AMENDMENT TO TRANSFER AGENCY SERVICES AGREEMENT
Exhibit (h)(6)
AMENDMENT TO TRANSFER AGENCY SERVICES AGREEMENT
THIS AMENDMENT (this “Amendment”) to the Transfer Agency Services Agreement (the “Agreement”)
by and between PFPC INC., a Massachusetts corporation (“PFPC”), and each of the undersigned
investment companies (each, the “Fund”) is made as of August 20, 2007 Capitalized terms used but
not defined herein shall have the same meaning as in the Agreement.
1. Services. In addition to the services set forth in the Agreement, PFPC shall
provide to the Fund the services set forth in the attached Schedule A, relating to the obligations
of the Fund under SEC Rule 22c-2 under the Investment Company Act of
1940, as amended (“Rule 22c-2”), and the Fund will pay to PFPC the fees and charges in respect of such services as set
forth in the attached Schedule B. The Fund will enter into agreements with financial intermediaries
(collectively, “Financial Intermediaries”) under the terms of which such Financial Intermediaries
will be instructed to provide data to PFPC pursuant to Rule 22c-2 relating to transactions in the
Fund’s shares. A form of such notice to be provided by the Fund to each Financial Intermediary is
attached as Schedule C. PFPC shall not be liable to the Fund, its investors or any agents of the
Fund, including its investment advisor(s), for any errors or omissions in any data provided to PFPC
by any Financial Intermediaries or for compliance by the Fund with SEC Rule 22c-2. PFPC’s sole
obligation under this Section 1 shall be to provide the Fund with access to information relating to
transactions in the Fund’s shares based solely on information provided to PFPC by Financial
Intermediaries.
2. Systems. In providing the services described in Exhibit A hereto, PFPC may,
pursuant to licenses or other agreements (collectively, “Third Party Agreements”) with one or more
unrelated parties (collectively, “Third Party Providers”), utilize information, data, technology
and systems (collectively, “Third Party Systems”) licensed or otherwise provided to PFPC by such
Third Party Providers. The Fund will not use or disclose any information relating to Third Party
Systems, and the Fund will be subject to such restrictions, limitations and indemnities with
respect to the use of Third Party Systems as are applicable to PFPC under Third Party Agreements.
3. Indemnification. The Fund agrees to indemnify, defend and hold harmless PFPC and
the Third Party Providers and their 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, rules and regulations of the United States (including SEC Rule 22c-2) or of any
state and any foreign country) arising directly or indirectly from any action or omission to act
which PFPC or the Third Party Provider takes or fails to take in connection with the provision of
services to the Fund. The Fund further agrees to indemnify PFPC and the Third Party Providers for
any damages disruption, disablement, harm, or impediment, in any manner, of the operation of the
PFPC systems or any Third Party Systems, or any other associated software, firmware, hardware, or
network. Neither PFPC nor the Third Party Providers, nor any of their affiliates, shall be
indemnified against any liability (or any expenses incident to such
liability) caused by PFPC’s or the Third Party Provider’s or their affiliates’ own willful
misfeasance, bad faith, gross negligence or reckless disregard in the performance of PFPC’s
activities under the 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 the Fund’s
shares shall be presumed not to have been the result of PFPC’s or the Third Party Provider’s or
their affiliates’ own willful misfeasance, bad faith, gross negligence or reckless disregard of
such duties and obligations under this Agreement. The provisions of this Section 3 shall survive
termination of this Agreement.
4. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of the Fund
except as specifically set forth herein or as may be specifically agreed to by PFPC and the
Fund in a written amendment hereto. PFPC shall be obligated to exercise care and diligence
in the performance of its duties hereunder and to act in good faith in performing services
provided for under this Agreement. PFPC shall be liable only for any damages arising out
of PFPC’s failure to perform its duties under this Agreement to the extent such damages
arise out of PFPC’s willful misfeasance, bad faith, gross negligence or reckless disregard
of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC shall not be
liable for losses, delays, failure, errors, interruption or loss of data occurring directly
or indirectly by reason of circumstances beyond its reasonable control, including without
limitation acts of God; action or inaction of civil or military authority; public enemy;
war; terrorism; riot; fire; flood; sabotage; epidemics; labor disputes; civil commotion;
interruption, loss or malfunction of utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or non-performance by a third party; and
(ii) PFPC shall not be under any duty or obligation to inquire into and shall not be liable
for the validity or invalidity, authority or lack thereof, or truthfulness or accuracy or
lack thereof, of any instruction, direction, notice, instrument or other information which
PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i) 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 and (ii) PFPC’s cumulative liability to the Fund for all losses, claims, suits,
controversies, breaches or damages for any cause whatsoever (including but not limited to
those arising out of or related to this Agreement) and regardless of the form of action or
legal theory shall not exceed the lesser of $100,000 or the fees received by PFPC for
services provided hereunder during the six (6) months immediately prior to the date of
such loss or damage.
(d) No party may assert a cause of action against PFPC or any of its
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affiliates that allegedly occurred more than twelve (12) months immediately prior to the
filing of the suit (or, if applicable, commencement of arbitration proceedings) alleging
such cause of action.
(e) Each party shall have a duty to mitigate damages for which the other party may
become responsible.
(f) The provisions of this Section 4 shall survive termination of this Agreement.
5. Effective Date. This Amendment shall be effective as of the date hereof. Except
as set forth in this Amendment, the Agreement shall continue in full force and effect in accordance
with its terms.
