FORM OF AUTHORIZED PARTICIPANT AGREEMENT PIMCO ETF Trust PIMCO Equity Series
Exhibit (h)(9)
FORM OF AUTHORIZED PARTICIPANT AGREEMENT
PIMCO ETF Trust
This Authorized Participant Agreement (the “Agreement”) is entered into between PIMCO Investments LLC (the “Distributor”) and (the “Participant”) and is subject to acceptance by State Street Bank and Trust Company (the “Transfer Agent”). The Distributor, the Participant, and the Transfer Agent acknowledge and agree that PIMCO ETF Trust and PIMCO Equity Series (each a “Trust” and collectively, the “Trusts”) and each exchange-traded series thereof (each, a “Fund,” and collectively, the “Funds”) shall each be a third-party beneficiary of this Agreement and shall each receive the benefits contemplated by this Agreement to the extent specified herein. Capitalized terms used but not defined herein are defined in the current prospectus for each Fund (together with the Statement of Additional Information (“SAI”) incorporated therein, the “Prospectus”).
The Distributor acts as principal underwriter of each Trust in connection with the sale and distribution of shares of beneficial interest of each Fund (the “Shares”). The Transfer Agent serves as the transfer agent of the Shares. The Transfer Agent is an Index Receipt Agent, as that term is defined in the rules of the National Securities Clearing Corporation (“NSCC”).
This Agreement is intended to set forth certain premises and the procedures by which the Participant may create and/or redeem Creation Units through the Federal Reserve/Treasury Automated Debt Entry System maintained at the Federal Reserve Bank of New York (the “Federal Reserve Book-Entry System”) and the Continuous Net Settlement (“CNS”) clearing processes of NSCC (as such processes have been enhanced to effect purchases and redemptions of Creation Units, the “CNS Clearing Process”) or, outside of the CNS Clearing Process, the manual process of The Depository Trust Company (“DTC”).
In consideration of the premises and mutual agreements contained herein, the parties hereto agree as follows:
| 1. | STATUS OF PARTICIPANT |
| a. | Clearing Status |
The Participant represents, covenants and warrants that it has the ability to transact through the Federal Reserve Book-Entry System and, with respect to orders for the creation or redemption of Creation Units, (i) through the CNS Clearing Process, because it is a member of NSCC and an authorized participant in the CNS System of NSCC (a “Participating Party”), and/or (ii) outside the CNS Clearing Process, because it is a DTC participant (a “DTC Participant”). The Participant clears through NSCC numbers (CNS) and (DTC).
The Participant may place orders for the creation or redemption of Creation Units either through the CNS Clearing Process or outside the CNS Clearing Process, subject to the
procedures for creation and redemption referred to in Section 2 of this Agreement and the procedures described in Attachment A hereto. Any change in the foregoing status of the Participant shall terminate this Agreement. The Participant shall give prompt notice of any such change to the Distributor, the Transfer Agent, and Pacific Investment Management Company LLC (as the investment adviser of the Trusts, the “Adviser”).
| b. | Broker-Dealer Status |
The Participant represents, covenants and warrants that: (i) it is a broker-dealer registered with the U.S. Securities and Exchange Commission (“SEC”), and it is a member of the Financial Industry Regulatory Authority (“FINRA”), or it is exempt from, or it is otherwise not required to be licensed as, a broker-dealer or a member of FINRA; (ii) it is registered and/or licensed to act as a broker or dealer, as required under all applicable laws, rules and regulations in the states or other jurisdictions in which the Participant conducts its activities, or it is otherwise exempt; and (iii) it is a Qualified Institutional Buyer, as defined in Rule 144A under the U.S. Securities Act of 1933, as amended (the “Securities Act”).
The Participant agrees that it will: (i) maintain such registrations, licenses, qualifications, and memberships in good standing and in full force and effect throughout the term of this Agreement; (ii) conform to the NASD Conduct Rules (or comparable FINRA Conduct Rules, if such NASD Conduct Rules are subsequently renamed, repealed, rescinded, or otherwise replaced by FINRA Conduct Rules) and the securities laws of any jurisdiction in which it sells Shares, directly or indirectly, to the extent such laws, rules and regulations relate to the Participant’s transactions in, and activities with respect to, the Shares; and (iii) not offer or sell Shares of any Fund in any state or jurisdiction where such Shares may not lawfully be offered and/or sold.
For purposes of Rule 13h-1 under the Securities Exchange Act of 1934, the Participant acknowledges that (i) Purchase Orders and Redemption Orders (as defined below) will be cleared by a registered broker-dealer (which may include the Participant if it is a self-clearing broker-dealer) and (ii) the Distributor does not carry an account of behalf of Participant or any of Participant’s customers or effect, directly or indirectly, Purchase Orders or Redemption Orders on behalf of the Participant. The Participant agrees that, if it or any customer for whom it is acting is a “large trader” or “unidentified large trader,” it will be responsible for and will comply fully with the recordkeeping requirements set forth in Rule 13h-1(d) and reporting requirements set forth in Rule 13h-1(e) with respect to all creations and redemptions of Shares by and through it. The Participant further agrees that it will not provide and it is not required to provide the Distributor with the large trader identification number of it or of any customer for whom it is acting.
| c. | Foreign Status |
If the Participant is offering and selling Shares in jurisdictions outside the several states, territories and possessions of the United States, and the Participant is not otherwise required to be registered or qualified as a broker or dealer, or to be a member of FINRA as set forth above, the Participant nevertheless agrees to observe the applicable laws, rules and regulations of the jurisdiction in which such offer and/or sale is made, to comply with the full disclosure requirements of the Securities Act and the regulations promulgated thereunder, and to conduct its
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business in accordance with the NASD Conduct Rules (or comparable FINRA Conduct Rules, if such NASD Conduct Rules are subsequently renamed, repealed, rescinded, or otherwise replaced by FINRA Conduct Rules), to the extent the foregoing relates to the Participant’s transactions in, and activities with respect to, the Shares.
| d. | Distributor Status |
The Participant understands and acknowledges that the method by which Creation Units will be created and traded may raise certain issues under applicable securities laws, rules and regulations. For example, because new Creation Units of Shares may be issued and sold by a Fund on an ongoing basis, a “distribution,” as such term is used in the Securities Act, may occur at any point. The Participant understands and acknowledges that some activities on its part, depending on the circumstances, may result in it being deemed a participant in a distribution in a manner which could render it a statutory underwriter and subject it to the prospectus delivery and liability provisions of the Securities Act. The Participant also understands and acknowledges that dealers who are not “underwriters,” but who effect transactions in Shares, whether or not participating in the distribution of Shares, are generally required to deliver a Prospectus.
| 2. | EXECUTION OF ORDERS |
All orders for the creation or redemption of Creation Units shall be handled in accordance with the terms of the Prospectus, and where applicable, the procedures described in Attachment A to this Agreement. In the event the procedures include the use of recorded telephone lines, the Participant hereby consents to such use. Each Trust reserves the right to issue additional or other procedures relating to the manner of creating or redeeming Creation Units, and the Participant, the Distributor and the Transfer Agent agree to comply with such procedures as may be issued from time to time, upon reasonable notice thereof. In the event of a conflict between the Prospectus and any such procedures, the Prospectus shall control.
With respect to any order for the purchase of Creation Units (“Purchase Order”), each Trust acknowledges and agrees to return to the Participant, or to any party for which it is acting, any dividend, interest, distribution or other corporate action paid to the applicable Trust in respect of any Deposit Securities that are transferred to such Trust that, based on the valuation of such Deposit Securities at the time of transfer, should have been paid to the Participant or any party for which it is acting.
With respect to any order for the redemption of Creation Units (“Redemption Order”), the Participant acknowledges and agrees on behalf of itself and any party for which it is acting (regardless of its capacity) that: (i) the Participant will use its best efforts to return to the applicable Trust any dividend, interest, distribution or other corporate action paid to it or the party for which it is acting in respect of Fund Securities that are transferred to the Participant or any party for which it is acting that, based on the valuation of such Fund Securities at the time of transfer, should have been paid to the Trust, and (ii) each Trust is entitled to reduce the amount of money or other proceeds due to the Participant or any party for which it is acting that, based on the valuation of such Fund Securities at the time of transfer, should be paid to the Trust.
