AMENDMENT TO TRANSFER AGENCY AND BLUE SKY SERVICES AGREEMENT
Exhibit (h)(6)(ii)
This Amendment To the Transfer Agency and Blue Sky Services Agreement, dated as of September
1, 2009 (“Amendment”), is being entered into by and between PNC Global Investment Servicing (U.S.)
Inc. (“PNC”) (formerly PFPC Inc.) and BB&T Variable Insurance Funds (the “Trust”).
Background
PNC and the Trust entered into a Transfer Agency and Blue Sky Services Agreement, dated as of
April 23, 2007 (the “Agreement”), as amended from time to time, and now wish to amend the Agreement
in accordance with the terms herein.
Capitalized terms used in this Amendment but not expressly defined herein shall have the
meanings ascribed to them in the Agreement.
Terms
In consideration of the mutual covenants hereinafter set forth, and intending to be legally
bound, the parties hereto agree to all statements made above and as follows:
1. Modifications to Agreement. The Agreement is hereby amended as follows:
(a) The term “Agreement” means “the Agreement as amended by this Amendment”.
(b) New Section 14(o) is hereby added to the Agreement, which shall read in its entirety as
follows:
| “(o) | AlbridgeCentral. PNC shall provide the Trust access to AlbridgeCentral services pursuant to the terms of Schedule 1 of the Agreement. Schedule 1 is hereby incorporated by reference into the Agreement in its entirety.” |
(c) The Agreement is hereby amended and supplemented by adding new Schedule 1 to the Agreement in
the form of Schedule 1 attached hereto.
2. Remainder of Agreement. Except as specifically modified by this Amendment all terms and
conditions of the Agreement shall remain in full force and effect.
3. Entire Agreement. This Amendment constitutes the final, complete, exclusive and fully
integrated record of the agreement of the parties with respect to the subject matter herein and the
amendment of the Agreement with respect to such subject matter, and supersedes all prior and
contemporaneous proposals, agreements, contracts, representations and understandings, whether
written, oral or electronic, between the parties with respect to the same subject matter.
4. Facsimile Signatures; Counterparts. This Amendment may be executed in one or more
counterparts; such execution of counterparts may occur by manual signature, facsimile signature,
manual signature transmitted by means of facsimile transmission or manual signature contained in an
imaged document attached to an email transmission; and each such counterpart executed in accordance
with the foregoing shall be deemed an original, with all such counterparts together constituting
one and the same instrument. The exchange of executed copies of this Amendment or of executed
signature pages to this Amendment by facsimile transmission or as an imaged document attached to an
email transmission shall
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constitute effective execution and delivery hereof and may be used for all purposes in lieu of a
manually executed copy of this Amendment.
5. Miscellaneous. The names “BB&T Variable Insurance Funds” and “Trustees of BB&T Variable
Insurance Funds” refer respectively to the Trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under an Amended and Restated Agreement and
Declaration of Trust dated as of June 2, 2007 to which reference is hereby made and a copy of which
is on file at the office of the Secretary of State of The Commonwealth of Massachusetts and
elsewhere as required by law, and to any and all amendments thereto so filed or hereafter filed.
The obligations of “BB&T Variable Insurance Funds” or any series thereof entered into in the name
or on behalf thereof by any of the Trustees, representatives or agents are made not individually,
but in such capacities, and are not binding upon any of the Trustees, shareholders or
representatives of the Trust personally, but bind only the assets of the Trust, and all persons
dealing with any series of shares of the Trust must look solely to the assets of the Trust
belonging to such series for the enforcement of any claims against the Trust.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly
authorized officers, as of the day and year first above written.
PNC Global Investment Servicing (U.S.) Inc.
|
BB&T Variable Insurance Funds | |||
By: /s/ Xxxxxxx XxXxxxxx |
By: /s/ Xxxx Xxxxxx |
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Name: Xxxxxxx XxXxxxxx
|
Name: Xxxx Xxxxxx |
|||
Title: Executive Vice President
|
Title: Vice President BB&T Variable Insurance Funds |
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SCHEDULE 1
1. Definitions. The terms in quotation marks below shall have the meanings ascribed to
them below for purposes of this Schedule 1 only (the “Schedule”). Capitalized words used in this
Schedule not defined in this Schedule shall have the meanings ascribed to them elsewhere in the
Agreement:
1.1 “Account” means the account of a Shareholder in the Trust or any Portfolio.
1.2 “Documentation” means the documentation materials maintained by PNC which describe the
functionalities of a Web Application and provide instructions for the use of that Web Application,
as such documentation materials may be updated and modified from time to time by PNC.
1.3 “Financial Intermediary” means any investment advisor, brokerage firm, financial planner or
other entity.
