EXHIBIT (h)(8)
FORM OF
THIRD AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
PILGRIM EQUITY TRUST
AGREEMENT, made the 1st day of August, 1998, amended and restated this
2nd day of November, 2001, between Pilgrim Equity Trust (the "Trust"), on behalf
of each series of the Trust set forth on Schedule A hereto (each a "Fund,"
collectively, the "Funds"), as such schedule may be amended from time to time to
add additional series, and ING Pilgrim Group, LLC (the "Administrator").
WHEREAS, the Trust is a Massachusetts business trust authorized to issue
shares in series and is registered as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940 Act") and each
Fund is a series of the Trust; and
WHEREAS, ING Pilgrim Investments, LLC (the "Adviser") serves as
investment adviser to each Fund, and the Trust wishes to retain the
Administrator to render administrative and other services to each Fund, and the
Administrator is willing to render such services to each Fund;
NOW THEREFORE, in consideration of the premises, promises and mutual
covenants herein contained, it is agreed between the parties as follows:
1. APPOINTMENT
The Trust hereby appoints the Administrator to serve as administrator to
the Funds for the periods and on the terms set forth herein. The Administrator
accepts this appointment and agrees to furnish the services set forth herein for
the compensation provided herein.
2. SERVICES AS ADMINISTRATOR
A. GENERAL SERVICES
Subject to the supervision and direction of the Board of Trustees
of the Trust, the Administrator will (a) assist in supervising all aspects of
the Funds' operations except those performed by the Funds' Adviser under its
investment advisory agreement; (b) furnish such statistical or other factual
information, advice regarding economic factors and trends and advice and
guidelines as to transactions in specific securities (but without generally
furnishing advice or making recommendations regarding the purchase or sale of
securities); (c) maintain, or supervise the maintenance by the Adviser or third
parties approved by the Trust of, as the case may be, such books and records of
the Funds as may be required by applicable federal or state law; (d) perform all
corporate secretarial functions on behalf of the Funds; (e) provide the Funds
with office facilities, assemble and provide statistical and research data,
provide data processing, clerical, internal legal, internal executive,
administrative and bookkeeping services, and provide stationary and office
supplies; (f) supervise the performance by third parties of Fund accounting
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and portfolio pricing services, internal audits and audits by independent
accountants for the Funds; (g) prepare and arrange for the printing, filing and
distribution of prospectuses, proxy materials, and periodic reports to the
shareholders of the Funds as required by applicable law; (h) prepare or
supervise the preparation by third parties approved by the Trust of all federal,
state, and local tax returns and reports of the Funds required by applicable
law; (i) prepare, update, and arrange the filing of the Funds' registration
statements and amendments thereto and other documents as the Securities and
Exchange Commission (the "SEC") and other federal regulatory authorities may
require by applicable law, and oversee compliance under all state regulatory
requirements to which the Funds are subject; (j) render to the Board of Trustees
of the Trust such periodic and special reports respecting the Funds as the Board
may reasonably request; (k) arrange, assemble information and reports for, and
attend meetings of the Trustees and the shareholders of the Funds; (l) maintain
a fidelity bond as required under the 1940 Act for the Trust and liability
insurance for the Trustees and officers of the Trust; and (m) make available its
officers and employees to the Board of Trustees and officers of the Trust for
consultation and discussions regarding the administration of the Funds.
B. SHAREHOLDER SERVICING
Subject to the supervision and direction of the Board of
Trustees, the Administrator will (a) provide customer service to all shareholder
accounts, including responding to all telephone inquiries and written
correspondence; and (b) maintain records of all broker-dealers holding
shareholder accounts in the Funds; and (c) assist broker-dealers in servicing
shareholder accounts, including processing broker wire orders for purchases of
shares of the Funds.
C. PERFORMANCE OF DUTIES
The Administrator, at its discretion, may enter into contracts
with third parties for the performance of the services to be provided by the
Administrator under this Agreement.
The Administrator, in the performance of its duties and
obligations under this Agreement, shall act in conformity with the Registration
Statements, as amended, of the Funds and with the instructions and directions of
the Board of Trustees of the Trust and will conform to, and comply with, the
requirements of the 1940 Act and all other applicable federal and state laws and
regulations. In performing its shareholder servicing duties listed in
subparagraph B herein, the Administrator shall not engage in any activities that
would require it to register as a transfer agent under the Securities Exchange
Act of 1934.
