Exhibit (h) (xiv) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
AGREEMENT
for
TRANSFER AGENCY SERVICES
AGREEMENT made as of July 1, 2004, by and between WesMark Funds, a
Massachusetts business trust, having its principal office and place of business
at Federated Investors Tower, Pittsburgh, PA 15222-3779 (the "Investment
Company"), and BOSTON FINANCIAL DATA SERVICES, INC., a Massachusetts
corporation, having its principal office and place of business at 0 Xxxxxxxx
Xxxxx, Xxxxx Xxxxxx, XX 00000, on behalf of itself and its subsidiaries (the
"Company").
WHEREAS, the Investment Company is a Massachusetts business trust
consisting of one or more portfolios (such portfolios individually referred to
herein as a "Fund" and collectively as "Funds"), which operates and is
registered under the Investment Company Act of 1940, as amended (the "1940
Act"), with authorized and issued shares of capital stock or beneficial interest
("Shares");
WHEREAS, the Investment Company desires to appoint the Company as its
transfer agent and dividend disbursing agent to provide it with transfer agency
services (as herein defined), and agent in connection with certain other
activities, and the Company desires to accept such appointment; and NOW
THEREFORE, in consideration of the premises and mutual covenants herein
contained, and intending to be legally bound hereby, the parties hereto agree as
follows:
SECTION ONE: Transfer Agency Services.
Article 1. Terms of Appointment.
Subject to the terms and conditions set forth in this Agreement, the
Investment Company hereby appoints the Company to act as, and the Company
agrees to act as, transfer agent and dividend disbursing agent for each Fund's
Shares, and agent in connection with any accumulation, open-account or similar
plans provided to the shareholders of any Fund ("Shareholder(s)"), including
without limitation any periodic investment plan or periodic withdrawal
program.
Article 2. Duties of the Company. The Company shall perform the following
services in accordance with Proper Instructions (as defined herein) as may be
provided from time to time by the Investment Company as to any Fund:
A. Purchases (1) The Company shall receive orders and payment for the
purchase of shares and promptly deliver payment and appropriate documentation
therefore to the custodian of the relevant Fund, (the "Custodian"). The Company
shall notify the Fund and the Custodian on a daily basis of the total amount of
orders and payments so delivered.
(2) Pursuant to purchase orders and in accordance with the Fund's current
Prospectus, the Company shall compute and issue the appropriate number of Shares
of each Fund and/or any classes of shares issued by any Fund ("Classes") and
hold such Shares in the appropriate Shareholder accounts.
(3) For certificated Funds and/or Classes, if a Shareholder or its agent
requests a certificate, the Company, as Transfer Agent, shall countersign and
mail by first class mail, a certificate to the Shareholder at its address as set
forth on the transfer books of the Funds, and/or Classes, subject to any Proper
Instructions regarding the delivery of certificates.
(4) In the event that any check or other order for the purchase of Shares
of the Fund and/or Class is returned unpaid for any reason, the Company shall
debit the Share account of the Shareholder by the number of Shares that had been
credited to its account upon receipt of the check or other order, promptly mail
a debit advice to the Shareholder, and notify the Fund and/or Class of its
action. In the event that the amount paid for such Shares exceeds proceeds of
the redemption of such Shares plus the amount of any dividends paid with respect
to such Shares, the Fund and/the Class or its distributor will reimburse the
Company on the amount of such excess.
B. Distribution (1) Upon notification by the Funds of the declaration of
any distribution to Shareholders, the Company shall act as Dividend Disbursing
Agent for the Funds in accordance with the provisions of its governing document
and the then-current Prospectus and Statement of Additional Information of the
Fund ("Prospectus"). The Company shall prepare and mail or credit income,
capital gain, or any other payments to Shareholders. As the Dividend Disbursing
Agent, the Company shall, on or before the payment date of any such
distribution, notify the Custodian of the estimated amount required to pay any
portion of said distribution which is payable in cash and request the Custodian
to make available sufficient funds for the cash amount to be paid out. The
Company shall reconcile the amounts so requested and the amounts actually
received with the Custodian on a daily basis. If a Shareholder is entitled to
receive additional Shares by virtue of any such distribution or dividend,
appropriate credits shall be made to the Shareholder's account, for certificated
Funds and/or Classes, delivered where
requested; and (2) The Company shall maintain records of account for each
Fund and Class and advise the Investment Company, each Fund and Class and its
Shareholders as to the foregoing.