1.4 “Inquiry” means any interaction with or action taken with respect to the Web Application
initiated by a Financial Intermediary involving Provided Information that is not a Transaction.
1.5 “Party” means the Trust or PNC.
1.6 “PNC” means PNC Global Investment Servicing (U.S.), Inc. and its affiliate, Albridge Solutions,
Inc.
1.7 “Portfolio” means any class, tier, series or portfolio of the Trust.
1.8 “Provided Information” means the Trust and Shareholder information and data provided by or on
behalf of the Trust to PNC for use on the Web Applications.
1.9 “Services” means those shareholder data and information aggregation services made available by
PNC from time to time to Financial Intermediaries through the Web Applications, as such may be
updated, revised or amended in PNC’s discretion from time to time.
1.10 “Shareholder” means the record owner of any number of shares of the Trust or any Portfolio.
1.11 “Shareholder Data” means information pertaining to a Shareholder and the Accounts in the Trust
or any Portfolio, including non-public personal information (as defined by Regulation S-P) and
Transactions.
1.12 “Transaction” means any purchase, sale, redemption, distribution, exchange, transfer or other
activity or change in status involving an Account or Account assets initiated by a Financial
Intermediary.
1.13 “Web Applications” means the collections of electronic documents, electronic files, content,
text, graphics, and software code, including, but not limited to, HTML and XML files, Java and
JavaScript files, graphics files, animation files, data files, technology, scripts and programs
residing on any computer system(s) maintained by or for PNC Global Investment Servicing (U.S.)
Inc., accessible via one or more Internet-based applications operated by or for PNC Global
Investment Servicing (U.S.) Inc. (“PNC Applications”) or Albridge Solutions, Inc. (“Albridge
Applications,” and together with the PNC Applications, the “Web Applications”), which provide sets
of user group-based functionality resident within existing applications operated by or for PNC or
new functionality developed by or for PNC.
2. Authorization to Share Information. PNC operates the Web Applications for use by
Financial Intermediaries to access and manage the accounts of clients who are shareholders of
investment
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companies or other collective investment vehicles The Trust desires to make available Provided
Information via the Web Applications. To that end, the Trust hereby authorizes PNC to make
available the Provided Information via the Web Applications and to take all actions consistent with
the Documentation for the Services and the Web Applications to facilitate the foregoing.
3. Duties of PNC. PNC shall (i) act reasonably in accordance with the Documentation to
facilitate making available Provided Information via the Web Applications on an “as is” basis and
shall permit the Trust to make all elections with respect to the Services which the Documentation
provides for a Web Application content provider to make, and (ii) provide the Trust at PNC’s
standard rates and charges, to the extent requested by the Trust, with Inquiry access to Provided
Information via the PNC Applications.
4. Duties of the Trust. The Trust shall maintain, or cause its distributor to maintain,
appropriate agreements with DTCC or NSCC, as may be appropriate, including without limitation,
agreements with respect to FUND/Speed (or its successors). The Trust shall strictly comply with
all Documentation and any specifications contained therein with respect to the Trust’s Inquiry
access to the Web Applications via the PNC Applications. The Trust shall communicate with
Financial Intermediaries and Shareholders to the extent such is reasonably required for the
Services to be performed in accordance with the Documentation. The Trust’s use of Inquiry access
to the Web Applications via the PNC Applications shall be conducted in full compliance with any
terms of use, restrictions, limitations and indemnities made applicable and disclosed from time to
time by PNC to Inquiry users of the PNC Applications. No access to the Web Applications is granted
hereunder via the Albridge Applications.
4.1 Authority. (i) Each Party warrants, represents and covenants to the other Party that
(a) such Party has the full power, capacity and authority to enter into and perform this Schedule
and to make the grant of rights contained herein, including without limitation, with respect to the
Trust, the right to grant the licenses contemplated by this Schedule to PNC and the right to
provide the Provided Information; and (b) no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or any other third party is
required for its performance hereunder; and (ii) the Trust hereby warrants, represents, and
covenants to PNC that (a) the Trust’s performance of this Schedule does not violate or conflict
with any agreement to which the Trust is a party; and (b) the execution and delivery of this
Schedule, and the performance of its obligations hereunder, have been duly authorized by all
necessary corporate action of the Trust, and do not contravene its charter or by-laws.
5. Linking. Each Party hereby grants to the other a royalty-free, nonexclusive,
nontransferable and revocable right and license to use such Party’s hyperlink in such Party’s
website or the Web Applications, as applicable, in connection with the Services. Each Party shall
reasonably cooperate with the other Party concerning the placement, location and destination of
such hyperlinks. All rights not expressly granted to a Party under this Section 5 are retained by
the Party owning such rights. A Party shall immediately cease using another Party’s hyperlink
immediately upon termination of the license granted by this Section 5.
