Exhibit 9(A)
TRANSFER AGENCY AGREEMENT
THIS AGREEMENT is made as of the _____ day of
__________, 1989 between XXXXXX XXXXXXX XXXX FUND, INC. a
Maryland corporation (the "Fund"), and PROVIDENT FINANCIAL
PROCESSING CORPORATION, a Delaware corporation which is an
indirect, wholly-owned subsidiary of PNC Financial Corp. (the
"Transfer Agent").
R E C I T A L
WHEREAS, the Fund is registered as an open-end,
diversified management investment company under the Investment
Fund Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund desires to retain the Transfer Agent
to serve as the Fund's transfer agent, registrar, and dividend
disbursing agent, and the Transfer Agent is willing to furnish
such services;
NOW, THEREFORE, in consideration of the premises and
mutual covenants herein contained, it is agreed between the
parties hereto as follows:
1. Appointment. The Fund hereby appoints the
Transfer Agent to serve as transfer agent, registrar and dividend
disbursing agent for the Fund with respect to shares of Common
Stock ("Shares") of the Fund's three investment portfolios: M.S.
Money Market Portfolio, M.S. Tax-Free Money Market Portfolio and
M.S. Government Obligations Money Market Portfolio (collectively,
the "Portfolios"), for the period and on the terms set forth in
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this Agreement. The Fund may from time to time issue separate
series or classes or classify and reclassify Shares of such
series or class. The Transfer Agent shall identify to each such
series or class property belonging to such series or class and in
such reports, confirmations and notices to the Fund called for
under this Agreement shall identify the series or class to which
such report, confirmation or notice pertains. The Transfer Agent
accepts such appointment and agrees to furnish the services
herein set forth in return for the compensation as provided in
Paragraph 16 of this Agreement.
2. Delivery of Documents. The Fund has furnished the
Transfer Agent with copies properly certified or authenticated of
each of the following:
(a) Resolutions of the Fund's Board of Directors
authorizing the appointment of the Transfer Agent as transfer
agent and registrar and dividend disbursing agent for the Fund
and approving this Agreement;
(b) Appendix A identifying and containing the
signatures of the Fund's officers and other persons authorized to
issue Oral Instructions and to sign Written Instructions, as
hereinafter defined, on behalf of the Fund and to execute stock
certificates representing Shares;
(c) The Fund's Articles of Incorporation filed
with the Department of Assessments and Taxation of the State of
Maryland on _____, 1989 and all amendments thereto (such Articles
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of Incorporation, as presently in effect and as they shall from
time to time be amended, are herein called the Charter");
(d) The Fund's By-Laws and all amendments
thereto (such By-Laws as presently in effect and as they shall
from time to time be amended, are herein called the "By-Laws");
(e) Copies of all documents relating to any
voluntary investor service plans sponsored by the Fund, including
periodic investment plans such as Individual Retirement Accounts;
(f) The Investment Advisory Agreement between
Xxxxxx Xxxxxxx Asset Management Inc. (the "Advisor") and the Fund
dated as of ______, 1989 (the "Advisory Agreement");
(g) The Custodian Agreement between Provident
National Bank and the Fund dated as of _______ 1989 (the
"Custodian Agreement");
(h) The Administration and Accounting Services
Agreement between the Transfer Agent and the Fund dated as of
_________, 1989 (the "Administration Agreement");
(i) The Distribution Agreement between the Fund
and Xxxxxx Xxxxxxx & Co. Incorporated (the "Distributor") dated
as of _________, 1989 (the "Distribution Agreement");
(j) The Fund's Notification of Registration filed
pursuant to Section 8(a) of the 1940 Act on Form N-8A under the
1940 Act with the Securities and Exchange Commission ("SEC") on
or about __________, 1989;
(k) The Fund's most recent Registration Statement
on Form N-1A under the Securities Act of 1933, as amended (the
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"1933 Act") (File No.______) and under the 1940 Act as filed with
the SEC on ________, 1989 relating to Shares, and all amendments
thereto;
(l) The Fund's most recent prospectus or
prospectuses relating to Shares (such prospectus, or
prospectuses, as presently in effect and all amendments and
supplements thereto are herein called the "Prospectus"); and
(m) Before the Fund engages in any transaction regulated
by the Commodity Futures Trading Commission ("CFTC"), a copy of either
(i) a filed notice of eligibility to claim the exclusion from the
definition of "commodity pool operator" contained in Section
2(a)(1)(A) of the Commodity Exchange Act ("CEA") that is provided
in Rule 4.5 under the CEA, together with all supplements as are
required by the CFTC, or (ii) a letter which has been granted the
Fund by the CFTC which states that the Fund will not be treated
as a "pool" as defined in Section 4.10(d) of the CFTC's General
Regulations, or (iii) a letter which has been granted the Fund by
the CFTC which states that the CFTC will not take any enforcement
action if the Fund does not register as a "commodity pool
operator."
