TRANSFER AGENCY AND SERVICES AGREEMENT
Exhibit
(h)(1)
THIS
AGREEMENT, dated as of this 1st
day of
June,
2005
between XXXXXXX INVESTORS TRUST, a Delaware statutory trust (the “Fund”), and
PFPC INC. (“PFPC”), a Massachusetts corporation.
WITNESSETH
WHEREAS,
the Fund and PFPC are parties to a Transfer Agency and Services Agreement,
dated
January 14, 2000 (the “Initial Agreement”), and the parties wish to continue
their relationship on the terms set forth in this Agreement;
WHEREAS,
the Fund is authorized to issue Shares in separate series, with each such
series
representing interests in a separate portfolio of securities or other
assets;
WHEREAS,
the Fund initially intends to offer Shares in those Portfolios identified
in the
attached Schedule A, each such Portfolio, together with all other Portfolios
subsequently established by the Fund, shall be subject to this Agreement
in
accordance with Article 14;
WHEREAS,
the Fund, on behalf of the Portfolios, desires to appoint PFPC as its transfer
agent, dividend disbursing agent and agent in connection with certain other
activities and PFPC desires to accept such appointment;
NOW,
THEREFORE, in consideration of the mutual covenants and promises hereinafter
set
forth, the Fund and PFPC agree as follows:
Article
1 Definitions.
1.1 Whenever
used in this Agreement, the following words and phrases, unless the context
otherwise requires, shall have the following meanings:
(a) “Account
Inquiry” shall mean any access to the PFPC recordkeeping system via the Internet
Account Management Web Site initiated by an End-User which is not a Financial
Transaction.
(b) “Articles
of Incorporation” shall mean the Articles of Incorporation, Declaration of
Trust, or other similar organizational document as the case may be, of the
Fund
as the same may be amended from time to time.
(c) “Authorized
Person” shall be deemed to include (i) any officer of the Fund; or (ii) any
person, whether or not such person is an officer or employee of the Fund,
duly
authorized to give Oral Instructions or Written Instructions on behalf of
the
Fund as indicated in writing to PFPC from time to time.
(d) “Board
Members” shall mean the Directors or Trustees of the governing body of the Fund,
as the case may be.
(e) “Board
of
Directors” shall mean the Board of Directors or Board of Trustees of the Fund,
as the case may be.
(f) “Commencement
Date” shall mean the date first written above.
(g) “Commission”
shall mean the Securities and Exchange Commission.
(h) “Custodian”
refers to any custodian or subcustodian of securities and other property
which
the Fund may from time to time deposit, or cause to be deposited or held
under
the name or account of such a custodian pursuant to a Custodian Agreement.
(i) “1934
Act” shall mean the Securities Exchange Act of 1934 and the rules and
regulations promulgated thereunder, all as amended from time to
time.
(j) “1940
Act” shall mean the Investment Company Act of 1940, as amended, and the rules
and regulations promulgated thereunder, all as amended from time to time.
(k) “End-User”
shall mean any Shareholder that accesses the PFPC System via the Internet
Account Management Web Site.
(l) “Financial
Transaction” shall mean purchase, redemption, exchange or any other
transaction involving the movement of Shares initiated by an End-User.
(m)
“Fund
Home Page” shall mean the Fund’s proprietary web site on the Internet used by
the Fund to provide information to its Shareholders and potential
shareholders.
(n)
“Internet Account Management Web Site” shall mean the PFPC proprietary system
consisting of the PFPC Secure Net Gateway and the PFPC Web Transaction Engine.
(o)
“PFPC
Secure Net Gateway” shall mean the system of computer hardware and software and
network established by PFPC to provide access between PFPC recordkeeping
system
and the Internet.
(p)
“PFPC
Web Transaction Engine” shall mean the system of computer hardware and software
created and established by PFPC in order to enable End-Users to perform Account
Inquiries and Financial Transactions via the Internet Account Management
Web
Site.
(q)
“Internet” shall mean the communications network comprised of multiple
communications networks linking education, government, industrial and private
computer networks.
(r) “Oral
Instructions” shall mean instructions, other than Written Instructions, actually
received by PFPC from a person reasonably believed by PFPC to be an Authorized
Person;
(s) “Portfolio”
shall mean each separate series of shares offered by the Portfolios representing
interests in a separate portfolio of securities and other assets;
(t) “Prospectus”
shall mean the most recently dated Fund Prospectus and Statement of Additional
Information, including any supplements thereto if any, which has become
effective under the Securities Act of 1933, as amended, and the 1940
Act.
(u) “Shares”
refers collectively to such shares of capital stock or beneficial interest,
as
the case may be, or class thereof, of each respective Portfolio of the Fund
as
may be issued from time to time.
(v) “Shareholder”
shall mean a record owner of Shares of each respective Portfolio of the
Fund.
(w) “Written
Instructions” shall mean a written communication signed by a person reasonably
believed by PFPC to be an Authorized Person and actually received by PFPC.
Written Instructions shall include manually executed originals and authorized
electronic transmissions, including telefacsimile of a manually executed
original or other process.
Article
2 Appointment
of PFPC.
The
Fund,
on behalf of the Portfolios, hereby appoints and constitutes PFPC as its
sole
and exclusive transfer agent and dividend disbursing agent for Shares of
each
respective Portfolio of the Fund and as shareholder servicing agent for the
Fund, and PFPC hereby accepts such appointments and agrees to perform the
duties
hereinafter set forth.
Article
3 Duties
of PFPC.
3.1 PFPC
shall be responsible for:
(a) Administering
and/or performing the customary services of a transfer agent; acting as service
agent in connection with dividend and distribution functions; and for performing
shareholder account and administrative agent functions in connection with
the
issuance, transfer and redemption or repurchase (including coordination with
the
Custodian) of Shares of each Portfolio, as more fully described in the written
schedule of Duties of PFPC annexed hereto as Schedule B and incorporated
herein,
and in accordance with the terms of the Prospectus of the Fund on behalf
of the
applicable Portfolio, applicable law and the procedures established from
time to
time between PFPC and the Fund. Notwithstanding the foregoing or anything
in
this Agreement to the contrary, in no event shall the Fund make any
modifications to the Prospectus of the Fund or adopt any policies affecting
the
obligations or responsibilities of PFPC hereunder without the prior written
approval of PFPC, which approval shall not be unreasonably
withheld.
(b) Recording
the issuance of Shares and maintaining pursuant to Rule 17Ad-10(e) of the
1934
Act a record of the total number of Shares of each Portfolio which are
authorized, based upon data provided to it by the Fund, and issued and
outstanding. PFPC shall provide the Fund on a regular basis with the total
number of Shares of each Portfolio which are authorized and issued and
outstanding and shall have no obligation, when recording the issuance of
Shares,
to monitor the issuance of such Shares or to take cognizance of any laws
relating to the issue or sale of such Shares, which functions shall be the
sole
responsibility of the Fund.
