorney that is satisfactory to the
other party;
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(2) is not liable to the other party for any later
attorney's fees or for any other later expenses that the
other party incurs, except for reasonable investigation
costs;
(3) must not compromise or settle the action without the
other party's consent (but the other party must not
unreasonably withhold its consent); and
(4) is not liable for any compromise or settlement made
without its consent.
(iii) Failing to Assume the Defense. If the indemnifying party fails
to participate in or assume the defense within 15 days after
receiving notice of the action, the indemnifying party is
bound by any determination made in the action or by any
compromise or settlement made by the other party.
13. RESPONSIBILITY OF PNC.
(a) PNC shall be under no duty to take any action hereunder on behalf of
the Fund except as specifically set forth herein or as may be
specifically agreed to by PNC and the Fund in a written amendment
hereto. PNC shall be obligated to exercise commercially reasonable
care and diligence in the performance of its duties hereunder and to
act in good faith in performing services provided for under this
Agreement. As set forth herein, and as may be agreed to in writing
from time to time by PNC and the Fund with regard to such matters of
liability, PNC shall be liable only for any damages arising out of
PNC's failure to perform its duties under this Agreement to the
extent such damages arise out of PNC's willful misfeasance, bad
faith, negligence or reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PNC
shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
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reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion; interruption,
loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; or
non-performance by a third party; failure of the mails; or functions
or malfunctions of the internet, firewalls, encryption systems or
security devices caused by any of the above; and (ii) PNC shall not
be under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information which PNC
reasonably believes to be genuine. PNC shall not be liable for any
damages arising out of any action or omission to act by any prior
service provider of the Fund or for any failure to discover any such
error or omission.
(c) Notwithstanding anything in this Agreement to the contrary, neither
party to this Agreement nor their respective affiliates shall be
liable for any consequential, incidental, exemplary, punitive,
special or indirect losses or damages, whether or not the likelihood
of such losses or damages was known by such party.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) The provisions of this Section 13 shall survive termination of this
Agreement.
14. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Maintain shareholder registrations;
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(ii) Provide toll-free lines for shareholders relating to
shareholder accounts;
(iii) Provide periodic shareholder lists and statistics;
(iv) Mailing of year-end tax information; and
(v) Periodic mailing of shareholder dividend reinvestment plan
account information and Fund financial reports.
(b) Dividends and Distributions. PNC must receive a resolution of the
Fund's board of directors authorizing the declaration and payment of
dividends and distributions. Upon receipt of the resolution, PNC
shall issue the dividends and distributions in cash, or, if the
resolution so provides, pay such dividends and distributions in
Shares. Such issuance or payment shall be made after deduction and
payment of the required amount of funds to be withheld in accordance
with any applicable tax laws or other laws, rules or regulations.
PNC shall timely send to the Fund's shareholders tax forms and other
information, or permissible substitute notice, relating to dividends
and distributions, paid by the Fund as are required to be filed and
mailed by applicable law, rule or regulation. PNC shall maintain and
file with the United States Internal Revenue Service and other
appropriate taxing authorities reports relating to all dividends
above a stipulated amount (currently $10.00 accumulated yearly
dividends) paid by the Fund to its shareholders as required by tax
or other law, rule or regulation. In accordance with the Prospectus
and such procedures and controls as are mutually agreed upon from
time to time by and among the Fund, PNC and the Fund's Custodian,
PNC shall process applications from Shareholders relating to the
Fund's Dividend Reinvestment Plan ("Dividend Reinvestment Plan") and
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will effect purchases of Shares in connection with the Dividend
Reinvestment Plan. As the dividend disbursing agent, PNC shall, on
or before the payment date of any such dividend or distribution,
notify the fund accounting agent of the estimated amount required to
pay any portion of said dividend or distribution which is payable in
cash, and on or before the payment date of such distribution, the
Fund shall instruct the custodian to make available to the dividend
disbursing agent sufficient funds for the cash amount to be paid
out. If a shareholder is entitled to receive additional Shares, by
virtue of any distribution or dividend, appropriate credits will be
made to his or her account and/or certificates delivered where
requested, all in accordance with the Dividend Reinvestment Plan.
(c) Communications to Shareholders. Upon timely written instructions,
PNC shall mail all communications by the Fund to its shareholders,
including:
(i) Reports to shareholders;
(ii) Monthly or quarterly dividend reinvestment plan statements;
(iii) Dividend and distribution notices;
(iv) Proxy material; and
(v) Tax form information.
PNC will receive and tabulate the proxy cards for the meetings of
the Fund's shareholders.
(d) Records. PNC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or Social
Security number;
(ii) Number and class of shares held and number and class of shares
for which certificates, if any, have been issued, including
certificate numbers and denominations;
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(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid and
the date and price for all transactions on a shareholder's
account;
(iv) Any stop or restraining order placed against a shareholder's
account;
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for the transfer agent to
perform any calculations contemplated or required by this
Agreement.
(e) Shareholder Inspection of Stock Records. Upon requests from Fund
shareholders to inspect stock records, PNC will notify the Fund and
require instructions granting or denying each such request. Unless
PNC has acted contrary to the Fund's instructions, the Fund agrees
to release PNC from any liability for refusal of permission for a
particular shareholder to inspect the Fund's shareholder records.
15. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above
and unless terminated pursuant to its terms shall continue until
June 12, 2010 (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal
Terms") each, unless the Fund or PNC provides written notice to the
other of its intent not to renew. Such notice must be received not
less than ninety (90) days prior to the expiration of the Initial
Term or the then current Renewal Term.
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(c) In the event a termination notice is given by the Fund, all expenses
associated with movement of records and materials and conversion
thereof to a successor transfer agent(s) (and any other service
provider(s)), and all trailing expenses incurred by PNC, will be
borne by the Fund and paid to PNC if known at such time prior to any
such conversion.
(d) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other
party (the "Non-Defaulting Party") may give written notice thereof
to the Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such termination to the
Defaulting Party. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of
any other rights it might have under this Agreement or otherwise
against the Defaulting Party.
16. NOTICES. Notices shall be addressed (a) if to PNC, at 301 Bellevue
Parkway, Wilmington, Delaware 19809, Attention: President (or such other
address as the PNC may inform the fund in writing); (b) if to the Fund, at
120 East Liberty Drive, Wheaton, IL 60187, Attention: W. Scott Jardine fax
(630) 517-7437 (or such other address as the Fund may inform PNC in
writing); or (c) if to neither of the foregoing, at such other address as
shall have been given by like notice to the sender of any such notice or
other communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed to
have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given three days after it has been mailed.
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If notice is sent by messenger, it shall be deemed to have been given on
the day it is delivered.
17. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
18. DELEGATION; ASSIGNMENT. PNC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PNC or of
The PNC Financial Services Group, Inc., provided that PNC gives the Fund
30 days prior written notice of such assignment or delegation. To the
extent required by the rules and regulations of the NSCC and in order for
PNC to perform the NSCC related services, the Fund agrees that PNC may
delegate its duties to any affiliate of PNC that is a member of the NSCC.
In addition, PNC may, in its sole discretion, engage subcontractors to
perform any of the obligations contained in this Agreement to be performed
by PNC, provided, however, PNC shall remain responsible for the acts or
omissions of any such sub-contractors.
19. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
20. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
21. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
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provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties.
(b) Non-Solicitation. During the term of this Agreement and for one year
thereafter, the Fund shall not (with the exceptions noted in the
immediately succeeding sentence) knowingly solicit or recruit for
employment or hire any of PNC's employees, and the Fund shall cause
the Fund's sponsor and the Fund's affiliates to not (with the
exceptions noted in the immediately succeeding sentence) knowingly
solicit or recruit for employment or hire any of PNC's employees. To
"knowingly" solicit, recruit or hire within the meaning of this
provision does not include, and therefore does not prohibit,
solicitation, recruitment or hiring of a PNC employee by the Fund,
the Fund's sponsor or an affiliate of the Fund if the PNC employee
was identified by such entity solely as a result of the PNC
employee's response to a general advertisement by such entity in a
publication of trade or industry interest or other similar general
solicitation by such entity.
(c) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PNC hereunder without the prior written approval
of PNC, which approval shall not be unreasonably withheld or
delayed. The scope of services to be provided by PNC under this
Agreement shall not be increased as a result of new or revised
regulatory or other requirements that may become applicable with
respect to the fund, unless the parties hereto expressly agree in
writing to any such increase.
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(d) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect.
(e) Information. The Fund will provide such information and
documentation as PNC may reasonably request in connection with
services provided by PNC to the Fund.
(f) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(g) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(h) Parties in Interest. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Except as may be explicitly stated
in this Agreement, (i) this Agreement is not for the benefit of any
other person or entity and (ii) there shall be no third party
beneficiaries hereof.
(i) No Representations or Warranties. Except as expressly provided in
this Agreement, PNC hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom
or usage of trade), of any services or any goods provided incidental
to services provided under this Agreement. PNC disclaims any
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warranty of title or non-infringement except as otherwise set forth
in this Agreement.
(j) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(k) The Fund and PNC agree that the obligations of the Fund under the
Agreement shall not be binding upon any of the directors,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund individually, but are binding only
upon the assets and property of the Fund (or applicable series
thereof), as provided in the Declaration of Trust. The execution and
delivery of this Agreement have been authorized by the directors of
the Fund, and signed by an authorized officer of the Fund, acting as
such, and neither such authorization by such directors nor such
execution and delivery by such officer shall be deemed to have been
made by any of them or any shareholder of the Fund individually or
to impose any liability on any of them or any shareholder of the
Fund personally, but shall bind only the assets and property of the
Fund (or applicable series thereof), as provided in the Articles of
Incorporation or Declaration of Trust.
(l) Customer Identification Program Notice. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify,
and record certain information that identifies each person who
initially opens an account with that financial institution on or
after October 1, 2003. Certain of PNC's affiliates are financial
institutions, and PNC may, as a matter of policy, request (or may
have already requested) the Fund's name, address and taxpayer
identification number or other government-issued identification
number, and, if such party is a natural person, that party's date of
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birth. PNC may also ask (and may have already asked) for additional
identifying information, and PNC may take steps (and may have
already taken steps) to verify the authenticity and accuracy of
these data elements.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PNC GLOBAL INVESTMENT SERVICING
(U.S.) INC.
By: /s/ Michael DeNofrio
------------------------------------
Name: Michael DeNofrio
Title: Executive Vice President
Senior Managing Director
FIRST TRUST/FOUR CORNERS SENIOR FLOATING
RATE INCOME FUND II
By: /s/ W. Scott Jardine
-----------------------------------
Name: W. Scott Jardine
Title: Secretary
22