The Fund will furnish the Transfer Agent from time to
time with copies, properly certified or authenticated, of all
amendments of or supplements to the foregoing, if any.
3. Definitions
(a) "Authorized Person". As used in this
Agreement, the term "Authorized Person" means any officer of the
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Fund and any other person, whether or not any such person is an
officer or employee of the Fund, duly authorized by the Board of
Directors of the Fund to give Oral and Written Instructions on
behalf of the Fund and listed on the Certificate annexed hereto
as Appendix A or any amendment thereto as may be received by the
Transfer Agent from time to time.
(b) "Oral Instructions". As used in this
Agreement, the term "Oral Instructions" means oral instructions
actually received by the Transfer Agent from an Authorized Person
or from a person reasonably believed by the Transfer Agent to be
an Authorized Person. The Fund agrees to deliver to the Transfer
Agent, at the time and in the manner specified in Paragraph 4(b)
of this Agreement, Written Instructions confirming Oral
Instructions.
(c) "Written Instructions". As used in this
Agreement, the term "Written Instructions" means written
instructions delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device, and received by the Transfer
Agent and signed by an Authorized Person.
4. Instructions Consistent with Charter, etc.
(a) Unless otherwise provided in this Agreement,
the Transfer Agent shall act only upon Oral or Written
Instructions. Although the Transfer Agent may know provisions of
the Charter and By-Laws of the Fund, the Transfer Agent may
assume that any Oral or Written Instructions received hereunder
are not in any way inconsistent with any provisions of such
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Charter or By-Laws or any vote, resolution or proceeding of the
Shareholders, or of the Board of Directors, or of any committee
thereof.
(b) The Transfer Agent shall be entitled to rely
upon any Oral Instructions and any Written Instructions actually
received by the Transfer Agent pursuant to this Agreement. The
Fund agrees to forward to the Transfer Agent Written Instructions
confirming Oral Instructions in such manner that the Written
Instructions are received by the Transfer Agent by the close of
business of the same day that such Oral Instructions are given to
the Transfer Agent. The Fund agrees that the fact that such
confirming Written Instructions are not received by the Transfer
Agent shall in no way affect the validity of the transactions or
enforceability of the transactions authorized by the Fund by
giving Oral Instructions. The Fund agrees that the Transfer
Agent shall incur no liability to the Fund in acting upon Oral
Instructions given to the Transfer Agent hereunder concerning
such transactions, provided such instructions reasonably appear
to have been received from an Authorized Person.
5. Transactions Not Requiring Instructions. In the
absence of contrary Written Instructions, the Transfer Agent is
authorized to take the following actions:
(a) Issuance of Shares. Upon receipt of a
purchase order from the Distributor for the purchase of Shares
and sufficient information to enable the Transfer Agent to
establish a Shareholder account, and after confirmations of
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receipt or crediting of Federal funds for such order from the
Fund's Custodian, the Transfer Agent shall issue and credit the
account of the investor or other record holder with Shares in the
manner described in the Prospectus.
(b) Transfer of Shares: Uncertificated
Securities. Where a Shareholder does not hold a certificate
representing the number of Shares in his account and does provide
the Transfer Agent with instructions for the transfer of such
Shares which include a signature guaranteed by a national bank or
registered broker/dealer and such other appropriate documentation
to permit a transfer, then the Transfer Agent shall register such
Shares and shall deliver them pursuant to instructions received
from the transferor, pursuant to the rules and regulations of the
SEC, and the law of the Commonwealth of Massachusetts relating to
the transfer of shares of beneficial interest.
