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EXHIBIT 23(h)(4)
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of May 26, 2000 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and LONGLEAF PARTNERS FUNDS TRUST, a
Massachusetts business trust (the "Fund"), on behalf of each of the series or
portfolios listed on Exhibit A.
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
signed by both parties hereto.
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(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Change of Control" means a change in ownership or control
(not including transactions between wholly-owned direct or
indirect subsidiaries of a common parent) of 25% or more of
the beneficial ownership of the shares of common stock or
shares of beneficial interest of an entity or its parents(s).
(f) "Oral Instructions" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person. PFPC may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(i) "Shares" mean the shares of beneficial interest of any series
or class of the Fund.
(j) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by PFPC or (ii) trade
instructions transmitted (and received by PFPC) by means of an
electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
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3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the
appointment of PFPC or its affiliates to provide services to
the Fund and approving this Agreement;
(b) A copy of the Fund's most recent effective registration
statement;
(c) A copy of the advisory agreement with respect to each
investment Portfolio of the Fund;
(d) A copy of the distribution/underwriting agreement with respect
to each class of Shares of the Fund;
(e) A copy of each Portfolio's administration agreements if PFPC
is not providing the Portfolio with such services;
(f) Copies of any distribution and/or shareholder servicing plans
and agreements made in respect of the Fund or a Portfolio;
(g) A copy of the Fund's organizational documents, as filed with
the state in which the Fund is organized; and
(h) 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 Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or
from a person reasonably believed by
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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 organizational documents or this
Agreement or of any vote, resolution or proceeding of the
Fund's Board of Trustees or of the Fund's shareholders, unless
and until PFPC receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions so that PFPC receives the Written
Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFPC or
differ from the Oral Instructions shall in no way invalidate
the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC's ability to rely
upon such Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received
from an Authorized Person, PFPC shall incur no liability to
the Fund 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 Fund. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC may request advice from counsel
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of its own choosing (who may be counsel for the Fund, the
Fund's investment adviser or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC receives from the Fund, and the advice it
receives from counsel, PFPC may rely upon and follow the
advice of counsel.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions or advice
or Oral Instructions or Written Instructions it receives from
the Fund or from counsel and which PFPC believes, in good
faith, to be consistent with those directions or 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 or advice or Oral
Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions
or Written Instructions 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.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of PFPC, shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFPC's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by PFPC to the Fund or to an
Authorized Person, at the Fund's expense.
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8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Fund or PFPC, their respective subsidiaries
and affiliated companies and the customers, clients and suppliers of
any of them; (b) any scientific or technical information, design,
process, procedure, formula, or improvement that is commercially
valuable and secret in the sense that its confidentiality affords the
Fund or PFPC a competitive advantage over its competitors; (c) all
confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow
charts, databases, inventions, know-how, and trade secrets, whether or
not patentable or copyrightable; and (d) anything designated as
confidential. Notwithstanding the foregoing, information shall not be
subject to such confidentiality obligations if it: (a) is already known
to the receiving party at the time it is obtained; (b) is or becomes
publicly known or available through no wrongful act of the receiving
party; (c) is rightfully received from a third party who, to the best
of the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third
party without restriction; (e) is required to be disclosed by the
receiving party pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency or law (provided the receiving party
will provide the other party written notice of such requirement, to the
extent such notice is permitted); (f) is relevant to the defense of any
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claim or cause of action asserted against the receiving party; or (g)
has been or is independently developed or obtained by the receiving
party.
9. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in
the performance of its obligations under this Agreement to ensure that
the necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
data bases (excluding Fund information maintained on such data bases),
computer programs, screen formats, report formats, interactive design
techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC in connection
with the services provided by PFPC to the Fund.
11. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of
equipment failures, PFPC shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. PFPC shall
have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement or such loss or interruption is
covered by PFPC's insurance maintained pursuant to Section 13 hereof.
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12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may
be agreed to from time to time in writing by the Fund and PFPC. The
Fund acknowledges that PFPC may receive float benefits and/or
investment earnings in connection with maintaining certain accounts
required to provide services under this Agreement.
