TRANSFER AGENCY SERVICES AGREEMENT
----------------------------------
THIS AGREEMENT is made as of August 17, 2006 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and EIP INVESTMENT TRUST (the "Trust") a
Delaware statutory trust, on behalf of the Funds listed on Schedule A attached
hereto, as such Schedule A may be amended from time to time (each a "Fund").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust, on behalf of each Fund, wishes to retain PFPC to serve
as transfer agent, registrar, dividend disbursing agent and shareholder
servicing agent of each Fund, and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of a Fund and any other person
duly authorized by the Trust's Board of Trustees to give Oral
Instructions and Written Instructions on behalf of a 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.
1
(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. 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.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(h) "Shares" means the shares of beneficial interest of any series or
class of a Fund.
(i) "Written Instructions" means (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 electronically (with respect to sub-item (ii) above) or
by hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. Appointment. The Trust, on behalf of each Fund, hereby appoints PFPC to
serve as transfer agent, registrar, dividend disbursing agent and
shareholder servicing agent to each Fund in accordance with the terms set
forth in this Agreement. PFPC accepts such appointment and agrees to
furnish such services.
3. Compliance with Rules and Regulations. PFPC undertakes to comply with all
applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect
to the duties to be performed by PFPC hereunder. Except as specifically
set forth herein, PFPC assumes no responsibility for such compliance by a
Fund or any other entity.
2
4. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or Written
Instruction it receives from an Authorized Person (or from a person
reasonably believed by PFPC to be an Authorized Person) pursuant to
this Agreement. PFPC may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with
the provisions of organizational documents or this Agreement or of
any vote, resolution or proceeding of the Trust's Board of Trustees
or of a Fund's shareholders, unless and until PFPC receives Written
Instructions to the contrary.
(c) The Trust on behalf of each Fund agrees to forward to PFPC Written
Instructions confirming Oral Instructions so that PFPC receives the
Written Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC or differ from the
Oral Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC's ability to rely upon such Oral Instructions.
5. Right to Receive Advice.
(a) Advice of a 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 relevant Fund.
3
(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 a Fund, a 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 a Fund, and the advice it receives from counsel, PFPC may rely
upon and follow the advice of counsel. Reliance on such advice,
however, does not excuse PFPC from its duties under this Agreement.
(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 or on behalf
of a Fund or from counsel and which PFPC believes, in good faith, to
be consistent with those directions or advice or Oral Instructions
or Written Instructions. Nothing in this section shall be construed
so as to impose an obligation upon PFPC (i) to seek such directions
or advice or Oral Instructions or Written Instructions, or (ii) to
act in accordance with such directions or advice or Oral
Instructions or Written Instructions 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.
6. Records; Visits. The books and records pertaining to a Fund or the Trust,
which are in the possession or under the control of PFPC, shall be the
property of such Fund or the Trust, as applicable. Such books and records
shall be prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. Each 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
a Fund, copies of any such books and records shall be provided by PFPC to
such Fund or to an Authorized Person, at such Fund's expense.
4
7. Confidentiality.
(a) Each party shall keep confidential any information relating to the
other party's business ("Confidential Information"). Confidential
Information shall include information related to the Trust, a Fund,
PFPC or a Fund's investment manager (the "Manager") including the
following:
(i) any data or information that is competitively sensitive
material, and not generally known to the public, including,
but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business
plans, and internal performance results relating to the past,
present or future business activities of the Trust, a Fund,
the Manager or PFPC, their respective subsidiaries and
affiliated companies;
(ii) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality
affords the Trust, a Fund, the Manager or PFPC a competitive
advantage over its competitors;
(iii) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code,
object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and
(iv) anything designated as confidential.