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Solely with respect to orders for the creation or redemption of Creation Units through the CNS Clearing Process, the Participant as a Participating Party hereby authorizes each Trust or a designee thereof to transmit to NSCC on behalf of the Participant such instructions, including Share and cash amounts, as are necessary with respect to the creation and redemption of Creation Units consistent with the instructions issued by the Participant to the Transfer Agent for purchases and redemptions. The Participant agrees to be bound by the terms of such instructions issued by the Transfer Agent on behalf of a Trust and reported to NSCC as though such instructions were issued by the Participant directly to NSCC.
| 3. | DEPOSIT SECURITIES AND/OR RELEVANT CASH AMOUNTS |
Each Fund will make available on a daily basis through the Distributor the names and the required number of Shares of each Deposit Security in a Creation Unit, as well as information regarding the Cash Component, or the Cash Deposit, as applicable. The Participant understands that a Creation Unit will not be issued until the requisite number of Shares of each Deposit Security and the Cash Component, or the Cash Deposit, as applicable, as well as applicable Transaction Fees (as discussed below) are transferred to the applicable Trust on or before the settlement date in accordance with the Prospectus.
| 4. | ROLE OF PARTICIPANT |
| a. | Not Acting as Agent |
The Participant acknowledges and agrees that, for all purposes of this Agreement, the Participant will be deemed to be an independent contractor and shall have no authority in any transaction or in any respect to act as agent of the Trusts, the Distributor, or the Transfer Agent. The Participant agrees to make itself and its employees available, upon request, during normal business hours to consult with the Trusts, the Distributor, the Transfer Agent, or the Participant’s custodian or their designees concerning the performance of the Participant’s responsibilities under this Agreement.
| b. | Obligations as DTC Participant |
The Participant, as a DTC Participant, agrees that it shall be bound by all of the obligations of a DTC Participant in addition to any obligations that it undertakes hereunder or in accordance with the Prospectus.
| c. | Delivery of Shareholder Information |
The Participant agrees that: (i) subject to any privacy obligations or other obligations arising under the federal or state securities laws that the Participant may have to its customers, the Participant will assist the Distributor in ascertaining certain information regarding sales of Shares made by or through the Participant upon the request of a Trust or the Distributor necessary for a Fund to comply with its obligations to distribute information to its shareholders, as may be required from time to time under applicable state or federal securities laws, rules and regulations, or (ii) in lieu thereof, and at the option of the Participant, the Participant may undertake to deliver to its customers proxy materials and annual and other reports of the Funds,
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or other similar information that the Funds are obligated to deliver to their shareholders, upon receiving from the Funds or the Distributor of sufficient quantities of the same to allow mailing thereof to such customers. The Participant will be responsible for providing Prospectuses in connection with sales of Shares in the secondary market, as required by applicable laws, rules and regulations.
| d. | Proprietary Information |
Neither the Distributor nor any of its affiliates shall use the names, addresses and other information concerning the Participant’s customers for any purpose except in connection with the performance of its duties and responsibilities hereunder and except for servicing and informational mailings described in this Section 4, or as may otherwise be permitted by applicable laws, rules and regulations.
| e. | Maintenance of Records |
Each party shall maintain and preserve all records required by law, rule and regulation to be maintained and preserved in connection with the activities contemplated herein. A party hereto may request of another party, and the requested party shall provide as reasonable, copies of all the historical records relating to all sales of Shares made by or through Participant, written communications regarding the Funds to or from Participant’s customers, and other materials reasonably related to all sales of Shares made by or through Participant. In addition, Participant shall provide representatives of Distributor and the Trusts with reasonable access to its personnel and its records to enable them to monitor the quality of services being provided by Participant pursuant to this Agreement and Participant’s compliance with this Agreement and applicable law, rule and regulation. The parties shall cooperate in good faith in providing records to one another.
| f. | Agent for Proxy |
The Participant represents that from time to time, it may be a beneficial owner of Shares (“Beneficial Owner”). To the extent that it is a Beneficial Owner, the Participant agrees to irrevocably appoint the Distributor as its attorney and proxy with full authorization and power to vote (or abstain from voting) its beneficially owned Shares. The Distributor intends to vote (or abstain from voting) the Participant’s beneficially owned Shares in the same proportion as the votes (or abstentions) of all other shareholders of the corresponding Fund on any matter submitted to a vote of the shareholders of such Fund. The Distributor, as attorney and proxy for the Participant hereunder: (i) is hereby given full power of substitution and revocation; (ii) may act through such agents, nominees, or attorneys as it may appoint from time to time; and (iii) may provide voting instructions to such agents, nominees, or substitute attorneys. The Distributor may terminate this irrevocable proxy within sixty (60) days written notice to the Participant.
| g. | Privacy |
The Participant affirms that it has, and will continue to have throughout the term of this Agreement, procedures in place that are reasonably designed to protect the privacy of non-public
personal consumer/customer information to the extent required by applicable laws, rules and regulations.
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| h. | Anti-Money Laundering |
The Participant represents and warrants that it has implemented, and agrees to maintain an anti-money laundering program reasonably designed to comply with all applicable anti-money laundering laws and regulations, including but not limited to the Bank Secrecy Act of 1970 and the USA PATRIOT Act of 2001 (the “USA PATRIOT Act”), each as amended from time to time, and any rules adopted thereunder and/or any applicable anti-money laundering laws and regulations of other jurisdictions where Participant conducts business, and any rules adopted thereunder or guidelines issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”). Participant further represents and warrants that its anti-money laundering program includes written policies, a designated Compliance Officer, ongoing training for employees, procedures for detecting and reporting suspicious transactions, and an independent audit to test the implementation of the program.
| i. | Sanctions |
The Participant represents and warrants that it has policies, procedures and internal controls in place which are reasonably designed so that neither it, nor any of its subsidiaries, nor any officer, director, or employee of it or its subsidiaries is an individual or entity (“Person”) that is, or is controlled by a Person that is (i) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”); or (ii) located, organized or resident in a country or territory that is the subject of Sanctions. Further, the Participant will continue to undertake appropriate due diligence to ensure that neither the Participant nor any Person is subject to Sanctions. Participant further represents that the foregoing policy prohibits the Participant and its officers, directors, employees and other representatives from soliciting or focusing its marketing effort directly or indirectly to any Person who is subject to Sanctions. The Participant acknowledges its ongoing and continuing obligations to comply with the applicable Sanctions. The Participant will provide reasonable assistance to the other parties hereto in connection with their respective obligations under the applicable Sanctions.
| j. | Anti-Corruption |
The Participant represents, warrants, and covenants that (i) its officers, directors, employees, agents and other representatives (together with the Participant, each a “Relevant Person”) are subject to written policies and procedures relating to anti-bribery and anti-corruption, and shall not commit, authorize or permit any action that would cause any Relevant Person to be in violation of any applicable anti-bribery and corruption laws (such as the U.S. Foreign Corrupt Practices Act and/or the UK Bribery Act, in each case, if applicable); (ii) in connection with any services provided in connection with this Agreement, the Relevant Persons have not taken nor will they take any actions in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving anything of value to, nor have the Relevant Persons
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received, nor will they receive, any payment or anything of value from, any person (whether directly or indirectly) while knowing that all or some portion of the money or value will be offered, given, promised or received by anyone improperly to influence official action, improperly to obtain or retain business or otherwise secure an illegal advantage; and (iii) it shall create and maintain accurate books and financial records in connection with the services performed under this Agreement. The Participant shall promptly notify the other parties hereto if a Relevant Person becomes aware of any breach of this provision, and the other parties may terminate this Agreement with immediate effect in the event of such breach by any Relevant Person.
| 5. | PARTICIPANT REPRESENTATIONS |
| a. | Representations Concerning a Fund |
The Participant represents, warrants and agrees that it will not make any representations concerning a Fund, Creation Units or Shares, other than those consistent with the Prospectus or any promotional or sales literature furnished to the Participant by a Trust or the Distributor, or any such materials permitted by clause (b) of this Section.
| b. | Marketing Materials |
The Participant represents, warrants and agrees that, in connection with any sale or solicitation of a sale of Shares, it will only make representations concerning the Shares that are consistent with the then-current Prospectus or any promotional materials or sales literature furnished to the Participant by the Distributor or a Trust.
