EXHIBIT 99(h)(11)
TRANSFER AGENCY AGREEMENT
AGREEMENT made as of the 1st day of December, 2003, between PERFORMANCE
FUNDS TRUST (the "Trust"), a Delaware trust having its principal place of
business at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx, and BISYS FUND
SERVICES OHIO, INC. ("BISYS"), a Delaware corporation having its principal place
of business at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000.
WHEREAS, the Trust and BISYS entered into a Transfer Agency Agreement
dated October 1, 1996 and amendments dated October 1, 1998, August 14, 2001,
July 24, 2002, August 1, 2003, and October 1, 2003 (as so amended, the "1996
Agreement"), whereby BISYS agreed to perform transfer agency services for the
Trust, which has continued in effect through the date hereof;
WHEREAS, the Trust desires that BISYS continue to perform transfer
agency services for the Trust and each investment portfolio of the Trust, as now
in existence and listed on Schedule A hereto, or as hereafter may be established
from time to time (individually referred to herein as the "Fund" and
collectively as the "Funds);
WHEREAS, BISYS is willing to perform such services on the terms and
conditions set forth in this Agreement; and
WHEREAS, BISYS and Trust wish to enter into a new Agreement in order to
set forth the terms under which BISYS will perform the transfer agency services
set forth herein for the Trust.
NOW, THEREFORE, in consideration of the covenants hereinafter
contained, the Trust and BISYS hereby agree as follows:
1. Services
BISYS shall perform for the Trust the transfer agent services set forth
in Schedule B hereto. BISYS also agrees to perform for the Trust such special
services incidental to the performance of the services enumerated herein as
agreed to by the parties from time to time. BISYS shall perform such additional
services as are provided on an amendment to Schedule B hereof, in consideration
of such fees as the parties hereto may agree.
BISYS may, with prior notice to the Trust, appoint in writing other
parties qualified to perform transfer agency services reasonably acceptable to
the Trust (individually, a "Sub-transfer Agent") to carry out some or all of its
responsibilities as transfer agent under this Agreement with respect to a Fund;
provided, however, that the Sub-transfer Agent shall be the agent of BISYS and
not the agent of the Trust or such Fund, and that BISYS shall be fully
responsible for the acts of such Sub-transfer Agent and shall not be relieved of
any of its responsibilities hereunder by the appointment of such Sub-transfer
Agent.
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2. Fees
The Trust shall pay BISYS for the services to be provided by BISYS
under this Agreement in accordance with, and in the manner set forth in,
Schedule C hereto. Fees for any additional services to be provided by BISYS
pursuant to an amendment to Schedule B hereto shall be subject to mutual
agreement at the time such amendment to Schedule B is proposed.
3. Reimbursement of Expenses and Miscellaneous Service Fees
(a) In addition to paying BISYS the fees set forth in Schedule C,
the Trust agrees to reimburse BISYS for BISYS' reasonable
out-of-pocket expenses (for which no xxxx-up for BISYS
overhead expenses shall be included) in providing services
hereunder, including without limitation, the following:
(i) All freight and other delivery and bonding charges
incurred by BISYS in delivering materials to and from
the Trust and in delivering all materials to
shareholders;
(ii) All direct telephone, telephone transmission and
telecopy or other electronic transmission expenses
incurred by BISYS in communication with the Trust,
the Trust's investment adviser or custodian, dealers,
shareholders or others as required for BISYS to
perform the services to be provided hereunder;
(iii) Sales taxes paid on behalf of the Trust;
(iv) The cost of microfilm or microfiche or other
electronic retention of records or other materials;
(v) Courier (delivery expenses);
(vi) Check processing fees;
(vii) Records retention / storage fees;
(viii) Fulfillment;
(ix) XXX custody and other related fees;
(x) NSCC and related costs;
(xi) Sales taxes;
(xii) Costs of statements and confirmations;
(xiii) Costs of tax forms;
(xiv) Costs of all other shareholder correspondence;
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(xv) Post office boxes; and
(xvi) Any expenses BISYS shall incur at the written
direction of an officer of the Trust thereunto duly
authorized.
(b) In addition, BISYS shall be entitled to receive the following
fees:
(i) A fee for managing and overseeing the report, print
and mail functions performed by BISYS' third-party
vendors, not to exceed $.04 per page for statements
and $.03 per page for confirmations; fees for
programming in connection with creating or changing
the forms of statements, billed at the rate of $150
per hour; and costs for postage, couriers, stock
computer paper, computer disks, statements, labels,
envelopes, checks, reports, letters, tax forms,
proxies, notices or other forms of printed material
(including the costs of preparing and printing all
printed materials) which shall be required for the
performance of the services to be provided hereunder;
(ii) System development fees, billed at the rate of $150
per hour, as approved by the Trust, and all
systems-related expenses, agreed in advance,
associated with the provision of special reports and
services pursuant to Item 8 of Schedule D attached
hereto;
(iii) Fees for development of custom interfaces, billed at
a mutually agreed upon rate;
(iv) Ad hoc reporting fees, billed at a mutually agreed
upon rate;
(v) Interactive Voice Response System fees, charged
according o BISYS' standard rate schedule, and
applicable to the level of service (e.g., basic,
transaction, premium) selected;
(vi) Expenses associated with the tracking of "as-of"
trades, billed at the rate of $50 per hour, as
approved by the Trust; and
(vii) Fees and expenses associated with BISYS' anti-fraud
procedures and the performance of delegated services
under the written anti-money laundering program ("AML
Program") adopted by the Trust, as set forth on
Schedule C.
4. Effective Date
This Agreement shall become effective as of the date first written
above (the "Effective Date").
