AMENDED AND RESTATED
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of October 24, 2005 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and NEW ALTERNATIVES FUND, INC. a New York
corporation (the "Fund").
W I T N E S S E T H :
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Fund and PFPC (as successor by assignment) are parties to an
Accounting Services Agreement dated as of October 1, 1993, as amended to date
("Superseded Agreement"), which is terminated as of the date first set forth
above; and
WHEREAS, the Fund wishes to continue to retain PFPC to provide
administration and accounting services to it, and PFPC wishes to continue to
furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(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 both
parties hereto.
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(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(f) "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.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(i) "Shares" means the shares of beneficial interest of any series or
class of the Fund.
(j) "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 electronically (with respect to sub-item (ii) above) or
by hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Fund hereby appoints PFPC to provide administration and
accounting services to the Fund, in accordance with the terms set forth in
this Agreement. PFPC accepts such appointment and agrees to furnish such
services.
3. COMPLIANCE WITH RULES AND REGULATIONS.
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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.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from
a person reasonably believed by PFPC to be an Authorized Person)
pursuant to this Agreement. PFPC may assume that any Oral
Instruction or Written Instruction received hereunder is not in
any way inconsistent with the provisions of organizational
documents or this Agreement or of any vote, resolution or
proceeding of the Fund's Board of 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.
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5. 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 adviser or PFPC, at
the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between directions
or advice or Oral Instructions or Written Instructions PFPC
receives from the Fund and the advice PFPC receives from counsel,
PFPC may rely upon and follow the advice of counsel.
(d) Protection of PFPC. PFPC shall be indemnified by the Fund and
without liability for any action PFPC takes or does not take in
reliance upon directions or advice or Oral Instructions or Written
Instructions PFPC receives from or on behalf of the Fund or from
counsel and which PFPC believes, in good faith, to be consistent
with those directions or advice 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.
6. RECORDS; VISITS.
(a) The books and records pertaining to the Fund which are in the
possession or under
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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 the Fund's books of
account;
(ii) records of the Fund's securities transactions; and
(iii) all other books and records as PFPC is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
7. 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; (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,
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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 Confidential
Information and 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 requested or required to be
disclosed by the receiving party pursuant to a court order, subpoena,
governmental or regulatory agency request or law (provided the receiving
party will provide the other party written notice of the same, 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) is
necessary or desirable for PFPC to release such information in connection
with the provision of services under this Agreement; or (h) has been or is
independently developed or obtained by the receiving party.
8. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules. PFPC shall take all
reasonable action in the performance of its duties under this Agreement to
assure that the necessary information is made available to such
accountants for the expression of their opinion, as required by the Fund.
9. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques,
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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.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions
for emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
PFPC shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. PFPC shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure,
provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties or obligations under this Agreement.
11. COMPENSATION.
(a) As compensation for services rendered by PFPC during the term of
this Agreement, the Fund will pay to PFPC a fee or fees as may be
agreed to in writing by the Fund and PFPC.
(b) The undersigned hereby represents and warrants to PFPC that (i)
the terms of this Agreement, (ii) the fees and expenses associated
with this Agreement, and (iii) any benefits accruing to PFPC or to
the adviser or sponsor to the Fund in connection with this
Agreement, including but not limited to any fee waivers,
conversion cost reimbursements, up front payments, signing
payments or periodic payments made or to be made by PFPC to such
adviser or sponsor or any affiliate of the Fund relating to this
Agreement have been fully disclosed to the Board of Directors of
the Fund and that, if required by applicable law, such Board of
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Directors has approved or will approve the terms of this
Agreement, any such fees and expenses, and any such benefits.
