TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of April 3, 2006 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and Premier VIT, a Massachusetts business
trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act; and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT.
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "1940 Act" means the Investment Company Act of 1940, as amended.
(d) "Authorized Person" means any officer of the Fund and any other person
duly authorized by the Fund's Board of Trustees (the "Board") to give
Oral Instructions and Written Instructions on behalf of the Fund. An
Authorized Person's scope of authority may be limited by setting forth
such limitation in a written document signed by both parties hereto.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "Custodian" shall mean State Street Bank and Trust Company, or any
successor thereto duly authorized. (g) "Declaration of Trust" means the
declaration of trust of the Fund, as amended from time to time. (f)
"Oral Instructions" mean oral instructions addressed to and received by
PFPC from an Authorized Person or from a person reasonably believed by
PFPC to be an Authorized Person.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and the
CEA.
(i) "Shares" mean the shares of beneficial interest of any Portfolio or
class of the Fund.
(j) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and addressed to 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, electronic mail, tested telegram, cable, telex or facsimile
sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to the Fund
in accordance with the terms set forth in this Agreement. PFPC accepts such
appointment and agrees to furnish such services.
3. COMPLIANCE WITH LAWS, RULES, REGULATIONS AND GOVERNING DOCUMENTS.
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(a) 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 the Fund or any
other entity. In addition and subject to Section 22(b) hereof, PFPC
shall act in accordance with the Fund's Declaration of Trust, by-laws,
and registration statement, as supplemented and amended from time to
time, on file with the SEC (the "Registration Statement"), with the
policies and procedures adopted by the Board, and with the instructions
of the Board.
(b) PFPC acknowledges the Fund's obligations under Rule 22c-2 of the 1940
Act, as amended ("Rule 22c-2"), and agrees, upon request of the Fund,
to facilitate, in a manner mutually acceptable to the parties, the
compilation of customer identification and transaction data provided
from time to time by the Fund's "Financial Intermediaries" (as that
term is defined by Rule 22c-2).
4. INSTRUCTIONS AND RIGHT TO RECEIVE ADVICE.
(a) PFPC will have no liability when acting upon Written or Oral
Instructions in accordance with the standard of care set forth in
Section 12 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.
(b) 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 or on behalf of the Fund. 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 at its own cost from
counsel of its own choosing (who may be counsel for the Fund, the
Fund's investment adviser or PFPC,
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at the option of PFPC). In the event of a conflict between directions
or advice or Oral Instructions or Written Instructions PFPC receives
from or on behalf of the Fund, and the advice it receives from counsel
pursuant to the immediately preceding sentence, PFPC may rely upon and
follow the advice of counsel. PFPC shall not be liable for any action
taken or not taken or suffered by it in good faith in accordance with
such Written Instructions or in accordance with the written opinion of
counsel for the Fund or for PFPC and which PFPC believes, in good
faith, to be consistent with those directions or advice or Oral
Instructions or Written Instructions. Written Instructions requested by
PFPC will be provided by the Fund within a reasonable period of time.
(c) PFPC, its officers, agents or employees, shall accept Oral Instructions
or Written Instructions. 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 or obligation to rely on Oral
Instructions.
5. RECORDS.
(a) PFPC shall create and maintain all records required of it pursuant to
its duties hereunder, including records required by Section 31(a) of
the 1940 Act and in accordance with all applicable laws, rules and
regulations. 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. Such books and records shall, to the extent practicable, be
maintained separately for each Portfolio.
(b) PFPC agrees that the books and records of the Fund, including, without
limitation, all records required by Section 31 of the 1940 Act prepared
or maintained by PFPC relating to the services to be performed by PFPC
hereunder, are the property of the Fund and will
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be preserved, maintained and made available by PFPC in accordance with
such section, and will be surrendered promptly to the Fund on and in
accordance with the Fund's request. The Fund, Authorized Persons and
the Fund's authorized representatives shall have access to such books
and records at all times during PFPC's normal business hours. Upon the
request of the Fund, copies of any such books and records shall be
provided by PFPC to the Fund or to an authorized representative of the
Fund, in such format as requested by the Fund, at the reasonable
expense of the Fund.
