TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of June 5, 2001 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and FREMONT MUTUAL FUNDS, INC., a Maryland
corporation (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:
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(a) "1933 Act" means the Securities Act of 1933, as amended.
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(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
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(c) "AUTHORIZED PERSON" means any officer of the Fund and any other person duly
authorized by the Fund's Board of Directors 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.
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(e) "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.
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(f) "SEC" means the Securities and Exchange Commission.
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(g) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act and the
CEA.
(h) "SHARES" mean the shares of beneficial interest of any series or class of
the Fund.
(i) "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,
electronic 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) At PFPC's request, certified or authenticated copies of the resolutions of
the Fund's Board of Directors, 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;
(c) A copy of the advisory agreement with respect to each investment Portfolio
of the Fund;
(d) A copy of the distribution/underwriting agreement with respect to each
class of Shares of the Fund;
(e) A copy of each Portfolio's administration agreements if PFPC is not
providing the Portfolio with such services;
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(f) Copies of any distribution and/or shareholder servicing plans and
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 will 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 other entity.
5. 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 Fund's Board of Directors or of 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
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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. 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 from 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 or 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.
(d) PROTECTION OF PFPC. PFPC shall be protected in any action it takes or does
not take in reliance upon directions or 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
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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
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.
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.
8. 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
Fund 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 Fund or PFPC a
competitive advantage over its competitors;
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(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 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 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);
(vi) is relevant to the defense of any claim or cause of action asserted
against the receiving party; or
(vii)has been or is independently developed or obtained by the receiving
party.
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. 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,
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copyrights, trade secrets, and other related legal rights utilized by PFPC in
connection with the services provided by PFPC to the Fund.
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 willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties or obligations under this
Agreement.
12. 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. The Fund acknowledges that
PFPC may receive float benefits and/or investment earnings in connection with
maintaining certain accounts required to provide services under this Agreement.
13. INDEMNIFICATION. The Fund agrees to indemnify, defend and hold harmless
PFPC and its affiliates from all taxes, charges, expenses, assessments, claims
and liabilities (including, without limitation, reasonable 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 to the Fund 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, negligence or reckless disregard of its duties and obligations under this
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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, negligence or reckless
disregard of such duties and obligations.
14. 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, 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, including without limitation (subject to Section 11), delays or
errors or loss of data occurring by reason of circumstances beyond PFPC's
control, provided that PFPC has acted in accordance with the standard set
forth in Section 14(a) above; and (ii) PFPC shall not be under any duty or
obligation to inquire into and shall not be liable for 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.
(c) Notwithstanding anything in this Agreement to the contrary, (i) neither
PFPC nor its
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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) excluding liability arising
out of PFPC's gross negligence or PFPC's breach of it's confidentiality
obligations set forth in this Agreement, 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 $1,000,000.00.
(d) No party may assert a cause of action against PFPC or any of its affiliates
that allegedly occurred more than 24 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.
15. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
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(i) Calculate 12b-1 payments;
(ii) Maintain 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;
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(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 Fund;
(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.
(b) Services Provided by PFPC Under Oral Instructions or Written Instructions.
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(i) Accept and post daily Share 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 Directors. Shares shall be redeemed and payment
therefor shall be made in accordance
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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
(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 Directors 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
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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.
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(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 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;
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(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 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 to 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
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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.
(l) LOST SHAREHOLDERS. PFPC shall perform such services as are required in
order to comply with Rules 17a-24 and 17Ad-17 of the 1934 Act (the "Lost
Shareholder Rules"), 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.
(m) PRINT MAIL. In addition to performing the foregoing services, the Fund
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 Fund and PFPC.
(n) Retirement Plans.
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(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 Fund for which contributions of
the Funds' shareholders (the "Participants") are invested solely in
Shares of the Fund, 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;
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(C) Receive and process designation of the beneficiary forms;
(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 with the IRS and provide to
Participant/Beneficiary; 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 Fund's Retirement Plans.
