Exhibit(h)(2)(a)
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
---------------------------------------------
This Amended and Restated Administration Agreement is entered into as of
February 1, 2003 by and between PFPC INC., a Massachusetts corporation ("PFPC"),
and FORWARD FUNDS, INC., a Maryland corporation (the "Fund").
BACKGROUND
A. The Fund is registered as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act").
B. The Fund and PFPC (formerly known as First Data Investor Services Group,
Inc.) were parties to an Administration Agreement dated as of April 1,
1998, which has terminated as of the date of this Agreement (the
"Superceded Agreement").
C. The Fund desires to continue to retain PFPC to render certain
administrative services with respect to each investment portfolio listed in
Exhibit A hereto, as the same may be amended from time to time by the
parties hereto (collectively, the "Portfolios"), and PFPC desires to
continue to render such services.
TERMS
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is agreed between the parties hereto as follows:
1. Definitions as Used in this Agreement.
Whenever used in this Agreement, the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other person
duly authorized by the Fund's Board of Directors to give Oral
Instructions and Written Instructions on behalf of the Fund. An
Authorized Person's scope of authority may be limited by setting forth
such limitation in a written document signed by
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both parties hereto.
(d) "Oral Instructions" mean oral instructions received by PFPC from an
Authorized Person or from a person reasonably believed by PFPC to be
an Authorized Person. PFPC may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(e) "SEC" means the Securities and Exchange Commission.
(f) "Securities Laws" means the 1933 Act, the 1934 Act and the 0000 Xxx.
(g) "Shares" means the shares of beneficial interest of any series or
class of the Fund.
(h) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by PFPC or (ii) trade instructions
transmitted (and received by PFPC) by means of an electronic
transaction reporting system access to which requires use of a
password or other authorized identifier. The instructions may be
delivered by hand, mail, cable or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC to continue to provide
administration and accounting services with respect to each of the
Portfolios in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to continue to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) at PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Directors, approving the
appointment of PFPC or its affiliates to provide services to each
Portfolio and approving this Agreement;
(b) a copy of Fund's most recent effective registration statement;
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(c) copies of all agreements between the Fund and its service providers,
including without limitation, advisory, distribution and
administration agreements;
(d) copies of each distribution and/or shareholder servicing plan or
agreement made in respect of the Fund or a portfolio;
(e) copies of the Fund's valuation procedures;
(f) a copy of the Articles of Incorporation of the Fund, as amended;
(g) a copy of the By-laws of the Fund, as amended; and
(h) copies (certified or authenticated, where applicable) of any and all
amendments or supplements to the foregoing;
In addition, the Fund will provide PFPC with any additional documentation
that PFPC may request that is reasonably necessary for PFPC to perform the
services under this Agreement.
4. Compliance with Rules and Regulations.
PFPC undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by PFPC hereunder. Except as specifically set forth herein, PFPC assumes no
responsibility for such compliance by the Fund or other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not
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in any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or proceeding
of the Fund's Board of Directors or of the Fund's shareholders, unless
and until PFPC receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming
Oral Instructions (except where such Oral Instructions are given by
PFPC or its affiliates) so that PFPC receives the Written Instructions
by the close of business on the same day that such Oral Instructions
are received. The fact that such confirming Written Instructions are
not received by PFPC or differ from the Oral Instructions shall in no
way invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC's ability to rely upon
such Oral Instructions.
6. Right to Receive Advice.
(a) Advice of the Fund. If PFPC is in doubt as to any action it should or
should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any question of law
pertaining to any action it should or should not take, PFPC may
request advice from counsel of its own choosing (who may be counsel
for the Fund, the Fund's investment advisor or PFPC, at the option of
PFPC).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC receives from
the Fund and the advice PFPC receives from counsel, PFPC may rely upon
and follow the advice of
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counsel.