(c) Share Certificates. If at any time the Fund
issues share certificates, the following provisions will apply:
(i) The Fund will supply the Transfer Agent
with a sufficient supply of share certificates
representing Shares, in the form approved from time to
time by the Board of Directors of the Fund, and, from
time to time, shall replenish such supply upon request
of the Transfer Agent. Such share certificates shall
be properly signed, manually or by facsimile signature,
by the duly authorized officers of the Fund, whose
names and positions shall be set forth on Appendix A,
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and shall bear the corporate seal or facsimile thereof
of the Fund, and notwithstanding the death, resignation
or removal of any officer of the Fund, such executed
certificates bearing the manual or facsimile signature
of such officer shall remain valid and may be issued to
Shareholders until the Transfer Agent is otherwise
directed by Written Instructions.
(ii) In the case of the loss or destruction of
any certificate representing Shares, no new certificate
shall be issued in lieu thereof, unless there shall
first have been furnished an appropriate bond of
indemnity issued by the surety company approved by the
Transfer Agent.
(iii) Upon receipt of signed share certificates,
which shall be in proper form for transfer, and upon
cancellation or destruction thereof, the Transfer Agent
shall countersign, register and issue new certificates
for the same number of Shares and shall deliver them
Pursuant to instructions received from the transferor,
the rules and regulations of the SEC, and the law of
the Commonwealth of Massachusetts relating to the
transfer of shares of beneficial interest.
(iv) Upon receipt of the share certificates,
which shall be in proper form for transfer, together
with the Shareholder's instructions to hold such share
certificates for safekeeping, the Transfer Agent shall
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reduce such Shares to uncertificated status, while
retaining the appropriate registration in the name of
the Shareholder upon the transfer books.
(v) Upon receipt of written instructions from a
Shareholder of uncertificated securities for a
certificate in the number of shares in his account, the
Transfer Agent will issue such share certificates and
deliver them to the Shareholder.
(d) Redemption of Shares. Upon receipt of a
redemption order from the Distributor, the Transfer Agent shall
redeem the number of Shares indicated thereon from the redeeming
Shareholder's account and receive from the Fund's Custodian and
disburse to the redeeming Shareholder the redemption proceeds
therefor, or arrange for direct payment of redemption proceeds to
such Shareholders by the Fund's Custodian, in accordance with
such procedures and controls as are mutually agreed upon from
time to time by and among the Fund, the Transfer Agent and the
Fund's Custodian.
6. Authorized Shares. The Fund's authorized capital
stock consists of ten billion (10,000,000,000) shares of Common
Stock. The Transfer Agent shall record issues of all Shares and
shall notify the Fund in case any proposed issue of Shares by the
Fund shall result in an over-issue as defined by Section B-104(2)
of Article 8 of the Maryland Uniform Commercial Code. In case
any issue of Shares would result in such an over-issue, the
Transfer Agent shall refuse to issue said Shares and shall not
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countersign and issue certificates for such Shares. The Fund
agrees to notify the Transfer Agent promptly of any change in the
number of Shares registered under the 1933 Act.
7. Dividends and Distributions. The Fund shall
furnish the Transfer Agent with appropriate evidence of action by
the Fund's Board of Directors authorizing the declaration and
payment of dividends and distributions as described in the
Prospectus. After deducting any amount required to be withheld
by any applicable tax laws, rules and regulations or other
applicable laws, rules and regulations, the Transfer Agent shall,
in accordance with the instructions in proper form from a
Shareholder and the provisions of the Fund's Declaration and
Prospectus, issue and credit the account of the Shareholder with
Shares, or, if the Shareholder so elects, pay such dividends or
distribution in cash or pay such dividends to the Shareholders in
the manner described in the Prospectus. In lieu of receiving
from the Fund's Custodian and paying to Shareholders cash
dividends or distributions, the Transfer Agent may arrange for
the direct payment of cash dividends and distributions to
Shareholders by the Fund's Custodian, in accordance with such
procedures and controls as are mutually agreed upon from time to
time by and among the Fund, the Transfer Agent and the Fund's
Custodian.
