AMENDED AND RESTATED TRANSFER AGENCY SERVICES AGREEMENT
This Amended and Restated Transfer Agency Services Agreement is made as
of December 15, 2003 by and between PFPC INC., a Massachusetts corporation
("PFPC"), and FIRST DEFINED PORTFOLIO FUND, LLC, a Delaware limited liability
company (the "Fund") with respect to transfer agency services.
BACKGROUND
A. The Fund is registered as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act").
B. The Fund and
PFPC (formerly known as First Data Investor Services Group, Inc.) were parties
to a Services Agreement dated as of September 30, 1999, which the parties agree
shall terminate as of the date of this Agreement (the "Superceded Agreement").
C. The Fund wishes to continue to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to continue to furnish such services.
TERMS
NOW, THEREFORE, 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 Members to give Oral Instructions
Page 1
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.
(d) "Board Members" shall mean the Trustees of the Fund.
(e) "Interests" mean the shares of beneficial interest of any series or
class of each Portfolio of the Fund. (f) "Member" shall have the same
meaning as set forth in the limited liability company agreement. (g)
"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.
(h) "SEC" means the Securities and Exchange Commission. (i) "Securities
Laws" mean the 1933 Act, the 1934 Act and the 1940 Act.
(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 by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC to serve as transfer
agent, registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. PFPC accepts
such appointment and agrees to furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
provide PFPC with the following:
Page 2
(a) At PFPC's request, certified or authenticated copies of the resolutions
of the Fund's Board Members, approving the appointment of PFPC or its
affiliates to provide services to the Fund and approving this
Agreement;
(b) A copy of the Fund's most recent effective registration statement;
(c) A copy of the advisory agreement with respect to each investment
Portfolio of the Fund;
(d) A copy of the distribution/underwriting agreement with respect to
each class of Interests of the Fund;
(e) A copy of each Portfolio's administration agreements if PFPC is not
providing the Portfolio with such services;
(f) Copies of any distribution and/or shareholder servicing plans and
agreements made in respect of the Fund or a Portfolio;
(g) A copy of the Fund's organizational documents, as filed with the state
in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any and all
amendments or supplements to the foregoing.
4. Compliance with Rules and Regulations. 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 any
other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only upon
Page 3
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 Members or of the
Fund's Members, unless and until PFPC receives Written Instructions to
the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions confirming Oral
Instructions 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.
6. 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
Page 4
advice or Oral Instructions or Written Instructions PFPC receives from
the Fund, and the advice it 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 or 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.
7. Records; Visits. The books and records pertaining to the Fund, which
are in the possession or under 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.
8. Confidentiality.
(a) Each party shall keep confidential any information relating to the
other party's business ("Confidential Information"). Confidential
Information shall include:
(i) 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
Page 5
of the Fund or PFPC, their respective subsidiaries and
affiliated companies and the customers, clients and suppliers
of any of them;
(ii) 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;
(iii) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and
(iv) anything designated as confidential.
(b) Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations if:
(i) release of such information is necessary or desirable in
connection with PFPC's provision of services under this
Agreement;
(ii) it is already known to the receiving party at the time it is
obtained;
(iii) it is or becomes publicly known or available through no
wrongful act of the receiving party;
(iv) it is rightfully received from a third party who, to the best
of the receiving party's knowledge, is not under a duty of
confidentiality;
(v) it is released by the protected party to a third party without
restriction;
(vi) it is required to be disclosed by the receiving party pursuant
to a requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the receiving party will
provide the other party written notice of such requirement, to
the extent such notice is permitted);
(vii) it is relevant to the defense of any claim or cause of action
asserted against the receiving party; or
(viii) it has been or is independently developed or obtained by the
receiving party.
Page 6
9. Cooperation with Accountants. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the necessary
information is made available to such accountants for the expression of their
opinion, as required by the Fund.
10. PFPC System. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, 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.
11. 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,
negligence or reckless disregard of its duties or obligations under this
Agreement.
12. Compensation. 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 from time to time in writing by the Fund and PFPC. The Fund acknowledges that
PFPC may receive float benefits and/or investment earnings in connection with
maintaining certain accounts required to provide services under this Agreement.
13. Indemnification.
Page 7
(a) The Fund, on behalf of the Portfolios, 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, reasonable attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state and foreign
securities and blue sky laws) ("Claims") 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, negligence or reckless disregard in the
performance of PFPC's activities under this Agreement, provided that in
the absence of a finding to the contrary the acceptance, processing
and/or negotiation of a fraudulent payment for the purchase of
Interests shall be presumed not to have been the result of PFPC's or
its affiliates own willful misfeasance, bad faith, negligence or
reckless disregard of such duties and obligations under this Agreement.