(b) Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality
obligations if it:
5
(i) is already known to the receiving party at the time it is
obtained and was obtained through some means other than
through the performance of an agreement between PFPC and an
affiliate of a Fund;
(ii) is or becomes publicly known or available through no wrongful
act of the receiving party;
(iii) is rightfully received from a third party who, to the best of
the receiving party's knowledge, is not under a duty of
confidentiality;
(iv) is released by the protected party to a third party without
restriction;
(v) is requested or required to be disclosed by the receiving
party pursuant to a court order, subpoena, governmental or
regulatory agency request or law (provided the receiving party
will provide the other party written notice of the same, to
the extent such notice is permitted);
(vi) is relevant to the defense of any claim or cause of action
asserted against the receiving party;
(vii) is necessary for PFPC to release such information in
connection with the provision of services under this
Agreement;
(viii) is Fund information provided by PFPC in connection with an
independent third party compliance or other review conducted
for the benefit of PFPC or a Fund and not for the benefit of
any investor and provided that such confidential information
is only disclosed to parties that have signed a
confidentiality agreement at least as restrictive as this
Section 7; or
(vii) has been or is independently developed or obtained by the
receiving party.
(c) The provisions of this Section 7 shall survive termination of this
Agreement.
8. Cooperation with Accountants. PFPC shall cooperate with each 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 each Fund.
6
9. PFPC System. PFPC shall retain title to and ownership of any and all data
bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable
or copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection
with the services provided by PFPC to each Fund. Notwithstanding the
foregoing, the parties acknowledge each Fund shall retain all ownership
rights in Fund data which resides on the PFPC System.
10. Disaster Recovery. PFPC shall enter into and shall maintain in effect with
appropriate parties one or more agreements making reasonable provisions
for emergency use of electronic data processing equipment to the extent
appropriate equipment is available. In the event of equipment failures,
PFPC shall, at no additional expense to a Fund, take reasonable steps to
minimize service interruptions. PFPC shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure,
provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties or obligations under this Agreement.
11. Compensation.
(a) As compensation for services rendered by PFPC during the term of
this Agreement, each Fund will pay to PFPC a fee or fees as may be
agreed to from time to time in writing by such Fund and PFPC. In
addition, the Trust on behalf of each Fund agrees to pay, and will
be billed separately in arrears for, reasonable expenses incurred by
PFPC in the performance of its duties hereunder.
(b) PFPC shall establish certain cash management accounts ("Service
Accounts") required to provide services under this Agreement. The
Trust on behalf of each Fund acknowledges (i) PFPC may receive
investment earnings from sweeping the funds in such Service Accounts
into investment accounts including, but not limited to, investment
accounts maintained at an affiliate or client of PFPC; (ii) balance
credits earned with respect to the amounts in such Service Accounts
("Balance Credits") will be used to offset the banking service fees
imposed by the cash management service provider (the "Banking
Service Fees"); (iii) PFPC shall retain any excess Balance Credits
for its own use; and (iv) Balance Credits will be calculated and
applied toward each Fund's Banking Service Fees regardless of the
Service Account balance sweep described in Sub-Section (i).
7
(c) The undersigned hereby represents and warrants to PFPC that (i) the
terms of this Agreement, (ii) the fees and expenses associated with
this Agreement, and (iii) any benefits accruing to PFPC or to the
adviser or sponsor to a Fund in connection with this 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 adviser or sponsor or
any affiliate of a Fund relating to the Agreement have been fully
disclosed to the Board of Trustees of the Trust and that, if
required by applicable law, such Board of Trustees has approved or
will approve the terms of this Agreement, any such fees and
expenses, and any such benefits.
12. Indemnification. The Trust, on behalf of each Fund, 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 to each
Fund. 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, provided that in the absence of a finding to the
contrary the acceptance, processing and/or negotiation of a fraudulent
payment for the purchase of Shares shall be presumed not to have been the
result of PFPC's or its affiliates own willful misfeasance, bad faith,
gross negligence or reckless disregard of such duties and obligations
under this Agreement. The provisions of this Section 12 shall survive
termination of this Agreement.
8
13. Responsibility of PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf
of a Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC and the Trust in a written amendment
hereto. PFPC shall be obligated to exercise care and diligence in
the performance of its duties hereunder and to act in good faith 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.
