ADOPTION AGREEMENT
This Adoption Agreement, dated as of July 5, 2018 (this "Adoption Agreement"),
by and among DST SYSTEMS, INC. ("DST"), a Delaware corporation, DST ASSET
MANAGER SOLUTIONS, INC. (f/k/a Boston Financial Data Services, Inc.) ("DST
AMS") and PIONEER ILS BRIDGE FUND, a Delaware statutory trust (the "Additional
Product").
The Additional Product hereby agrees to become a party to that (a) Agency
Agreement, dated as of November 6, 2015 (the "Agreement"), originally by and
among DST and the Pioneer ILS Interval Fund and (b) the ancillary services
detailed in Schedules III (AWD License, Consulting, and Maintenance and Support
Services), V (FAN Mail Services - Mutual Funds), VI (FAN Services - Mutual
Funds (FANWeb/Vision), VII (PowerSelect Services), and VIII (DST Customer
Centers) (collectively, the "Ancillary Agreements") to the Master Agreement
dated January 1, 2012, as assigned effective November 1, 2015, between and
among Amundi Pioneer Asset Management, Inc. (formerly known as Pioneer
Investment Management, Inc., as successor in interest to Pioneer Investment
Management Shareholder Services, Inc.), the Pioneer Funds, and Boston Financial
Data Services, Inc. ); and (c) be bound by all terms and conditions of the
Agency Agreement and the Ancillary Agreements as a "Fund" (as such term is
defined in the Agreement), or "Customer" (as such term is defined in the
Ancillary Agreements), having such rights, entitlements and obligations as set
forth in the Agreement or Ancillary Agreement respectively. By its signature
below, the Additional Product confirms to DST, as of the date hereof, its
representations and warranties set forth in the Agreement and Ancillary
Agreements. The Additional Product acknowledges receipt of a copy of the
Agreement and the Ancillary Agreements.
Each of DST, DST AMS, Pioneer ILS Interval Fund, Amundi Pioneer Asset
Management, Inc. and Pioneer Funds hereby agrees to accept the Additional
Product as a party to the Agreement and the Ancillary Agreements and that the
Additional Product shall be a "Fund" or "Customer" (as such terms are defined
in the Agreement) under the Agreement, having such rights, entitlements and
obligations as set forth in the Agreement.
Except as specifically set forth herein, all other terms and conditions of the
Agreement and the Ancillary Agreements shall remain unmodified and in full
force and effect, the same being confirmed and republished hereby. In the event
of any conflict between the terms of the Agreement, the Ancillary Agreements,
and the terms of this Adoption Agreement with regard to the subject matter
hereof, the terms of this Adoption Agreement shall control.
This Adoption Agreement may be executed by the parties hereto on any number of
counterparts, delivery of which may occur by facsimile or as an attachment to
an electronic communication, each of which shall be deemed an original, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Adoption Agreement
to be executed as of the day and year first above written by their respective
duly authorized officers.
{Signatures on following page}
PIONEER ILS BRIDGE FUND
By: /s/ Xxxx X. Xxxxxxx
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Print Name: Xxxx X. Xxxxxxx
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Title: Chief Financial Officer
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Date: July 3, 2018
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AMUNDI PIONEER ASSET MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Print Name: Xxxxx X. Xxxxxxx
--------------------------
Title: Chief Financial Officer, Americas
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Date: July 2, 2018
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PIONEER ILS INTERVAL FUND
By: /s/ Xxxx X. Xxxxxxx
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Print Name: Xxxx X. Xxxxxxx
--------------------------
Title: Chief Financial Officer
--------------------------
Date: July 3, 2018
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EACH OF THE PIONEER FUNDS SET FORTH ON
EXHIBIT A TO THE MASTER AGREEMENT
By: /s/ Xxxx X. Xxxxxxx
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Print Name: Xxxx X. Xxxxxxx
--------------------------
Title: Chief Financial Officer
--------------------------
Date: July 3, 2018
--------------------------
(Authorized representative
of each of the Pioneer Funds)
DST SYSTEMS, INC. (on behalf of itself and DST ASSET MANAGER SOLUTIONS, INC.)
By: /s/ Xxxxxxxxxxx X. Xxxx
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Print Name: Xxxxxxxxxxx X. Xxxx
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Title: Managing Director
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Date: JUly 6, 2018
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AGENCY AGREEMENT
THIS AGREEMENT made the 6th day of November, 2015, by and between, Pioneer
ILS Interval Fund, a statutory trust registered under the laws of the State of
Delaware, having its principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (the "Fund"), and DST SYSTEMS, INC., a corporation organized and
existing under the laws of the State of Delaware, having its principal place of
business at 000 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000
("DST"):
WITNESSETH:
WHEREAS, the Fund desires to appoint DST as Transfer Agent (hereinafter
referred to as "Transfer Agent") and Sub-Dividend Disbursing Agent, and DST
desires to accept such appointment upon the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Documents to be Provided with Appointment.
In connection with the appointment of DST as Transfer Agent and Dividend
Disbursing Agent for the Fund, the Fund will provide DST with the following
Fund-related documents:
A. Intentionally Deleted
B. A certified copy of the Certificate of Trust of the Fund and all
amendments thereto;
C. A Certificate from the Secretary of the Fund with respect to the
Declaration of Trust and Bylaws of the Fund and all amendments thereto;
D. Copies of the Registration Statements and amendments thereto, filed with
the U.S. Securities and Exchange Commission ("SEC").
E. A certificate of the Fund as to the Shares authorized, issued and
outstanding, as well as a description of all reserves of unissued Shares
relating to the exercise of options, if any;
F. Specimens of the signatures of the officers of the Fund authorized to
sign on behalf of the Fund generally and individuals authorized to sign
written instructions and requests;
G. A Certificate from the Secretary for the Fund with respect to:
(1) The Fund's organization and existence and status in good standing
under the laws of its state of organization,
(2) The Fund is duly qualified to carry on its business in the State of
its organization,
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(3) The status of all shares of stock of the Fund covered by the
appointment under the Securities Act of 1933, as amended (the "1933
Act"), and any other applicable federal or state statute,
(4) That all issued shares are, and all unissued shares will be, when
issued, validly issued, fully paid and non-assessable, and
H. Statements as to (i) the existence or termination of any restrictions on
the transfer of shares and in the application to or removal of any
legend restricting the transfer of such shares, (ii) any authorized but
unissued shares reserved for specific purposes, (iii) if any reserved
shares are subject to option and, if so, the details of such
reservation, and (iv) special instructions regarding dividends and
information of any foreign securityholders.
I. For this Section 1, a certificate from the Fund's Secretary or Chief
Financial Officer is acceptable.
2. Certain Representations and Warranties of DST.
DST represents and warrants to the Fund and to the Fund that:
A. It is a corporation duly organized and existing and in good standing
under the laws of Delaware.
B. It is duly qualified to carry on its business in the State of Missouri.
C. It is empowered under applicable laws and by its Articles of
Incorporation and Bylaws to enter into and perform the services
contemplated in this Agreement.
D. It is registered as a transfer agent to the extent required under the
Securities Exchange Act of 1934, as amended (the "1934 Act").
E. All requisite corporate proceedings have been taken to authorize it to
enter into and perform this Agreement.
F. It has and will continue to have and maintain the necessary facilities,
equipment and personnel to perform its duties and obligations under this
Agreement.
3. Certain Representations and Warranties By the Fund.
The Fund represents and warrants to DST that:
A. It is a statutory trust duly organized and existing and in good standing
under the laws of State of Delaware and it is duly qualified, as
required, to carry on its business in the jurisdictions in which it is
required to so qualify.
B. A registration statement under the 1933 Act has been filed and will be
effective with respect to all shares of the Fund being offered for sale.
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C. All requisite steps have been and will continue to be taken to register
the Fund's shares for sale in all applicable states and such
registration will be effective at all times shares are offered for sale
in such state.
D. To the extent required to offer shares of the Fund as contemplated
herein, the Fund is registered with the SEC, any securities
self-regulatory organization, and/or any state or non-US securities
regulatory body that asserts the authority to regulate such matter, by
regulation, order or otherwise (collectively, the "Applicable Regulatory
Authorities"), has made all required notice or other filings with and
paid all required fees to all Applicable Regulatory Authorities and is
currently, and will remain throughout the term of this Agreement, in
substantial compliance with applicable law. To the extent any applicable
law requires registration, licensing or other qualifications of the Fund
or any of its officers, directors, employees, agents or Affiliates, or
payment of fees or filing of documents, they are in compliance with
same. The foregoing representations will remain accurate during the term
of this Agreement
E. Each offer to sell or sale of shares of the Fund by the Fund or its
agents, representatives and dealers in each state in which a share is
offered for sale or sold will be made in material compliance with all
applicable Federal, State or local laws, rules and regulations.
F. The Fund is empowered under applicable laws and by its Declaration of
Trust and Bylaws to enter into and perform this Agreement.