13. INSURANCE.
(a) The Fund. The Fund maintains for its functions and activities
and will continue to maintain insurance coverages of the type
and with limits appropriate for the businesses carried on
pursuant to this Agreement, including at least the following
insurance coverages: (i) investment company fidelity bond with
standard coverage for employee dishonesty, fraud, forgery, and
similar coverages normally included in a mutual fund fidelity
bond, (ii) transfer agent errors and omissions insurance,
covering employee errors, omissions, and mistakes for such
services performed by the Fund or its affiliates and any
resulting shareholder losses: (iii) electronic and computer
crime coverage, and (iv) check and draft forgery coverage
applicable to forged or altered documents. Evidence of such
insurance coverage, information on limits, and copies of the
policies will be provided upon request by PFPC.
(b) PFPC. PFPC maintains for its functions and activities and will
continue to maintain insurance coverages of the type and with
limits appropriate for the businesses carried on pursuant to
this Agreement, including at least the following insurance
coverages: (i) brokers blanket bond with standard coverage for
employee dishonesty, fraud, forgery, and similar coverages
normally included in a brokers blanket bond or similar
fidelity bond applicable to the transfer agency
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business, (ii) transfer agent errors and omissions insurance,
covering employee errors, omissions, and mistakes in the
performance of transfer agent and similar services performed
by PFPC and resulting shareholder losses: (iii) electronic and
computer crime coverage, and (iv) check and draft forgery
coverage applicable to forged or altered documents. Evidence
of such insurance coverage, information on limits, and copies
of the policies will be provided upon request by the Fund.
14. INDEMNIFICATION, RESPONSIBILITY OF THE PARTIES AND LIMITATION ON
LIABILITY.
(a) The Fund. PFPC shall not be responsible for, and the Fund
shall on behalf of the applicable Series assume responsibility
for and indemnify and hold PFPC harmless from and against any
and all losses, damages, costs, charges, counsel fees,
payments, expenses, and liability arising out of or
attributable to:
(i) Fraudulent acts, negligent acts, and mistakes, errors
and omissions of the types covered by the insurance
policies maintained by the Fund pursuant to the
provisions of Subsection 13(a), regardless of whether
the amount of the loss would be payable by the
insurer or would be payable by the Fund because the
loss would exceed the limits of the policy or would
be within the self-retention layer or deductible,
provided such fraudulent acts, negligence acts or
mistakes, errors or omissions were committed by
trustees, directors, officers, employees, agents or
subcontractors of the Fund (other than PFPC or its
directors, officers, employees, agents, or
subcontractors) in connection with the Fund's
performance of its functions or businesses and would
cause a loss to the Fund or its shareholders of to
the Bank.
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(ii) The Fund's lack of good faith, negligence, or willful
misconduct which arise out of the breach of any
representation or warranty of the Fund hereunder.
(iii) The reliance on or use by PFPC or its agents or
subcontractors of information, records, documents, or
services which (i) are received by PFPC or its agents
or subcontractors, and (ii) have been prepared,
maintained or performed by the Fund or any other
person or firm on behalf of the Fund, including but
not limited to any previous transfer agent or
registrar.
(iv) The reliance on, or the carrying out by PFPC or its
agents or subcontractors of any instructions or
request of the Fund on behalf of the applicable
Series.
(v) The offer or sale of Shares in violation of any
requirement under the federal or state securities
laws or regulations, or in violation of any stop
order or other determination or ruling by any federal
agency or any state with respect to the offer of sale
of such Shares.
(vi) Any actions or omission to act which PFPC takes in
connection with the provision of services to the
Company hereunder, except to the extent that such
acts or omissions require PFPC to indemnify the Fund
pursuant to Section 14(b) of this Agreement.
(vii) In order that the indemnification provisions
contained herein shall apply, upon the assertion of a
claim for which the Fund may be required to indemnify
PFPC, PFPC shall promptly notify the Fund of such
assertion,
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and shall keep the Fund advised with respect to all
developments concerning such claim. The Fund shall
have the option to participate with PFPC in the
defense of such claim or to defend against such claim
in its own name through its insurance company or in
the name of PFPC. PFPC shall in no case confess any
claim or make any compromise in any case in which the
Fund may be required to indemnify PFPC except with
the Fund's prior written consent.