(iii)With respect to XXX Plans, PFPC shall provide the Fund with the
associated XXX Plan documents for use by the Fund 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.
(iv) With respect to 403(b) Plans and Qualified Plans, the Fund
acknowledges it shall utilize the services of Universal Pensions, Inc.
as its 403(b) Plan document and Qualified Plan document services
provider and PFPC shall not be responsible for the maintenance of such
documents in compliance with all applicable provisions of the Code and
the regulations promulgated thereunder.
16. TERM AND TERMINATION.
(a) This Agreement shall be effective on the date first written above and 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 Terms") each, unless
the Fund 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.
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(c) In the event a termination notice is given by the Fund, all expenses
associated with movement of records and materials and conversion thereof to
a successor transfer agent will be borne by the Fund.
(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.
17. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the Fund,
at Fremont Investment Advisors, Inc, 000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxx
Xxxxxxxxx, XX 00000, Attention: Xxxxxxxx Xxxxxx 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.
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19. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or of The
PNC Financial Services Group, Inc., provided that PFPC gives the Fund 30 days
prior written notice of such assignment or delegation.
20. 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.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
22. IMPRESSNET(R)SERVICES. PFPC shall provide to the Fund the internet access
services as set forth on Exhibit B attached hereto and made a part hereof, as
such Exhibit B may be amended from time to time.
23. Miscellaneous.
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(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.
(b) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding anything in
this Agreement to the contrary, the Fund 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
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and in no way define or delimit any of the provisions hereof or otherwise
affect their construction or effect.
(d) 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.
(e) 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.
(f) 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) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided in this
Agreement, PFPC hereby disclaims all representations and warranties,
express or implied, made to 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.
(f) 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:
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Title:
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FREMONT MUTUAL FUNDS, INC.
By:
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Title:
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EXHIBIT A
THIS EXHIBIT A, is Exhibit A to that certain Transfer Agency Services
Agreement dated as of June 5, 2001, between PFPC Inc. and Fremont Mutual Funds,
Inc.
PORTFOLIOS
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Fremont Global Fund
Fremont Money Market Fund
Fremont CA Intermediate Tax-Free Fund
Fremont Structured Core Fund
Fremont Bond Fund
Fremont International Growth Fund
Fremont U.S. Micro-Cap Fund
Fremont Emerging Markets Fund
Fremont Institutional U.S. Micro-Cap Fund
Fremont U.S. Small Cap Fund
Fremont Real Estate Securities Fund
Fremont New Era Value Fund
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EXHIBIT B
IMPRESSNet(R) SERVICES
1. DEFINITIONS. Any term not herein defined shall have the meaning given such
term in the Agreement. The following definitions shall apply to this Exhibit B:
(a) "End-User" shall mean any Shareholder that accesses the PFPC System via
IMPRESSNet(R).
(b) "Fund Web Site" means the collection of electronic documents, electronic
files and pages residing on any computer system(s) maintained on behalf of
the Fund, connected to the Internet and accessible by hypertext link
through the World Wide Web to and from IMPRESSNet(R).
(c) "IMPRESSNet(R) Services" means the services identified in Section 2 hereof
to be provided by PFPC utilizing the Fund Web Site, the Internet and
certain software, equipment and systems provided by PFPC,
telecommunications carriers and security providers which have been
certified by ICSA or a nationally-recognized audit firm (including but not
limited to firewalls and encryption), whereby Inquires may be performed and
Transactions may be requested by accessing IMPRESSNet(R) via hypertext link
from the Fund Web Site.
(d) "Inquiry" shall mean any access to the PFPC System via
IMPRESSNet(R)initiated by an End-User which is not a Transaction.
(e) "Internet" shall mean the communications network comprised of multiple
communications networks linking education, government, industrial and
private computer networks.