C. Redemptions and Transfers
(1) The Company shall receive redemption requests and redemption directions
and, if such redemption requests comply with the procedures as may be described
in the Fund Prospectus or set forth in Proper Instructions, deliver the
appropriate instructions therefor to the Custodian. The Company shall notify the
Funds on a daily basis of the total amount of redemption requests processed and
monies paid to the Company by the Custodian for redemptions.
(2) At the appropriate time upon receiving redemption proceeds from the
Custodian with respect to any redemption, the Company shall pay or cause to be
paid the redemption proceeds in the manner instructed by the redeeming
Shareholders, pursuant to procedures described in the then-current Prospectus of
the Fund.
(3) If any certificate returned for redemption or other request for
redemption does not comply with the procedures for redemption approved by the
Fund, the Company shall promptly notify the Shareholder of such fact, together
with the reason therefor, and shall effect such redemption at the price
applicable to the date and time of receipt of documents complying with said
procedures.
(4) The Company shall effect transfers of Shares by the registered owners
thereof. (5) The Company shall identify and process abandoned accounts and
uncashed checks for state escheat requirements on an annual basis and report
such actions to the Fund.
D. Recordkeeping
(1) The Company shall record the issuance of Shares of each Fund, and/or
Class, and maintain pursuant to applicable rules of the Securities and Exchange
Commission ("SEC") a record of the total number of Shares of the Fund and/or
Class which are authorized, based upon data provided to it by the Fund, and
issued and outstanding. The Company shall also provide the Fund on a regular
basis or upon reasonable request with the total number of Shares which are
authorized and issued and outstanding, but shall have no obligation when
recording the issuance of Shares, except as otherwise set forth herein, to
monitor the issuance of such Shares or to take cognizance of any laws relating
to the issue or sale of such Shares, which functions shall be the sole
responsibility of the Funds.
(2) The Company shall establish and maintain records pursuant to applicable
rules of the SEC relating to the services to be performed hereunder in the form
and manner as agreed to by the Investment Company or the Fund to include a
record for each Shareholder's account of the following:
(a) Name, address and tax identification number (and whether such number
has been certified);
(b) Number of Shares held;
(c) Historical information regarding the account, including dividends paid
and date and price for all transactions;
(d) Any stop or restraining order placed against the account;
(e) Information with respect to withholding in the case of a foreign
account or an account for which withholding is required by the Internal Revenue
Code;
(f) Any dividend reinvestment order, plan application, dividend address and
correspondence relating to the current maintenance of the account;
(g) Certificate numbers and denominations for any Shareholder holding
certificates;
(h) Any information required in order for the Company to perform the
calculations contemplated or required by this Agreement.
(3) The Company shall preserve any such records required to be maintained
pursuant to the rules of the SEC for the periods prescribed in said rules as
specifically noted below. Such record retention shall be at the expense of the
Company, and such records may be inspected by the Fund at reasonable times. The
Company may, at its option at any time, and shall forthwith upon the Fund's
demand, turn over to the Fund and cease to retain in the Company's files,
records and documents created and maintained by the Company pursuant to this
Agreement, which are no longer needed by the Company in performance of its
services or for its protection. If not so turned over to the Fund, such records
and documents will be retained by the Company for six years from the year of
creation, during the first two of which such documents will be in readily
accessible form. At the end of the six year period, such records and documents
will either be turned over to the Fund or destroyed in accordance with Proper
Instructions.