The Participant agrees not to furnish, or cause to be furnished by it or its employees, to any person, or to display or publish, any information or materials relating to a Fund or the Shares (including, without limitation, promotional materials and sales literature, advertisements, press releases, announcements, statements, posters, signs or other similar materials, but not including any materials that are prepared and used for the Participant’s internal use only, or brokerage communications that are prepared by the Participant in the normal course of its business, consistent with the Prospectus, and in accordance with applicable laws, rules and regulations) (“Marketing Materials”), unless such Marketing Materials: (i) are either furnished to the Participant by a Trust or the Distributor, or are otherwise consistent with the Prospectus, have been approved by the Distributor in writing prior to use, and clearly indicate that such Marketing Materials are prepared and distributed by the Participant, and (ii) comply with applicable NASD Conduct Rules (or comparable FINRA Conduct Rules, if such NASD Conduct Rules are subsequently renamed, repealed, rescinded, or otherwise replaced by FINRA Conduct Rules). The Participant shall file all such Marketing Materials that it prepares with FINRA, as required by applicable laws, rules or regulations.
| c. | Advertisements Describing Purchase/Sale of Creation Units |
The Participant understands that: (i) neither the Trusts nor any Fund may be advertised or marketed as an “open-end investment company” or a “mutual fund,” (ii) all Marketing Materials
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will prominently disclose that the Shares are not individually redeemable, and (iii) the Prospectus and all Marketing Materials that address redemptions of Shares will prominently disclose that Shares are not individually redeemable and that the owners of Shares may acquire Shares and tender Shares for redemption to the applicable Trust in Creation Unit aggregations only.
| d. | Preparation and Circulation of Research Reports |
Notwithstanding anything to the contrary in this Agreement, the Participant and its affiliates may prepare and circulate in the regular course of their businesses research, reports and other similar materials that include information, opinions or recommendations relating to the Shares, provided that, such materials comply with applicable NASD Conduct Rules (or comparable FINRA Conduct Rules, if such NASD Conduct Rules are subsequently renamed, repealed, rescinded, or are otherwise replaced by FINRA Conduct Rules) and other applicable laws, rules and regulations.
| 6. | SUB-CUSTODIAN ACCOUNT |
The Participant understands and agrees that, in the case of each Fund that invests in international securities (each, a “Global Fund”), the applicable Trust has caused State Street Bank and Trust Company, acting in its capacity as the Trust’s custodian (“Custodian”), to maintain with the applicable sub-custodian (“Sub-custodian”) for such Fund, an account in the relevant foreign jurisdiction, to which the Participant shall deliver or cause to be delivered, in connection with the purchase of a Creation Unit, on behalf of itself or any party for which it is acting (whether or not a customer), the securities not subject to settlement in the United States, with any appropriate adjustments as advised by such Fund, in accordance with the terms and conditions applicable to such account in such jurisdiction.
| 7. | TITLE TO SECURITIES – RESTRICTED SECURITIES |
The Participant represents on behalf of itself and any party for which it acts that Deposit Securities delivered to the Custodian and/or any relevant Sub-Custodian in connection with a Fund Deposit will not be “restricted securities,” as such term is used in Rule 144(a)(3)(i) of the Securities Act, and at the time of delivery to the Custodian and/or any relevant Sub-Custodian in accordance with the terms of the Prospectus, will provide good and unencumbered title to such Deposit Securities to the applicable Trust and be free and clear of all liens, restrictions, charges and encumbrances, and will not be subject to any adverse claims, including without limitation, any restriction upon the sale or transfer of such securities imposed by (i) any agreement or arrangement entered into by the Participant or any party for which it is acting in connection with a transaction to purchase Shares, or (ii) any provision of the Securities Act and regulations thereunder (except that portfolio securities of issuers other than U.S. issuers shall not be required to have been registered under the Securities Act if exempt from such registration) or of the applicable securities laws, rules or regulations of any other applicable jurisdiction.
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| 8. | PAYMENT OF CERTAIN FEES AND TAXES |
| a. | Transaction Fees |
In connection with the creation or redemption of Creation Units, the Participant agrees to pay the Transaction Fee, if any, prescribed in the Prospectus applicable to creations or redemptions. Transaction Fees, which may be waived or otherwise adjusted from time to time, will differ for each Fund, depending on the transaction expenses related to each Fund’s portfolio instruments. The Participant will receive a Prospectus that contains complete disclosure about Transaction Fees, including the maximum amount of the Transaction Fee charged by a Fund. The method of calculating the Transaction Fees will be fully disclosed in the SAI. Variations in the Transaction Fee may be imposed in the sole discretion of the applicable Trust from time to time, as disclosed in the Prospectus, and the method of determining such variations will be disclosed in the SAI.
| b. | Tax Liability |
To the extent any payment of any transfer tax, sales or use tax, stamp tax, recording tax, value added tax or any other similar tax or government charge applicable to the creation or redemption of any Creation Unit of Shares of any Fund made pursuant to this Agreement is imposed, the Participant shall be responsible for the payment of such tax or government charge regardless of whether or not such tax or charge is imposed directly on the Participant. To the extent a Trust, the Distributor or their agents are required by law to pay any such tax or charge, the Participant agrees to promptly indemnify such party for any such payment, together with any applicable penalties, additions to tax or interest thereon.
| 9. | AUTHORIZED PERSONS |
| a. | Certification |
Concurrently with the execution of this Agreement, the Participant shall deliver to the Distributor, the Adviser, the Transfer Agent, and the Trusts a certificate in a form attached as Attachment B-1 to this Agreement, duly certified as appropriate by its secretary or other duly authorized person that sets forth the names, signatures, email addresses, and telephone and facsimile numbers of all persons authorized to give instructions relating to the activities contemplated hereby or any other notice, request or instruction on behalf of the Participant (each, an “Authorized Person”). Such certificate may be accepted and relied upon by the Distributor, the Transfer Agent and the Trusts as conclusive evidence of the facts set forth therein and shall be considered to be in full force and effect until receipt by the Distributor, the Transfer Agent and the Trusts of a superseding or amended certificate or if earlier, until termination of this Agreement. After such certificate is accepted by the Distributor, the Transfer Agent and the Trusts, the Participant may authorize additional Authorized Persons to give instructions relating to any activity contemplated hereby or any other notice, request or instruction on behalf of the Participant by delivering to the Distributor, the Transfer Agent, and the Trusts an addendum to the certificate described above in a form attached as Attachment B-2 to this Agreement.
| b. | PIN Numbers |
The Distributor shall issue to each Authorized Person a unique personal identification number (“PIN Number”) by which such Authorized Person and the Participant shall be identified
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and instructions issued by the Participant hereunder shall be authenticated. The PIN Number shall be kept confidential and provided to Authorized Persons and the Transfer Agent only. If for some reason, an Authorized Person’s PIN Number is compromised, the Participant or such Authorized Person shall contact the Distributor immediately in order for a new PIN Number to be issued.
The Participant may revoke the PIN Number at any time upon written notice to the Distributor, the Transfer Agent and the Trusts. Upon receipt of such written request, the Distributor shall promptly deactivate the PIN Number. If a Participant’s PIN Number is changed, the new PIN Number will become effective on a date and time mutually agreed upon by the Participant, the Distributor, the Transfer Agent and the Trusts. The Distributor will promptly provide the Transfer Agent with all newly issued PIN Numbers and promptly notify the Transfer Agent of any changes to PIN Numbers, including deactivation of any PIN Number.
| c. | Termination of Authority |
Upon the termination or revocation of authority of an Authorized Person by the Participant, the Participant shall give prompt written notice of such fact to the Distributor and the Adviser, and such notice shall be effective upon receipt by the Distributor and the Adviser. The Distributor shall promptly deactivate the PIN Number of such Authorized Person upon receipt of the written notice and promptly notify the Transfer Agent of deactivation of any PIN Number.
| d. | Verification |
The Distributor and Transfer Agent shall not verify that an Order is being placed by an Authorized Person. The Distributor and Transfer Agent shall be entitled to assume that all instructions issued to it using the Participant’s PIN Number have been properly placed by Authorized Persons, unless the Distributor or Transfer Agent, as the case may be, has actual knowledge to the contrary or the Participant has properly revoked such PIN Number as provided herein.
| e. | Limitation of Liability |
The Participant agrees that the Distributor, the Transfer Agent and the Trusts shall not be liable, absent fraud, bad faith, gross negligence, or reckless or willful misconduct by the Distributor, the Transfer Agent or the applicable Trust, for losses incurred by the Participant as a result of unauthorized use of the Participant’s PIN Number.
| 10. | REDEMPTION |
The Participant represents and warrants that it will not obtain an Order Number (as described in Attachment A) for the purpose of redeeming a Creation Unit unless it first ascertains that (a) it or its customer, as the case may be, owns outright or has full legal authority and legal beneficial right to tender for redemption the requisite number of Shares to be redeemed and receive the entire proceeds of the redemption, and (b) such Shares have not been loaned or pledged to another party nor are they the subject of a repurchase agreement, securities lending agreement or such other arrangement which would preclude the delivery of such Shares in
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accordance with the Prospectus and on a “regular way” basis, or as otherwise required by the applicable Trust. The Participant understands that Shares of any Fund may be redeemed only when one or more Creation Units of Shares of a Beneficial Owner are held in the account of a single Participant.
| 11. | BENEFICIAL OWNERSHIP |
The Participant represents and warrants to the Distributor, the Transfer Agent and the Trusts that (based upon the number of outstanding Shares of each Fund made publicly available by the applicable Trust) either (i) it does not hold, and will not as a result of the contemplated transaction hold, for its account or the account of any Beneficial Owner, eighty percent (80%) or more of the outstanding Shares of the relevant Fund, or (ii) if it does hold for its account or the account of any Beneficial Owner, eighty percent (80%) or more of the outstanding Shares of the relevant Fund, that such a circumstance would not result in the Fund acquiring a basis in the portfolio securities deposited with the Fund with respect to an order to create Shares in such Fund different from the fair market value of such portfolio securities on the date of such order. Such representation and warranty shall be deemed repeated with respect to each order for one or more Creation Units of Shares of any Fund. The Participant understands and agrees that the order form relating to any order for one or more Creation Units of Shares of any Fund shall state substantially the same foregoing representations and warranties. In making the above representation and warranty with respect to the holdings of Shares by Beneficial Owners other than the Participant or its affiliates, the Participant may rely upon the representations and warranties provided by such Beneficial Owners to the Participant regarding their holdings of Shares of the relevant Fund.
