TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of , 2006 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and BHR INSTITUTIONAL FUNDS, a Delaware
statutory trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to each of
its investment series and PFPC wishes to furnish such services.
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:
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 Trust and any
other person duly authorized by the Trust's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Trust. 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) "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.
(e) "SEC" means the Securities and Exchange Commission.
(f) "SECURITIES LAWS" has the meaning ascribed to the term
"Federal Securities Laws" in Rule 38a-1 under the Investment
Company Act of 1940, as amended..
(g) "SHARES" mean the shares of beneficial interest of any series
or class of the Trust.
(h) "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 electronically (with respect to
sub-item (ii) above) or by hand, mail or facsimile sending
device.
2. APPOINTMENT. The Trust hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to
the Trust in accordance with the terms set forth in this Agreement.
PFPC accepts such appointment and agrees to furnish such services.
3. 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 Trust or any other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon 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 Trust's Board of Trustees or
of the Trust's shareholders, unless and until PFPC receives
Written Instructions to the contrary.
(c) The Trust 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.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE TRUST. 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 Trust.
(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 Trust, the Trust's
investment adviser or PFPC, at the option of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC receives from the Trust, and the advice it
receives from counsel, PFPC may rely upon and follow the
advice of counsel. PFPC shall provide the Trust with prior
written notice of its intention to follow advice of counsel
that is materially inconsistent with Oral or Written
Instructions. PFPC shall further provide the Trust with a copy
of such advice of counsel.
(d) PROTECTION OF PFPC. PFPC shall be indemnified by the Trust 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
Trust 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.
6. RECORDS; VISITS. The books and records pertaining to the Trust, which
are in the possession or under the control of PFPC, shall be the
property of the Trust. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Trust 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 Trust, copies of any
such books and records shall be provided by PFPC to the Trust or to an
Authorized Person, at the Trust's expense.
7. 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 of
the Trust 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 Trust 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
Confidential Information and shall not be subject to such
confidentiality obligations if it:
(i) is already known to the receiving party at the time
it is obtained;
(ii) is or becomes publicly known or available through no
wrongful act of the receiving party;
(iii) is rightfully received from a third party who, to the
best of the receiving party's knowledge, is not under
a duty of confidentiality;
(iv) is released by the protected party to a third party
without restriction;
(v) is requested or required to be disclosed by the
receiving party pursuant to a court order, subpoena,
governmental or regulatory agency request or law
(provided the receiving party will provide the other
party written notice of the same, to the extent such
notice is permitted);
(vi) is relevant to the defense of any claim or cause of
action asserted against the receiving party;
(vii) is necessary for PFPC to release such information in
connection with the provision of services under this
Agreement; or
(viii) has been or is independently developed or obtained by
the receiving party.
(c) The provisions of this Section 7 shall survive termination of
this Agreement for a period of three (3) years after such
termination.
8. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Trust'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 Trust.
9. 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 Trust. Notwithstanding the foregoing, the parties acknowledge the
Trust shall retain all ownership rights in Trust data which resides on
the PFPC System.
10. 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 Trust,
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.
11. COMPENSATION.
(a) As compensation for services rendered by PFPC during the term
of this Agreement, the Trust will pay to PFPC a fee or fees as
may be agreed to from time to time in writing by the Trust and
PFPC. In addition, the Trust agrees to pay, and will be billed
separately in arrears for, reasonable expenses incurred by
PFPC in the performance of its duties hereunder.
(b) PFPC shall establish certain cash management accounts
("Service Accounts") required to provide services under this
Agreement. The Trust acknowledges (i) PFPC may receive
investment earnings from sweeping the funds in such Service
Accounts into investment accounts including, but not limited,
investment accounts maintained at an affiliate or client of
PFPC; (ii) balance credits earned with respect to the amounts
in such Service Accounts ("Balance Credits") will be used to
offset the banking service fees imposed by the cash management
service provider (the "Banking Service Fees"); (iii) PFPC
shall retain any excess Balance Credits for its own use; (iv)
Balance Credits will be calculated and applied toward the
Trust's Banking Service Fees regardless of the Service Account
balance sweep described in Sub-Section (i); and (v) PFPC may
use the services of third-party vendors in connection with the
issuance of redemption and distribution checks and shall
retain any benefits obtained from any arrangements with such
vendors, including any commission or return on float paid to
it by any such vendors.