E. Confirmations/Reports
(1) The Company shall furnish to the Fund periodically the following
information:
(a) A copy of the transaction register;
(b) Dividend and reinvestment blotters;
(c) The total number of Shares issued and outstanding in each state
for "blue sky" purposes as determined according to Proper
Instructions delivered from time to time by the Fund to the
Company;
(d) Shareholder lists and statistical information;
(e) Payments to third parties relating to distribution agreements,
allocations of sales loads, redemption fees, or other
transaction- or sales-related payments;
(f) Such other information as may be agreed upon from time to time.
(2) The Company shall prepare in the appropriate form, file with
the Internal Revenue Service and appropriate state agencies, and,
if required, mail to Shareholders, such notices for reporting
dividends and distributions paid as are required to be so filed
and mailed and shall withhold such sums as are required to be
withheld under applicable federal and state income tax laws,
rules and regulations.
(3) In addition to and not in lieu of the services set forth above, the
Company shall:
(a) Perform all of the customary services of a transfer agent,
dividend disbursing agent and, as relevant, agent in connection
with accumulation, open-account or similar plans (including
without limitation any periodic investment plan or periodic
withdrawal program), including but not limited to: maintaining
all Shareholder accounts, mailing Shareholder reports and
Prospectuses to current Shareholders, withholding taxes on
accounts subject to back-up or other withholding (including
non-resident alien accounts), preparing and filing reports on
U.S. Treasury Department Form 1099 and other appropriate forms
required with respect to dividends and distributions by federal
authorities for all Shareholders, preparing and mailing
confirmation forms and statements of account to Shareholders for
all purchases and redemptions of Shares and other conformable
transactions in Shareholder accounts, preparing and mailing
activity statements for Shareholders, and providing Shareholder
account information; and
(b) provide a system which will enable the Fund to monitor the total
number of Shares of each Fund (and/or Class) sold in each state
("blue sky reporting"). The Fund shall by Proper Instructions (i)
identify to the Company those transactions and assets to be
treated as exempt from the blue sky reporting for each state and
(ii) verify the classification of transactions for each state on
the system prior to activation and thereafter monitor the daily
activity for each state. The responsibility of the Company for
each Fund's (and/or Class's) state blue sky registration status
is limited solely to the recording of the initial classification
of transactions or accounts with regard to blue sky compliance
and the reporting of such transactions and accounts to the Fund
as provided above.
F. Other Duties
(1) The Company shall answer correspondence from Shareholders
relating to their Share accounts and such other
correspondence as may from time to time be addressed to the
Company;
(2) The Company shall prepare Shareholder meeting lists, mail
proxy cards and other material supplied to it by the Fund in
connection with Shareholder meetings of each Fund; receive,
examine and tabulate returned proxies, and certify the vote
of the Shareholders;
(3) The Company shall establish and maintain facilities and
procedures for safekeeping of stock certificates, check
forms and facsimile signature imprinting devices, if any;
and for the preparation or use, and for keeping account of,
such certificates, forms and devices.
Article 3. Duties of the Investment Company. A. Compliance The Investment
Company or Fund assume full responsibility for the preparation, contents and
distribution of their own and/or their classes' Prospectus and for complying
with all applicable requirements of the Securities Act of 1933, as amended (the
"1933 Act"), the 1940 Act and any laws, rules and regulations of government
authorities having jurisdiction.
B. Share Certificates
The Investment Company shall supply the Company with a sufficient supply of
blank Share certificates and from time to time shall renew such supply upon
request of the Company. Such blank Share certificates shall be properly
signed, manually or by facsimile, if authorized by the Investment Company
and shall bear the seal of the Investment Company or facsimile thereof; and
notwithstanding the death, resignation or removal of any officer of
the Investment Company authorized to sign certificates, the Company may
continue to countersign certificates which bear the manual or facsimile
signature of such officer until otherwise directed by the Investment Company.
C. Distributions
The Fund shall promptly inform the Company of the declaration of any
dividend or distribution on account of any Fund's shares.
