EXHIBIT 99.(h)(i)
-----------------
TRANSFER AGENCY, REGULATORY ADMINISTRATION
SERVICES, AND FUND ADMINISTRATION SERVICES AGREEMENT
THIS TRANSFER AGENCY, REGULATORY ADMINISTRATION SERVICES, AND FUND
ADMINSTRATION SERVICES AGREEMENT (the "Agreement") is made as of October 1, 2004
by and between PFPC INC., a Massachusetts corporation ("PFPC"), and WILSHIRE
VARIABLE INSURANCE TRUST, a Delaware statutory trust (the "Fund").
BACKGROUND:
A. The Fund is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act").
B. The Fund wishes to retain PFPC to provide regulatory administration
services to the Fund and its investment portfolios listed on Exhibit A
attached hereto and made a part hereof, as such Exhibit A may be
amended from time to time (each a "Portfolio"), and PFPC wishes to
furnish such services.
C. The Fund wishes to retain PFPC to serve as transfer agent one or more
of the Portfolios as is specifically designated on Exhibit A, as such
Exhibit A may be amended from time to time, and PFPC wishes to furnish
such services.
D. This Background section and all of the Exhibits to this Agreement are
hereby incorporated by reference in and made a part of this Agreement.
TERMS:
NOW, THEREFORE, in consideration of the premises and 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.
1
(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's Board of Trustees 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) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be an
Authorized Person. PFPC 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.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and the
CEA.
(h) "Shares" mean the shares of beneficial interest of any series or class
of the Fund.
(i) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) 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 by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to the Fund
with respect to the Portfolio(s) specifically identified on Exhibit A hereto in
accordance with the terms set forth in this Agreement. In addition, the Fund
hereby appoints PFPC to provide regulatory administration services to it with
respect to all of the Portfolios in accordance with the terms set
2
forth in this Agreement. PFPC accepts such appointments and agrees to
furnish such services.
3. COMPLIANCE WITH RULES AND REGULATIONS. PFPC 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 PFPC hereunder. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the Fund or any
other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
(b) PFPC 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 PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC 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 Trustees or of
the Fund's shareholders, unless and until PFPC receives Written
Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming Oral
Instructions so that PFPC 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 PFPC or differ from the Oral Instructions shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC's ability to rely upon such
Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
3
(a) Advice of the Fund. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may request
advice from counsel of its own choosing (who may be counsel for the
Fund, the Fund's investment adviser or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC receives from
the Fund, and the advice it receives from counsel, PFPC may rely upon
and follow the advice of counsel.
(d) Protection of PFPC. PFPC shall be indemnified by the Fund and without
liability for any action PFPC takes or does not take in reliance upon
directions or advice or Oral Instructions or Written Instructions PFPC
receives from or on behalf of the Fund or from counsel and which PFPC
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 PFPC (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. The books and records pertaining to the Fund, which are in
the possession or under the control of PFPC, 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. The Fund and
Authorized Persons shall have access to such books and records at all times
during PFPC's normal business hours. Upon the reasonable
4
request of the Fund, copies of any such books and records shall be
provided by PFPC to the Fund or to an Authorized Person, at the Fund's
expense.
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 PFPC,
their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them;
(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 PFPC 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.
(b) Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations if it: (i) is already known to the
receiving party at the time it is obtained;
(ii) is or becomes publicly known or available through no wrongful
act of the receiving party;
(iii) is rightfully received from a third party who, to the best of
the receiving party's knowledge, is not under a duty of
confidentiality;
(iv) is released by the protected party to a third party without
restriction;
5
(v) is required to be disclosed by the receiving party pursuant to
a requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the receiving party will
provide the other party written notice of such requirement, to
the extent such notice is permitted);
(vi) is relevant to the defense of any claim or cause of action
asserted against the receiving party; or
(vii) has been or is independently developed or obtained by the
receiving party.