(d) Protection of PFPC. PFPC shall be indemnified, defended and held
harmless by the Fund for any action PFPC takes or does not take in
reliance upon directions or advice or Oral Instructions or Written
Instructions PFPC receives from or on behalf of the Fund or from
counsel and which PFPC believes, in good faith, to be consistent with
those directions or advice and Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PFPC (i) to seek such directions or advice
or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions.
7. Records; Visits.
(a) The books and records pertaining to the Fund and the Portfolios which
are in the possession or under the control of PFPC shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall
have access to such books and records at all times during PFPC's
normal business hours. Upon the reasonable request of the Fund, copies
of any such books and records shall be provided by PFPC to the Fund or
to an Authorized Person, at the Fund's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each Portfolio's books of
account;
(ii) records of each Portfolio's securities transactions; and
(iii) all other books and records as PFPC is required to maintain
pursuant to
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Rule 31a-1 of the 1940 Act in connection with the services
provided hereunder.
8. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund or PFPC, their respective subsidiaries and
affiliated companies and the customers, clients and suppliers of any of
them; (b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret
in the sense that its confidentiality affords the Fund or PFPC a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential. Notwithstanding
the foregoing, information shall not be subject to such confidentiality
obligations if it: (a) is already known to the receiving party at the time
it is obtained; (b) is or becomes publicly known or available through no
wrongful act of the receiving party; (c) is rightfully received from a
third party who, to the best of the receiving party's knowledge, is not
under a duty of confidentiality; (d) is released by the protected party to
a third party without restriction; (e) is required to be disclosed by the
receiving party pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency
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or law (provided the receiving party will provide the other party written
notice of such requirement, to the extent such notice is permitted); (f) is
relevant to the defense of any claim or cause of action asserted against
the receiving party; (g) has been or is independently developed or obtained
by the receiving party; or (h) release of such information is necessary or
appropriate in connection with the provision of services under this
Agreement.
9. Liaison with Accountants. PFPC shall act as liaison with the Fund's
independent public accountants ("Accountants") and shall provide account
analyses, fiscal year summaries, and other audit-related schedules with
respect to each Portfolio. PFPC shall use commercially reasonable efforts
to cooperate with the Accountants and to make available to them such
information within its control that is necessary for the expression of
their opinion, as required by the Fund.
10. PFPC System. PFPC 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 utilized by PFPC in connection with
the services provided by PFPC to the Fund under this Agreement.
11. Disaster Recovery. PFPC shall make reasonable provisions, which may be
accomplished by entering into and maintaining in effect with appropriate
parties one or more agreements, for emergency use of electronic data
processing equipment to the extent appropriate equipment is available. In
the event of equipment failures, PFPC shall, at no additional expense to
the Fund, take reasonable steps to minimize service interruptions.
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PFPC shall have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad faith,
negligence or reckless disregard of its duties or obligations under this
Agreement.
12. Compensation. As compensation for services rendered by PFPC during the term
of this Agreement, the Fund, on behalf of each Portfolio, will pay to PFPC
a fee or fees as may be agreed to in writing by the Fund and PFPC. In
addition, the Fund agrees to pay PFPC for the reasonable out-of-pocket
expenses (including reasonable legal expenses and attorneys' fees) incurred
by PFPC in connection with the performance of its duties under this
Agreement.
13. Indemnification. The Fund, on behalf of each Portfolio, agrees to
indemnify, defend and hold harmless PFPC and its affiliates, including
their respective officers, directors, agents and employees, from all taxes,
charges, expenses, assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities arising under
the Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly from any action or omission to act which
PFPC takes in connection with the provision of services to the Fund.
Neither PFPC, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) to the extent caused
by PFPC's or its affiliates' own willful misfeasance, bad faith, negligence
or reckless disregard in the performance of PFPC's activities under this
Agreement. Any amounts payable by the Fund hereunder shall be satisfied
only against the relevant Portfolio's assets and not against the assets of
any other investment portfolio of the Fund. The provisions of this Section
13 shall survive termination of this Agreement.
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14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of
the Fund or any Portfolio except as specifically set forth herein or
as may be specifically agreed to by PFPC and the Fund in a written
amendment hereto. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to act in
good faith in performing services provided for under this Agreement.