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5. Term
This Agreement shall continue in effect for five (5) years, until
November 30, 2008 (the "Initial Term"). Thereafter, unless otherwise terminated
as provided herein, this Agreement shall be renewed automatically for successive
one year periods ("Rollover Periods"). This Agreement may be terminated only (i)
by provision of a notice of nonrenewal in the manner set forth below, (ii) by
mutual agreement of the parties, (iii) for "cause," as defined below, upon the
provision of sixty (60) days advance written notice by the party alleging cause,
or (iv) as provided in Schedule E (Service Standards). Written notice of
nonrenewal must be provided at least sixty (60) days prior to the end of the
Initial Term or any Rollover Period, as the case may be.
For purposes of this Agreement, "cause" shall mean (a) a material
breach of this Agreement that has not been remedied for thirty (30) days
following written notice of such breach from the non-breaching party; (b) a
final, unappealable judicial, regulatory or administrative ruling or order in
which the party to be terminated has been found guilty of criminal or unethical
behavior in the conduct of its business; or (c) financial difficulties on the
part of the party to be terminated which are evidenced by the authorization or
commencement of, or involvement by way of pleading, answer, consent or
acquiescence in, a voluntary or involuntary case under Title 11 of the United
States Code, as from time to time is in effect, or any applicable law, other
than said Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration of the rights of
creditors. BISYS shall not terminate this Agreement pursuant to clause (a) above
based solely upon the Trust's failure to pay an amount to BISYS which is the
subject of a good faith dispute, if (i) the Trust is attempting in good faith to
resolve such dispute with as much expediency as may be possible under the
circumstances, and (ii) the Trust continues to perform its obligations hereunder
in all other material respects (including paying all fees and expenses not
subject to reasonable dispute hereunder).
Notwithstanding the foregoing, following any such termination, in the
event that BISYS in fact continues to perform any one or more of the services
contemplated by this Agreement (or any Schedule or exhibit hereto) with the
consent of the Trust, the provisions of this Agreement, including without
limitation the provisions dealing with indemnification, shall continue in full
force and effect. Fees and out-of-pocket expenses incurred by BISYS but unpaid
by the Trust upon such termination shall be immediately due and payable upon and
notwithstanding such termination. BISYS shall be entitled to collect from the
Trust, in addition to the fees and disbursements provided by Schedule C and
Section 3 hereof, the amount of all of BISYS' cash disbursements up to a maximum
amount of $50,000.00 in connection with BISYS' activities in effecting such
termination of this Agreement, including without limitation, the delivery to the
Trust and/or its distributor or investment adviser and/or other parties of the
Trust's property, records, instruments and documents.
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6. Standard of Care; Uncontrollable Events; Limitation of Liability
BISYS shall use reasonable professional diligence to ensure the
accuracy of all services performed under this Agreement, but shall not be liable
to the Trust for any action taken or omitted by BISYS in the absence of bad
faith, willful misfeasance, negligence or reckless disregard by it of its
obligations and duties. The duties of BISYS shall be confined to those expressly
set forth herein, and no implied duties are assumed by or may be asserted
against BISYS hereunder.
BISYS shall maintain adequate and reliable computer and other equipment
necessary or appropriate to carry out its obligations under this Agreement. Upon
the Trust's reasonable request, BISYS shall provide supplemental information
concerning the aspects of its disaster recovery and business continuity plan
that are relevant to the services provided hereunder. Notwithstanding the
foregoing or any other provision of this Agreement, BISYS assumes no
responsibility hereunder, and shall not be liable for, any damage, loss of data,
delay or any other loss whatsoever caused by events beyond its reasonable
control. Events beyond BISYS' reasonable control include, without limitation,
force majeure events. Force majeure events include natural disasters, actions or
decrees of governmental bodies, and communication lines failures that are not
the fault of either party. In the event of force majeure, computer or other
equipment failures or other events beyond its reasonable control, BISYS shall
follow applicable procedures in its disaster recovery and business continuity
plan and use all commercially reasonable efforts to minimize any service
interruption.
BISYS shall provide the Trust, at such times as the Trust may
reasonably require, copies of reports rendered by independent public accountants
on the internal controls and procedures of BISYS relating to the services
provided by BISYS under this Agreement.
Neither party shall be liable for damages that would not reasonably be
considered as arising naturally, i.e., according to the usual course of things,
from a breach of this Agreement, or that would not reasonably be supposed to
have been in the contemplation of the parties, at the time they entered into
this Agreement, as the probable result of the breach of it, given industry
standards and other relevant factors.
7. Legal Advice
BISYS shall notify the Trust at any time BISYS believes that it is in
need of the advice of counsel (other than counsel in the regular employ of BISYS
or any affiliated companies) with regard to BISYS' responsibilities and duties
pursuant to this Agreement. After so notifying the Trust, BISYS, at its
discretion, shall be entitled to seek, receive and act upon advice of legal
counsel of its choosing, such advice to be at the expense of the Trust unless
relating to a matter involving BISYS' willful misfeasance, bad faith, gross
negligence or reckless disregard of BISYS' responsibilities and duties
hereunder, and BISYS shall in no event be liable to the Trust or any Fund or any
shareholder or beneficial owner of the Trust for any action reasonably taken
pursuant to such advice.
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8. Instructions / Certain Procedures, etc.