The Transfer Agent shall prepare, file with the
Internal Revenue Service and other appropriate taxing
authorities, and address and mail to Shareholders such returns
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and information relating to dividends and distributions paid by
the Fund as are required to be so prepared, filed and mailed by
applicable laws, rules and regulations, or such substitute form
of notice as may from time to time be permitted or required by
the Internal Revenue Service. On behalf of the Fund, the
Transfer Agent shall mail certain requests for Shareholders'
certifications under penalties of perjury and pay on a timely
basis to the appropriate Federal authorities any taxes to be
withheld on dividends and distributions paid by the Fund, all as
required by applicable Federal tax laws and regulations.
In accordance with the Prospectus and such procedures
and controls as are mutually agreed upon from time to time by and
among the Fund, the Transfer Agent and the Fund's Custodian, the
Transfer Agent shall (a) arrange for issuance of Shares obtained
through (1) transfers of funds from Shareholders' accounts at
financial institutions, (2) the Pre-Authorized Check Plan, if any
and (3) the Right of Accumulation, if any; (b) arrange for the
exchange of Shares for shares of such other funds designated by
the Fund from time to time; and (c) arrange for systematic
withdrawals from the account of a Shareholder participating in
the Systematic Withdrawal Plan, if any.
8. Communications with Shareholders.
(a) Communications to Shareholders. The Transfer
Agent will address and mail all communications by the Fund to its
Shareholders. including reports to Shareholders, confirmations of
purchases and sales of Fund Shares, monthly statements, dividend
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and distribution notices and proxy material for its meetings of
Shareholders. The Transfer Agent will receive and tabulate the
proxy cards for the meetings of the Fund's Shareholders.
(b) Correspondence. The Transfer Agent will
answer such correspondence from Shareholders, securities brokers
and others relating to its duties hereunder and such other
correspondence as may from time to time be mutually agreed upon
between the Transfer Agent and the Fund.
9. Records. The Transfer Agent shall maintain records
of the accounts for each Shareholder showing the following
information:
(a) name, address and United States Tax
Identification or Social Security number;
(b) number and class of Shares held and number
and class of Shares for which certificates, if any, have been
issued, including certificate numbers and denominations;
(c) historical information regarding the account
of each Shareholder, including dividends and distributions paid
and the date and price for all transactions on a Shareholder's
account;
(d) any stop or restraining order placed against
a Shareholder's account;
(e) any correspondence relating to the current
maintenance of a Shareholder's account;
(f) information with respect to withholdings;
and,
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(g) any information required in order for the
Transfer Agent to perform any calculations contemplated or
required by this Agreement.
The books and records pertaining to the Fund which are
in the possession of the Transfer Agent 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 and rules and regulations. The Fund, or the
Fund's authorized representatives. shall have access to such
books and records at all times during the Transfer Agent's normal
business hours. Upon the reasonable request of the Fund, copies
of any such books and records shall be provided by the Transfer
Agent to the Fund or the Fund's authorized representative at the
Fund's expense.
10. Ongoing Functions. The Transfer Agent will
perform the following functions on an ongoing basis:
(a) furnish state-by-state registration reports
to the Fund;
(b) calculate Account Executive load or
compensation payment and provide such information to the Fund,
if any;
(c) calculate dealer commissions for the Fund,
if any;
(d) provide toll-free lines for direct
Shareholder use, plus customer liaison staff with on-line
inquiry capacity;
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(e) mail duplicate confirmations to dealers of
their clients' activity, whether executed through the dealer or
directly with the Transfer Agent, if any;
(f) provide detail for underwriter or broker
confirmations and other participating dealer Shareholder
accounting, in accordance with such procedures as may be agreed
upon between the Fund and the Transfer Agent, if any;
(g) provide Shareholder lists and statistical
information concerning accounts to the Fund; and
(h) provide timely notification of Fund activity
and such other information as may be agreed upon from time to
time between the Transfer Agent and the Custodian, to the Fund or
the Custodian.