4. Scope of Appointment.
A. Subject to the terms and conditions set forth in this Agreement, the
Fund hereby appoints DST as Transfer Agent and Dividend Disbursing Agent.
B. DST hereby accepts such appointment and agrees that it will act as the
Fund's Transfer Agent and Dividend Disbursing Agent. DST agrees that it
will also act as agent in connection with the Fund's periodic withdrawal
payment accounts and other open accounts or similar plans for
securityholders, if any.
C. The Fund agrees to use its reasonable efforts to deliver to DST in
Kansas City, Missouri, as soon as they are available, all of the Fund's
securityholder account records.
D. DST, utilizing TA2000/TM/, DST's computerized data processing system for
securityholder accounting (the "TA2000 System") and in accordance with
the terms and conditions of this Agreement, will perform the following
services as transfer and dividend disbursing agent for the Fund, and as
agent of the Fund and of the Fund for securityholder accounts thereof,
in a timely manner: (i) issuing (including countersigning), transferring
and redeeming
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book entry shares; (ii) maintaining securityholder accounts on the
records of the Fund on the TA2000 System; (iii) when and if the Fund
participates in the National Securities Clearing Corporation ("NSCC"),
accepting and effectuating the registration and maintenance of accounts
through Networking and the purchase, redemption, and transfer of shares
in such accounts through systems or applications offered to its
participants by NSCC (the "Programs") in accordance with instructions
transmitted to and received by DST by transmission from NSCC on behalf
of broker-dealers and banks which have been established by, or in
accordance with the instructions of, an Authorized Person, as
hereinafter defined, on the Dealer File maintained by DST; (iv) when and
if the Fund participates in the NSCC issuing instructions to the Fund's
banks for the settlement of transactions between the Fund and NSCC
(acting on behalf of its broker-dealer and bank participants); (v) when
and if the Fund participates in the NSCC providing account and
transaction information from the Fund's records on TA2000 in accordance
with the applicable Program's rules for and those broker-dealers;
(vi) when and if the Fund participates in the NSCC, maintaining
securityholder accounts on TA2000 through the Programs; (vii) providing
transaction journals; (viii) once annually preparing securityholder
meeting lists for use in connection with the annual meeting and
certifying a copy of such list; (ix) mailing securityholder reports and
prospectuses; (x) withholding, as required by federal law, taxes on
securityholder accounts, preparing, filing and mailing U.S. Treasury
Department Forms 1099, 1042, 1042S, and K-1 and performing and paying
backup withholding as required for all securityholders; (xi) disbursing
income dividends and capital gains distributions to securityholders and
recording reinvestment of dividends and distributions in shares of the
Fund; (xii) preparing and mailing confirmation forms to securityholders
and intermediaries for securityholders, as instructed, for all purchases
and liquidations of shares of the Fund and other confirmable
transactions in securityholders' accounts; (xiii) providing or making
available on-line daily and monthly reports as provided by the TA2000
System and as requested by the Fund or its management company;
(xiv) maintaining those records necessary to carry out DST's duties
hereunder, including all information reasonably required by the Fund to
account for all transactions on TA2000 in the Fund shares;
(xv) calculating the appropriate sales charge with respect to each
purchase of the Fund shares as instructed by an Authorized Person, as
hereinafter defined, determining the portion of each sales charge
payable to the dealer participating in a sale in accordance with
schedules and instructions delivered to DST by the Fund's
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managing dealer or distributor (hereinafter "managing dealer") or any
other Authorized Person from time to time, disbursing dealer commissions
collected to such dealers, determining the portion of each sales charge
payable to such managing dealer and disbursing such commissions to the
managing dealer; (xvi) receiving correspondence pertaining to any
former, existing or new securityholder account, processing such
correspondence for proper recordkeeping, and responding promptly to
securityholder correspondence; mailing to dealers confirmations of wire
order trades; mailing copies of securityholder statements to
securityholders and registered representatives of dealers in accordance
with the instructions of an Authorized Person; (xvii) processing,
generally on the date of receipt, purchases or instructions to settle
any mail or wire order purchases received in proper order as set forth
in the prospectus and rejecting promptly any requests not received in
proper order (as defined by an Authorized Person or the Procedures as
hereinafter defined); (xviii) providing to the person designated by an
Authorized Person the daily Blue Sky reports generated by the Blue Sky
module of TA2000 with respect to purchases of shares of the Funds on
TA2000; (xix) once approval of the Fund therefore has been received by
DST, processing timely redemptions (as provided in the Fund's dividend
reinvestment plan) received in proper order as approved by the Fund in
accordance with the instructions of the Fund, rejecting promptly any
requests not received in proper order (as defined by an Authorized
Person or the Procedures as hereinafter defined); (xx) providing to the
Fund escheatment reports as requested by an Authorized Person with
respect to the status of accounts and outstanding checks on TA2000; and
(xxi) providing a Cash Utilization Arrangement consistent with the
provisions set forth in Exhibit B. For clarification, with respect to
Blue Sky obligations, the Fund is responsible any registration or filing
with a federal or state government body or obtaining approval from such
body required for the sale of shares of the Fund in each jurisdiction in
which it is sold. DST's sole obligation is to provide the Fund access to
the Blue Sky module of TA2000 with respect to purchases of shares of the
Fund on TA2000. It is the Fund's responsibility to validate that the
blue sky module settings are accurate and complete and to validate the
output produced thereby and other applicable reports provided by DST, to
ensure accuracy. DST is not responsible in any way for claims that the
sale of shares of the Fund violated any such requirement (unless such
violation results from a failure of the DST Blue Sky module to notify
the Fund that such sales do not comply with the parameters set by the
Fund for sales to residents of a given state).
E. At the request of an Authorized Person, DST shall use reasonable efforts
to provide the services set forth in Section 4.D. in connection with
transactions (i) on behalf of retirement
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plans and participants in retirement plans and transactions ordered by
brokers as part of a "no transaction fee" program ("NTF"), the
processing of which transactions require DST to use methods and
procedures other than those usually employed by DST to perform
securityholder servicing agent services, (ii) involving the provision of
information to DST after the commencement of the nightly processing
cycle of the TA2000 System or (iii) which require more manual
intervention by DST, either in the entry of data or in the modification
or amendment of reports generated by the TA2000 System than is usually
required by non-retirement plan, non-NTF and pre-nightly transactions,
(the "Exception Services").
F. DST shall use reasonable efforts to provide, reasonably promptly under
the circumstances, the same services with respect to any new, additional
functions or features or any changes or improvements to existing
functions or features as provided for in the Fund's instructions,
prospectus or application as amended from time to time, for the Fund
provided (i) DST is advised in advance by the Fund of any changes
therein and (ii) the TA2000 System and the mode of operations utilized
by DST as then constituted supports such additional functions and
features. If any addition to, improvement of or change in the features
and functions currently provided by the TA2000 System or the operations
as requested by the Fund requires an enhancement or modification to the
TA2000 System or to operations as presently conducted by DST, DST shall
not be liable therefore until such modification or enhancement is
installed on the TA2000 System or new mode of operation is instituted.
If any new, additional function or feature or change or improvement to
existing functions or features or new service or mode of operation
measurably increases DST's cost of performing the services required
hereunder at the current level of service, DST shall advise the Fund of
the amount of such increase and if the Fund elects to utilize such
function, feature or service, DST shall be entitled to increase its fees
by the amount of the increase in costs. In no event shall DST be
responsible for or liable to provide any additional function, feature,
improvement or change in method of operation until it has consented
thereto in writing.
G. The Fund shall add all new investment programs to the TA2000 System upon
at least thirty (30) days' prior written notice to DST provided that the
requirements of the new programs are generally consistent with services
then being provided by DST under this Agreement. Rates or charges for
additional programs shall be as set forth in Exhibit B, as hereinafter
defined, for the remainder of the contract term except as such programs
use functions,
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features or characteristics for which DST has imposed an additional
charge as part of its standard pricing schedule. In the latter event,
rates and charges shall be in accordance with DST's then-standard
pricing schedule.
