TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of October 28, 1999 by and between PFPC INC.,
a Delaware corporation ("PFPC"), and XXXXXXXXX & XXXXX FUND TRUST, a Delaware
business trust (the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "AUTHORIZED PERSON" means any officer of the Trust and any
other person duly authorized by the Trust's Trustees to give
Oral Instructions and Written Instructions on behalf of the
Trust and listed on the Authorized Persons Appendix attached
hereto and made a part hereof or any amendment thereto as may
be received by PFPC. An Authorized Person's scope of authority
may be limited by
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the Trust by setting forth such limitation in the Authorized
Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person.
(f) "SEC" means the Securities and Exchange Commission.
(g) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(h) "SHARES" mean the shares of beneficial interest of any series
or class of the Trust.
(i) "WRITTEN INSTRUCTIONS" mean written instructions signed by an
Authorized Person and received by PFPC. The instructions may
be delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. The Trust, on behalf of each Portfolio, hereby appoints
PFPC to serve as transfer agent, registrar, dividend disbursing agent
and shareholder servicing agent to the Trust in accordance with the
terms set forth in this Agreement. PFPC accepts such appointment and
agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Trust has provided or, where applicable,
will provide PFPC with the following:
(a) Certified or authenticated copies of the resolutions of the
Trust's Trustees, approving the appointment of PFPC or its
affiliates to provide services to the Trust and approving this
Agreement;
(b) A copy of the Trust's most recent effective registration
statement;
(c) A copy of the advisory agreement with respect to each
investment Portfolio of the Trust (each, a Portfolio);
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(d) A copy of the distribution agreement with respect to each
class of Shares of the Trust;
(e) A copy of each Portfolio's administration agreements if PFPC
or its affiliate is not providing the Portfolio with such
services;
(f) Copies of any shareholder servicing agreements (other than
agreements with financial intermediaries) made in respect of
the Trust 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 the Trust or any of its investment portfolios.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions and
Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
Person) pursuant to this Agreement. PFPC may assume that any
Oral Instruction or Written Instruction received hereunder is
not in any way inconsistent with the provisions of the Trust's
organizational documents or of any vote, resolution or
proceeding of the Trust's Trustees or of the Trust's
shareholders, unless and until PFPC receives Written
Instructions to the contrary.
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(c) The Trust agrees to forward to PFPC Written Instructions
confirming Oral Instructions so that PFPC receives the Written
Instructions by the close of business on the business day
after such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFPC shall
in no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear to have
been received from an Authorized Person, PFPC shall incur no
liability to the Trust in acting upon such Oral Instructions
or Written Instructions provided that PFPC's actions comply
with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE TRUST. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Trust.
(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 at its own cost from such
counsel of its own choosing (who may be counsel for the Trust,
the Trust's investment adviser or PFPC, at the option of
PFPC).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice or Oral Instructions or Written
Instructions PFPC receives from the Trust, and the advice it
receives from counsel, PFPC may rely upon and follow the
advice of counsel. In the event PFPC so relies on the advice
of counsel, PFPC remains liable for any action or omission on
the part of PFPC which constitutes willful misfeasance, bad
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faith, gross negligence or reckless disregard by PFPC of any
duties, obligations or responsibilities set forth in this
Agreement.
