Exhibit 2(k)(2)
TRANSFER AGENCY AND
STOCK TRANSFER SERVICES AGREEMENT
This Transfer Agency and Stock Transfer Services Agreement (the
"Agreement"), effective as of October __, 2002, is between First American
Minnesota Municipal Income the Fund II, Inc., which is advised by U.S. Bancorp
Asset Management, Inc. and has a principal office and place of business at 000
Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx (the "Fund"), and EquiServe, Inc., a
Delaware corporation, and its fully owned subsidiary EquiServe Trust Company,
N.A., a federally chartered trust company doing business at 000 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (collectively, the "Transfer Agent").
WHEREAS, the Fund desires Transfer Agent to provide, and Transfer Agent
is willing to provide, transfer agent and other services as set forth herein to
the Fund, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereby agree as follows:
SECTION 1. APPOINTMENT OF TRANSFER AGENT
1.01 The Fund hereby appoints the Transfer Agent to act as the sole
transfer agent and registrar for the common stock of the Fund (the "Shares") in
accordance with the terms and conditions hereof, and the Transfer Agent hereby
accepts such appointment.
1.02 In connection with the appointment of the Transfer Agent as
transfer agent and registrar for the Fund, the Fund will deliver the following
documents to the Transfer Agent:
(a) Copies of any Registration Statements and amendments thereto filed
with the Securities and Exchange Commission;
(b) Specimens of all forms of outstanding stock certificates, in the
forms approved by the Board of Directors of the Fund, with a certificate of the
Secretary of the Fund as to such approval;
(c) Specimens of the signatures of the officers of the Fund authorized
to sign stock certificates and individuals authorized to sign written
instructions and requests; and
(d) An opinion of counsel for the Fund with respect to:
(i) The Fund's organization and existence under the laws
of its state of organization;
(ii) The status of all Shares of the Fund under the
Securities Act of 1933, as amended, and any other
applicable federal or state statute; and
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(iii) That all issued Shares are, and all unissued Shares
will be, when issued, validly issued, fully paid and
nonassessable.
SECTION 2. STANDARD SERVICES
2.01 The Transfer Agent will perform the following services:
In accordance with the procedures established from time to time by
agreement between the Fund and the Transfer Agent, the Transfer Agent shall:
(a) issue and record the appropriate number of Shares as
authorized and hold such shares in the appropriate shareholder
("Shareholder") account;
(b) effect transfers of Shares by the registered owners
thereof upon receipt of appropriate documentation;
(c) prepare and transmit payments for dividends and
distributions declared by the Fund, provided good funds for said
dividends or distributions are received by the Transfer Agent prior to
the scheduled mailing date for said dividends or distributions;
(d) act as agent for Shareholders pursuant to the Fund's
dividend reinvestment plans and any other investment programs as
amended from time to time in accordance with the fee and service
schedule attached hereto as Exhibit A ("Fee and Service Schedule") and
the terms of any agreements relating thereto to which the Transfer
Agent is or will be a party; and
(e) issue replacement certificates for those certificates
alleged to have been lost, stolen or destroyed upon receipt by the
Transfer Agent of an open penalty surety bond satisfactory to it and
holding it and the Fund harmless, absent notice to the Fund and the
Transfer Agent that such certificates have been acquired by a bona fide
purchaser. The Transfer Agent, at its option, may issue replacement
certificates in place of mutilated stock certificates upon presentation
thereof without such indemnity.
2.02 The Transfer Agent shall perform all the customary services of a
transfer agent, dividend disbursing agent and an agent of a dividend
reinvestment plan and other investment programs as described in Section 2.01
consistent with those requirements in effect as of the date of this Agreement.
The detailed services and definition, frequency, limitations and associated
costs (if any) are set out in Fee and Service Schedule.
2.03 The Transfer Agent may provide such additional services to or on
behalf of the Fund (e.g., escheatment services) as may be agreed upon in writing
between the Fund and the Transfer Agent.
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SECTION 3. FEES AND EXPENSES
3.01 Fees.
(a) For the Initial Term, as defined in Section 11.01 hereof, the Fund
agrees to pay the Transfer Agent fees for the services performed pursuant to
this Agreement as set forth in the Fee and Service Schedule.
