SUB-ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
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THIS AGREEMENT is made as of July 10, 2002 by and among PFPC INC., a
Massachusetts corporation ("PFPC"), and WESTLAKES INSTITUTIONAL PORTFOLIOS a
Delaware business trust (the "Fund") and XXXXXX INVESTMENT PARTNERS, INC., a
Pennsylvania corporation ("Xxxxxx").
WITNESSETH:
WHEREAS, Xxxxxx provides certain administrative services to the Fund, an
open-end management investment company under the Investment Company Act of 1940,
as amended (the "1940 Act"); and
WHEREAS, Xxxxxx and the Fund wish to retain PFPC to provide
sub-administration and accounting services to the Fund's 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 the 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 Xxxxxx, 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. 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) "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 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(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. 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.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(i) "Shares" means the shares of beneficial interest of any series or
class of the Fund.
(j) "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 by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. APPOINTMENT. Xxxxxx and the Fund hereby appoint PFPC to provide
sub-administration and accounting services to each of the Portfolios, 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 or Xxxxxx has provided or, where
applicable, will
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provide PFPC with the following:
(a) at PFPC's request, 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 each
Portfolio and approving this Agreement;
(b) a copy of Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreement or agreements;
(d) a copy of the distribution/dunderwriting agreement with respect to
each class of Shares representing an interest in a Portfolio;
(e) a copy of each additional administration agreement with respect to a
Portfolio;
(f) a copy of each distribution and/or shareholder servicing plan and
agreement made in respect of the Fund or a Portfolio; and
(g) 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 Xxxxxx, the Fund or any other
entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions or Written Instructions.
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(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 the Fund's organizational documents or this
Agreement or of any vote, resolution or proceeding of the Fund's
Board of Trustees or of the Fund's shareholders, unless and until
PFPC receives Written Instructions to the contrary.
(c) Xxxxxx and the Fund, as appropriate, agree to forward to PFPC
Written Instructions confirming Oral Instructions (except where
such Oral Instructions are given by PFPC or its affiliates) 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.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of Xxxxxx and/or 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
Xxxxxx and/or 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 from counsel of its own choosing (who may be counsel
for Xxxxxx, 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 or
advice or
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Oral Instructions or Written Instructions PFPC receives from Xxxxxx
and/or the Fund and the advice PFPC receives from counsel, PFPC may
rely upon and follow the advice of counscl.
(d) Protection of PFPC. PFPC shall be indemnified by Xxxxxx and the Fund
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 Xxxxxx and/or the
Fund or from counsel and which PFPC believes, in good faith, to be
consistent with those directions or advice and 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.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and the Portfolios
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. Xxxxxx, 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 Xxxxxx or the Fund, copies of any such books and records
shall be provided by PFPC to Xxxxxx, the Fund or to an Authorized
Person, at the Fund's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each Portfolio's books
of account;
(ii) records of each Portfolio's securities transactions; and
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(iii) all other books and records as PFPC is required to maintain
pursuant to Rule 31a-1 of the 1940 Act in connection with the
services provided hereunder.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information"). (For
clarification, this Section 8 relates only to the Confidential Information
of the Fund and PFPC.) Confidential Information shall include (a) 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 Fund or PFPC, their
respective subsidiaries and affiliated companies and the customers,
clients and suppliers of any of them; (b) 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 Fund or PFPC a competitive advantage over its competitors; (c)
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 (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations if it: (a) is already known to the receiving
party at the time it is obtained; (b) is or becomes publicly known or
available through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of the receiving
party's knowledge, is not under a duty of confidentiality; (d) is released
by the protected party to a third party without restriction; (e) is
required to be disclosed by the receiving party pursuant to a requirement
of a court order, subpoena, governmental or regulatory agency or law
(provided the receiving party will provide the other party written notice
of such requirement, to the extent such notice is permitted); (f) is
relevant to the defense of any claim or cause of action asserted against
the receiving party; or (g) has been or is independently developed or
obtained by the receiving party.