9
(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 (subject to Section 10), 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 provided that PFPC has taken reasonable steps to minimize
service interruptions; and (ii) PFPC shall not be under any duty or
obligation to inquire into and shall not be liable for the validity
or invalidity, authority or lack thereof, or truthfulness or
accuracy or lack thereof, of any instruction, direction, notice,
instrument or other information which conforms to the applicable
requirements of this Agreement, and which PFPC reasonably believes
to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
party 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 the party or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) The provisions of this Section 13 shall survive termination of this
Agreement.
14. Description of Services.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Maintain shareholder registrations;
(ii) Review new applications and correspond with shareholders to
complete or correct information;
10
(iii) Direct payment processing of checks or wires;
(iv) Prepare and certify stockholder lists in conjunction with
proxy solicitations;
(v) Countersign share certificates;
(vi) Prepare and mail to shareholders confirmation of activity;
(vii) Provide toll-free lines for direct shareholder use, plus
customer liaison staff for on-line inquiry response;
(viii) Mail duplicate confirmations to broker-dealers of their
clients' activity, whether executed through the broker-dealer
or directly with PFPC;
(ix) Provide periodic shareholder lists and statistics to a Fund;
(x) Provide detailed data for underwriter/broker confirmations;
(xi) Prepare periodic mailing of year-end tax and statement
information;
(xii) Notify on a timely basis the Manager, accounting agent, and
custodian of fund activity;
(xiii) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time;
(xiv) Accept and post daily Share purchases and redemptions;
(xv) Accept, post and perform shareholder transfers and exchanges;
(xvi) Issue and cancel certificates (when requested in writing by
the shareholder); and
(xvii) Calculate 12b-1 payments.
(b) Purchase of Shares. PFPC shall issue and credit an account of an
investor, in the manner described in each Fund's private placement
memorandum, once it receives:
(i) A subscription agreement in completed proper form;
(ii) Proper information to establish a shareholder account; and
11
(iii) Confirmation of receipt or crediting of funds for such order
to a Fund's custodian.
(c) Redemption of Shares. PFPC shall process requests to redeem Shares
as follows:
(i) All requests to transfer or redeem Shares and payment therefor
shall be made in accordance with each Fund's private placement
memorandum, when the shareholder tenders Shares in proper
form, accompanied by such documents as PFPC reasonably may
deem necessary.
(ii) PFPC reserves the right to refuse to transfer or redeem Shares
until it is satisfied that the endorsement on the instructions
is valid and genuine and that the requested transfer or
redemption is legally authorized, and it shall incur no
liability for the refusal, in good faith, to process transfers
or redemptions which PFPC, in its good judgment, deems
improper or unauthorized, or until it is reasonably satisfied
that there is no basis to any claims adverse to such transfer
or redemption.
(iii) When Shares are redeemed, PFPC shall deliver to a Fund's
custodian (the "Custodian") and a Fund or its designee a
notification setting forth the number of Shares redeemed. Such
redeemed Shares shall be reflected on appropriate accounts
maintained by PFPC reflecting outstanding Shares of a Fund and
Shares attributed to individual accounts.
(iv) PFPC shall, upon receipt of the monies provided to it by the
Custodian for the redemption of Shares, pay such monies as are
received from the Custodian, all in accordance with the
procedures established from time to time between PFPC and a
Fund.
(v) When a shareholder desires to redeem and notifies PFPC of such
request, and the Custodian provides PFPC with funds, PFPC
shall prepare and send the redemption check to the shareholder
and made payable to the shareholder, unless otherwise
instructed in writing by the shareholder.
(vi) PFPC shall not process or effect any redemption requests with
respect to Shares of a Fund after receipt by PFPC or its agent
of notification of the suspension of the determination of the
net asset value of a Fund.
12
(d) Dividends and Distributions. Upon receipt of a resolution of the
Trust's Board of Trustees authorizing the declaration and payment of
dividends and distributions, PFPC shall issue dividends and
distributions declared by the Trust on behalf of a Fund in Shares,
or, upon shareholder election, pay such dividends and distributions
in cash, if provided for in a Fund's private placement memorandum.