(b) After the Initial Term of the Agreement, providing that service mix
and volumes remain constant, the fees listed in the Fee and Service Schedule
shall be increased by the accumulated change in the National Employment Cost
Index for Service Producing Industries (Finance, Insurance, Real Estate) for the
preceding years of the contract, as published by the Bureau of Labor Statistics
of the United States Department of Labor. Fees will be increased on this basis
on each successive contract anniversary thereafter.
(c) Notwithstanding Section 3.01(b) above, fees and the out-of-pocket
expenses and advances identified under Section 3.02 below may be changed from
time to time as agreed upon in writing between the Transfer Agent and the Fund.
3.02 Out of Pocket Expenses.
(a) In addition to the fees paid under Section 3.01 above, the Fund
agrees to reimburse the Transfer Agent for out-of-pocket expenses, including,
but not limited to, check stock, stationery, envelopes, confirmation production,
postage, forms, insurance, telephone usage, facsimile charges, microfilm,
microfiche, printing of proxies, expenses incurred attending annual meeting,
records storage or advances incurred by the Transfer Agent for the items set out
in the Fee and Service Schedule. In addition, any other expenses incurred by the
Transfer Agent at the request or with the consent of the Fund will be reimbursed
by the Fund.
(b) All out-of-pocket expenses described in Section 3.02(a) above will
be billed as incurred subject to Section 3.03(b), provided, however, that
payment for postage expenses and the cost of materials for mailing of dividends,
proxies, the Fund reports and other mailings to all Shareholder accounts shall
be advanced to the Transfer Agent by the Fund at least seven (7) days prior to
the mailing date of such materials.
(c) The Transfer Agent reserves the right to receive compensation from
vendors for services rendered to vendors which relate to services to be provided
under this Agreement, to the extent such services rendered reduce the overall
costs of the services.
3.03 Payment of Fees and Expenses.
(a) The Fund agrees to pay all fees and reimbursable expenses upon
receipt of the respective billing notice. Interest charges will accrue on unpaid
balances outstanding for more than forty-five (45) days.
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(b) The failure by the Fund to pay an invoice within 90 days after
receipt of such invoice or the failure by the Fund to timely pay three
consecutive invoices shall constitute a material breach pursuant to Section
11.02 below. The Transfer Agent may terminate this Agreement for such material
breach immediately and shall not be obligated to provide the Fund with 30 days
to cure such breach.
3.04 Services Required by Legislation.
Services required by legislation or regulatory mandate that become
effective after the effective date of this Agreement shall not be part of the
standard services, and shall be billed by appraisal.
3.05 Overtime Charges.
Overtime charges will be assessed in the event of a late delivery to
the Transfer Agent of the Fund material for mailings to shareholders unless the
mail date is rescheduled. Such material includes, but is not limited to, proxy
statements, quarterly and annual reports, dividend enclosures and news releases.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE TRANSFER AGENT
The Transfer Agent represents and warrants to the Fund that:
4.01 EquiServe Trust Company, N.A. is a federally chartered limited
purpose national bank duly organized under the laws of the United States and
EquiServe, Inc. is a corporation validly existing and in good standing under the
laws of the State of Delaware and each has full corporate power, authority and
legal right to execute, deliver and perform this Agreement. The execution,
delivery and performance of this Agreement by the Transfer Agent has been duly
authorized by all necessary corporate action and constitutes the legal, valid
and binding obligation of Transfer Agent enforceable against Transfer Agent in
accordance with its terms;
4.02 The execution, delivery and performance of this Agreement by
Transfer Agent will not violate, conflict with or result in the breach of any
material term, condition or provision of, or require the consent of any other
party to, (i) any existing law, ordinance, or governmental rule or regulation to
which Transfer Agent is subject, (ii) any judgment, order, writ, injunction,
decree or award of any court, arbitrator or governmental or regulatory official,
body or authority which is applicable to Transfer Agent, (iii) the incorporation
documents or bylaws of, or any material agreement to which Transfer Agent is a
party; and
4.03 Transfer Agent has and will continue to have access to the
necessary facilities, equipment and personnel to perform its duties and
obligations under this Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE FUND
The Fund represents and warrants to the Transfer Agent that:
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5.01 It is a corporation duly organized and existing and in good
standing under the laws of the State of Minnesota;
5.02 It is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this Agreement;
5.03 All corporate proceedings required by said Articles of
Incorporation, By-Laws and applicable law have been taken to authorize it to
enter into and perform this Agreement; and
5.04 The Shares have been registered under the Securities Act of 1933,
as amended (the "1933 Act"), or will be so registered prior to the sale of any
Shares, and all appropriate state securities law filings have been made with
respect to all Shares of the Fund being offered for sale except for any Shares
which are offered in a transaction or series of transactions which are exempt
from the registration requirements of the 1933 Act and state securities laws;
information to the contrary will result in immediate notification to the
Transfer Agent.