The Distributor or the Transfer Agent may request information from the Participant regarding Share ownership, which the Participant must furnish within a reasonable period of time after such request is made, and may rely on such information to the extent necessary to make a determination regarding ownership of eighty percent (80%) or more of the outstanding Shares by a Beneficial Owner as a condition to the acceptance of a Fund Deposit.
| 12. | INDEMNIFICATION |
The Participant hereby agrees to indemnify and hold harmless the Distributor in its capacity as principal underwriter, the Trusts, the Transfer Agent, their respective affiliates, directors, partners, members, officers, employees and agents, and each person, if any, who controls such persons within the meaning of Section 15 of the Securities Act (each, a “Participant Indemnified Party”) from and against any loss, liability, cost and expense (including reasonable attorneys’ fees) incurred by such Participant Indemnified Party as a result of: (i) any breach by the Participant of any provision of this Agreement that relates to the Participant; (ii) any failure on the part of the Participant to perform any of its obligations set forth in this Agreement; (iii) any failure by the Participant to comply with applicable laws, rules and regulations, including rules and regulations of self-regulatory organizations (“SROs”) in relation to its role as Participant; (iv) actions of such Participant Indemnified Party in reliance upon any instructions issued or representations made in accordance with Attachment A (as amended from time to time) and reasonably believed by the Distributor or the Transfer Agent, as applicable, to be genuine and to have been given by the Participant or (v)(1) any representation by the Participant, its
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employees or its agents or other representatives about the Shares, any Participant Indemnified Party or a Trust that is not consistent with the applicable Trust’s then-current Prospectus made in connection with the offer or the solicitation of an offer to buy or sell Shares and (2) any untrue statement or alleged untrue statement of a material fact contained in any of Participant’s research reports, marketing material or sales literature described in Section 5 hereof or any alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading to the extent that such statement or omission relates to the Shares or any Participant Indemnified Party unless, in either case, such representation, statement or omission was made or included by the Participant at the written direction of a Trust or the Distributor or is based upon any omission or alleged omission by a Trust or the Distributor to state a material fact in connection with such representation, statement or omission necessary to make such representation, statement or omission not misleading.
The foregoing shall not apply to any loss, damage, charge, liability, cost, expense, cause of action, obligation, judgment or fee incurred by a Participant Indemnified Party arising out of such Participant Indemnified Party’s fraud, bad faith, gross negligence, or reckless or willful misconduct. With respect to (i) through (iii) and (v) above, the Participant Indemnified Party’s failure to promptly acknowledge the Participant’s breach of, or failure to perform or comply with, the terms of this Agreement shall not negate the foregoing indemnification.
This Section 12 shall survive the termination of this Agreement.
| 13. | LIMITATION OF LIABILITY |
| a. | Express Duties |
The Distributor and the Transfer Agent undertake to perform such duties and only such duties as are expressly set forth herein, or expressly incorporated herein by reference, and no implied covenants or obligations shall be read into this Agreement against the Distributor or the Transfer Agent.
| b. | Limited Liability |
In the absence of fraud, bad faith, gross negligence, or reckless or willful misconduct on its part, neither the Distributor, nor the Transfer Agent, whether acting directly or through agents or attorneys, shall be liable for any action taken, suffered or omitted or for any error of judgment made by any of them in the performance of their duties hereunder. Neither the Distributor nor the Transfer Agent shall be liable for any error of judgment made in good faith unless the party exercising such shall have been grossly negligent in ascertaining the pertinent facts necessary to make such judgment. In no event shall the Distributor or the Transfer Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profit), even if such parties have been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall the Distributor or the Transfer Agent be liable for the acts or omissions of DTC, NSCC or any other securities depository or clearing corporation.
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| c. | Force Majeure |
Neither the Distributor, the Transfer Agent, nor the Participant shall be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation: acts of God; earthquakes; fires; floods; wars; civil or military disturbances; terrorism; sabotage; epidemics; riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions.
| d. | Reliance on Instructions |
The Distributor, the Transfer Agent, the Participant, and the Trusts may conclusively rely upon, and shall be fully protected in acting or refraining from acting upon, any communication authorized hereby and upon any written or oral instruction, notice, request, direction or consent reasonably believed by each of them to be genuine.
| e. | Data Errors and Communication Delays |
Neither the Distributor, the Transfer Agent, nor the Participant shall be liable to any other party to this Agreement for any damages arising out of mistakes or errors in data provided to the Distributor, the Transfer Agent, or the Participant by a third party, or out of interruptions or delays of electronic means of communications with the Distributor, the Transfer Agent, or the Participant.
| f. | No Advancement by Transfer Agent |
The Transfer Agent shall not be required to advance, expend or risk its own funds or otherwise incur or become exposed to financial liability in the performance of its duties hereunder, except as may be required as a result of its own fraud, bad faith, gross negligence, or reckless or willful misconduct.
| 14. | TRUSTS AS THIRD-PARTY BENEFICIARY |
The Participant, the Distributor, and the Transfer Agent understand and agree that each Trust, as a third-party beneficiary to this Agreement, is entitled and intends to proceed directly against the Participant in the event the Participant fails to honor any of its obligations pursuant to this Agreement that benefit the applicable Trust. The Participant agrees to cooperate with the Trusts, Transfer Agent, and the Distributor if a request for information or records is made to the Participant.
| 15. | ACKNOWLEDGMENT |
The Participant acknowledges receipt of the Prospectus and represents it has reviewed the Prospectus and understands the terms thereof, and further acknowledges that the procedures contained therein pertaining to the creation and redemption of Shares are incorporated herein by reference.
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| 16. | NOTICES |
Except as otherwise specifically provided in this Agreement, all notices required or permitted to be given pursuant to this Agreement shall be given in writing and delivered by personal delivery, traceable overnight mail (e.g., Federal Express) or by postage prepaid registered or certified U.S. First Class mail, return receipt requested, or by facsimile or similar means of same day delivery (with a confirming copy by mail as provided herein). Unless otherwise notified in writing, all notices shall be given or sent as follows:
| To the DISTRIBUTOR: |
PIMCO Investments LLC Attn: Chief Legal Officer 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, XX 00000 | |||
|
Telephone: |
(000) 000-0000 | |||
| Facsimile: | (000) 000-0000 | |||
|
With a copy to the Adviser: | ||||
|
Pacific Investment Management Company LLC Attn: Legal Department 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 | ||||
|
Telephone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 | ||||
|
To the PARTICIPANT: |
[Name of Participant] [Participant Street Address] [Participant City, State and Zip Code] | |||
|
Telephone: |
[( ) - ] | |||
| Facsimile: | [( ) - ] | |||
|
To the TRANSFER AGENT: |
State Street Bank and Trust Company Attn: ETF Matters X.X. Xxx 0000 Xxxxxx, XX 00000-0000 | |||
|
With a copy to: | ||||
|
State Street Bank and Trust Company Attn: Xxxxxx XxXxxxxx, Transfer Agent VP 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxxx, XX 00000 | ||||
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| Telephone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 | ||||
|
To the Trusts: |
PIMCO ETF Trust Attn: Legal Department 000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000 | |||
| Telephone: | (000) 000-0000 | |||
| Facsimile: | (000) 000-0000 | |||
| 17. | ENTIRE AGREEMENT |
This Agreement and Attachment A hereto, which is hereby incorporated herein by reference, supersede any prior agreement between the parties with respect to the subject matter contained herein and constitute the entire agreement between the parties regarding the matters contained herein. Additional or other procedures relating to the manner of creating or redeeming Creation Units, when issued by a Trust and provided pursuant to the notice provisions hereof, shall become part of this Agreement.
| 18. | INTERPRETATION |
Titles and section headings are included solely for convenient reference and are not a part of this Agreement.