The provisions of this Section 13 shall survive termination of this
Agreement.
(b) Indemnification of the Fund. PFPC agrees to defend, indemnify and hold
the Fund and its officers, directors and employees harmless from any
and all Claims arising directly or indirectly from the negligence, bad
faith or willful misfeasance of PFPC in the performance of its duties
hereunder. Notwithstanding the foregoing, the Fund shall not be
indemnified against any Claim caused by the Fund's or the Fund's other
service providers' willful misfeasance, bad faith or negligence.
(c) Indemnification Procedure.
Page 8
(i) Notice of the Action. A party that seeks indemnification
under this Agreement must promptly give the other party
notice of any legal action. But a delay in notice does not
relieve an indemnifying party of any liability to an
indemnified party, except to the extent the indemnifying
party shows that the delay prejudiced the defense of the
action.
(ii) Participating in or Assuming the Defense. The indemnifying
party may participate in the defense at any time or it may
assume the defense by giving notice to the other party. After
assuming the defense, the indemnifying party:
(1) must select an attorney that is satisfactory to
the other party;
(2) is not liable to the other party for any later
attorney's fees or for any other later expenses that
the other party incurs, except for reasonable
investigation costs; (3) must not compromise or
settle the action without the other party's consent
(but the other party must not unreasonably withhold
its consent); and (4) is not liable for any
compromise or settlement made without its consent.
(iii) Failing to Assume the Defense. If the indemnifying party
fails to participate in or assume the defense within 15 days
after receiving notice of the action, the indemnifying party
is bound by any determination made in the action or by any
compromise or settlement made by the other party.
14. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of
Page 9
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, negligence or reckless disregard
of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC
shall not be 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, 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.
(d) Each party shall have a duty to mitigate damages for which the other
Page 10
party may become responsible. (e) The provisions of this Section 14
shall survive termination of this Agreement.
15. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Calculate 12b-1 payments;
(ii) Maintain Member registrations;
(iii) Review new applications and correspond with Members to
complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction with
proxy solicitations;
(vi) Countersign Interest certificates;
(vii) Prepare and mail to Members confirmation of activity;
(viii) Provide toll-free lines for direct Member use, plus customer
liaison staff for on-line inquiry response;
(ix) Mail duplicate confirmations to broker-dealers of their
clients' activity, whether executed through the broker-dealer
or directly with PFPC;
(x) Provide periodic Member lists and statistics to the Fund;
(xi) Provide detailed data for underwriter/broker confirmations;
(xii) Prepare periodic mailing of year-end tax and statement
information;
(xiii) Notify on a timely basis the investment adviser, accounting
agent, and custodian of fund activity; and
(xiv) Perform other participating broker-dealer shareholder services
as may be agreed upon from time to time.
(b) Services Provided by PFPC Under Oral Instructions or Written Instructions.
(i) Accept and post daily Interest purchases and redemptions;
Page 11
(ii) Accept, post and perform Member transfers and exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
(v) Issue and cancel certificates (when requested in writing by
the Member).
(c) Purchase of Interests. PFPC shall issue and credit an account of an
investor, in the manner described in the Fund's prospectus, once it
receives:
(i) A purchase order;
(ii) Proper information to establish a Member account; and
(iii) Confirmation of receipt or crediting of funds for such order
to the Fund's custodian.
(d) Redemption of Interests. PFPC shall redeem Interests only if that
function is properly authorized by the certificate of incorporation or
resolution of the Fund's Board of Trustees. Interests shall be redeemed
and payment therefor shall be made in accordance with the Fund's
prospectus, when the recordholder tenders Interests in proper form and
directs the method of redemption. If Interests are received in proper
form, Interests shall be redeemed before the funds are provided to PFPC
from the Fund's custodian (the "Custodian"). If the recordholder has
not directed that redemption proceeds be wired, when the Custodian
provides PFPC with funds, the redemption check shall be sent to and
made payable to the recordholder, unless:
(i) the surrendered certificate is drawn to the order of an
assignee or holder and transfer authorization is signed by
the recordholder; or
(ii) transfer authorizations are signed by the recordholder when
Interests are held in book-entry form.
When a broker-dealer notifies PFPC of a redemption desired by a customer, and
Page 12
the Custodian provides PFPC with funds, PFPC shall prepare and send the
redemption check to the broker-dealer and made payable to the broker-dealer on
behalf of its customer.