(c) In
addition to providing the foregoing services, the Fund hereby engages PFPC
as
its print/mail service provider with respect to those print/mail items
and
for
such fees
as
may be agreed to from time to time in writing by the Fund and PFPC. PFPC
agrees
to perform the services and its obligations subject to the terms and conditions
of this Agreement.
(d) Notwithstanding
any of the foregoing provisions of this Agreement, PFPC shall be under no
duty
or obligation to inquire into, and shall not be liable for: (i) the legality
of
the issuance or sale of any Shares or the sufficiency of the amount to be
received therefor; (ii) the legality of the redemption of any Shares, or
the
propriety of the amount to be paid therefor; (iii) the legality of the
declaration of any dividend by the Board of Directors, or the legality of
the
issuance of any Shares in payment of any dividend; or (iv) the legality of
any
recapitalization or readjustment of the Shares. The foregoing shall in no
way be
interpreted or construed to limit PFPC’s obligations set forth in Section 16 of
Schedule B.
3.2 In
addition, the Fund shall (i) identify to PFPC in writing those transactions
and
assets to be treated as exempt from blue sky reporting for each State and
(ii)
verify the establishment of transactions for each State on the system prior
to
activation and thereafter monitor the daily activity for each State. The
responsibility of PFPC for the Fund's blue sky State registration status
is
solely limited to the initial establishment of transactions subject to blue
sky
compliance by the Fund and the reporting of such transactions to the Fund
as
provided above.
3.3 In
addition to the duties set forth herein, PFPC shall perform such other duties
and functions, and shall be paid such amounts therefor, as may from time
to time
be agreed upon in writing between the Fund and PFPC.
3.4 In
addition to the services rendered by PFPC as set forth in the Agreement,
PFPC
agrees to provide the following services with respect to PFPC’s proprietary
Internet Account Management product:
(a) In
accordance with the written Internet Account Management procedures
and product functionality documentation provided to the Fund by PFPC, PFPC
shall, through the use of the PFPC Web Transaction Engine and PFPC Secure
Net
Gateway; (i) enable the Funds and End-Users to utilize the Internet to access
Fund information maintained by the Fund on the Fund Home Page; and (ii) enable
End-Users to utilize the Internet to access the PFPC System in order to perform
Account Inquiries and Financial Transactions in Shareholder accounts.
(b) Process
the set up of self-registering with a User defined ID and password, as described
in the Internet
Account Management Services Product Guide provided to the Funds, which shall
include verification of initial identification numbers issued, reset and
activation of personalized passwords and reissue of new passwords.
(c) Provide
Installation services which shall include, review and sign off on the Fund’s
network requirements, recommending method of linking to the PFPC Web Transaction
Engine, installing network hardware and software, implementing the network
connectivity, and testing the network connectivity and performance.
(d) Provide
maintenance and support of the PFPC Secure Net Gateway and the PFPC Web
Transaction Engine, which includes the following:
| (i) |
error
corrections, minor enhancements and interim upgrades to the
Internet Account Management Web Site
which are made generally available by PFPC to Internet
Account Management customers;
|
| (ii) |
help
desk support to provide assistance to Fund employees with the Fund’s use
of the
Internet Account Management Web Site.
|
Maintenance
and support shall not
include
(a) 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
Internet
Account Management clients,
as determined solely by PFPC;
or (b)
maintenance of customized features.
(e)
Maintain and upkeep of the security infrastructure and capabilities described
in
the procedures and product functionality documentation.
(f)
Prepare and forward a monthly usage reports to the Fund which shall provide
the
Fund with a summary of activity and functionality used by and
End-Users.
3.5 In
connection with the Fund’s use of the Internet Account Management Web Site, the
Fund shall be responsible for the following:
(a) establishment
and maintenance of the Fund Home Page on the Internet;
(b) services
and relationships between the Fund and any third party on-line service providers
to enable End-Users to access the Fund Home Page and/or the Investor Services
System via the Internet;
(c) provide
PFPC with access to and information regarding the Fund Home Page in order
to
enable PFPC to provide the services contemplated hereunder.
Article
4 Recordkeeping
and Other Information.
4.1 PFPC
shall create and maintain all records required of it pursuant to its duties
hereunder and as set forth in Schedule B in accordance with all applicable
laws,
rules and regulations, including records required by Section 31(a) of the
1940
Act. Where applicable, such records shall be maintained by PFPC for the periods
and in the places required by Rule 31a-2 under the 1940 Act.
4.2 To
the
extent required by Section 31 of the 1940 Act, PFPC agrees that all such
records
prepared or maintained by PFPC relating to the services to be performed by
PFPC
hereunder are the property of the Fund and will be preserved, maintained
and
made available in accordance with such section, and will, at the expense
of the
Fund, be surrendered promptly to the Fund on and in accordance with the Fund's
request.
4.3 In
case
of any requests or demands for the inspection of Shareholder records of the
Fund, PFPC will endeavor to notify the Fund of such request and secure Written
Instructions as to the handling of such request. PFPC reserves the right,
however, to exhibit the Shareholder records to any person whenever it is
advised
by its counsel that it may be held liable for the failure to comply with
such
request.
Article
5 Fund
Instructions.
5.1 PFPC
will
have no liability when acting upon Written or Oral Instructions believed
to have
been executed or orally communicated by an Authorized Person and will not
be
held to have any notice of any change of authority of any person until receipt
of a Written Instruction thereof from the Fund. PFPC will also have no liability
when processing Share certificates which it reasonably believes to bear the
proper manual or facsimile signatures of the officers of the Fund and the
proper
countersignature of PFPC or the Fund’s prior transfer agent, as the case may be.
5.2 At
any
time, PFPC may, at its own expense, request Written Instructions from the
Fund
and may seek advice from legal counsel for the Fund, or its own legal counsel
of
good national reputation, with respect to any matter arising in connection
with
this Agreement, and it shall not be liable for any action taken or not taken
by
it in good faith in accordance with such Written Instructions or in accordance
with the opinion of counsel for the Fund or for PFPC. Written Instructions
requested by PFPC will be provided by the Fund within a reasonable period
of
time.
5.3 PFPC,
its
officers, agents or employees, shall accept Oral Instructions or Written
Instructions given to them by any person representing or acting on behalf
of the
Fund only if said representative is an Authorized Person. The Fund agrees
that
all Oral Instructions shall be followed within one business day by confirming
Written Instructions, and that the Fund's failure to so confirm shall not
impair
in any respect PFPC's right to rely on Oral Instructions.
Article
6 Compensation.
6.1 As
compensation for services rendered by PFPC during the term of this Agreement,
the Fund, on behalf of the Portfolios will pay to PFPC a fee or fees as may
be
agreed to from time to time in writing by the Fund and PFPC. In addition,
the
Fund agrees to pay, and will be billed separately in arrears for, reasonable
out
of pocket expenses properly incurred by PFPC in the performance of its duties
hereunder.