(d) PROTECTION OF PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions, advice or
Oral Instructions or Written Instructions it receives from the
Trust or from counsel and which PFPC believes, in good faith,
to be consistent with those directions, advice or Oral
Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon PFPC (i)
to seek such directions, advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such
directions, advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC's properly
taking or not taking such action. Nothing in this subsection
shall excuse PFPC when an action or omission on the part of
PFPC constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by PFPC of any duties,
obligations or responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Trust, which
are in the possession or under the control of PFPC, shall be the
property of the Trust and shall be surrendered promptly on request of
the Trust. Such books and records shall be prepared and maintained by
PFPC as required by the 1940 Act and other applicable securities laws,
rules and regulations. The Trust 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 the Trust, copies of any
such books and records shall be provided by PFPC to
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the Trust or to an Authorized Person, at the Trust's expense.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records of the
Trust and information relating to the Trust and its shareholders,
unless the release of such records or information is otherwise
consented to, in writing, by the Trust. The Trust agrees that such
consent shall not be unreasonably withheld and may not be withheld
where PFPC may be exposed to civil or criminal contempt proceedings or
when required to divulge such information or records to duly
constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Trust's
independent public accountants and shall take all reasonable actions in
the performance of its obligations under this Agreement to ensure that
the necessary information is made available to such accountants for the
expression of their opinion, as required by the Trust.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of
equipment failures, PFPC shall, at no additional expense to the Trust,
take reasonable steps to minimize service interruptions. PFPC shall
have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
11. YEAR 2000 READINESS DISCLOSURE. PFPC (a) has reviewed its business and
operations as they relate to the services provided hereunder, (b) has
developed or is developing a program to remediate or replace computer
applications and systems, and (c) has
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developed a testing plan to test the remediation or replacement of
computer applications/systems, in each case, to address on a timely
basis the risk that certain computer applications/systems used by PFPC
may be unable to recognize and perform properly date sensitive
functions involving dates prior to, including and after December 31,
1999, including dates such as February 29, 2000 (the "Year 2000
Challenge"). To the best of PFPC's knowledge and belief, the reasonably
foreseeable consequences of the Year 2000 Challenge will not adversely
affect PFPC's ability to perform its duties and obligations under this
Agreement.
12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Trust, on behalf of each Portfolio, will
pay to PFPC a fee or fees as may be agreed to from time to time in
writing by the Trust and PFPC.
13. INDEMNIFICATION. The Trust, on behalf of each Portfolio, agrees to
indemnify and hold harmless PFPC and its affiliates from all taxes,
charges, assessments, claims and liabilities (including, without
limitation, liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws, and amendments thereto), and
expenses, including (without limitation) attorneys' fees and
disbursements, arising directly or indirectly from (i) any action or
omission to act which PFPC takes (a) at the request or on the direction
of or in reliance on the advice of the Trust or (b) upon Oral
Instructions or Written Instructions or (ii) the acceptance, processing
and/or negotiation of checks or other methods utilized for the purchase
of Shares. Notwithstanding the preceding sentence, neither PFPC, nor
any of its affiliates, shall be indemnified, and PFPC shall indemnify
and hold harmless the Trust and its affiliates, against any liability
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(or any expenses incident to such liability) arising out of PFPC's or
its affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties and obligations under this Agreement,
provided that in the absence of a finding to the contrary the
acceptance, processing and/or negotiation of a fraudulent payment for
the purchase of Shares shall be presumed not to have been the result of
PFPC's or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of such duties and obligations. Any
amounts payable by the Trust hereunder shall be satisfied only against
the relevant Portfolio's assets and not against the assets of any other
investment portfolio of the Trust.
14. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of
the Trust except as specifically set forth herein or as may be
specifically agreed to by PFPC in writing. PFPC shall be
obligated to exercise care and diligence in the performance of
its duties hereunder, to act in good faith and to use its best
efforts, within reasonable limits, in performing services
provided for under this Agreement. PFPC shall be liable for
any damages arising out of PFPC's failure to perform its
duties under this Agreement to the extent such damages arise
out of PFPC's willful misfeasance, bad faith, gross negligence
or reckless disregard of such duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC shall not be
liable for losses beyond its control, provided that PFPC has
acted in accordance with the standard of care set forth above;
and
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(ii) PFPC shall not be under any duty or obligation to inquire
into and shall not be liable for (A) the validity or
invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument
which conforms to the applicable requirements of this
Agreement, and which PFPC reasonably believes to be genuine;
or (B) subject to Section 10, delays or errors or loss of data
occurring by reason of circumstances beyond PFPC's control,
including acts of civil or military authority, national
emergencies, labor difficulties, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable to the Trust
for any consequential, special or indirect losses or damages
which the Trust may incur or suffer by or as a consequence of
PFPC's or its affiliates' performance of the services provided
hereunder, whether or not the likelihood of such losses or
damages was known by PFPC or its affiliates.
15. DESCRIPTION OF SERVICES.
(a) SERVICES PROVIDED ON AN ONGOING BASIS, IF APPLICABLE.