Article 4. Compensation and Expenses.
A. Annual Fee
For performance by the Company pursuant to Section One of this Agreement,
the Investment Company and/or the Fund agree to pay the Company an annual
maintenance fee for each Shareholder account as agreed upon between the parties
and as may be added to or amended from time to time. Such fees may be changed
from time to time subject to written agreement between the Investment Company
and the Company. Pursuant to information in the Fund Prospectus or other
information or instructions from the Fund, the Company may sub-divide any Fund
into Classes or other sub-components for recordkeeping purposes. The Company
will charge the Fund the same fees for each such Class or sub-component the same
as if each were a Fund.
B. Reimbursements
In addition to the fee paid under Article 4.A. above, the Investment Company
and/or Fund agree to reimburse the Company for out-of-pocket expenses or
advances incurred by the Company for the items agreed upon between the
parties, as may be added to or amended from time to time. In addition, any
other expenses incurred by the Company at the request or with the consent
of the Investment Company and/or the Fund, will be reimbursed by the
appropriate Fund.
C. Payment
The compensation and out-of-pocket expenses shall be accrued by the Fund
and shall be paid to the Company no less frequently than monthly, and shall be
paid daily upon request of the Company. The Company will maintain detailed
information about the compensation and out-of-pocket expenses by Fund and Class.
D. Any schedule of compensation agreed to hereunder, as may be adjusted
from time to time, shall be dated and signed by a duly authorized officer of the
Investment Company and/or the Funds and a duly authorized officer of the
Company.
SECTION TWO: General Provisions.
Article 5. Proper Instructions.
As used throughout this Agreement, a "Proper Instruction" means a writing
signed or initialed by one or more person or persons as the Board shall have
from time to time authorized. Each such writing shall set forth the specific
transaction or type of transaction involved. Oral instructions will be deemed to
be Proper Instructions if
(a) the Company reasonably believes them to have been given by a person
previously authorized in Proper Instructions to give such instructions with
respect to the transaction involved, and (b) the Investment Company, or the
Fund, and the Company promptly cause such oral instructions to be confirmed in
writing. Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the Investment
Company, or the Fund, and the Company are satisfied that such procedures afford
adequate safeguards for the Fund's assets. Proper Instructions may only be
amended in writing.
Article 6. Assignment. Except as provided below, neither this Agreement nor
any of the rights or obligations under this Agreement may be assigned by either
party without the written consent of the other party.
A. This Agreement shall inure to the benefit of and be binding
upon the parties and their respective permitted successors
and assigns.
B. The Company may without further consent on the part of the
Investment Company subcontract for the performance of
Transfer Agency Services with such other provider of
services which is duly registered as a transfer agent
pursuant to Section 17A(c)(1) of the Securities Exchange Act
of 1934, as amended, or any succeeding statute as Company
shall select. The Company shall be as fully responsible to
the Investment Company for the acts and omissions of any
subcontractor as it is for its own acts and omissions.
C. The Company shall upon instruction from the Investment
Company subcontract for the performance of services under
this Agreement with an Agent selected by the Investment
Company, other than as described in B. above; provided,
however, that the Company shall in no way be responsible to
the Investment Company for the acts and omissions of the
Agent.
Article 7. Documents.
A. In connection with the appointment of the Company under this
Agreement, the Investment Company shall file with the
Company the following documents:
(1) A copy of the Charter and By-Laws of the Investment Company and all
amendments thereto;
(2) A copy of the resolution of the Board of the Investment Company
authorizing this Agreement;
(3) Specimens of all forms of outstanding Share certificates of the
Investment Company or the Funds in the forms approved by the Board of the
Investment Company with a certificate of the Secretary of the Investment Company
as to such approval; (4) All account application forms and other documents
relating to Shareholders accounts; and
(5) A copy of the current Prospectus for each Fund.