6.2 PFPC
shall establish certain cash management accounts (“Service Accounts”) required
to provide services under this Agreement. The Fund acknowledges (a) PFPC
may
receive investment earnings from sweeping the funds in such Service Accounts
into investment accounts including, but not limited, investment accounts
maintained at an affiliate or client of PFPC; (b) 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”); (c) PFPC shall retain any excess Balance
Credits for its own use; and (iv) Balance Credits will be calculated and
applied
toward the Fund’s Banking Service Fees regardless of the Service Account balance
sweep described in Sub-Section (a).
6.3 The
undersigned hereby represents and warrants to PFPC that (a) the terms of
this
Agreement, (b) the fees and expenses associated with this Agreement, and
(c) any
benefits accruing to PFPC described herein or to the adviser or sponsor to
the
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 the Fund relating to the Agreement have been fully disclosed
to the
Board of Directors of the Fund and that, if required by applicable law, such
Board of Directors has approved or will approve the terms of this Agreement,
any
such fees and expenses, and any such benefits.
Article
7 Documents.
[Intentionally
omitted]
Article
8 Transfer
Agent System.
8.1 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 the
Fund herein (the “PFPC System”).
8.2 PFPC
hereby grants to the Fund a limited license to the PFPC System for the sole
and
limited purpose of having PFPC provide the services contemplated hereunder
and
nothing contained in this Agreement shall be construed or interpreted otherwise
and such license shall immediately terminate with the termination of this
Agreement.
8.3 In
the
event that the Fund, including any affiliate or agent of the Fund or any
third
party acting on behalf of the Fund is provided with direct access to the
PFPC
System for either account inquiry or to transmit transaction information,
including but not limited to account maintenance, exchanges, purchases and
redemptions, except as otherwise specifically set forth in this Agreement,
such
direct access capability shall be limited to direct entry to the PFPC System
by
means of on-line mainframe terminal entry or PC emulation of such mainframe
terminal entry and any other non-conforming method of transmission of
information to the PFPC System is strictly prohibited without the prior written
consent of PFPC.
Article
9 Representations
and Warranties.
9.1 PFPC
represents and warrants to the Fund that:
(a) it
is a
corporation duly organized, existing and in good standing under the laws
of the
Commonwealth of Massachusetts;
(b) it
is
empowered under applicable laws and by its Articles of Incorporation and
By-Laws
to enter into and perform this Agreement;
(c) all
requisite corporate proceedings have taken place to authorize it to enter
into
this Agreement;
(d) it
is
duly registered with its appropriate regulatory agency as a transfer agent
and
such registration will remain in effect for the duration of this Agreement;
(e) it
has
and will retain all licenses, permits and registrations necessary to perform
its
duties under this Agreement;
(e) it
has
and will continue to have access to the necessary facilities, equipment and
personnel to perform its duties and obligations under this
Agreement;
(f) this
Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of PFPC, enforceable against PFPC in accordance with its
terms; and
(g) it
shall
promptly notify the Fund if any representation, warranty or covenant contained
in this Article 9.1 becomes untrue in any material respect.
9.2 The
Fund
represents and warrants to PFPC that:
(a) it
is
duly organized, existing and in good standing under the laws of the jurisdiction
in which it is organized;
(b) it
is
empowered under applicable laws and by its Articles of Incorporation and
By-Laws
to enter into this Agreement;
(c) all
corporate proceedings required by said Articles of Incorporation, By-Laws
and
applicable laws have been taken to authorize it to enter into this
Agreement;
(d) a
registration statement under the Securities Act of 1933, as amended, and
the
1940 Act, on behalf of each of the Portfolios, is currently effective and
will
remain effective, and all appropriate state securities law filings have been
made and will continue to be made, with respect to all Shares of the Portfolios
being offered for sale;
(e) all
outstanding Shares are validly issued, fully paid and non-assessable and
when
Shares are hereafter issued in accordance with the terms of the Fund's Articles
of Incorporation and its Prospectus with respect to each Portfolio, such
Shares
shall be validly issued, fully paid and non-assessable;
(f) this
Agreement, when executed and delivered, will constitute a legal, valid and
binding obligation of the Fund, enforceable against the Fund in accordance
with
its terms; and
(g) it
shall
promptly notify PFPC if any representation, warranty or covenant contained
in
this Article 9.2 becomes untrue in any material respect.
9.3 THIS
IS A
SERVICE AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, PFPC
DISCLAIMS ALL OTHER REPRESENTATIONS OR 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.
Article
10 Indemnification.
10.1 The
Fund,
on behalf of each Portfolio, shall indemnify and hold PFPC harmless from
and
against any and all claims, costs, expenses (including reasonable attorneys’
fees), losses, damages, charges, payments and liabilities of any sort or
kind which
may
be asserted against PFPC or for which PFPC may be held to be liable (a “Claim”)
arising out of or attributable to any of the following, unless such Claim
resulted from a negligent act or omission to act, bad faith or violation
of law
by PFPC in the performance of its duties hereunder:
(a) any
actions of PFPC required to be taken pursuant to this Agreement unless such
Claim resulted from a negligent act or omission to act, bad faith or violation
of law by PFPC in the performance of its duties hereunder;
(b) PFPC’s
reasonable reliance on, or reasonable use of information, data, records and
documents (including but not limited to magnetic tapes, computer printouts,
hard
copies and microfilm copies) received by PFPC from the Fund, or any authorized
third party acting on behalf of the Fund, including but not limited to the
prior
transfer agent for the Fund, in the performance of PFPC’s duties and obligations
hereunder;
(c) the
reliance on, or the implementation of, any Written or Oral Instructions or
any
other instructions or requests of the Fund, on behalf of the applicable
Portfolio, reasonably believed by PFPC to be genuine and signed or authorized
by
the proper party or parties;
(d) the
offer
or sales of Shares in violation of any requirement under the securities laws
or
regulations of any state that such Shares be registered in such state or
in
violation of any stop order or other determination or ruling by any state
with
respect to the offer or sale of such Shares in such state; and
(e) the
Fund’s refusal or failure to comply with the terms of this Agreement, or any
Claim which arises out of the Fund’s negligence or misconduct or the breach of
any representation or warranty of the Fund made herein.
10.2 The
Fund
shall not be responsible for and PFPC shall indemnify and hold the Fund harmless
from and against any and all claims, costs, expenses (including reasonable
attorneys' fees), losses, damages, charges, payments and liabilities of any
sort
or kind which may be asserted against the Fund or for which the Fund may
be held
to be liable (a “Claim”) arising out of or attributable to any such Claims which
result from a negligent act or omission to act, bad faith or violation of
law by
PFPC in the performance of its duties hereunder.