3. DOCUMENTS
The Trust has delivered to the Administrator copies of each of the
following documents and will deliver to it all future amendments and
supplements, if any:
(a) Declaration of Trust, as amended, as filed with the Secretary of
the Commonwealth of Massachusetts;
(b) By-Laws of the Trust;
(c) Certified resolutions of the Trustees authorizing the
appointment of the Administrator and approving this Agreement on
behalf of the Trust and each Fund;
(d) Registration Statement on Form N-1A under the 1940 Act and the
Securities Act of 1933, as amended from time to time (the
"Registration Statement"), as filed with the SEC, relating to
the Trust and shares of beneficial interest of each Fund and all
amendments thereto;
(e) Notification of Registration of the Trust under the 1940 Act on
Form N-8A as filed with the SEC and all amendments thereto;
(f) Prospectuses and Statements of Additional Information included
in the Registration Statements, as amended from time to time.
All references to this Agreement, the Prospectuses and the
Statements of Additional Information shall be to such documents
as most recently amended or supplemented and in effect.
4. DIRECTORS, OFFICERS AND EMPLOYEES
The Administrator shall authorize and permit any of its directors,
officers and employees who may be elected as trustees or officers of the Trust
and/or the Funds to serve in the capacities in which they are elected. All
services to be furnished by the Administrator under this Agreement may be
furnished through such directors, officers or employees of the Administrator.
5. RECORDS
The Administrator agrees that all records, which it maintains for the
Trust and/or the Funds, are property of the Trust and/or the Funds. The
Administrator will surrender promptly to the Trust and/or a Fund any such
records upon either the Trust's or a Fund's request. The Administrator further
agrees to preserve such records for the periods prescribed in Rule 31a-2 of the
SEC under the 1940 Act.
6. COMPENSATION
In consideration of the services rendered pursuant to Section 2.A. of
this Agreement, each Funds will pay the Administrator a fee, computed and
accrued daily and payable monthly, at an annual rate of 0.10% of such Fund's
average daily net assets. For the purpose of determining fees payable to the
Administrator, the value of a Fund's average daily net assets shall be computed
at the times and in the manner specified in the Prospectus and Statement of
Additional Information of a Fund as from time to time in effect.
In consideration of the services rendered pursuant to Section 2.B. of
this Agreement, the Administrator shall receive a fee of $5.00 per year per
account of each beneficial holder of shares in the Funds, which shall be payable
no later than January 31 of the following year.
7. EXPENSES
The Administrator will bear all expenses in connection with the
performance of its services under this Agreement, except that the Administrator
will be reimbursed by the Funds for the out-of-pocket costs incurred in
connection with this Agreement or by third parties who are performing services
as permitted by paragraph 2. The Funds will bear certain other expenses to be
incurred in their operation, including: taxes, interest, brokerage fees and
commissions, if any; fees of Trustees of the Trust who are not officers,
directors, or employees of the Adviser or Administrator; SEC fees; charges of
custodians and transfer and dividend disbursing agents; certain insurance
premiums; outside auditing and legal expenses; cost of maintenance of the Funds'
existence; cost attributable to investor services, including without limitation,
telephone and personnel expenses; charges of accounting, internal auditing, and
pricing of portfolio securities for the Funds, including the charges of an
independent pricing service; costs of preparing and printing prospectuses and
statements of additional information for regulatory purposes and for
distribution to existing shareholders; costs of shareholders' reports and
meetings of the shareholders of the Funds and of the officers or the Board of
Trustees of the Trust; and any extraordinary expenses.
8. STANDARD OF CARE
The Administrator shall exercise its best judgment in rendering the
services under this Agreement. The Administrator shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Funds or the
Funds' shareholders in connection with the matters to which this Agreement
relates, provided that nothing herein shall be deemed to protect or purport to
protect the Administrator against liability to the Funds or to their
shareholders to which the Administrator would otherwise be subject by reason of
willful misfeasance, bad faith or gross negligence on its part in the
performance of its duties or by reason of the Administrator's reckless disregard
of its obligations and duties under this Agreement. As used in this Section 8,
the term "Administrator" shall include any officers, directors, employees, or
other affiliates of the Administrator performing services with respect to the
Funds.