H. The provisions of this Section 4.H that follow this sentence shall take
precedence over and shall govern in the event of any inconsistency
between such provisions and any other provisions of this Agreement or
any provisions of any exhibit or other attachment to this Agreement (or
any provisions of any attachment to any such exhibit or attachment). The
parties agree that - to the extent that DST provides any services under
this Agency Agreement that relate to compliance by the Fund with the
Internal Revenue Code of 1986 or any other tax law, including without
limitation the services described in Section 4.D(x) - it is the parties'
mutual intent that DST will provide only printing, reproducing, and
other mechanical assistance to the Fund and that DST will not make any
judgments or exercise any discretion of any kind, and particularly that
DST will not make any judgments or exercise any discretion in:
(1) determining generally the actions that are required in connection
with such compliance or determining generally when such compliance has
been achieved; (2) determining the amounts of taxes that should be
withheld on securityholder accounts (except to the extent of making
mathematical calculations of such amounts based on express instructions
provided by the Fund); (3) determining the amounts that should be
reported in or on any specific box or line of any tax form (except to
the extent of making mathematical calculations of such amounts based on
express instructions provided by the Fund which among other things
identify the specific boxes and lines into which amounts calculated by
DST are to be placed); (4) classifying the status of securityholders and
securityholder accounts under applicable tax law (except to the extent
of following express instructions regarding such classification provided
by the Fund); and (5) paying withholding and other taxes, except
pursuant to the express instructions of the Fund. The Fund agrees that
it will provide express and comprehensive instructions to DST in
connection with all of the services that are to be provided by DST under
this Agency Agreement that relate to compliance by the Fund with the
Internal Revenue Code of 1986 or any other tax law (including without
limitation the services described in Section 4.D(x)), including promptly
providing responses to requests for direction that may be made from time
to time by DST of the Fund in this regard.
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I. The Fund will not accept individual retirement accounts (IRAs) as
investors or shareholders.
5. Limit of Authority.
The appointment of DST as Transfer Agent for the Fund will be construed to
cover the full amount of authorized stock of each class or classes for
which DST is appointed as the same will, from time to time, be constituted,
and as reduced or increased from time to time.
In case of such reduction or increase the Fund shall advise DST and
provide DST with the following documents:
A. If the appointment of DST was theretofore expressly limited, a certified
copy of a resolution of the Board of Trustees of the Fund increasing the
authority of DST;
B. A certificate of the Secretary of the Fund certifying the amendment to
the Declaration of Trust of the Fund authorizing the increase of stock,
if such amendment is required;
C. A certified copy of the order or consent of each governmental or
regulatory authority required by law to consent to the issuance of the
increased stock, and an opinion of counsel that the order or consent of
no other governmental or regulatory authority is required;
D. A certificate of the Secretary of the Fund stating:
(1) The status of the additional shares of stock of the Fund under the
1933 Act, and any other applicable federal or state statute; and
(2) That the additional shares are, or when issued will be, validly
issued, fully paid and non-assessable.
6. Compensation and Expenses.
A. In consideration for DST's services hereunder as Transfer Agent and
Dividend Disbursing Agent, the Fund will pay to DST from time to time a
reasonable compensation for all services rendered as Agent, and also,
all its reasonable billable expenses, charges, counsel fees, and other
disbursements ("Compensation and Expenses") incurred in connection with
the agency. Such compensation is set forth in a separate schedule to be
agreed to by the Fund and DST, a copy of which is attached hereto as
Exhibit B. If the Fund has not paid such Compensation and Expenses to
DST within a reasonable time, DST may, after prior written notice to the
Fund, charge against any monies held under this Agreement, the amount of
any Compensation and/or Expenses for which it shall be entitled to
reimbursement under this Agreement. The monthly fee for an open account
shall be charged in the month during which an account is opened through
the month in which such account is closed. The monthly fee for a closed
account shall be charged in the month
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following the month during which such account is closed and shall cease
to be charged in the month following the Purge Date, as hereinafter
defined in Section 17.
B. The Fund also agrees promptly to reimburse DST for all reasonable
billable expenses or disbursements incurred by DST in connection with
the performance of services under this Agreement including, but not
limited to, expenses for postage, express delivery services, freight
charges, envelopes, checks, drafts, forms (continuous or otherwise),
specially requested reports and statements, telephone calls, telegraphs,
stationery supplies, counsel fees, outside printing and mailing firms
(including DST Output, LLC), off-site record storage, media for storage
of records (e.g., microfilm, microfiche, optical platters, computer
tapes), computer equipment installed at the Fund's request at the Fund's
or a third party's premises, telecommunications equipment,
telephone/telecommunication lines between the Fund and its agents, on
one hand, and DST on the other, proxy soliciting, processing and/or
tabulating costs, second-site backup computer facility, transmission of
statement data for remote printing or processing, and National
Securities Clearing Corporation ("NSCC") transaction fees, if
applicable, to the extent any of the foregoing are paid by DST. The Fund
agrees to pay postage expenses at least one day in advance if so
requested. In addition, any other expenses incurred by DST at the
request or with the consent of the Fund will be promptly reimbursed by
the Fund.
C. Amounts due hereunder shall be due and paid on or before the thirtieth
(30/th/) business day after receipt of the statement therefor by the
Fund (the "Due Date"). The Fund is aware that its failure to pay all
amounts in a timely fashion so that they will be received by DST on or
before the Due Date will give rise to costs to DST not contemplated by
this Agreement, including but not limited to carrying, processing and
accounting charges. Accordingly, subject to Section 6.D. hereof, in the
event that any amounts due hereunder are not received by DST by the Due
Date, the Fund shall pay a late charge equal to the lesser of the
maximum amount permitted by applicable law or the product of one and
one-half percent (1.5%) per month times the amount overdue times the
number of months from the Due Date up to and including the day on which
payment is received by DST. The parties hereby agree that such late
charge represents a fair and reasonable computation of the costs
incurred by reason of late payment or payment of amounts not properly
due. Acceptance of such late charge shall in no event constitute a
waiver of the Fund's or DST's default or prevent the non-defaulting
party from exercising any other rights and remedies available to it.
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D. In the event that any charges are disputed, the Fund shall, on or before
the Due Date, pay all undisputed amounts due hereunder and notify DST in
writing of any disputed charges for billable expenses which it is
disputing in good faith. Payment for such disputed charges shall be due
on or before the close of the fifth (5/th/) business day after the day
on which DST provides to the Fund documentation which an objective
observer would agree reasonably supports the disputed charges (the
"Revised Due Date"). Late charges shall not begin to accrue as to
charges disputed in good faith until the first business day after the
Revised Due Date.
E. The fees and charges set forth on Exhibit B shall increase or may be
increased as follows:
(1) On the first day of each new term or otherwise in accordance with
the "Fee Increases" provision in Exhibit B;
(2) DST may increase the fees and charges set forth on Exhibit B upon
at least ninety (90) days prior written notice, if changes in
existing laws, rules or regulations: (i) require substantial system
modifications or (ii) materially increase cost of performance
hereunder;
(3) DST may charge for additional features of TA2000 used by the Fund
which features are not consistent with the Fund's current
processing requirements; and
(4) In the event DST, at the Fund's request or direction, performs
Exception Services, DST shall be entitled to increase the fees and
charges for such Exception Services from those set forth on Exhibit
B to the extent such Exception Services increase DST's cost of
performance.
If DST notifies the Fund of an increase in fees or charges pursuant to
subparagraph (2) of this Section 6.E., the parties shall confer, diligently
and in good faith and agree upon a new fee to cover the amount necessary,
but not more than such amount, to reimburse DST for the Fund's pro-rata
portion of the cost of developing the new software to comply with
regulatory charges and for the increased cost of operation.
If DST notifies the Fund of an increase in fees or charges under
subparagraphs (3) or (4) of this Section 6.E., the parties shall confer,
diligently and in good faith, and agree upon a new fee to cover such new
fund feature.
7. Operation of DST System.
In connection with the performance of its services under this Agreement,
DST is responsible for such items as:
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A. That entries in DST's records, and in the Fund's records created by DST
on the TA2000 System, reflect the orders, instructions, and other
information received by DST from the Fund, the Fund's distributor,
manager or managing dealer, investment adviser, sponsor, custodian, or
administrator and any other person whom the Fund names on Exhibit C
(each an "Authorized Person"), broker-dealers or securityholders;
B. That securityholder lists, securityholder account verifications,
confirmations and other securityholder account information to be
produced from its records or data be available and accurately reflect
the data in the Fund's records on the TA2000 System;
C. The accurate and timely issuance of dividend and distribution checks in
accordance with instructions received from the Fund and the data in the
Fund's records on the TA2000 System;
D. That, once approval of the Fund therefor has been received by DST,
redemptions and payments be effected timely in accordance with the
instructions of the Fund and accurately in accordance with redemption
instructions received by DST from Authorized Persons, broker-dealers or
securityholders and the data in the Fund's records on the TA2000 System.
E. The deposit daily in the Fund's appropriate special bank account of all
checks and payments received by DST from NSCC (if applicable),
broker-dealers or securityholders for investment in shares;
F. The requiring of proper forms of instructions, signatures and signature
guarantees and any necessary documents supporting the opening of
securityholder accounts, transfers, redemptions and other securityholder
account transactions, all in conformance with DST's present procedures
as set forth in its Legal Manual, Third Party Check Procedures,
Checkwriting Draft Procedures, Compliance + and Identity Theft Programs
and Signature Guarantee Procedures (collectively the "Procedures") with
such changes or deviations therefrom as may be from time to time
required or approved by the Fund, its investment adviser or managing
dealer, or its or DST's counsel and the rejection of orders or
instructions not in good order in accordance with the applicable
prospectus or the Procedures;
G. The maintenance of customary records in connection with its agency in
accordance with the transfer agent recordkeeping requirements under the
1934 Act; and
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H. The maintenance of a current, duplicate set of the Fund's essential
records at a secure separate location, in a form available and usable
forthwith in the event of any breakdown or disaster disrupting its main
operation.