B. The Fund will also furnish from time to time the following documents:
(1) Each resolution of the Board of the Investment Company authorizing the
original issuance of each Fund's, and/or Class's Shares;
(2) Each Registration Statement filed with the SEC and amendments thereof
and orders relating thereto in effect with respect to the sale of Shares of any
Fund, and/or Class;
(3) A certified copy of each amendment to the governing document and the
By-Laws of the Investment Company;
(4) Certified copies of each vote of the Board authorizing officers to give
Proper Instructions to the Custodian and agents for fund accountant, custody
services procurement, and shareholder recordkeeping or transfer agency services;
(5) Specimens of all new Share certificates representing Shares of any
Fund, accompanied by Board resolutions approving such forms;
(6) Such other certificates, documents or opinions which the Company may,
in its discretion, deem necessary or appropriate in the proper performance of
its duties; and
(7) Revisions to the Prospectus of each Fund. Article 8. Representations
and Warranties. A. Representations and Warranties of the Company
The Company represents and warrants to the Fund that:
(1) it is a corporation duly organized and existing and in good
standing under the laws of the Commonwealth of
Massachusetts;
(2) It is duly qualified to carry on its business in each
jurisdiction where the nature of its business requires such
qualification, and in the Commonwealth of Massachusetts;
(3) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this
Agreement;
(4) all requisite corporate proceedings have been taken to
authorize it to enter into and perform its obligations under
this Agreement;
(5) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties
and obligations under this Agreement;
(6) it is in compliance with federal securities law requirements
and in good standing as an administrator and fund
accountant; and
B. Representations and Warranties of the Investment Company The Investment
Company represents and warrants to the Company that:
(1) It is an investment company duly organized and existing and
in good standing under the laws of its state of
organization;
(2) It is empowered under applicable laws and by its Charter and
By-Laws to enter into and perform its obligations under this
Agreement;
(3) All corporate proceedings required by said Charter and
By-Laws have been taken to authorize it to enter into and
perform its obligations under this Agreement;
(4) The Investment Company is an open-end investment company
registered under the 1940 Act; and
(5) A registration statement under the 1933 Act will be
effective, and appropriate state securities law filings have
been made and will continue to be made, with respect to all
Shares of each Fund being offered for sale.
Article 9. Standard of Care and Indemnification.
A. Standard of Care
The Company shall be held to a standard of reasonable care in carrying out
the provisions of this Contract. The Company shall be entitled to rely on and
may act upon advice of counsel (who may be counsel for the Investment Company)
on all matters, and shall be without liability for any action reasonably taken
or omitted pursuant to such advice, provided that such action is not in
violation of applicable federal or state laws or regulations, and is in good
faith and without negligence.
B. Indemnification by Investment Company The Company shall not be
responsible for and the Investment Company or Fund shall indemnify and hold the
Company, including its officers, directors, shareholders and their agents,
employees and affiliates, harmless against any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liabilities arising out of or
attributable to:
(1) The acts or omissions of any Custodian, Adviser, Sub-adviser or other
party contracted by or approved by the Investment Company or Fund,
(2) The reliance on or use by the Company or its agents or subcontractors
of information, records and documents in proper form which
(a) are received by the Company or its agents or subcontractors and
furnished to it by or on behalf of the Fund, its Shareholders or investors
regarding the purchase, redemption or transfer of Shares and Shareholder account
information;
(b) are received by the Company from independent pricing services or
sources for use in valuing the assets of the Funds; or
(c) are received by the Company or its agents or subcontractors from
Advisers, Sub-advisers or other third parties contracted by or approved by the
Investment Company of Fund for use in the performance of services under this
Agreement;
(d) have been prepared and/or maintained by the Fund or its affiliates or
any other person or firm on behalf of the Investment Company.
(3) The reliance on, or the carrying out by the Company or its agents or
subcontractors of Proper Instructions of the Investment Company or the
Fund.
