Ex-99.h.2
TRANSFER AGENCY AND RELATED SERVICES AGREEMENT
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THIS AGREEMENT is made as of _________, 200__ by and between PFPC INC.,
a Massachusetts corporation ("PFPC"), and [XXXXXXX ADVISORS __________________,
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 related services agent to the Fund's
Portfolios (as hereinafter defined) 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:
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(a) "1933 Act" means the Securities Act of 1933, as amended.
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(b) "1934 Act" means the Securities Exchange Act of 1934, as
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amended.
(c) "Authorized Person" means any officer of the Fund and any
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other person duly authorized by the Fund's Board of Trustees ("Board") to give
Oral Instructions and Written Instructions on behalf of the Fund and listed on
the Authorized Persons Appendix attached hereto and made a part hereof or any
amendment thereto as may be received by PFPC. An Authorized
Person's scope of authority may be limited by the Fund by setting forth such
limitation in the Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
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(e) "Oral Instructions" mean oral instructions received by
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PFPC from an Authorized Person.
(f) "Portfolio" means a series or investment portfolio of the
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Fund identified on Annex A hereto, as the same may from time to time be amended,
if the Fund consists of more than one series or investment portfolio; however,
if the Fund does not have separate series or investment portfolios, then this
term shall be deemed to refer to the Fund itself.
(g) "SEC" means the Securities and Exchange Commission.
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(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the
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1940 Act and the CEA.
(i) "Shares" mean the shares of common stock or beneficial
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interest of any series or class of the Fund.
(j) "Written Instructions" mean written instructions signed by
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an Authorized Person and received by PFPC. The instructions may be delivered by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC to serve as
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transfer agent, registrar, dividend disbursing agent and related services agent
to the Fund, and should the Fund have separate Portfolios, those Portfolios
which are listed on Annex A hereto, 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 (or a particular Portfolio,
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as appropriate) has provided or, where applicable, will provide PFPC with the
following:
(a) Certified or authenticated copies of the resolutions
of the Fund's Board approving the appointment of PFPC
to provide services to the Fund and approving this
Agreement;
(b) A copy of each executed broker-dealer agreement with
respect to each Fund; and
(c) Copies (certified or authenticated if requested by
PFPC) of any post-effective amendment to the Fund's
registration statement, advisory agreement,
distribution agreement, shareholder servicing agreement
and all amendments or supplements to the foregoing upon
request.
4. Compliance with Rules and Regulations. PFPC undertakes to
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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 of its Portfolios.
5. Instructions.
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(a) Unless otherwise provided in this Agreement, PFPC shall
act only upon Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions
and Written Instructions it receives from an Authorized Person 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 of any vote, resolution or proceeding of the Fund's
Board 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 next day after such Oral Instructions are received.
The fact that such confirming Written Instructions are not received by PFPC
shall in no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received from an Authorized
Person, PFPC shall incur no liability to the 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.
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(a) Advice of the Fund. If PFPC is in doubt as to any
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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
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question of law pertaining to any action it should or should not take, PFPC may
request advice at its own cost from such counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or PFPC, at the option of
PFPC).
(c) Conflicting Advice. In the event of a conflict between
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directions, 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. In the event PFPC so relies on the advice of
counsel, PFPC remains liable for any action or omission on the part of PFPC
which constitutes willful misfeasance, bad faith, negligence or reckless
disregard by PFPC of any duties, obligations or responsibilities set forth in
this Agreement.
(d) Protection of PFPC. PFPC shall be protected in any
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action it takes or does not take in reliance upon directions, 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,
advice or Oral Instructions or Written Instructions. Nothing in this section
shall be construed so as to impose an obligation upon PFPC (i) to seek such
directions, advice or Oral Instructions or Written Instructions, or (ii) to act
in accordance with such directions, advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions of this Agreement, the
same is a condition of PFPC's properly taking or not taking such action. Nothing
in this subsection shall excuse PFPC when an action or omission on the part of
PFPC constitutes willful misfeasance, bad faith, negligence or reckless
disregard by PFPC of any duties, obligations or responsibilities set forth in
this Agreement.
