Exhibit 99.23(h)(5)
AMENDMENT TO TRANSFER AGENCY SERVICES AGREEMENT
This Amendment To Transfer Agency Services Agreement ("Amendment") is being
entered into as of May 1, 2009, by and between PNC Global Investment Servicing
(U.S.) Inc. (formerly known as PFPC Inc.) ("PNC") and each of the undersigned
investment companies (each, a "Fund"), and amends the Transfer Agency Services
Agreement, dated as of 5/1/2000, by and between PNC and the Funds, as amended to
date ("Existing Agreement")
IN CONSIDERATION of the mutual covenants made herein and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties,
intending to be legally bound, hereby agree to amend the Existing Agreement as
follows:
SECTION 1. MODIFICATIONS TO EXISTING AGREEMENT. The Existing Agreement
shall be modified as follows:
(a) The term "PFPC Inc." shall be replaced each place it may occur with "PNC
Global Investment Servicing (U.S.) Inc." and the defined term "PFPC" shall be
replaced each place it may occur with "PNC".
(b) The term Agreement as used in the Existing Agreement and this Amendment
shall mean "the Transfer Agency Services Agreement, dated as of 5/1/2000, by and
between PNC and the Funds, as amended to date, including without limitation the
Amendment To Transfer Agency Services Agreement dated as of May 1, 2009.
(c) A new Section ___ which reads in its entirety as follows shall be added:
Section __ RED FLAG SERVICES (THE "RED FLAG SECTION").
(a) PNC agrees to provide the Fund with the "Red Flag Services", which is
hereby defined to mean the following services:
(i) PNC will maintain written controls reasonably designed to detect the
occurrence of Red Flags (as defined below). Such controls, as they may
be revised from time to time hereunder, are referred to herein as the
"Controls". Solely for purposes of the Red Flag Section, the capitalized
terms below will have the respective meaning ascribed to each:
(A) "Red Flag" means a pattern, practice, or specific activity or a
combination of patterns, practices or specific activities which may
indicate the possible existence of Identity Theft (as defined below)
affecting a Registered Owner (as defined below)
(B) "Identity Theft" means a fraud committed or attempted using the
identifying information of another person without authority.
(C) "Registered Owner" means the registered owner of a Direct
Account (as defined below) as reflected in the books and records of
the Fund maintained by PNC as registrar of the Fund.
(D) "Direct Account" means an account holding Fund shares
established directly with and through PNC as a registered account on
the books and records of the Fund maintained by PNC as Fund
registrar, and through which the Registered Owner has the ability to
direct transactions in Fund shares directly with and through PNC.
For purposes of clarification: "Direct Account" excludes and does
not mean omnibus accounts or other similar aggregate accounts
registered to a financial intermediary or other as the registered
owner on behalf of beneficial owners, whether or not PNC by nature
of its duties hereunder or otherwise has access to the subaccount
information in such omnibus or aggregate account.
(ii) PNC will provide the Fund with a printed copy of or Internet
viewing access to the Controls.
(iii) PNC will notify the Fund of Red Flags which it detects and
reasonably determines to indicate a significant risk of Identity Theft
to a Registered Holder ("Possible Identity Theft") and assist the Fund
in determining the appropriate response of the Fund to the Possible
Identity Theft.
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(iv) PNC will (A) engage an independent auditing firm or other similar
firm of independent examiners to conduct an annual testing of the
Controls and issue a report on the results of the testing (the "Audit
Report"), and (B) furnish a copy of the Audit Report to the Fund; and
(v) Upon Fund request, issue a certification in a form determined to be
appropriate by PNC in its reasonable discretion, certifying to PNC's
continuing compliance with the Controls after the date of the most
recent Audit Report.
(b) The Fund agrees it is responsible for complying with the Red Flag
Requirements, for determining the applicability of Section 114 of the Fair
and Accurate Credit Transaction Act of 2003 and regulations promulgated
thereunder by the Federal Trade Commission (the "Red Flag Requirements") to
the Fund and the extent to which the Red Flag Services assist the Fund in
complying with the Red Flag Requirements, and for furnishing any
supplementation or augmentation to the Red Flag Services it determines to be
appropriate, and that PNC has given no advice and makes no representations
with respect to such matters. This Red Flag Section shall not be interpreted
in any manner which imposes a duty on PNC to act on behalf of the Fund or
otherwise, including any duty to take any action upon the occurrence of a
Red Flag, other than as expressly provided for in this Red Flag Section. The
Controls and the Red Flag Services may be changed at any time and from time
to time by PNC in its reasonable sole discretion to include commercially
reasonable provisions appropriate to the Red Flag Requirements, as they may
be constituted from time to time. The Fund shall be obligated to pay, and
PNC shall be entitled to receive, a fee for the services described in this
Red Flag Section in accordance with any separate fee agreement between the
Fund and PNC.
(c) Notwithstanding any other provision of the Agreement:
(i) PNC shall not 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 PNC's cumulative,
aggregate liability to the Fund for all losses, claims, suits,
controversies, breaches or damages for any cause whatsoever and
regardless of the form of action or legal theory shall not exceed the
lesser of $100,000 or the fees received by PNC for the Red Flag Services
during the six (6) months immediately prior to the date of the last such
loss, claim, suit, controversy, breach or damage; and
(ii) In the event of a material breach of this Red Flag Section by PNC,
the Fund shall be entitled exclusively to terminate the Red Flag
Services by complying with the notice and cure period provisions in the
Agreement applicable to a material breach of the Agreement, but shall
not be entitled to terminate the Agreement.
2. REMAINDER OF EXISTING AGREEMENT; GOVERNING LAW. Except as specifically
modified by this Amendment, all terms and conditions of the Existing Agreement
shall remain in full force and effect. The governing law of the Agreement shall
be the governing law of this Amendment.
3. ENTIRE AGREEMENT; FACSIMILE SIGNATURES; COUNTERPARTS. This Amendment
constitutes the final, complete, exclusive and fully integrated record of the
agreement of the parties with respect to the subject matter herein and the
amendment of the Existing Agreement with respect to such subject matter. This
Amendment may be executed in one or more counterparts; such execution of
counterparts may occur by manual signature, facsimile signature, manual
signature transmitted by means of facsimile transmission or manual signature
contained in an imaged document attached to an email transmission; and each such
counterpart executed in accordance with the foregoing shall be deemed an
original, with all such counterparts together constituting one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their duly authorized officers, as of the day and year first above written.
PNC Global Investment Servicing (U.S.) Inc. [Fund]
By: /s/ Xxxxx X. Xxxxxx By: /s/ Ford X. Xxxxxx, Xx.
Name: Xxxxx X. Xxxxxx Name: Ford X. Xxxxxx, Xx.
Title: Vice President Title: President
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