PFPC shall be liable to the Fund only for those damages that arise out
of PFPC's failure to perform its duties under this Agreement to the
extent such damages arise out of PFPC's willful misfeasance, bad
faith, negligence or reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC
shall not be liable for losses, delays, failure, errors, interruption
or loss of data occurring directly or indirectly by reason of
circumstances beyond its reasonable control, including without
limitation acts of God; action or inaction of civil or military
authority; public enemy; war; terrorism; riot; fire; flood; sabotage;
epidemics; labor disputes; civil commotion; interruption, loss or
malfunction of utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or non-performance by
a third party; and (ii) PFPC shall not be under any duty or obligation
to inquire into and shall not be liable for the validity or
invalidity, authority or lack thereof, or truthfulness or accuracy or
lack thereof, of any instruction, direction, notice, instrument or
other information which PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither PFPC nor
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its affiliates shall be liable for any consequential, special or
indirect losses or damages, whether or not the likelihood of such
losses or damages was known by PFPC or its affiliates and (ii) PFPC's
cumulative liability to the Fund for all losses, claims, suits,
controversies, breaches or damages for any cause whatsoever (including
but not limited to those arising out of or related to this Agreement)
and regardless of the form of action or legal theory shall not exceed
the lesser of $100,000 or the fees received by PFPC for services
provided hereunder during the 12 months immediately prior to the date
of such loss or damage.
(d) No party may assert a cause of action against PFPC or any of its
affiliates that allegedly occurred more than 12 months immediately
prior to the filing of the suit (or, if applicable, commencement of
arbitration proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(f) The provisions of this Section 14 shall survive termination of this
Agreement.
(g) Notwithstanding anything in this Agreement to the contrary, PFPC shall
have no liability either for any error or omission of any of its
predecessors as servicer on behalf of the Fund or for any failure to
discover any such error or omission.
15. Description of Accounting Services on a Continuous Basis.
PFPC will perform the following accounting services with respect to each
Portfolio:
(a) Journalize investment, capital share and income and expense
activities;
(b) Record investment buy/sell trade tickets when received from the
investment advisor or sub-advisor (the "Advisor") for a Portfolio;
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(c) Maintain individual ledgers for investment securities;
(d) Maintain book historical tax lots for each security;
(e) Reconcile cash and investment balances of the Fund with the Custodian,
and provide the Advisor with the cash balance available for investment
purposes;
(f) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations;
(g) Calculate various contractual expenses (e.g., advisory and custody
fees);
(h) Monitor the expense accruals and notify an officer of the Fund of any
proposed adjustments;
(i) Control disbursements and authorize such disbursements upon Written
Instructions from the Fund;
(j) Calculate capital gains and losses;
(k) Determine net income;
(l) Obtain security market quotes from independent pricing services
approved by the Advisor and as authorized by the Board of Directors,
or if such quotes are unavailable, then obtain such prices from the
Advisor, and in either case calculate the market value of each
Portfolio's Investments in accordance with the valuation procedures of
the Fund that have been provided to PFPC;
(m) Provide the daily portfolio valuation to the Advisor via PFPC DataPath
access;
(n) Compute net asset value per share in accordance with the Fund's
registration statement and valuation procedures; and
(o) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity.
16. Description of Administration Services on a Continuous Basis.
PFPC will perform the following administration services with respect to
each Portfolio:
(a) Prepare quarterly broker security transactions summaries;
(b) Prepare for execution and file the Fund's Federal and state tax
returns;
(c) Monitor each Portfolio's status as a regulated investment company
under Sub-
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chapter M of the Internal Revenue Code of 1986, as amended;
(d) Prepare the Fund's annual and semi-annual shareholder reports and
coordinate with the Fund's financial printer to make such filings with
the SEC; and
(e) Prepare reports to the SEC including: (a) Form N-SAR and (b) Notices
pursuant to Rule 24f-2;
