SUB-ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of July 10, 2002 by and among PFPC INC., a
Massachusetts corporation ("PFPC"), and WESTLAKES INSTITUTIONAL PORTFOLIOS a
Delaware business trust (the "Fund") and XXXXXX INVESTMENT PARTNERS, INC., a
Pennsylvania corporation ("Xxxxxx").
W I T N E S S E T H:
WHEREAS, Xxxxxx provides certain administrative services to the Fund,
an open-end management investment company under the Investment Company Act of
1940, as amended (the "1940 Act"); and
WHEREAS, Xxxxxx and the Fund wish to retain PFPC to provide
sub-administration and accounting services to the Fund's investment portfolios
listed on Exhibit A attached hereto and made a part hereof, as such Exhibit A
may be amended from time to time (each a "Portfolio"), and PFPC wishes to
furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby the parties
hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of Xxxxxx, the Fund and
any other person duly authorized by the Fund's Board of
Trustees to give Oral Instructions and Written Instructions on
behalf of the Fund. An Authorized Person's scope of authority
may be limited by setting forth such limitation in a written
document signed by both parties hereto.
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(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control
(not including transactions between wholly-owned direct or
indirect subsidiaries of a common parent) of 25% or more of
the beneficial ownership of the shares of common stock or
shares of beneficial interest of an entity or its parent(s).
(f) "Oral Instructions" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person. PFPC may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(i) "Shares" means the shares of beneficial interest of any series
or class of the Fund.
(j) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by PFPC or (ii) trade
instructions transmitted (and received by PFPC) by means of an
electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. Xxxxxx and the Fund hereby appoint PFPC to provide
sub-administration and accounting services to each of the Portfolios,
in accordance with the terms set forth in this Agreement. PFPC accepts
such appointment and agrees to furnish such services.
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3. DELIVERY OF DOCUMENTS. The Fund or Xxxxxx has provided or, where
applicable, will provide PFPC with the following:
(a) at PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the
appointment of PFPC or its affiliates to provide services to
each Portfolio and approving this Agreement;
(b) a copy of Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreement or agreements;
(d) a copy of the distribution/underwriting agreement with respect
to each class of Shares representing an interest in a
Portfolio;
(e) a copy of each additional administration agreement with
respect to a Portfolio;
(f) a copy of each distribution and/or shareholder servicing plan
and agreement made in respect of the Fund or a Portfolio; and
(g) copies (certified or authenticated, where applicable) of any
and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS.
PFPC undertakes to comply with all applicable requirements of the
Securities Laws, and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by PFPC hereunder. Except as specifically set forth herein,
PFPC assumes no responsibility for such compliance by Xxxxxx, the Fund
or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
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Person) pursuant to this Agreement. PFPC may assume that any
Oral Instruction or Written Instruction received hereunder is
not in any way inconsistent with the provisions of the Fund's
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Fund's Board of Trustees or of
the Fund's shareholders, unless and until PFPC receives
Written Instructions to the contrary.
(c) Xxxxxx and the Fund, as appropriate, agree to forward to PFPC
Written Instructions confirming Oral Instructions (except
where such Oral Instructions are given by PFPC or its
affiliates) so that PFPC receives the Written Instructions by
the close of business on the same day that such Oral
Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC or differ from
the Oral Instructions shall in no way invalidate the
transactions or enforceability of the transactions authorized
by the Oral Instructions or PFPC's ability to rely upon such
Oral Instructions.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF XXXXXX AND/OR THE FUND. If PFPC is in doubt as to
any action it should or should not take, PFPC may request
directions or advice, including Oral Instructions or Written
Instructions, from Xxxxxx and/or the Fund.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC may request advice from counsel of its own
choosing (who may be counsel for Xxxxxx, the Fund, the Fund's
investment adviser or PFPC, at the option of PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
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Instructions PFPC receives from Xxxxxx and/or the Fund and the
advice PFPC receives from counsel, PFPC may rely upon and
follow the advice of counsel.
(d) PROTECTION OF PFPC. PFPC shall be indemnified by Xxxxxx and
the Fund and without liability for any action PFPC takes or
does not take in reliance upon directions or advice or Oral
Instructions or Written Instructions PFPC receives from or on
behalf of Xxxxxx and/or the Fund or from counsel and which
PFPC believes, in good faith, to be consistent with those
directions or advice and Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as
to impose an obligation upon PFPC (i) to seek such directions
or advice or Oral Instructions or Written Instructions, or
(ii) to act in accordance with such directions or advice or
Oral Instructions or Written Instructions.
7. RECORDS; VISITS.
(a) The books and records pertaining to the Fund and the
Portfolios which are in the possession or under the control of
PFPC shall be the property of the Fund. Such books and records
shall be prepared and maintained as required by the 1940 Act
and other applicable securities laws, rules and regulations.
Xxxxxx, the Fund and Authorized Persons shall have access to
such books and records at all times during PFPC's normal
business hours. Upon the reasonable request of Xxxxxx or the
Fund, copies of any such books and records shall be provided
by PFPC to Xxxxxx, the Fund or to an Authorized Person, at the
Fund's expense.