(c) In case of any requests or demands for the inspection of Shareholder
records of the Fund, PFPC will use its best efforts 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
(as contemplated by Section 4(b) hereof) in writing that it may be held
liable for the failure to comply with such request and shall promptly
notify the Fund of any such action and advice.
6. CONFIDENTIALITY.
(a) Each party shall keep confidential any information relating to the
other party's business ("Confidential Information"). Confidential
Information shall include:
(i) any data or information that is competitively sensitive
material, and not generally known to the public, including,
but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business
plans, and internal performance results relating to the past,
present or future business activities of the Fund or PFPC,
their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them;
(ii) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially
valuable and secret in the sense that its
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confidentiality affords the Fund 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) PFPC understands and agrees: (i) that the Funds' "Confidential
Portfolio Information" is the confidential property of the Funds and
may not be used for any purpose except in connection with the provision
of services to the Funds and, in particular, such information may not
be traded upon by PFPC or any of its employees; (ii) to limit access to
non-public portfolio holdings information to PFPC's employees and
agents who are subject to a duty to keep and treat such information as
confidential; and (iii) that upon written request from the Fund, PFPC
shall promptly return or destroy the non-public portfolio holdings
information.
(c) Notwithstanding the foregoing, information shall not be Confidential
Information and shall not be subject to such confidentiality
obligations if it:
(i) is already known to the receiving party at the time it is
obtained;
(ii) is or becomes publicly known or available through no wrongful
act of the receiving party;
(iii) is rightfully received from a third party who, to the best of
the receiving party's knowledge, is not under a duty of
confidentiality;
(iv) is, to the actual knowledge of the receiving party, released
by the protected party to a third party (other than under the
circumstances described in clauses (v) or (vi), but with
respect to the protected party) without restriction;
(v) is required to be disclosed by the receiving party pursuant to
the requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the
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receiving party will provide the other party written notice of
the same, to the extent such notice is permitted);
(vi) is relevant and material to the defense of any claim or cause
of action asserted against the receiving party;
(vii) is necessary for the receiving party to release such
information in connection with the provision of services under
this Agreement; or
(viii) has been or is independently developed or obtained by the
receiving party.
7. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in
the performance of its obligations under this Agreement to ensure that
the necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
8. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
proprietary data base formats, 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. Notwithstanding the foregoing, the parties
acknowledge that the Fund shall retain all ownership rights in Fund
data which resides on the PFPC System.
9. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of
equipment failures, PFPC shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. PFPC shall
have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided
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such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties
or obligations under this Agreement.
10. COMPENSATION.
(a) As compensation for services rendered by PFPC during the term of this
Agreement, the Fund will pay to PFPC a fee or fees as may be agreed to
from time to time in writing by the Fund and PFPC. In addition, the
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 with a bank, currently Mellon Trust of New
England, N.A. ("Mellon") certain cash management accounts ("Service
Accounts") required for PFPC to provide services under this Agreement.
The Fund acknowledges that (i) PFPC and 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; (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 Mellon ;
(iii) Balance Credits will be calculated by PFPC and applied toward the
Fund's Banking Service Fees regardless of the Service Account
aforementioned balance sweep; and (iv) PFPC shall retain any excess
Balance Credits for its own use, which may include reducing PFPC's
overall invoice from Mellon.
(c) PFPC represents and warrants that (i) the terms of this Agreement, (ii)
the fees and expenses associated with this Agreement, and (iii) any
benefits accruing to PFPC or its affiliates in connection with this
Agreement are set forth in full in this
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Agreement and the applicable fee letter executed by the Fund and PFPC.
The undersigned officer of the Fund represents and warrants that a true
and complete copy of this Agreement has been provided to the Board.
PFPC and the undersigned officer of the Fund represent and warrant that
the Fund's investment advisor (the "Investment Adviser") and its
affiliates have derived no benefits from PFPC relating to 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 the Investment Adviser or any of
its affiliates.
