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EXHIBIT 23(h)(5)
LONGLEAF PARTNERS FUND
SUB-TRANSFER AGENT AGREEMENT
AGREEMENT made as of the 31st day of December, 1996 by Longleaf
Partners Fund (the "Fund") and Xxxxxx Xxxxxxx & Company ("Agent").
W I T N E S S E T H:
WHEREAS: Fund is an open-end management investment company registered under the
Investment Company Act of 1940, as amended (the "Act"); National Financial Data
Services ("NFDS") serves as the institutional transfer agent for Fund; Agent now
performs administrative and record-keeping services for the employee benefit
plan or plans listed in Exhibit 1 attached hereto (the "Plan"), and the
financial institution designated by the Plan and listed in Exhibit 1 ("Trustee")
performs custody services for the Plan; and
WHEREAS: Fund desires to appoint Agent to serve as sub-transfer agent of the
Fund to receive and then transmit to NFDS as transfer agent of the Fund
instructions and confirmations regarding the purchase, exchange and redemption
of securities of the Fund on behalf of the Plan;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto hereby agree as follows:
1. Appointment of Agent, Procedural Matters: Fund hereby appoints Agent as
sub-transfer agent with respect to securities of the Fund to be
purchased and held by the Plan, and Agent accepts such appointment, on
the terms set forth herein.
(a) Fund or its designee will furnish Agent or its designee with (1)
confirmed per share net asset value or pricing information as of
the close of trading on the New York Stock Exchange (the "Close
of Trading") on each business day that the New York Stock
Exchange is open for business and (2) dividend and capital gains
information as it arises. Fund shall use its best efforts to
provide such information to Agent or its designee by means of
facsimile or electronic transmission by 5:30 p.m. eastern time
("ET") on each business day for Fund.
(b) Agent shall, as agent for the Fund, receive from the Plan for
acceptance as of the Close of Trading on each business day
(based upon the Plan's receipt of instructions from
participants in the Plan prior to the Closing of Trading on
such business day): (1) orders for the purchase of shares of
the Fund, and (2) redemption requests with respect to shares of
the Fund held by the Plan ("Instructions"). The business day on
which there are any orders for purchases or redemptions shall be
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SUB-TRANSFER AGENT AGREEMENT
referred to as a Trade Date or "TD". Agent shall upon acceptance
of any such Instructions on a particular Trade Date communicate
such acceptance to the Plan.
(c) Agent or its designee will communicate to NFDS by means of
facsimile or electronic transmission no later than 9:00 a.m. ET
on the business day immediately following the Trade Date ("TD +
1") a report of the trading activity for that Trade Date or, in
the alternative, information indicating that there were no
trades. The trading report shall provide a description of Plan
trading activity of Fund shares in sufficient detail to enable
NFDS and Fund to process the transactions accurately. In the
event there are net purchases for Fund (a net result of purchases
and redemptions) the report will reflect the net amount of shares
to be purchased. In the event there are net redemptions for Fund,
the report will reflect the net amount of shares to be redeemed.
If Agent or its designee is unable to communicate this
information, Agent shall save and hold Fund harmless from any
cost, damages or liabilities resulting therefrom unless such
inability is the result of Fund's negligence or inability to
provide the information called for by Section 1(a) above in a
timely manner.
(d) Fund will instruct NFDS to send via facsimile or electronic
transmission to Agent or its designee a confirmation of each
Trade Date's net purchase or net redemption, as the case may be,
for the Fund by the close of business on the day following the
Trade Date (TD + 1).
(e) In the event there are net purchases on any Trade Date for the
Fund, Agent will instruct Trustee to wire to NFDS by the Close of
Trading on the next succeeding business day that the New York
Stock Exchange and banks are open for business (TD + 1), the
dollar amount of the net purchases. If the wire is not received
by NFDS by such time, then Fund reserves the right, in its sole
discretion, to cancel such purchases. If Fund cancels the trade,
Agent shall use its best efforts to require the Trustee to
compensate Fund for the amount of any resulting dilution of
Fund's net asset value. If Fund accepts the trade, Agent shall
use its best efforts to require Trustee to compensate Fund for
any associated bank penalties.
In the event there are net redemptions for the day, Fund will
instruct NFDS to wire to Trustee by Close of Trading on the
business day following the Trade Date (TD + 1), the dollar amount
of the net redemptions. If the wire is not received by Trustee by
such time, Trustee xxxx
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SUB-TRANSFER AGENT AGREEMENT
contact NFDS. If it is determined that NFDS was negligent in
initiating the wire, Fund shall use its best efforts to require
NFDS to compensate Trustee for the amount of the overdraft plus
associated bank penalties.
(f) Agent or its designee will reconcile the records of the Plan to
each Trade Date's confirmations. Agent will notify Fund of any
material differences promptly but in not event later than the
close of the second business day following the Trade Date (TD +
2). Fund and Agent shall jointly determine the cause and the
appropriate action to be taken.
2. Representations by Agent. Agent represents that:
(a) it has full power and authority from the Plan Sponsor to enter
into and perform this Agreement;
(b) it is registered as a transfer agent pursuant to Section 17A of
the Securities Exchange Act of 1934, as amended (the "1934 Act");
(c) all purchases and redemptions of Fund shares contemplated by the
Agreement shall be effected in accordance with Fund's then
current prospectus;
(d) the arrangements provided for in this Agreement will be disclosed
to the Plan through its representatives; and
(e) it will promptly notify Fund in the event that Agent or its
designee is for any reason is unable to perform any of its
obligations under this Agreement.