(b) PFPC. The Fund shall not be responsible for, and PFPC shall
assume responsibility for and indemnify and hold the Fund and
the applicable Series harmless from and against any and all
losses, damages, costs, charges, counsel fees, payments,
expenses, and liability arising out of or attributable to:
(i) Fraudulent acts, negligent acts, and mistakes, errors
and omissions of the types covered by the insurance
policies maintained by PFPC pursuant to the
provisions of Subsection 13(b), regardless of whether
the amount of the loss would be payable by the
insurer or would be payable by PFPC because the loss
would exceed the limits of the policy or would be
within the self-retention layer or deductible,
provided such fraudulent acts, negligence acts or
mistakes, errors or omissions were committed by
directors, officers, employees, agents or
subcontractors of PFPC (other than the Fund or its
Series, or trustees, directors, officers, employees,
agents, or subcontractors) in connection with PFPC's
performance of its functions or businesses and would
cause a loss to the Fund or its shareholders or to
PFPC.
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(ii) PFPC's lack of good faith, negligence, or willful
misconduct which arise out of the breach of any
representation or warranty of PFPC hereunder.
(iii) The reliance on or use by the Fund, its agents or
subcontractors of information, records, documents, or
services which (i) are received by the Fund or its
agents or subcontractors, and (ii) have been
prepared, maintained or performed by PFPC and/or any
other person or firm on behalf of PFPC.
(iv) The reliance on, or the carrying out by the Fund or
its agents or subcontractors of any instructions or
request of PFPC.
(v) In order that the indemnification provisions
contained herein shall apply, upon the assertion of a
claim for which PFPC may be required to indemnify the
Fund, the Fund shall promptly notify PFPC of such
assertion, and shall keep PFPC advised with respect
to all developments concerning such claim. PFPC shall
have the option to participate with the Fund in the
defense of such claim or to defend against such claim
in its own name or through its insurance company or
in the name of the Fund. The Fund shall in no case
confess any claim or make any compromise in any case
in which PFPC may be required to indemnify the Fund
except with PFPC's prior written consent.
(c) Notwithstanding anything in this Agreement to the contrary,
neither party nor its affiliates shall be liable to the other
party for any consequential, special or indirect losses or
damages, whether or not the likelihood of such losses or
damages was known by such party.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
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15. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Calculate 12b-1 payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with
shareholders to complete or correct information;
(iv) Direct payment processing of checks or wires;
(v) Prepare and certify stockholder lists in conjunction
with proxy solicitations;
(vi) Countersign share certificates;
(vii) Prepare and mail to shareholders confirmation 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 Fund;
(xi) Provide detailed data for underwriter/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 fund activity; and
(xiv) Perform other participating broker-dealer 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 Share purchases and
redemptions;
(ii) Accept, post and perform shareholder transfers and
exchanges;
(iii) Pay dividends and other distributions;
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(iv) Solicit and tabulate proxies; and
(v) Issue and cancel certificates (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 Fund's prospectus.
(d) Redemption of Shares. PFPC shall redeem Shares only if that
function is properly authorized by the certificate of
incorporation or resolution of the Fund's Board of Trustees.
Shares shall be redeemed and payment therefor shall be made in
accordance with the Fund's prospectus, when the recordholder
tenders Shares in proper form and directs the method of
redemption. If Shares are received in proper form, Shares
shall be redeemed before the funds are provided to PFPC from
the Fund'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 acting under and authorized by a Trading
Agreement with the Fund notifies PFPC of a redemption desired
by a customer, and the Custodian provides PFPC with funds,
PFPC shall prepare and send the redemption in accord with such
authorized broker-dealer's instructions.
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(e) Dividends and Distributions. Upon receipt of a resolution of
the Fund's Board of Trustees authorizing the declaration and
payment of dividends and distributions, PFPC shall issue
dividends and distributions declared by the Fund in Shares,
or, upon shareholder election, pay such dividends and
distributions in cash, if provided for in the Fund's
prospectus. Such issuance or payment, as well as payments upon
redemption as described above, shall be made after deduction
and payment of the required amount of funds to be withheld in
accordance with any applicable tax laws or other laws, rules
or regulations. PFPC shall mail to the Fund's shareholders
such tax forms and other information, or permissible
substitute notice, relating to dividends and distributions
paid by the Fund 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 above a
stipulated amount paid by the Fund to its shareholders as
required by tax or other law, rule or regulation.
(f) Shareholder Account Services.