(c) The undersigned hereby represents and warrants to PFPC that
the terms of this Agreement have been fully disclosed to the
Board of Trustees of the Trust and that, if required by
applicable law, such Board of Trustees has approved or will
approve the terms of this Agreement.
12. INDEMNIFICATION. (a) The Trust, on behalf of each series, agrees to
indemnify, defend and hold harmless PFPC Trust and its affiliates,
including their respective officers, directors, agents and employees
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, attorneys' fees and disbursements and
liabilities arising under the Securities Laws and any state and foreign
securities and blue sky laws) arising directly or indirectly from any
action or omission to act which PFPC Trust takes in connection with the
provision of services to the Trust. Neither PFPC Trust, nor any of its
affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) caused by PFPC Trust's or its affiliates'
own willful misfeasance, bad faith, negligence or reckless disregard in
the performance of PFPC Trust's activities under this Agreement. The
provisions of this Section 12 shall survive termination of this
Agreement.
(b) PFPC Trust agrees to defend, indemnify and hold
the Trust and its officers, directors and employees harmless from all
taxes, charges, expenses, assessments, claims and liabilities
(including reasonable attorneys' fees and disbursements and liabilities
arising under the Securities Laws and any state and foreign securities
and blue sky laws) caused by the negligence, bad faith or willful
misfeasance of PFPC in the performance of its duties hereunder.
Notwithstanding the foregoing, the Trust shall not be indemnified
against any liability (or any expenses incident to such liability)
caused by the Trust's or the Trust's other service providers'
misfeasance, bad faith or negligence or any material breach by the
Trust of this Agreement or any other agreement between PFPC Trust and
the Trust.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on
behalf of the Trust except as specifically set forth herein or
as may be specifically agreed to by PFPC and the Trust 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 and to use its best efforts within
reasonable limits to ensure accuracy and completeness 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 or
any material breach by PFPC of this Agreement.
(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 conforms to the applicable requirements of
this Agreement, if any, and 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 party may become responsible.
(e) The provisions of this Section 13 shall survive termination of
this Agreement.
14. DESCRIPTION OF SERVICES.
(a) SERVICES PROVIDED ON AN ONGOING BASIS, IF APPLICABLE.
(i) Calculate 12b-1 payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and communicate with
investors 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 share certificates;
(vii) Prepare and mail to shareholders confirmation of
activity;
(viii) Provide toll-free lines for direct shareholder use,
plus customer liaison staff for telephone 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 shareholder lists and statistics to
the Trust;
(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;
(xiv) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time;
(xv) Accept and post daily Share purchases and
redemptions;
(xvi) Accept, post and perform shareholder transfers and
exchanges;
(xvii) Issue and cancel certificates (when requested in
writing by the shareholder); and
(xviii) Perform certain administrative and ministerial duties
relating to opening, maintaining and processing
transactions for shareholders or financial
intermediaries that trade shares through the NSCC.
(b) PURCHASE OF SHARES. PFPC shall issue and credit an account of
an investor, in the manner described in the Trust's
prospectus, once it receives:
(i) A purchase order in completed proper form;
(ii) Proper information to establish a shareholder
account; and
(iii) Confirmation of receipt or crediting of funds for
such order to the Trust's custodian.
(c) REDEMPTION OF SHARES. PFPC shall process requests to redeem
Shares as follows:
(i) All requests to transfer or redeem Shares and payment
therefor shall be made in accordance with the Trust's
prospectus, when the shareholder tenders Shares in
proper form, accompanied by such documents as PFPC
reasonably may deem necessary.
(ii) PFPC reserves the right to refuse to transfer or
redeem Shares until it is satisfied that the
endorsement on the instructions is valid and genuine
and that the requested transfer or redemption is
legally authorized, and it shall incur no liability
for the refusal, in good faith, to process transfers
or redemptions which PFPC, in its good judgment,
deems improper or unauthorized, or until it is
reasonably satisfied that there is no basis to any
claims adverse to such transfer or redemption.