Whenever BISYS is requested or authorized to take action hereunder
pursuant to instructions from a shareholder, or a properly authorized agent of a
shareholder ("shareholder's agent"), concerning an account in a Fund, BISYS
shall be entitled to rely upon any certificate, letter or other instrument or
communication (including electronic mail), reasonably believed by BISYS to be
genuine and to have been properly made, signed or authorized by an officer or
other authorized agent of the Trust or by the shareholder or shareholder's
agent, as the case may be, and shall be entitled to receive as conclusive proof
of any fact or matter required to be ascertained by it hereunder a certificate
signed by an officer of the Trust or any other person authorized by the Trust's
Board of Trustees (hereafter referred to as the "Board") or by the shareholder
or shareholder's agent, as the case may be.
As to the services to be provided hereunder, BISYS may rely
conclusively upon the terms of the Prospectuses and Statement of Additional
Information of the Trust relating to the relevant Funds to the extent that such
services are described therein unless BISYS receives written instructions to the
contrary in a timely manner from the Trust.
The parties hereto may amend any procedures adopted, approved or set
forth herein by written agreement as may be appropriate or practical under the
circumstances, and BISYS may conclusively assume that any special procedure
which has been approved by an executive officer of the Trust (other than an
officer or employee of BISYS) does not conflict with or violate any requirements
of the Trust's Declaration of Trust, By-Laws or then-current prospectuses, or
any rule, regulation or requirement of any regulatory body.
The Trust acknowledges receipt of a copy of BISYS' policy related to
the acceptance of trades for prior day processing (the "BISYS As-Of Trading
Policy"). BISYS may amend the BISYS As-of Trading Policy from time to time in
its sole discretion. A copy of any such amendments shall be delivered to the
Trust upon request. BISYS may apply the BISYS As-Of Trading Policy whenever
applicable, unless BISYS agrees in writing to process trades according to such
other as-of trading policy as may be adopted by the Trust and furnished to BISYS
by the Trust.
The Trust acknowledges and agrees that deviations from BISYS' written
transfer agent compliance procedures may involve a substantial risk of loss. In
the event an authorized representative of the Trust requests that an exception
be made from any written compliance or transfer agency procedures adopted by
BISYS, or any requirements of the AML Program, BISYS may in its sole discretion
determine whether to permit such exception. In the event BISYS determines to
permit such exception, the same shall become effective when set forth in a
written instrument executed by an authorized representative of the Trust (other
than an employee of BISYS) and delivered to BISYS (an "Exception"); provided
that an Exception concerning the requirements of the Trust's AML Program shall
be authorized by the Trust's AML Compliance Officer (as defined in Section 15).
An Exception shall be deemed to remain effective until the relevant instrument
expires according to its terms (or if no expiration date is stated, until
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BISYS receives written notice from the Trust that such instrument has been
terminated and the Exception is no longer in effect). Notwithstanding any
provision in this Agreement that expressly or by implication provides to the
contrary, as long as BISYS acts in good faith, BISYS shall have no liability for
any loss, liability, expenses or damages to the Trust resulting from the
Exception, and the Trust shall indemnify BISYS and hold BISYS harmless from any
loss, liability, expenses (including reasonable attorneys fees) and damages
resulting to BISYS therefrom.
9. Indemnification
The Trust agrees to indemnify and hold harmless BISYS, its employees,
agents, directors, officers and nominees from and against any and all claims,
demands, actions and suits, and from and against any and all judgments,
liabilities, losses, damages, costs, charges, counsel fees and other expenses of
every nature and character arising out of or in any way relating to BISYS'
actions taken or omissions with respect to the performance of services under
this Agreement or based, if applicable, upon reasonable reliance on information,
records, instructions or requests given or made to BISYS by the Trust, the
investment adviser, fund accountant or custodian thereof; provided that this
indemnification shall not apply to actions or omissions of BISYS in cases of its
own bad faith, willful misfeasance, negligence or reckless disregard by it of
its obligations and duties.
BISYS shall indemnify, defend, and hold the Trust harmless from and
against any and all claims, actions and suits and all losses, damages, costs,
charges, reasonable counsel fees and disbursements, payments, expenses and
liabilities (including reasonable investigation expenses) resulting directly and
proximately from BISYS' willful misfeasance, bad faith or negligence in the
performance of its duties or by reason of reckless disregard of its obligations
and duties hereunder.
The indemnification rights hereunder shall include the right to
reasonable advances of defense expenses in the event of any pending or
threatened litigation with respect to which indemnification hereunder may
ultimately be merited. In order that the indemnification provisions contained
herein shall apply, however, it is understood that if in any case a party may be
asked to indemnify or hold the other party harmless, the indemnifying party
shall be fully and promptly advised of all pertinent facts concerning the
situation in question, and it is further understood that the indemnified party
will use all reasonable care to identify and notify the indemnifying party
promptly concerning any situation which presents or appears likely to present
the probability of such a claim for indemnification against the indemnifying
party, but failure to do so in good faith shall not affect the rights hereunder
except to the extent the indemnifying party is materially prejudiced thereby. As
to any matter eligible for indemnification, an Indemnified Party shall act
reasonably and in accordance with good faith business judgment and shall not
effect any settlement or confess judgment without the consent of the
Indemnifying Party, which consent shall not be withheld or delayed unreasonably.
The indemnifying party shall be entitled to participate at its own
expense or, if it so elects, to assume the defense of any suit brought to
enforce any claims subject to this
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indemnity provision. If the indemnifying party elects to assume the defense of
any such claim, the defense shall be conducted by counsel chosen by it and
reasonably satisfactory to the indemnified party, whose approval shall not be
unreasonably withheld. In the event that the indemnifying party elects to assume
the defense of any suit and retain counsel, the indemnified party shall bear the
fees and expenses of any additional counsel retained by it. If the indemnifying
party does not elect to assume the defense of suit, it will reimburse the
indemnified party for the reasonable fees and expenses of any counsel retained
by the indemnified party. The indemnity and defense provisions set forth herein
shall indefinitely survive the termination of this Agreement.