12. INDEMNIFICATION. The Fund agrees to indemnify, defend and hold harmless
PFPC and its affiliates, including their respective officers, directors,
agents and employees from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC takes in
connection with the provision of services to the Fund. Neither PFPC, nor
any of its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) caused by PFPC's or its affiliates'
own willful misfeasance, bad faith, gross negligence or reckless disregard
in the performance of PFPC's activities under this Agreement. The
provisions of this Section 12 shall survive termination of this Agreement.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf
of the Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC and the Fund in a written amendment
hereto. PFPC shall be obligated to exercise care and diligence in
the performance of its duties hereunder and to act in good faith
in performing services provided for under this Agreement. PFPC
shall be liable only for any damages arising out of PFPC's failure
to perform its duties under this Agreement to the extent such
damages arise out of PFPC's willful misfeasance, bad faith, gross
negligence or reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i)
PFPC shall not be
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liable for losses, delays, failure, errors, interruption or loss
of data occurring directly or indirectly by reason of
circumstances beyond its reasonable control, including without
limitation acts of God; action or inaction of civil or military
authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion;
interruption, loss or malfunction of utilities, transportation,
computer or communications capabilities; insurrection; elements of
nature; or non-performance by a third party; and (ii) PFPC shall
not be under any duty or obligation to inquire into and shall not
be liable for the validity or invalidity, authority or lack
thereof, or truthfulness or accuracy or lack thereof, of any
instruction, direction, notice, instrument or other information
which PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither PFPC nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or
not the likelihood of such losses or damages was known by PFPC or
its affiliates and (ii) PFPC's cumulative liability to the Fund
for all losses, claims, suits, controversies, breaches or damages
for any cause whatsoever (including but not limited to those
arising out of or related to this Agreement) and regardless of the
form of action or legal theory shall not exceed the 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
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of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(f) The provisions of this Section 13 shall survive termination of
this Agreement.
(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.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
Fund's investment adviser (the "Adviser") and transmit trades to
the Fund's custodian (the "Custodian") for proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash balance
available for investment purposes;
(vi) Update the cash availability throughout the day as required by the
Adviser;
(vii) Post to and prepare the Statement of Assets and Liabilities and
the Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory and custody
fees);
(ix) Monitor the expense accruals and notify an officer of the Fund of
any proposed adjustments;
(x) Calculate capital gains and losses;
(xi) Determine net income;
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(xii) Obtain security market quotes from independent pricing services
approved by the Adviser, or if such quotes are unavailable, then
obtain such prices from the Adviser, and in either case calculate
the market value of the Fund's Investments;
(xiii) Transmit or mail a copy of the daily portfolio valuation to the
Adviser;
(xiv) Compute net asset value; and
(xv) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity.
15. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect to
each Fund:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Fund statistical data as
requested on an ongoing basis;
(iv) Prepare and file the Fund's Semi-Annual Reports with the SEC on
Form N-SAR;
(v) Prepare and file with the SEC the Fund's annual, semi-annual, and
quarterly shareholder reports; and
(vi) Assist in the preparation of registration statements and other
filings relating to the registration of Shares.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated
by the Fund or by PFPC on sixty (60) days' prior written notice to the
other party. In the event the Fund gives notice of termination, all
expenses associated with movement (or duplication) of records and
materials and conversion thereof to a successor accounting and
administration services agent(s) (and any other service provider(s)), and
all trailing expenses incurred by PFPC, will be borne by the Fund.
17. CHANGE OF CONTROL. Notwithstanding any other provision of this Agreement,
in the event
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of an agreement to enter into a transaction that would result in a Change
of Control of the Fund's adviser or sponsor, the Fund's ability to
terminate the Agreement pursuant to Section 16 will be suspended from the
time of such agreement until two years after the Change of Control.
18. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other
address as PFPC may inform the Fund in writing); (b) if to the Fund, at
000 Xxxxxxxxxxx Xx., Xxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxxxxx; or
(c) if to neither of the foregoing, at such other address as shall have
been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed to
have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given three days after it has been mailed. If
notice is sent by messenger, it shall be deemed to have been given on the
day it is delivered.
19. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
20. 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.
21. 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.
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22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