6. Trademarks. Subject to the provisions of this Section 6, each Party hereby grants to
the other a non-exclusive, limited license to use such Party’s trademarks, service marks and trade
names in connection with the Services or performing this Schedule. All use of trademarks shall be
in accordance with the granting Party’s reasonable policies regarding advertising and trademark
usage as established from time to time. The Trust hereby grants PNC the right and license to
display the Trust’s trademarks, service marks and trade names on the Web Applications and in
advertising and marketing materials related to the Web Applications and the Services. PNC hereby
grants to the Trust the right and license to display PNC’s trademarks, service marks and trade
names on the Trust’s website only to the extent such trademarks, service marks and trade names
relate to the Services performed under this Schedule. Each party shall retain all right, title and
interest in and to its trademarks, service marks and trade names worldwide, including any goodwill
associated therewith, subject to the limited license granted in this Section 6. Use of the
trademarks hereunder by the grantee of the trademark license shall inure to the
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benefit of the trademark owner and grantees shall take no action that is inconsistent with the
trademark owner’s ownership thereof.
7. Access and Display License. The Trust hereby grants to PNC a worldwide, royalty-free,
non-exclusive right and license to display through the Web Applications, and provide Financial
Intermediaries access to, all portions of the Provided Information. Without limiting the
generality of the foregoing, the license granted in this Section 7 shall include the right to (i)
download and store, copy in on-line and off-line form, reformat, manipulate, distribute, publish,
transmit, and display the Provided Information via the Web Applications; and (ii) permit Financial
Intermediaries to access and use the Provided Information. The Trust shall have sole
responsibility for imposing any desired use restrictions on Financial Intermediaries with respect
to Services utilized via the Web Applications by providing notice to PNC. For example, if the
Trust elects to participate in Web Applications’ service permitting Transactions, the Trust may
notify PNC to restrict a particular Financial Intermediary from initiating Transactions via the Web
Applications; provided, however, the Trust acknowledges that PNC does not have the ability, nor
shall PNC be obligated hereunder, to restrict Transactions effected by a single natural person
Financial Intermediary.
8. PNC Intellectual Property and Proprietary Rights. PNC shall retain title to and
ownership of any and all databases, 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 associated
with the Services, the Web Applications and the Applications at any time or from time to time
(“Intellectual Property”). The Trust acknowledges and agrees that nothing contained in this
Schedule transfers or assigns to the Trust any rights in or to any Intellectual Property. If PNC
provides the Trust with any computer software in connection with the Services or PNC’s performance
of this Schedule, the Trust shall use said computer software solely for purposes of gaining Inquiry
access to a Web Application, and shall not copy, decompile, reverse engineer or otherwise attempt
to derive the source files thereto.
9. Fees. For the services provided by PNC pursuant to this Schedule, the Trust shall pay
to PNC the fees provided for in the writing referenced in Section 6(a) of the Agreement. Such fees
are exclusive of and do not include any taxes, duties, or similar charges. The Trust agrees to pay
or reimburse PNC for all federal, state, dominion, provincial, or local sales, VAT, use, personal
property, import, export, excise or other taxes, fees, or duties arising out of this Schedule or
the transactions contemplated by this Schedule, except that the Trust shall have no liability for
taxes on the net income of any other Party. PNC reserves the right to pass through and invoice the
Trust for increases in such fees imposed by PNC upon 30 days’ advance notice (such increases not to
occur more than once a calendar year) or upon renewal of the Agreement. If the Trust does not
consent to such fee increases, then the Trust’s sole and exclusive remedy is to terminate Services
under this Schedule and pay all amounts due and owing through the date of such termination.
10. Disclaimer of Warranties. PNC expressly disclaims any warranty that the Web
Applications, Applications, Services or specifications related thereto will be accurate,
uninterrupted or error free and PNC makes no warranty as to the results obtained from use of the
Web Applications, Applications, Services or specifications related thereto. The Web Applications,
Applications, Services and specifications related thereto are made available on an “As Is, As
Available” basis, and PNC expressly disclaims all warranties, either express or implied, including,
but not limited to, warranties of title or non-infringement, or the implied warranties of
merchantability or fitness for a particular purpose. Notwithstanding the foregoing, PNC
acknowledges that its provision of Services pursuant to this Schedule remains subject to its
obligations set forth in, without limitation, Sections 10 (Disaster Recovery) and 15 (Privacy) of
the Agreement.
