FORM OF AGREEMENT
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of , 2001 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and EQUITABLE PREMIER FUNDS TRUST, a
Delaware business trust (the "Fund").
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.
(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. 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.
(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 Fund.
(i) "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.
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;
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(c) A copy of the management 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 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
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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 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
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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.
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,
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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 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
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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, 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.
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. INDEMNIFICATION BY THE FUND.
(a) The Fund agrees to indemnify and hold harmless PFPC and its affiliates
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without
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limitation, attorneys' fees and disbursements and liabilities arising
under the Securities Laws and any state and foreign securities and blue
sky laws) arising directly or indirectly out of the Fund's willful
misfeasance, bad faith or gross negligence or willful disregard of its
obligations under this Agreement. Neither PFPC, nor any of its
affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) caused by PFPC's or its affiliates' own
willful misfeasance, bad faith, gross negligence or reckless disregard
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.
(b) 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,
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. PFPC shall in no case confess
any claim or make any compromise in any case in which the Fund may be
required to indemnify it except with the Fund's prior written consent.
14. INDEMNIFICATION BY PFPC.
(a) PFPC agrees to indemnify and hold harmless the Fund and its affiliates
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, attorneys' fees and disbursements and
liabilities arising under the
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Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly out of PFPC's willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties under this
Agreement. Neither the Fund, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident to such
liability) caused by the Fund's or its affiliates' own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties and obligations under this Agreement.
(b) 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. The Fund shall in no case
confess any claim or make any compromise in any case in which PFPC may
be required to indemnify it except with PFPC's prior written consent.
15. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on behalf of
the Fund except as specifically set forth herein or as may be
specifically agreed to by PFPC and the Fund in a written amendment
hereto. PFPC shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith in
performing services provided for under this Agreement.
(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, including without limitation (subject to Section
11), delays or errors or loss of data
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occurring by reason of circumstances beyond PFPC's control, provided
that PFPC has acted in accordance with the standard set forth in
Section 14(a) above; and (ii) PFPC shall not be under any duty or
obligation to inquire into and shall not be liable for 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. (c) Notwithstanding anything in this Agreement
to the contrary, (i) neither PFPC nor its affiliates shall be liable
for any consequential, special or indirect losses or damages, whether
or not the likelihood of such losses or damages was known by PFPC or
its affiliates.
(d) No party may assert a cause of action against either the Fund or PFPC
or any of their respective affiliates that allegedly occurred more than
12 months immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging such
cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
16. 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;
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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 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;
(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, once it
receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder account; and
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(iii) Confirmation of receipt or crediting of funds for such order
to the Fund's custodian.
(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 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 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
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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 through broker wire orders, 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.
(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;
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(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 requirements for reporting such loss or
alleged misappropriation. A new certificate shall be registered and
issued only upon:
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(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 outstanding
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;
(iii) tracking results and maintaining data sufficient to comply
with the Lost Shareholder Rules; and
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(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.
17. 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.
18. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to the
Fund, at , Attention: 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 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.
19. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by
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a written amendment, signed by the party against whom enforcement of such
change or waiver is sought.
20. USE OF FUND'S NAME. PFPC shall not use the name of the Fund or the
Portfolios in a manner not approved prior thereto, provided, however, PFPC
may use without such approval its name in representative client lists which
merely refer in accurate terms to the appointment of PFPC hereunder or
which are required by the SEC or a state securities commission, and,
provided, further, that in no event shall such approval be unreasonably
withheld.
21. SECURITY. PFPC represents and warrants that, to the best of its knowledge,
the various procedures and systems which PFPC has implemented with regard
to safeguarding from loss or damage the Fund's blank check, records and
other data and PFPC's records, data, equipment, facilities and other
property used in the performance of its obligations hereunder are
commercially reasonable. The parties may review such systems and procedures
on a periodic basis.
22. REGISTRATION AS A TRANSFER AGENT. PFPC represents that it is currently
registered with the appropriate Federal agency for the registration of
transfer agents, and that it will remain so registered for the duration of
this Agreement. PFPC agrees that it will promptly notify the Fund in the
event of any material changes in its status as a registered transfer agent.
23. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its duties
hereunder to any majority-owned direct or indirect subsidiary of PFPC or
The PNC Financial Services Group, Inc., provided that (i) PFPC gives the
Fund 30 days prior written notice of such assignment or delegation, (ii)
the delegate or assignee is registered and qualified under the
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1934 Act to act as a transfer agent, (iii) the assignee or delegate agrees
to comply with the relevant provision of the 1940 Act, and (iv) PFPC and
such assignee or delegate promptly provide such information as the Fund may
reasonably request, and respond to such questions as the Fund may
reasonably ask, relative to the assignment or delegation (including,
without limitation, the capabilities of the assignee or delegate).
24. 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.
25. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
26. XXXXXXXXXX.XXX 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.
27. 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 make any
modifications to its registration statement or adopt any policies which
would affect materially the obligations or responsibilities of PFPC
hereunder without reasonable notice to
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PFPC.
(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
Delaware and governed by Delaware 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.
(g) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
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:
-------------------------------
Title:
-----------------------------
EQUITABLE PREMIER FUNDS
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By:
-------------------------------
Title:
-----------------------------
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EXHIBIT A
THIS EXHIBIT A, dated as of , 2001, is Exhibit A to that
certain Transfer Agency Services Agreement dated as of , 2001,
between PFPC Inc. and Equitable Premier Funds.
PORTFOLIOS
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[List all Portfolios here]
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EXHIBIT B
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XXXXXXXXXX.XXX(R) SERVICES
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) "End-User" means any Shareholder, Financial Intermediary or
broker-dealer back office operation that accesses the PFPC System via
XXXXXXXXxx.XXX(R).
(b) "End-User Data" means data generated as a result of an End-User's
access of the hypertext link from the Fund Web Site to XXXXXXXXxx.XXX(R) , and
includes personal and Fund account information.
(c) "Confidential Information" means the term defined in Section 8 of the
Agreement, and includes any and all confidential or other proprietary
information in any form, whether written, electronic or oral, that is disclosed
by one party to another including, but not limited to, End-User Data, financial
reports, specifications, interfaces, programs and any related information or
materials. "Confidential Information" will not include information (i) already
lawfully known to or independently developed by the receiving party, (ii)
disclosed in published materials, (iii) generally known to the public, (iv)
lawfully obtained from any third party without any obligation of
confidentiality, or (v) required to be disclosed by law.
(d) "Financial Intermediary" means any investment advisor, broker-dealer,
financial planner or any other person authorized by a Shareholder or the Fund to
act on behalf of a Shareholder.
(e) "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, connected to the Internet and accessible by hypertext link
through the World Wide Web to and from XXXXXXXXxx.XXX(R).
(f) "XXXXXXXXxx.XXX(R) Services" means the services identified in Section 2
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 Inquires may be performed and Transactions may be requested
by accessing XXXXXXXXxx.XXX(R) via hypertext link from the Fund Web Site.
(g) "Inquiry" means any access to the PFPC System via XXXXXXXXxx.XXX(R)
requested by an End-User which is not a Transaction.
(h) "Internet" means the communications network comprised of multiple
communications networks linking education, government, industrial and private
computer networks.
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(i) "XXXXXXXXxx.XXX(R)" 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, whereby the Inquiry and Transaction data fields
and related screens provided by PFPC may be viewed.
(j) "Shareholder" means the record owner or authorized agent of the record
owner of shares of the Fund.
(k) "Transaction" shall mean purchase, redemption, exchange or any other
activity involving the movement of Shares initiated by an End-User, provided
that broker-dealer back office operations will not be permitted to initiate
Transactions.