8. Indemnification.
A. DST shall provide the services set forth in, and fulfill its obligations
under, this Agreement in accordance with the terms and conditions set
forth in this Agreement, Section 17A of the 1934 Act, and the rules and
regulations thereunder, any other federal or state laws applicable to
DST's acting as a Transfer Agent or any local laws which are the subject
of a Memorandum issued by the Investment Company Institute or brought to
DST's attention by an Authorized Person. For those activities or actions
delineated in the Procedures, DST shall be presumed to have acted in
accordance with the terms and conditions of this Agreement if DST has
acted in accordance with the Procedures in effect when DST acted or
omitted to act.
B. DST shall not be responsible for, and the Fund shall indemnify and hold
DST harmless from and against, any and all losses, damages, costs,
charges, counsel fees, payments, expenses and liability which may be
asserted against DST or for which DST may be held to be liable
(including without limitation any attorney's fees or court costs
incurred by DST in enforcing this right to the Fund's indemnification)
(the "Adverse Consequences"), arising out of or attributable to:
(1) All actions or omissions of DST required to be taken or omitted by
DST pursuant to this Agreement, provided that DST has acted in good
faith, without negligence or willful misconduct;
(2) The Fund's refusal or failure to comply with the terms of this
Agreement or the material breach of any representation or warranty
of the Fund hereunder;
(3) The good faith reliance on, or the carrying out of, any written or
oral instructions or requests of persons designated by the Fund in
writing (see Exhibit C) from time to time as authorized to give
instructions on its behalf or representatives of an Authorized
Person or DST's good faith reliance on, or use of, information,
data, records, transmissions and documents received from, or which
have been prepared and/or maintained by the Fund, its investment
advisor, its sponsor, its managing dealer or any other person or
entity from whom the Fund instructs DST to accept and utilize
information, data, records, transmissions and documents.;
12
(4) Defaults by dealers or shareowners with respect to payment for
share orders previously entered;
(5) The negotiation and processing of all checks, including checks that
are tendered to DST for the purchase of shares of the Fund;
(6) The offer or sale of the Fund's shares in violation of any
requirement under federal securities laws or regulations or the
securities laws or regulations of any state or in violation of any
stop order or other determination or ruling by any federal agency
or state with respect to the offer or sale of such shares in such
state or in excess of the authorized number of outstanding shares
(unless such violation results from DST's failure to comply with
written instructions the Fund or of any officer of the Fund that no
offers or sales be permitted to remain in the Fund's securityholder
records in or to residents of such state);
(7) The Fund's errors and mistakes in the use of the TA2000 System, the
data center, computer and related equipment used to access the
TA2000 System (the "DST Facilities"), and control procedures
relating thereto in the verification of output and in the remote
input of data;
(8) Errors, inaccuracies, and omissions in, or errors, inaccuracies or
omissions of DST arising out of or resulting from such errors,
inaccuracies and omissions in, the Fund's records, securityholder
and other records, delivered to DST hereunder by the Fund or its
prior agent(s);
(9) Actions or omissions to act by the Fund or agents designated by the
Fund with respect to duties assumed thereby as provided for in
Section 21 hereof; and
(10) DST's performance of Exception Services except where DST acted or
omitted to act in bad faith, with reckless disregard of its
obligations or with gross negligence.
C. Except where DST is entitled to indemnification under Section 8.B.
hereof, DST shall indemnify and hold the Fund harmless from and against
any and all Adverse Consequences arising out of DST's failure to comply
with the terms of, or to fulfill its obligations under, this Agreement
or arising out of or attributable to DST's negligence, bad faith, or
willful misconduct in the performance of the services hereunder;
provided, however, that DST's cumulative and aggregate liability during
any term of this Agreement with respect to, arising from or arising in
connection with: (i) this Agreement and its Fee Schedules, or from all
services provided or omitted to be provided under this Agreement,
whether in contract, or in tort, or otherwise, is limited to, and shall
not exceed, the amounts paid hereunder by the
13
Fund to DST as fees and charges under the applicable Fee Schedule, but
not including reimbursable expenses, during the twelve (12) calendar
months immediately preceding the event giving rise to DST's liability;
or (ii) with respect to claims arising from breaches by DST of its
confidentiality or privacy obligations under this Agreement or its Fee
Schedules, whether in contract, tort, or otherwise, is limited to, and
shall not exceed, the amounts paid hereunder by the Fund to DST as fees
and charges under the applicable Fee Schedule, but not including
reimbursable expenses, during the eighteen (18) calendar months
immediately preceding the event giving rise to DST's liability.
D. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL EITHER PARTY UNDER THIS
AGREEMENT BE LIABLE TO ANY PERSON, INCLUDING, WITHOUT LIMITATION THE
OTHER PARTY, FOR PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR OTHER
SPECIAL DAMAGES UNDER ANY PROVISION OF THIS AGREEMENT OR FOR ANY ACT OR
FAILURE TO ACT HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
E. Promptly after receipt by an indemnified person of notice of the
commencement of any action, such indemnified person will, if a claim in
respect thereto is to be made against an indemnifying party hereunder,
notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party will not relieve an
indemnifying party from any liability that it may have to any
indemnified person for contribution or otherwise under the indemnity
agreement contained herein except to the extent it is prejudiced as a
proximate result of such failure to timely notify. In case any such
action is brought against any indemnified person and such indemnified
person seeks or intends to seek indemnity from an indemnifying party,
the indemnifying party will be entitled to participate in, and, to the
extent that it may wish, assume the defense thereof (in its own name or
in the name and on behalf of any indemnified party or both with counsel
reasonably satisfactory to such indemnified person); provided, however,
if the defendants in any such action include both the indemnified person
and an indemnifying party and the indemnified person shall have
reasonably concluded that there may be a conflict between the positions
of the indemnified person and an indemnifying party in conducting the
defense of any such action or that there may be legal defenses available
to it and/or other indemnified persons which are inconsistent with those
available to an indemnifying party, the indemnified person or
indemnified persons shall have the right to select one separate
14
counsel (in addition to local counsel) to assume such legal defense and
to otherwise participate in the defense of such action on behalf of such
indemnified person or indemnified persons at such indemnified party's
sole expense. Upon receipt of notice from an indemnifying party to such
indemnified person of its election so to assume the defense of such
action and approval by the indemnified person of counsel, which approval
shall not be unreasonably withheld (and any disapproval shall be
accompanied by a written statement of the reasons therefor), the
indemnifying party will not be liable to such indemnified person
hereunder for any legal or other expenses subsequently incurred by such
indemnified person in connection with the defense thereof. An
indemnifying party will not settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified persons are
actual or potential parties to such claim, action, suit or proceeding)
unless such settlement, compromise or consent includes an unconditional
release of each indemnified person from all liability arising out of
such claim, action, suit or proceeding. An indemnified party will not,
without the prior written consent of the indemnifying party settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder. If it
does so, it waives its right to indemnification therefor.
9. Certain Covenants of DST and the Fund.
A. All requisite steps will be taken by the Fund from time to time when and
as necessary to register, or qualify, as applicable, the Fund's shares
for sale in all states in which the Fund's shares shall at the time be
offered for sale and require registration or qualification. If at any
time the Fund receives notice or becomes aware of any stop order or
other proceeding in any such state affecting such registration or the
sale of the Fund's shares, or of any stop order or other proceeding
under the federal securities laws affecting the sale of the Fund's
shares, the Fund will give prompt notice thereof to DST.
B. DST hereby agrees to perform such transfer agency functions as are set
forth in Section 4.D. above and establish and maintain facilities and
procedures reasonably acceptable to the Fund for safekeeping of check
forms, and facsimile signature imprinting devices, if any; and for the
preparation or use, and for keeping account of, such forms and devices,
and to carry such insurance as it considers adequate and reasonably
available.
15
C. DST agrees that all records maintained by DST relating to services to be
performed by DST under this Agreement are the property of the Fund and
will be preserved and will be surrendered promptly to the Fund on
request.
D. DST agrees to furnish the Fund annual reports of DST's financial
condition, consisting of a balance sheet, earnings statement and any
other public financial information reasonably requested by the Fund. The
annual financial statements will be certified by DST's certified public
accountants.
E. DST represents and agrees that it will use its reasonable efforts to
keep current on the trends of the transfer agent industry relating to
securityholder services and will use its reasonable efforts to continue
to modernize and improve its systems.