(f) "IMPRESSNet(R)" means the collection of electronic documents, electronic
files and pages residing on PFPC's computer system(s) (or those elements of
the computer system of one or more Internet Service Providers ("ISPs")
retained by PFPC and necessary for PFPC's services hereunder), connected to
the Internet and accessible by hypertext link from the Funds Web Site
through the World Wide Web, where the Inquiry and Transaction data fields
and related screens provided by PFPC may be viewed.
(g) "Shareholder" means the record owner or authorized agent of the record
owner of shares of the Fund.
(h) "Transaction" shall mean purchase, redemption, exchange or any other
activity involving the movement of Shares initiated by an End-User,
provided however, it being understood that broker-dealer back office
operations will not be permitted to initiate Transactions.
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2. PFPC RESPONSIBILITIES. Subject to the provisions of this Exhibit B and the
Agreement, PFPC shall provide or perform, or shall retain other persons to
provide or perform, the following, at PFPC's expense (unless otherwise provided
herein):
(a) provide all computers, telecommunications equipment, encryption technology
and other materials and services reasonably necessary to develop and
maintain IMPRESSNet(R) to permit persons to be able to view information
about the Fund and to permit End-Users with appropriate identification and
access codes to perform Inquiries and initiate Transactions;
(b) address and mail, at the Fund's expense, notification and promotional
mailings and other communications provided by the Fund to Financial
Intermediaries and/or Shareholders regarding the availability of
IMPRESSNet(R) Services;
(c) PFPC shall prepare and process new account applications received through
IMPRESSNet(R) from Shareholders determined by the Fund to be eligible for
such services and in connection with such, the Fund agrees as follows:
(i) to permit the establishment of Shareholder bank account
information over the Internet in order to facilitate purchase
activity through the Automated Clearing House;
(ii) the ACH prenote process will be waived and the ACH status will be
set to active;
(iii)the Fund shall be responsible for any resulting gain/loss
liability associated with the ACH process
(iv) the maximum permitted initial purchase amount shall be [$ ].;
(d) process the set up of personal identification numbers ("PIN"), as described
in the IMPRESSNet(R) Product Guide provided to the Fund, which shall
include verification of initial identification numbers issued, reset and
activate personalized PIN's and reissue new PIN's in connection with lost
PIN's;
(e) provide installation services which shall include, review and approval of
the Fund's network requirements, recommending method of establishing (and,
as applicable, cooperate with the Fund to implement and maintain) a
hypertext link between IMPRESSNet(R) and the Fund Web Site and testing the
network connectivity and performance;
(f) establish systems to guide, assist and permit End-Users who access
IMPRESSNet(R) from the Fund Web Site to electronically perform Inquires and
create and transmit Transaction requests to PFPC;
(f) deliver to the Fund one (1) copy of the PFPC IMPRESSNet(R)Product Guide, as
well as all updates thereto on a timely basis;
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(g) deliver a monthly billing report to the Fund, which shall include a report
of Inquiries and Transactions;
(h) utilize at least 128-byte encryption or such other more secure form of
encryption that in PFPC's reasonable judgement is generally being
implemented in the mutual fund industry and made available to the public in
the U.S. for standard Internet browsers. In addition, PFPC shall establish,
monitor and verify firewalls and other security features (commercially
reasonable for this type of information and data) and exercise commercially
reasonable efforts to maintain the security and integrity of the PFPC Web
Site;
(i) exercise reasonable efforts to maintain all on-screen disclaimers and
copyright, trademark and service xxxx notifications, if any, provided by
the Fund to PFPC in writing from time to time, and all "point and click"
features of the PFPC Web Site relating to Shareholder acknowledgment and
acceptance of such disclaimers and notifications;
(j) provide periodic site visitation (hit reports) and other information
regarding End-User activity under this Agreement as agreed by PFPC and the
Fund from time to time;
(k) monitor the telephone lines involved in providing IMPRESSNet(R)Services and
inform the Fund promptly of any malfunctions or service interruptions;
(l) PFPC shall periodically scan its Internet interfaces and IMPRESSNet(R)for
viruses and promptly remove any such viruses located thereon;
(m) maintenance and support of IMPRESSNet(R), which includes providing error
corrections, minor enhancements and interim upgrades to IMPRESSNet(R) which
are made generally available to IMPRESSNet(R) customers and providing help
desk support to provide assistance to Fund employees with the Fund's use of
IMPRESSNet(R);
Maintenance and support shall not include (i) access to or use of any
substantial added functionality, new interfaces, new architecture, new
platforms, new versions or major development efforts, unless made generally
available by PFPC to IMPRESSNet(R) clients, as determined solely by PFPC;
or (ii) maintenance of customized features; and
(n) the Fund recognizes and acknowledges that (i) a logon I.D. and PIN are
required by End-Users to access PFPC's IMPRESSNet(R); (ii) End-User's Web
Browser and ISP must support Secure Sockets Layer (SSL) encryption
technology; and (iii) PFPC will not provide any software for access to the
Internet; software must be acquired from a third-party vendor.