5.05 The Fund is a closed-end investment company registered under the
Investment Company Act of 1940, as amended.
SECTION 6. INDEMNIFICATION
6.01 The Transfer Agent shall not be responsible for, and the Fund
shall indemnify and hold the Transfer Agent harmless from and against, any and
all losses, damages, costs, charges, counsel fees and expenses, payments,
expenses and liability arising out of or attributable to:
(a) All actions of the Transfer Agent or its agents or
subcontractors required to be taken pursuant to this Agreement,
provided such actions are taken in good faith and without negligence or
willful misconduct;
(b) The Fund's lack of good faith, negligence or willful
misconduct or the breach of any representation or warranty of the Fund
hereunder;
(c) The reliance or use by the Transfer Agent or its agents or
subcontractors of information, records and documents which (i) are
received by the Transfer Agent or its agents or subcontractors and
furnished to it by or on behalf of the Fund, and (ii) have been
prepared and/or maintained by the Fund or any other person or firm on
behalf of the Fund. Such other person or firm shall include any former
transfer agent or former registrar, or co-transfer agent or
co-registrar or any current registrar where the Transfer Agent is not
the current registrar;
(d) The reliance on, or the carrying out by the Transfer Agent
or its agents or subcontractors of any instructions or requests of the
Fund; and
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(e) The offer or sale of Shares in violation of any federal or
state securities laws requiring that such shares be registered or in
violation of any stop order or other determination or ruling by any
federal or state agency with respect to the offer or sale of such
Shares; and
(f) The negotiations and processing of checks, including
checks made payable to prospective or existing Shareholders which are
tendered to the Transfer Agent for the purchase of Shares (commonly
known as "third party checks").
6.02 At any time the Transfer Agent may apply to any officer of the
Fund for instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by the Transfer
Agent under this Agreement, and the Transfer Agent and its agents and
subcontractors shall not be liable and shall be indemnified by the Fund for any
action taken or omitted by it in reliance upon such instructions or upon the
advice or opinion of such counsel. The Transfer Agent, its agents and
subcontractors shall be protected and indemnified in acting upon any paper or
document reasonably believed to be genuine and to have been signed by the proper
person or persons, or upon any instruction, information, data, records or
documents provided the Transfer Agent or its agents or subcontractors by
telephone, in person, machine readable input, telex, CRT data entry or similar
means authorized by the Fund, and shall not be held to have notice of any change
of authority of any person, until receipt of written notice thereof from the
Fund. The Transfer Agent, its agents and subcontractors shall also be protected
and indemnified in recognizing stock certificates which are reasonably believed
to bear the proper manual or facsimile signatures of officers of the Fund, and
the proper countersignature of any former transfer agent or former registrar, or
of a co-transfer agent or co-registrar.
6.03 Transfer Agent shall be responsible for and shall indemnify and
hold the Fund and its officers, directors and affiliates (including its
investment adviser) harmless from and against any and all losses, damages,
costs, charges, counsel fees, payments, expenses and liability arising out of or
attributable to Transfer Agent's refusal or failure to comply with the terms of
this Agreement, or which arise out of Transfer Agent's negligence or willful
misconduct or which arise out of the breach of any representation or warranty of
Transfer Agent hereunder, for which Transfer Agent is not entitled to
indemnification under this Agreement; provided, however, that Transfer Agent's
aggregate liability during any term of this Agreement with respect to, arising
from or arising in connection with this Agreement, or from all services provided
or omitted to be provided under this Agreement, whether in contract, or in tort,
or otherwise, other than any liability arising under Section 10.03 of this
Agreement, is limited to, and shall not exceed, the amounts paid hereunder by
the Customer to Transfer Agent as fees and charges, but not including
reimbursable expenses, during the six (6) calendar months immediately preceding
the event for which recovery from the Transfer Agent is being sought.