(i) PFPC may arrange, in accordance with the prospectus,
for issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases by authorized
broker-dealers, checks and applications.
(ii) PFPC may arrange, in accordance with the prospectus,
for a shareholder's:
- Exchange of Shares for shares of another
fund with which the Fund 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.
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(g) Communications to Shareholders. Upon timely Written
Instructions, PFPC shall mail all communications by the Fund
to its shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund 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 Fund'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 of Shares held and number and class
of Shares for which certificates, if any, have been
issued, including certificate numbers and
denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions
paid and the date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the current
maintenance of a shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform
any calculations required by this Agreement.
(i) Lost or Stolen Certificates. PFPC shall place a stop notice
against any certificate reported to be lost or stolen and
comply with all applicable federal regulatory
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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 Fund shareholder to inspect stock records, PFPC will
notify the Fund and the Fund will issue instructions granting
or denying each such request. Unless PFPC has acted contrary
to the Fund's instructions, the Fund agrees to and does hereby
release PFPC from any liability for refusal of permission for
a particular shareholder to inspect the Fund's stock records.
(k) Withdrawal of Shares and Cancellation of Certificates. Upon
receipt of Written Instructions, PFPC shall cancel outstanding
certificates surrendered by the Fund to reduce the total
amount of certificated shares by the number of shares
surrendered by the Fund.
(l) Lost Shareholders. PFPC shall perform such services as are
required in order to comply with Rules 17a-24 and 17Ad-17 of
the 1934 Act (the "Lost Shareholder Rules"), including, but
not limited to, those set forth below. PFPC may, in its sole
discretion, use the services of a third party to perform some
of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
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(iii) tracking results and maintaining data sufficient to
comply with the Lost Shareholder Rules; and
(iv) preparation and submission of data required under the
Lost Shareholder Rules. Except as set forth above,
PFPC shall have no responsibility for any escheatment
services.
(m) Print Mail. In addition to performing the foregoing services,
the Fund hereby engages PFPC as its print/mail service
provider with respect to those items identified in the Fee
Letter.
(n) PFPC agrees to use its best and commercially reasonable
efforts to provide the services described herein in accordance
with the service level standards set forth in Exhibit C
attached hereto.
16. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or by PFPC on sixty (60) days' prior written
notice to the other party. In the event the Fund gives notice of
termination, all expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor transfer
agent or other service provider, and all trailing expenses incurred by
PFPC, will be borne by the Fund.
17. NOTICES. Notices shall be addressed (a) if to PFPC, at 400 Bellevue
Parkway, Wilmington, Delaware 19809, Attention: President; (b) if to
the Fund, c/o Southeastern Asset Management, Inc., 6410 Poplar Avenue,
Suite 900, Memphis, Tennessee 38119, Attention: President 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
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by the other party. If notice is sent by confirming telegram, cable,
telex or facsimile sending device, it shall be deemed to have been
given immediately. If notice is sent by first-class mail, it shall be
deemed to have been given three days after it has been mailed. If
notice is sent by messenger, it shall be deemed to have been given on
the day it is delivered.
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 of PNC Bank Corp., provided that PFPC gives the Fund 30 days
prior written notice of such assignment or delegation. Notwithstanding
the foregoing, PFPC agrees to provide substantially all of services set
forth hereunder in Massachusetts so long as it maintains a facility
capable of performing such services in Massachusetts.
20. NON-SOLICITATION. During the term of this Agreement and for a period of
one year afterward, the Fund shall not recruit, solicit, employ or
engage, for the Fund or any other person, any of PFPC's employees
without PFPC's prior approval.
21. 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.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
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23. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without the
prior written approval of PFPC, which approval shall not be
unreasonably withheld or delayed.
(c) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(d) Governing Law. This Agreement shall be deemed to be a contract
made in Massachusetts and governed by Massachusetts law,
without regard to principles of conflicts of law.
(e) 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.
(f) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
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<PAGE> 21
(g) No Representations or Warranties. Except as expressly provided
in this Agreement, PFPC hereby disclaims all representations
and warranties, express or implied, made to the Fund or any
other person, including, without limitation, any warranties
regarding quality, suitability, merchantability, fitness for a
particular purpose or otherwise (irrespective of any course of
dealing, custom or usage of trade), of any services or any
goods provided incidental to services provided under this
Agreement. PFPC disclaims any warranty of title or
non-infringement except as otherwise set forth in this
Agreement.