23. DISPUTE RESOLUTION.
a. Arbitration of Disputes. The parties shall attempt to settle disputes
arising out of or relating to this Agreement or the breach thereof (a
"Dispute") by a meeting of a designated representative of each of the
parties involved in such dispute within ten (10) days after a request by
either of the parties to the other party asking for the same. If such
Dispute cannot be settled at this meeting, the parties shall submit the
Dispute to binding arbitration administered by the American Arbitration
Association under its Commercial Arbitration Rules, and judgment on the
award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The single arbitrator shall be selected by the
American Arbitration Association. The place of arbitration shall be as
mutually agreed in good faith by the parties. The prevailing party shall
be entitled to an award of reasonable attorney fees. For purposes of this
provision, a party shall be deemed to be the "prevailing party" with
respect to a claim only if the arbitrator determines that such party has
prevailed on a substantial portion of the claim and that it is equitable
for it to be awarded attorneys' fees. The procedures specified herein
shall be the sole and exclusive procedures for the resolution of Disputes;
provided, however, that a party may seek provisional or ancillary
remedies, such as preliminary injunctive relief, from a court having
jurisdiction, before, during or after the pendency of any arbitration
proceeding. The institution and maintenance of any action for such
judicial relief, or pursuit of provisional or ancillary remedies, shall
not constitute a waiver of the right or obligation of any party to submit
any claim or dispute to arbitration. All applicable statutes of
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limitations shall be tolled once a request for a meeting as described in
the first sentence of this Section 23 is made and until thirty (30) days
following the conclusion of the final meeting conducted pursuant to this
request. The parties shall take such action, if any, required to
effectuate such tolling.
b. Motion Practice. In any arbitration hereunder, the arbitrator shall decide
(by documents only or with a hearing, at the arbitrator's discretion) any
pre-hearing motions which are substantially similar to pre-hearing motions
to dismiss for failure to state a claim or motions for summary
adjudication.
c. Discovery. Discovery shall be limited to the pre-hearing exchange of all
documents which each party intends to introduce at the hearing and any
expert reports prepared by any expert who will testify at the hearing.
d. Sequential Hearing Days. At the administrative conference conducted by the
AAA, the parties and the AAA shall determine how to ensure that the
hearing is started and completed on sequential hearing days. Potential
arbitrators shall be informed of the anticipated length of the hearing and
they shall not be subject to appointment unless they agree to abide by the
parties' intent that, absent exigent circumstances, the hearing shall be
conducted on sequential days.
e. Award. The award of the arbitrator shall be accompanied by a statement of
the reasons upon which such award is based.
f. Fees and Expenses. The parties shall each bear equally all fees and costs
and expenses of the arbitration, and each party shall bear its own legal
fees and expenses and the costs of its experts and witnesses; provided,
however, that if the arbitrator shall award to a party substantially all
amounts sought by such party, then, notwithstanding any applicable
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governing law provisions, the other party shall pay all costs, fees and
expenses incurred by the prevailing party (up to but not exceeding
$50,000) and such costs, fees and expenses shall be included in such
award.
g. Confidentiality of Disputes. The entire procedure shall be confidential
and none of the parties nor the arbitrator may disclose the existence,
content, or results of any arbitration hereunder without the written
consent of all parties to the Dispute, except (i) to the extent disclosure
is required to enforce any applicable arbitration award or may otherwise
be required by law and (ii) that either party may make such disclosures to
its regulators, auditors, accountants, attorneys and insurance
representatives. No conduct, statements, promises, offers, views, or
opinions of any party involved in an arbitration hereunder shall be
discoverable or admissible for any purposes in litigation or other
proceedings involving the parties to the Dispute and shall not be
disclosed to anyone not an agent, employee, expert, witness, or
representative for any of such parties.
24. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary, the
Fund agrees not to make any modifications to its registration
statement or adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(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
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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 Superseded 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) The Fund will provide such information and documentation as PFPC
may reasonably request in connection with services provided by
PFPC to the Fund.
(e) 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.
(f) If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of
this Agreement shall not be affected thereby. This Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
(g) The facsimile signature of any party to this Agreement shall
constitute the valid
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and binding execution hereof by such party.
(h) To help the U.S. government fight the funding of terrorism and
money laundering activities, U.S. Federal law requires each
financial institution to obtain, verify, and record certain
information that identifies each person who initially opens an
account with that financial institution on or after October 1,
2003. Certain of PFPC's affiliates are financial institutions, and
PFPC may, as a matter of policy, request (or may have already
requested) the Fund's name, address and taxpayer identification
number or other government-issued identification number, and, if
such party is a natural person, that party's date of birth. PFPC
may also ask (and may have already asked) for additional
identifying information, and PFPC may take steps (and may have
already taken steps) to verify the authenticity and accuracy of
these data elements.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By:
Name:
Title:
NEW ALTERNATIVES FUND, INC.
By:
Name:
Title:
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