(iii) When Shares are redeemed, PFPC shall deliver to the
Trust's custodian (the "Custodian") and the Trust or
its designee a notification setting forth the number
of Shares redeemed. Such redeemed Shares shall be
reflected on appropriate accounts maintained by PFPC
reflecting outstanding Shares of the Trust and Shares
attributed to individual accounts.
(iv) PFPC shall, upon receipt of the monies provided to it
by the Custodian for the redemption of Shares, pay
such monies as are received from the Custodian, all
in accordance with the procedures established from
time to time between PFPC and the Trust.
(v) When a broker-dealer notifies PFPC of a redemption
desired by a customer, and 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, unless otherwise instructed in writing by
the broker-dealer.
(vi) PFPC shall not process or effect any redemption
requests with respect to Shares of the Trust after
receipt by PFPC or its agent of notification of the
suspension of the determination of the net asset
value of the Trust.
(d) DIVIDENDS AND DISTRIBUTIONS. Upon a resolution of the Trust's
Board of Trustees authorizing the declaration and payment of
dividends and distributions and Written Instructions to PFPC
received no later than the business day prior to the record
date of such dividend or distribution, PFPC shall issue
dividends and distributions declared by the Trust in Shares,
or, upon shareholder election, pay such dividends and
distributions in cash, if provided for in the Trust's
prospectus. In all cases the ex-date and the payable date of
any dividends and distributions will be next business day
following the record date. 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
Trust's shareholders such tax forms and other information, or
permissible substitute notice, relating to dividends and
distributions paid by the Trust 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 Trust to its shareholders as
required by tax or other law, rule or regulation.
(e) SHAREHOLDER ACCOUNT SERVICES.
(i) PFPC may arrange, in accordance with the prospectus,
for issuance of Shares 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 shareholder's:
- Exchange of Shares for shares of another
fund with which the Trust has exchange
privileges;
- Automatic redemption from an account where
that shareholder participates in a automatic
redemption plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
(f) COMMUNICATIONS TO SHAREHOLDERS. Upon timely Written
Instructions, PFPC shall mail all communications by the Trust
to its shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Trust shares;
(iii) Monthly or quarterly statements as well as an annual
statement;
(iv) Dividend and distribution notices;
(v) Tax form information; and
(vi) Proxy material.
The Transfer Agent will receive and tabulate the proxy cards for the
meetings of the Trust's shareholders.
(g) RECORDS. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class of Shares held and number and class
of Shares for which certificates, if any, have been
issued, including certificate numbers and
denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions
paid and the date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the current
maintenance of a shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform
any calculations contemplated or required by this
Agreement.
(h) SHAREHOLDER INSPECTION OF STOCK RECORDS. Upon a request from
any Trust shareholder to inspect stock records, PFPC will
notify the Trust and the Trust will issue instructions
granting or denying each such request. Unless PFPC has acted
contrary to the Trust's instructions, the Trust agrees to and
does hereby release PFPC from any liability for refusal of
permission for a particular shareholder to inspect the Trust's
stock records.
(i) LOST SHAREHOLDERS. PFPC shall perform such services as are
required in order to comply with rule 17Ad-17 of the 1934 Act
(the "Lost Shareholder Rule"), 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
(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.
(j) 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 Trust for which
contributions of the Trust's shareholders (the
"Participants") are invested solely in Shares of the
Trust, 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.
(ii) PFPC shall arrange for PFPC Trust Company to serve as
custodian for the Retirement Plans sponsored by the
Trust.
(iii) With respect to the Retirement Plans, PFPC shall
provide the Trust with the associated Retirement Plan
documents for use by the Trust 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.
(k) PRINT MAIL. The Trust 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 Trust and PFPC.
(l) PROXY ADVANTAGE. The Trust hereby engages PFPC as its
exclusive proxy solicitation service provider with respect to
those items and for such fees as may be agreed to from time to
time in writing by the Trust and PFPC.
15. PRIVACY. Each party hereto acknowledges and agrees that, subject to the
reuse and re-disclosure provisions of Xxxxxxxxxx X-X, 00 XXX Part
248.11, it shall not disclose the non-public personal information of
investors in the Trust obtained under this Agreement, except as
necessary to carry out the services set forth in this Agreement or as
otherwise permitted by law or regulation.