10. Record Retention and Confidentiality
BISYS shall keep and maintain on behalf of the Trust all books and
records which the Trust or BISYS is, or may be, required to keep and maintain
pursuant to any applicable statutes, rules and regulations, including without
limitation Rules 31a-1 and 31a-2 under the Investment Company Act of 1940, as
amended (the "1940 Act"), relating to the maintenance of books and records in
connection with the services to be provided hereunder. BISYS further agrees that
all such books and records shall be the property of the Trust and to make such
books and records available for inspection by the Trust or by the Securities and
Exchange Commission (the "Commission") at reasonable times. BISYS shall
otherwise keep confidential all books and records relating to the Trust and its
shareholders, except when (i) disclosure is required by law, (ii) BISYS is
advised by counsel that it may incur liability for failure to make a disclosure,
(iii) BISYS is requested to divulge such information by duly-constituted
authorities or court process, or (iv) BISYS is requested to make a disclosure by
a shareholder or shareholder's agent with respect to information concerning an
account as to which such shareholder has either a legal or beneficial interest
or when requested by the Trust or the dealer of record as to such account. BISYS
shall provide the Trust with reasonable advance notice of disclosure pursuant to
items (i) - (iii) of the previous sentence, to the extent reasonably
practicable. The provisions of this Section 10 are subject to the provisions of
Section 22.
11. Reports
BISYS shall furnish to the Trust and to its properly-authorized
auditors, investment advisers, examiners, distributors, dealers, underwriters,
salesmen, insurance companies and others designated by the Trust in writing,
such reports at such times as are prescribed in Schedule D attached hereto, or
as subsequently agreed upon by the parties pursuant to an amendment to Schedule
D. The Trust agrees to examine each such report or copy within twenty (20) days
and will report or cause to be reported any errors or discrepancies therein. In
the event that errors or discrepancies, except such errors and discrepancies as
may not reasonably be expected to be discovered by the recipient within twenty
(20) days after conducting a diligent examination, are not so reported within
the aforesaid period of time, a report will for all purposes be accepted by and
binding upon the Trust and any other recipient, and BISYS shall have no
liability for errors or discrepancies therein and shall have no further
responsibility with respect to such report except to perform reasonable
corrections of such errors and discrepancies within a reasonable time after
requested to do so by the Trust.
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12. Rights of Ownership
All computer programs and procedures employed or developed by or on
behalf of BISYS to perform services required to be provided by BISYS under this
Agreement are the property of BISYS. All records and other data except such
computer programs and procedures are the exclusive property of the Trust and all
such other records and data shall be furnished to the Trust in appropriate form
as soon as practicable after termination of this Agreement for any reason.
13. Return of Records
BISYS may at its option at any time, and shall promptly upon the
Trust's demand, turn over to the Trust and cease to retain BISYS' files, records
and documents created and maintained by BISYS pursuant to this Agreement which
are no longer needed by BISYS in the performance of its services or for its
legal protection. If not so turned over to the Trust, such documents and records
shall be retained by BISYS for six years from the year of creation. At the end
of such six-year period, such records and documents shall be turned over to the
Trust unless the Trust authorizes in writing the destruction of such records and
documents.
14. Bank Accounts
BISYS is hereby granted such power and authority as may be necessary to
establish one or more bank accounts for the Trust with such bank or banks as are
selected or approved by the Trust, as may be necessary or appropriate from time
to time in connection with the services required to be performed hereunder. The
Trust shall be deemed to be the customer of such Bank or Banks for all purposes
in connection with such accounts. To the extent that the performance of such
services hereunder shall require BISYS to disburse amounts from such accounts in
payment of dividends, redemption proceeds or for other purposes hereunder, the
Trust shall provide such bank or banks with all instructions and authorizations
necessary for BISYS to effect such disbursements.
15. Representations and Warranties of the Trust
The Trust represents and warrants to BISYS that: (a) as of the close of
business on the Effective Date, each Fund which is in existence as of the
Effective Date has authorized unlimited shares, (b) by virtue of its Declaration
of Trust, shares of each Fund which are redeemed by the Trust may be sold by the
Trust from its treasury, and (c) this Agreement has been duly authorized by the
Trust and, when executed and delivered by the Trust, will constitute a legal,
valid and binding obligation of the Trust, enforceable against the Trust in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the rights and
remedies of creditors and secured parties.
The Trust also represents and warrants that (a) the Trust has adopted
the written AML Program that has been submitted to BISYS pursuant to Section 18,
and has appointed an officer of the Trust as the Trust's anti-money laundering
compliance officer
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("AML Compliance Officer"), (b) the AML Program and the designation of the AML
Officer have been approved by the Board, (c) the delegation of certain services
thereunder to BISYS, as provided in Section 22, has been approved by the Board,
and (d) the Trust will submit any material amendments to the AML Program to
BISYS for BISYS' review and consent prior to adoption in accordance with Section
20.
16. Representations and Warranties of BISYS
BISYS represents and warrants that: (a) BISYS has been in, and shall
continue to be in compliance in all material respects with all provisions of
law, including Section 17A(c) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), required in connection with the performance of its duties
under this Agreement; (b) the various procedures and systems which BISYS has
implemented with regard to safekeeping from loss or damage attributable to fire,
theft or any other cause of the blank checks, records, and other data of the
Trust and BISYS' records, data, equipment, facilities and other property used in
the performance of its obligations hereunder are adequate and that it will make
such changes therein from time to time as are reasonably required for the secure
performance of its obligations hereunder; and (c) this Agreement has been duly
authorized by BISYS and, when executed and delivered by BISYS, will constitute a
legal, valid and binding obligation of BISYS, enforceable against BISYS in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting the right and
remedies of creditors and secured parties.