17. Description of Regulatory Administration Services on a Continuous Basis.
PFPC will perform the following regulatory administration services with
respect to each Portfolio:
(a) Prepare and coordinate with the Fund's counsel the annual
Post-Effective Amendments to the Fund's registration statement (other
than adding a new series or class), and coordinate with the Fund's
financial printer to make such filings with the SEC;
(b) Assist in obtaining the fidelity bond and directors' and
officers'/errors and omissions insurance policies for the Fund in
accordance with the requirements of Rules 17g-1 and 17d-1 (d) (7)
under the 1940 Act as such bond and policies are approved by the
Fund's Board of Directors;
(c) File the Fund's fidelity bond with the SEC and monitor the Fund's
assets to assure adequate fidelity bond coverage is maintained;
(d) Prepare notices, agendas, and resolutions for quarterly and other
periodic Board meetings (other than to add a new series or class) and
draft actions by written consent of the Board;
(e) Coordinate the preparation, assembly and mailing of Board materials;
(f) Attend quarterly and special Board meetings, make presentations at
such meetings as appropriate, and draft minutes of such meetings;
(g) Maintain the Fund's corporate calendar to monitor compliance with
various SEC filing and Board approval deadlines;
(h) Mail to appropriate parties the personal securities transaction
quarterly reporting forms under the Fund's Code of Ethics pursuant to
Rule 17j-1 under the 1940 Act; and
(i) Assist in monitoring regulatory developments which may affect the
Fund.
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18. Special Regulatory Administration Services
PFPC will perform the following Special Regulatory Administration Services
in accordance with the terms and fees as may be mutually agreed to in
writing by the Fund and PFPC:
(a) Assist in conversion: coordinate time and responsibility schedules;
draft notice, agenda, memoranda, resolutions and background materials
for Board approval;
(b) Assist in the preparation of notices of Annual or Special Meetings of
shareholders, if any, and Proxy materials relating to such meetings:
(c) Assist in new Portfolio start-up;
(d) Prepare fund merger documents;
(e) Prepare Post-Effective Amendments for special purposes (e.g. new funds
or classes, changes in advisory relationships, mergers,
restructurings);
(f) Prepare special Prospectus supplements when needed;
(g) Assist in managing SEC audits of the Funds; and
(h) Assist in extraordinary, non-recurring projects; and such other
services as agreed upon by the Fund and PFPC.
19. Description of Blue Sky Services on a Continuous Basis. PFPC will perform
"Blue Sky" compliance functions through Automated Business Development
Corporation (ABD), a subsidiary of PFPC Worldwide, Inc., which shall
include:
(a) Effecting and maintaining, as the case may be, the registration of
Shares of the Fund for sale under the securities laws of the
jurisdictions identified by the Fund. The Fund shall provide PFPC with
Written Instructions if any Portfolio is involved in an organizational
change (e.g., merger, dissolution, etc.) or if the Fund will offer any
new Portfolio. In such event, any Written Instructions not received at
least 45 days prior to the date the Fund intends to offer or sell
Shares of the relevant Portfolio cannot be guaranteed a timely
notification to the states. In addition, PFPC shall not be responsible
for providing to any other service provider of the Fund a list of the
states in which the Fund may offer and sell its Shares;
(b) Filing with each appropriate jurisdiction the appropriate materials
relating to the Fund. The Fund shall be responsible for providing such
materials to PFPC and PFPC shall make such filings promptly after
receiving such materials; and
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(c) In the event sales of Shares in a particular jurisdiction reach or
exceed the warning levels provided in Written Instructions of the
Fund, notifying promptly the Fund with a recommendation of the amount
of Shares to be registered in such jurisdiction and the fee for such
registration.
For trades by omnibus accounts, the Fund will use commercially reasonable
efforts to identify the underlying shareholders. If the Fund does not
provide PFPC with information concerning underlying shareholders, the Fund
hereby instructs PFPC to account for trades by omnibus accounts by the
applicable trustee's state of residence.