11. INDEMNIFICATION.
(a) The Fund agrees to indemnify, defend 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:
(i) any actions of PFPC required to be taken pursuant to this
Agreement unless such Claim resulted from a negligent act or
omission to act or bad faith by PFPC in the performance of its
duties hereunder;
(ii) 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;
(iii) the non-negligent reliance on, or the non-negligent
implementation of, any Written or Oral Instructions or any
other instructions or requests of the Fund on behalf of the
applicable Portfolio;
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(iv) 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
(v) the Fund's refusal or failure to comply with the terms of this
Agreement, or any Claim which arises solely out of the Fund's
negligence or misconduct or the breach of any representation
or warranty of the Fund made herein;
provided that in each case in which indemnification is sought PFPC has
not acted contrary to the standard of care set forth in Section 12(a)
of this Agreement, and no indemnification of under this clause (a)
shall exist for any liability arising out of PFPC's willful
misfeasance, bad faith or negligence in the performance of its duties
or any breach by PFPC of any representation, warranty or covenant of
PFPC contained in this Agreement. The obligations hereunder with
respect to any Portfolio shall be the several, and not joint or joint
and several, obligations of such Portfolio.
(b) PFPC agrees to indemnify, defend and hold harmless the Fund and its
affiliates, including its and their respective officers, trustees,
directors and employees, from all Claims arising directly or indirectly
out of PFPC's willful misfeasance, bad faith or negligence in the
performance of its duties or any breach by PFPC of any representation,
warranty or covenant of PFPC contained in this Agreement
(c) In any case in which either party (the "Indemnifying Party") may be
asked to indemnify or hold the other (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, except that the failure of the
Indemnified Party to so notify the Indemnifying Party will relieve
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the Indemnifying Party of its indemnity obligation with respect to the
action to the extent that such omission results in the forfeiture of
substantive rights or defenses by the Indemnifying Party. In addition,
the Indemnified Party 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 reasonably
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.
(d) Any claim for indemnification under this Agreement must be made prior
to the later of:
(i) one year after the Indemnified Party becomes aware of the
event for which indemnification is claimed; or
(ii) one year after the earlier of the termination of this
Agreement or the expiration of the term of this Agreement.
(e) Except for remedies that cannot be waived as a matter of law (and
injunctive or provisional relief), the provisions of this Section 11
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 Section 11 may apply.
(f) The provision of this Section 11 shall survive termination of this
Agreement.
12. STANDARD OF CARE.
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(a) PFPC shall at all times act in good faith and agrees to use its best
efforts 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 breach of a representation,
warranty or covenant or own negligence, bad faith or willful misconduct
or that of its employees or its agents.
(b) Notwithstanding any provision in this Agreement to the contrary, PFPC's
cumulative liability (to the Fund) for all losses, claims, suits,
controversies, breaches, or damages for any cause whatsoever (including
but not limited to those arising out of or related to this Agreement)
and regardless of the form of action or legal theory shall not exceed
(i) the fees received by PFPC for services provided under this
Agreement during the twelve months immediately prior to the date of
such loss or damage; or (ii) if this Agreement has not been in effect
for twelve months, $2,000,000. The Fund understands the limitation on
PFPC's damages to be a reasonable allocation of risk and the Fund
expressly consents with respect to such allocation of risk. In
allocating risk under the Agreement, the parties agree that the damage
limitation set forth above shall apply to any alternative remedy
ordered by a court in the event such court determines that sole and
exclusive remedy provided for in the Agreement fails of its essential
purpose.
(c) Any costs or losses incurred by the Fund for the processing of any
purchase, redemption, exchange or other share transactions at a price
per share other than the price per share applicable to the effective
date of the transaction as provided by the Fund (the foregoing being
generally referred to herein as "as of" transactions) will be handled
in the following manner:
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(i) For each calendar year, if all "as of " transactions for the
year that are a result of incorrect processing by PFPC, taken
in the aggregate, result in a net loss to the Fund ("net
loss"), PFPC will reimburse the Fund for such net loss within
30 days after the end of such calendar year. However, if at
any time during any calendar year, all "as of " transactions,
taken in the aggregate, result in a net loss to the Fund in
excess of $50,000, PFPC will immediately reimburse the Fund
for such net loss. In either case, PFPC's obligation to
reimburse the Fund will be reduced or eliminated with the
application of a "net benefit" to the Fund carried over from
prior calendar years pursuant to sub-paragraph (ii)
immediately below.