BISYS also represents and warrants to the Trust that it has adopted and
will maintain a written program concerning the anti-money laundering services it
provides to its various clients, and that its policies and procedures are
reasonably adequate for it to provide the AML Services and comply with its
obligations under this Amendment.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES, 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) CONCERNING THE
SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS
AGREEMENT BY BISYS ARE COMPLETELY DISCLAIMED.
17. Insurance
BISYS shall maintain a fidelity bond covering larceny and embezzlement
and an insurance policy with respect to directors and officers errors and
omissions coverage in amounts that are appropriate in light of its duties and
responsibilities hereunder. Upon the request of the Trust, BISYS shall provide
evidence that coverage is in place. BISYS shall notify the Trust should its
insurance coverage with respect to professional liability or errors and
omissions coverage be canceled. Such notification shall include the date of
cancellation and the reasons therefore. BISYS shall notify the Trust of any
material
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claims against it with respect to services performed under this Agreement,
whether or not they may be covered by insurance, and shall notify the Trust
should the total outstanding claims made by BISYS under its insurance coverage
materially impair, or threaten to materially impair, the adequacy of its
coverage.
18. Information to be Furnished by the Trust and Funds
The Trust has furnished to BISYS the following, as amended and current
as of the Effective Date:
(a) A copy of the Declaration of Trust of the Trust and of any
amendments thereto, certified by the proper official of the
state in which such Declaration has been filed.
(b) A copy of the Trust's Bylaws and any amendments thereto;
(c) Certified copies of resolutions of the Board covering the
following matters:
(i) Approval of this Agreement and authorization of a
specified officer of the Trust to execute and deliver
this Agreement and authorization for specified
officers of the Trust to instruct BISYS hereunder;
and
(ii) Authorization of BISYS to act as Transfer Agent for
the Trust.
(d) A list of all officers of the Trust, with the Trust's AML
Compliance Officer included among the officers therein, and
any other persons (who may be associated with the Trust or its
investment advisor), together with specimen signatures of
those officers and other persons who (except as otherwise
provided herein to the contrary) shall be authorized to
instruct BISYS in all matters.
(e) Two copies of the following (if such documents are employed by
the Trust):
(i) Prospectuses and Statement of Additional Information;
(ii) Distribution Agreement; and
(iii) All other forms commonly used by the Trust or its
Distributor with regard to their relationships and
transactions with shareholders of the Funds.
(f) A certificate as to shares of beneficial interest of the Trust
authorized, issued, and outstanding as of the Effective Date
and as to receipt of full consideration by the Trust for all
shares outstanding, such statement to be certified by the
Treasurer of the Trust.
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(g) A copy of the Trust's written AML Program, including related
Policies and Procedures.
19. Information Furnished by BISYS
BISYS has furnished to the Trust evidence of the following:
(a) Approval of this Agreement by BISYS, and authorization of a
specified officer of BISYS to execute and deliver this
Agreement;
(b) The written program concerning anti-money laundering services
rendered by BISYS to its various clients.
(c) The current BISYS "As-of" Trading Policy.
20. Amendments to Documents
The Trust shall furnish BISYS written copies of any amendments to, or
changes in, any of the items referred to in Section 18 hereof forthwith upon
such amendments or changes becoming effective. In addition, the Trust agrees
that no amendments will be made to the Prospectuses or Statement of Additional
Information of the Trust, or the AML Program, which might have the effect of
changing the procedures employed by BISYS in providing the services agreed to
hereunder or which amendment might affect the duties of BISYS hereunder unless
the Trust first obtains BISYS' approval of such amendments or changes, which
approval shall not be withheld unreasonably.
21. Reliance on Amendments
BISYS may rely on any amendments to or changes in any of the documents
and other items to be provided by the Trust pursuant to Sections 18 and 20 of
this Agreement and, subject to the provisions of Section 6 hereof, the Trust
hereby indemnifies and holds harmless BISYS from and against any and all claims,
demands, actions, suits, judgments, liabilities, losses, damages, costs,
charges, counsel fees and other expenses of every nature and character which may
result from actions or omissions on the part of BISYS in reasonable reliance
upon such amendments and/or changes. Although BISYS is authorized to rely on the
above-mentioned amendments to and changes in the documents and other items to be
provided pursuant to Sections 18 and 20 hereof, in the event the same relate to
services provided by BISYS hereunder, BISYS shall have no liability for failure
to comply with or take any action in conformity with such amendments or changes
unless the Trust first obtains BISYS' written consent to and approval of such
amendments or changes.
22. Compliance with Laws
Except for the obligations of BISYS set forth in Section 10 hereof, the
Trust assumes full responsibility for the preparation, contents, and
distribution of each prospectus of the Trust as to compliance with all
applicable requirements of the Securities Act of 1933, as amended (the "1933
Act"), the 1940 Act, and any other laws,
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rules and regulations of governmental authorities having jurisdiction. BISYS
shall have no obligation to take cognizance of any laws relating to the sale of
the Trust's shares. The Trust represents and warrants that all shares of the
Trust that are offered to the public are covered by an effective registration
statement under the 1933 Act and the 1940 Act.