(h) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
24. INTERNET ACCESS SERVICES. PFPC shall provide to the Fund the internet
access services as set forth on Exhibit B attached hereto and made a
part hereof, as such Exhibit B may be amended from time to time.
25. TRUSTEE LIABILITY. The Fund and PFPC agree that the obligations of the
Fund under the Agreement shall not be binding upon any of the Trustees,
shareholders, nominees, officers, employees or agents, whether past,
present or future, of the Fund or its individual series but are binding
only upon the assets and property of the Fund or its individual series,
as provided in the Declaration of Trust. The execution and delivery of
this Agreement have been authorized by the Trustees of the Fund, and
signed by an authorized officer of the Fund, acting as such, and
neither such authorization by such Trustees nor such execution and
delivery by such officer shall be deemed to have been made by any of
them or any shareholder of the Fund or its individual series or to
impose any liability on any of them or any shareholder of the Fund
personally, but shall bind only the assets and property of the Fund or
its individual series as provided in the Declaration of Trust.
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<PAGE> 22
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/ James L. Fox
----------------------------------------
Title: Vice Chairman
-------------------------------------
LONGLEAF PARTNERS FUNDS TRUST
By: /s/ Charles D. Reaves
----------------------------------------
Title: Executive Vice President
-------------------------------------
22
<PAGE> 23
EXHIBIT A
THIS EXHIBIT A, dated as of May 26, 2000, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of May 26, 2000, between PFPC Inc.
and Longleaf Partners Funds Trust.
PORTFOLIOS
<TABLE>
<CAPTION>
TIN CUSIP
--- -----
<S> <C> <C>
Longleaf Partners Fund 63-6147721 54306910-8
Longleaf Partners Small-Cap Fund 62-1376170 54306920-7
Longleaf Partners Realty Fund 62-1616883 54306930-6
Longleaf Partners International Fund 62-1749486 54306940-5
</TABLE>
23
<PAGE> 24
EXHIBIT B
ONLINE INTERNET ACCESS SERVICES
THIS EXHIBIT B, dated as of May 26, 2000, is Exhibit B to the Transfer
Agency Services Agreement dated May 26, 2000 (the "Agreement") between Longleaf
Partners Funds Trust (the "Fund") and PFPC Inc. ("PFPC"). This Exhibit B shall
supersede all previous forms of Exhibit B to the Agreement as of the date
hereof.
1. DEFINITIONS. Any term not herein defined shall have the meaning given such
term in the Agreement. The following definitions shall apply to this Exhibit B:
(a) "Customer Options" means the series of edits and instructions
mutually agreed upon by the Fund and PFPC through which the Fund specifies its
instructions for Transactions listed on Attachment 1 attached hereto and made a
part hereof, as such Attachment 1 may be amended from time to time.
(b) "Fund Web Site" means the collection of electronic documents,
electronic files and pages residing on any computer system(s) maintained on
behalf of the Fund and accessible at www.longleafpartners.com, connected to the
Internet and accessible by hypertext link through the World Wide Web to and from
PFPC's Web Site.
(c) "Online Internet Access Services" or "Internet Services" means the
services identified in Section 2 and any additional services set forth on the
Attachment 2 attached hereto and made a part hereof to be provided by PFPC
utilizing the Fund Web Site, the Internet and certain software, equipment and
systems provided by PFPC, telecommunications carriers and security providers
which have been certified by ICSA or a nationally-recognized audit firm
(including but not limited to firewalls and encryption), whereby Transactions
may be requested in the Fund by accessing the PFPC Web Site via hypertext link
from the Fund Web Site.
(d) "PFPC Web Site" means the collection of electronic documents,
electronic files and pages residing on PFPC's computer system(s) (or those
elements of the computer system of one or more Internet Service Providers
("ISPs") retained by PFPC and necessary for PFPC's services hereunder),
connected to the Internet and accessible by hypertext link from the Funds Web
Site through the World Wide Web, where the Transaction data fields and related
screens provided by PFPC may be viewed.
(e) "Phase I Transactions" means responding to requests through the
Online Internet Access Service for (i) most recent Fund dividend information;
(ii) shareholder account balance information; and (iii) most recent shareholder
account transactions.