(e) Dividends and Distributions. Upon receipt of a resolution of the Fund's
Board of Trustees authorizing the declaration and payment of dividends
and distributions, PFPC shall issue dividends and distributions
declared by the Fund in Interests, or, upon Member election, pay such
dividends and distributions in cash, if provided for in the Fund's
prospectus. Such issuance or payment, as well as payments upon
redemption as described above, shall be made after deduction and
payment of the required amount of funds to be withheld in accordance
with any applicable tax laws or other laws, rules or regulations. PFPC
shall mail to the Fund's Members such tax forms and other information,
or permissible substitute notice, relating to dividends and
distributions paid by the Fund as are required to be filed and mailed
by applicable law, rule or regulation. PFPC shall prepare, maintain and
file with the IRS and other appropriate taxing authorities reports
relating to all dividends above a stipulated amount paid by the Fund to
its Members as required by tax or other law, rule or regulation.
(f) Member Account Services.
(i) PFPC may arrange, in accordance with the prospectus, for
issuance of Interests obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders, checks and
applications.
(ii) PFPC may arrange, in accordance with the prospectus, for a
Member's:
- Exchange of Interests for shares of another fund with
which the Fund has exchange privileges;
- Automatic redemption from an account where that Member
participates in a automatic redemption plan; and/or
- Redemption of Interests from an account with a
checkwriting privilege.
Page 13
(g) Communications to Members. Upon timely Written Instructions, PFPC shall
mail all communications by the Fund to its Members, including:
(i) Reports to Members;
(ii) Confirmations of purchases and sales of Fund Interests;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards for the
meetings of the Fund's Members.
(h) Records. PFPC shall maintain records of the accounts for each Member
showing the following information:
(i) Name, address and United States Tax Identification or Social
Security number;
(ii) Number and class of Interests held and number and class of
Interests for which certificates, if any, have been issued,
including certificate numbers and denominations;
(iii) Historical information regarding the account of each Member,
including dividends and distributions paid and the date and
price for all transactions on a Member's account;
(iv) Any stop or restraining order placed against a Member's
account;
(v) Any correspondence relating to the current maintenance of a
Member's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform any
calculations required by this Agreement.
(i) Lost or Stolen Certificates. PFPC shall place a stop notice against any
Page 14
certificate reported to be lost or stolen and comply with all
applicable federal regulatory requirements for reporting such loss or
alleged misappropriation. A new certificate shall be registered and
issued only upon:
(i) The Member's pledge of a lost instrument bond or such other
appropriate indemnity bond issued by a surety company approved
by PFPC; and
(ii) Completion of a release and indemnification agreement signed
by the Member to protect PFPC and its affiliates.
(j) Member Inspection of Stock Records. Upon a request from any Fund Member
to inspect stock records, PFPC will notify the Fund and the Fund will
issue instructions granting or denying each such request. Unless PFPC
has acted contrary to the Fund's instructions, the Fund agrees to and
does hereby release PFPC from any liability for refusal of permission
for a particular Member to inspect the Fund's stock records.
(k) Withdrawal of Interests and Cancellation of Certificates. Upon receipt
of Written Instructions, PFPC shall cancel outstanding certificates
surrendered by the Fund to reduce the total amount of outstanding
Interests by the number of Interests surrendered by the Fund.
(l) Lost Members. PFPC shall perform such services as are required in order
to comply with Rules 17a-24 and 17Ad-17 of the 1934 Act (the "Lost
Shareholder Rules"), including, but not limited to, those set forth
below. PFPC may, in its sole discretion, use the services of a third
party to perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to comply
with the Lost Shareholder Rules; and
Page 15
(iv) preparation and submission of data required under the Lost
Shareholder Rules.
Except as set forth above, PFPC shall have no responsibility for any
escheatment services.
(m) Print Mail. In addition to performing the foregoing services, the Fund
hereby engages PFPC as its exclusive print/mail service provider with
respect to those items and for such fees as may be agreed to from time
to time in writing by the Fund and PFPC.
(n) Retirement Plans.
(i) In connection with the individual retirement accounts,
simplified employee pension plans, rollover individual
retirement plans, educational IRA's and XXXX individual
retirement accounts ("XXX Plans"), 403(b) Plans and money
purchase and profit sharing plans ("Qualified Plans")
(collectively, the "Retirement Plans") within the meaning of
Section 408 of the Internal Revenue Code of 1986, as amended
(the "Code") sponsored by the Fund for which contributions of
the Fund's Members (the "Participants") are invested solely in
Interests of the Fund, PFPC shall provide the following
administrative services:
(A) Establish a record of types and reasons for
distributions (i.e., attainment of age 59-1/2,
disability, death, return of excess contributions,
etc.);
(B) Record method of distribution requested and/or made;
(C) Receive and process designation of beneficiary forms
requests;
(D) Examine and process requests for direct transfers
between custodians/trustees, transfer and pay over to
the successor assets in the account and records
pertaining thereto as requested;
(E) Prepare any annual reports or returns required to be
prepared and/or filed by a custodian of a Retirement
Plan, including, but not limited to, an annual fair
market value report, Forms 1099R and 5498; and file
same with the IRS and provide same to
Participant/Beneficiary, as applicable; and
(F) Perform applicable federal withholding and send
Participants/Beneficiaries an annual TEFRA notice
regarding required federal tax withholding.