(i) Calculate 12b-1 payments and sales charges;
(ii) Maintain proper shareholder registrations;
(iii) Review new applications and correspond with
shareholders to complete or correct information;
(iv) Direct payment processing of checks or wires;
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(v) Prepare and certify stockholder lists in conjunction
with proxy solicitations;
(vi) Countersign Share certificates;
(vii) Prepare and mail to shareholders confirmations of
activity;
(viii) Provide toll-free lines for direct shareholder use,
plus customer liaison staff for on-line inquiry
response;
(ix) Mail duplicate confirmations to broker-dealers of
their clients' activity, whether executed through the
broker-dealer or directly with PFPC;
(x) Provide periodic shareholder lists and statistics to
the Trust;
(xi) Provide detailed data for broker confirmations;
(xii) Prepare periodic mailing of year-end tax and
statement information;
(xiii) Notify on a timely basis the investment adviser,
accounting agent, and custodian of Portfolio
activity; and
(xiv) Perform other shareholder services as may be agreed
upon from time to time.
(b) SERVICES PROVIDED BY PFPC UNDER ORAL INSTRUCTIONS OR WRITTEN
INSTRUCTIONS.
(i) Accept and post daily Trust purchases and
redemptions;
(ii) Accept, post and perform shareholder transfers and
exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
(v) Issue and cancel certificates, if any (when requested
in writing by the shareholder).
(c) PURCHASE OF SHARES. PFPC shall issue and credit an account of
an investor, in the manner described in the Trust's
prospectus, once it receives:
(i) A purchase order;
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(ii) Proper information to establish a shareholder
account; and
(iii) Confirmation of receipt or crediting of funds for
such order to the Trust's custodian.
(d) REDEMPTION OF SHARES. PFPC shall redeem Shares only if that
function is properly authorized by the Trust's Declaration of
Trust or resolution of the Trust's Trustees. Shares shall be
redeemed and payment therefor shall be made in accordance with
the Trust's prospectus, when the recordholder submits the
redemption in proper form and directs the method of
redemption. If a redemption submission is received in proper
form, Shares shall be redeemed before the funds are provided
to PFPC from the Trust's custodian (the "Custodian"). If the
recordholder has not directed that redemption proceeds be
wired, when the Custodian provides PFPC with funds, the
redemption check shall be sent to and made payable to the
recordholder, unless:
(i) the surrendered certificate is drawn to the order of
an assignee or holder and transfer authorization is
signed by the recordholder; or
(ii) Transfer authorizations are signed by the
recordholder when Shares are held in book-entry form.
When a broker-dealer notifies PFPC of a redemption desired by
a customer, and the Custodian provides PFPC with funds, PFPC
shall prepare and send the redemption check to the
broker-dealer and made payable to the broker-dealer on behalf
of its customer.
(e) DIVIDENDS AND DISTRIBUTIONS. Upon receipt of a resolution of
the Trust's Trustees authorizing the declaration and payment
of dividends and distributions, PFPC
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shall issue dividends and distributions declared by the Trust
in Shares, or, upon shareholder election, pay such dividends
and distributions in cash, if provided for in the Trust's
prospectus. Such issuance or payment, as well as payments upon
redemption as described above, shall be made after deduction
and payment of the required amount of Trusts to be withheld in
accordance with any applicable tax laws or other laws, rules
or regulations. PFPC shall mail to the Trust's shareholders
such tax forms and other information, or permissible
substitute notice, relating to dividends and distributions
paid by the Trust as are required to be filed and mailed by
applicable law, rule or regulation. PFPC shall prepare,
maintain and file with the IRS and other appropriate taxing
authorities reports relating to all dividends and
distributions paid by the Trust to its shareholders as
required by tax or other law, rule or regulation.
(f) SHAREHOLDER ACCOUNT SERVICES.
(i) PFPC will arrange, in accordance with the prospectus,
for issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders,
checks and applications.
(ii) PFPC will arrange, in accordance with the prospectus,
for a shareholder's:
- Exchange of Shares for shares of another
fund with which the Portfolio has exchange
privileges;
- Automatic redemption from an account where
that shareholder participates in a automatic
redemption plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
(g) COMMUNICATIONS TO SHAREHOLDERS. Upon timely Written
Instructions, PFPC shall
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mail all communications by the Trust to its shareholders,
including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Trust Shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards
for the meetings of the Trust's shareholders.
(h) RECORDS. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class and series of Shares held and number
and class and series of Shares for which
certificates, if any, have been issued, including
certificate numbers and denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions
paid and the date and price for all transactions in a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the current
maintenance of a shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for the transfer
agent to perform any calculations contemplated or
required by this Agreement.