(f) "Phase II Transactions" means Phase I Transactions plus those
services and transactions listed on PFPC's schedule of Phase II services, as
PFPC shall provide to the Fund from time to time (the "Phase II Schedule").
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<PAGE> 25
(g) "Service Commencement Date" means the first date upon which
responses to Phase I Transaction requests are available through PFPC's Online
Internet Access Service to Shareholders or to other visitors to the Fund Web
Site.
(h) "Shareholder" means the record owner or authorized agent of the
record owner of shares of the Fund.
(i) "Transaction" means any Phase I Transaction or Phase II
Transaction.
2. PFPC RESPONSIBILITIES. Subject to the provisions of this Exhibit B, PFPC
shall provide or perform, or shall retain other Persons to provide or perform,
the following, at PFPC's expense (unless otherwise provided herein):
(a) provide all computers, telecommunications equipment, encryption
technology and other materials and services reasonably necessary to develop and
maintain the PFPC Web Site to permit persons to be able to view information
about the Fund and to permit Shareholders with appropriate identification and
access codes (if required by the Phase II Schedule) to initiate Transactions;
(b) address and mail, at the Fund's expense, notification and
promotional mailings and other communications provided by the Fund to
Shareholders regarding the availability of Online Internet Access Services;
(c) prepare and process applications for Internet Services from
Shareholders determined by the Fund to be eligible for such services and issue
logon ID, PIN numbers and welcome letters to such Shareholders according to the
policies of the Fund;
(d) establish (and, as applicable, cooperate with the Fund to implement
and maintain) a hypertext link between the PFPC Web Site and the Fund Web Site;
(e) establish systems to guide, assist and permit Shareholders who
access the PFPC Web Site from the Fund Web Site to electronically create and
transmit Transaction requests to PFPC;
(f) deliver to the Fund three (3) copies of the PFPC Online Internet
Access Service User Guide, as well as all updates thereto on a timely basis;
(g) deliver a monthly billing report to the Fund, which shall include a
report of Transactions;
(h) provide a form of encryption as agreed by PFPC and the Fund from
time to time that is generally available to the public in the U.S. for standard
Internet browsers and establish, monitor and verify firewalls and other security
features (commercially reasonable for this type of
25
<PAGE> 26
information and data) and exercise commercially reasonable efforts to attempt to
maintain the security and integrity of the PFPC Web Site;
(i) exercise reasonable efforts to maintain all on-screen disclaimers
and copyright, trademark and service mark notifications, if any, provided by the
Fund to PFPC in writing from time to time, and all "point and click" features of
the PFPC Web Site relating to Shareholder acknowledgment and acceptance of such
disclaimers and notifications;
(j) provide periodic site visitation (hit reports) and other
information regarding Shareholder/visitor activity under this Agreement as
agreed by PFPC and the Fund from time to time;
(k) monitor the telephone lines involved in providing the Internet
Services, inform the Fund promptly of any malfunctions or service interruptions
and cooperate with the Fund to remedy such malfunctions or service
interruptions;
(l) PFPC shall periodically scan its Internet interfaces and the PFPC
Web Site for viruses and promptly remove any such viruses located thereon; and
3. FUND RESPONSIBILITIES. Subject to the provisions of this Exhibit B and the
Agreement, the Fund shall at its expense (unless otherwise provided herein):
(a) provide, or retain other persons to provide, all computers,
telecommunications equipment, encryption technology and other materials,
services, equipment and software reasonably necessary to develop and maintain
the Fund Web Site, including the functionality necessary to maintain the
hypertext links to the PFPC Web Site;
(b) provide the Customer Options list to PFPC, in the format requested
by PFPC, for Phase I and Phase II Transactions, as the Fund shall authorize, and
promptly provide PFPC written notice of changes in Fund policies or procedures
requiring changes in the Customer Options;
(c) work with PFPC to develop Internet marketing materials for
Shareholders and forward a copy of appropriate marketing materials to PFPC;
(d) revise and update the applicable prospectus(es) and other pertinent
materials, such as User Agreements with Shareholders, to include the appropriate
consents, notices and disclosures for Internet Services, including disclaimers
and information reasonably requested by PFPC;
(e) maintain all on-screen disclaimers and copyright, trademark and
service mark notifications, if any, provided by PFPC to the Fund in writing from
time to time, and all "point and click" features of the Fund Web Site relating
to acknowledgment and acceptance of such disclaimers and notifications; and
26
<PAGE> 27
(f) design and develop the Fund Web Site functionality necessary to
facilitate, implement and maintain the hypertext links to the PFPC Web Site and
the various Transaction web pages and otherwise make the Fund Web Site available
to Shareholders.