3. Representations of Fund. Fund represents that:
(a) it has full power and authority to enter into and perform this
Agreement and is duly authorized to appoint Agent as Fund's
sub-transfer agent;
(b) it is registered as an investment company under Section 8 of the
Investment Company Act of 1940;
(c) it will promptly notify Agent in the event that it is for any
reason unable to perform any of its obligations under this
Agreement.
4. Verification. Each party hereto (or its designee) shall, as soon as
practicable after receipt of a report, notification of information
transmitted by the other party hereto, verify to such other party by
telephonic facsimile or other means of electronic transmission its
receipt of such transmission, and in the absence of such verification a
party to whom a transmission is sent shall not be liable for any
failure to
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SUB-TRANSFER AGENT AGREEMENT
act in accordance with such transmission, and the sending party may
not claim that such transmission was received by the other. Each party
(or its designee) shall notify the other of any errors, omissions or
interruptions in, or delay or unavailability of, any such transmission
as promptly as possible.
5. Information Regarding the Plan. Agent shall transmit to Fund (or to
any agent designated by either of them) such information concerning
the Plan and participants in the Plan as shall reasonably be necessary
to provide the services contemplated by this Agreement and as Fund
shall reasonably conclude is necessary to enable it to comply with
applicable state Blue Sky laws.
6. Prospectus Delivery. The parties hereto agree that Fund and the Plan
shall be responsible for establishing requirements for the timely
delivery to Plan participants of prospectuses for the Funds in such
quantities as are reasonably necessary, in compliance with
requirements of the Securities and Exchange Commission, the Department
of Labor, and other regulatory authorities.
7. Warning Calls. Fund may require that any entity purchasing or
redeeming shares of the Fund comply with warning call procedures
relating to maximum allowable redemptions. If a trade for any Fund
exceeds a warning call limit previously communicated to Agent and a
corresponding warning call was not placed to Fund within the required
time frame, Fund reserves the right to reject the trade.
8. Indemnification. In providing services pursuant to this Agreement,
Agent and Fund shall comply with all applicable Federal and state
securities laws and regulations and each party hereto shall fully
indemnify the other for any claims or liabilities suffered by such
other party, or its partners, employees or agents (including
reasonable legal fees and other out-of-pocket costs of defending
against any such claim or liability), arising from non-compliance by
such party with any such laws or regulations.
9. Non-Exclusivity. Fund acknowledges and agrees that Agent or Trustee
may enter into agreements similar to this Agreement with organizations
other than Fund or NFDS which also serve as transfer agents for mutual
funds. Agent and Trustee acknowledge and agree that nothing contained
herein shall prohibit NFDS or any affiliate of NFDS from providing
administrative, sub-accounting or record keeping services to any
defined contribution plan.
10. Termination of Agreement. This Agreement may be terminated at any time
by any party upon 90 days written notice to the other parties.
Notwithstanding the foregoing, this Agreement shall
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SUB-TRANSFER AGENT AGREEMENT
be terminated immediately upon either (i) a material breach by any
party not cured within 15 days after notice from another party, or
(ii) upon termination of services from any party to the Plan. The
provisions of paragraph 8 and this paragraph 10 shall survive any
termination of this Agreement.
11. Notices. (a). Unless otherwise specified, all notices and other
communications with respect to the terms and conditions of this
Agreement shall be in writing and shall be hand delivered or mailed by
certified mail to the other party at the following address or such
other address as each party may give notice to the other.
If to Agent: If to Fund:
Xxxxxx Xxxxxxx & Company Longleaf Partners Funds
Three Ravinia Drive; Ste. 1480 0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx Xxxxx Attn: Xxxxxxx X. Xxxxxx
(b). The method of sending reports, notices and communications with
respect to the administration and operations of the transactions
contemplated by this Agreement shall be established by mutual consent
of the parties hereto in writing by letter, and shall continue in
effect until amended in writing by letter.
12. Amendment, Assignment and Other Matters. This Agreement may not be
amended except by a writing signed by the party against which
enforcement is sought. This Agreement may be executed in several
counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument. The headings in
this Agreement are for reference only and shall not affect the
interpretation of construction of this Agreement. Except as set forth
in paragraph 11(b), this Agreement contains the entire understandings
of the parties as to the subject matter hereof and supersedes any
prior agreements, written or oral. Agent recognizes that Fund is a
Massachusetts business trust and agrees that the Fund's assets only
and not those of any of its Trustees, officers, or shareholders shall
be subject to any liabilities under this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXXXX XXXXXXX & COMPANY LONGLEAF PARTNERS FUND
By: /s/ Xxxxx X. Xxxxx By:
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/s/ Xxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxx
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Executive Vice President and
Chief Financial Officer Executive Vice President
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LONGLEAF PARTNERS FUND
XXXXXX XXXXXXX & COMPANY
SUB-TRANSFER AGENT AGREEMENT
EXHIBIT 1
LISTING OF EMPLOYEE BENEFIT PLANS SUBJECT TO AGREEMENT
1. Sun Microsystems, Inc. 401(k) Plan; NationsBank as Trustee; effective
July 31, 1996
2. Deseret Mutual Benefits 403(b) Plan; Xxxxx Fargo Bank as Trustee;
effective December 31, 1996