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 a Fund's shareholders such tax forms and other information,
or permissible substitute notice, relating to dividends and
distributions paid by a Fund as are required to be filed and mailed
by applicable law, rule or regulation. PFPC shall prepare, maintain
and file with the IRS and other appropriate taxing authorities
reports relating to all dividends above a stipulated amount paid by
a Fund to its shareholders as required by tax or other law, rule or
regulation.
(e) Shareholder Account Services.
(i) PFPC may arrange, in accordance with the private placement
memorandum, for issuance of Shares obtained through:
o Any pre-authorized check plan; and
o Direct purchases through wire orders, checks and
applications.
(ii) PFPC may arrange, in accordance with the private placement
memorandum, for a shareholder's:
o Exchange of Shares for shares of another fund with which
a Fund has exchange privileges;
o Automatic redemption from an account where that
shareholder participates in a automatic redemption plan;
and/or
o Redemption of Shares from an account with a checkwriting
privilege.
(f) Communications to Shareholders. Upon timely Written Instructions,
PFPC shall mail all communications by a Fund to its shareholders,
including:
(i) Reports to shareholders;
13
(ii) Confirmations of purchases and sales of a Fund's shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices; and
(v) Tax form information.
(g) Records. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or Social
Security number;
(ii) Number and class of Shares held and number and class of Shares
for which certificates, if any, have been issued, including
certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions paid and
the date and price for all transactions on a shareholder's
account;
(iv) Any stop or restraining order placed against a shareholder's
account;
(v) Any correspondence relating to the current maintenance of a
shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform any
calculations required by this Agreement.
(h) 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
14
(ii) Completion of a release and indemnification agreement signed
by the shareholder to protect PFPC and its affiliates.
(i) Shareholder Inspection of Stock Records. Upon a request from any
Fund shareholder to inspect stock records, PFPC will notify such
Fund and such Fund will issue instructions granting or denying each
such request. Unless PFPC has acted contrary to such Fund's
instructions, such Fund agrees to and does hereby release PFPC from
any liability for refusal of permission for a particular shareholder
to inspect such Fund's stock records.
(j) Withdrawal of Shares and Cancellation of Certificates. Upon receipt
of Written Instructions, PFPC shall cancel outstanding certificates
surrendered by a Fund to reduce the total amount of outstanding
shares by the number of shares surrendered by a Fund.
(k) Lost Shareholders. PFPC shall perform such services as are required
in order to comply with rule 17Ad-17 of the 1934 Act (the "Lost
Shareholder Rule"), including, but not limited to, those set forth
below. PFPC may, in its sole discretion, use the services of a third
party to perform some of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to comply
with the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the Lost
Shareholder Rules.
Except as set forth above, PFPC shall have no responsibility for any
escheatment services.
15
(l) Retirement Plans.
(i) In connection with the individual retirement accounts,
simplified employee pension plans, rollover individual
retirement plans, educational IRA's and XXXX individual
retirement accounts ("XXX Plans"), 403(b) Plans and money
purchase and profit sharing plans ("Qualified Plans")
(collectively, the "Retirement Plans") within the meaning of
Section 408 of the Internal Revenue Code of 1986, as amended
(the "Code") sponsored by a Fund for which contributions of
such Fund's shareholders (the "Participants") are invested
solely in Shares of such 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;
(C) Receive and process designation of beneficiary forms
requests;
(D) Examine and process requests for direct transfers
between custodians/trustees, transfer and pay over to
the successor assets in the account and records
pertaining thereto as requested;
(E) Prepare any annual reports or returns required to be
prepared and/or filed by a custodian of a Retirement
Plan, including, but not limited to, an annual fair
market value report, Forms 1099R and 5498; and file same
with the IRS and provide same to
Participant/beneficiary, as applicable; and
(F) Perform applicable federal withholding and send
Participants/beneficiaries an annual TEFRA notice
regarding required federal tax withholding.
(ii) PFPC shall arrange for PFPC Trust Company to serve as
custodian for the Retirement Plans sponsored by a Fund.
(iii) With respect to the Retirement Plans, PFPC shall provide each
Fund with the associated Retirement Plan documents for use by
each 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.