10.3 In
any
case in which one party (the “Indemnifying Party”) may be asked to indemnify or
hold the other party (the “Indemnified Party”) harmless, the Indemnified Party
will notify the Indemnifying Party promptly after identifying any situation
which it believes presents or appears likely to present a claim for
indemnification against the Indemnifying Party although the failure to do
so
shall not prevent recovery by the Indemnified Party and shall keep the
Indemnifying Party advised with respect to all developments concerning such
situation. The Indemnifying Party shall have the option to defend the
Indemnified Party against any Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so elects,
such
defense shall be conducted by counsel chosen by the Indemnifying Party and
satisfactory to the Indemnified Party, and thereupon the Indemnifying Party
shall take over complete defense of the Claim and the Indemnified Party shall
sustain no further legal or other expenses in respect of such Claim. The
Indemnified Party will not confess any Claim or make any compromise in any
case
in which the Indemnifying Party will be asked to provide indemnification,
except
with the Indemnifying Party's prior written consent. The obligations of the
parties hereto under this Article 10 shall survive the termination of this
Agreement.
10.4 Any
claim
for indemnification under this Agreement must be made prior to the earlier
of:
(a) one
year
after the Indemnified Party becomes aware of the event for which indemnification
is claimed; or
(b) one
year
after the earlier of the termination of this Agreement or the expiration
of the
term of this Agreement.
10.5 Except
for remedies that cannot be waived as a matter of law (and injunctive or
provisional relief), the provisions of this Article 10 shall be PFPC’s sole and
exclusive remedy for claims or other actions or proceedings to which the
Fund’s
indemnification obligations pursuant to this Article 10 may apply.
Article
11 Standard
of Care.
11.1 PFPC
shall at all times act in good faith and agrees to use its best efforts within
commercially reasonable limits to ensure the accuracy of all services performed
under this Agreement, but assumes no responsibility for loss or damage to
the
Fund unless said errors are caused by PFPC’s own negligence, bad faith or
willful misconduct or violation of law or that of its employees.
11.2 Except
with respect to fraud and other matters for which the cause of action is
not
readily ascertainable, neither party may assert any cause of action against
the
other party under this Agreement that accrued more than two (2) years prior
to
the filing of the suit (or commencement of arbitration proceedings) alleging
such cause of action.
11.3 Each
party shall have the duty to mitigate damages for which the other party may
become responsible.
Article
12 Consequential
Damages.
12.1 NOTWITHSTANDING
ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY,
ITS
AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, AGENTS OR SUBCONTRACTORS
BE LIABLE FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT
OR CONSEQUENTIAL DAMAGES.
Article
13 Term
and Termination.
13.1 This
Agreement shall be effective and binding on the parties as of the date first
written above and unless otherwise terminated as set forth in this Agreement
shall continue for a period of three (3) years beginning on the Commencement
Date (the “Initial Term”).
13.2 Upon
the
expiration of the Initial Term, this Agreement shall automatically renew
for
successive terms of two (2) years (“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 sixty (60) days and not more than
one-hundred eighty (180) days prior to the expiration of the Initial Term
or the
then current Renewal Term.
13.3 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.
13.4 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. If PFPC is the Non-Defaulting Party, its termination
of
this Agreement shall not constitute a waiver of any other rights or remedies
of
PFPC with respect to services performed prior to such termination of rights
of
PFPC to be reimbursed for out-of-pocket expenses. 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.
13.5 Notwithstanding
anything to the contrary herein, PFPC shall provide prompt notice to the
Fund of
any definitive agreement relating to a change in control of PFPC. Upon such
notice, the Fund shall have the option to terminate this Agreement to the
extent
the Fund determines in good faith that such change of control of PFPC would
adversely impact the services provided by PFPC hereunder. Such option to
terminate shall expire ninety (90) days after the effective date of the change
of control of PFPC.
Article
14 Additional
Portfolios.
14.1 In
the
event that the Fund establishes one or more Portfolios in addition to those
identified in Schedule A, with respect to which the Fund desires to have
PFPC
render services as transfer agent under the terms hereof, the Fund shall
so
notify PFPC in writing, and if PFPC agrees in writing to provide such services,
Schedule A shall be amended to include such additional Portfolios.
Article
15 Confidentiality.
15.1 The
parties agree that the Proprietary Information (defined below) and any
nonpublic, personal information of customers (collectively “Confidential
Information”) are confidential information of the parties and their respective
licensors. The Fund and PFPC shall exercise at least the same degree of care,
but not less than reasonable care, to safeguard the confidentiality of the
Confidential Information of the other as it would exercise to protect its
own
confidential information of a similar nature. The Fund and PFPC shall not
duplicate, sell or disclose to others the Confidential Information of the
other,
in whole or in part, without the prior written permission of the other party.
The Fund and PFPC, however, may disclose Confidential Information to their
respective parent corporation, their respective affiliates, their subsidiaries
and affiliated companies and employees, provided that each shall use reasonable
efforts to ensure that the Confidential Information is not duplicated or
disclosed in breach of this Agreement. The Fund and PFPC may also disclose
the
Confidential Information to independent contractors, auditors, and professional
advisors, provided they first agree to be bound by the confidentiality
obligations substantially similar to this Section 15.1. Notwithstanding the
previous sentence, in no event shall either the Fund or PFPC disclose the
Confidential Information to any competitor of the other without specific,
prior
written consent.
15.2 Proprietary
Information means:
(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, finance, operations, customer relationships, customer
profiles, 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; and
(c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, show-how and trade secrets, whether or not
patentable or copyrightable.
15.3 Confidential
Information includes, without limitation, all documents, inventions, substances,
engineering and laboratory notebooks, drawings, diagrams, specifications,
bills
of material, equipment, prototypes and models, and any other tangible
manifestation of the foregoing of either party which now exist or come into
the
control or possession of the other.
15.4 The
obligations of confidentiality and restriction on use herein shall not apply
to
any Confidential Information that a party proves:
(a) Was
in
the public domain prior to the date of this Agreement or subsequently came
into
the public domain through no fault of such party; or
(b) Was
lawfully received by the party from a third party free of any obligation
of
confidence to such third party; or
(c) Was
already in the possession of the party prior to receipt thereof, directly
or
indirectly, from the other party; or
(d) Is
required to be disclosed in a judicial or administrative proceeding after
giving
the other party as much advance notice of the possibility of such disclosure
as
practical so the other party may attempt to stop such disclosure or obtain
a
protective order concerning such disclosure or in response to a regulatory
inquiry; or
(e) Is
subsequently and independently developed by employees, consultants or agents
of
the party without reference to the Confidential Information disclosed under
this
Agreement.
The
parties understand and agree that the Fund may file a copy of this Agreement,
excluding any related fee agreements, as an exhibit to its registration
statement, and that such action is not prohibited.
Article
16 Force
Majeure.
No
party
shall be liable for any default or delay in the performance of its obligations
under this Agreement if and to the extent such default or delay is caused,
directly or indirectly, by (i) fire, flood, elements of nature or other acts
of
God; (ii) any outbreak or escalation of hostilities, war, acts of terrorism,
riots or civil disorders in any country, (iii) any act or omission of the
other
party or any governmental authority; (iv) any labor disputes (provided that
the
employees’ demands are not reasonable or within the party’s power to satisfy);
or (v) nonperformance by a third party or any similar cause beyond the
reasonable control of such party, including without limitation, failures
or
fluctuations in telecommunications or other equipment. In any such event,
the
non-performing party shall be excused from any further performance and
observance of the obligations so affected only for as long as such circumstances
prevail and such party continues to use commercially reasonable efforts to
recommence performance or observance as soon as practicable.