9. DURATION AND TERMINATION
This Agreement shall continue in effect unless sooner terminated as
provided herein, for two years from the date hereof and shall continue from year
to year thereafter, provided each continuance is specifically approved at least
annually by a majority of the Board of Trustees of the Trust, including a
majority of the Board of Trustees who are not "interested persons" (as defined
in the 0000 Xxx) of any party to this Agreement. This Agreement is terminable,
without penalty, on 60 days' written notice by the Board of Trustees of the
Trust or by vote of holders of a majority of the Funds' shares, or upon 90 days'
written notice by the Administrator.
10. SERVICE TO OTHER COMPANIES OR ACCOUNTS
The administrative services of the Administrator to the Funds under this
Agreement are not to be deemed exclusive, and the Administrator, or any
affiliate thereof, shall be free to render similar services to other investment
companies and other clients (whether or not their investment objectives and
policies are similar to those of the Funds) and to engage in other activities,
so long as its services hereunder are not impaired thereby.
11. ASSIGNMENT
This Agreement may be assigned by either party only upon the prior
written consent of the other party.
12. MISCELLANEOUS
(a) This Agreement constitutes the full and complete
agreement of the parties hereto with respect to the
subject matter hereof.
(b) Titles or captions of Sections contained in this
Agreement are inserted only as a matter of convenience
and for reference, and in no way define, limit, extend
or describe the scope of this Agreement or the intent of
any provisions thereof.
(c) This Agreement may be executed in several counterparts,
all of which together shall for all purposes constitute
one Agreement, binding on all the parties.
(d) This Agreement and the rights and obligations of the
parties hereunder shall be governed by, and interpreted,
construed and enforced in accordance with the laws of
the State of Arizona.
(e) If any provisions of this Agreement or the application
thereof to any party or circumstances shall be
determined by any court of competent jurisdiction to be
invalid or unenforceable to any extent, the remainder of
this Agreement or the application of such provision to
such person or circumstance, other than those as to
which it is so determined to be invalid or
unenforceable, shall not be affected thereby, and each
provision hereof shall be valid and shall be enforced to
the fullest extent permitted by law.
(f) Notices of any kind to be given to the Administrator by
the Trust shall be in writing and shall duly given if
mailed or delivered to the Administrator at 0000 Xxxx
Xxxxxxxxxx Xxxxx Xxxx, Xxxxxxxxxx, XX 00000, or at such
other address or to such individual as shall be
specified by the Administrator to the Trust.
(g) The Administrator, the Trust and the Funds each agree
that the name "Pilgrim" is proprietary to, and a
property right of, the Administrator. The Trust and the
Funds agree and consent that (i) each will only use the
name "Pilgrim" as part of its name and for no other
purpose, (ii) each will not purport to grant any third
party the right to use the name "Pilgrim" and (iii) upon
the termination of this Agreement, the Trust and the
Funds shall, upon the request of the Administrator,
cease to use the name "Pilgrim," and shall use its best
efforts to cause its officers, trustees and shareholders
to take any and all actions which the Administrator may
request to effect the foregoing.
(h) The Declaration of Trust, establishing the Trust,
together with all amendments thereto (the
"Declaration"), is on file in the office of the
Secretary of the Commonwealth of Massachusetts, provides
that the name "Pilgrim Equity Trust" refers to the
Trustees under the Declaration collectively as trustees,
but not individually or personally; and no Trustee,
shareholder, officer, employee or agent of the Trust
and/or the Funds may be held to any personal liability,
nor may resort be had to their private property for the
satisfaction of any obligation or claim or otherwise in
connection with the affairs of the Trust, but the Trust
property only shall be liable.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year set forth
above.
PILGRIM EQUITY TRUST
By:_________________________________
Xxxxxx X. Naka
Senior Vice President
ING PILGRIM GROUP, LLC
By:_________________________________
Xxxxxxx X. Xxxxxx
Senior Vice President
SCHEDULE A
WITH RESPECT TO THE
THIRD AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
BETWEEN
PILGRIM EQUITY TRUST
AND
ING PILGRIM GROUP, LLC
EFFECTIVE AS OF NOVEMBER 2, 2001
SERIES
Pilgrim MidCap Opportunities Fund
Pilgrim Principal Protection Fund
Pilgrim Principal Protection Fund II*
Pilgrim Biotechnology Fund*
ING MidCap Value Fund*
ING SmallCap Value Fund*
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* This Third Amended and Restated Administrative Services Agreement will
be effective with respect to each of these Funds upon the effective date
of the initial Registration Statement with respect to each respective
Fund.