3. FUND RESPONSIBILITIES. Subject to the provisions of this Exhibit B and the
Agreement, the Fund shall at its expense (unless otherwise provided herein):
(a) provide, or retain other persons to provide, all computers,
telecommunications equipment, encryption technology and other materials,
services, equipment and software reasonably
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necessary to develop and maintain the Fund Web Site, including the
functionality necessary to maintain the hypertext links to IMPRESSNet(R);
(b) promptly provide PFPC written notice of changes in Fund policies or
procedures requiring changes to the IMPRESSNet(R)Services;
(c) work with PFPC to develop Internet marketing materials for End-Users and
forward a copy of appropriate marketing materials to PFPC;
(d) revise and update the applicable prospectus(es) and other pertinent
materials, such as user agreements with End-Users, to include the
appropriate consents, notices and disclosures for IMPRESSNet(R) Services,
including disclaimers and information reasonably requested by PFPC;
(e) maintain all on-screen disclaimers and copyright, trademark and service
xxxx notifications, if any, provided by PFPC to the Fund in writing from
time to time, and all "point and click" features of the Fund Web Site
relating to acknowledgment and acceptance of such disclaimers and
notifications; and
(f) design and develop the Fund Web Site functionality necessary to facilitate,
implement and maintain the hypertext links to IMPRESSNet(R) and the various
Inquiry and Transaction web pages and otherwise make the Fund Web Site
available to End-Users.
4. STANDARDS OF CARE FOR INTERNET SERVICES. Notwithstanding anything to the
contrary contained in the Agreement, although PFPC shall comply with the
standard of care specified in the Agreement and above in providing IMPRESSNet(R)
Services, PFPC shall not be obligated to ensure or verify the accuracy or actual
receipt, or the transmission, of any data or information contained in any
transmission via IMPRESSNet(R) Services or the consummation of any Inquiry or
Transaction request not actually received by PFPC. The Fund shall advise
End-Users to promptly notify the Fund or PFPC of any errors or inaccuracies in
Shareholder data or information transmitted via IMPRESSNet(R) Services.
5. ADDITIONAL FEES FOR IMPRESSNET(R)SERVICES. As consideration for the
performance by PFPC of IMPRESSNet(R) Services, the Fund will pay the fees set
forth in a separate fee letter as agreed between the parties from time to time.
6. PROPRIETARY RIGHTS.
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(a) Each of the parties acknowledges and agrees that it obtains no rights in or
to any of the software, hardware, processes, trade secrets, proprietary
information or distribution and communication networks of the other under
this Exhibit B. Any software, interfaces or other programs a party provides
to the other hereunder shall be used by such receiving party only during
the term of the Agreement and only in accordance with the provisions of
this Exhibit B and the Agreement. Any interfaces, other software or other
programs developed by one party shall not be used directly or indirectly by
or for the other party or
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any of its affiliates to connect such receiving party or any affiliate to
any other person, without the first party's prior written approval, which
it may give or withhold in its sole discretion. Except in the normal course
of business and in conformity with Federal copyright law or with the other
party's consent, neither party nor any of its affiliates shall disclose,
use, copy, decompile or reverse engineer any software or other programs
provided to such party by the other in connection herewith.