8. COOPERATION WITH ACCOUNTANTS. PFPC 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. PFPC SYSTEM. PFPC 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 PFPC in connection with the services
provided by PFPC to the Fund. Notwithstanding the foregoing, the parties
acknowledge the Fund shall retain all ownership rights in Fund data which
resides on the PFPC System.
10. DISASTER RECOVERY. PFPC 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, PFPC shall, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions. PFPC 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 PFPC's own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties or obligations under this
Agreement.
6
11. COMPENSATION. As compensation for services rendered by PFPC during the term
of this Agreement, the Fund will pay to PFPC a fee or fees as may be agreed to
from time to time in writing by the Fund and PFPC. The Fund acknowledges that
PFPC may receive float benefits and/or investment earnings in connection with
maintaining certain accounts required to provide services under this Agreement.
12. INDEMNIFICATION. The Fund agrees to indemnify, defend and hold harmless PFPC
and its affiliates, including their respective officers, directors, agents and
employees, from all taxes, charges, expenses, assessments, claims and
liabilities (including, without limitation, attorneys' fees and disbursements
and liabilities arising under the Securities Laws and any state and foreign
securities and blue sky laws) arising directly or indirectly from any action or
omission to act which PFPC takes in connection with the provision of services to
the Fund. Neither PFPC, nor any of its affiliates, shall be indemnified against
any liability (or any expenses incident to such liability) caused by PFPC's or
its affiliates' own willful misfeasance, bad faith, gross negligence or reckless
disregard in the performance of PFPC's activities under this Agreement, provided
that in the absence of a finding to the contrary the acceptance, processing
and/or negotiation of a fraudulent payment for the purchase of Shares shall be
presumed not to have been the result of PFPC's or its affiliates own willful
misfeasance, bad faith, gross negligence or reckless disregard of such duties
and obligations under this Agreement. The provisions of this Section 12 shall
survive termination of this Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC 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 PFPC and the Fund in a written amendment
hereto. PFPC shall be obligated to exercise care and diligence in the
7
performance of its duties hereunder and to act in good faith in
performing services provided for under this Agreement. PFPC shall be
liable only for any damages arising out of PFPC's failure to perform
its duties under this Agreement to the extent such damages arise out of
PFPC's willful misfeasance, bad faith, gross negligence or reckless
disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC
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; and (ii) PFPC 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 PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i) neither
PFPC nor its affiliates shall be liable for any consequential, special
or indirect losses or damages, whether or not the likelihood of such
losses or damages was known by PFPC or its affiliates and (ii) PFPC's
cumulative liability to the Fund for all losses, claims, suits,
controversies, breaches or damages for any cause whatsoever (including
but not limited to those arising out of or related to this Agreement)
and regardless of the form of action or legal theory shall not exceed
the fees received by PFPC for services provided hereunder
8
during the 12 months immediately prior to the date of such loss or
damage.
(d) No party may assert a cause of action against PFPC or any of its
affiliates that allegedly occurred more than 12 months immediately
prior to the filing of the suit (or, if applicable, commencement of
arbitration proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(f) 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;
(ii) Direct payment processing of checks or wires;
(iii) Prepare and certify stockholder lists in conjunction with
proxy solicitations;
(iv) Prepare and mail to shareholders confirmation of activity;
(v) Utilize existing toll-free lines for direct shareholder use,
plus customer service staff for on-line inquiry response;
(vi) Mail duplicate confirmations to broker-dealers of their
clients' activity, if requested;
(vii) Provide periodic shareholder lists and statistics to the Fund;
(viii) Prepare periodic mailing of year-end tax and statement
information;
(ix) Notify on a timely basis the investment adviser, accounting
agent, and custodian of fund activity;
(x) Perform other participating broker-dealer shareholder services
as may be agreed upon from time to time;
(xi) Accept and post daily Share purchases and redemptions; and
(xii) Accept, post and perform shareholder transfers.