| 19. | AMENDMENT |
This Agreement, Attachment A hereto, and any additional or other procedures relating to the manner of creating or redeeming Creation Units issued by a Trust and provided pursuant to the notice provisions hereof may be amended or modified: (i) by a written document signed by an authorized representative of each party; or (ii) by the Trusts or the Distributor from time to time without the consent of any Participant or Beneficial Owner by the following procedure: the Trusts or the Distributor will mail a copy of the amendment to the Participant and the Trusts or Distributor, as applicable, and the Transfer Agent. If neither the Participant nor the other party objects in writing to the amendment within ten (10) days after its receipt, the amendment will become part of this Agreement in accordance with its terms.
| 20. | TERMINATION |
This Agreement may be terminated at any time by any party upon thirty (30) days prior written notice to the other parties unless: (i) earlier terminated by the Trusts, Transfer Agent or the Distributor in the event of a breach by the Participant of this Agreement or the procedures described or incorporated herein; or (ii) solely with respect to a particular Trust as party in the
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event that the Trust is terminated pursuant to its Trust Agreement. This Agreement shall terminate automatically upon Participant violating any anti-bribery and corruption laws or engaging in any other unlawful conduct referenced in Sections 4.h. – 4.j.
| 21. | PROSPECTUS AND REPRESENTATIONS |
The Distributor will provide to the Participant copies of the Prospectus and any printed supplemental information in reasonable quantities upon request. The Participant consents to the delivery of Prospectuses electronically. The Participant understands that current Prospectuses and all required reports for each applicable Fund are available at the Funds’ website at xxx.xxxxxxxxx.xxx. The Participant can revoke this consent to delivering Prospectuses electronically at any time by calling 0-000-000-0000. The Participant agrees to maintain a valid email address, and agrees to promptly notify the Distributor if its email address changes. The Participant shall, upon request of a Trust, provide the Trust with sufficient documentation and other evidence that the Participant is providing Prospectuses to the purchasers of any Shares. The Distributor represents, warrants and agrees that it will notify the Participant when a revised, supplemented or amended Prospectus for any Shares is available and deliver or otherwise make available to the Participant copies of such revised, supplemented or amended Prospectus at such time and in such numbers as to enable the Participant to comply with any obligation it may have to deliver such Prospectus to customers. As a general matter, the Distributor will make such revised, supplemented or amended Prospectuses available to the Participant no later than its effective date. The Distributor shall be deemed to have complied with this Section when the Participant has received such revised, supplemented or amended Prospectus by email at @ .com. Participant shall not circulate or furnish to any investor any Prospectuses that have been withdrawn or supplemented, except in the latter case with the appropriate supplements.
| 22. | COUNTERPARTS |
This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all shall constitute but one and the same instrument.
| 23. | GOVERNING LAW; FINRA ARBITRATION |
This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws provisions thereof. The parties irrevocably submit to the personal jurisdiction and service and venue of any New York State or United States Federal court sitting in New York, New York having subject matter jurisdiction, for the purposes of any suit, action or proceeding arising out of or relating to this Agreement. If a dispute arises between parties hereto that are members of FINRA, and such parties are unable to resolve the dispute between themselves, it shall be settled by arbitration to the extent required by and in accordance with the then existing FINRA Code of Arbitration Procedure.
| 24. | BUSINESS CONTINUITY |
The Participant shall establish, implement and maintain an adequate business continuity policy aimed at ensuring, in the case of an interruption to its systems and procedures, the
16
preservation of essential data and functions, and the maintenance of services and activities, or, where that is not possible, the timely recovery of such data and functions and the timely resumption of its services and activities. The Participant shall maintain a log of all business continuity events. In the event that a material business continuity event occurs, the Participant shall advise the Distributor promptly of such event and the steps proposed in order to minimize any interruption to its services hereunder.
| 25. | ASSIGNMENT |
No party may assign its rights or obligations under this Agreement (in whole or in part) without the prior written consent of the other parties, which shall not be unreasonably withheld; provided that, any party may assign its rights and obligations hereunder (in whole, but not in part) without such consent to an entity acquiring all, or substantially all of its assets or business or to an affiliate. The party resulting from any such merger, conversion, consolidation or succession shall notify the other parties hereto of the change. Notwithstanding the aforementioned termination provisions, in the event that an entity acquires all or substantially all of the Participant’s assets or business, the Distributor or Transfer Agent may elect within a limited period of time not to exceed thirty (30) days from the date upon which such acquisition was publicly announced to immediately terminate this Agreement.
| 26. | SEVERANCE |
If any provision of this Agreement is held by any court or any act, regulation, rule or decision of any other governmental or supranational body or authority or regulatory or self-regulatory organization to be invalid, illegal or unenforceable for any reason, it shall be invalid, illegal or unenforceable only to the extent so held and shall not affect the validity, legality or enforceability of the other provisions of this Agreement so long as this Agreement, as so modified, continues to express, without material change, the original intentions of the parties as to the subject matter of this Agreement and the deletion of such portion of this Agreement will not substantially impair the respective benefits, obligations, or expectations of the parties to this Agreement.
[The remainder of this page is intentionally left blank]
IN WITNESS WHEREOF, the duly authorized representatives of the below parties hereto have executed this Agreement, the effective date of which shall be date of the last dated signature below.
| PIMCO INVESTMENTS LLC, AS DISTRIBUTOR: | ||||
| By: |
| |||
| Name: |
| |||
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|
| ||||
| Title: |
| |||
| Address: | 0000 Xxxxxxxx, 00xx Xxxxx | |||
| Xxx Xxxx, XX 00000 | ||||
| Telephone: | (000) 000-0000 | |||
| Facsimile: | (000) 000-0000 | |||
| Date: | ||||
| [Name of Participant], AS PARTICIPANT: | ||||
| By: |
| |||
| Name: |
| |||
| Title: |
| |||
| Address: |
[Participant Street Address] | |||
| [Participant City, State and Zip Code] | ||||
| Telephone: |
[( ) - ] | |||
| Facsimile: |
[( ) - ] | |||
| Tax ID No. |
||||
| Date: |
||||
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Accepted by:
| STATE STREET BANK AND TRUST COMPANY, AS TRANSFER AGENT: | ||||
| By: |
| |||
| Name: |
| |||
| Title: |
| |||
| Address: | 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx | |||
| Xxxxxx, XX 00000 | ||||
| Telephone: | (000) 000-0000 | |||
| Facsimile: | (000) 000-0000 | |||
| Date: | ||||
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ATTACHMENT A
This attachment to the Authorized Participant Agreement supplements the Prospectus with respect to the procedures to be used by (i) the Transfer Agent and Distributor in processing a Purchase Order for the purchase of Shares, (ii) the Transfer Agent in processing a Redemption Order for the redemption of Shares, and (iii) the Participant, Transfer Agent, Distributor or their agents in delivering or arranging for the delivery of requisite cash payments, Fund Deposits or Shares, as the case may be, in connection with the submission of Purchase Orders or Redemption Orders.
A Participant may, under certain circumstances, submit a non-standard order. In order to submit a non-standard order, the Participant must follow the additional procedures described in Appendix 1 of this Attachment A.
A Participant is first required to have signed the Authorized Participant Agreement. Upon acceptance of the Authorized Participant Agreement by the Distributor and the Transfer Agent, the Distributor will assign a PIN Number to each Authorized Person authorized to act for the Participant. This will allow a Participant through its Authorized Person(s) to place a Purchase Order or Redemption Order with respect to the purchase or redemption of Creation Units of Shares.
| A. | TO PLACE A PURCHASE ORDER |
| 1. | PLACEMENT OF A PURCHASE ORDER |
Purchase Orders for Creation Units may be initiated only on days when the NYSE is open for trading (“Transmittal Days”), which excludes the following holidays: New Year’s Day, Xxxxxx Xxxxxx Xxxx, Xx. Day, Washington’s Birthday (popularly known as “President’s Day”), Good Friday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day (each, a “Holiday”).
Purchase Orders may only be made in whole Creation Units. All Purchase Orders shall be made in accordance with the terms and procedures set forth in the Prospectus. Each party hereto agrees to comply with the provisions of the Prospectus to the extent applicable to it. Each Trust reserves the right to issue procedures relating to the manner of purchasing or redeeming Creation Units, and the Participant, the Distributor and the Transfer Agent agree to comply with such procedures as may be issued from time to time upon reasonable notice thereof.
To initiate a Purchase Order, an Authorized Person of the Participant must call the Transfer Agent at (000) 000-0000 not later than the closing time of the regular trading session of the NYSE (ordinarily 4:00 p.m., U.S. Eastern time) on a Transmittal Day as set forth in the applicable Fund’s order form, which is incorporated into and made part of this Agreement, or such earlier time as designated by such Fund (the “Order Cut-Off Time”); provided that, when the NYSE closes early on a Transmittal Day prior to a Holiday, or for any other reason, the Order Cut-Off Time shall be the earlier NYSE close on such Transmittal Day.