Article
17 Assignment
and Subcontracting.
This
Agreement, its benefits and obligations shall be binding upon and inure to
the
benefit of the parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned or otherwise transferred by either
party hereto, without the prior written consent of the other party, which
consent shall not be unreasonably withheld; provided, however, that PFPC
may, in
its sole discretion, assign all its right, title and interest in this Agreement
to an affiliate, parent or subsidiary after written notice to the Fund and
provided that PFPC remains liable for all obligations hereunder. PFPC may,
upon
the Fund’s prior written consent, engage subcontractors to perform any of the
obligations contained in this Agreement to be performed by PFPC.
Article
18 Arbitration.
18.1 Any
claim
or controversy arising out of or relating to this Agreement, or breach hereof,
shall be settled by arbitration administered by the American Arbitration
Association in Boston, Massachusetts in accordance with its applicable rules,
except that the Federal Rules of Evidence and the Federal Rules of Civil
Procedure with respect to the discovery process shall apply.
18.2 The
parties hereby agree that judgment upon the award rendered by the arbitrator
may
be entered in any court having jurisdiction.
18.3 The
parties acknowledge and agree that the performance of the obligations under
this
Agreement necessitates the use of instrumentalities of interstate commerce
and,
notwithstanding other general choice of law provisions in this Agreement,
the
parties agree that the Federal Arbitration Act shall govern and control with
respect to the provisions of this Article 18.
Article
19 Notice.
Any
notice or other instrument authorized or required by this Agreement to be
given
in writing to the Fund or PFPC, shall be sufficiently given if addressed
to that
party and received by it at its office set forth below or at such other place
as
it may from time to time designate in writing.
To
the
Fund:
Xxxxxxx
Investors Trust
1325
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxxxxxxx, First Vice President
To
PFPC:
PFPC,
Inc.
000
Xxxxxxxx Xxxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
President
with
a
copy to PFPC’s General Counsel
Article
20 Governing
Law/Venue.
The
laws
of the Commonwealth of Massachusetts, excluding the laws on conflicts of
laws,
shall govern the interpretation, validity, and enforcement of this Agreement.
All actions arising from or related to this Agreement shall be brought in
the
state and federal courts sitting in the City of Boston, and PFPC and the
Fund
hereby submit themselves to the exclusive jurisdiction of those
courts.
Article
21 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original; but such counterparts shall, together, constitute
only
one instrument.
Article
22 Captions.
The
captions of this Agreement are included for convenience of reference only
and in
no way define or limit any of the provisions hereof or otherwise affect their
construction or effect.
Article
23 Publicity.
Neither
PFPC nor the Fund shall release or publish news releases, public announcements,
advertising or other publicity relating to this Agreement or to the transactions
contemplated by it without the prior review and written approval of the other
party; provided, however, that either party may make such disclosures as
are
required by legal, accounting or regulatory requirements after making reasonable
efforts in the circumstances to consult in advance with the other
party.
Article
24 Relationship
of Parties.
24.1 The
parties agree that they are independent contractors and not partners or
co-venturers and nothing contained herein shall be interpreted or construed
otherwise.
Article
25 Entire
Agreement; Severability.
25.1 This
Agreement, including Schedules, Addenda, and Exhibits hereto, constitutes
the
entire Agreement between the parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous proposals, agreements (including
without limitation the Initial Agreement), contracts, representations, and
understandings, whether written or oral, between the parties with respect
to the
subject matter hereof. No change, termination, modification, or waiver of
any
term or condition of the Agreement shall be valid unless in writing signed
by
each party. A party’s waiver of a breach of any term or condition in the
Agreement shall not be deemed a waiver of any subsequent breach of the same
or
another term or condition.
25.2 The
parties intend every provision of this Agreement to be severable. If a court
of
competent jurisdiction determines that any term or provision is illegal or
invalid for any reason, the illegality or invalidity shall not affect the
validity of the remainder of this Agreement. In such case, the parties shall
in
good faith modify or substitute such provision consistent with the original
intent of the parties. Without limiting the generality of this paragraph,
if a
court determines that any remedy stated in this Agreement has failed of its
essential purpose, then all other provisions of this Agreement, including
the
limitations on liability and exclusion of damages, shall remain fully
effective.
Article
26 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) the 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.
Article
27 Miscellaneous.
For
convenience purposes, this Agreement is being entered into as a master agreement
by and between the Fund, on behalf of each of Portfolio, and PFPC. However,
this
Agreement shall be interpreted as applying solely to each Portfolio
individually, and no Portfolio shall be liable for the obligations of any
other
Portfolio. The Fund and PFPC agree that the obligations of the Fund and each
Portfolio under the Agreement shall not be binding upon any of the Board
Members, shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund individually, but are binding only upon the
assets and property of each Portfolio individually, as provided in the Articles
of Incorporation. The execution and delivery of this Agreement have been
authorized by the Board Members of the Fund, and signed by an authorized
officer
of the Fund, acting as such, and neither such authorization by such Board
Members nor such execution and delivery by such officer shall be deemed to
have
been made by any of them or any shareholder of a Portfolio individually or
to
impose any liability on any of them or any shareholder of a Portfolio
personally, but shall bind only the assets and property of each Portfolio
individually, as provided in the Articles of Incorporation.
PFPC
and
the Fund may from time to time be parties to agreements in addition to this
Agreement. The terms of this Agreement shall not be applicable to, or otherwise
affect the relationship of PFPC and the Fund under, such other agreements
unless
specifically agreed to therein by PFPC and the Fund.
- -
2005
Xxxxxxx Restated TA Agr Dft2 (redline).doc
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their duly authorized officers, as of the day and year first above written.
XXXXXXX
INVESTORS TRUST
on
behalf
of each Portfolio set forth on Schedule A
By:
/s/
Xxxxxxx X. Xxxxx
Title: EVP
PFPC
INC.
By:
/s/
Xxxxx Xxxxxx
Title: Sr.
Vice President
Business
Approval:
Date:
__________
Legal
Approval: A.A.
Date:
8/30/05
AML
Approval: X.X. (A.A.)
Date:
8/30/05
- -
2005
Xxxxxxx Restated TA Agr Dft2 (redline).doc
SCHEDULE
A
LIST
OF PORTFOLIOS
Xxxxxxx
Fund
Xxxxxxx
Money Market Fund
Xxxxxxx
Financial Services Fund
Xxxxxxx
U.S. Government Money Market Fund
Xxxxxxx
Financial Industries Fund
- -
2005
Xxxxxxx Restated TA Agr Dft2 (redline).doc
SCHEDULE
B
DUTIES
OF PFPC
1. Shareholder
Information. PFPC
shall maintain a record of the number of Shares held by each Shareholder
of
record which shall include name, address, taxpayer identification and which
shall indicate whether such Shares are held in certificates or uncertificated
form.