9
(b) Purchase of Shares. PFPC shall issue and credit an account of an
investor, in the manner described in the Fund's prospectus, once it
receives:
(i) A purchase order in completed proper form; and
(ii) Confirmation of receipt or crediting of funds for such order
to the Fund's custodian.
(c) Redemption of Shares. PFPC shall process requests to redeem Shares as
follows:
(i) All requests to transfer or redeem Shares and payment therefor
shall be made in accordance with the Fund's prospectus, when
the shareholder tenders Shares in proper form, accompanied by
such documents as PFPC reasonably may deem necessary.
(ii) PFPC reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the endorsement on the instructions
is valid and genuine and that the requested transfer or
redemption is legally authorized, and it shall incur no
liability for the refusal, in good faith, to process transfers
or redemptions which PFPC, in its good judgment, deems
improper or unauthorized, or until it is reasonably satisfied
that there is no basis to any claims adverse to such transfer
or redemption.
(iii) When Shares are redeemed, PFPC shall deliver to the Fund's
custodian (the "Custodian") and the Fund or its designee a
notification setting forth the number of Shares redeemed. Such
redeemed Shares shall be reflected on appropriate accounts
maintained by PFPC reflecting outstanding Shares of the Fund
and Shares attributed to individual accounts.
10
(iv) PFPC shall, upon receipt of the monies provided to it by the
Custodian for the redemption of Shares, pay such monies as are
received from the Custodian, all in accordance with the
procedures established from time to time between PFPC and the
Fund.
(v) When a broker-dealer notifies PFPC of a redemption desired by
a customer, and the Custodian provides PFPC with funds, PFPC
shall prepare and send the redemption check to the
broker-dealer and made payable to the broker-dealer on behalf
of its customer, unless otherwise instructed in writing by the
broker-dealer.
(vi) PFPC shall not process or effect any redemption requests with
respect to Shares of the Fund after receipt by PFPC or its
agent of notification of the suspension of the determination
of the net asset value of the Fund.
(d) Dividends and Distributions. Upon receipt of a resolution of the Fund's
Board of Trustees authorizing the declaration and payment of dividends
and distributions, PFPC shall issue dividends and distributions
declared by the Fund in Shares, or, upon shareholder election, pay such
dividends and distributions in cash, if provided for in the Fund's
prospectus. Such issuance or payment, as well as payments upon
redemption as described above, 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. PFPC
shall mail to the Fund's shareholders such 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. PFPC shall prepare,
maintain and file with the IRS and other appropriate taxing authorities
reports relating to all dividends above a stipulated amount paid by the
Fund to its shareholders as required by tax or other law, rule or
regulation.
11
(e) Shareholder Account Services.
(i) PFPC may arrange, in accordance with the prospectus, for
issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders and checks.
(ii) PFPC may arrange, in accordance with the prospectus, for a
shareholder's:
- Exchange of Shares for shares of another fund with which the
Fund has exchange privileges; and/or
- Automatic redemption from an account where that shareholder
participates in a automatic redemption plan.
(f) Communications to Shareholders. Upon timely Written Instructions, PFPC
shall mail all communications by the Fund to its shareholders,
including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices; and
(v) Tax form information.
(g) Records. PFPC 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;
(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;
12
(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 PFPC to perform any
calculations required by this Agreement.
(h) Shareholder Inspection of Stock Records. Upon a request from any Fund
shareholder to inspect stock records, PFPC will notify the Fund and the
Fund will issue instructions granting or denying each such request.
Unless PFPC has acted contrary to the Fund's instructions, the Fund
agrees to and does hereby release PFPC from any liability for refusal
of permission for a particular shareholder to inspect the Fund's stock
records.
(i) Withdrawal of Shares and Cancellation of Certificates. Upon receipt of
Written Instructions, PFPC shall cancel outstanding certificates
surrendered by the Fund to reduce the total amount of outstanding
shares by the number of shares surrendered by the Fund.