(ii) For each calendar year, if all "as of" transactions for the
year that are a result of incorrect processing by PFPC, taken
in the aggregate, result in a net benefit to the Fund ("net
benefit"), the Fund shall not reimburse PFPC for the amount of
such net benefit; however, any "net benefit" for any calendar
year may be used to offset, in whole or in part, any "net
loss" suffered by the Fund in any future calendar year so as
to reduce the amount by which PFPC shall be required to
reimburse the Fund for such "net loss" in such year pursuant
to sub-paragraph (i) immediately above.
(iii) Any "net loss" for which PFPC reimburses the Fund in any
calendar year shall not be carried over into future years so
as to offset any "net benefit" in such future years.
(d) Each party shall have the duty to mitigate damages for which the other
party may become responsible.
(e) PFPC shall maintain an insurance policy or surety bond, in the face
amount of $10 million per covered transaction against losses suffered
by PFPC in excess of the policy deductibles arising from errors or
omissions on the part of PFPC in carrying out its responsibilities
under this Agreement. PFPC shall furnish promptly to the Fund copies of
all insurance policies maintained pursuant to this Section 12(d) that
have not previously been furnished to the Fund. PFPC shall direct its
insurers to provide the Fund with at least 30 days' written notice of
any cancellation of any policy maintained to satisfy this Section
12(d). In addition, PFPC shall promptly provide the Fund with a copy of
any amendment of any such policy.
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(f) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT
SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS,
TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE TO
THE OTHER UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER
LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE,
SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH
IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER
SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(g) The provisions of this Section 12 shall survive termination of this
Agreement.
13. REPRESENTATIONS AND WARRANTIES.
(a) PFPC represents and warrants to the Fund that:
(i) it is a corporation duly organized, existing and in good
standing under the laws of the Commonwealth of Massachusetts;
(ii) it is empowered under applicable laws and by its Articles of
Incorporation and By-Laws to enter into and perform this
Agreement;
(iii) all requisite corporate proceedings have been taken to
authorize it to enter into this Agreement;
(iv) 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 and agrees that it
will promptly notify the Fund in the event of any change in
its status as a registered transfer agent;
(v) it has and will continue to have access to the necessary
facilities, equipment and personnel to perform its duties and
obligations under this Agreement; and
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(b) The Fund represents and warrants to PFPC that:
(i) it is duly formed, validly existing and in good standing under
the laws of the jurisdiction in which it is formed;
(ii) it is empowered under applicable laws and by its Declaration
of Trust and By-Laws to enter into this Agreement;
(iii) all proceedings required by said Declaration of Trust, By-Laws
and applicable laws have been taken to authorize it to enter
into this Agreement;
(iv) 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
Fund being offered for sale; and
(v) 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 Declaration of Trust
and its Prospectus with respect to each Portfolio, such Shares
shall be validly issued, fully paid and non-assessable.
14. FORCE MAJEURE.
(a) 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; or (iv) nonperformance by a third party
or any similar cause beyond the reasonable control of such party,
provided that such third party is not a subcontractor engaged by PFPC
as provided in Section 22(b). 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 its best efforts to recommence
performance or observance as soon as practicable.
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15. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Maintain shareholder registrations;
(ii) Direct payment processing of checks or wires;
(iii) Prepare and certify stockholder lists in conjunction with
proxy solicitations;
(iv) Provide periodic shareholder lists and statistics to the Fund;
(v) Perform other participating broker-dealer shareholder services
as may be agreed upon from time to time;
(vi) Accept and post daily Share purchases and redemptions; and
(vii) Accept, post and perform shareholder transfers and exchanges.
(b) Purchase of Shares. PFPC shall issue and credit an account of an
investor, in the manner described in the Fund's prospectus, once it
receives:
(i) A purchase order in completed proper form;
(ii) Proper information to establish a shareholder account; and
(iii) Confirmation of receipt or crediting of funds for such order
to the 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 the Fund's prospectus, 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 reasonably satisfied that the endorsement on the
instructions is valid and genuine and that the requested
transfer or redemption is legally authorized, and it shall
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incur no liability for the reasonable 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 the Custodian
and the 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 the applicable Portfolio of
the 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 the
Fund.
(v) When a broker-dealer notifies PFPC of a redemption desired by
a customer, and the Custodian provides PFPC with a check or
the Service Account Custodian with funds, PFPC shall prepare
and send the redemption check to the broker-dealer and made
payable to the broker-dealer on behalf of its customer, unless
otherwise instructed in writing by the broker-dealer.