Page 16
(ii) PFPC shall arrange for PFPC Trust Company to serve as
custodian for the Retirement Plans sponsored by the Fund.
(iii) With respect to XXX Plans, PFPC shall provide the Fund with
the associated XXX Plan documents for use by the Fund and PFPC
shall be responsible for the maintenance of such documents in
compliance with all applicable provisions of the Code and the
regulations promulgated thereunder.
(iv) With respect to 403(b) Plans and Qualified Plans, the Fund
acknowledges it shall utilize the services of Universal
Pensions, Inc. as its 403(b) Plan document and Qualified Plan
document services provider and PFPC shall not be responsible
for the maintenance of such documents in compliance with
applicable provisions of the Code and the regulations
promulgated thereunder.
16. Duration and Termination.
(a) This Agreement shall be effective on the date first written
above and shall continue until June 12, 2008 (the "Initial
Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year
("Renewal Terms") each, unless the Fund or PFPC provides
written notice to the other of its intent not to renew. Such
notice must be received not less than ninety (90) days prior
to the expiration of the Initial Term or the then current
Renewal Term.
(c) In the event a termination notice is given by the Fund, all
expenses associated with movement of records and materials and
conversion thereof to a successor transfer agent(s) (and any
other service provider(s)), and all trailing expenses incurred
by PFPC, will be borne by the Fund.
(d) If a party hereto is guilty of a material failure to perform
its duties and obligations hereunder (a "Defaulting Party")
the other party (the "Non-Defaulting Party") may give written
notice thereof to the Defaulting Party, and if such material
breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting
Page 17
Party may terminate this Agreement by giving thirty (30) days
written notice of such termination to the Defaulting Party. In
all cases, termination by the Non-Defaulting Party shall not
constitute a waiver by the Non-Defaulting Party of any other
rights it might have under this Agreement or otherwise against
the Defaulting Party.
17. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the Fund,
at 0000 Xxxxxxxxxxx Xxxx, Xxxxx, XX 00000, Attention: General Counsel 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.
18. Amendments. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
19. Delegation; Assignment. PFPC may assign its rights and delegate its
duties 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 or delegation.
20. 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.
Page 18
21. Further Actions. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
22. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
(including the Superceded 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.
(b) No Changes that Materially Affect Obligations. 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.
(c) Captions. 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.
(d) Governing Law. 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.
(e) Partial Invalidity. 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.
(f) Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Page 19
(g) No Representations or Warranties. 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 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.
(h) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(i) The Fund and PFPC agree that the obligations of the Fund under the
Agreement shall not be binding upon any of the Board Members, Members,
nominees, officers, employees or agents, whether past, present or
future, of the Fund individually, but are binding only upon the assets
and property of the Fund (or applicable Portfolio thereof), as provided
in the Certificate of Formation and Limited Liability Company
Agreement. The execution and delivery of this Agreement have been
authorized by the Board Members of the Fund, and signed by an
authorized officer of the Fund, acting as such, and neither such
authorization by such Board Members nor such execution and delivery by
such officer shall be deemed to have been made by any of them or any
Member of the Fund individually or to impose any liability on any of
them or any Member of the Fund personally, but shall bind only the
assets and property of the Fund (or applicable Portfolio thereof), as
provided in the Articles of Incorporation, Certificate of Formation or
Limited Liability Company Agreement.
Page 20
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: /s/ Xxxxx Xxxxxx
---------------------------------
Title: Sr. Vice President
---------------------------------
FIRST DEFINED PORTFOLIO FUND, LLC
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Title: President
----------------------------------
Page 21
EXHIBIT A
THIS EXHIBIT A, dated as of December 15, 2003, is Exhibit A to that certain
Amended and Restated Transfer Agency Services Agreement dated as of December 15,
2003, between PFPC Inc. and First Defined Portfolio Fund, LLC with respect to
transfer agency services.
PORTFOLIOS
The Target Managed VIP Portfolio
The DOW(SM) DART 10 Portfolio
Global Target 15 Portfolio
S&P Target 24 Portfolio
NASDAQ Target 15 Portfolio
First Trust 10 Uncommon Values Portfolio
First Trust Energy Portfolio
First Trust Financial Services Portfolio
First Trust Pharmaceutical Portfolio
First Trust Technology Portfolio
Value Line Target 25 Portfolio
Page 22