2. Shareholder
Services. PFPC
shall respond as appropriate to all inquiries and communications from
Shareholders relating to Shareholder accounts with respect to its duties
hereunder and as may be from time to time mutually agreed upon between PFPC
and
the Fund.
3. Share
Certificates.
(a) At
the
expense of the Fund, the Fund shall supply PFPC with an adequate supply of
blank
share certificates to meet PFPC requirements therefor. Such Share certificates
shall be properly signed by facsimile. The Fund agrees that, notwithstanding
the
death, resignation, or removal of any officer of the Fund whose signature
appears on such certificates, PFPC or its agent may continue to countersign
certificates which bear such signatures until otherwise directed by Written
Instructions.
(b) PFPC
shall issue replacement Share certificates in lieu of certificates which
have
been lost, stolen or destroyed, upon receipt by PFPC of properly executed
affidavits and lost certificate bonds, in form satisfactory to PFPC, with
the
Fund and PFPC as obligees under the bond.
(c) PFPC
shall also maintain a record of each certificate issued, the number of Shares
represented thereby and the Shareholder of record. With respect to Shares
held
in open accounts or uncertificated form (i.e., no certificate being issued
with
respect thereto) PFPC shall maintain comparable records of the Shareholders
thereof, including their names, addresses and taxpayer identification. PFPC
shall further maintain a stop transfer record on lost and/or replaced
certificates.
4. Mailing
Communications to Shareholders; Proxy Materials.
PFPC
will address and mail to Shareholders of the Fund, all reports to Shareholders,
dividend and distribution notices and proxy material for the Fund's meetings
of
Shareholders. In connection with meetings of Shareholders, PFPC will prepare
Shareholder lists, mail and certify as to the mailing of proxy materials,
process and tabulate returned proxy cards, report on proxies voted prior
to
meetings, act as inspector of election at meetings and certify Shares voted
at
meetings.
- -
2005
Xxxxxxx Restated TA Agr Dft2 (redline).doc
5. Sales
of Shares.
(a) PFPC
shall not be required to issue any Shares of the Fund where it has received
a
Written Instruction from the Fund or official notice from any appropriate
authority that the sale of the Shares of the Fund has been suspended or
discontinued. The existence of such Written Instructions or such official
notice
shall be conclusive evidence of the right of PFPC to rely on such Written
Instructions or official notice.
(b) In
the
event that any check or other order for the payment of money is returned
unpaid
for any reason, PFPC will endeavor to: (i) give prompt notice of such return
to
the Fund or its designee; (ii) place a stop transfer order against all Shares
issued as a result of such check or order; and (iii) take such actions as
PFPC
may from time to time deem appropriate.
6. Transfer
and Repurchase.
(a) PFPC
shall process all requests to transfer or redeem Shares in accordance with
the
transfer or repurchase procedures set forth in the Fund's
Prospectus.
(b) PFPC
will
transfer or repurchase Shares upon receipt of Oral or Written Instructions
or
otherwise pursuant to the Prospectus and Share certificates, if any, properly
endorsed for transfer or redemption, accompanied by such documents as PFPC
reasonably may deem necessary.
(c) PFPC
reserves the right to refuse to transfer or repurchase Shares until it is
satisfied that the endorsement on the instructions is valid and genuine.
PFPC
also reserves the right to refuse to transfer or repurchase Shares until
it is
satisfied that the requested transfer or repurchase is legally authorized,
and
it shall incur no liability for the refusal, in good faith, to make transfers
or
repurchases which PFPC, in its good judgement, deems improper or unauthorized,
or until it is reasonably satisfied that there is no basis to any claims
adverse
to such transfer or repurchase.
(d) When
Shares are redeemed, PFPC shall, upon receipt of the instructions and documents
in proper form, deliver to the Custodian and the Fund or its designee a
notification setting forth the number of Shares to be repurchased. Such
repurchased shares shall be reflected on appropriate accounts maintained
by PFPC
reflecting outstanding Shares of the Fund and Shares attributed to individual
accounts.
(e) PFPC
shall upon receipt of the monies provided to it by the Custodian for the
repurchase of Shares, pay such monies as are received from the Custodian,
all in
accordance with the procedures described in the written instruction received
by
PFPC from the Fund.
(f) PFPC
shall not process or effect any repurchase with respect to Shares of the
Fund
after receipt by PFPC or its agent of notification of the suspension of the
determination of the net asset value of the Fund.
7. Dividends.
(a) Upon
the
declaration of each dividend and each capital gains distribution by the Board
of
Directors of the Fund with respect to Shares of the Fund, the Fund shall
furnish
or cause to be furnished to PFPC Written Instructions setting forth the date
of
the declaration of such dividend or distribution, the ex-dividend date, the
date
of payment thereof, the record date as of which Shareholders entitled to
payment
shall be determined, the amount payable per Share to the Shareholders of
record
as of that date, the total amount payable on the payment date and whether
such
dividend or distribution is to be paid in Shares at net asset
value.
(b) On
or
before the payment date specified in such resolution of the Board of Directors,
the Fund will provide PFPC with sufficient cash to make payment to the
Shareholders of record as of such payment date.
(c) If
PFPC
does not receive sufficient cash from the Fund to make total dividend and/or
distribution payments to all Shareholders of the Fund as of the record date,
PFPC will, upon notifying the Fund, withhold payment to all Shareholders
of
record as of the record date until sufficient cash is provided to PFPC.
8. Retirement
Plans.
(a) 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
Fund’s shareholders (the “Participants”) are invested solely in Shares of the
Fund, PFPC shall provide the following administrative services:
|
(i)
|
Establish
a record of types and reasons for distributions (i.e., attainment
of age
59-1/2, disability, death, return of excess contributions,
etc.);
|
|
(ii)
|
Record
method of distribution requested and/or
made;
|
|
(iii)
|
Receive
and process designation of the beneficiary
forms;
|
|
(iv)
|
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;
|
|
(v)
|
Prepare
any annual reports or returns required to be prepared and/or filed
by a
custodian of an XXX, 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
|
|
(vi)
|
Perform
applicable federal withholding and send Participants/Beneficiaries
an
annual TEFRA notice regarding required federal tax
withholding.
|
(b) PFPC
shall arrange for PFPC Trust Company to serve as custodian for the Retirement
Plans sponsored by the Fund.
(c) With
respect to the Retirement Plans, PFPC shall provide the Fund with the associated
Retirement 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.
9. Payment
of Distributions. PFPC
may
facilitate the payment of distributions from the Fund which are made by check
(“Distributions”) through the “IPS Official Check” program. “IPS Official Check”
is a product and service provided by Integrated Payment Systems (“IPS”). IPS is
licensed and regulated as an “issuer of payment instruments”. In the event the
IPS Official Check program is utilized, funds used to cover such Distributions
shall be forwarded to and held by IPS. IPS may invest such funds while awaiting
presentment of items for payment and share with PFPC, the benefit of the
revenue
generated from its investment practices. In return the services provided
by IPS,
IPS imposes a per item charge which is treated as an “out-of-pocket expense
which is charged to the Fund by PFPC.
