RED FLAG SERVICES AMENDMENT
This Red Flags Services Amendment ("Amendment") is being entered into as of
November 1, 2008 ("Effective Date"), by and between PNC Global Investment
Servicing (U.S.) Inc. (formerly known as PFPC Inc.) ("PNC") and the undersigned
investment company (the "Fund") and amends the agreement between PNC and the
Fund pursuant to which PNC provides transfer agency services to the Fund, 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:
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) A new section which reads in its entirety as follows shall be added to the
end of the Existing Agreement:
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) in connection with (i)
account opening and other account activities and transactions
conducted directly through PNC with respect to Direct Accounts (as
defined below), and (ii) transactions effected directly through PNC by
Covered Persons (as defined below) in Covered Accounts (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) or a
Covered Person.
(B) "Identity Theft" means a fraud committed or attempted using
the identifying information of another person without authority.
(C) "Registered Owner" means a natural person who is the owner of
record of a Direct Account on the books and records of the Fund
maintained by PNC as registrar of the Fund (the "Fund Registry").
(D) "Covered Person" means a natural person who is the owner of
record of a Covered Account on the Fund Registry.
(E) "Direct Account" means an account holding Fund shares
established directly with and through PNC by a natural person as
a registered account on the Fund Registry and through which the
owner of record has the ability to directly conduct account and
transactional activity with and through PNC.
(F) "Covered Account" means an account holding Fund shares
established by a financial intermediary for a natural person as
the owner Of record on the Fund Registry and through which such
owner of record has the ability to conduct transactions in Fund
shares directly with and through PNC.
(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, the fee for Red
Flag Services as established by PNC from time to time by written notice.
Other than the initial fee which shall be payable as of the Effective Date,
the Fund shall be obligated to pay any revised fee commencing thirty (30)
days after the Fund's receipt of such written notice. The Fund's sole
remedy in the event it does not agree to a revised fee is to terminate the
Red Flag Services.
(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 PNC 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. Tweedy, Xxxxxx Fund Inc.
By: By:
Name: ________________________ Name: ___________________
Executive Vice President
Title: Senior Managing Director Title: Assistant Secretary
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