F. DST will permit the Fund and its authorized representatives (subject to
execution of DST's standard confidentiality and non-use agreement) to
make periodic inspections of its operations as such involves or is
utilized by DST to provide services to the Fund at reasonable times
during business hours. DST will permit duly authorized federal examiners
to make periodic inspections of its operations as such would involve the
Fund to obtain, inter alia, information and records relating to DST's
performance of its Compliance + Program or Identity Theft Program
obligations and to inspect DST's operations for purposes of the
Program." Any costs imposed by such examiners in connection with such
examination (other than fines or other penalties) shall be paid by the
Fund. Notwithstanding anything herein to the contrary, DST is authorized
to and will permit the Internal Revenue Service and any other tax
authority to inspect its operations in connection with examinations by
any such authority of DST's or other taxpayer's compliance with the tax
laws, and the costs of each such inspection and examination shall be
paid by the Fund to the extent that the examination relates to DST's
performance of services under this Agreement.
10. Recapitalization or Readjustment.
In case of any recapitalization, readjustment or other change in the
capital structure of the Fund requiring a change in the shares contained in
book entry form on the stock record of the Fund as maintained by DST, DST
will effectuate or transfer ownership of, the outstanding shares in book
entry, upon receiving:
A. Written instructions from an officer of the Fund;
16
B. Certificate of the Secretary of the Fund certifying the amendment to the
Declaration of Trust of the Fund or other document effecting the change,
if such amendment or other documents is required;
C. Certified copy of any order or consent of each governmental or
regulatory authority, required by law to the issuance of new book entry
shares, and an opinion of counsel that the order or consent of no or no
other government or regulatory authority is required;
D. Certificate of the Secretary of the Fund stating:
(1) The status of the shares of stock of the Fund in the new form under
the 1933 Act, as amended and any other applicable federal or state
statute; and
(2) That the issued shares in the new form are, and all unissued shares
will be, when issued, validly issued, fully paid and non-assessable.
11. Omitted.
12. Death, Resignation or Removal of Signing Officer.
The Fund will promptly provide DST written notice of any change in the
officers authorized to sign stock certificates, written instructions or
requests, together with two signature cards bearing the specimen signature
of each newly authorized officer.
13. Future Amendments of Declaration of Trust and Bylaws.
The Fund will promptly provide DST with copies of all material amendments
to its Declaration of Trust or Bylaws made after the date of this Agreement.
14. Instructions, Opinion of Counsel and Signatures.
At any time DST may apply to any person authorized by the Fund to give
instructions to DST, and may with the prior written approval of a the Fund
officer consult with legal counsel for the Fund at the expense of the Fund,
or DST's own legal counsel, with respect to any matter arising in
connection with the agency and it will not be liable for any action taken
or omitted by it in good faith in reliance upon such instructions or upon
the opinion of such counsel. In connection with services provided by DST
under this Agreement that relate to compliance by the Fund with the
Internal Revenue Code of 1986 or any other tax law, including without
limitation the services described in Section 4.D(x), DST shall have no
obligation to continue to provide such services after it has asked the Fund
to give it instructions which it believes are needed by it to so continue
to provide such services and before it receives the needed instructions
from the Fund, and DST shall have no liability for any damages (including
without limitation penalties imposed by any tax authority) caused by or
that result from its failure to provide services as contemplated by this
sentence. DST will be protected in acting upon any paper or document
reasonably believed by it
17
to be genuine and to have been signed by the proper person or persons and
will not be held to have notice of any change of authority of any person,
until receipt of written notice thereof from the Fund.
15. Force Majeure and Disaster Recovery Plans.
A. DST shall not be responsible or liable for its failure or delay in
performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable
control, including, without limitation: any interruption, loss or
malfunction of any utility, transportation, computer (hardware or
software) or communication service; inability to obtain labor, material,
equipment or transportation, or a delay in mails; governmental or
exchange action, statute, ordinance, rulings, regulations or direction;
war, strike, riot, emergency, civil disturbance, terrorism, vandalism,
explosions, labor disputes, freezes, floods, fires, tornados, acts of
God or public enemy, revolutions, or insurrection; or any other cause,
contingency, circumstance or delay not subject to DST's reasonable
control which prevents or hinders DST's performance hereunder.
B. DST shall provide back-up facilities to the data center or centers used
by DST to provide the transfer agency services hereunder (collectively,
the "Back-Up Facilities") capable of supplying the transfer agency
services specified herein to the Fund in case of damage to the primary
facility providing those services. The back-up to the data center
operations facility will have no other function that could not be
suspended immediately for an indefinite period of time to the extent
necessary to allow, or continue to be supported while allowing, the
facility to function as a back-up facility and support all functionality
scheduled to be supported in DST's Business Contingency Plan. Transfer
to the Back-Up Facility shall commence promptly after the DST's
declaration of a disaster and shall be conducted in accordance with
DST's Business Contingency Plan, which Plan calls for the transfer of
TA2000 to the Back-Up Facilities to be completed within 4 hours after
DST's declaration of a disaster. The Fund shall not bear any costs (in
addition to the Fees and charges set forth in Exhibit B attached hereto)
related to such transfer. At least once annually, DST shall complete a
successful test of the Business Contingency Plan.
C. DST also currently maintains, separate from the area in which the
operations which provides the services to the Fund hereunder are
located, a Crisis Management Center consisting of phones, computers and
the other equipment necessary to operate a full service transfer agency
business in the event one of its operations areas is rendered inoperable.
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The transfer of operations to other operating areas or to the Crisis
Management Center is also covered in DST's Business Contingency Plan.
16. Certification of Documents.
The required copy of the Certificate of Trust of the Fund and copies of all
amendments thereto will be certified by the Secretary of State (or other
appropriate official) of Delaware, and if such Certificate of Trust and
amendments are required by law to be also filed with a county, city or
other officer of official body, a certificate of such filing will appear on
the certified copy submitted to DST. A copy of the order or consent of each
governmental or regulatory authority required by law to the issuance of the
stock will be certified by the Secretary or Clerk of such governmental or
regulatory authority, under proper seal of such authority. The copy of the
Declaration of Trust and Bylaws and copies of all amendments thereto, and
copies of resolutions of the Board of Trustees of the Fund, will be
certified by the Secretary or an Assistant Secretary of the Fund.
17. Records.
DST will maintain customary transfer agent records in connection with its
agency, and particularly will maintain those records required to be
maintained pursuant to subparagraph (2) (iv) of paragraph (b) of Rule 31a-1
under the 1940 Act, if any. Notwithstanding anything in this Agreement to
the contrary, the records to be maintained and preserved by DST on the
TA2000 System under this Agreement shall be maintained and preserved in
accordance with the following:
A. Annual Purges by August 31: DST and the Fund shall mutually agree upon a
date for the annual purge of the appropriate history transactions from
the Transaction History (A88) file for accounts (both regular and tax
advantaged accounts) that were open as of January 1 of the current year,
such purge to be complete no later than August 31. Purges completed
after this date will subject the Fund to the Aged History Retention fees
set forth in the Fee Schedule attached hereto as Exhibit B.
B. Purge Criteria: In order to avoid the Aged History Retention fees,
history data for regular or ordinary accounts (that is, non-tax
advantaged accounts) must be purged if the confirmation date of the
history transaction is prior to January 1 of the current year and
history data for tax advantaged accounts (retirement and educational
savings accounts) must be purged if the confirmation date of the history
transaction is prior to January 1 of the prior year. All purged history
information shall be retained on magnetic tape for seven (7) years.
19
C. Purged History Retention Options (entail an additional fee): For the
additional fees set forth on the Fee Schedule attached hereto as Exhibit
B, the Fund may choose (i) to place purged history information on the
Purged Transaction History (A19) table or (ii) to retain history
information on the Transaction History (A88) file beyond the timeframes
defined above. Retaining information on the A19 table allows for viewing
of this data through online facilities and E-Commerce applications. This
database does not support those histories being printed on statements
and reports and is not available for on request job executions.
18. Disposition of Books, Records and Canceled Certificates.
DST may send periodically to the Fund, or to where designated by the Fund,
all books, documents, and all records no longer deemed needed for current
purposes, upon the understanding that such books, documents, and records
will be maintained by the Fund or the Fund under and in accordance with the
requirements of Section 17Ad-7 adopted under the 1934 Act, including by way
of example and not limitation Section 17Ad-7(g) thereof. Such materials
will not be destroyed by the Fund or the Fund without the consent of DST
(which consent will not be unreasonably withheld), but will be safely
stored for possible future reference.
19. Provisions Relating to DST as Transfer Agent.
A. Before making any original issue of shares, the Fund will furnish DST
with sufficient funds to pay all required taxes on the original issue of
the stock, if any. The Fund will furnish DST such evidence as may be
required by DST to show the actual value of the shares. If no taxes are
payable, DST will be furnished with an opinion of outside counsel to
that effect.