(4) The offer or sale of Shares in violation of any requirement under the
federal securities laws or regulations or the securities laws or regulations of
any state that such Shares be registered in such state or in violation of any
stop order or other determination or ruling by any federal agency or any state
with respect to the offer or sale of such Shares in such state. Provided,
however, that the Company shall not be protected by this Article 9.B. from
liability for any act or omission resulting from the Company's willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
failure to meet the standard of care set forth in 9.A. above.
C. Reliance
At any time the Company may apply to any officer of the Investment Company
or Fund for instructions, and may consult with legal counsel with respect to any
matter arising in connection with the services to be performed by the Company
under this Agreement, and the Company and its agents or subcontractors shall not
be liable and shall be indemnified by the Investment Company or the appropriate
Fund for any action reasonably taken or omitted by it in reliance upon such
instructions or upon the opinion of such counsel provided such action is not in
violation of applicable federal or state laws or regulations. The Company, its
agents and subcontractors shall be protected and indemnified in recognizing
stock certificates which are reasonably believed to bear the proper manual or
facsimile signatures of the officers of the Investment Company or the Fund, and
the proper countersignature of any former transfer agent or registrar, or of a
co-transfer agent or co-registrar.
D. Notification
In order that the indemnification provisions contained in this Article 9
shall apply, upon the assertion of a claim for which either party may be
required to indemnify the other, the party seeking indemnification shall
promptly notify the other party of such assertion, and shall keep the other
party advised with respect to all developments concerning such claim. The party
who may be required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The party seeking
indemnification shall in no case confess any claim or make any compromise in any
case in which the other party may be required to indemnify it except with the
other party's prior written consent. Article 10. Term and Termination of
Agreement.
This Agreement shall be effective on the date hereof and shall continue
through December 31, 2004. Upon the expiration of any term, this Agreement shall
be automatically renewed each year for an additional term of one year, unless
notice of termination has been delivered by either party to the other no less
than one year before the beginning of any such additional term.
Article 11. Amendment.
This Agreement may be amended or modified by a written agreement executed
by both parties. Article 12. Interpretive and Additional Provisions. In
connection with the operation of this Agreement, the Company and the Investment
Company may from time to time agree on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions shall be in a writing signed by both parties and shall be
annexed hereto, provided that no such interpretive or additional provisions
shall contravene any applicable federal or state regulations or any provision of
the Charter. No interpretive or additional provisions made as provided in the
preceding sentence shall be deemed to be an amendment of this Agreement.
Article 13. Governing Law.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the Commonwealth of Massachusetts,
without regard to the conflict of laws principles thereof.
Article 14. Notices.
Except as otherwise specifically provided herein, Notices and other
writings delivered or mailed postage prepaid to the Investment Company at
Federated Investors Tower, Pittsburgh, Pennsylvania, 15222-3779, or to the
Company at 0 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, XX 00000, or to such other address as
the Investment Company or the Company may hereafter specify, shall be deemed to
have been properly delivered or given hereunder to the respective address.
Article 15. Counterparts.
This Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original. Article 16. Limitations of Liability
of Trustees and Shareholders of the Company.
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execution and delivery of this Agreement have been authorized by the Trustees of
the Company and signed by an authorized officer of the Company, acting as such,
and neither such authorization by such Trustees 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, and the obligations of this
Agreement are not binding upon any of the Trustees or Shareholders of the
Company, but bind only the appropriate property of the Fund, or Class, as
provided in the Declaration of Trust.
Article 17. Merger of Agreement.
This Agreement constitutes the entire agreement between the parties hereto
and supersedes any prior agreement with respect to the subject hereof whether
oral or written.
Article 18. Successor Agent.
If a successor agent for the Investment Company shall be appointed by the
Investment Company, the Company shall upon termination of this Agreement deliver
to such successor agent at the office of the Company all properties of the
Investment Company held by it hereunder. If no such successor agent shall be
appointed, the Company shall at its office upon receipt of Proper Instructions
deliver such properties in accordance with such instructions. In the event that
no written order designating a successor agent or Proper Instructions shall have
been delivered to the Company on or before the date when such termination shall
become effective, then the Company shall have the right to deliver to a bank or
trust company, which is a "bank" as defined in the 1940 Act, of its own
selection, having an aggregate capital, surplus, and undivided profits, as shown
by its last published report, of not less than $2,000,000, all properties held
by the Company under this Agreement. Thereafter, such bank or trust company
shall be the successor of the Company under this Agreement.