20. Duration and Termination. The term of this Agreement shall be for an
initial term commencing as of the date hereof and continuing through the
close of business three (3) years thereafter (the "Initial Term"). Upon the
expiration of the Initial Term, this Agreement shall automatically renew
for successive terms of one (1) year ("Renewal Terms"). Notwithstanding the
foregoing, either party may terminate this Agreement effective at the end
of the Initial Term or any Renewal Term by providing written notice to the
other of its intent not to renew. Such notice must be received not less
than ninety (90) days prior to the expiration of the Initial Term or the
then current Renewal Term. In the event of termination, all expenses
associated with movement (or duplication) of records and materials and
conversion thereof to a successor service provider (or each successive
service provider, if there are more than one), and all trailing expenses
incurred by PFPC, will be borne by the Fund.
21. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the
Fund, at 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000,
Attention: Xxxx XxXxxxx or (c) if to neither of the foregoing, at such
other address as shall have been given by like notice to
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the sender of any such notice or other communication by the other party. If
notice is sent by confirming telegram, cable, telex or facsimile sending
device, it shall be deemed to have been given immediately. If notice is
sent by first-class mail, it shall be deemed to have been given three days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
22. Amendments. No modification, amendment, supplement to, or waiver of this
Agreement shall be binding upon the Fund or PFPC unless signed by an
authorized representative of the party against whom such modification,
amendment, supplement or waiver is asserted.
23. Assignment. PFPC may assign its rights hereunder to any majority-owned
direct or indirect subsidiary of PFPC or of The PNC Financial Services
Group, Inc., provided that PFPC gives the Fund 30 days' prior written
notice of such assignment.
24. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
25. Further Actions. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
26. DataPath/sm/ Access Services. PFPC shall provide the DataPath/sm/ Internet
access services as set forth on Exhibit B attached hereto and made a part
hereof, as such Exhibit B may be amended from time to time.
27. Miscellaneous.
(a) Notwithstanding anything in this Agreement to the contrary, the Fund
agrees not to make any modifications to its registration statement or
adopt or modify any policies which would affect materially the
obligations or responsibilities of PFPC
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hereunder without the prior written approval of PFPC, which approval
shall not be unreasonably withheld or delayed.
(b) Except as expressly provided in this Agreement, PFPC hereby disclaims
all representations and warranties, express or implied, made to the
Fund or any other person, including, without limitation, any
warranties regarding quality, suitability, merchantability, fitness
for a particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any goods
provided incidental to services provided under this Agreement. PFPC
disclaims any warranty of title or non-infringement except as
otherwise set forth in this Agreement.
(c) This Agreement embodies the entire agreement and understanding between
the parties and supersedes all prior agreements (including the
Superceded Agreement) and understandings relating to the subject
matter hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to delegated
duties. The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
Notwithstanding any provision hereof, the services of PFPC are not,
nor shall they be, construed as constituting legal advice or the
provision of legal services for or on behalf of the Fund or any other
person.
(d) This Agreement shall be deemed to be a contract made in Delaware and
governed by Delaware law, without regard to principles of conflicts of
law.
(e) If any provision of this Agreement shall be held or made invalid by a
court
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decision, statute, rule or otherwise, the remainder of this Agreement
shall not be affected thereby. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
Senior Vice President
FORWARD FUNDS INC.
By: /s/ Xxxx X. XxXxxxx
-------------------------------------
Xxxx X. XxXxxxx
Treasurer
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EXHIBIT A
---------
THIS EXHIBIT A, dated as of February 1, 2003 is Exhibit A to that certain
Amended and Restated Administration Agreement dated as of February 1, 2003
between PFPC Inc. and Forward Funds, Inc. (the "Fund"). The following is the
list of the Fund's Portfolios that are subject to the Agreement:
PORTFOLIOS
----------
Forward Xxxxxxxxxx International Growth Fund
Forward Xxxxxx Mini-Cap Fund
Forward Xxxxxx Small Cap Equity Fund
Forward Uniplan Real Estate Investment Fund
Sierra Club Balanced Fund
Sierra Club Stock Fund
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EXHIBIT B
---------
PFPC DataPath(sm) Access Services
---------------------------------
THIS EXHIBIT B, dated as of February 1, 2003 is Exhibit B to that certain
Amended and Restated Administration Agreement dated as of February 1, 2003
between PFPC Inc. and Forward Funds, Inc. (the "Fund").