16
15. Privacy. Each party hereto acknowledges and agrees that, subject to the
reuse and re-disclosure provisions of Xxxxxxxxxx X-X, 00 XXX Part 248.11,
it shall not disclose the names, or any other non-public personal
information, of investors in a Fund obtained under this Agreement, except
as necessary to carry out the services set forth in this Agreement or as
otherwise permitted by law or regulation.
16. Anti-Money Laundering. To the extent the other provisions of this
Agreement require PFPC to establish, maintain and monitor accounts of
investors in a Fund consistent with Securities Laws, PFPC shall perform
reasonable actions necessary to help each Fund be in compliance with
Section 352 of the USA PATRIOT Act, as follows: In this regard, PFPC
shall: (a) establish and implement written internal policies, procedures
and controls reasonably designed to help prevent a Fund from being used to
launder money or finance terrorist activities; (b) provide for independent
testing, by an employee who is not responsible for the operation of PFPC's
Anti-Money Laundering ("AML") program or by an outside party, for
compliance with PFPC's established policies and procedures; (c) designate
a person or persons responsible for implementing and monitoring the
operation and internal controls of PFPC's AML program; and (d) provide
ongoing training of PFPC personnel relating to the prevention of
money-laundering activities. Upon the reasonable request of a Fund, PFPC
shall provide to such Fund: (x) a copy of PFPC's written AML policies and
procedures (it being understood such information is to be considered
confidential and treated as such and afforded all protections provided to
confidential information under this Agreement); (y) at the option of PFPC,
a copy of a written assessment or report prepared by the party performing
the independent testing for compliance, or a summary thereof, or a
certification that the findings of the independent party are satisfactory;
and (z) a summary of the AML training provided for appropriate personnel.
PFPC agrees to permit inspections relating to its AML program by U.S.
Federal departments or regulatory agencies with appropriate jurisdiction
and to make available to examiners from such departments or regulatory
agencies such information and records relating to its AML program as such
examiners shall reasonably request. Without limiting or expanding the
foregoing, the parties agree the provisions herein do not apply to Section
326 of the USA PATRIOT Act (or other sections other than Section 352) or
regulations promulgated thereunder.
17
18. Customer Identification Program ("CIP") Services.
(a) To help each Fund comply with its Customer Identification Program
(which a Fund is required to have under regulations issued under
Section 326 of the USA PATRIOT Act) PFPC will do the following:
(i) Implement procedures under which new accounts in a Fund are
not established unless PFPC has obtained the name, date of
birth (for natural persons only), address and
government-issued identification number (collectively, the
"Data Elements") for each corresponding Customer (as defined
in 31 CFR 103.131).
(ii) Use collected Data Elements to attempt to reasonably verify
the identity of each new Customer promptly before or after
each corresponding new account is opened. Methods may consist
of non-documentary methods (for which PFPC may use
unaffiliated information vendors to assist with such
verifications) and documentary methods (as permitted by 31 CFR
103.131), and may include procedures under which PFPC
personnel perform enhanced due diligence to verify the
identities of Customers the identities of whom were not
successfully verified through the first-level (which will
typically be reliance on results obtained from an information
vendor) verification process(es).
(iii) Record the Data Elements and maintain records relating to
verification of new Customers consistent with 31 CFR
103.131(b)(3).
(iv) Regularly report to a Fund about measures taken under
(i)-(iii) above.
18
(v) If PFPC provides services by which prospective Customers may
subscribe for shares in a Fund via the Internet or telephone,
work with a Fund to notify prospective Customers, consistent
with 31 CFR 103.(b)(5), about a Fund's CIP.
(vi) Set forth on a separate fee schedule compensation amounts due
for these CIP Services.
(b) Notwithstanding anything to the contrary, and without expanding the
scope of the express language above, PFPC need not collect the Data
Elements for (or verify) prospective customer (or accounts) beyond
the requirements of relevant regulation (for example, PFPC will not
verify customers opening accounts through NSCC) and PFPC need not
perform any task that need not be performed for a Fund to be in
compliance with relevant regulation.