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 XxXxxxxx
|
|||||
| Name: Xxxxxxx XxXxxxxx | ||||||
| Title: Exec. Vice Pres., Sr. Managing Dir. | ||||||
| Highland Capital Management | ||||||
| By: | /s/ M. Xxxxx Xxxxxxxxx
|
|||||
| Name: M. Xxxxx Xxxxxxxxx | ||||||
| Title: Treasurer | ||||||
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Schedule A
Services
Services
| • | The PFPC 22 c-2 system (the “System”) is intended to enable the Fund to manage data requests to, and to access and analyze data provided by, Financial Intermediaries as required by SEC Rule 22c-2. |
| • | Pursuant to agreements between the Fund and Financial Intermediaries, Financial Intermediaries will deliver to PFPC, in electronic format, information on transactions effected in Fund shares. |
| • | The Fund may use the System to access data that is provided to PFPC by Financial Intermediaries or that is otherwise available to PFPC through NSCC for Financial Intermediaries that are NSCC members. The Fund may also use the System to request data from non-NSCC members. |
| • | The System is intended to be generally available to the Fund from 8:00 am to 6:00 pm Eastern Time during regular trading days, subject to periodic unavailability due to maintenance, upgrades, testing and potential System failures. |
| • | PFPC will work with the Fund to develop an implementation program with the objective of launching the System not later than the effective date of SEC Rule 22c-2. The implementation program will seek to identify and access sources of relevant data, including identification of omnibus accounts, Financial Intermediaries, NSCC membership status, CUSIPs, Fund shareholder accounts and Fund trading and redemption policies as set forth in the Fund’s SEC registration statement and prospectuses. Designated representatives of the Fund will have access to the System. The System will be tested and de-bugged as necessary. |
| • | The System implementation schedule will vary depending on the profile and requirements of the Fund, but is estimated to take at least 3-6 weeks. PFPC will provide project oversight and coordination, planning and review. PFPC will also assist the Fund in testing the System and training designated Fund representatives in the use of the System. |
| • | PFPC will consider enhancements and improvements upon request, with fees at rates to be negotiated. |
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Schedule B
Fees and Charges
Fees and Charges
This Fee Schedule Summary represents the pricing as set forth at date of contract execution.
Implementation Fee:
|
One Time $9,000 fee (See Exhibit A for implementation services) | |
Monthly Base Fee:
|
$3,000 (to begin first day of initial download and this fee shall not be prorated for any partial months). | |
Transaction Storage Fee:
|
$275 per month per million transactions (or fraction thereof) stored (will be invoiced monthly) | |
Customized system
development (if applicable):
|
$200 per hour (will be invoiced as incurred) | |
Training:
|
One day of training included. Additional training can be procured at the rate of $150 per hour, plus travel and expenses. | |
Non Standard Data
Processing Charge: |
Will be quoted upon request | |
Out of Pocket expenses:
|
Will include NSCC data charges per transaction. Out of pocket expenses not detailed above will be invoiced as incurred. Services requested over and above those contained within this agreement would be evaluated at the time of request. |
| * | Contract will run concurrent with TA agreement |
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SCHEDULE C
Notification to Financial Intermediary
The following letter (or a letter in substantially the same form) shall be used by Customer or PFPC
to notify each relevant Financial Intermediary that it is to send Shareholder Data to PFPC or
PFPC’s designee.
To: Financial Intermediary
RE: Compliance with Securities and Exchange Commission Rule 22c-2 under the Investment Act of
1940, as Amended (the “Rule”)
This letter is being sent to you (sometimes referred to as “Financial Intermediary”) pursuant to
and subject to that certain Information Sharing Agreement that has been executed by and between us.
This letter relates to and applies to our following Funds for which you are a Financial
Intermediary: (the “Funds”). Please accept this letter as our
authorization for the following:
1. Providing of Shareholder Data. Financial Intermediary shall provide PFPC Inc. (“PFPC”) (or its
designee), agent of the Funds, such information and take such action, as may be required pursuant
to the Rule (the “Shareholder Data”), so as to allow the Funds to comply with the Rule, for the
continuing period starting from the date of this notice letter. Financial Intermediary warrants to
PFPC and any designee receiving Shareholder Data hereunder that it has the right to transfer and
provide such Shareholder Data to PFPC or any designee. Financial Intermediary further agrees to
indemnify PFPC or any designee to the extent that a third party claim arises as a result of the
distribution of any Shareholder Data consistent with the terms hereunder.
2. Form and Timing of Response. Financial Intermediary agrees to transmit electronically (without
any cost or charge to the Funds or PFPC Inc. (or its designee)) the requested Shareholder Data to
PFPC Inc. or to SunGard Institutional Products Inc. or such other PFPC designee.
3. Definitions. For purposes of this Letter Agreement:
A. The term “Funds” includes the fund’s principal underwriter and transfer
agent. The term not does include any “excepted funds” as defined in SEC
Rule 22c-2(b) under the Investment Company Act of 1940.
B. The term “Shares” means the interests of Shareholders corresponding to
the redeemable securities of record issued by the Funds under the
Investment Company Act of 1940 that are held by the Financial Intermediary.
C. The term “Shareholder” means the beneficial owner of Shares, whether
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the Shares are held directly or by the Financial Intermediary in nominee name. [Editor’s Note:
This definition can be tailored to address the type of shares at issue, e.g., retirement plan
products, insurance products, etc.]
Should you have any questions, please contact the undersigned at [Insert Phone
Number]. The initial transmission of Shareholder Data by you to PFPC (or its designee), as
specified herein, shall indicate your agreement with the provisions contained herein.
Authorized Signature,
[Insert Name and Title]
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