(b) The Fund Web Site and IMPRESSNet(R)may contain certain intellectual
property, including, but not limited to, rights in copyrighted works,
trademarks and trade dress that is the property of the other party. Each
party retains all rights in such intellectual property that may reside on
the other party's web site, not including any intellectual property
provided by or otherwise obtained from such other party. To the extent the
intellectual property of one party is cached to expedite communication,
such party grants to the other a limited, non-exclusive, non-transferable
license to such intellectual property for a period of time no longer than
that reasonably necessary for the communication. To the extent that the
intellectual property of one party is duplicated within the other party's
web site to replicate the "look and feel", "trade dress" or other aspect of
the appearance or functionality of the first site, that party grants to the
other a limited, non-exclusive, non-transferable license to such
intellectual property for the duration of the Agreement. This license is
limited to the intellectual property needed to replicate the appearance of
the first site and does not extend to any other intellectual property owned
by the owner of the first site. Each party warrants that it has sufficient
right, title and interest in and to its web site and its intellectual
property to enter into these obligations, and that to its knowledge, the
license hereby granted to the other party does not and will not infringe on
any U.S. patent, U.S. copyright or other U.S. proprietary right of a third
party.
7. REPRESENTATION AND WARRANTY. Neither party shall knowingly insert into any
interface, other software, or other program provided by such party to the other
hereunder, or accessible on IMPRESSNet(R) or Fund Web Site, as the case may be,
any "back door," "time bomb," "Trojan Horse," "worm," "drop dead device,"
"virus" or other computer software code or routines or hardware components
designed to disable, damage or impair the operation of any system, program or
operation hereunder. For failure to comply with this warranty, the non-complying
party shall immediately replace all copies of the affected work product, system
or software. All costs incurred with replacement including, but not limited to
cost of media, shipping, deliveries and installation shall be borne by such
party.
8. LIABILITY LIMITATIONS; INDEMNIFICATION.
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(a) THE INTERNET. Each party acknowledges that the Internet is an unsecured,
unstable, unregulated, unorganized and unreliable network, and that the
ability of the other party to provide or perform services or duties
hereunder is dependent upon the Internet and equipment, software, systems,
data and services provided by various telecommunications carriers,
equipment manufacturers, firewall providers, encryption system developers
and other vendors and third parties. Each party agrees that the other shall
not be liable in any respect for the functions or malfunctions of the
Internet. Each party agrees the other shall
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not be liable in any respect for the actions or omissions of any third
party wrongdoers (i.e., hackers not employed by such party or its
affiliates) or of any third parties involved in the Internet Services and
shall not be liable in any respect for the selection of any such third
party, unless such party breached the standard of care specified herein
with respect to that selection.
(b) PFPC'S EXPLICIT DISCLAIMER OF CERTAIN WARRANTIES. EXCEPT AS SPECIFICALLY
PROVIDED IN SECTIONS 2 AND 4, ALL SOFTWARE AND SYSTEMS DESCRIBED IN THIS
EXHIBIT B ARE PROVIDED "AS-IS" ON AN "AS-AVAILABLE" BASIS, AND PFPC HEREBY
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE.
9. MISCELLANEOUS.
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(a) INDEPENDENT CONTRACTOR. The parties to this Agreement are and shall remain
independent contractors, and nothing herein shall be construed to create a
partnership or joint venture between them and none of them shall have the
power or authority to bind or obligate the other in any manner not
expressly set forth herein. Any contributions to IMPRESSNet(R) by the Fund
and any contributions to the Fund Web Site by PFPC shall be works for hire
pursuant to Section 101 of the Copyright Act.
(b) CONFLICT WITH AGREEMENT. In the event of a conflict between specific terms
of this Exhibit B and the Agreement, this Exhibit B shall control as to
IMPRESSNet(R) Services.
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