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9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses, fiscal
year summaries, and other audit-related schedules with respect to each
Portfolio. PFPC shall take all reasonable action in the performance of its
duties under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion, as
required by the Fund.
10. 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 under this Agreement.
11. 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 willfull
misfeasance, bad faith, gross negligence or reckless disregard of its
duties or obligations under this Agreement.
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12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, Xxxxxx, will pay to PFPC a fee or fees as may be
agreed to in writing by Xxxxxx, the Fund and PFPC.
13. INDEMNIFICATION. Xxxxxx and the Fund, on behalf of each Portfolio, agrees
to indemnify, defend and hold harmless PFPC 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 takes in connection with the provision of services
hereunder. Neither PFPC, nor any of its affiliates, shall be indemnified
against any liability (or any expenses incident to such liability) caused
by PFPC's or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard in the performance of PFPC's activities
under this Agreement. Any amounts payable under this Section 13 shall be
satisfied only against the relevant Portfolio's assets and not against the
assets of any other investment portfolio of the Fund. The provisions of
this Section 13 shall survive termination of this Agreement.
14. RESPONSIBILITY OF PPPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf
of Xxxxxx, the Fund or any Portfolio except as specifically set
forth herein or as may be specifically agreed to by PFPC, Xxxxxx 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.
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(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 Xxxxxx and 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 12 months immediately prior to the date of such
loss or damage.
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(d) No party may assert a cause of action against PFPC or any of its
affiliates that allegedly occurred more than 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 14 shall survive termination of this
Agreement.
15. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to each
Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from the
investment adviser for a Portfolio (the "Adviser") and transmit
trades to the Fund's custodian (the "Custodian") for proper
settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash balance
available for investment purposes;
(vi) Post to and prepare the Statement of Assets and Liabilities and the
Statement of Operations;
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(vii) Calculate various contractual expenses (e.g., advisory and custody
fees);
(viii) Monitor the expense accruals and notify an officer of the Fund of
any proposed adjustments;
(ix) Control all disbursements and authorize such disbursements upon
Written Instructions;
(x) Calculate capital gains and losses;
(xi) Determine net income;
(xii) Obtain security market quotes from independent pricing services
approved by the Adviser, or if such quotes are unavailable, then
obtain such prices from the Adviser, and in either case calculate
the market value of each Portfolio's Investments;
(xiii) Transmit or mail a copy of the daily portfolio valuation to the
Adviser;
(xiv) Compute net asset value; and
(xv) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity.
16. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect to
each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund statistical
data as requested on an ongoing basis;
(iv) Prepare for execution and file the Fund's Federal and state tax
returns;
(v) Prepare and file the Fund's Semi-Annual Reports with the SEC on Form
N-SAR;
(vi) Prepare and file with the SEC the Fund's annual, semi-annual, and
quarterly shareholder reports;
(vii) Assist in the preparation of registration statements and other
filings relating to the registration of Shares;
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(viii) Monitor each Portfolio's status as a regulated investment company
under Subchapter M of the Internal Revenue Code of 1986, as
amended; and
(ix) Coordinate contractual relationships and communications between the
Fund and its contractual service providers.
17. DURATION AND TERMINATION. This Agreement shall continue until terminated
by Xxxxxx, the Fund or by PFPC on sixty (60) days' prior written notice to
the other parties. In the event Xxxxxx and/or the Fund gives notice of
termination, all expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor accounting and
administration services agent(5) (and any other service provider(s)), and
all trailing expenses incurred by PFPC, will be borne by the Fund.
18. 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 Xxxxxx, the Fund's adviser or sponsor, Xxxxxx'x
and the Fund's ability to terminate the Agreement pursuant to Section 17
will be suspended from the time of such agreement until eighteen months
after the Change of Control.
19. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the
Fund, at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000,
Attention: ;(c) if to Xxxxxx, at 0000 Xxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxx; or (d) if to none 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.
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20. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
21. ASSIGNMENT. PFPC may assign its rights hereunder to any majority-owned
direct or indirect subsidiary of PFPC or of The PNC Financial Services
Group, Inc., provided that PFPC gives Xxxxxx and the Fund 30 days prior
written notice of such assignment.
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) Notwithstanding anything in this Agreement to the contrary, the Fund
agrees not to make any modifications to its registration statement,
and each of Xxxxxx and the Fund agrees not to 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.
(b) Except as expressly provided in this Agreement, PFPC hereby
disclaims all representations and warranties, express or implied,
made to Xxxxxx, the Fund 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.
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(c) This Agreement embodies the entire agreement and understanding among
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. 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. Notwithstanding any provision hereof, the
services of PFPC are not, nor shall they be, construed as
constituting legal advice or the provision of legal services for or
on behalf of Xxxxxx, the Fund or any other person.
(d) 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.
(e) 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. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
(f) 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/ Xxxx X. Xxxxxxx
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Title: SVP
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WESTLAKES INSTITUTIONAL PORTFOLIOS
By: /s/ Xxxxx Xxxxxxx
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Title: Vice President
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XXXXXX INVESTMENT PARTNERS, INC.
By: /s/ Xxxx Xxxxx
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Title: COO
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AMENDMENT TO THE SUB-ADMINISTRATION AND ACCOUNTING SERVICES
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AGREEMENT DATED JULY 10, 2002
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THIS AMENDMENT to the Sub-Administration and Accounting Services Agreement
dated July 10, 2002 relating to Constellation Institutional Portfolios (formerly
Westlakes Institutional Portfolios), as amended (the "Agreement") is made as of
March 1, 2006 by and among PFPC INC. ("PFPC"), CONSTELLATION INSTITUTIONAL
PORTFOLIOS (formerly Westlakes Institutional Portfolios) ("CIP"), CONSTELLATION
INVESTMENT MANAGEMENT COMPANY, L.P. ("CIMCO") and TOUCHSTONE ADVISORS, INC.
("Touchstone").
WITNESSETH:
WHEREAS, Xxxxxx Investment Partners, Inc. ("Xxxxxx") previously assigned its
rights and responsibilities under the Agreement to CIMCO and CIMCO assumed such
rights and responsibilities;
WHEREAS, CIMCO has assigned its rights and responsibilities under the Agreement
to Touchstone and Touchstone has agreed to assume such rights and
responsibilities;
WHEREAS, Touchstone is replacing CIMCO as of the date of this Amendment as the
party providing administrative services to CIP; and
WHEREAS, as a result of the foregoing the parties hereto wish to amend the
Agreement as set forth below;
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
agree as follows:
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1. Any term not herein defined shall have the meaning given such term in the
Agreement. The preamble provisions of this Amendment are hereby
incorporated in and made a part of the agreements set forth in this
Amendment.
2. All references to "Xxxxxx Investment Partners, Inc." or "Constellation
Investment Management Company, L.P." in the Agreement are hereby deleted
and replaced with "Touchstone Advisors, Inc." and all references to
"Xxxxxx" or "CIMCO" in the Agreement are hereby deleted and replaced with
"Touchstone."
3. Any fees due PFPC pursuant to Section 12 of the Agreement, but not yet
paid as of the date of this Amendment shall be paid to PFPC by Touchstone.
The fee letter and fee waiver letter relating to the Agreement which are
in effect on the date of this Amendment shall continue in effect following
the execution of this Amendment (the compensation set forth therein to be
paid by Touchstone), and Touchstone, CIP and PFPC hereby confirm and
approve the terms of such fee letter and fee waiver letter.