(b) PFPC shall keep the following records:
(i) all books and records with respect to each
Portfolio's books of account;
(ii) records of each Portfolio's securities transactions;
and
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(iii) all other books and records as PFPC is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
(For clarification, this Section 8 relates only to the Confidential
Information of the Fund and PFPC.) Confidential Information shall
include (a) any data or information that is competitively sensitive
material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies,
finances, operations, customer relationships, customer profiles,
customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund or PFPC, their respective subsidiaries and
affiliated companies and the customers, clients and suppliers of any of
them; (b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and
secret in the sense that its confidentiality affords the Fund or PFPC a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
inventions, know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations if it: (a) is already known to the
receiving party at the time it is obtained; (b) is or becomes publicly
known or available through no wrongful act of the receiving party; (c)
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is rightfully received from a third party who, to the best of the
receiving party's knowledge, is not under a duty of confidentiality;
(d) is released by the protected party to a third party without
restriction; (e) is required to be disclosed by the receiving party
pursuant to a requirement of a court order, subpoena, governmental or
regulatory agency or law (provided the receiving party will provide the
other party written notice of such requirement, to the extent such
notice is permitted); (f) is relevant to the defense of any claim or
cause of action asserted against the receiving party; or (g) has been
or is independently developed or obtained by the receiving party.
9. LIAISON WITH ACCOUNTANTS. PFPC shall act as liaison with the Fund's
independent public accountants and shall provide account analyses,
fiscal year summaries, and other audit-related schedules with respect
to each Portfolio. PFPC shall take all reasonable action in the
performance of its duties under this Agreement to assure that the
necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC under
this Agreement.
11. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of
equipment failures, PFPC shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. PFPC shall
have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad
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faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, Xxxxxx, will pay to PFPC a fee or fees as may
be agreed to in writing by Xxxxxx, the Fund and PFPC.
13. INDEMNIFICATION. Xxxxxx and the Fund, on behalf of each Portfolio,
agrees to indemnify, defend and hold --------------- harmless PFPC and
its affiliates, including their respective officers, directors, agents
and employees from all taxes, charges, expenses, assessments, claims
and liabilities (including, without limitation, attorneys' fees and
disbursements and liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws) arising directly or
indirectly from any action or omission to act which PFPC takes in
connection with the provision of services hereunder. Neither PFPC, nor
any of its affiliates, shall be indemnified against any liability (or
any expenses incident to such liability) caused by PFPC's or its
affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard in the performance of PFPC's activities under this
Agreement. Any amounts payable under this Section 13 shall be satisfied
only against the relevant Portfolio's assets and not against the assets
of any other investment portfolio of the Fund. The provisions of this
Section 13 shall survive termination of this Agreement.
14. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on
behalf of Xxxxxx, the Fund or any Portfolio except as
specifically set forth herein or as may be specifically agreed
to by PFPC, Xxxxxx and the Fund in a written amendment hereto.
PFPC shall be obligated to exercise care and diligence in the
perfor xxxxx of its duties hereunder and to act in good faith
in performing services provided for under this Agreement. PFPC
shall be liable only for any damages arising out of PFPC's
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failure to perform its duties under this Agreement to the
extent such damages arise out of PFPC's willful misfeasance,
bad faith, gross negligence or reckless disregard of such
duties.
(b) Notwithstanding anything in this Agreement to the contrary,
(i) PFPC shall not be liable for losses, delays, failure,
errors, interruption or loss of data occurring directly or
indirectly by reason of circumstances beyond its reasonable
control, including without limitation acts of God; action or
inaction of civil or military authority; public enemy; war;
terrorism; riot; fire; flood; sabotage; epidemics; labor
disputes; civil commotion; interruption, loss or malfunction
of utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or
non-performance by a third party; and (ii) PFPC shall not be
under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity, authority or lack
thereof, or truthfulness or accuracy or lack thereof, of any
instruction, direction, notice, instrument or other
information which PFPC reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
(i) neither PFPC nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether
or not the likelihood of such losses or damages was known by
PFPC or its affiliates and (ii) PFPC's cumulative liability to
Xxxxxx and the Fund for all losses, claims, suits,
controversies, breaches or damages for any cause whatsoever
(including but not limited to those arising out of or related
to this Agreement) and regardless of the form of action or
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legal theory shall not exceed the lesser of $100,000 or the
fees received by PFPC for services provided hereunder during
the 12 months immediately prior to the date of such loss or
damage.
(d) No party may assert a cause of action against PFPC or any of
its affiliates that allegedly occurred more than 12 months
immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging
such cause of action.
(e) Each party shall have a duty to mitigate damages for which
the other party may become responsible.
(f) The provisions of this Section 14 shall survive termination
of this Agreement.
15. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to
each Portfolio:
(i) Journalize investment, capital share and income and expense
activities;
(ii) Verify investment buy/sell trade tickets when received from
the investment adviser for a Portfolio (the "Adviser") and
transmit trades to the Fund's custodian (the "Custodian") for
proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with the
Custodian, and provide the Adviser with the beginning cash
balance available for investment purposes;
(vi) Post to and prepare the Statement of Assets and Liabilities
and the Statement of Operations;
(vii) Calculate various contractual expenses (E.G., advisory and
custody fees);
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(viii) Monitor the expense accruals and notify an officer of the Fund
of any proposed adjustments;
(ix) Control all disbursements and authorize such disbursements
upon Written Instructions;
(x) Calculate capital gains and losses;
(xi) Determine net income;
(xii) Obtain security market quotes from independent pricing
services approved by the Adviser, or if such quotes are
unavailable, then obtain such prices from the Adviser, and in
either case calculate the market value of each Portfolio's
Investments;
(xiii) Transmit or mail a copy of the daily portfolio valuation to
the Adviser;
(xiv) Compute net asset value; and
(xv) As appropriate, compute yields, total return, expense ratios,
portfolio turnover rate, and, if required, portfolio average
dollar-weighted maturity.
16. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect to
each Portfolio:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Portfolio and Fund
statistical data as requested on an ongoing basis;
(iv) Prepare for execution and file the Fund's Federal and state
tax returns;
(v) Prepare and file the Fund's Semi-Annual Reports with the SEC
on Form N-SAR;
(vi) Prepare and file with the SEC the Fund's annual, semi-annual,
and quarterly shareholder reports;
(vii) Assist in the preparation of registration statements and other
filings relating to the registration of Shares;
(viii) Monitor each Portfolio's status as a regulated investment
company under Sub-chapter M of the Internal Revenue Code of
1986, as amended; and
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(ix) Coordinate contractual relationships and communications
between the Fund and its contractual service providers.
17. DURATION AND TERMINATION. This Agreement shall continue until
terminated by Xxxxxx, the Fund or by PFPC on sixty (60) days' prior
written notice to the other parties. In the event Xxxxxx and/or the
Fund gives notice of termination, all expenses associated with movement
(or duplication) of records and materials and conversion thereof to a
successor accounting and administration services agent(s) (and any
other service provider(s)), and all trailing expenses incurred by PFPC,
will be borne by the Fund.
18. CHANGE OF CONTROL. Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a transaction
that would result in a Change of Control of Xxxxxx, the Fund's adviser
or sponsor, Xxxxxx'x and the Fund's ability to terminate the Agreement
pursuant to Section 17 will be suspended from the time of such
agreement until eighteen months after the Change of Control.
19. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to
the Fund, at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx
00000, Attention: _________________________; (c) if to Xxxxxx, at 0000
Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxx; or
(d) if to none of the foregoing, at such other address as shall have
been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming
telegram, cable, telex or facsimile sending device, it shall be deemed
to have been given immediately. If notice is sent by first-class mail,
it shall be deemed to have been given three days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
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20. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
21. ASSIGNMENT. PFPC may assign its rights hereunder to any majority-owned
direct or indirect subsidiary of PFPC or of The PNC Financial Services
Group, Inc., provided that PFPC gives Xxxxxx and the Fund 30 days prior
written notice of such assignment.
22. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
23. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
24. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary,
the Fund agrees not to make any modifications to its
registration statement, and each of Xxxxxx and the Fund agrees
not to adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(b) Except as expressly provided in this Agreement, PFPC hereby
disclaims all representations and warranties, express or
implied, made to Xxxxxx, the Fund or any other person,
including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a
particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any
goods provided incidental to services provided under this
Agreement. PFPC disclaims any warranty of title or
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non-infringement except as otherwise set forth in this
Agreement.
(c) This Agreement embodies the entire agreement and understanding
among the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents
their agreement, if any, with respect to delegated duties. The
captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or
effect. Notwithstanding any provision hereof, the services of
PFPC are not, nor shall they be, construed as constituting
legal advice or the provision of legal services for or on
behalf of Xxxxxx, the Fund or any other person.
(d) This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(e) If any provision of this Agreement shall be held or made
invalid by a court
decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
(f) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such
party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC INC.
By: /S/ XXXX X. XXXXXXX
Title: SENIOR VICE PRESIDENT
WESTLAKES INSTITUTIONAL PORTFOLIOS
By: /S/ XXXXX X. XXXXX
Title: VICE PRESIDENT
XXXXXX INVESTMENT PARTNERS, INC.
By: /S/ XXXX X. XXXXX
Title: CHIEF OPERATING OFFICER
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AMENDED EXHIBIT A
THIS AMENDED EXHIBIT A, dated as of January 2, 2003 is Exhibit A to
that certain Sub-Administration and Accounting Services Agreement dated as of
July 10, 2002 among PFPC Inc. and Westlakes Institutional Portfolios and Xxxxxx
Investment Partners, Inc.
PORTFOLIOS
High Yield Fixed Income Portfolio
High Quality Fixed Income Portfolio
BBB Fixed Income Portfolio
Core Fixed Income Portfolio
Small Cap Core Portfolio
Mid-Cap Core Portfolio
THE XXXXXX FUNDS PFPC INC.
By: _________________ By: _________________
Title: _________________ Title: _________________
WESTLAKES INSTITUTIONAL PORTFOLIOS
By: _________________
Title: ___________________
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