16. COOPERATION WITH ACCOUNTANTS. The Transfer Agent shall cooperate with
the Trust's independent public accountants and shall take all
reasonable action in the performance of its obligations under this
Agreement to assure that the necessary information is made available to
such accountants for the expression of their opinion as such may be
required by the Trust from time to time.
17. ANTI-MONEY LAUNDERING.
17.1 To the extent the other provisions of this Agreement require
PFPC to establish, maintain and monitor accounts of investors
in the Trust consistent with securities laws, PFPC shall
perform reasonable actions necessary to help the Trust be in
compliance with Section 352 of the USA PATRIOT Act, as
follows: In this regard, PFPC shall: (a) establish and
implement written internal policies, procedures and controls
reasonably designed to help prevent the Trust from being used
to launder money or finance terrorist activities; (b) provide
for independent testing, by an employee who is not responsible
for the operation of PFPC's AML program or by an outside
party, for compliance with PFPC's established policies and
procedures; (c) designate a person or persons responsible for
implementing and monitoring the operation and internal
controls of PFPC's AML program; and (d) provide ongoing
training of PFPC personnel relating to the prevention of
money-laundering activities. Upon the reasonable request of
the Trust, PFPC shall provide to the Trust: (x) a copy of
PFPC's written AML policies and procedures (it being
understood such information is to be considered confidential
and treated as such and afforded all protections provided to
confidential information under this Agreement); (y) at the
option of PFPC, a copy of a written assessment or report
prepared by the party performing the independent testing for
compliance, or a summary thereof, or a certification that the
findings of the independent party are satisfactory; and (z) a
summary of the AML training provided for appropriate
personnel. PFPC agrees to permit inspections relating to its
AML program by U.S. Federal departments or regulatory agencies
with appropriate jurisdiction and to make available to
examiners from such departments or regulatory agencies such
information and records relating to its AML program as such
examiners shall reasonably request. Without limiting or
expanding the foregoing, the parties agree the provisions of
this subsection 17.1 does do not apply to Section 326 of the
USA PATRIOT Act (or other sections other than Section 352) or
regulations promulgated thereunder.
17.2 To help the Trust comply with its requirements to establish
and implement a due diligence program for "foreign financial
institution" accounts (which the Trust is required to have
under regulations issued under Section 312 of the USA PATRIOT
Act), PFPC will do the following:
(i) Implement and operate a due diligence program that
includes appropriate, specific, risk-based policies,
procedures and controls that are reasonably designed
to enable the Trust to detect and report, on an
ongoing basis, any known or suspected money
laundering activity conducted through or involving
any correspondent account established, maintained,
administered or managed by the Trust for a "foreign
financial institution" (as defined in 31 CFR
103.175(h)) ("Foreign Financial Institution");
(ii) Conduct due diligence to identify and detect any
Foreign Financial Institution accounts in connection
with new accounts and account maintenance;
(iii) Assess the money laundering risk presented by such
Foreign Financial Institution account, based on a
consideration of all appropriate relevant factors,
(as generally outlined in 31 CFR 103.176), and assign
a risk category to each Foreign Financial Institution
account;
(iv) Apply risk-based procedures and controls to each such
Foreign Financial Institution account reasonably
designed to detect and report known or suspected
money laundering activity, including a periodic
review of the Foreign Financial Institution account
activity sufficient to determine consistency with
information obtained about the type, purpose and
anticipated activity of the account;
(v) Include procedures to be followed in circumstances in
which the appropriate due diligence cannot be
performed with respect to a Foreign Financial
Institution account;
(vi) Adopt and operate enhanced due diligence policies,
where necessary, as may be required by future
regulations pending for Foreign Financial Institution
accounts;
(vii) Record due diligence program and maintain due
diligence records relating to Foreign Financial
Institution accounts;
(viii) Report to the Trust about measures taken under
(i)-(vii) above; and
(ix) Set forth on a separate fee schedule compensation
amounts due for these Foreign Financial Institution
services. Notwithstanding anything to the contrary,
and without expanding the scope of the express
language above, PFPC need not complete a due
diligence beyond the requirements of the relevant
regulations and PFPC need not perform any task that
need not be performed for the Trust to be in
compliance with relevant regulation. Without limiting
or expanding the foregoing, the parties agree the
provisions of this subsection 17.2 do not apply to
Section 326 of the USA PATRIOT Act (or other sections
other than Section 312) or regulations promulgated
thereunder. The provisions of this subsection 17.2
specifically exclude private bank account provisions
of Section 312 of the USA PATRIOT Act.