6.04 In order that the indemnification provisions contained in this
Section 6 shall apply, upon the assertion of a claim for which one party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The
failure of the party seeking indemnification to promptly notify the other party
of such assertion, and to
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keep such other party advised with respect to all developments concerning such
claim, shall not relieve such other party of its indemnification obligations
hereunder except to the extent that it was prejudiced by the failure of the
party seeking indemnification to promptly notify such other party of such
assertion and to keep such other party advised with respect to all developments
concerning such claim. The indemnifying party shall have the option to
participate with the indemnified party in the defense of such claim or to defend
against said claim in its own name or the name of the indemnified party. The
indemnified party shall in no case confess any claim or make any compromise in
any case in which the indemnifying party may be required to indemnify it except
with indemnifying party's prior written consent.
SECTION 7. STANDARD OF CARE
The Transfer Agent shall at all times act in good faith and agrees to
use its best efforts within reasonable time limits to insure the accuracy of all
services performed under this Agreement, but assumes no responsibility and shall
not be liable for loss or damage due to errors unless said errors are caused by
its negligence, bad faith or willful misconduct or that of its employees.
SECTION 8. RESPONSIBILITIES OF THE TRANSFER AGENT
The Transfer Agent undertakes the duties and obligations imposed by
this Agreement upon the following terms and conditions, by all of which the
Fund, by its acceptance hereof, shall be bound:
8.01 Whenever in the performance of its duties hereunder the Transfer
Agent shall deem it necessary or desirable that any fact or matter be proved or
established by the Fund prior to taking or suffering any action hereunder, such
fact or matter may be deemed to be conclusively proved and established by a
certificate signed by an officer of the Fund and delivered to the Transfer
Agent. Such certificate shall be full authorization to the Transfer Agent for
any action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
8.02 The Fund agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Transfer Agent for the carrying out or performing by the Transfer Agent
of the provisions of this Agreement.
8.03 The Transfer Agent, any of its affiliates or subsidiaries, and any
stockholder, director, officer or employee of the Transfer Agent may buy, sell
or deal in the securities of the Fund or become pecuniarily interested in any
transaction in which the Fund may be interested, or contract with or lend money
to the Fund or otherwise act as fully and freely as though it were not appointed
as agent under this Agreement. Nothing herein shall preclude the Transfer Agent
from acting in any other capacity for the Fund or for any other legal entity.
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8.04 No provision of this Agreement shall require the Transfer Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
it shall believe in good faith that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to it.
SECTION 9. COVENANTS OF THE FUND AND THE TRANSFER AGENT
9.01 The Fund shall furnish to the Transfer Agent the following:
(a) A copy of its Articles of Incorporation and By-Laws;
(b) Copies of all material amendments to the Fund's Articles
of Incorporation or Bylaws made after the date of this Agreement,
promptly after such amendments are made; and
(c) A certificate of the Fund as to the Shares authorized,
issued and outstanding, as well as a description of all reserves of
unissued Shares relating to the exercise of options, warrants or a
conversion of debentures or otherwise.
9.02 The Transfer Agent hereby agrees to establish and maintain
facilities and procedures reasonably acceptable to the Fund for the safekeeping
of stock certificates, check forms and facsimile signature imprinting devices,
if any, and for the preparation, use, and recordkeeping of such certificates,
forms and devices.
9.03 The Transfer Agent shall keep records relating to the services to
be performed hereunder, in the form and manner as it may deem advisable. The
Transfer Agent agrees that all such records prepared or maintained by it
relating to the services performed hereunder are the property of the Fund and
will be preserved, maintained and made available in accordance with the
requirements of law, and will be surrendered promptly to the Fund on and in
accordance with its request.