The Trust acknowledges that it is a financial institution subject to
the law entitled Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism ("U.S.A. Patriot") Act of
2001 and the Bank Secrecy Act (collectively, the "AML Acts") and shall comply
with the AML Acts and applicable regulations adopted thereunder (collectively,
the "Applicable AML Laws") in all relevant respects, subject to the delegation
of certain responsibilities to BISYS, as provided in the next paragraph below.
The Trust hereby delegates to BISYS the performance, on behalf of the
Trust, of the anti-money laundering services set forth under Item 6 of Schedule
B (the "AML Services") as concerns the shareholder accounts maintained by BISYS
pursuant to this Agreement (including direct accounts; accounts maintained
through FUND/SERV and Networking, to the extent provided below, and omnibus
accounts, to the extent provided below). BISYS agrees to the foregoing
delegation and agrees to perform such services in accordance with the Trust's
AML Program. In connection therewith, BISYS agrees to maintain policies and
procedures, and related internal controls, that are consistent with the Trust's
AML Program and the requirement that the Trust employ procedures reasonably
designed to achieve compliance with the Applicable AML Laws, including the
requirement to have policies and procedures that can be reasonably expected to
detect and cause the reporting of transactions under Section 5318 of the Bank
Secrecy Act. BISYS' obligations under this delegation shall be subject to
Sections 18 and 20, which require that the AML Program and any material
amendments thereto be submitted to BISYS for its review and consent. In
connection with the AML Services, at least quarterly, BISYS shall provide a
report to the Trust containing the information set forth in Item 9 of Schedule
D.
The Trust agrees and acknowledges that, notwithstanding the delegation
provided for in the foregoing paragraph, the Trust maintains full responsibility
for ensuring that its AML Program is, and shall continue to be, reasonably
designed to ensure compliance with the Applicable AML Laws, in light of the
particular business of the Trust, taking into account factors such as its size,
location, activities and risks or vulnerabilities to money laundering.
In connection with the foregoing delegation, the Trust also
acknowledges that the performance of the AML Services involves the exercise of
discretion which in some circumstances may result in consequences to the Trust
and its shareholders (such as in the case of the reporting of suspicious
activities and the freezing of shareholder accounts). In this regard, (i) under
circumstances in which the AML Program authorizes the taking of certain actions,
BISYS is granted the discretion to take any such action as may be authorized
under the AML Program, and consultation with Trust shall not be required in
connection therewith unless specifically required under the AML Program, and
(ii) the Trust instructs BISYS that it may avail the Trust of any safe harbor
from civil liability
13
that may be available under Applicable AML Laws for making a disclosure or
filing a report thereunder.
BISYS shall grant reasonable access to teach of the Trust, the AML
Compliance Officer, and regulators having jurisdiction over the Trust, to the
books and records maintained by BISYS as the same relates to the services
performed hereunder on behalf of the trust. Records may be edited or redacted to
maintain confidentiality of materials related to other clients of BISYS. BISYS
shall make its relevant personnel available to meet with the Board concerning
the AML Services at least annually or at such other intervals as may be
reasonably necessary or appropriate.
The provisions of the Agreement concerning recordkeeping and
confidentiality are subject to the foregoing provisions of this Section.
As concerns Networking Level III accounts and omnibus accounts, the AML
Services performed by BISYS are subject to a more limited scope, as contemplated
under the interim final rule of the Department of the Treasury, 31 CFR 103,
effective April 24, 2002 (the "Interim Final Rule") and the performance by the
Trust of the risk-based evaluation of entities holding such accounts, as
contemplated under the Interim Final Rule. The foregoing reference to the
Interim Final Rule shall be deemed to include laws and regulations adopted
subsequent to the Interim Final Rule, if and to the extent consistent therewith.
23. Notices
Any notice provided hereunder shall be sufficiently given when sent by
registered or certified mail to the party required to be served with such notice
at the following address: if to the Trust, to Performance Funds Trust (the
"Trust"), at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000; Attn: Xxxxxx
Xxxxxx; and if to BISYS, at 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxx 00000; Attn:
President, or at such other address as such party may from time to time specify
in writing to the other party pursuant to this Section.
24. Assignment
This Agreement and the rights and duties hereunder shall not be
assignable by either of the parties hereto except by the specific written
consent of the other party. This Section 24 shall not limit or in any way affect
BISYS' right to appoint a Sub-transfer Agent pursuant to Section 1 hereof. This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
In the event that BISYS or its direct or indirect parent, directly or
indirectly merges with, or sells substantially all of its assets to, another
entity, BISYS agrees to provide the Trust a continuing high level of quality
service, experienced personnel, and appropriate resources to properly service
the Trust, provided that nothing herein shall permit an assignment otherwise
prohibited by the provision of the first paragraph of this Section 24.
14
25. Governing Law and Matters Relating to the Trust as a Delaware Trust.
This Agreement shall be governed by and provisions shall be construed
in accordance with the laws of the State of Ohio and the applicable provisions
of the 1940 Act. To the extent that the applicable laws of the State of Ohio, or
any of the provisions herein, conflict with the applicable provisions of the
1940 Act, the latter shall control. It is expressly agreed that the obligations
of the Trust hereunder shall not be binding upon any of the Trustees,
shareholders, nominees, officers, agents or employees of the Trust personally,
but shall bind only the trust property of the Trust. The execution and delivery
of this Agreement have been authorized by the Board, and this Agreement has been
signed and delivered by an authorized officer of the Trust, acting as such, and
neither such authorization by the Board nor such execution and delivery by such
officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in the Trust's Declaration of Trust.