1. PFPC Services
PFPC shall:
(a) Provide internet access to PFPC's DataPath/sm/ ("DataPath") at
xxx.xxxxxxxxxxxx.xxx or other site operated by PFPC (the "Site") for
Fund portfolio data otherwise supplied by PFPC to the Fund via other
electronic and manual methods. Types of information to be provided on
the Site include: (i) data relating to portfolio securities, (ii)
general ledger balances and (iii) net asset value-related data,
including NAV and net asset, distribution and yield detail
(collectively, the "DataPath Services");
(b) Supply each of the individuals that the Fund identifies in writing to
be authorized users of DataPath ("Users") with a logon ID and
Password;
(c) Provide to Users access to the information listed in subsection (a)
above using standard inquiry tools and reports. With respect to the
DataPath Services, Authorized Users will be able to modify standard
inquiries to develop user-defined inquiry tools; however, PFPC will
review computer costs for running user-defined inquiries and may
assess surcharges for those requiring excessive hardware resources. In
addition, costs for developing custom reports or enhancements are not
included in the fees set forth in Section 12 of the Agreement and will
be billed separately;
(d) Utilize a form of encryption that is generally available to the public
in the U.S. for standard internet browsers and establish, monitor and
verify firewalls and other security features (commercially reasonable
for this type of information and these types of users) and exercise
commercially reasonable efforts to attempt to maintain the security
and integrity of the Site; and
(e) Monitor the telephone lines involved in providing the DataPath
Services and inform the Funds promptly of any malfunctions or service
interruptions.
2. Duties of the Fund and the Users
The Fund shall, and to the extent appropriate, cause Users to:
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(a) Provide and maintain a web browser supporting Secure Sockets Layer
128-bit encryption; and
(b) Keep logon IDs and passwords confidential and notify PFPC immediately
in the event that a logon ID or password is lost, stolen or if you
have reason to believe that the logon ID and password are being used
by an unauthorized person.
3. Standard of Care; Limitations of Liability
(a) Notwithstanding anything to the contrary contained in this Exhibit or any
other part of the Agreement, PFPC shall be liable only for direct damages
incurred by the Fund which arise out of PFPC's failure to perform its
duties and obligations described in this Exhibit to the extent such damages
constitute willful misfeasance, bad faith, gross negligence or reckless
disregard.
(b) The Fund acknowledges that the Internet is an "open," publicly accessible
network and not under the control of any party. PFPC's provision of
DataPath Services is dependent upon the proper functioning of the Internet
and services provided by telecommunications carriers, firewall providers,
encryption system developers and others. The Fund agrees that PFPC shall
not be liable in any respect for the actions or omissions of any third
party wrongdoers (i.e., hackers not employed by such party or its
affiliates) or of any third parties involved in the DataPath Services and
shall not be liable in any respect for the selection of any such third
party, unless that selection constitutes a breach of PFPC's standard of
care above.
(c) Without limiting the generality of the foregoing or any other provisions of
this Exhibit or the Agreement, PFPC shall not be liable for delays or
failures to perform any of the DataPath Services or errors or loss of data
occurring by reason of circumstances beyond such party's control, including
acts of civil or military authority, national emergencies,
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labor difficulties, fire, flood, catastrophe, acts of God, insurrections,
war, riots or failure of the mails, transportation, communication or power
supply, functions or malfunctions of the Internet or telecommunications
services, firewalls, encryption systems or security devices caused by any
of the above, or laws or regulations imposed after the date of this
Exhibit.
4. Miscellaneous. In the event of a conflict between specific terms of this
Exhibit and the balance of the Agreement, this Exhibit shall control as to the
DataPath Services.
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