9.04 The Transfer Agent and the Fund agree that all books, records,
information and data pertaining to the business of the other party which are
exchanged or received pursuant to the negotiation or the carrying out of this
Agreement shall remain confidential, and shall not be voluntarily disclosed to
any other person, except as may be required by law.
9.05 In the event that any requests or demands are made for the
inspection of the Shareholder records of the Fund, other than requests for
records of shareholders pursuant to standard subpoenas from state or federal
government authorities (e.g., in divorce or criminal actions), the Transfer
Agent will endeavor to notify the Fund and to secure instructions from an
authorized officer of the Fund as to such inspection. The Transfer Agent
expressly reserves the right, however, to exhibit the Shareholder records to any
person whenever it is advised by counsel that it may be held liable for the
failure to exhibit the Shareholder records to such person.
SECTION 10. DATA ACCESS AND PROPRIETARY INFORMATION
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10.01 The Fund acknowledges that the data bases, computer programs,
screen formats, report formats, interactive design techniques, and documentation
manuals furnished to the Fund by the Transfer Agent as part of the Fund's
ability to access certain the Fund related data ("the Fund Data") maintained by
the Transfer Agent on data bases under the control and ownership of the Transfer
Agent or other third party ("Data Access Services") constitute copyrighted,
trade secret, or other proprietary information (collectively, "Proprietary
Information") of substantial value to the Transfer Agent or other third party.
In no event shall Proprietary Information be deemed the Fund Data. The Fund
agrees to treat all Proprietary Information as proprietary to the Transfer Agent
and further agrees that it shall not divulge any Proprietary Information to any
person or organization except as may be provided hereunder. Without limiting the
foregoing, the Fund agrees for itself and its employees and agents:
(a) to access the Fund Data solely from locations as may be
designated in writing by the Transfer Agent and solely in accordance
with the Transfer Agent's applicable user documentation;
(b) to refrain from copying or duplicating in any way the
Proprietary Information;
(c) to refrain from obtaining unauthorized access to any
portion of the Proprietary Information, and if such access is
inadvertently obtained, to inform the Transfer Agent in a timely manner
of such fact and dispose of such information in accordance with the
Transfer Agent's instructions;
(d) to refrain from causing or allowing the data acquired
hereunder from being retransmitted to any other computer facility or
other location, except with the prior written consent of the Transfer
Agent;
(e) that the Fund shall have access only to those authorized
transactions agreed upon by the parties; and
(f) to honor all reasonable written requests made by the
Transfer Agent to protect at the Transfer Agent's expense the rights of
the Transfer Agent in Proprietary Information at common law, under
federal copyright law and under other federal or state law.
Each party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 10.
10.02 The Fund notifies the Transfer Agent that if any of the Data
Access Services do not operate in material compliance with the most recently
issued user documentation for such services, the Transfer Agent shall endeavor
in a timely manner to correct such failure. Organizations from which the
Transfer Agent may obtain certain data included in the Data Access Services are
solely responsible for the contents of such data and the Fund agrees to make no
claim against the Transfer Agent arising out of the contents of such third party
data, including,
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but not limited to, the accuracy thereof. DATA ACCESS SERVICES AND ALL COMPUTER
PROGRAMS AND SOFTWARE SPECIFICATIONS USED IN CONNECTION THEREWITH ARE PROVIDED
ON AN AS IS, AS AVAILABLE BASIS. THE TRANSFER AGENT EXPRESSLY DISCLAIMS ALL
WARRANTIES EXCEPT THOSE EXPRESSLY STATED HEREIN INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10.03 Notwithstanding anything herein to the contrary, the Transfer
Agent represents and warrants that, to the Transfer Agent's knowledge, the Data
Access Services do not and will not violate any copyright, proprietary or
personal right of others. The Transfer Agent shall indemnify and hold harmless
the Fund, its officers, directors, agents and employees, from and against any
and all claims, costs and expenses (including reasonable attorney's fees)
arising from any claim of infringement by the Data Access Services of any
copyright, proprietary or personal right of others; provided, however, that
Transfer Agent's aggregate liability during any term of this Agreement with
respect to such indemnification is limited to, and shall not exceed, the amounts
paid hereunder by the Customer to Transfer Agent as fees and charges, but not
including reimbursable expenses, during the eighteen (18) calendar months
immediately preceding the date of such claim of infringement.