11. Cooperation with Accountants. The Transfer Agent
shall cooperate with the Fund's independent public accountants
and shall take all reasonable action in the performance of its
obligations under this Agreement to assure that the necessary
information is made available to such accountants for the
expression of their opinion as such may be required by the Fund
from time to time.
12. Confidentiality. The Transfer Agent agrees on
behalf of itself and its employees to treat confidentially all
records and other information relative to the Fund and its prior,
present or potential Shareholders, except, after prior
notification to and approval in writing by the Fund, which
approval shall not be unreasonably withheld and may not be
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withheld where the Transfer Agent may be exposed to civil or
criminal contempt proceedings for failure to comply, when
requested to divulge such information by duly constituted
authorities, or when so requested by the Fund.
13. Equipment Failures. In the event of equipment
failures beyond the Transfer Agent's control, the Transfer Agent
shall, at no additional expense to the Fund, take reasonable
steps to minimize service interruptions but shall have no
liability with respect thereto. The foregoing obligation shall
not extend to computer terminals located outside of premises
maintained by the Transfer Agent. The Transfer Agent shall enter
into and shall maintain in effect with appropriate parties one or
more agreements making reasonable provision for emergency use of
electronic data processing equipment to the extent appropriate
equipment is available.
14. Right to Receive Advice.
(a) Advice of Fund. If the Transfer Agent shall
be in doubt as to any action to be taken or omitted by it, it may
request, and shall receive, from the Fund directions or advice,
including Oral or Written Instructions where appropriate.
(b) Advice of Counsel. If the Transfer Agent
shall be in doubt as to any question of law involved in any
action to be taken or omitted by the Transfer Agent, it may
request advice at its own cost from counsel of its own choosing
(who may be counsel for the Advisor, the Fund or the Transfer
Agent at the option of the Transfer Agent).
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(c) Conflicting Advice. In case of conflict
between directions, advice or Oral or Written Instructions
received by the Transfer Agent pursuant to subparagraph (a) of
this Paragraph and advice received by the Transfer Agent pursuant
to subparagraph (b) of this Paragraph, the Transfer Agent shall
be entitled to rely on and follow the advice received pursuant to
the latter provision alone.
(d) Protection of the Transfer Agent. The
Transfer Agent shall be protected in any action or inaction which
it takes in reliance on any directions, advice or Oral or Written
Instructions received pursuant to subparagraphs (a) or (b) of
this Paragraph which the Transfer Agent, after receipt of any
such directions, advice or Oral or Written Instructions, in good
faith believes to be consistent with such directions, advice or
Oral or Written Instructions, as the case may be. However,
nothing in this Paragraph shall be construed as imposing upon the
Transfer Agent any obligation (i) to seek such directions, advice
or Oral or Written Instructions, or (ii) to act in accordance
with such directions, advice or Oral or Written Instructions when
received, unless, under the terms of another provision of this
Agreement, the same is a condition to the Transfer Agent's
properly taking or omitting to take such action. Nothing in this
subparagraph shall excuse the Transfer Agent when an action or
omission on the part of the Transfer Agent constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard by
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the Transfer Agent of its duties and obligations under this
Agreement.
15. Compliance with Governmental Rules and
Regulations. The Transfer Agent undertakes to comply, with all
applicable requirements of the 1933 Act, the 1934 Act, the 1940
Act, the CEA, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by the Transfer Agent hereunder.
16. Compensation. As compensation for the services
rendered by the Transfer Agent during the term of this Agreement,
the Fund will pay to the Transfer Agent monthly fees that shall
be agreed to from time to time by the Fund and the Transfer
Agent, for each account open at any time during the month for
which payment is being made, plus certain of the Transfer Agent's
expenses relating to such services, as shall be agreed to from
time to time by the Fund and the Transfer Agent.