18. CUSTOMER IDENTIFICATION PROGRAM ("CIP") SERVICES.
(a) To help the Trust comply with its Customer Identification
Program (which the Trust is required to have under regulations
issued under Section 326 of the USA PATRIOT Act) PFPC will do
the following:
(i) Implement procedures under which new accounts in the
Trust are not established unless PFPC has obtained
the name, date of birth (for natural persons only),
address and government-issued identification number
(collectively, the "Data Elements") for each
corresponding Customer (as defined in 31 CFR
103.131).
(ii) Use collected Data Elements to attempt to reasonably
verify the identity of each new Customer promptly
before or after each corresponding new account is
opened. Methods may consist of non-documentary
methods (for which PFPC may use unaffiliated
information vendors to assist with such
verifications) and documentary methods (as permitted
by 31 CFR 103.131), and may include procedures under
which PFPC personnel perform enhanced due diligence
to verify the identities of Customers the identities
of whom were not successfully verified through the
first-level (which will typically be reliance on
results obtained from an information vendor)
verification process(es).
(iii) Record the Data Elements and maintain records
relating to verification of new Customers consistent
with 31 CFR 103.131(b)(3).
(iv) Determine whether any Customer's name appears on a
list of known or suspected terrorists or terrorist
organizations designated by the Department of
Treasury, if any, consistent with 31 C.F.R.
131(b)(4).
(v) Regularly report to the Trust about measures taken
under (i)-(iv) above.
(vi) If PFPC provides services by which prospective
Customers may subscribe for shares in the Trust via
the Internet or telephone, work with the Trust to
notify prospective Customers, consistent with 31 CFR
103.(b)(5), about the Trust's CIP.
(vii) Set forth on a separate fee schedule compensation
amounts due for these CIP Services.
(b) Notwithstanding anything to the contrary, and without
expanding the scope of the express language above, PFPC need
not collect the Data Elements for (or verify) prospective
customer (or accounts) beyond the requirements of relevant
regulation (for example, PFPC will not verify customers
opening accounts through NSCC) and PFPC need not perform any
task that need not be performed for the fund to be in
compliance with relevant regulation.
(c) Notwithstanding anything to the contrary, PFPC need not
perform any of the steps described above with respect to
persons purchasing Shares via exchange privileges.
19. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written
above and unless terminated pursuant to its terms shall
continue for a period of three (3) years (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year
("Renewal Term") each, unless the Trust 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 of termination, all expenses associated with
movement of records and materials and conversion thereof to a
successor transfer agent will be borne by the Trust and paid
to PFPC prior to any such conversion.
(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
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.
(e) Notwithstanding anything contained in this Agreement to the
contrary, should a merger, acquisition, change in control,
re-structuring, re-organization or any other decision
involving the Trust or any affiliate (as defined under the
0000 Xxx) of the Trust (other than a reorganization that
results in the acquisition of the Trust or a particular
Portfolio) result in the Trust's desire to cease to use PFPC
as the provider of any of the services set forth hereunder in
favor of another service provider prior to the expiration of
the then current Initial or Renewal Term, PFPC shall make a
good faith effort to facilitate a conversion of services to
the Trust's successor service provider, provided, however,
there can be no guarantee that PFPC will be able to facilitate
such a conversion of services on the conversion date requested
by the Trust. In connection with the foregoing and prior to
such conversion to the successor service provider, the payment
of all fees to PFPC as set forth herein shall be accelerated
to a date prior to the conversion or termination of services
and calculated as if the services had remained with PFPC until
the expiration of the then current Initial or Renewal Term and
calculated at the asset and/or Shareholder account levels, as
the case may be, on the date notice of termination was given
to PFPC.
20. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such
other address as PFPC may inform the Trust in writing); (b) if to the
Trust, at , Attention: 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.