10. 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 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 the some or all such services.
|
(a)
|
documentation
of electronic search policies and
procedures;
|
|
(b)
|
execution
of required searches;
|
|
(c)
|
creation
and mailing of confirmation
letters;
|
|
(d)
|
taking
receipt of returned verification
forms;
|
|
(e)
|
providing
confirmed address corrections in batch via electronic
media;
|
|
(f)
|
tracking
results and maintaining data sufficient to comply with the Lost
Shareholder Rules; and
|
|
(g)
|
preparation
and submission of data required under the Lost Shareholder
Rules.
|
11. Escheatment.
In
connection with the Fund’s escheatment obligations and the procedures
established from time to time by the parties, PFPC shall perform the services
more fully described in the attached Exhibit 2 of Schedule B. The Fund hereby
instructs PFPC to engage Xxxxx Tracers, Inc. in connection with the escheatment
process. It being understood that PFPC shall be responsible for the performance
by Xxxxx Tracers, Inc. of all such escheatment services.
12. Voice
Response Unit.
PFPC
shall operate and maintain a touch-tone based interactive voice response
application allowing Shareholders to perform those of the following
tasks:
|
(a)
|
Account
Balance;
|
|
(b)
|
Transaction
History;
|
|
(c)
|
Year
to date statement order
fulfillment;
|
|
(d)
|
Order
duplicate tax forms;
|
|
(e)
|
Checkbook
order;
|
|
(f)
|
Obtain
Portfolio prices;
|
|
(g)
|
Obtain
dividend rate information; and
|
(h) Capital
gain rate information.
13. Compliance
Policies and Procedures.
To
assist the Fund in complying with Rule 38a-1 under the 1940 Act, PFPC represents
that it has (i) adopted written policies and procedures that are reasonably
designed to prevent violations of the federal securities laws in PFPC’s
fulfilling its obligations under this Agreement, (ii) a compliance program
in
place to monitor its compliance with those policies and procedures, (iii)
designate a chief compliance officer to be responsible for administering
those
policies and procedures, and (iv) reviewed, and periodically reviews, those
policies and procedures for their continued adequacy and effectiveness. PFPC
further agrees that it will, annually and at such other frequency as reasonably
requested by the Fund, provide to the Fund a certificate as to the continuing
accuracy of the foregoing representation and such other certifications regarding
PFPC’s compliance program as the Fund and PFPC shall mutually agree. PFPC shall
provide the Fund with copies of periodic reports setting forth material changes
in PFPC’s compliance program and shall provide such other information as the
Fund may reasonably request in connection with PFPC’s compliance
program.
14. Cost
Basis Accounting.
PFPC
shall perform cost basis accounting services for applicable Shareholders
utilizing PFPC’s Cost Basis Accounting System (CBA) in accordance with this
Section 15(n). CBA calculates the capital gains or losses realized by
Shareholders on their mutual fund redemption activity. The gain/loss amount
for
each redemption transaction is calculated by comparing the proceeds received
by
the Shareholder on the sale of shares against the cost value attributed to
those
shares. PFPC employs First-In/First-Out, Single Category Average Cost Accounting
to calculate gains and losses. Cost basis figures are provided to shareholders
on the 1099-B tax form.
15. Anti-Money
Laundering.
PFPC
shall perform reasonable actions necessary to help the Fund be in compliance
with United States Federal anti-money laundering (“AML”) laws applicable to
investor activity, including without limitation the Bank Secrecy Act and
the
Patriot Act, as follows: PFPC shall: (a) establish and implement written
internal policies, procedures and controls reasonably designed to detect
and
help prevent the 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 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 the Fund, PFPC shall provide to the Fund: (w) 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);
(x)
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;
(y) a summary of the AML training provided for appropriate personnel; and
(z) a
certificate regarding PFPC’s AML program, the name of its designated compliance
officer, a brief description of the audit process, a brief description of
the
employee training program and periodic statistical summary reports of PFPC’s AML
monitoring on behalf of the Funds. 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. The parties acknowledge
the provisions herein do not apply to Section 326 of the USA PATRIOT Act
(or
other sections other than Section 352 regarding anti-money laundering programs)
or regulations promulgated thereunder.
16. Customer
Identification Program (“CIP”) Services.
(a) To
help
the Fund comply with its Customer Identification Program (which the 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 the 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 the Fund about measures taken under (i)-(iii) above.
(v) If
PFPC
provides services by which prospective Customers may subscribe for shares
in the
Fund via the Internet or telephone, work with the Fund to notify prospective
Customers, consistent with 31 CFR 103.(b)(5), about the 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 or limiting the scope of
the
express language above, PFPC will only be required to collect the Data Elements
for (or verify) prospective Customers (or accounts) as required by the USA
Patriot Act and any relevant regulations promulgated there under (for example,
PFPC will not verify customers opening accounts through NSCC).
(c) The
Fund
hereby represents and warrants that each of the funds serviced by PFPC, and
each
legal entity of which such fund is a part, has, and will at all times during
which this Agreement is in effect maintain in place, a written agreement
with
each such other fund and entities, under which all such parties may rely
upon
the Customer Identification Programs of any other with respect to prospective
investors who are then existing customers of such other. Given such policy,
PFPC
need not perform steps (A)-(F) above with respect to any subscriber who is
then
a customer of any other fund within the same “fund family” as the
Fund.”
17. Government
List Restriction Screening.
In
connection with the U.S. Treasury Department’s Office of Foreign Assets Control
(“OFAC”) list of Specially Designated Nationals (“OFAC List”) and list of
countries which OFAC imposes sanctions (“Sanctioned Countries”, together with
the OFAC List, “Government Restrictions List”), PFPC shall:
(a) maintain
a database of SDNs and Sanctioned Countries (the “PFPC OFAC
Database”);
(b) update
the PFPC OFAC Database as OFAC issues updates to the Government Restrictions
List;
(c) on
a
daily basis, conduct a matching routine between PFPC OFAC Database and any
new
shareholder account or existing shareholder account that has had a change
to the
name or address fields:
(d) upon
receipt of OFAC updates to Government Restrictions List, conduct a matching
routine for all shareholder accounts;
(e) review
potential matches discovered in both the daily and full shareholder
processes;
(f) report
confirmed matches to OFAC, as required;
(g) unless
otherwise instructed by OFAC or restricted by law, inform the Fund in cases
where a confirmed match has been reported; and
(h) implement
any action, including but not limited to blocking an account and/or rejecting
a
transfer of funds, as PFPC or the Fund may determine to be necessary for
the
Fund to comply with the applicable Government Restriction List.