B. Shares of stock will be transferred by book entry in accordance with the
instructions of the securityholders thereof and, upon receipt of the
Fund's instructions that shares of stock be redeemed and funds remitted
therefor, such redemptions will be accomplished and payments dispatched
provided the securityholder instructions are deemed by DST to be
properly endorsed by an appropriate person to originate such
instructions under applicable law accompanied by such documents as DST
may deem necessary to evidence the authority of the person making the
transfer or redemption. DST reserves the right to refuse to transfer or
redeem shares until it is satisfied that the endorsement or signature on
the certificate or any other document is valid and genuine, and for that
purpose it may require a guaranty of signature in accordance with the
Signature Guarantee Procedures. DST also reserves the right to refuse to
transfer or redeem shares until it is satisfied that the requested
20
transfer or redemption is legally authorized, and it will incur no
liability for the refusal in good faith to make transfers or redemptions
which, in its judgment, are improper or unauthorized. DST may, in
effecting transfers or redemptions, rely upon the Procedures,
Simplification Acts, Uniform Commercial Code or other statutes that
protect DST and the Fund or both in not requiring complete fiduciary
documentation. In cases in which DST is not directed or otherwise
required to maintain the consolidated records of securityholder's
accounts, DST will not be liable for any loss which may arise by reason
of not having such records.
C. DST will supply a securityholders list to the Fund for the Fund's annual
meeting upon receiving a request from an officer of the Fund. It will
also, at the expense of the Fund, supply lists at such other times as
may be requested by an officer of the Fund.
D. Upon receipt of written instructions of an officer of the Fund, DST
will, at the expense of the Fund, address and mail notices to
securityholders.
E. In case of any request or demand for the inspection of the stock books
of the Fund or any other books in the possession of DST, DST will
endeavor to notify the Fund, and to secure instructions as to permitting
or refusing such inspection. DST reserves the right, however, to exhibit
the stock books or other books to any person in case it is advised by
its counsel that it may be held responsible for the failure to exhibit
the stock books or other books to such person.
F. DST agrees to furnish the Fund with (1) annual reports of its financial
condition, consisting of a balance sheet, earnings statement and any
other financial information as is made public by DST in connection with
the foregoing and (2) semi-annually with a copy of a SSAE 16 or
successor Report issued by DST's certified public accountants pursuant
to Rule 17Ad-13 under the 1934 Act as filed with SEC. The annual
financial statements will be certified by DST's certified public
accountants and the posting of a current copy thereof on DST's website
shall be deemed to be delivery to the Fund.
G. (1) DST shall assist the Fund to fulfill certain of its responsibilities
under certain provisions of USA PATRIOT Act, Xxxxxxxx-Xxxxx Act,
Title V of Gramm Xxxxx Xxxxxx Act, the Red Flags Regulations
promulgated jointly by the Office of the Comptroller of the
Currency, Treasury (OCC); Board of Governors of the Federal Reserve
System (Board); Federal Deposit Insurance Corporation (FDIC); Office
of Thrift Supervision, Treasury (OTS); National Credit Union
Administration (NCUA); and Federal Trade Commission (FTC or
Commission) implementing
21
section 114 of the Fair and Accurate Credit Transactions Act of 2003
(FACT Act) and final rules implementing section 315 of the FACT Act,
and the applicable federal securities laws (collectively the "Reform
Regulations"), by complying with Compliance +(TM), a compliance
program that focuses on certain business processes that represent key
activities of the transfer agent/service provider function (the
"Compliance + Program"), a copy of which has hitherto been made
available to Fund. These business processes are anti-money
laundering, identity theft, red flag reporting, certificate
processing, correspondence processing, fingerprinting, lost
securityholder processing, reconciliation and control, transaction
processing, transfer agent administration and safeguarding fund
assets and securities. DST reserves the right to make changes thereto
as experience suggests alternative and better ways to perform the
affected function. DST shall provide you with written notice of any
such changes.
(2) DST shall (i) perform the procedures set forth in the Compliance +
Program, as amended by DST from time to time, which pertain to DST's
performance of those transfer agency services in accordance with the
terms and conditions set forth in this Agreement, (ii) implement and
maintain internal controls and procedures reasonably necessary to
insure that DST's employees act in accordance with the Compliance +
Program, and (iii) provide the Fund with written notice of any
material changes made to the Program as attached hereto.
(3) Notwithstanding the foregoing, DST's obligations shall be solely as
are set forth in this Section and in the Compliance + Program, as
amended, and any of the obligations under the enumerated Acts and
Regulations that DST has not agreed to perform on the Fund's behalf
under the Compliance + Program or under this Agreement shall remain
the Fund's sole obligation.
H. With respect to DST's activities under the Compliance + Program, DST
will permit duly authorized governmental and self-regulatory examiners
to make periodic inspections of its operations as such would involve the
Fund to obtain, inter alia, information and records relating to DST's
performance of its obligations under the Compliance + Program and to
inspect DST's operations for purposes of determining DST's compliance
with the Identity Theft Program. Any costs imposed by such examiners in
connection with such examination (other than fines or other penalties
arising solely out of DST's failure to fulfill its obligations under the
Compliance + Program) shall be paid by the Fund.
22
I. The Fund hereby advises DST that even though the shares of the Fund will
be sold through broker-dealers who have executed selling group or dealer
agreements with the Fund or its principal underwriter, the operational
nature of the trading will be such that those broker-dealers will not be
assuming all obligations and responsibilities under applicable laws with
respect to CIP, Identity Theft and the Red Flag Regulations. Therefore,
these CIP, Identity Theft and the Red Flag Regulations obligations and
responsibilities are among the obligations and responsibilities that the
Fund is employing DST to provide or fulfill, though DST's Compliance +
Program.
J. DST shall establish on behalf of the Fund banking relationships for the
conduct of the business of the Fund in accordance with the terms set
forth in Section 20.D. of this Agreement.
20. Provisions Relating to Dividend Disbursing and Paying Agency (as well as
the receipt, deposit and payment of funds by the Transfer Agent in
connection with the purchase and redemption of Funds shares).
A. DST will, at the expense of the Fund, provide a special form of check
containing the imprint of any device or other matter desired by the
Fund. Said checks must, however, be of a form and size convenient for
use by DST.
B. If the Fund desires to include additional printed matter, financial
statements, etc., with the dividend checks, the same will be furnished
DST within a reasonable time prior to the date of mailing of the
dividend checks, at the expense of the Fund.
C. If the Fund desires its distributions mailed in any special form of
envelopes, sufficient supply of the same will be furnished to DST but
the size and form of said envelopes will be subject to the approval of
DST. If stamped envelopes are used, they must be furnished by the Fund;
or if postage stamps are to be affixed to the envelopes, the stamps or
the cash necessary for such stamps must be furnished by the Fund.
D. DST, acting as agent for the Fund, is hereby authorized (1) to establish
in the name of, and to maintain on behalf of, the Fund, on the usual
terms and conditions prevalent in the industry, including limits or caps
(based on fees paid over some period of time or a flat amount, as
required by the affected Bank) on the maximum liability of such Banks,
as hereinafter defined, one or more deposit accounts at a nationally or
regionally known banking institution (the "Bank") into which DST shall
deposit the funds DST receives for payment of dividends, distributions,
purchases of Fund shares, redemptions of Fund shares, commissions,
corporate re-organizations (including recapitalizations or liquidations)
or any
23
other disbursements made by DST on behalf of the Fund provided for in
this Agreement, (2) to draw checks upon such accounts, to issue orders
or instructions to the Bank for the payment out of such accounts as
necessary or appropriate to accomplish the purposes for which such funds
were provided to DST, and (3) to establish, to implement and to transact
Fund business through Automated Clearinghouse ("ACH"), Draft Processing,
Wire Transfer and any other banking relationships, arrangements and
agreements with such Bank as are necessary or appropriate to fulfill
DST's obligations under this Agreement. DST, acting as agent for the
Fund, is also hereby authorized to execute on behalf and in the name of
the Fund, on the usual terms and conditions prevalent in the industry,
including limits or caps (based on fees paid over some period of time or
a flat amount, as required by the affected Bank) on the maximum
liability of such Banks, agreements with banks for ACH, wire transfer,
draft processing services, as well as any other services which are
necessary or appropriate for DST to utilize to accomplish the purposes
of this Agreement. In each of the foregoing situations, the Fund shall
be liable on such agreements with the Bank as if it itself had executed
the agreement and DST shall not be personally liable on such agreements,
but DST's liability shall be judged under the standards set forth in
this Agreement. DST shall not be liable for any Adverse Consequences
arising out of or resulting from errors or omissions of the Bank
provided, however, that DST shall have acted in good faith and with due
diligence.
E. DST is authorized and directed to stop payment of checks theretofore
issued hereunder, but not presented for payment, when the payees thereof
allege either that they have not received the checks or that such checks
have been mislaid, lost, stolen, destroyed or through no fault of
theirs, are otherwise beyond their control, and cannot be produced by
them for presentation and collection, and, to issue and deliver
duplicate checks in replacement thereof.