21. 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. 22. DELEGATION;
ASSIGNMENT. PFPC may assign its rights and delegate its duties
hereunder to any wholly owned direct or indirect subsidiary of PFPC or
of The PNC Financial Services Group, Inc., provided that PFPC gives the
Trust thirty (30) days' prior written notice of such assignment or
delegation, that the delegate is at least as capable as PFPC and agrees
with the Transfer Agent to comply with all relevant provisions of the
1940 Act and that the Transfer Agent and such delegate shall promptly
provide such information as the Trust may ask, relative to the
delegation, including (without limitation) the capabilities of the
delegate. To the extent required by the rules and regulations of the
NSCC and in order for PFPC to perform the NSCC-related services, the
Trust agrees that PFPC may delegate its duties to any affiliate of PFPC
that is a member of the NSCC.
22. 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.
23. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
24. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements 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 or Oral Instructions.
(b) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Trust 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) INFORMATION. The Trust will provide such information and
documentation as PFPC may reasonably request in connection
with services provided by PFPC to the Trust.
(e) 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.
(f) 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.
(g) 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.
(h) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided
in this Agreement, PFPC hereby disclaims all representations
and warranties, express or implied, made to the Trust 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.
(i) LIABILITY. The Trust and PFPC agree that the obligations of
the Trust under this Agreement shall not be binding upon any
of the Trustees, shareholders, nominees, officers, employees
or agents, whether past, present or future, of the Trust
individually, but are binding only upon the assets of the
Trust or applicable Series, as provided in the Trust's
agreement and declaration of trust. The execution and delivery
of this Agreement have been authorized by the Trustees of the
Trust, and signed by an authorized officer of the Trust,
acting as such, and neither such authorization by the Trustees
nor such execution by such officer shall be deemed to have
been made by them or any shareholder of the Trust individually
or to impose any liability on any of them or any shareholder
of the Trust personally, but shall bind only the assets and
property of the Trust or applicable Series, as provided in the
Trust's agreement and declaration of trust.
(j) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
(k) CUSTOMER IDENTIFICATION PROGRAM NOTICE. To help the U.S.
government fight the funding of terrorism and money laundering
activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information
that identifies each person who initially opens an account
with that financial institution on or after October 1, 2003.
Certain of PFPC's affiliates are financial institutions, and
PFPC may, as a matter of policy, request (or may have already
requested) the Trust's name, address and taxpayer
identification number or other government-issued
identification number, and, if such party is a natural person,
that party's date of birth. PFPC may also ask (and may have
already asked) for additional identifying information, and
PFPC may take steps (and may have already taken steps) to
verify the authenticity and accuracy of these data elements.
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:
--------------------------
Title:
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BHR INSTITUTIONAL FUNDS
By:
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Title:
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, 2006
----------------
BHR INSTITUTIONAL FUNDS
RE: TRANSFER AGENCY SERVICES FEES
Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation to
be paid to PFPC Inc. ("PFPC") under the terms of a Transfer Agency Services
Agreement dated ______________, 2006 between BHR INSTITUTIONAL FUNDS ("you" or
the "Fund") and PFPC (the "Agreement") for service provided on behalf of each of
the Fund's series (the "Series"). Pursuant to paragraph 11 of the Agreement, and
in consideration of the services to be provided to each Series, the Fund will
pay PFPC certain fees and reimburse PFPC for its out-of-pocket expenses incurred
on its behalf, as follows:
1) ACCOUNT FEE:
Active direct $20.00 per account per annum
Inactive Account: $ 3.60 per account per annum
Fees shall be calculated and paid monthly based on one-twelfth (1/12th)
of the annual fee. An inactive account is defined as having a zero
balance with no dividend payable. Inactive accounts are generally
purged quarterly based on an 18-month retention cycle.
2) MINIMUM MONTHLY FEE:
The minimum monthly fee will be $1,833 for each portfolio/class,
exclusive of transaction charges, Fund/SERV\Networking charges,
out-of-pocket expenses and miscellaneous fees.