4. ADDITIONAL FEES FOR INTERNET SERVICES. As consideration for the performance
by PFPC of the Internet Services, the Fund will pay the fees set forth in a
separate fee letter as agreed between the parties from time to time.
5. PROPRIETARY RIGHTS.
(a) Each of the parties acknowledges and agrees that it obtains no
rights in or to any of the software, hardware, processes, trade secrets,
proprietary information or distribution and communication networks of the other
under this Exhibit. Any software, interfaces or other programs a party provides
to the other hereunder shall be used by such receiving party only during the
term of the Agreement and only in accordance with the provisions of this Exhibit
B and the Agreement. Any interfaces, other software or other programs developed
by one party shall not be used directly or indirectly by or for the other party
or any of its affiliates to connect such receiving party or any affiliate to any
other person, without the first party's prior written approval, which it may
give or withhold in its sole discretion. Except in the normal course of business
and in conformity with Federal copyright law or with the other party's consent,
neither party nor any of its affiliates shall disclose, use, copy, decompile or
reverse engineer any software or other programs provided to such party by the
other in connection herewith.
(b) The Fund Web Site and the PFPC Web Site may contain certain
intellectual property, including, but not limited to, rights in copyrighted
works, trademarks and trade dress that is the property of the other party. Each
party retains all rights in such intellectual property that may reside on the
other party's web site, not including any intellectual property provided by or
otherwise obtained from such other party. To the extent the intellectual
property of one party is cached to expedite communication, such party grants to
the other a limited, non-exclusive, non-transferable license to such
intellectual property for a period of time no longer than that reasonably
necessary for the communication. To the extent that the intellectual property of
one party is duplicated within the other party's web site to replicate the "look
and feel," trade dress or other aspect of the appearance or functionality of the
first site, that party grants to the other a limited, non-exclusive,
non-transferable license to such intellectual property for the duration of the
Agreement. This license is limited to the intellectual property needed to
replicate the appearance of the first site and does not extend to any other
intellectual property owned by the owner of the first site. Each party warrants
that it has sufficient right, title and interest in and to its web site and its
intellectual property to enter into these obligations, and that to its
knowledge, the license hereby granted to the other party does not and will not
infringe on any U.S. patent, U.S. copyright or other U.S. proprietary right of a
third party.
6. REPRESENTATION AND WARRANTY. Neither party shall knowingly insert into any
interface, other software, or other program provided by such party to the other
hereunder, or accessible on the PFPC Web Site or Fund Web Site, as the case may
be, any "back door," "time bomb," "Trojan Horse," "worm," "drop dead device,"
"virus" or other computer software code or routines or
27
<PAGE> 28
hardware components designed to disable, damage or impair the operation of any
system, program or operation hereunder. For failure to comply with this
warranty, the non-complying party shall immediately replace all copies of the
affected work product, system or software. All costs incurred with replacement
including, but not limited to cost of media, shipping, deliveries and
installation shall be borne by such party.
7. LIABILITY LIMITATIONS; INDEMNIFICATION.
(a) THE INTERNET. Each party acknowledges that the Internet is an
unsecured, unstable, unregulated, unorganized and unreliable network, and that
the ability of the other party to provide or perform services or duties
hereunder is dependent upon the Internet and equipment, software, systems, data
and services provided by various telecommunications carriers, equipment
manufacturers, firewall providers, encryption system developers and other
vendors and third parties. Each party agrees that the other shall not be liable
in any respect for the functions or malfunctions of the Internet. Each party
agrees the other shall not be liable in any respect for the actions or omissions
of any third party wrongdoers (i.e., hackers not employed by such party or its
affiliates) or of any third parties involved in the Internet Services and shall
not be liable in any respect for the selection of any such third party, unless
such party breached the standard of care specified herein with respect to that
selection.