17. Indemnification. The Fund agrees to indemnify and
hold harmless the Transfer Agent and its nominees and sub-
contractors from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation,
liabilities arising under the 1933 Act, the 1934 Act, the 1940
Act, the CEA, and any state and foreign securities and blue sky
laws, all as or to be amended from time to time) and expenses,
including attorneys' fees and disbursements (as long as such
attorney has been retained with the consent of the Fund, which
consent shall not be unreasonably withheld), arising directly or
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indirectly from any action or thing which the Transfer Agent
takes or does or omits to take or do (i) at the request or on the
direction of or in reliance on the advice of the Fund or (ii)
upon Oral or Written Instructions, provided, that neither the
Transfer Agent nor any of its nominees or subcontractors shall be
indemnified against any liability to the Fund or to its
Shareholders (or any expenses incident to such liability) arising
out of the Transfer Agent's or such nominee's or such sub-
contractor's own willful misfeasance, bad faith or negligence or
reckless disregard of its duties in connection with the
performance of its duties and obligations specifically described
in this Agreement. In order that the indemnification provision
contained in this Paragraph 17 shall apply, it is understood that
if in any case the Fund may be asked to indemnify or save the
Transfer Agent harmless, the Fund shall be fully and promptly
advised of all pertinent facts concerning the situation in
question, and it is further understood that the Transfer Agent
will use all reasonable care to identify and notify the Fund
promptly concerning any situation which presents or appears
likely to present the probability of such a claim for
indemnification against the Fund. The Fund shall have the option
to defend the Transfer Agent against any claim which may, be the
subject of this indemnification and, in the event that the Fund
so elects, it will so notify the Transfer Agent and thereupon the
Fund shall take over complete defense for the claim, and the
Transfer Agent shall in such situation incur no further legal or
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other expenses for which it shall seek indemnification under this
Paragraph 17. The Transfer Agent shall in no case confess any
claim or make any compromise or settlement in any case in which
the Fund will be asked to indemnify the Transfer Agent, except
with the Fund's prior written consent.
18. Responsibility of the Transfer Agent. The
Transfer Agent shall be under no duty to take any action on
behalf of the Fund except as specifically set forth herein or as
may be specifically agreed to by the Transfer Agent in writing.
In the performance of its duties hereunder, the Transfer Agent
shall be obligated to exercise care and diligence and to act in
good faith and to use its best efforts within reasonable limits
to insure the accuracy and completeness of all services performed
under this Agreement. The Transfer Agent shall be responsible
for and shall hold the Fund harmless from all loss, cost, damage
and expense, including reasonable attorney fees (as long as such
attorney has been retained with the consent of the Transfer
Agent, which consent shall not be unreasonably withheld),
incurred by it resulting from any claim, demand, action or suit
arising out of the Transfer Agent's own negligent failure to
perform its duties under this Agreement. In order that the
indemnification provision contained in this Paragraph 18 shall
apply, it is understood that if in any case the Transfer Agent
may be asked to indemnify or save the Fund harmless, the Transfer
Agent shall be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further
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understood that the Fund will use all reasonable care to
indemnify and notify the Transfer Agent promptly concerning any
situation which presents or appears likely to present the
probability of such a claim for indemnification against the
Transfer Agent. The Transfer Agent shall have the option to
defend the Fund against any claim which may be subject to this
indemnification and, in the event that the Transfer Agent so
elects, it will so notify the Fund and thereupon the Transfer
Agent shall take over complete defense for the claim, and the
Fund shall in such situation incur no further legal or other
expenses for which it shall seek indemnification under this
Paragraph 18. The Fund shall in no case confess any claim or
make any compromise or settlement in any case in which the
Transfer Agent will be asked to indemnify the Fund except with
the Transfer Agent's prior written consent.
To the extent that duties, obligations and
responsibilities are not expressly set forth in this Agreement,
however, the Transfer Agent shall not be liable for any act or
omission which does not constitute willful misfeasance, bad faith
or gross negligence on the part of the Transfer Agent or reckless
disregard of such duties, obligations and responsibilities.
Without limiting the generality of the foregoing or of
any other provision of this Agreement, the Transfer Agent in
connection with its duties under this Agreement shall not be
liable for or in respect of (a) the validity or invalidity or
authority or lack thereof of any Oral or Written Instruction,
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notice or other instrument which conforms to the applicable
requirements of this Agreement, if any, and which the Transfer
Agent reasonably believes to be genuine, or (b) delays or errors
or loss of data occurring by reason of circumstances beyond the
Transfer Agent's control, including acts of civil or military
authority, national emergencies, labor difficulties, fire,
mechanical breakdown (except as provided in Paragraph 13), flood
or catastrophe, acts of God, insurrection, war, riots or failure
of the mails, transportation, communication or power supply.