4. The fact that neither Xxxxxx nor CIMCO is any longer a party to the
Agreement shall (i) in no way limit PFPC's right to rely on and to
continue to rely on any instruction or direction of Xxxxxx or CIMCO
provided prior to the date of this Amendment; (ii) in no way limit the
protection afforded to PFPC with respect to PFPC's reliance on any
instruction or direction of Xxxxxx or CIMCO provided prior to the date of
this Amendment; (iii) in no way limit any limitation of liability or
limitation of responsibility or any other similar or related limitation
which would have been available to PFPC (whether with respect to CIMCO,
CIP, or any other entity) if Xxxxxx or CIMCO had continued to be a party
to the Agreement and Touchstone had not become a party to the Agreement;
and (iv) in no way expose PFPC to any greater taxes, charges, expenses,
assessments, claims, liability or responsibility than that to which PFPC
would have been exposed (whether with respect to CIMCO, CIP, or any other
entity) if Xxxxxx or CIMCO had continued to be a party to the Agreement
and Touchstone had not become a party to the Agreement.
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5. Notwithstanding anything in the Agreement or otherwise to the contrary,
the parties to this Amendment agree that Touchstone's and CIP's right to
terminate the Agreement pursuant to Section 17 of the Agreement is
suspended for a period of eighteen (18) months beginning on the date that
Touchstone replaced CIMCO as CIP's investment manager; provided that
Touchstone or CIP may terminate the Agreement prior to such eighteen (18)
month period on terms reasonably acceptable to PFPC.
6. Section 19 of the Agreement is hereby deleted in its entirety and replaced
with the following: NOTICES. Notices shall be addressed (a) if to PFPC, at
000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President;
(b) if to the Fund, at Touchstone Advisors, Inc., 000 Xxxxxxxx, Xxxxx
0000, Xxxxxxxxxx, Xxxx 00000, Attention: Xxxxxxx X. Xxxx; (c) if to
Touchstone, at 000 Xxxxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxx 00000,
Attention: Xxxxxxx X. Xxxx; or (d) if to none 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.
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7. CIP hereby represents and warrants to PFPC that (i) the terms of the
Agreement, (ii) the fees and expenses associated with the Agreement, and
(iii) any benefits accruing to PFPC or to CIMCO (or any affiliate) or
Touchstone (or any affiliate) in connection with the Agreement, including
but not limited to any fee waivers, conversion cost reimbursements, up
front payments, signing payments or periodic payments made or to be made
by PFPC to such entity (or any affiliate thereof) relating to the
Agreement have been fully disclosed to the Board of Trustees of CIP and
that, if required by applicable law, such Board of Trustees has approved
or will approve the terms of the Agreement, any such fees and expenses,
and any such benefits.
8. The following service shall be added as sub-section (x) of Section 16 of
the Agreement:
(x) Prepare the Fund's Form N-CSRs, Form N-Qs and Form N-PXs
(provided that PFPC shall not be responsible for
certifications relating to such reports and provided further
than in connection with Form N-PX the Fund's voting record is
provided to PFPC in the format designated by PFPC), and
coordinate with the Fund's financial printer the filing of
such Form N-CSRs, Form N-Qs and Form N-PXs with the SEC.
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9. Except as specifically set forth herein, (i) no provision of this
Amendment is intended to alter or otherwise affect the terms and
conditions of the Agreement; and (ii) all provisions of the Agreement
remain in full force and effect.
10. 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) Touchstone's name, address and taxpayer
identification number or other government-issued identification number.
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, by signing below, the parties agree to be bound by the
terms of this Amendment.
PFPC INC. CONSTELLATION INSTITUTIONAL PORTFOLIOS
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
---------------------- -------------------------
Name: Xxxxx X. Xxxxx Name: Xxxx X. Xxxxx
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Title: VP & Managing Director Title: President
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CONSTELLATION INVESTMENT TOUCHSTONE ADVISORS, INC.
MANAGEMENT COMPANY, L.P.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxx X. Xxxxx Name: Xxxxxxx Xxxx
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Title: Chief Executive Officer Title: Senior Vice President
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