21. Assumption of Duties By the Fund or Agents Designated By the Fund.
A. The Fund or its designated agents other than DST may assume certain
duties and responsibilities of DST or those services of Transfer Agent
and Dividend Disbursing Agent as those terms are referred to in
Section 4.D. of this Agreement, including but not limited to answering
and responding to telephone inquiries from securityholders and brokers,
accepting securityholder and broker instructions (either or both oral
and written) and transmitting orders based on such instructions to DST,
preparing and mailing confirmations, obtaining certified TIN numbers,
classifying the status of securityholders
24
and securityholder accounts under applicable tax law, establishing
securityholder accounts on the TA2000 System and assigning social codes
and Taxpayer Identification Number codes thereof, and disbursing monies
of the Fund, said assumption to be embodied in writing to be signed by
both parties.
B. To the extent the Fund or its agent or affiliate assumes such duties and
responsibilities, DST shall be relieved from all responsibility and
liability therefor and is hereby indemnified and held harmless against
any liability therefrom and in the same manner and degree as provided
for in Section 8 hereof.
22. Termination of Agreement.
A. This Agreement shall be in effect upon execution by both the Fund and
DST and shall continue in full force and effect for an initial period of
five (5) years (the "Initial Term") commencing upon the first use of
DST's Services in production after the conversion of the Fund's
securityholder records onto TA2000. Effective upon the last day of such
initial five (5) year term, this Agreement may be terminated by either
the Fund or DST as of the last day of the then current term by the
giving to the other party of at least six months prior written notice,
provided, however, that the effective date of any termination shall not
occur during the period from December 15 through March 30 of any year to
avoid adversely impacting year end. If such notice is not given by
either party to the other at least six months prior to the end of the
Initial Term or any then current term, this Agreement shall
automatically extend for a new term equivalent to the same number of
years as the Initial Term unless a different period is contained in any
new Fee Schedule as the period during which such Fee Schedule shall be
effective (in which latter event the period for which the Fee Schedule
applies shall be the length of the new term), each such successive term
or period, as applicable, being a new "term" of this Agreement, upon the
expiration of any term hereof unless terminated as hereinafter provided
in Section 22. B.
B. Each party, in addition to any other rights and remedies, shall have the
right to terminate this Agreement forthwith upon the occurrence at any
time of any of the following events with respect to the other party:
(1) The bankruptcy of the other party or its assigns or the appointment
of a receiver for the other party or its assigns; or
(2) A material breach of this Agreement by the other party, which breach
continues for thirty (30) days after receipt of written notice from
the first party; or
25
(3) Failure by the Fund to pay Compensation and Expenses as they become
due, which failure continues for thirty (30) days after receipt of
written notice from DST.
C. In the event of termination, the Fund will promptly pay DST all amounts
due to DST hereunder and DST will use its reasonable efforts to transfer
the records of the Fund to the designated successor transfer agent, to
provide reasonable assistance to the Fund and its designated successor
transfer agent, and to provide other information relating to its
services provided hereunder (subject to the recompense of DST for such
assistance at its standard rates and fees for personnel then in effect
at that time); provided, however, as used herein "reasonable assistance"
and "other information" shall not include assisting any new service or
system provider to modify, alter, enhance, or improve its system or to
improve, enhance, or alter its current system, or to provide any new,
functionality or to require DST to disclose any DST Confidential
Information, as hereinafter defined, or any information which is
otherwise confidential to DST.
23. Confidentiality.
A. DST agrees that, except as provided in the last sentence of
Section 19.E. hereof, or as otherwise required by law, DST will keep
confidential all records of and information in its possession relating
to the Fund or its securityholders or securityholder accounts and will
not disclose the same to any person not an affiliate of DST except as
necessary to fulfill DST's obligations under this Agreement or at the
request or with the consent of the Fund.
B. The Fund agrees that, except as otherwise required by law, the Fund will
keep confidential all financial statements and other financial or
operational records received from DST, the terms and provisions of this
Agreement, all accountant's reports relating to DST, and all manuals,
systems and other technical information and data, not publicly
disclosed, relating to DST's operations and programs furnished to it by
DST pursuant to this Agreement and will not disclose the same to any
person not an affiliate of the Fund except as necessary to fulfill the
Fund's obligations under this Agreement or at the request or with the
consent of DST.
C. (1) The Fund acknowledges that DST has proprietary rights in and to the
TA2000 System used to perform services hereunder including, but not
limited to the maintenance of securityholder accounts and records,
processing of related information and generation of output,
including, without limitation any changes or modifications of the
TA2000 System and any other DST programs, data bases,
26
supporting documentation, or procedures (collectively "DST
Confidential Information") which the Fund's access to the TA2000
System or computer hardware or software may permit the Fund or its
employees or agents to become aware of or to access and that the DST
Confidential Information constitutes confidential material and trade
secrets of DST. The Fund agrees to maintain the confidentiality of
the DST Confidential Information, except as otherwise required by law.
(2) The Fund acknowledges that any unauthorized use, misuse, disclosure
or taking of DST Confidential Information which is confidential as
provided by law, or which is a trade secret, residing or existing
internal or external to a computer, computer system, or computer
network, or the knowing and unauthorized accessing or causing to be
accessed of any computer, computer system, or computer network, may
be subject to civil liabilities and criminal penalties under
applicable state law. The Fund will advise all of its employees and
agents who have access to any DST Confidential Information or to any
computer equipment capable of accessing DST or DST hardware or
software of the foregoing.
(3) The Fund acknowledges that disclosure of the DST Confidential
Information may give rise to an irreparable injury to DST
inadequately compensable in damages. Accordingly, DST may seek
(without the posting of any bond or other security) injunctive relief
against the breach of the foregoing undertaking of confidentiality
and nondisclosure, in addition to any other legal remedies which may
be available, and the Fund consents to the obtaining of such
injunctive relief. All of the undertakings and obligations relating
to confidentiality and nondisclosure, whether contained in this
Section or elsewhere in this Agreement shall survive the termination
or expiration of this Agreement for a period of ten (10) years;
provided that, to the extent Confidential Information includes
information that is also a Trade Secret as defined by the Uniform
Trade Secrets Act, the obligation to protect such Trade Secrets shall
survive the termination of this Agreement and shall remain for so
long as such Confidential Information constitutes a Trade Secret, as
defined by the Uniform Trade Secrets Act.
(4) In the event the Fund obtains information from DST or the TA2000
System which is not intended for the Fund, the Fund agrees to
(i) immediately, and in no case more than twenty-four (24) hours
later, notify DST that unauthorized information has been
27
made available to the Fund; (ii) after identifying that such
information is not intended for the Fund, not review, disclose,
release, or in any way, use such unauthorized information;
(iii) provide DST reasonable assistance in retrieving such
unauthorized information and/or destroy such unauthorized
information; and (iv) deliver to DST a certificate executed by an
authorized officer of the Fund certifying that all such unauthorized
information in the Fund's possession or control has been delivered to
DST or destroyed as required by this provision.
24. Changes and Modifications.
A. During the term of this Agreement DST will use on behalf of the Fund
without additional cost all modifications, enhancements, or changes
which DST may make to the TA2000 System in the normal course of its
business and which are applicable to functions and features offered by
the Fund, unless substantially all DST clients are charged separately
for such modifications, enhancements or changes, including, without
limitation, substantial system revisions or modifications necessitated
by changes in existing laws, rules or regulations. The Fund agrees to
pay DST promptly for modifications and improvements that are charged for
separately at the rate provided for in DST's standard pricing schedule
which shall be identical for substantially all clients, if a standard
pricing schedule shall exist. If there is no standard pricing schedule,
the parties shall mutually agree upon the rates to be charged.
B. DST shall have the right, at any time and from time to time, to alter
and modify any systems, programs, procedures or facilities used or
employed in performing its duties and obligations hereunder; provided
that the Fund will be notified as promptly as possible prior to
implementation of such alterations and modifications and that no such
alteration or modification or deletion shall materially adversely change
or affect the operations and procedures of the Fund in using or
employing the TA2000 System or DST Facilities hereunder or the reports
to be generated by such system and facilities hereunder, unless the Fund
is given thirty (30) days prior notice to allow the Fund to change its
procedures and DST provides the Fund with revised operating procedures
and controls.
C. At the Fund's expense, DST will use reasonable efforts to make any
reasonable changes to the TA2000/ /System requested by the Fund ("Client
Requested Software"). Charges attendant to the development of Client
Requested Software shall be at DST's standard rates and fees in effect
at the time. If the cost to DST of operating the TA2000/ /System is
increased by the addition of Client Requested Software, DST shall be
entitled to increase its
28
fees by an amount to be mutually agreed upon. Significant new features or
functions which are utilized by the Fund may be charged for on a pro rata
basis, as provided in Section 24.A, above.