(vi) PFPC shall not process or effect any redemption requests with
respect to Shares of any Portfolio of the Fund after receipt
by PFPC or its agent of notification of the suspension of the
determination of the net asset value of such Portfolio.
(d) Dividends and Distributions. Upon a resolution of the Board authorizing
the declaration and payment of dividends and distributions and Written
Instructions to PFPC, PFPC shall
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issue dividends and distributions declared by the Fund in Shares, or,
upon shareholder election, pay such dividends and distributions in
cash, if provided for in the Fund's prospectus. Such issuance or
payment, as well as payments upon redemption as described above, shall
be made after deduction and payment of the required amount of funds to
be withheld in accordance with any applicable tax laws or other laws,
rules or regulations.
(e) Shareholder Account Services.
(i) PFPC may arrange, in accordance with the prospectus, for
issuance of Shares obtained through direct purchases through
broker wire orders, checks and applications.
(ii) PFPC may arrange, in accordance with the prospectus, for a
shareholder's exchange of Shares for shares of another
Portfolio with which the Fund has exchange privileges.
(f) 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 from the initial date of service under this Agreement
forward;
(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
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by this Agreement.
(g) Shareholder Inspection of Stock Records. Upon a request from any
Portfolio shareholder to inspect share records, PFPC will notify the
Fund and the Fund will issue instructions granting or denying each such
request. Unless PFPC has acted contrary to the Fund's instructions, the
Fund agrees to and does hereby release PFPC from any liability for
refusal of permission for a particular shareholder to inspect the
Portfolio's stock records.
(h) 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.
(i) Proxy Advantage. The Fund hereby engages PFPC as its exclusive proxy
solicitation service provider with respect to those items and for such
fees to PFPC as may reasonably be agreed to from time to time in
writing by the Fund. If so agreed from time to time in writing by the
Fund and PFPC, such services may include mailing proxy statements and
proxy cards to shareholders. If no such agreement is reached, the Fund
may nevertheless retain other proxy solicitation agents.
19
16. 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 non-public personal information of
investors in the 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.
17. ANTI-MONEY LAUNDERING. PFPC shall perform reasonable actions necessary
for the Fund to be in compliance with the United States federal
anti-money laundering ("AML") laws applicable to investor activity,
including, without limitation, to the extent applicable, the Bank
Secrecy Act and the USA PATRIOT Act of 2001. In this regard, PFPC
shall: (a) establish and implement written policies, procedures and
internal controls reasonably designed to 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 AML 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. PFPC shall provide to the 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
20
provided for appropriate PFPC personnel. PFPC agrees to permit
inspections relating to PFPC's AML program by United States 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 PFPC's AML program as
such examiners shall reasonably request.
18. 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 any Portfolio are not
established unless PFPC has obtained the name, date of birth (for
natural persons only), address and government-issued identification
number or any other government-issued document evidencing nationality
or residence (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).
21
(iii) Record the Data Elements and maintain records relating to verification
of new Customers consistent with 31 CFR 103.131(b)(3).
(iv) Determine whether any Customer's name appears on a list of known or
suspected terrorists or terrorist organizations designated by the
Department of the Treasury, if any, consistent with 31 CFR
103.131(b)(4).
(v) Regularly report to the Fund about measures taken under (i)-(iv) above.
(vi) 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.
(vii) Annually, or upon the Fund's reasonable request, certify that PFPC
continues to implement the duties set forth in this Section 18(a).
(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, unless and until
requirements change to require the same, PFPC will not verify customers
opening accounts through NSCC) and PFPC need not perform any task that
need not be performed for the 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 of
a Portfolio via exchange privileges with other Portfolios.
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
five (5) years (the "Initial Term").
22
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of three (3) 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 ninety (90) days prior to the expiration of the Initial Term or
the then current Renewal Term.
(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 the Fund.