10.04 If the transactions available to the Fund include the ability to
originate electronic instructions to the Transfer Agent in order to (i) effect
the transfer or movement of cash or Shares or (ii) transmit Shareholder
information or other information, then in such event the Transfer Agent shall be
entitled to rely on the validity and authenticity of such instructions without
undertaking any further inquiry as long as such instructions are undertaken in
conformity with security procedures established by the Transfer Agent from time
to time.
10.05 The Transfer Agent agrees to furnish the Fund annual reports of
its financial condition, consisting of a balance sheet, earnings statement and
any other publicly available financial information reasonably requested by the
Fund and a copy of the report issued by its certified public accountants
pursuant to Rule 17Ad-13 under the 1934 Act as filed with the SEC. The annual
financial statements will be certified by the Transfer Agent's certified public
accountants and may be included in the Transfer Agent's publicly distributed
Annual Report.
SECTION 11. TERM AND TERMINATION
11.01 The term of this Agreement shall be for a period commencing
October ___, 2002 through October ___, 2003 (the "Initial Term"). After the
Initial Term, this Agreement shall be self-renewing.
11.02 Either party may terminate this Agreement after written notice to
the other if one party has materially breached its obligation under this
Agreement, and the breaching party has failed to cure such material breach
within thirty (30) calendar days of receipt of such notice.
11.03 Should the Fund exercise its right to terminate this Agreement for reasons
other than a material breach by the Transfer Agent as provided in Section 11.02
above, the Fund shall pay the Transfer Agent for all out-of-pocket expenses
associated with the movement of records and material. In addition, the Transfer
Agent will charge the Fund, together with all other registered management
investment companies and real estate investment trusts advised by U.S. Bancorp
Asset Management, Inc. which have simultaneously terminated a transfer agency or
sub-
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transfer agency relationship with Transfer Agent, a conversion fee equal, in the
aggregate, to $10,000.00. The charge will cover the coordination of the Transfer
Agent's conversion process and the cost of transferring the Fund's records to a
successor Transfer Agent or to the Fund, as directed by the Fund, and the
Transfer Agent will perform its services in assisting with the transfer of
records in a diligent and professional manner.
11.04 This Agreement may be terminated by either party upon ninety (90)
days written notice to the other.
SECTION 12. ASSIGNMENT
12.01 Except as provided in Sections 12.03 and 12.04 below, neither
this Agreement nor any rights or obligations hereunder may be assigned by either
party without the written consent of the other party.
12.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
12.03 The Transfer Agent may, without further consent on the part of
the Fund, (i) subcontract for the performance hereof with an EquiServe affiliate
duly registered as a transfer agent pursuant to Section 17A( c )(2), or (ii)
subcontract with other subcontractors for telephone and mailing services as may
be required from time to time; provided, however, that the Transfer Agent shall
be principally responsible to the Fund for the acts and omissions of any
subcontractor without regard to any rights or recourse the Transfer Agent may
have against any third party.
SECTION 13. UNAFFILIATED THIRD PARTIES
Nothing herein shall impose any duty upon the Transfer Agent in
connection with or make the Transfer Agent liable for the actions or omissions
to act of unaffiliated third parties such as, by way of example and not
limitation, Airborne Services, the U.S. mails and telecommunication companies,
provided, if the Transfer Agent selected such company, the Transfer Agent shall
have exercised due care in selecting the same.
SECTION 14. NOTICES
Any notice or communication by the Transfer Agent or the Fund to the
other is duly given if in writing and delivered in person or mailed by first
class mail, postage prepaid, telex, telecopier or overnight air courier
guaranteeing next day delivery, to the other's address:
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If to the Fund:
U.S. Bancorp Asset Management
800 Nicollet Mall
Mail Stop BC-MN_Ho5U
Xxxxxxxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxx
If to the Transfer Agent:
EquiServe Trust Company, N.A.
c/o EquiServe, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: General Counsel
The Transfer Agent and the Fund may, by notice to the other, designate
additional or different addresses for subsequent notices or communications.