Article 19. Force Majeure.
The Company shall have no liability for cessation of services hereunder or
any damages resulting therefrom to the Fund as a result of work stoppage, power
or other mechanical failure, natural disaster, governmental action,
communication disruption or other impossibility of performance.
Article 20. Assignment; Successors.
This Agreement shall not be assigned by either party without the prior
written consent of the other party, except that either party may assign all of
or a substantial portion of its business to a successor, or to a party
controlling, controlled by, or under common control with such party. Nothing in
this Article 20 shall prevent the Company from delegating its responsibilities
to another entity to the extent provided herein.
Article 21. Severability.
In the event any provision of this Agreement is held illegal, void or
unenforceable, the balance shall remain in effect.
Article 22. Privacy.
The Investment Company and the Company hereby acknowledge that the
Investment Company may disclose shareholder (i.e. its "customers") nonpublic
personal information pursuant to Regulation S-P ("NPI") to the Company as agent
of the Investment Company and solely in furtherance of fulfilling the Company's
contractual obligations under the Agreement in the ordinary course of business
to support the Investment Company and its shareholders. The Company hereby
agrees to be bound to use and redisclose such NPI only for the limited purpose
of fulfilling its duties and obligations under the Agreement, for law
enforcement and miscellaneous purposes as permitted in 17 CFR xx.xx. 248.15, or
in connection with joint marketing arrangements that the Investment Company may
establish with the Company in accordance with the limited exception set forth in
17 CFR ss. 248.13. The Company further represents and warrants that, in
accordance with 17 CFR ss. 248.30, it has implemented, and will continue to
carry out for the term of the Agreement, policies and procedures reasonably
designed to: insure the security and confidentiality of records and NPI of
Investment Company customers, protect against any anticipated threats or hazards
to the security or integrity of Investment Company customer records and NPI, and
protect against unauthorized access to or use of such Investment Company
customer records or NPI that could result in substantial harm or inconvenience
to any Investment Company customer.
D. The Company may redisclose Section 248.13 NPI only to:
(a) the Investment Company and affiliated persons of the Investment Company
("Investment Company Affiliates");
(b) affiliated persons of the Company ("Company Affiliates") (which in turn
may disclose or use the information only to the extent permitted under the
original receipt);
(c) a third party not affiliated with the Company or the Investment Company
("Nonaffiliated Third Party") under the service and processing (ss.248.14) or
miscellaneous (ss.248.15) exceptions, but only in the ordinary course of
business to carry out the activity covered by the exception under which the
Company received the information in the first instance; and
(d) a Nonaffiliated Third Party under the service provider and joint
marketing exception (ss.248.13), provided the Company enters into a written
contract with the Nonaffiliated Third Party that prohibits the Nonaffiliated
Third Party from disclosing or using the information other than to carry out the
purposes for which the Investment Company disclosed the information in the first
instance.
E. The Company may redisclose Section 248.14 NPI and Section 248.15 NPI to:
(a) the Investment Company and Investment Company Affiliates;
(b) Company Affiliates (which in turn may disclose the information to the
same extent permitted under the original receipt); and
(c) a Nonaffiliated Third Party to whom the Investment Company might
lawfully have disclosed NPI directly.
F. The Company is obligated to maintain beyond the termination date of the
Agreement the confidentiality of any NPI it receives from the Investment Company
in connection with the Agreement or any joint marketing arrangement, and hereby
agrees that this Amendment shall survive such termination.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers, as of the day and year first above written.
WESMARK FUNDS
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President
BOSTON FINANCIAL DATA SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chief Operating Officer