3) PFPC FUNDSERV/NETWORKING FEES:
PFPC Transaction fees:
NSCC FundSERV $ .15 per transaction
$ .20 per transaction, if the trade is
confirmed the same day
NSCC Networking: No charge
Commission Settlement: No charge
ACATS: No charge
Note: NSCC will deduct its direct monthly fee on the 15th of each month
from PFPC's cash settlement that day. PFPC will include these charges as an
out-of-pocket expense on its next invoice.
4) VOICE RESPONSE FEES.
One time setup fee $10,000
Monthly maintenance fee $ 500
Per minute fee $ .23
Per call fee $ .10
5) DATA DELIVERY FEES.
One time setup fee $ 5,000
Monthly maintenance fee $ 1,000
Data delivery base transmission fee/record
Price records $ .015
Other records $ .030
(security, distribution, account master,
transaction, position)
Data delivery direct/interactivetrust/401(K)/customer management suite/
ICI/management company level
fee/record
Price records $ .01
Other records $ .01
6) ADVANCE OUTPUT SERVICES.
OUTPUT DEVELOPMENT
|X| Implementation Start-Up Fee Waived
|X| Systems Development/Programming Fee $175.00/HR
PRINTING / PROCESSING
|X| Per Image BW Simplex (Cut Sheet) $0.08
|X| Per Image BW Duplex (Cut Sheet) $0.16
|X| Per Image BW Simplex (Continuous) $0.06
|X| Per Image BW Duplex (Continuous) $0.12
|X| Per Check $0.115
|X| Dealer Commission Check/12B-1 check $0.78 ($30 min)
INSERTING (DAILY MINIMUMS MAY APPLY)
|X| Per Page Machine (includes BRE or CRE) $42/K ($15 min)
|X| Per Page Custom (includes BRE or CRE) $71/K ($20 min)
|X| Per Checks Machine $52/K ($20 min)
|X| Per Checks Custom $91/K ($30 min)
|X| Additional Machine $0.01
|X| Additional Custom $0.08
|X| Intelligent Machine (Selective) $58/K
|X| Intelligent Custom (Selective) $125/K
SHIPPING / INVENTORY
|X| Non-USPS Package Fee $4.50/Plus actual
package cost
|X| USPS Overnights $15.95
|X| Inventory Receipts $20.00/S.K.U.
|X| Inventory Storage $20.00/Skid Location
|X| Inventory Dump/Destruct Charge $20.00/S.K.U.
|X| Courier Charge $25.00
|X| Shipping Boxes $0.95 ++
|X| Oversized Envelopes $0.47 ++
|X| Shipping Labels $0.20 ++
|X| White Paper $0.01 ++
++PRICE SUBJECT TO CHANGE BASED ON SUPPLY MARKET FLUCTUATIONS
POSTAGE AND MISC FEES
|X| Manual pulls $2.50
|X| Special Projects Hourly Work $24.00/Hour
|X| Per piece mail preparation / presort fee $0.035
|X| Fast Forward Fees $0.15/Envelope
|X| Work Order Administrative Fee $15.00/Workorder or
Flat
Fee/Month
SPECIAL AND MISC TAX COMPLIANCE MAILING
|X| Ad Hoc Programming $100.00/HR
|X| Creation of Zip Disk $135.00
|X| ZIP+4 Data Enhancement $10.00/K ($125 min)
|X| Householding $6.00/K
|X| Data Manipulation (Ace, de-duping, merge/purge) $80.00 per hour
|X| Create Mailing List $.40 ($25.00 min)
|X| Print Simplex (Misc. Tax/Compliance) $.08 Each
|X| Print Duplex (Misc. Tax/Compliance) $.11 Each
|X| Machine Insert (Misc. Tax/Compliance) $56.00/K ($75 min)
|X| Custom Insert (Misc. Tax/Compliance) $65.00/K ($75 min)
|X| Admark & Machine Insert 1 piece #10 or 6x9 $62.00/K ($125 min)
|X| Additional Machine Insert #10 or 6x9 $2.50/K
|X| Admark & Machine Insert 1 piece 9x12 $125.00/K ($125 min)
|X| Additional Machine Insert 9x12 $5.00/K
|X| Admark Only #10, 6x9 or 9x12 $38.00/K ($75 min)
|X| Admark & Custom insert 1 piece #10, 6x9 & 9x12 $0.08
|X| Custom Sort $25.00/K
|X| Print, Affix Pressure Sensitive labels
(custom insert 1 piece) $0.32 ($75 min)
|X| Print Labels only $0.10
|X| Affix Labels only $0.10
|X| Legal Drop per Mailing $150.00
|X| Copy of 3602 or 3606 per Mailing $3.00 Each
|X| Tabbing
|X| 1 Tab $8.00/K
|X| 2 Tabs $12.00/K
|X| Admark Self Mailer $0.20 ($75 min)
|X| Machine Folding $18.00/K
|X| Custom Folding $0.12
|X| Cutting $10.00/K
B. YEAR END TAX FORM OUTPUT PROCESSING (TRC PRODUCT)