(d) In the event that PFPC has failed to meet a specific performance
standard category, as set forth in Exhibit B, in four of any rolling
six one-month periods, the Fund may give written notice thereof to
PFPC, and if such failure shall not have been remedied within thirty
(30) days after such written notice is received, then the Fund may
terminate this Agreement without penalty by giving not less than thirty
(30) days written notice of such termination to PFPC. Notwithstanding
the foregoing, the Fund's rights under this Section 19(d), shall not
become effective until ninety (90) days after the commencement of the
services by PFPC hereunder. Unless the Fund provides PFPC with notice
of the Fund's intent to exercise this option within 60 days of its
becoming aware of the occurrence of the applicable failure, the Fund
shall have waived its option to terminate under this provision. In the
event that the Fund terminates this Agreement pursuant to this Section
19(d), such termination of this Agreement shall not constitute a waiver
by the Fund of any other rights it might have under this Agreement or
otherwise against PFPC.
(e) 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
23
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Party may terminate this Agreement by
giving not less than 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.
(f) Notwithstanding anything contained in this Agreement to the contrary,
should a merger, acquisition, change in control, re-structuring,
re-organization or any other decision:
(i) involving the Fund or any affiliate (as defined under the 0000
Xxx) of the Fund result in the 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 prompt
conversion of services to the 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 the Fund. In connection with the
foregoing and prior to such conversion to the successor
service provider, if the successor service provider is not an
affiliate of PFPC 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.
(ii) result in a change of control of greater than 50% of the
beneficial ownership of the
24
shares of beneficial interest of PFPC, other than any such
change of control where the Board determines that the
successor entity has similar financial standing and ability to
provide services hereunder as PFPC and is not engaged in
transactions, claims or litigation directly adverse to the
Adviser, the Fund may terminate this Agreement without penalty
upon not less than thirty (30) days written notice.
(g) Notwithstanding anything contained in this Agreement to the contrary,
if PFPC files a petition for bankruptcy or receivership or has a
materially impaired financial condition which impairs PFPC's ability to
perform the services set forth in this Agreement or admits in writing
its inability to pay its debts as they become due, or has a significant
regulatory problem which impairs PFPC's ability to perform the services
set forth in this Agreement or is the subject of a significant
regulatory investigation which prohibits PFPC from performing the
services set forth in this Agreement, and, the Board determines in the
exercise of its fiduciary obligations that such event materially
impairs PFPC's ability to perform its obligations under this Agreement
or jeopardizes the Fund in any material manner, or if PFPC fails or
ceases to be registered with the appropriate regulatory agencies as a
transfer agent, then the Fund may terminate this Agreement without
penalty upon written notice to PFPC, provided that all reasonable
expenses (which shall not be deemed a penalty) associated with movement
or duplication of records and materials, deconversion and conversion to
a successor or other service provider incurred by PFPC will be borne by
the Fund.
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 Fund in writing); (b) if to the
Fund, at c/o OpCap Advisors, 1345 Avenue of
00
xxx Xxxxxxxx, Xxx Xxxx, XX 00000-0000 , Attention: President or (c) if
to either of the foregoing, at such other address as shall have been
given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed
to have been given immediately. If notice is sent by first-class mail,
it shall be deemed to have been given three days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
21. AMENDMENTS. This Agreement, or any term hereof, 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 AND SUB-CONTRACTING.
(a) PFPC may assign its rights and delegate its duties hereunder to any
majority-owned direct or indirect subsidiary of PFPC or of The PNC
Financial Services Group, Inc., provided that PFPC gives the Fund
thirty (30) days prior written notice of such assignment or delegation.
(b) PFPC may engage the services of sub-contractors to perform certain
services to be provided by PFPC hereunder, provided however, it is
agreed that prior to engaging any sub-contractor to perform any of the
core transfer agent functions or other material Service described
herein, PFPC will seek prior approval from the Fund which approval will
not be unreasonably withheld or delayed. The services that PFPC
currently intends to subcontract, and the names of the intended
sub-contractors are set forth in Exhibit C hereto.
23. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of
26
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.
(b) No Changes that Materially Affect Obligations. Notwithstanding anything
in this Agreement to the contrary, the Fund agrees that no
modifications to its registration statement and no policies it adopts
will 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. The Fund will provide such information and documentation
as PFPC may reasonably request in connection with services provided by
PFPC to the Fund.
(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
27
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, PFPC hereby disclaims all representations and warranties,
express or implied, made to the Fund or any other person, including,
without limitation, any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of trade), of
any services or any goods provided incidental to services provided
under this Agreement. PFPC disclaims any warranty of title or
non-infringement except as otherwise set forth in this Agreement.