26. Activities of BISYS
The services of BISYS rendered to the Trust hereunder are not to be
deemed to be exclusive. BISYS is free to render such services to others and to
have other businesses and interests. It is understood that Trustees, officers,
employees and Shareholders of the Trust are or may be or become interested in
BISYS, as officers, employees or otherwise and that partners, officers and
employees of BISYS and its counsel are or may be or become similarly interested
in the Trust, and that BISYS may be or become interested in the Trust as a
Shareholder or otherwise
27. Privacy
Nonpublic personal financial information relating to consumers or
customers of the Trust provided by, or at the direction of the Trust to BISYS,
or collected or retained by BISYS in the course of performing its duties as
transfer agent, shall be considered confidential information. BISYS shall not
give, sell or in any way transfer such confidential information to any person or
entity, other than affiliates of BISYS except at the direction of the Trust or
as required or permitted by law (including Applicable AML Laws). BISYS
represents, warrants and agrees that it has in place and will maintain physical,
electronic and procedural safeguards reasonably designed to protect the
security, confidentiality and integrity of, and to prevent unauthorized access
to or use of records and information relating to consumers or customers of the
Trust. The Trust represents to BISYS that it has adopted a Statement of its
privacy policies and practices as required by the Commission's Regulation S-P
and agrees to provide BISYS with a copy of that statement annually.
28. Miscellaneous
(a) Paragraph headings in this Agreement are included for
convenience only and are not to be used to construe or
interpret this Agreement.
15
(b) This Agreement constitutes the complete agreement of the
parties hereto as to the subject matter covered by this
Agreement, and supercedes all prior negotiations,
understandings and agreements bearing upon the subject matter
covered herein, including, without limitation, the 1996
Agreement.
(c) This Agreement may be executed in counterparts, each of which
shall be an original but all of which, taken together, shall
constitute one and the same agreement.
(d) No amendment to this Agreement shall be valid unless made in
writing and executed by both parties hereto.
* * * * *
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed all as of the day and year first above written.
PERFORMANCE FUNDS TRUST
By:___________________________
Name:
Title:
BISYS FUND SERVICES OHIO, INC.
By:___________________________
Name:
Title:
17
SCHEDULE A
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
PERFORMANCE FUNDS TRUST
AND BISYS FUND SERVICES OHIO, INC.
FUNDS
Performance Money Market Fund Class A
Performance Money Market - Class B
Performance Money Market Fund - Institutional Class
Performance Short Term Government Income Fund Class A
Performance Short Term Government Income Fund - Institutional
Performance Intermediate Term Income Fund Class A
Performance Intermediate Term Income Fund Class B
Performance Intermediate Term Income Fund - Institutional
Performance Mid Cap Equity Fund - Class A
Performance Mid Cap Equity Fund - B Class
Performance Mid Cap Equity Fund - Institutional Class
Performance Large Cap Equity Fund - Class A
Performance Large Cap Equity Fund - B Class
Performance Large Cap Equity Fund - Institutional Class
Performance Leaders Equity Fund - A Class
Performance Leaders Equity Fund - B Class
Performance Leaders Equity Fund - Institutional
Performance Advisor Growth Portfolio Class C
Performance Advisor Moderate Portfolio Class C
Performance Advisor Conservative Portfolio Class C
18
SCHEDULE B
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
PERFORMANCE FUNDS TRUST
AND BISYS FUND SERVICES OHIO, INC.
TRANSFER AGENCY SERVICES
1. Shareholder Transactions
(a) Process shareholder purchase and redemption orders.
(b) Set up account information, including address, dividend
option, taxpayer identification numbers and wire instructions.
(c) Issue confirmations in compliance with Rule 10b-10 under the
Securities Exchange Act of 1934, as amended.
(d) Issue periodic statements for shareholders.
(e) Process transfers and exchanges.
(f) Process dividend payments, including the purchase of new
shares, through dividend reimbursement.
2. Shareholder Information Services
(a) Make information available to shareholder servicing unit and
other remote access units regarding trade date, share price,
current holdings, yields, and dividend information.
(b) Produce detailed history of transactions through duplicate or
special order statements upon request.
(c) Provide mailing labels for distribution of financial reports,
prospectuses, proxy statements or marketing material to
current shareholders.
3. Compliance Reporting
(a) Provide reports to the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc. and the
States in which the Fund is registered.
(b) Prepare and distribute appropriate Internal Revenue Service
forms for corresponding Fund and shareholder income and
capital gains.
(c) Issue tax withholding reports to the Internal Revenue Service.
19
4. Dealer/Load Processing (if applicable)
(a) Provide reports for tracking rights of accumulation and
purchases made under a Letter of Intent.
(b) Account for separation of shareholder investments from
transaction sale charges for purchase of Fund shares.
(c) Calculate fees due under 12b-1 plans for distribution and
marketing expenses.
(d) Track sales and commission statistics by dealer and provide
for payment of commissions on direct shareholder purchases in
a load Fund.
5. Shareholder Account Maintenance
(a) Maintain all shareholder records for each account in the
Trust.
(b) Issue customer statements on scheduled cycle, providing
duplicate second and third party copies if required.
(c) Record shareholder account information changes.
(d) Maintain account documentation files for each shareholder.
6. Anti-Money Laundering Services
(a) Verify shareholder identity upon opening new accounts.
(b) Monitor, identify and report shareholder transactions and
identify and report suspicious activities that are required to
be so identified and reported, and provide other required
reports to the Securities and Exchange Commission, the U.S.
Treasury Department, the Internal Revenue Service or each
agency's designated agent, in each case consistent with the
Trust's AML Program.
(c) Place holds on transactions in shareholder accounts or freeze
assets in shareholder accounts, as provided in the Trust's AML
Program.