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11. Indemnification. (i) The Trust, at its own expense, will defend and indemnify PNC and
its affiliates against any claims, actions, proceedings, liability, loss, damages, costs, or
expenses arising out of or in connection with (a) the use by the Trust or the Financial
Intermediaries of the Web Applications and/or the Applications or (b) a breach of the Trust’s
representations, warranties or covenants under this Schedule; other than claims arising as a direct
result of PNC’s or its affiliates’ material and uncured breach of any term of this Schedule or
PNC’s or its affiliates’ willful misfeasance, bad faith, gross negligence or reckless disregard in
the performance of PNC’s activities under this Schedule.
(ii) PNC, at its own expense, will defend and indemnify the Trust and its affiliates against any
claims, actions, proceedings, liability, loss, damages, costs or expenses arising out of or in
connection with PNC’s or its affiliates’ material and uncured breach of any term of this Schedule
or PNC’s or its affiliates’ willful misfeasance, bad faith, gross negligence or reckless disregard
in the performance of PNC’s activities under this Schedule.
12. Exclusion of Consequential Damages. Notwithstanding any other provision of this
Schedule, neither PNC nor its affiliates shall be liable in connection with services provided under
this Schedule for (A) 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; war; terrorism; fire; sabotage; interruption, loss or malfunction of
utilities; natural catastrophes; or non-performance by a third party, or (B) consequential,
exemplary, punitive, special or indirect losses or damages, or any lost revenues or lost profits,
even if advised of the possibility of such. In jurisdictions not permitting full enforcement of
the foregoing, PNC’s liability shall be limited to the greatest extent permitted by law.
13. Limitation of Liability. The collective liability of PNC and its affiliates to the
Trust for all losses, claims, suits, controversies, breaches or damages arising out of or related
to PNC’s obligations under this Schedule, regardless of the form of action or legal theory
(“Losses”) shall not exceed the fees received by PNC pursuant Section 9 during the six (6) months
immediately prior to the date of the Loss. The Trust acknowledges that this limitation has been
taken into account in establishing such fees.
14. Confidential Information.
(a) Either Party may disclose (the “Disclosing Party”) to the other Party (the “Receiving Party”)
certain information pursuant to this Schedule that the Disclosing Party considers to be
confidential and/or proprietary, including, but not limited to, Provided Information, software
machine code or source code, technical processes and formulas, product designs, customer lists,
product and business plans, advertising revenues, usage rates, projections, marketing and other
data, the terms and provisions of this Schedule, sales, cost, account and other technical, business
and financial information, as well as information that the Disclosing Party marks as confidential
(“Confidential Information”). Notwithstanding the foregoing, Confidential Information does not
include information (i) already known by the Receiving Party without an obligation of
confidentiality, (ii) publicly known or which becomes publicly known through no omission or
unauthorized act of the Receiving Party, (iii) rightfully received from a third party without any
obligation of confidentiality, (iv) independently developed by the Receiving Party without use of
the Disclosing Party’s Confidential Information, or (v) approved in advance in writing by the
Disclosing Party for disclosure.
(b) The Receiving Party shall make use of the Confidential Information only for the purposes of
this Schedule and shall protect the Disclosing Party’s Confidential Information by using the same
degree of care, but not less than a reasonable degree of care, to prevent the unauthorized use,
dissemination, or publication of the Confidential Information as the Receiving Party uses to
protect its own Confidential Information of a like nature. The Receiving Party shall disclose
Confidential Information only (i) to those of its officers, directors, employees and auditors with
a need to know such Confidential Information, (ii) to those sub-contractors, representatives and
consultants with a need to know such Confidential
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Information who are bound by a written agreement with the Receiving Party to confidentiality
obligations no less protective of Confidential Information as provided for in this Schedule; or
(ii) as requested or required by court order, applicable law or regulation or any regulatory agency
or governmental body having jurisdiction over the Receiving Party.
(c) All Confidential Information shall remain the property of the Disclosing Party, and such
Confidential Information and any copies thereof, shall be promptly returned to the Disclosing Party
upon request or upon termination of this Schedule or the Services or, at the Disclosing Party’s
sole option, destroyed, in which case the Disclosing Party shall be notified promptly in writing
when its Confidential Information has been destroyed; provided, however, PNC may
retain copies of Confidential Information of the Trust for customary archival, audit and legal
purposes (including with respect to compliance with applicable laws and regulations). The
furnishing of any Confidential Information between the parties shall not constitute the granting of
any right or license to use such Confidential Information except as expressly provided for in this
Schedule.
15. Survival. The following Sections of this Schedule shall survive a termination of the
Agreement or the Services: 6 — 8 and 10 — 17.
16. Limited Scope of Schedule. The terms of this Schedule shall be construed to apply
solely with respect to the rights and obligations of the parties as set forth in this Schedule.
17. Intended Third Party Beneficiary. For the avoidance of doubt, Albridge Solutions, Inc.
is an intended third party beneficiary of this Schedule and is entitled to enforce the terms of
this Schedule.
[End of Schedule]
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