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Upon verifying the authenticity of the Authorized Person (as determined by the use of the appropriate PIN Number) and the terms of the Purchase Order, the Transfer Agent will issue a unique Order Number. An Order Number is only valid for a limited time. The Purchase Order must be sent by facsimile in the form provided by the Fund or its agents (which may include various Participant representations) to the Fund representative within 20 minutes of the issuance of the Order Number. In the event that the Purchase Order is not received within such time period, the Transfer Agent will attempt to contact the Participant to request immediate transmission of the Purchase Order. Unless the Purchase Order is received by the Fund representative upon the earlier of (i) within 15 minutes of contact with the Participant or (ii) 45 minutes after the Order Cut-Off Time, the order will be deemed invalid.
NOTE: A PURCHASE ORDER REQUEST IS NOT COMPLETE UNTIL THE TRANSFER AGENT ISSUES AN ORDER NUMBER. AN ORDER MAY NOT BE CANCELED BY AN AUTHORIZED PERSON AFTER AN ORDER NUMBER HAS BEEN ISSUED. INCOMING TELEPHONE CALLS ARE QUEUED AND WILL BE HANDLED IN THE ORDER RECEIVED. A CALL THAT IS PLACED BEFORE THE ORDER CUT-OFF TIME WILL BE PROCESSED EVEN IF THE CALL IS ANSWERED BY THE TRANSFER AGENT AFTER THE ORDER CUT-OFF TIME. ACCORDINGLY, THE AUTHORIZED PERSON SHOULD NOT HANG UP AND REDIAL. INCOMING CALLS THAT ARE RECEIVED AFTER THE ORDER CUT-OFF TIME WILL NOT BE ANSWERED BY THE TRANSFER AGENT. ALL TELEPHONE CALLS MAY BE RECORDED BY THE TRANSFER AGENT.
THE TELEPHONE CALL IN WHICH THE ORDER NUMBER IS ISSUED INITIATES THE ORDER PROCESS BUT DOES NOT ALONE CONSTITUTE THE PURCHASE ORDER. A PURCHASE ORDER IS ONLY COMPLETED AND PROCESSED UPON RECEIPT OF WRITTEN INSTRUCTIONS CONTAINING THE DESIGNATED ORDER NUMBER AND AUTHORIZED PERSON’S SIGNATURE AND TRANSMITTED BY FACSIMILE.
| 2. | RECEIPT OF TRADE CONFIRMATION |
The Transfer Agent will fax a copy of any accepted Purchase Order to the Participant within approximately 45 minutes of its receipt as confirmation of such Purchase Order. In the event the Participant does not receive a Purchase Order confirmation, it should contact the Transfer Agent at the business number indicated.
| 3. | AMBIGUOUS INSTRUCTIONS |
In the event that the written Purchase Order contains terms that differ from the information provided in the telephone call at the time of issuance of the Order Number, a representative of the Fund will attempt to contact the Participant to request confirmation of the terms of the Purchase Order. If an Authorized Person is able to confirm the terms as they appear in the written Purchase Order by the Order Cut-Off Time, the Purchase Order will continue for processing. If an Authorized Person contradicts its terms, the Purchase Order will be deemed invalid and a corrected written Purchase Order must be received by the telephone representative by the Order Cut-Off Time.
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In the event that a written Purchase Order contains terms that are illegible, as determined in the sole discretion of the Distributor or Transfer Agent, the written Purchase Order will be deemed invalid and the Fund representative will attempt to contact the Participant to request transmission of a legible written Purchase Order. If the Fund representative does not receive a legible written Purchase Order by the Order Cut-Off Time, the Purchase Order will be deemed invalid. If the Fund representative is not able to contact an Authorized Person, the Purchase Order will be deemed invalid.
| 4. | PROCESSING A PURCHASE ORDER |
A Purchase Order shall be deemed to be received on the Transmittal Day on which the order is placed; provided that: (i) the order is placed in proper form prior to the Order Cut-Off Time on such date; (ii) federal funds in the appropriate amount are deposited with the Fund’s custodian on the next following business day prior to 10:00 a.m. U.S. Eastern time for Fund Deposits consisting of cash (“Cash Settlement Time”); and (iii) the requisite number of Deposit Securities is delivered to the account of the applicable Fund by 1:00 p.m. U.S. Eastern time on the Settlement Date for Fund Deposits consisting of securities. Any Purchase Order that is not placed in the manner described above may be deemed to be rejected and the Participant shall be liable to the applicable Trust for losses, if any, resulting therefrom.
The Adviser may, prior to the receipt of federal funds in the appropriate amount on the applicable Cash Settlement Time for Fund Deposits consisting of cash, begin to trade for a Fund with respect to which the Participant has placed a Purchase Order. The Participant agrees that, if the Adviser makes investments for such a Fund prior to receiving confirmation that such federal funds have been received, the Participant will indemnify and hold the Adviser, the Distributor, the Fund, the applicable Trust and their agents harmless for any loss suffered by any or all of them due to the failure or delay in depositing such federal funds with the Fund’s custodian prior to the Cash Settlement Time. For purposes of clarity, a loss suffered by such a Fund includes not only actual losses suffered by the Fund, but also any adverse effect on the Fund’s performance directly attributable to the failure or delay in depositing such federal funds in the appropriate amount prior to the applicable Cash Settlement Time.
The Transfer Agent, Distributor and the applicable Trust each reserve the right to reject any Order in the event that its acceptance would appear to result in the Participant or a Beneficial Owner owning eighty percent (80%) or more of all outstanding Shares of a given Fund. In such event, the Distributor will ask the Authorized Person to re-confirm the representation that the Participant or a Beneficial Owner will not own 80% or more of the Shares of any Fund upon execution of the Purchase Order. If the Authorized Person is able to so confirm, either verbally or in writing in the sole discretion of the Distributor, the Distributor will transmit the Purchase Order to the relevant Fund. If the Authorized Person is not able to confirm that the Participant or a Beneficial Owner will not own 80% or more of the Shares of any Fund upon execution of the Purchase Order, the Distributor has the right to reject the Purchase Order. Purchase Orders may also be rejected under the circumstances described in Section 5 of this Attachment A.
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After a Fund has accepted a Purchase Order and received delivery of the all-cash payment (or Deposit Securities, as applicable and any accompanying cash payment), DTC will instruct the Fund to initiate “delivery” of the appropriate number of Shares to the book-entry account specified by the Participant. The Distributor will furnish a Prospectus and a confirmation to the Participant.
A Creation Unit will not be issued until the transfer of the all-cash payment (or the transfer of good title to the applicable Trust of the Deposit Securities and the payment of any cash portion of the purchase price) has been completed. Notwithstanding the foregoing, Creation Units may be issued to a Participant notwithstanding the fact that the corresponding Deposit Securities and cash payment have not been received in part or in whole, in the sole discretion of the applicable Trust, provided that the Participant deposits the available Deposit Securities and cash in an amount equal to the sum of (i) the Cash Component (including any Transaction Fees), plus (ii) 115% of the market value of the undelivered Deposit Securities (the “Additional Cash Deposit”). An additional amount of cash shall be required to be deposited with the Fund, pending delivery of the missing Deposit Securities to the extent necessary to maintain an amount of cash on deposit with the Fund at least equal to 115% of the daily marked to market value of the undelivered Deposit Securities. In the sole discretion of the Fund following the initial settlement date, the Fund may use the cash on deposit to purchase the undelivered Deposit Securities. The Participant will be liable to the Fund for the costs incurred by the Fund in connection with any such purchases and the Participant shall be liable to the Fund for any shortfall between the cost to the Fund of purchasing any missing Deposit Securities and the value of the collateral. These costs will be deemed to include the amount by which the actual purchase price of the Deposit Securities exceeds the market value of such Deposit Securities on the day the Purchase Order was deemed received by the Distributor plus the brokerage and related transaction costs associated with such purchases. The Fund will return any unused portion of the Additional Cash Deposit once all of the undelivered Deposit Securities have been properly received by the Fund’s custodian or purchased by the Fund and deposited into the Fund.