Notwithstanding the foregoing, the Transfer Agent shall use its
best efforts to mitigate the effects of the events set forth in
clause (b) above, although such efforts shall not impute any
liability thereto. The Transfer Agent expressly disclaims all
responsibility for consequential damages, including but not
limited to any that may result from performance or non-
performance of any duty or obligation whether express or implied
in this Agreement, and also expressly disclaim any express or
implied warranty of products or services provided in connection
with this Agreement.
19. Duration and Termination. This Agreement shall
continue until termination by the Fund or by the Transfer Agent
on sixty (60) days written notice.
20. Registration as a Transfer Agent. The Transfer
Agent represents that it is currently registered with the
appropriate Federal agency for the registration of transfer
agents, and that it will remain so registered for the duration of
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this Agreement. The Transfer Agent agrees that it will promptly
notify the Fund in the event of any material change in its status
as a registered transfer agent. Should the Transfer Agent fail
to be registered with the appropriate federal agency as a
transfer agent at any time during this Agreement, the Fund may,
on written notice to the Transfer Agent, immediately terminate
this Agreement.
21. Notices. All notices and other communications,
including Written Instructions (collectively referred to as
"Notice" or "Notices" in this Paragraph), hereunder shall be in
writing or by confirming telegram, cable, telex or facsimile
sending device. Notices shall be addressed (a) if to the
Transfer Agent at Provident Financial Processing Corporation,
X.X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to the Fund, at
the address of the Fund; or (c) if to neither of the foregoing,
at such other address as shall have been notified to the sender
of any such Notice or other communication. If the location of
the sender of a Notice and the address of the addressee thereof
are, at the time of sending, more than 100 miles apart, the
Notice may be sent by first-class mail, in which case it shall be
deemed to have been given five days after it is sent, or if sent
by confirming telegram, cable, telex or facsimile sending device,
it shall be deemed to have been given immediately, and, if the
location of the sender of a Notice and the address of the
addressee thereof are, at the time of sending, not more than 100
miles apart, the Notice may be sent by first-class mail, in which
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case it shall be deemed to have been given three days after it is
sent, or if sent by messenger, it shall be deemed to have been
given on the day it is delivered, or if sent by confirming
telegram, cable, telex or facsimile sending device, it shall be
deemed to have been given immediately. All postage, cable,
telegram, telex and facsimile sending device charges arising from
the sending of a Notice hereunder shall be paid by the sender.
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. Amendments. This Agreement or any part hereof may
be changed or waived only by an instrument in writing signed by
the party against which enforcement of such change or waiver is
sought.
24. Delegation of Duties. On thirty (30) days prior
written notice to the Fund, the Transfer Agent may assign its
rights and delegate its duties hereunder to any wholly-owned
direct or indirect subsidiary of Provident National Bank or PNC
Financial Corp, provided that (i) the delegate agrees with the
Transfer Agent to comply with all relevant provisions of the 1940
Act; and (ii) the Transfer Agent and such delegate shall promptly
provide such information as the Fund may request, and respond to
such question as the Fund may ask, relative to the delegation,
including (without limitation) the capabilities of the delegate.
25. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an
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original, but all of which together shall constitute one and the
same instrument.
26. Miscellaneous. This Agreement embodies the entire
agreement and understanding between the parties hereto, and
supersedes all prior agreements and understandings relating to
the subject matter hereof, provided that the parties hereto may
embody in one or more separate documents their agreement, if any,
with respect to Oral Instructions. 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. This Agreement
shall be deemed to be a contract made in Delaware and governed by
Delaware law. 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 and shall inure to the benefit of
the parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their officers designated below on
the day and year first above written.
{SEAL} XXXXXX XXXXXXX XXXX FUND, INC.
Attest: _____________________ By:
{SEAL} PROVIDENT FINANCIAL
PROCESSING CORPORATION
Attest: ______________________ By:
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