(c) Notwithstanding anything to the contrary, PFPC need not perform any
of the steps described above with respect to persons purchasing
Shares via exchange privileges.
19. Duration and Termination.
(a) This Agreement shall be effective on the date first written above
and unless terminated pursuant to its terms shall continue for a
period of three (3) years (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal
Terms") each, unless a Fund or PFPC provides written notice to the
other of its intent not to renew. Such notice must be received not
less than sixty (60) days prior to the expiration of the Initial
Term or the then current Renewal Term.
19
(c) In the event of termination, all expenses associated with movement
of records and materials and conversion thereof to a successor
transfer agent will be borne by such Fund and paid to PFPC prior to
any such conversion.
(d) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other
party (the "Non-Defaulting Party") may give written notice thereof
to the Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement by
giving thirty (30) days written notice of such termination to the
Defaulting Party. In all cases, termination by the Non-Defaulting
Party shall not constitute a waiver by the Non-Defaulting Party of
any other rights it might have under this Agreement or otherwise
against the Defaulting Party.
(e) Notwithstanding anything contained in this Agreement to the
contrary, should a merger, acquisition, change in control,
re-structuring, re-organization or any other decision involving a
Fund or any affiliate (as defined under the 0000 Xxx) of a Fund
result in such Fund's desire to cease to use PFPC as the provider of
any of the services set forth hereunder in favor of another service
provider prior to the expiration of the then current Initial or
Renewal Term, PFPC shall make a good faith effort to facilitate a
conversion of services to such Fund's successor service, provider,
however, there can be no guarantee that PFPC will be able to
facilitate such a conversion of services on the conversion date
requested by such Fund. In connection with the foregoing and prior
to such conversion to the successor service provider, the payment of
all fees to PFPC as set forth herein shall be accelerated to a date
prior to the conversion or termination of services and calculated as
if the services had remained with PFPC until the expiration of the
then current Initial or Renewal Term and calculated at the asset
and/or Shareholder account levels, as the case may be, on the date
notice of termination was given to PFPC.
20
20. Notices. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such other
address as PFPC may inform the Trust in writing); (b) if to a Fund, at 00
Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: President (or
such other address as a Fund may inform the PFPC in writing) 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 five (5) days after it has been mailed. If notice is sent
by messenger, it shall be deemed to have been given on the day it is
delivered.
21. Amendments. This Agreement, or any term thereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
22. Delegation; Assignment. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or
of The PNC Financial Services Group, Inc., provided that PFPC gives each
Fund thirty (30) days prior written notice of such assignment or
delegation.
21
23. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
24. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
25. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties
and fee schedules.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Trust agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC hereunder without the prior written
approval of PFPC, which approval shall not be unreasonably withheld
or delayed.
(c) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect.
(d) Information. Each Fund will provide such information and
documentation as PFPC may reasonably request in connection with
services provided by PFPC to each Fund.
22
(e) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(f) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(h) No Representations or Warranties. Except as expressly provided in
this Agreement, each party hereby disclaims all representations and
warranties, express or implied, made to the other party 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. Each party disclaims any
warranty of title or non-infringement except as otherwise set forth
in this Agreement.
(i) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
23
(j) Customer Identification Program Notice. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify,
and record certain information that identifies each person who
initially opens an account with that financial institution on or
after October 1, 2003. Certain of PFPC's affiliates are financial
institutions, and PFPC may, as a matter of policy, request (or may
have already requested) each Fund's name, address and taxpayer
identification number or other government-issued identification
number, and, if such party is a natural person, that party's date of
birth. PFPC may also ask (and may have already asked) for additional
identifying information, and PFPC may take steps (and may have
already taken steps) to verify the authenticity and accuracy of
these data elements.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
24
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/ Xxxxx X. Xxxxxx
---------------------------------------
Title: Senior Vice President
------------------------------------
EIP INVESTMENT TRUST, on behalf of the Funds
listed on Schedule A
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Title: President
------------------------------------
25
SCHEDULE A
----------
EIP Growth and Income Fund
26