2. PFPC RESPONSIBILITIES. Subject to the provisions of this Exhibit B and the
Agreement, 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) all computers, telecommunications equipment, encryption technology and
other materials and services reasonably necessary to develop and maintain
XXXXXXXXxx.XXX(R) to permit persons to be able to view information about the
Fund and to permit End-Users with appropriate identification and access codes to
request Inquiries and initiate Transactions;
(b) at least one consistent return hypertext link from XXXXXXXXxx.XXX(R) to
a page within the Fund Web Site designated by the Fund, which shall be displayed
subject to the mutual agreement of the parties;
(c) at the Fund's expense, notification and promotional mailings and other
communications provided by the Fund to Financial Intermediaries and/or
Shareholders regarding the availability of XXXXXXXXxx.XXX(R) Services;
[(d) upon availability of such service, preparation and processing of new
account applications received through XXXXXXXXxx.XXX(R) from Shareholders
determined by the Fund to be eligible for such services;][Omit for B-D Back
Office Only Version]
(e) the set up of personal identification numbers ("PIN's"), as described
in the XXXXXXXXxx.XXX(R) Product Guide provided to the Fund, which shall include
verification of initial identification numbers issued, resetting and activation
of personalized PIN's and reissuance of new PIN's in the case of lost PIN's;
(f) installation services, which shall include reviewing and approving the
Fund's network requirements, recommending a method of establishing (and, as
applicable, cooperating with the Fund to implement and maintain) a hypertext
link between XXXXXXXXxx.XXX(R) and the Fund Web Site and testing the network
connectivity and performance;
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(g) the establishment of systems to guide, assist and permit End-Users who
access XXXXXXXXxx.XXX(R) from the Fund Web Site to electronically perform
Inquiries and create and transmit Transaction requests to PFPC;
(h) delivery to the Fund of one (1) copy of the PFPC XXXXXXXXxx.XXX(R)
Product Guide, as well as all updates thereto on a timely basis;
(i) delivery of monthly billing reports to the Fund, which shall include
reports of Inquiries and Transactions processed on a monthly basis;
(j) a form of encryption that is generally available to the public in the
U.S. for standard Internet browsers and shall establish, monitor and verify
firewalls and other security features in a commercially reasonable manner and
shall exercise commercially reasonable efforts to maintain the security and
integrity of the PFPC Web Site and the End-User Data, in accordance with the
Fund's specifications;
(k) maintenance of all on-screen disclaimers, including, without
limitation, copyright, trademark and service xxxx notifications 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;
(l) monthly site visitation (hit reports) and other information regarding
End-User activity under this Agreement, and as agreed by PFPC and the Fund from
time to time;
(l) monitoring of the telephone lines involved in providing
XXXXXXXXxx.XXX(R) Services and shall inform the Fund promptly of and correct any
malfunctions or service interruptions;
(m) periodic scanning of its Internet interfaces and XXXXXXXXxx.XXX(R) for
viruses and shall promptly remove any such viruses located thereon;
(n) maintenance and support of XXXXXXXXxx.XXX(R), which shall include
providing error corrections, minor enhancements and interim upgrades to
XXXXXXXXxx.XXX(R) made generally available to XXXXXXXXxx.XXX(R) customers and
providing help desk support to assist Fund employees in furtherance of the
Fund's use of XXXXXXXXxx.XXX(R);
Maintenance and support shall not include (i) access to or use of any
substantial added functionality, new interfaces, new architecture, new
platforms, new versions or major development efforts, unless made generally
available by PFPC to XXXXXXXXxx.XXX(R) clients, as determined solely by PFPC; or
(ii) maintenance of customized features; and
(o) access to XXXXXXXXxx.XXX(R) by End-Users via a logon I.D. and PIN
twenty-four (24) hours per day, each day of the year, which shall be secured and
protected from unauthorized use by commercially reasonable means, including
Secure Sockets Layer (SSL) encryption technology.
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(p) the Fund recognizes and acknowledges that (i) End User's Web Browser
and ISP must support SSL encryption technology; and (ii) PFPC will not provide
any software for access to the Internet; software must be acquired from a third
party vendor.
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 hypertext
links to XXXXXXXXxx.XXX(R);
(b) promptly provide PFPC written notice of changes in Fund policies or
procedures requiring changes to the XXXXXXXXxx.XXX(R) Services;
(c) work with PFPC to develop Internet marketing materials for End-Users
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 End-Users, to include the appropriate
consents, notices and disclosures for XXXXXXXXxx.XXX(R) Services, including
disclaimers and information reasonably requested by PFPC;
(e) maintain all on-screen disclaimers and copyright, trademark and service
xxxx 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
(f) design and develop the Fund Web Site functionality necessary to
facilitate, implement and maintain the hypertext links to XXXXXXXXxx.XXX(R) and
the various Inquiry and Transaction web pages and otherwise make the Fund Web
Site available to End-Users.