SECTION 15. SUCCESSORS
All the covenants and provisions of this Agreement by or for the
benefit of the Fund or the Transfer Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
SECTION 16. AMENDMENT
This Agreement may be amended or modified by a written amendment
executed by both parties hereto.
SECTION 17. SEVERABILITY
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
SECTION 18. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware.
SECTION 19. FORCE MAJEURE
In the event either party is unable to perform its obligations under
the terms of this Agreement because of acts of God, strikes, equipment or
transmission failure or damage
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reasonably beyond its control, or other causes reasonably beyond its control,
such party shall not be liable for damages to the other party resulting from
such failure to perform or otherwise from such causes provided, however, that a
party may only rely on this provision to excuse performance for a commercially
reasonable time to cure such cause of its inability to perform.
SECTION 20. CONSEQUENTIAL DAMAGES
Neither party to this Agreement shall be liable to the other party for
consequential damages under any provision of this Agreement or any consequential
damages arising out of any act or failure to act hereunder.
SECTION 21. DESCRIPTIVE HEADINGS
Descriptive headings of the several sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
SECTION 22. THIRD PARTY BENEFICIARIES
The provisions of this Agreement are intended to benefit only the
Transfer Agent and the Fund and their respective permitted successors and
assigns. No rights shall be granted to any other person by virtue of this
Agreement, and there are no third party beneficiaries hereof.
SECTION 23. SURVIVAL
All provisions regarding indemnification, warranty, liability and
limits thereon, and confidentiality and protection of proprietary rights and
trade secrets shall survive the termination of this Agreement.
SECTION 24. MERGER OF AGREEMENT
This agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement with respect to the subject matter
hereof, whether oral or written.
SECTION 25. COUNTERPARTS
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by one of its officers thereunto duly authorized, all
as of the date first written above.
FIRST AMERICAN MINNESOTA MUNICIPAL
INCOME FUND II, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
EQUISERVE, INC.
EQUISERVE TRUST COMPANY, N.A.
ON BEHALF OF BOTH ENTITIES:
By:
-------------------------------------
Name:
---------------------------------
Title:
---------------------------------
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SCHEDULE A
STOCK TRANSFER AGENT SERVICES
FEE AND SERVICE SCHEDULE
FOR
FIRST AMERICAN MINNESOTA MUNICIPAL INCOME FUND II, INC.
A. FEES
================================================================================
$ 1,648.00 MONTHLY ADMINISTRATIVE FEE PER FUND
================================================================================
Base Fee includes all services below. Limitations and additional
services are indicated with additional charges as noted. After the
Initial Term, this Fee and Service Schedule shall be self renewing, and
providing that service mix and volumes remain constant, the final
year's fees listed under the Fees for Standard Services section shall
be increased by the accumulated change in the National Employment Cost
Index for Service Producing Industries (Finance, Insurance, Real
Estate) for the preceding years of the contract, as published by the
Bureau of Labor Statistics of the United States Department of Labor.
Fees will be increased on this basis on each successive contract
anniversary thereafter.
B. STANDARD SERVICES
Equiserve, Inc. and EquiServe Trust Company, N.A. (collectively, the
"Transfer Agent") agrees to provide the following services to the Fund
in accordance with the standard fees set forth in Section A herein
above.
