TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of June 26, 2000 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and HILLVIEW INVESTMENT TRUST II, a Delaware
business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes 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 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 Fund and any other
person duly authorized by the Fund's Board of Trustees to give
Oral Instructions and Written Instructions on behalf of the Fund
and listed on the Authorized Persons Appendix attached hereto
and made a part hereof or any amendment thereto as may be
received by PFPC. An Authorized Person's scope of authority may
be limited by the Fund by setting forth such limitation in the
Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 50% or more of the
beneficial ownership of the shares of common stock or shares of
beneficial interest of an entity or its parents(s) during the
term of this Agreement.
(f) "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.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(i) "Shares" mean the shares of beneficial interest in any series or
Portfolio.
(j) "Written Instructions" mean written instructions signed by an
Authorized Person and received by PFPC. 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:
(a) Certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, 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;
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(c) A copy of the advisory agreement with respect to each Portfolio
("Portfolio");
(d) A copy of the distribution agreement with respect to each class
of Shares of each Portfolio;
(e) A copy of each Portfolio's administration agreements if PFPC is
not providing the Portfolio with such services;
(f) Copies of any shareholder servicing 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 Portfolio.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions and
Written Instructions 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 of Trustees or of
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the Fund's shareholders, 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 shall in no way
invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear to have
been received from an Authorized Person, PFPC shall incur no
liability to the Fund in acting upon such Oral Instructions or
Written Instructions provided that PFPC's actions comply with
the other provisions of this Agreement.
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 at its own cost from such 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, 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. In
the event PFPC so relies on the advice of counsel, PFPC remains
liable for any action or omission on the part of PFPC which
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constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard by PFPC of any duties, obligations or
responsibilities set forth in this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions, advice or
Oral Instructions or Written Instructions it receives from the
Fund or from counsel and which PFPC believes, in good faith, to
be consistent with those directions, 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, advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such directions,
advice or Oral Instructions or Written Instructions unless,
under the terms of other provisions of this Agreement, the same
is a condition of PFPC's properly taking or not taking such
action. Nothing in this subsection shall excuse PFPC when an
action or omission on the part of PFPC constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard
by PFPC of any duties, obligations or responsibilities set forth
in this Agreement.
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.
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8. Confidentiality. PFPC agrees to keep confidential the records of the
Fund and information relating to the Fund and its shareholders, unless
the release of such records or information is otherwise consented to, in
writing, by the Fund. The Fund agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC may be exposed
to civil or criminal contempt proceedings or when required to divulge
such information or records to duly constituted authorities.
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. 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, gross negligence or
reckless disregard of its duties or obligations under this Agreement.
11. 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.
12. Indemnification. (a) The Fund agrees to indemnify and hold harmless PFPC
and its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, liabilities
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arising under the Securities Laws and any state and foreign securities
and blue sky laws, and amendments thereto), and expenses, including
(without limitation) attorneys' fees and disbursements, arising directly
or indirectly from (i) any action or omission to act which PFPC takes
(a) at the request or on the direction of or in reliance on the advice
of the Fund or (b) upon Oral Instructions or Written Instructions or
(ii) the acceptance, processing and/or negotiation of checks or other
methods utilized for the purchase of Shares. Neither PFPC, nor any of
its affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) arising out of PFPC's or its
affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations 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 Shares shall be presumed not to have been the result of
PFPC's or its affiliates own willful misfeasance, bad faith, gross
negligence or reckless disregard of such duties and obligations.
(b) Upon the assertion of a claim for which either party may be required
to indemnify the other under this Agreement, the party seeking
indemnification shall promptly notify the other party of such assertion,
and shall keep the other party advised with respect to all developments
concerning such claim. The party who may be required to indemnify shall
have the option to participate with the party seeking indemnification in
the defense of such claim. The party seeking indemnification shall in no
case confess any claim or make any compromise in any case in which the
other party may be required to indemnify it except with the other
party's prior written consent.
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13. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the
Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC in writing. 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
for any damages arising out of PFPC's failure to perform its
duties under this Agreement, and shall indemnify the Fund for
such damages, to the extent such damages arise out of PFPC's
willful misfeasance, bad faith, gross negligence or reckless
disregard of such duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC, shall not be liable for
losses beyond its control, provided that PFPC has acted in
accordance with the standard of care set forth above; and (ii)
PFPC shall not be under any duty or obligation to inquire into
and shall not be liable for (A) the validity or invalidity or
authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to the
applicable requirements of this Agreement, and which PFPC
reasonably believes to be genuine; or (B) subject to Section 10,
delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, including acts of civil or
military authority, national emergencies, labor difficulties,
fire, flood, catastrophe, acts of God, insurrection, war, riots
or failure of the mails, transportation, communication or power
supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable to the Fund for
any consequential, special or indirect losses or damages which
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the Fund may incur or suffer by or as a consequence of PFPC's or
its affiliates' performance of the services provided hereunder,
whether or not the likelihood of such losses or damages was
known by PFPC or its affiliates.
14. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Calculate 12b-1 payments;
(ii) Maintain proper shareholder registrations;
(iii) Review new applications and correspond with shareholders
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 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 shareholder lists and statistics to the
clients;
(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.
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(b) Services Provided by PFPC Under Oral Instructions or Written
Instructions.
(i) Accept and post daily Fund purchases and redemptions;
(ii) Accept, post and perform shareholder 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 shareholder).
(c) Purchase of Shares. 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 shareholder account;
and
(iii) Confirmation of receipt or crediting of funds for such
order to the Fund's custodian.
(d) Redemption of Shares. PFPC shall redeem Shares only if that
function is properly authorized by the certificate of
incorporation or resolution of the Fund's Board of Trustees.
Shares shall be redeemed and payment therefor shall be made in
accordance with the Fund's prospectus, when the recordholder
tenders Shares in proper form and directs the method of
redemption. If Shares are received in proper form, Shares 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
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(ii) Transfer authorizations are signed by the recordholder
when Shares are held in book-entry form.
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.
(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 Shares, or, upon
shareholder 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 shareholders 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 shareholders as
required by tax or other law, rule or regulation.
(f) Shareholder Account Services.
(i) PFPC may arrange, in accordance with the prospectus, for
issuance of Shares obtained through:
- Any pre-authorized check plan; and
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- 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 Fund 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.
(g) Communications to Shareholders. Upon timely Written
Instructions, PFPC shall mail all communications by the Fund to
its shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(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 shareholders.
(h) 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;
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(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 the transfer agent
to perform any calculations contemplated or required by
this Agreement.
(i) Lost or Stolen Certificates. PFPC shall place a stop notice
against any 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 shareholder'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 shareholder to protect PFPC and its
affiliates.
(j) Shareholder Inspection of Stock Records. Upon a request from any
Fund shareholder 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 and does hereby, release PFPC from
any liability for refusal of permission for a particular
shareholder to inspect the Fund's stock records.
(k) Withdrawal of Shares 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 shares by the number of shares
surrendered by the Fund.
15. Duration and Termination. This Agreement shall continue until terminated
by the Fund or by PFPC on sixty (60) days' prior written notice to the
other party.
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16. Change of Control. Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a transaction
that would result in a Change of Control of the Fund's adviser or
sponsor, the Fund's ability to terminate the Agreement will be
suspended from the time of such agreement until two years after the
Change of Control; provided that this provision will not apply to any
termination of this Agreement by the Fund which termination is the
result of a material breach of this Agreement by PFPC which is not
remedied following 30 days notice of such breach from the Fund to PFPC.
17. Notices. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. Notices shall be addressed (a) if to
PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention:
President; (b) if to the Fund, 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.
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. Use of Fund's Name. PFPC shall not use the name of the Fund or the
Portfolios in a manner not approved prior thereto, provided, however,
PFPC may use without such approval use of its name in representative
client lists which merely refer in accurate terms to the appointment of
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PFPC hereunder or which are required by the SEC or a state securities
commission, and, provided, further, that in no event shall such approval
be unreasonably withheld.
20. Security. PFPC represents and warrants that, to the best of its
knowledge, the various procedures and systems which PFPC has implemented
with regard to safeguarding from loss or damage the Fund's blank checks,
records and other data and PFPC's records, data, equipment, facilities
and other property used in the performance of its obligations hereunder
are commercially reasonable. The parties may review such systems and
procedures on a periodic basis.
21. Registration as a Transfer Agent. PFPC represents that it is currently
registered with the appropriate Federal agency for the registration of
transfer agents, and that it will remain so registered for the duration
of this Agreement. PFPC agrees that it will promptly notify the Fund in
the event of any material changes in its status as a registered transfer
agent.
22. Delegation; Assignment. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or The PNC Financial Services Group, Inc., provided that (i) PFPC
gives the Fund 30 days prior written notice of such assignment or
delegation, (ii) the delegate or assignee is registered and qualified
under the 1934 Act to act as a transfer agent; (iii) the assignee or
delegate agrees to comply with the relevant provision of the 1940 Act,
and (iv) PFPC and such assignee or delegate promptly provide such
information as the Fund may reasonably request, and respond to such
questions as the Fund may reasonably ask, relative to the assignment or
delegation (including, without limitation, the capabilities of the
assignee or delegate).
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23. 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.
24. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
25. 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 and Oral Instructions.
(b) 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.
(c) 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.
(d) 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.
(e) 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.
(g) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding execution
hereof by such party.
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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/ Xxxxxxx X. Xxxxx
Title: President
HILLVIEW INVESTMENT TRUST II
By: /s/ Xxxxx X. Xxxxxxx
Title: President
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EXHIBIT A
THIS EXHIBIT A, dated as of June 26, 2000, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of June 26, 2000 between PFPC Inc.
and Hillview Investment Trust II.
PORTFOLIOS
Hillview Alpha Fund
Hillview International Alpha Fund
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AUTHORIZED PERSONS APPENDIX
Name (Type) Signature
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
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