(d) Create documentation to provide a basis for law enforcement
authorities to trace illicit funds.
(e) Maintain all records or other documentation related to
shareholder accounts and transactions therein that are
required to be prepared and maintained pursuant to the Trust's
AML Program, and make the same available for inspection by (i)
the Trust's AML Compliance Officer, (ii) any auditor of the
Trust's AML Program or related procedures, policies or
controls that has been designated by the Trust in writing, or
(iii) regulatory or law enforcement authorities, and otherwise
make said records or other documents available at the
direction of the Trust's AML Compliance Officer.
20
SCHEDULE C
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
PERFORMANCE FUNDS TRUST
AND BISYS FUND SERVICES OHIO, INC.
TRANSFER AGENT FEES
BISYS shall be entitled to receive fees in accordance with the following
schedule:
Annual Per Account Fee:
Open Accounts $19.00
Closed Accounts $ 3.50
For these purposes, the following categories constitute an open account
on the BISYS system in any one month: open account with balance, open
account with zero balance, open account with negative balance and
closed account with activity. Closed accounts with no activity in the
month are considered a closed account for billing purposes.
Annual Class Fees:
$7,000 per class
AML Fees and Expenses
Annual program servicing: $4,500.00
(to be billed in equal monthly amounts of $375.00)
Systems costs:
Early Warning annual fee $575.00
Early Warning per record cost $ 0.17
for new account* registration review - does not apply to
Network Level III accounts
Equifax - per request cost $ 5.00
*CHANGES TO ACCOUNT REGISTRATION INFORMATION OR OTHER ACCOUNT-RELATED
INFORMATION MAY RESULT IN CHARACTERIZING THE ACCOUNT AS A "NEW ACCOUNT" FOR
THESE PURPOSES.
21
SCHEDULE D
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
PERFORMANCE FUNDS TRUST
AND BISYS FUND SERVICES OHIO, INC.
REPORTS
1. Daily Shareholder Activity Journal
2. Daily Fund Activity Summary Report
(a) Beginning Balance
(b) Transactions
(c) Shareholder Transactions
(d) Reinvested Dividends
(e) Exchanges
(f) Adjustments
(g) Ending Balance
3. Daily Wire and Check Registers
4. Monthly Dealer Processing Reports
5. Monthly Dividend Reports
6. Sales Data Reports for Blue Sky Registration
7. A copy of the most recent report by independent public accountants
describing control structure policies and procedures relating to
transfer agency operations pursuant to AICPA Statement on Auditing
Standards Number 70.
8. Such special reports and additional information that the parties may
agree upon, from time to time.
9. In addition to the forgoing, following each quarterly period, BISYS
will provide a report to the following effect pertaining to the AML
Services rendered by BISYS hereunder during such quarterly period:
(a) performed good order review for all new and reregistered
accounts;
22
(b) performed acceptance review for all monetary instruments
received;
(c) administered signature guarantee policy in accordance with
prospectus requirements;
(d) administered escrow hold policy in accordance with prospectus
requirements;
(e) verified customer address changes;
(f) performed reasonable procedures to verify customer
identification for all new accounts and all name changes on
existing accounts in accordance with 31 CFR 103.131 and Rule
0-11 under the 1940 Act;
(g) monitored all purchase transactions made with cash equivalents
totaling in excess of $10,000 resulting in the filing of [x]
Form 8300 reports during the period. The Fund does not accept
cash or currency;
(h) monitored all accounts for suspicious activity resulting in
the filing of [x] Form SAR reports during the period;
(i) reviewed shareholder names against lists of suspected
terrorist and terrorist organizations supplied by various
governmental organizations, such as the Office of Foreign
Asset Control resulting in the freezing and reporting of [x]
accounts during the period;
(j) reviewed shareholder names in compliance with FinCEN 3149(a)
requests, resulting in the reporting of accounts during the
period;
(k) created the documentation necessary to provide a basis for law
enforcement authorities to trace illicit funds; and
(l) maintained all records and other documentation related to
shareholder accounts and transactions required to e prepared
and maintained pursuant to the Fund's anti-money laundering
program for all BISYS transfer agent services.
The following will be provided in such report if the Trust falls under
the related USA PATRIOT Act provisions:
(a) performed the required due diligence to help prevent the
opening of any accounts for foreign shell banks during the
period either directly or through correspondent accounts; and
(b) performed required due diligence on any new correspondent
accounts opened during the period.
23
SCHEDULE E
TO THE TRANSFER AGENCY AGREEMENT
BETWEEN
PERFORMANCE FUNDS TRUST
AND
BISYS FUND SERVICES OHIO, INC.
SERVICE STANDARDS
In the event that BISYS fails to perform the same service standard listed below
during any three (3) consecutive months, the Trust may provide a notice
requiring BISYS to cure said failure. In the event BISYS fails to perform
pursuant to the relevant standard in the month following receipt of such notice,
the Trust shall have the right, exercisable within the next thirty (30) days
only, to terminate this Agreement upon sixty (60) days' notice to BISYS.
For purposes of the foregoing, a "failure to perform" means a failure to meet
the service standard under the terms of the Agreement governing BISYS' Services,
for which BISYS would not be excused and for which BISYS would be responsible
under the Agreement (including, without limitation, under Articles 5 and 9).
The required performance level associated with a function will be measured by
dividing the total number of times that function was correctly performed during
the month by the total number of times that function occurred during the month.
TRANSFER AGENT
PERCENTAGE OF ACCURATELY PROCESSED 98% percent processed accurately the
MANUAL FINANCIAL TRANSACTION first time
24