| 5. | REJECTING OR SUSPENDING A PURCHASE ORDER |
The applicable Trust or Distributor may reject any Purchase Order that is not submitted in accordance with the procedures described in the Prospectus. The applicable Trust and the Distributor also reserve the absolute right to reject or revoke acceptance of a Purchase Order transmitted to it in respect of a Fund, for example if:
| a. | the Purchase Order is not in proper form; |
| b. | the purchaser or group of purchasers, upon obtaining the Shares ordered, would own 80% or more of the currently outstanding Shares of such Fund upon execution of the Purchase Order; |
| c. | the Fund Deposit delivered is not as specified by the Fund through the Distributor, and the Adviser has not consented to acceptance of an in-kind deposit that varies from the designated portfolio; |
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| d. | the acceptance of the Fund Deposit would have certain adverse tax consequences to such Fund; |
| e. | the acceptance of the Fund Deposit would, in the opinion of counsel, be unlawful; |
| f. | the acceptance of the Fund Deposit would otherwise, in the discretion of the applicable Trust or the Adviser, have an adverse effect on the Trust or the rights of beneficial owners of such Fund; |
| g. | the value of Creation Units to be created exceeds a purchase authorization limit afforded to the Participant by the applicable Trust, and the Participant has not deposited an amount in excess of such purchase authorization with the applicable Trust’s custodian prior to 3:00 p.m. U.S. Eastern time, on the Transmittal Day; or |
| h. | there exist circumstances outside the control of the applicable Trust, the Transfer Agent, the Distributor, or the Adviser that make it impossible to process Purchase Orders for all practical purposes. |
In-Kind Purchase Orders
If creations are on an in-kind basis, the applicable Trust further reserves the absolute right to reject or suspend a Purchase Order transmitted to it by the Distributor in respect of a Fund if: (i) the portfolio of Deposit Securities delivered is not as specified by the Adviser; (ii) acceptance of the Deposit Securities would have certain adverse tax consequences to that the applicable Trust or any Fund thereof; or (iii) for any other reasons as specified herein.
The applicable Trust shall notify the Authorized Person of its rejection of any Purchase Order. Except as provided herein, all Purchase Orders for Creation Units are irrevocable.
The applicable Trust, Transfer Agent and the Distributor are under no duty to verify or give notification of any defects or irregularities in any written Order or in the delivery of Fund Deposits nor shall any of them incur any liability for the failure to give any such notification. The applicable Trust shall return to the Authorized Person or any party for which it is acting any dividend, interest, distribution or other corporate action paid to the Trust in respect of any Deposit Securities that are transferred to the Trust that, based on the valuation of such Deposit Securities at the time of transfer, should have been paid to the Authorized Person or any party for which it is acting.
| B. | TO PLACE A REDEMPTION ORDER |
| 1. | PLACING A REDEMPTION ORDER |
Redemption Orders for Creation Units may be initiated only on Transmittal Days (as defined herein). Redemption Orders may only be made in whole Creation Units of Shares of each Fund.
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To initiate a Redemption Order, the Authorized Person must call the Transfer Agent at (000) 000-0000 not later than the Order Cut-Off Time. Upon verifying the authenticity of the Authorized Person (as determined by the use of the appropriate PIN Number) and terms of the Redemption Order, the Transfer Agent will issue a unique Order Number. Upon verifying the authenticity of the Authorized Person (as determined by the use of the appropriate PIN Number) and the terms of the Redemption Order, the Transfer Agent will issue a unique Order Number. An Order Number is only valid for a limited time. The Redemption Order must be sent by facsimile in the form provided by the Fund or its agents (which may include various Participant representations, warranties or acknowledgments) to the Fund representative within 20 minutes of the issuance of the Order Number. In the event that the Redemption Order is not received within such time period, the Transfer Agent will attempt to contact the Participant to request immediate transmission of the Redemption Order. Unless the Redemption Order is received by the Fund representative upon the earlier of (i) within 15 minutes of contact with the Participant or (ii) 45 minutes after the Order Cut-Off Time, the order will be deemed invalid.
NOTE: A REDEMPTION ORDER REQUEST IS NOT COMPLETE UNTIL THE TRANSFER AGENT ISSUES AN ORDER NUMBER. AN ORDER MAY NOT BE CANCELED BY THE AUTHORIZED PERSON AFTER AN ORDER NUMBER IS ISSUED. INCOMING TELEPHONE CALLS ARE QUEUED AND WILL BE HANDLED IN THE ORDER RECEIVED. CALLS PLACED BEFORE THE ORDER CUT-OFF TIME WILL BY PROCESSED EVEN IF THE CALL IS ANSWERED BY THE TRANSFER AGENT AFTER THE ORDER CUT-OFF TIME. ACCORDINGLY, THE AUTHORIZED PERSON SHOULD NOT HANG UP AND REDIAL. INCOMING CALLS THAT ARE RECEIVED AFTER THE ORDER CUT-OFF TIME WILL NOT BE ANSWERED BY THE TRANSFER AGENT. ALL TELEPHONE CALLS MAY BE RECORDED BY THE TRANSFER AGENT.
THE TELEPHONE CALL IN WHICH THE ORDER NUMBER IS ISSUED INITIATES THE ORDER PROCESS BUT DOES NOT ALONE CONSTITUTE THE REDEMPTION ORDER. A REDEMPTION ORDER IS ONLY COMPLETED AND PROCESSED UPON RECEIPT OF WRITTEN INSTRUCTIONS CONTAINING THE DESIGNATED ORDER NUMBER AND AUTHORIZED PERSON’S SIGNATURE AND TRANSMITTED BY FACSIMILE.
| 2. | RECEIPT OF CONFIRMATION |
The Transfer Agent will fax a copy of any accepted Redemption Order to the Participant within approximately 45 minutes of its receipt as confirmation of such Redemption Order. In the event the Participant does not receive a Redemption Order confirmation, it should contact the Transfer Agent at the business number indicated.
| 3. | AMBIGUOUS INSTRUCTIONS |
In the event that the written Redemption Order contains terms that differ from the information provided in the telephone call at the time of issuance of the Order Number, a representative of the Fund will attempt to contact the Participant to request confirmation of the terms of the Redemption Order. If an Authorized Person is able to confirm the terms as they
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appear in the written Redemption Order by the Order Cut-Off Time, the Redemption Order will continue for processing. If an Authorized Person contradicts its terms, the Redemption Order will be deemed invalid and a corrected written Redemption Order must be received by the Fund representative by the Order Cut-Off Time.
In the event that a written Redemption Order contains terms that are illegible, as determined in the sole discretion of the Distributor or Transfer Agent, the written Redemption Order will be deemed invalid and the Fund representative will attempt to contact the Participant to request transmission of a legible written Redemption Order. If the Fund representative does not receive a legible written Redemption Order by the Order Cut-Off Time, the Redemption Order will be deemed invalid. If the Fund representative is not able to contact an Authorized Person, the Redemption Order will be deemed invalid.
| C. | T-1 PROCEDURES |
The following trade date minus 1 (“T-1”) procedures relate only to Purchase Orders and Redemption Orders submitted after 4:00 p.m., U.S. Eastern time (or such earlier time following an early NYSE close on a Transmittal Day) and before 5:00 p.m., U.S. Eastern time (the “T-1 Order Cut-Off Time”) (a “T-1 Purchase Order” with respect to Purchase Orders and a “T-1 Redemption Order” with respect to Redemption Orders) for the Funds identified by Distributor to Participant from time-to-time. Except as modified herein, all of the procedures set forth in this Attachment A apply to T-1 Purchase Orders and T-1 Redemption Orders.
An Authorized Person for the Participant may call the Transfer Agent at the telephone number provided on the order form after 4:00 p.m., U.S. Eastern time and before 5:00 p.m., U.S. Eastern time to receive an Order Number. Upon verifying the authenticity of the Authorized Person (as determined by the use of the appropriate PIN Number) and the terms of the T-1 Purchase Order or T-1 Redemption Order, the Transfer Agent will issue a unique Order Number. An Order Number is only valid for a limited time. The T-1 Purchase Order or T-1 Redemption Order must be sent by facsimile in the form provided by the Fund or its agents (which may include various Participant representations) to the Fund representative within 20 minutes of the issuance of the Order Number. In the event that the T-1 Purchase Order or T-1 Redemption Order is not received within such time period, the Transfer Agent will attempt to contact the Participant to request immediate transmission of the T-1 Purchase Order or T-1 Redemption Order. Unless the T-1 Purchase Order or T-1 Redemption Order is received by the Fund representative upon the earlier of (i) within 15 minutes of contact with the Participant or (ii) 45 minutes after the T-1 Order Cut-Off Time, the Order will be deemed invalid.
NOTE: A T-1 PURCHASE ORDER OR T-1 REDEMPTION ORDER IS NOT COMPLETE UNTIL THE TRANSFER AGENT ISSUES AN ORDER NUMBER. AN ORDER MAY NOT BE CANCELED BY AN AUTHORIZED PERSON AFTER AN ORDER NUMBER HAS BEEN ISSUED. INCOMING TELEPHONE CALLS ARE QUEUED AND WILL BE HANDLED IN THE ORDER RECEIVED. A CALL THAT IS PLACED BEFORE THE T-1 ORDER CUT-OFF TIME WILL BE PROCESSED EVEN IF THE CALL IS ANSWERED BY THE TRANSFER AGENT AFTER THE T-1 ORDER CUT-OFF TIME. ACCORDINGLY, THE AUTHORIZED PERSON SHOULD NOT HANG UP AND REDIAL.