18. Blue
Sky
Services. The
Fund hereby
appoints PFPC to provide blue sky filing services for the Portfolios (and
classes thereof) for the period and on the terms set forth in this Agreement
and
PFPC accepts such appointment. In connection with the foregoing, the Fund
hereby
grants PFPC a limited power of attorney on behalf of the Fund and Portfolios
to
sign all blue sky filings and other related documents to effect the purpose
of
this Agreement. In connection with the foregoing:
(a) Delivery
of Documents.
The
Company
has or
will,
as
appropriate, timely furnish PFPC with copies of each of the
following:
(i) A
listing
of all jurisdictions in which each Portfolio (and class thereof) is lawfully
available for sale as of the date of this Agreement and in which the Company
desires PFPC to effect a blue sky filing;
(ii) The
Fund’s most recent Post-Effective Amendments with respect to each Portfolio
under the Securities Act of 1933 and under the 1940 Act as filed with the
Securities and Exchange Commission (the “SEC”) and all amendments thereto;
(iii) Upon
PFPC’s request, each Portfolio’s most recent prospectus and statement of
additional information and all amendments and supplements thereto (a
“Prospectus”);
(iv) All
Notices of Special Meetings of Shareholders and related Proxy materials which
propose the merger, reorganization or liquidation of a Portfolio; and
(v) copies
of
all amendments of or supplements to the foregoing, if any.
(b) Services
and Duties.
Subject
to the supervision and control of the Fund, PFPC will:
(i) Effect
and maintain, as the case may be, the qualification of shares of the respective
Portfolios for sale under the securities laws of the jurisdictions indicated
for
each Portfolio on Schedule A, as it may be amended from time to time;
and
(ii) File
with
each appropriate jurisdiction the applicable materials relating to the
Portfolios (or classes thereof) by the applicable filing deadline; provided
however, that the Company timely provides PFPC in advance of such filings
with
(x) the requisite number of copies of each document (i.e. definitive
prospectuses) requested by PFPC (to the extent such documents are required
to
effect the relevant filing) and (y) filing fees (as described in more detail
below); and
(iii) Convey
to
the Company any
comments received from the regulatory authorities with respect to such filings
and, if desired by the Company,
responding to such comments in such manner as authorized by the
Company.
Subject
to payment to PFPC in advance, PFPC will remit to the respective jurisdictions
the requisite filing fees for the shares of the relevant Portfolio(s) (or
classes thereof), and any fees for qualifying or continuing the qualification
of
any Portfolios(s) (or classes thereof). The Fund will, from time to time
as
specifically agreed between the parties, facilitate a wire transfer of funds
to
PFPC for the payment of the aforementioned filings fees promptly upon request
by
PFPC. PFPC will request the funds necessary for the payment of the filing
fees
in advance of the date the fees become due.
- -
2005
Xxxxxxx Restated TA Agr Dft2 (redline).doc
Exhibit
1 of Schedule B
Performance
Standards
Telephones
To
be
measured on a quarterly basis, minimum of 300 calls offered.
| · |
The
average speed of answering calls will be twenty (20) seconds or
less
|
| · |
The
abandonment rate for teleservicing calls will be five (5) percent
or less
(Calculation: calls abandoned over 20 seconds/calls
offered)
|
| · |
The
service level will be ninety-five percent (95%) or
higher
|
Processing
The
following standards will be met 95% of the time measured on a quarterly basis,
minimum 50 items per standard measured.
| · |
New
accounts in good order will be established on Transfer Agent system
on the
same day received
|
| · |
Shareholder
transactions in good order will be processed on Transfer Agent system
on
the same say received
|
| · |
Correspondence
will be completed within five (5) business days of
receipt
|
| · |
Maintenance
items in good order will be completed within five (5) business days
of
receipt
|
Print/Mail
The
following standards will be met 95% of the time measured on a quarterly basis,
minimum of 50 items per standard measured.
| · |
Daily
confirmations will be mailed to Shareholders on Trade Date plus two
(2)
business days
|
| · |
Check
requests will be mailed to Shareholders on Trade Date plus two (2)
business days
|
| · |
Quarterly
statements will be mailed to Shareholders within five (5) business
days
from quarter end
|
Penalties
The
penalty for missing the same standard in one (1) quarter is written
notice.
The
penalty for missing the same standard two (2) quarters in succession is 5%
reduction of PFPC’s quarterly fee for that service.
The
penalty for missing the same standard three (3) quarters in a rolling six
(6)
quarter period is 10% reduction in PFPC’s quarterly fee for that
service.
Measurement
of performance standards and associated penalties will commence after a one
(1)
quarter grace period.
- -
2005
Xxxxxxx Restated TA Agr Dft2 (redline).doc
Exhibit
2
of Schedule B
Escheatment
Process for Xxxxxxx Funds
I. Escheatment
Process for RPO Shareholder Accounts
Action
Description Responsibility
|
PFPC
|
Xxxxx
|
Fund
|
|
|
Prepare
and transmit RPO File to Xxxxx
|
X
|
||
|
Analysis
of escheatable RPO Shareholder Accounts
|
X
|
||
|
Prepare
spreadsheet of escheatable Shareholder Accounts and provide instructions
for state account set-up
|
X
|
||
|
Receive
spreadsheet & state account set up instructions
|
X
|
||
|
Review
and research spreadsheet to ensure Shareholder Account is still
in RPO
status and escheatable
|
X
|
X
|
|
|
Process
state new account set-ups, transfers and/or transfers and liquidations
|
X
|
||
|
Update
and approve final spreadsheet
|
X
|
X
|
|
|
Authorize
search firm to produce escheat reports
|
X
|
||
|
Prepare
escheat reports
|
X
|
||
|
Review
escheat reports
|
X
|
||
|
Match
transfer statements and/or checks to escheat reports for submission
to
states
|
X
|
||
|
Sign
and notarize escheat reports
|
X
|
||
|
Overnight
escheat reports to states
|
X
|
||
|
II. Escheatment
Process for Outstanding Manual (non-IPS) Checks and Prior Transfer
Agent
Checks (“o/s checks”)
|
PFPC
|
Xxxxx
|
Fund
|
|
Produce
o/s check spreadsheet or report, bi-annually
|
X
|
||
|
Submit
spreadsheet to Xxxxx bi-annually
|
X
|
||
|
Confirm
/ settle number of o/s checks received by search firm
|
X
|
||
|
Prepare
spreadsheet of escheatable o/s checks
|
X
|
||
|
Review
spreadsheet
|
X
|
X
|
|
|
Perform
'due diligence' mailings
|
X
|
||
|
Receive
responses to due diligence mailings/ reissue checks
|
X
|
||
|
Update
and approve final spreadsheet
|
X
|
X
|
|
|
Prepare
checks payable to states
|
X
|
||
|
Authorize
search firm to produce escheat reports
|
X
|
||
|
Prepare
escheat reports
|
X
|
||
|
Review
escheat reports
|
X
|
||
|
Match
checks to escheat reports
|
X
|
||
|
Sign
and notarize escheat reports
|
X
|
||
|
Overnight
escheat reports to states
|
X
|
||