(j) Lost Shareholders. PFPC shall perform such services as are required in
order to comply with rule 17Ad-17 of the 1934 Act (the "Lost
Shareholder Rule"), including, but not limited to, those set forth
below. PFPC may, in its sole discretion, use the services of a third
party to perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to comply
with the Lost Shareholder Rule; and
(iv) preparation and submission of data required under the Lost
Shareholder Rule.
13
Except as set forth above, PFPC shall have no responsibility for any
escheatment services.
(k) Print Mail. The Fund hereby engages PFPC as its exclusive print/mail
service provider with respect to those items and for such fees as may
be agreed to from time to time in writing by the Fund and PFPC.
(l) Proxy Advantage. The Fund hereby engages PFPC as its exclusive proxy
solicitation service provider with respect to those items and for such
fees as may be agreed to from time to time in writing by the Fund and
PFPC.
15. DESCRIPTION OF REGULATORY ADMINISTRATION SERVICES ON A CONTINUOUS
BASIS.
PFPC will perform the following regulatory administration services with
respect to each Portfolio:
(i) Draft agendas and resolutions for quarterly Board meetings;
(ii) Coordinate the preparation, assembly and mailing of quarterly
Board materials (in electronic or hard-copy format);
(iii) Maintain the Fund's corporate calendar to assure compliance
with various Board approval deadlines;
(iv) Attend quarterly Board meetings in-person or by
teleconference;
(v) Draft minutes of quarterly Board meetings; and
(vi) Provide such other regulatory administration services upon
such terms as the parties hereto may agree from time to time.
16. DESCRIPTION OF FUND ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following fund administration services with
respect to each Portfolio:
(i) On a daily basis, accept net assets, NAV, shares outstanding
of each Portfolio from fund accounting agent;
14
(ii) Allocate daily capital stock activity to each Portfolio's
sub-advisors based on the current standing instructions and
provide this allocation to fund accounting agent;
(iii) Calculate a daily trade in the Balanced Fund and transmit this trade to
fund accounting agent and the transfer agent.
17. PRIVACY. Each party hereto acknowledges and agrees that, subject to the
reuse and re-disclosure provisions of Xxxxxxxxxx X-X, 00 XXX Part 248.11, it
shall not disclose the non-public personal information of investors in the Fund
obtained under this Agreement, except as necessary to carry out the services set
forth in this Agreement or as otherwise permitted by law or regulation.
18. ANTI-MONEY LAUNDERING. To the extent the other provisions of this Agreement
require PFPC to maintain and monitor accounts of investors in the Fund
consistent with Securities Laws, PFPC shall perform reasonable actions necessary
to help the Fund be in compliance with Section 352 of the USA PATRIOT Act, as
follows: In this regard, PFPC shall: (a) establish and implement written
internal policies, procedures and controls reasonably designed to help prevent
the Fund from being used to launder money or finance terrorist activities; (b)
provide for independent testing, by an employee who is not responsible for the
operation of PFPC's AML program or by an outside party, for compliance with
PFPC's established policies and procedures; (c) designate a person or persons
responsible for implementing and monitoring the operation and internal controls
of PFPC's AML program; and (d) provide ongoing training of PFPC personnel
relating to the prevention of money-laundering activities. Upon the reasonable
request of the Fund, PFPC shall provide to the Fund: (x) a copy of PFPC's
written AML policies and procedures (it being understood such information is to
be considered confidential and treated as
15
such and afforded all protections provided to confidential information under
this Agreement); (y) at the option of PFPC, a copy of a written assessment or
report prepared by the party performing the independent testing for compliance,
or a summary thereof, or a certification that the findings of the independent
party are satisfactory; and (z) a summary of the AML training provided for
appropriate personnel. PFPC agrees to permit inspections relating to its AML
program by U.S. Federal departments or regulatory agencies with appropriate
jurisdiction and to make available to examiners from such departments or
regulatory agencies such information and records relating to its AML program as
such examiners shall reasonably request. Without limiting or expanding the
foregoing, the parties agree the provisions herein do not apply to Section 326
of the USA PATRIOT Act (or other sections other than Section 352) or regulations
promulgated thereunder.