4. STANDARDS OF CARE FOR INTERNET SERVICES. Notwithstanding anything to the
contrary contained in the Agreement, although PFPC shall comply with the
standard of care specified in the Agreement and above in providing
XXXXXXXXxx.XXX(R) Services, PFPC shall not be obligated to ensure or verify the
accuracy or the transmission of any Inquiry or Transaction request not actually
received by PFPC due to circumstances beyond the control of PFPC. The Fund shall
advise End-Users to promptly notify the Fund or PFPC of any errors or
inaccuracies in End-User Data or information transmitted via XXXXXXXXxx.XXX(R)
Services, so that PFPC may take steps to promptly correct such End-User Data or
transmittal.
5. ADDITIONAL FEES FOR XXXXXXXXXX.XXX(R) SERVICES. As consideration for the
performance by PFPC of XXXXXXXXxx.XXX(R) Services, the Fund will pay the fees
set forth in a separate fee letter as agreed between the parties from time to
time.
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6. CONFIDENTIALITY AND PROPRIETARY RIGHTS.
(a) Each of the parties acknowledges and agrees (i) to exercise best
efforts to preserve the confidentiality of the other party's Confidential
Information; (ii) not to disclose, or permit any third party or entity access to
the other party's Confidential Information without prior written permission
(except such disclosure or access which is required to perform any obligations
under this Agreement); (iii) to advise any employees, or any third parties who
receive access to Confidential Information of the confidential and proprietary
nature thereof and the prohibitions on copying, utilizing, or otherwise
revealing the Confidential Information; and (iv) to use any Confidential
Information disclosed only during the term of the Agreement and only in
accordance with the provisions of this Exhibit B and the Agreement. Without
limiting the foregoing, neither party shall have rights in or to any
Confidential Information of the other. 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 XXXXXXXXxx.XXX(R) 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
(collectively, "Intellectual Property"). 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. During the term of this Agreement, each party grants to the other a
non-exclusive, non-sublicensable, non-transferable, royalty-free license to
reproduce, display, distribute, perform and publicly and digitally use the other
party's Intellectual Property, and any and all rights contained therein, on each
party's respective web site, provided such use is necessary for the parties to
perform as contemplated in this Agreement. 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.
(c) Each of the parties acknowledges and agrees that the Fund will solely
and exclusively own all right, title and interest in and to any End-User Data
collected at the Fund Web Site or XXXXXXXXxx.XXX(R). PFPC's use of the End-User
Data shall at all times be limited to the purposes contemplated in this
Agreement and only in accordance with the Fund's privacy policy. Neither PFPC
nor any of its affiliates shall distribute, sell, rent, transfer or otherwise
disclose End-User Data to third parties without the prior written consent of the
Fund, except as necessary to third parties providing services relating to
XXXXXXXXxx.XXX(R). PFPC further shall cause such third party service providers
to be subject to written agreements establishing the same restrictions on the
sale, transfer, use, rent or disclosure of End-User Data.
7. 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 XXXXXXXXxx.XXX(R) 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 hardware components
designed to disable, damage or impair the operation of any
26
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.
8. 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
for any functions or malfunctions of the Internet beyond the reasonable control
of either party; provided further, that the Fund shall not be liable for, and
shall be indemnified by PFPC for, any claims by End-Users relating to viruses,
system failures or other interruptions of XXXXXXXXxx.XXX(R) Services due to the
conduct of PFPC or its third party service providers. Each party agrees the
other shall not be liable 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 XXXXXXXXxx.XXX(R) Services 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
SPECIFICALLY PROVIDED IN SECTIONS 2 AND 4, AND TO THE EXTENT LIMITED BY LAW, ALL
SOFTWARE AND SYSTEMS DESCRIBED IN THIS EXHIBIT B 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.
9. 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 XXXXXXXXxx.XXX(R) 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
XXXXXXXXxx.XXX(R) Services.
(c) Compliance with Law. Each Party shall be responsible for compliance
with all applicable laws, rules and regulations, if any, related to the
performance of its obligations under this Agreement.
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