(i) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(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) 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.
28
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:
-----------------------------------
Title: Executive Vice President
Senior Managing Director
Premier VIT
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Title: President & CEO
29
EXHIBIT A
THIS EXHIBIT A, dated as of April 3, 2006, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of April 3, 2006, between PFPC Inc.
and Premier VIT.
PORTFOLIOS
OpCap Equity Portfolio
OpCap Small Cap Portfolio
OpCap Managed Portfolio
OpCap Global Equity Portfolio
OpCap Renaissance Portfolio
OpCap Balanced Portfolio
OpCap Mid Cap Portfolio
NFJ Dividend Value Portfolio
30
EXHIBIT B
---------
PERFORMANCE STANDARDS
PFPC will use a statistical sampling as a percentage of transactions processed
through the transaction processing and quality control units of PFPC providing
services to the Fund and PFPC will track and report to the Fund on the accuracy
of the transactions processed. Examining the sampling against predetermined PFPC
criteria for accuracy, PFPC will provide an accuracy rate as represented by
"percent" measured to the last Friday of each month from the last Friday of the
previous month. The Fund reserves the right to inspect, or have a third party
inspect, the Quality Assurance procedures and documentation and all documents
reviewed and considered in determining the accuracy of processing.
I. TRANSACTION PROCESSING
MANUAL DATA ENTRY - PFPC provides a manual data entry service to the
Fund for establishing new Shareholder accounts and monitoring existing
account records.
PFPC'S OBJECTIVE - PFPC's objective is to establish new accounts with a
data accuracy rate of 95%. PFPC's objective is to process all other
financial transactions with a data accuracy rate of 98%.
Accuracy
Turnaround* Standard
----------- --------
A. New Accounts
-Purchases R 95%
-Exchanges R 98%
-Transfer R+4 98%
B. Purchases
-Directs R 98%
-Wire Orders
(Placement) R 98%
-Wire Orders
(Settlement) R 98%
C. Redemptions
-Direct R 98%
-Wire Orders R 98%
31
Accuracy
Turnaround* Standard
----------- --------
D. Exchanges R 98%
E. Maintenance R+4 95%
F. Adjustments
-Priority R+1 98%
-Non-Priority R+4 98%
-OCF Cancel/Rebill R+1 98%
II. DATA CENTER SERVICES
A. RESPONSE TIME - An average of 98% of all inquiries into the
PFPC Mainframe system (CICS entries) on Business Days from
8:00 a.m. to 8:00 p.m. eastern time ("Business Hours") during
a calendar month will have a response time of three (3)
seconds or less.
B. ON-LINE SYSTEMS AVAILABILITY - The On-Line System will be
available for inquiry and data entry at least 96% of the time
during Business Hours, measured on a calendar month basis.
III. QUALITY ASSURANCE.
PFPC will use a statistical sampling of transactions processed through
the transaction processing and the quality control units of PFPC
providing services to the Funds and will track and report on a weekly
and monthly basis to the Funds on the accuracy of the transactions
processed. Examining the sampling against pre-determined PFPC criteria
for accuracy, PFPC will achieve the preceding quality assurance levels
identified in the Accuracy Standard Column above, measured monthly by
their independent Quality Assurance Department.
IV. FINANCIAL CONTROL
SERVICE DESCRIPTION:
PFPC will provide daily fund settlement reports to the Fund's
accounting and custodian service providers. PFPC will reconcile the
Fund's Demand Deposit Accounts on a daily basis, including investments
and disbursements. Acceptable DDA Item Exceptions beyond five days
include:
- Client Originated Item
- Shareholder Reclaim
- Bank (Cash Manager Error)
32
- Shareholder Fraudulent Activity
- Fed Wire Recall
- Miscellaneous Funding Issues with Shareholder,
Cash Manager, or Custodian
PFPC'S OBJECTIVES:
PFPC's objective is to reconcile all demand deposit account ("DDA")
transactions within five (5) business days of the transaction post
date. Any exceptions, including items greater than five (5) business
days, will be reported to the Fund with a general item description. Any
exception must be approved by the Fund to be considered within
standard.
33
EXHIBIT C
---------
SUB-CONTRACTORS
NONE
34