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(i) LOST OR STOLEN CERTIFICATES (IF TRUST ISSUES CERTIFICATES).
PFPC shall place a stop notice against any certificate
reported to be lost or stolen and comply with all applicable
federal regulatory requirements for reporting such loss or
alleged misappropriation. A new certificate shall be
registered and issued only upon:
(i) The shareholder's pledge of a lost instrument bond or
such other appropriate indemnity bond issued by a
surety company approved by PFPC; and
(ii) Completion of a release and indemnification agreement
signed by the shareholder to protect PFPC and its
affiliates.
(j) SHAREHOLDER INSPECTION OF STOCK RECORDS. Upon a request from
any Trust shareholder to inspect stock records, PFPC will
notify the Trust and the Trust will issue Written Instructions
granting or denying such request. Unless PFPC has acted
contrary to the Trust's Written Instructions, the Trust agrees
to, and does hereby, release PFPC from any liability for
refusal of permission for a particular shareholder to inspect
the Trust's stock records.
(k) WITHDRAWAL OF SHARES AND CANCELLATION OF CERTIFICATES.
Upon receipt of Written Instructions, PFPC shall cancel
outstanding certificates surrendered by the Trust and reduce
the total amount of outstanding shares by the number of shares
surrendered by the Trust.
16. DURATION AND TERMINATION. This Agreement shall continue for two years
from the date hereof and continuously thereafter until terminated by
the Trust or by PFPC on sixty (60) days' prior written notice to the
other party. During the term of this Agreement, either party may
terminate this Agreement upon written notice if the other party
materially breaches this Agreement and fails to cure such breach within
thirty (30) days following
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receipt of written notice of breach.
17. NOTICES. All notices and other written communications, including
Written Instructions, shall be delivered by hand, mail, tested
telegram, cable, telex or facsimile sending device. Notices shall be
addressed (a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000; (b) if to the Trust, at Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attn: Xxxxx X. Xxxxx, with a copy to Xxxxxx X.
Xxxxxxxxxx, Esq., at Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000;
or (c) if to neither of the foregoing, at such other address as shall
have been given by like notice to the sender of any such notice or
other communication by the other party. If notice is sent by tested
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.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or PNC Bank Corp., provided that (i) PFPC gives the Trust 30 days
prior written notice of such assignment or delegation, (ii) the
assignee or delegate agrees to comply with all the provisions of this
Agreement, (iii) PFPC and such assignee or delegate promptly provide
such information as the Trust may reasonably request, and respond to
such questions as the Trust may
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reasonably ask, relative to the assignment or delegation (including,
without limitation, the capabilities of the assignee or delegate), and
(iv) PFPC remains responsible for all of its obligations under this
Agreement.
20. 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.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
22. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof.
(b) CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(c) GOVERNING LAW. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
(d) PARTIAL INVALIDITY. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to
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the benefit of the parties hereto and their respective
successors and permitted assigns.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
(g) LIMITATIONS. The obligations assumed by the Trust under this
Agreement are assumed on behalf of each Portfolio separately,
and no Portfolio shall be liable for the obligations of any
other Portfolio. Neither the Trustees nor any of the Trust's
shareholders, officers, employees or agents, whether past,
present or future, shall be personally liable for the
obligations of the Trust or any Portfolio.
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/ Xxxxxx Xxxxxxxx
-----------------------------
Title: Senior Vice President
--------------------------
XXXXXXXXX & XXXXX FUND TRUST
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Title: President
--------------------------
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EXHIBIT A
THIS EXHIBIT A, dated as of October 28, 1999, is Exhibit A to that
certain Transfer Agency Services Agreement dated as of October 28, 1999 between
PFPC Inc. and Xxxxxxxxx & Xxxxx Fund Trust.
PORTFOLIOS
H & Q IPO & Emerging Company Fund
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
Xxxxx X. Xxxxx
----------------------------- --------------------------------
Xxxxxx X. Xxxxxx
----------------------------- --------------------------------
Xxxxxx X. Xxxxxxxxxx
----------------------------- --------------------------------
Xxxxxx X. Xxxxxxxx
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
----------------------------- --------------------------------
Dated: October 28, 1999
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