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INCOMING CALLS THAT ARE RECEIVED AFTER THE T-1 ORDER CUT-OFF TIME WILL NOT BE ANSWERED BY THE TRANSFER AGENT. ALL TELEPHONE CALLS MAY BE RECORDED BY THE TRANSFER AGENT.
THE TELEPHONE CALL IN WHICH THE ORDER NUMBER IS ISSUED INITIATES THE ORDER PROCESS BUT DOES NOT ALONE CONSTITUTE THE ORDER. AN ORDER IS ONLY COMPLETED AND PROCESSED UPON RECEIPT OF WRITTEN INSTRUCTIONS CONTAINING THE DESIGNATED ORDER NUMBER AND AUTHORIZED PERSON’S SIGNATURE AND TRANSMITTED BY FACSIMILE. ONCE AN ORDER NUMBER IS ISSUED, A T-1 PURCHASE ORDER OR A T-1 REDEMPTION ORDER CANNOT BE CANCELED BY THE PARTICIPANT.
| D. | ELECTION TO PLACE ORDERS BY INTERNET |
1. General. In addition to the procedures for placing a Purchase Order and Redemption Order as set forth under Sections A.1 - A.3, Sections B.1 - B.3. and Section C of this Attachment A, respectively, the Participant may utilize the State Street Fund Connect proprietary system, or any successor system (“Fund Connect”), made available to Participant by the Transfer Agent, together with State Street Global Markets, LLC (collectively, “State Street”). Fund Connect is a proprietary electronic fund platform that will allow Participant to submit orders to create or redeem Creation Units under the Agreement. The terms and conditions on which State Street will deliver Fund Connect to Participant shall be set forth in a separate agreement between State Street and Participant (“Fund Connect Agreement”). To the extent that any provision of the Agreement is inconsistent with any provision of any Fund Connect Agreement, the Fund Connect Agreement shall control with respect to State Street’s provision of Fund Connect; provided, however, it is not the intention of the parties to otherwise modify the rights, duties and obligations of the parties under the Agreement, which shall remain in full force and effect until otherwise expressly modified or terminated in accordance with its terms. For additional clarity, Sections A.4. and A.5. of this Attachment A related to processing and suspending/rejecting Purchase Orders, respectively, shall continue to apply with respect to any orders via Fund Connect.
2. Certain Acknowledgements. The Participant acknowledges and agrees that (i) neither the Trusts, the Distributor nor State Street have made any representations, warranties, indemnities, obligations, guarantees or agreements of any kind, whether express, implied, oral or written, with respect to Fund Connect, other than as may be expressly provided by State Street in the Fund Connect Agreement; (ii) Fund Connect is provided “as is,” “as available” with all faults and without any warranty of any kind and that any transactions, content, or data downloaded or otherwise obtained through the use of Fund Connect are done at the Participant’s own discretion and risk; (iii) the Trusts, the Transfer Agent, the Distributor and their respective agents may elect to review any order placed through Fund Connect manually before it is executed and that such manual review may result in a delay in execution of such order; and (iv) during periods of heavy market activity or other times, it may be difficult to place orders via Fund Connect and the Participant may place orders as otherwise set forth in this Attachment A.
A-8
3. Election to Terminate Placing Orders by Internet. The Participant may elect at any time to discontinue placing orders through Fund Connect without providing notice under the Agreement.
| E. | ADDITIONAL SETTLEMENT PROCEDURES |
The Participant is advised that, pursuant to the Trusts’ Valuation Procedures, if an error occurs in calculating a Fund’s net asset value after Participant receives a Purchase Order confirmation but prior to the Settlement Date and results in a difference between the originally computed net asset value and the corrected net asset value that equals or exceeds $0.01 per share, the Custodian will reprocess the Purchase Order and notify the Participant. If there is a loss to the Fund as a result of the error in calculating the net asset value, the Participant will be required to pay the additional value in cash on or prior to the Settlement Date. If there is a Fund benefit, the amount of the benefit will be returned to the Participant on the Settlement Date.
A-9
APPENDIX 1
Procedures Specific to Non-Standard Orders
To ensure proper tracking of a passively managed Fund to its benchmark index, the following guidelines must be followed by the Participant when placing a non-standard order (e.g., substituting cash-in-lieu of a Deposit Security) (each, a “Non-Standard Order”):
| 1. | Prior to placing the Non-Standard Order with the Transfer Agent, the Participant must contact the Adviser at the number set forth on the applicable order form or as otherwise provided in order to discuss the cash and/or securities (together, the “Non-Standard Consideration”) expected to be delivered by (in the case of a Creation Order) or received by (in the case a Redemption Order) the Participant per the Non-Standard Order on settlement date. If the Adviser provides verbal authorization to the Participant regarding the use of the Non-Standard Consideration, the Participant will follow the directions regarding placing orders outlined in Attachment A and it will be the Participant’s responsibility to ensure that the box is checked on the applicable order form indicating that the Participant is submitting a Non-Standard Order. |
| 2. | Notwithstanding the Order-Cut Off Time(s) described in Attachment A, the Order Cut-Off Time for Non-Standard Orders will be one hour prior to the closing time of the regular trading session on the NYSE on a Transmittal Day; provided that, when the NYSE closes early on a Transmittal Day prior to a Holiday, or for any other reason, the Order Cut-Off Time shall be one hour prior to the earlier NYSE close on such Transmittal Day (“Non-Standard Order Cut-Off Time”). Non-Standard Orders will not be processed if received after the applicable Non-Standard Order Cut-Off Time. The Participant must transact on a standard order after the applicable Non-Standard Order Cut-Off Time. |
IN WITNESS WHEREOF, the Participant acknowledges that he or she has read the procedures relating to Non-Standard Orders and agrees to comply with all such procedures. Failure to comply with the Non-Standard Order procedures will require the transaction to be effected as a standard order (i.e., standard basket).
| PARTICIPANT: |
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| NSCC#: |
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| BY: |
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| FACSIMILE: |
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Appendix-1
ATTACHMENT B-1
CERTIFICATE OF AUTHORIZED PERSONS OF THE AUTHORIZED PARTICIPANT
PIMCO ETF TRUST AND PIMCO EQUITY SERIES
The following are the names, titles, signatures, phone numbers, email addresses and city of birth of all persons (each, an “Authorized Person”) authorized to give instructions relating to any activity contemplated by the Authorized Participant Agreement for the PIMCO ETF Trust and PIMCO Equity Series (the “Agreement”) or any other notice, request or instruction on behalf of the Authorized Participant pursuant to the Agreement.
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| Participant Name | NSCC# |
| NAME(1) | TITLE(1) | SIGNATURE(1) | TELEPHONE NUMBER(1) |
E-MAIL ADDRESS(1) |
CITY OF BIRTH(2) | |||||
| Date: |
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| CERTIFIED BY: |
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| NAME: |
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| TITLE: |
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| E-MAIL ADDRESS: |
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| (1) | Required information. |
| (2) | Required information to also use Fund Connect. |
B-1
[Provide to the Distributor, the Adviser, the Transfer Agent, and the Trusts]
X-0-0
XXXXXXXXXX X-0
[On AP’s Firm Letterhead]
[DATE]
PIMCO Investments LLC
Attn: [ ]
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
| Re: | Addendum to the Certificate of Authorized Persons for [ ] under the Authorized Participant Agreement for the PIMCO ETF Trust and PIMCO Equity Series (the “Agreement”) |
Ladies and Gentlemen:
Pursuant to the Agreement, following are the names, titles, signatures, phone numbers, and email addresses of additional Authorized Persons of [ ] (the “Participant”) authorized to give instructions relating to any activity contemplated by the Agreement or any other notice, request or instruction on behalf of the Participant pursuant to the Agreement. This list of Authorized Persons is an addendum and adds Authorized Persons to the Participant’s most recently executed certificate (entitled “Certificate of Authorized Persons of the Authorized Participant, PIMCO ETF Trust and PIMCO Equity Series”) preceding the date set forth above.
| Name: |
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Name: |
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| Title: |
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Title: |
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| Signature: |
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Signature: |
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| Phone: |
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Phone: |
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| Email: |
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Email: |
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| Name: |
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Name: |
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| Title: |
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Title: |
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| Signature: |
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Signature: |
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| Phone: |
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Phone: |
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| Email: |
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Email: |
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Please provide PIN numbers for those listed above.
Very truly yours,
[Copy to the Adviser, the Transfer Agent, and the Trusts]
B-2