ACCOUNT MAINTENANCE
o Annual administrative services as Transfer Agent
o Annual administrative services as Registrar
o Maintaining shareholder accounts per year, to be billed at
$6.50 each per year, to include the following services:
o Processing of new stockholder accounts
o Posting and acknowledging address changes
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o Processing other routine file maintenance
o Posting all transactions, including debit and credit
certificates to the stockholder file
o Researching and responding to all stockholder
inquiries
o Remote inquiry access to the Fund's stockholder
records via PC terminal with telecommunications
software
ROUTINE CERTIFICATE ISSUANCE
o Issuance, cancellation and registration of certificates per
year (to be billed at $1.50 each) to include the following
services:
o Production and mailing of Daily Transfer Reports
o Processing of all legal transfers including window
and mail items
o Combining certificates into large denominations
o Processing Indemnity Bonds
o Replacing lost certificates
o Placing, maintaining and removing stop-transfer
notations
SPECIAL CERTIFICATE ISSUANCE
o The processing of up to 50 stock option issuances, to include
DWAC processing where required, per year, additional to be
billed at $7.50 per stock option issuance
o The processing of up to 50 Restricted Transfers per year,
additional to be billed at $7.50 per Restricted Transfer
MAILING AND REPORTING SERVICES
o Addressing and enclosing Quarterly Reports, three (3) per the
Fund per annum for registered shareholders
o Preparing a full Statistical Report to reflect shareholder
base by geographic residence code, class code, and share
group, two (2) per the Fund per annum
o Preparing a full stockholder list, four (4) per the Fund per
annum
o Preparing a set of labels, four (4) per the Fund per annum
o Coding "multiple" accounts at a single household to suppress
mailing of reports to same
ANNUAL MEETING SERVICES
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o Preparing a full stockholder list as of the Annual Meeting
Record Date
o Addressing and enclosing proxy card along with notice and
statement return envelope and Annual Report envelope
o Receiving, opening and examining returned proxies
o Writing in connection with unsigned or improperly executed
proxies
o Providing summary reports on status of tabulation on a daily
basis
o Responding to inquiries as to whether specific accounts have
yet voted
o Tabulating returned proxies to include up to four (4)
proposals, excess to be billed at $0.03 per account, per
proposal
o Attending Annual Meeting as Inspector of Election (travel
expenses billed as incurred)
o Preparing a final Annual Meeting List reflecting how each
account has voted on each proposal
DIVIDEND SERVICES
As Dividend Disbursing Agent and Paying Agent, Transfer Agent, will
perform the dividend related services indicated below, pursuant to the
following terms and conditions:
o Checks to be drawn on EquiServe, Inc. and funds immediately
available in-house on mailing date
o All funds must be received by 12:00 P.M., EASTERN TIME via
Federal the Fund Wire or EquiServe, Inc. Demand Deposit
Account debit
o Dividend checks will be released upon receipt of funding
o Preparing and mailing quarterly dividends (check includes
address change feature) with an additional enclosure with each
dividend check
o Preparing a hard copy dividend list as of each dividend record
date
o Preparing and filing Federal Information Returns (Form 1099)
of dividends paid in a year and mailing a statement to each
stockholder
o Preparing and filing State Information Returns of dividends
paid in a year to stockholders resident within such state
o Preparing and filing annual withholding return (Form 1042) and
payments to the government of income taxes withheld from
Non-Resident Aliens
o Replacing lost dividend checks
o Providing photocopies of canceled checks when requested
o Reconciling paid and outstanding checks
o Coding "undeliverable" accounts to suppress mailing dividend
checks to same
o Processing and recordkeeping of accumulated uncashed dividends
o Furnishing requested dividend information to stockholders
o Performing the following duties as required by the Interest
and Dividend Tax Compliance Act of 1983:
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o Withholding tax from shareholder accounts not in compliance
with the provisions of the Act
o Reconciling and reporting taxes withheld, including additional
1099 reporting requirements, to the Internal Revenue Service
o Responding to shareholder inquiries regarding the Regulations
o Mailing to new accounts who have had taxes withheld, to inform
them of procedures to be followed to curtail subsequent
back-up withholding
o Performing shareholder file adjustments to reflect
certification of accounts
DIVIDEND REINVESTMENT SERVICES
As Administrator of your open market Dividend Reinvestment Plan
("DRP"), Transfer Agent will perform the following DRP related
services:
o Reinvestment and/or cash investment transactions of Dividend
Reinvestment Plan participant accounts
o Preparing and mailing a detailed statement with an additional
enclosure to each Dividend Reinvestment Plan participant
o Maintaining DRP accounts and establishing new participant
accounts
o Processing termination and/or withdrawal requests
o Supplying summary reports for each reinvestment/investment
o Certificate depository
o Handling shareholder inquiries concerning the Plan
o Preparing and mailing Form 1099 to participants and related
filings with the IRS
o Confirm dividend price to the Fund on or before the day
immediately prior to the dividend payable date
BILLING DEFINITION OF NUMBER OF ACCOUNTS
o For billing purposes, the number of accounts will be based on
open acounts on file at the beginning of each billing period,
plus any new accounts added during that period.
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