D. All enhancements, improvements, changes, modifications or new features
added to the TA2000 System however developed or paid for, including,
without limitation, Client Requested Software (collectively,
"Deliverables"), shall be, and shall remain, the confidential and
exclusive property of, and proprietary to, DST. The parties recognize
that during the Term of this Agreement the Fund will disclose to DST,
Confidential Information of the Fund and, from time to time, DST may
partly rely on such Confidential Information of the Fund to design,
structure or develop a Deliverable. Provided that, as developed, such
Deliverable contains no Confidential Information of the Fund that
identifies the Fund, (i) the Fund hereby consents to DST's use of such
Confidential Information to design, to structure or to determine the
scope of such Deliverable or to incorporate into such Deliverable and
that any such Deliverable, regardless of who paid for it, shall be, and
shall remain, the sole and exclusive property of DST and (ii) the Fund
hereby grants DST a perpetual, nonexclusive license to incorporate and
retain in such Deliverables Confidential Information of the Fund. All
Confidential Information of the Fund shall be and shall remain the
property of the Fund and shall remain protected under Section 23(A).
25. Third Party Vendors.
Nothing herein shall impose any duty upon DST in connection with or make
DST liable for the actions or omissions to act of the following types of
unaffiliated third parties: (a) courier and mail services including but not
limited to Airborne Services, Federal Express, UPS and the U.S. Mails,
(b) telecommunications companies including but not limited to AT&T, Sprint,
MCI and other delivery, telecommunications and other such companies not
under the party's reasonable control, and (c) third parties not under the
party's reasonable control or subcontract relationship providing services
to the financial industry generally, such as, by way of example and not
limitation, the National Securities Clearing Corporation (processing and
settlement services), Fund custodian banks (custody and fund accounting
services) and administrators (blue sky and Fund administration services),
and national database providers such as Choice Point, Acxiom, TransUnion or
Lexis/Nexis and any replacements thereof or similar entities, provided, if
DST selected such company, DST shall have exercised due care in selecting
the same. Such third party vendors shall not be deemed, and are not,
subcontractors for purposes of this Agreement.
29
26. Limitations on Liability.
A. If the Fund is comprised of more than one portfolio or program, each
portfolio or program shall be regarded for all purposes hereunder as a
separate party apart from each other portfolio or program. Unless the
context otherwise requires, with respect to every transaction covered by
this Agreement, every reference herein to the Fund shall be deemed to
relate solely to the particular portfolio or program to which such
transaction relates. Under no circumstances shall the rights,
obligations or remedies with respect to a particular portfolio or
program constitute a right, obligation or remedy applicable to any other
portfolio or program. The use of this single document to memorialize the
separate agreement of each portfolio or program is understood to be for
clerical convenience only and shall not constitute any basis for joining
the portfolios or programs for any reason.
B. Notice is hereby given that a copy of the Fund's Certificate of Trust
and all amendments thereto is on file with the Secretary of State of the
State of Delaware; that this Agreement has been executed on behalf of
the Fund by the undersigned duly authorized representative of the Fund
in his/her capacity as such and not individually; and that the
obligations of this Agreement shall only be binding upon the assets and
property of the Fund and shall not be binding upon any trustee, officer
or securityholder of the Fund individually.
27. Miscellaneous.
A. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of the
State of Missouri, excluding that body of law applicable to choice of
law.
B. All terms and provisions of this Agreement shall be binding upon, inure
to the benefit of and be enforceable by the parties hereto and their
respective successors and permitted assigns.
C. The representations and warranties, and the indemnification extended
hereunder, if any, are intended to and shall continue after and survive
the expiration, termination or cancellation of this Agreement.
D. No provisions of this Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by each
party hereto.
E. 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.
30
F. 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.
G. If any part, term or provision of this Agreement is by the courts held
to be illegal, in conflict with any law or otherwise invalid, the
remaining portion or portions shall be considered severable and not be
affected, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the
particular part, term or provision held to be illegal or invalid.
H. Except as otherwise provided herein, this Agreement may not be assigned
by the Fund or DST without the prior written consent of the other. DST
may assign this Agreement, in whole or in part, or subcontract certain
of its obligations hereunder, to any domestic or foreign affiliate of
DST. Upon request of the Fund, DST will provide the Fund with a list of
any subcontractors unaffiliated with DST who are: (i) engaged to provide
services specific to the Fund or the Fund, and (ii) who will have access
to Fund securityholder information.
I. Neither the execution nor performance of this Agreement shall be deemed
to create a partnership or joint venture by and between the Fund and
DST. It is understood and agreed that all services performed hereunder
by DST shall be as an independent contractor and not as an employee of
the Fund. This Agreement is between DST and the Fund and neither this
Agreement nor the performance of services under it shall create any
rights in any third parties. There are no third party beneficiaries
hereto.
J. Except as specifically provided herein, this Agreement does not in any
way affect any other agreements entered into among the parties hereto
and any actions taken or omitted by any party hereunder shall not affect
any rights or obligations of any other party hereunder.
K. The failure of either party to insist upon the performance of any terms
or conditions of this Agreement or to enforce any rights resulting from
any breach of any of the terms or conditions of this Agreement,
including the payment of damages, shall not be construed as a continuing
or permanent waiver of any such terms, conditions, rights or privileges,
but the same shall continue and remain in full force and effect as if no
such forbearance or waiver had occurred.
L. This Agreement constitutes the entire agreement between the parties
hereto and supersedes any prior agreement, draft or agreement or
proposal with respect to the subject matter hereof, whether oral or
written, and this Agreement may not be modified except by written
instrument executed by both parties.
31
M. All notices to be given hereunder shall be deemed properly given if
delivered in person or if sent by U.S. mail, first class, postage
prepaid, or if sent by facsimile and thereafter confirmed by mail as
follows:
If to DST:
DST Systems, Inc.
0000 Xxxxxxxx, 0/xx/ Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: President Asset Management Services
Facsimile No.: 000-000-0000
With a copy of non-operational notices to:
DST Systems, Inc.
000 Xxxx 00/xx/ Xxxxxx, 0/xx/ Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Legal Department
Facsimile No.: 000-000-0000
If to the Fund:
Pioneer ILS Interval Fund
00 Xxxxx Xxxxxx 00/xx/ Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X'Xxxxxxx
Facsimile No.:000-000-0000
or to such other address as shall have been specified in writing by the
party to whom such notice is to be given.
N. DST and the Fund (including all agents of the Fund) agree that, during
any term of this Agreement and for twelve (12) months after its
termination, neither party will solicit for employment or offer
employment to any employees of the other.
O. The representations and warranties contained herein shall survive the
execution of this Agreement and the performance of services hereunder
and the provisions of Section 8 of this Agreement shall survive the
termination of the Agreement and the performance of services hereunder
until any statute of limitations applicable to the matter at issues
shall have expired.
P. DST will not be precluded from offering services similar to those
offered to the Fund(s) to other parties, including competitors of the
Fund(s).
32
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized officers, to be effective as of the day and
year first above written.
PIONEER ILS INTERVAL FUND
By: /s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
DST SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
33
SCHEDULE A
LIST OF TRUSTS
Name: CUSIP
PIONEER ILS INTERVAL FUND 00000X000
34
SERVICES PROVIDED
================================================================================
. Distribution Center
. Receipt and sort of incoming mail
. Creation of electronic images for all paper received
. Automated distribution of work based on assigned priority
. Issuance of redemption and replacement checks
. Transaction Processing
. New Account Establishment
. Account Maintenance
. Purchases
. Redemptions
. Transfers
. Interval Fund Services
. Manage quarterly purchase gates
. Manage quarterly repurchase process
. Gathering and reporting of subscription/commitment letters
. Manage firm level interval fund processes
. Gathering and reporting of repurchase letters
. Control
. Input of daily prices and dividend rates
. Processing of dividend and capital gain distributions
. Reconciliation of daily bank accounts
. Blue Sky Transmissions/Support
. Commission Processing and Reconciliation
. Cash and Share Reconciliation
. Year-End
. IRS Reporting
. 1099
. 5498
. Broker Servicing (phones)
. Inquiry
. Correspondence
. Commission Inquiries
. Shareholder Servicing (phones)
. Inquiry
. Telephone Transactions
. Correspondence
. Internet Support
For clarification, none of the Services outlined in this Exhibit A.1 or
outlined in 4.D, if performed in accordance with DST's standard practices,
constitute Exception Services.
EXHIBIT B
AUTHORIZED PERSONNEL
Pursuant to Section 8.A. of the Agency Agreement between Pioneer ILS Interval
Fund (the "Fund") and DST (the "Agreement"), the Fund authorizes the following
Fund personnel to provide instructions to DST, and receive inquiries from DST
in connection with the Agreement:
Name Title
---- -----
This Exhibit may be revised by the Fund by providing DST with a substitute
Exhibit B. Any such substitute Exhibit B shall become effective twenty-four
(24) hours after DST's receipt of the document and shall be incorporated into
the Agreement.
EXHIBIT B, p.2
ACKNOWLEDGMENT OF TRUST INSTRUCTION AND DST RECEIPT:
PIONEER ILS INTERVAL FUND
By: /s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
DST SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