(b) PFPC'S EXPLICIT DISCLAIMER OF CERTAIN WARRANTIES. EXCEPT AS
PROVIDED IN SECTIONS 2 AND 4, ALL SOFTWARE AND SYSTEMS DESCRIBED IN THIS
AGREEMENT ARE PROVIDED "AS-IS" ON AN "AS-AVAILABLE" BASIS, AND PFPC HEREBY
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE.
8. MISCELLANEOUS.
(a) Independent Contractor. The parties to this Agreement are and shall
remain independent contractors, and nothing herein shall be construed to create
a partnership or joint venture between them and none of them shall have the
power or authority to bind or obligate the other in any manner not expressly set
forth herein. Any contributions to the PFPC Web Site by the Fund and any
contributions to the Fund Web Site by PFPC shall be works for hire pursuant to
Section 101 of the Copyright Act.
(b) Conflict with Agreement. In the event of a conflict between
specific terms of this Exhibit B and the Agreement, this Exhibit B shall control
as to the Internet Services.
28
<PAGE> 29
LONGLEAF PARTNERS FUNDS TRUST
By: /s/ Charles D. Reaves
-------------------------------
Name: Charles D. Reaves
Title: Executive Vice President
PFPC INC.
By: /s/ James L. Fox
-------------------------------
Name: James L. Fox
Title: Vice Chairman
29
<PAGE> 30
ATTACHMENT 1
ADDITIONAL ONLINE INTERNET ACCESS SERVICES/DESCRIPTIONS/SPECIFICATIONS
THIS ATTACHMENT 1, dated as of May 26, 2000, is Attachment 1 to Exhibit B to a
Transfer Agency Services Agreement dated as of May 26, 2000 between the
undersigned. This Attachment 1 shall supersede all previous forms of Attachment
1 as of the date hereof.
None
LONGLEAF PARTNERS FUNDS TRUST
By: /s/ Charles D. Reaves
-------------------------------
Name: Charles D. Reaves
Title: Executive Vice President
PFPC INC.
By: /s/ James L. Fox
-------------------------------
Name: James L. Fox
Title: Vice Chairman
30
<PAGE> 31
ATTACHMENT 2
CUSTOMER OPTIONS LIST
THIS ATTACHMENT 2, dated as of May 26, 2000 is Attachment 2 to Exhibit B to the
Transfer Agency Services Agreement dated as of May 26, 2000 between the
undersigned. This Attachment 2 shall supersede all previous forms of Attachment
2 as of the date hereof.
1. A logon I.D. and PIN are required to access PFPC's Online
Internet Access Services.
2. Shareholder's Web Browser and ISP must support Secure Sockets
Layer (SSL) encryption technology.
3. In order to use PFPC's Online Internet Access Services,
Shareholders will need the following:
a. An Internet service provider (which can be a national
provider such as America Online, CompuServe, Prodigy;
or local service provider).
b. At a minimum, an Intel 486 class machine with 16 MB
RAM, VGA monitor, and 14.4kbps modem running MS
Windows 3.1 3.11, Windows 95 or Windows NT.
c. Web Browser software supporting Secure Sockets Layer
(Netscape 3.0 and MS Internet Explorer 3.0 provide
such support). For best results, a Web Browser
capable of supporting Java Script (such as Netscape
Navigator version 4.0 and higher or MS Internet
Explorer version 4.0 and higher) is recommended.
4. In order to use PFPC's Online Internet Access Services,
Shareholders will be required to complete a PFPC Online
Application, which can be completed over the phone or via U.S.
mail.
5. PFPC will not provide any software for access to the Internet;
software must be acquired from a third-party vendor.
6. Items such as Shareholder name, address, tax identification
numbers and bank account numbers will not be displayed by PFPC
on the PFPC Web Site
7. The following type of authentication will be required for
Internet Transaction access:
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<PAGE> 32
a. For Fund prices (NAV information) and distribution
information no security processing will be required;
and
b. For account balances and account history information
- a valid Logon I.D. and PIN are required.
LONGLEAF PARTNERS FUNDS TRUST
By: /s/ Charles D. Reaves
-------------------------------
Name: Charles D. Reaves
Title: Executive Vice President
PFPC INC.
By: /s/ James L. Fox
-------------------------------
Name: James L. Fox
Title: Vice Chairman
32