19. 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 May 31,
2005 (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 PFPC 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 of termination, all expenses associated with movement of
records and materials and conversion thereof to a successor transfer
agent will be borne by the Fund and paid to PFPC 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
16
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.
(e) Notwithstanding anything contained in this Agreement to the contrary,
should a merger, acquisition, change in control, re-structuring,
re-organization or any other decision involving the Fund or any
affiliate (as defined under the 0000 Xxx) of the Fund result in the
Fund's desire to cease to use PFPC as the provider of any of the
services set forth hereunder in favor of another service provider prior
to the expiration of the then current Initial or Renewal Term, PFPC
shall make a good faith effort to facilitate a conversion of services
to the Fund's successor service provider, however, there can be no
guarantee that PFPC will be able to facilitate such a conversion of
services on the conversion date requested by the Fund. In connection
with the foregoing and prior to such conversion to the successor
service provider, the payment of all fees to PFPC as set forth herein
shall be accelerated to a date prior to the conversion or termination
of services and calculated as if the services had remained with PFPC
until the expiration of the then current Initial or Renewal Term and
calculated at the asset and/or Shareholder account levels, as the case
may be, on the date notice of termination was given to PFPC.
20. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the Fund, at Xxx
Xxxxxx Xxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxx 00000, Attention: __________ or (c) if
to neither of the foregoing, at
17
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.
21. 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.
22. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or of The
PNC Financial Services Group, Inc., provided that PFPC gives the Fund 30 days
prior written notice of such assignment or delegation.
23. 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.
24. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
25. NAMES. The name "Wilshire Variable Insurance Trust" refers to the trust
created and the trustees, as trustees but not individually or personally, acting
from time to time under a Declaration of Trust dated November 7, 1996, as
amended, which is hereby referred to and a copy of which is on file at the
principal office of the Fund. The trustees, officers, employees and agents of
the Fund shall not personally be bound by or liable under any written
obligation, contract, instrument, certificate or other interest or undertaking
of the Fund made by the trustees
18
or by any officer, employee or agent of the Fund, in his or her capacity as
such, nor shall resort be had to their private property for the satisfaction of
any obligation or claim thereunder. All persons dealing with any series or class
of shares of the Fund may enforce claims against the Fund only against the
assets belonging to such series or class.
26. 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, provided that
the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) No Legal Advice. Notwithstanding any provision hereof, the services of
PFPC are not, nor shall they be, construed as constituting legal advice
or the provision of legal services for or on behalf of the Fund, the
Portfolios or any other person.
(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 PFPC
hereunder without the prior written approval of PFPC, which approval
shall not be unreasonably withheld or delayed.
(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 PFPC may reasonably request in connection with services provided by
PFPC to the Fund.
(f) Governing Law. This Agreement shall be deemed to be a contract made in
Delaware and
19
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) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(i) No Representations or Warranties. Except as expressly provided in this
Agreement, PFPC 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. PFPC disclaims any 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) 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 PFPC's affiliates are financial institutions, and PFPC
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. PFPC may also ask (and may
have
20
already asked) for additional identifying information, and PFPC may
take steps (and may have already taken steps) to verify the
authenticity and accuracy of these data elements.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
WILSHIRE VARIABLE INSURANCE TRUST
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
22
EXHIBIT A
THIS EXHIBIT A, dated as of October 1, 2004, is Exhibit A to that
certain Transfer Agency, Regulatory Administration Services and Fund
Administration Services Agreement dated as of October 1, 2004, between PFPC Inc.
and Wilshire Variable Insurance Trust.
PORTFOLIOS
Equity Fund
Balanced Fund
Income Fund
Short-Term Investment Fund
Small Cap Growth Fund
International Equity Fund
Socially Responsible Fund
23