|X| Print & Process $0.42 Each ($75 min)
|X| Affidavit Charge $3.50 Each
|X| Duplicate Tax Forms $0.50 ($15 min)
|X| Intelligent Inserting (Selective) $0.045 Each
C. DIGITAL SERVICES
|X| Create Original PDF Images $0.05/Image
|X| AOS Reports (HTML/XML) $0.06/Image
|X| PDF's from Line Data $.015/Image
|X| PDF Server Storage $0.01/Page
|X| Original CD-ROM Charges $275.00
|X| Duplicate CD-ROM Charges $175.00
|X| E-Mail Notification Implementation $10,000.00
|X| Consent and Suppression Implementation $7,500.00
|X| E-mail Notification $0.15 per ($25.00 min)
|X| Scheduled Event Fee $500.00/event plus
$0.15/email
|X| Non-Scheduled Event Fee $500.00/event plus
$0.15/email
|X| Rejected e-mail $5.00/e-mail
7) MISCELLANEOUS CHARGES include, but are not limited to, charges for the
following products and services as applicable, ad hoc reports, ad hoc SQL time,
banking services, COLD storage, digital recording, training,
microfiche/microfilm production, magnetic media tapes and freight, and
pre-printed stock, including business forms, certificates, envelopes, checks and
stationary. In addition, consolidated statement, audio response and
development/programming costs, conversion and deconversion expenses.
8) OUT-OF-POCKET EXPENSES include, but are not limited to, telephone lines,
postage, overnight delivery, mailgrams, hardware/phone lines for transmissions,
wire fees, ACH charges, exchange fee, record retention, b/c notices, account
transcripts, labels, user tapes, travel expenses, and expenses incurred at the
direction of the Fund. Out-of-pocket expenses are billed as they are incurred.
9) SHAREHOLDER EXPENSES include, but are not limited to: XXX/Xxxxx processing,
exchange fees between portfolios, requests for account transcripts, returned
checks, lost certificate bonding, overnight delivery as requested by the
shareholder, and wire fee for disbursement if requested by the shareholder.
Shareholder expenses are billed as they are incurred.
10) MISCELLANEOUS. Any fee, out-of-pocket expenses or shareholder expenses not
paid within 30 days of the date of the original invoice will be charged a late
payment fee of 1% per month until payment of the fees are received by PFPC.
11) FEE ADJUSTMENTS. After the one year anniversary of the effective date of the
Agreement, PFPC may adjust the fees described in the above sections once per
calendar year, upon thirty (30) days prior written notice in an amount not to
exceed the cumulative percentage increase in the Consumer Price Index for All
Urban Consumers (CPI-U) U.S. City Average, All items (unadjusted) -
(1982-84=100), published by the U.S. Department of Labor since the last such
adjustment in the Fund's monthly fees (or the Effective Date absent a prior such
adjustment).
If during the next three years, PFPC is removed from the Transfer
Agency Services Agreement referenced above, PFPC will recoup 100% of the fees
waived during the first year.
The fee for the period from the date hereof until the end of the year
shall be prorated according to the proportion which such period bears to the
full annual period.
If the foregoing accurately sets forth our agreement and you intend to
be legally bound thereby, please execute a copy of this letter and return it to
us.
Very truly yours,
PFPC INC.
By:
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Name:
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Title:
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Agreed and Accepted:
BHR INSTITUTIONAL FUNDS
By:
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Name:
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Title:
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