EXECUTION COPY
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of May 15, 2009 by and between PNC GLOBAL
INVESTMENT SERVICING (U.S.) INC., a Massachusetts corporation ("PNC"), and FIRST
TRUST ACTIVE DIVIDEND INCOME FUND, 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 provide administration and
accounting services, and PNC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby the parties
hereto agree 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.
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(f) "Securities Laws" means the 1933 Act, the 1934 Act and the
▇▇▇▇ ▇▇▇.
(g) "Shares" mean the shares of beneficial interest 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 provide administration and
accounting services 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 other
entity.
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
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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 (except where such Oral
Instructions are given by PNC or its affiliates) 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.
(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
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Instructions PNC receives from the Fund and the advice PNC
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 and 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 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 with respect to the Fund's
books of account;
(ii) records of the Fund's securities transactions; and
(iii) all other books and records as PNC is required to
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maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or PNC and their respective
subsidiaries and affiliated companies; (b) any scientific or technical
information, design, process, procedure, formula, or improvement that
is commercially valuable and secret in the sense that its
confidentiality affords the Fund or PNC a competitive advantage over
its competitors; (c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source
code, object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and (d)
anything designated as confidential. Notwithstanding the foregoing,
information shall not be Confidential Information and shall not be
subject to such confidentiality obligations if: (a) it is necessary for
PNC to release such information in connection with the provision of
services under this Agreement; (b) it is already known to the receiving
party at the time it is obtained; (c) it is or becomes publicly known
or available through no wrongful act of the receiving party; (d) it is
rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of confidentiality;
(e) it is released by the protected party to a third party without
restriction; (f) it is requested or required to be disclosed by the
receiving party pursuant to a court order, subpoena, governmental or
regulatory agency request or law (provided the receiving party will
provide the other party written notice of the same, to the extent such
notice is permitted); (g) it is Fund information provided by PNC in
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connection with an independent third party compliance or other review;
(h) it is relevant to the defense of any claim or cause of action
asserted against the receiving party; or (i) it has been or is
independently developed or obtained by the receiving party. 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 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. LIAISON WITH ACCOUNTANTS. PNC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules with respect
to the Fund. PNC shall take all reasonable action in the performance of
its duties under this Agreement to assure 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,
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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, 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 in writing by the Fund and PNC.
(b) 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 this 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.
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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. 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.
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(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;
(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.
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(b) Notwithstanding anything in this Agreement to the contrary,
PNC shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly
by 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 ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PNC will perform the following accounting services with respect to
the Fund:
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(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from
the investment adviser for the Fund (the "Adviser") and
transmit trades to the Fund's custodian (the "Custodian") for
proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash
balance available for investment purposes;
(vi) Update the cash availability throughout the day as required by
the Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and
custody fees);
(ix) Monitor the expense accruals and notify an officer of the Fund
of any proposed adjustments;
(x) Control all disbursements and authorize such disbursements
upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine net income;
(xiii) Obtain security market quotes from independent pricing
services approved by the Adviser, or if such quotes are
unavailable, then obtain such prices from the Adviser, and in
either case calculate the market value of the Fund's
Investments;
(xiv) Transmit or mail a copy of the daily portfolio valuation to
the Adviser;
(xv) Compute net asset value; and
(xvi) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PNC will perform the following administration services with respect
to the Fund:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
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(iii) Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
(iv) Prepare for execution and file the Fund's Federal and state
tax returns;
(v) Monitor the Fund's status as a regulated investment company
under Sub-chapter M of the Internal Revenue Code of 1986, as
amended;
(vi) Prepare the Fund's annual and semi-annual shareholder reports;
(vii) Prepare and coordinate with the Fund's counsel post-effective
amendments to the Fund's registration statement on Form N-2,
as needed, and coordinate with the Fund's financial printer to
file such amendments; and prepare and file semi-annual reports
on Form N-SAR, subject to the review of Fund management;
(viii) Assist in the preparation of notices of annual or special
meetings of shareholders and proxy materials relating to such
meetings;
(ix) Assist in obtaining the fidelity bond and directors' and
officers'/errors and omissions insurance policies for the Fund
in accordance with the requirements of Rule 17g-1 and
17d-1(d)(7) under the 1940 Act as such bond and policies are
approved by the Fund's board of directors;
(x) Monitor the Fund's assets to assure adequate fidelity bond
coverage is maintained;
(xi) Draft agendas, resolutions and materials for quarterly and
special board meetings and draft written consents of the
board;
(xii) Coordinate the preparation, assembly and mailing of board
materials;
(xiii) Attend board meetings and draft minutes thereof;
(xiv) Maintain a calendar that identifies the required SEC filing
and board approval deadlines;
(xv) Assist the Fund in the handling of SEC examinations and
responses thereto;
(xvi) If the chief executive officer or chief financial officer of
the Fund is required to provide a certification as part of the
Fund's Form N-Q or Form N-CSR filing pursuant to regulations
promulgated by the Securities and Exchange Commission under
Section 302 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, PNC will
provide (to such person or entity as agreed between the Fund
and PNC) a sub-certification in support of certain matters set
forth in the aforementioned certification, such
sub-certification to be in such form and relating to such
matters as agreed between the Fund and PNC from time to time.
PNC shall be required to provide the sub-certification only
during the term of the Agreement and only if it receives such
cooperation as it may request to perform its investigations
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with respect to the sub-certification. For clarity, the
sub-certification is not itself a certification under the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or under any other regulatory
requirement; and
(xvii) Coordinate contractual relationships and communications
between the Fund and its contractual service providers; and
(xviii) Such other regulatory services as the parties hereto may from
time to time agree upon in writing.
All regulatory services are subject to the review and approval of Fund
counsel.
16. 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.
(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 accounting and
administration services 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
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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.
17. NOTICES. Notices shall be addressed (a) if to PNC, at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President (or such
other address as PNC may inform the Fund in writing); (b) if to the
Fund, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: W. ▇▇▇▇▇
▇▇▇▇▇▇▇ fax (▇▇▇) ▇▇▇-▇▇▇▇ (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. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom
enforcement of such change or waiver is sought
19. ASSIGNMENT. PNC may assign its rights 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 thirty (30) days prior
written notice of such assignment.
20. 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.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
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execute such further documents as are necessary to effectuate the
purposes hereof.
22. MISCELLANEOUS.
(a) 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.
(b) 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) 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
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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 warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(d) This Agreement embodies the entire agreement and understanding
between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents
their agreement, if any, with respect to delegated duties.
(e) 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.
(f) Notwithstanding any provision hereof, the services of PNC are
not, nor shall they be, construed as constituting legal advice
or the provision of legal services for or on behalf of the
Fund or any other person. Neither this Agreement nor the
provision of services under this Agreement establishes or is
intended to establish an attorney-client relationship between
the Fund and PNC.
(g) The Fund will provide such information and documentation as
PNC may reasonably request in connection with services
provided by PNC to the Fund.
(h) 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.
(i) 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.
(j) 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
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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.
(k) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such
party.
(l) 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.
(m) 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 birth. PNC may also ask (and may have
already asked) for additional identifying information, and PNC
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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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
FIRST TRUST ACTIVE DIVIDEND INCOME FUND
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
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