7. Records; Visits. PFPC shall prepare and maintain in complete
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and accurate form all books and records necessary for it to serve as transfer
agent, registrar, dividend disbursing agent and related services agent to each
Portfolio, including (a) all those records required to be prepared and
maintained by the Fund under the 1940 Act, by other applicable Securities Laws,
rules and regulations and by state laws and (b) such books and records as are
necessary for PFPC to perform all of the services it agrees to provide in this
Agreement and the appendices attached hereto, including but not limited to the
books and records necessary to effect the conversion of Class B shares, the
calculation of any contingent deferred sales charges and the calculation of
front-end sales charges. 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. The Fund and Authorized Persons shall have access to such books and
records in the possession or under the control of PFPC at all times during
PFPC's normal business hours. Upon the reasonable request of the Fund, copies of
any such books and records in the possession or under the control of PFPC shall
be provided by PFPC to the Fund or to an Authorized Person. Upon reasonable
notice by the Fund, PFPC shall make available during regular business hours its
facilities and premises employed in connection with its performance of this
Agreement for reasonable visits by the Fund, any agent or person designated by
the Fund or any regulatory agency having authority over the Fund.
8. Confidentiality. PFPC agrees to keep confidential all records
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of the Fund and information relating to the Fund and its shareholders (past,
present and future), its investment adviser and its principal underwriter,
unless the release of such records or information is otherwise consented to, in
writing, by the Fund prior to its release. The Fund agrees that such consent
shall not be unreasonably withheld and may not be withheld where PFPC may be
exposed to civil or criminal contempt proceedings or when required to divulge
such information or records to duly constituted authorities.
9. Cooperation with Accountants. PFPC shall cooperate with the
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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. Disaster Recovery. PFPC shall enter into and shall maintain in
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effect with appropriate parties one or more agreements making reasonable
provisions for periodic backup of computer files and data with respect to the
Fund and emergency use of electronic data processing equipment. 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, negligence or reckless disregard of its duties or
obligations under this Agreement and provided further that PFPC has complied
with the provisions of this paragraph 10.
11. Compensation. As compensation for services rendered by PFPC
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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.
12. Indemnification
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(a) The Fund agrees to indemnify and hold harmless PFPC and
its affiliates from all taxes, charges, expenses, assessments, penalties, claims
and liabilities (including, without limitation, liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws, and
amendments thereto), and expenses, including (without limitation) reasonable
attorneys' fees and disbursements, arising directly or indirectly from (i) any
action or omission to act which PFPC takes (a) at the request or on the
direction of or in reliance on the advice of the Fund or (b) upon Oral
Instructions or Written Instructions or (ii) the acceptance, processing and/or
negotiation of checks or other methods utilized for the purchase of Shares.
Neither PFPC, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) arising out of PFPC's or
its affiliates' own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement. The Fund's
liability to PFPC for PFPC's acceptance, processing and/or negotiation of checks
or other methods utilized for the purchase of Shares shall be limited to the
extent of the Fund's policy(ies) of insurance that provide for coverage of such
liability, and the Fund's insurance coverage shall take precedence.
(b) PFPC agrees to indemnify and hold harmless the Fund from
all taxes, charges, expenses, assessments, penalties, claims and liabilities
arising from PFPC's obligations pursuant to this Agreement (including, without
limitation, liabilities arising under the Securities Laws, and any state and
foreign securities and blue sky laws, and amendments thereto) and expenses,
including (without limitation) reasonable attorneys' fees and disbursements
arising directly or indirectly out of PFPC's or its nominee's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
(c) In order that the indemnification provisions contained in
this Paragraph 12 shall apply, upon the assertion of a claim for which either
party may be required to indemnify the other, the party seeking indemnification
shall promptly notify the other party of such assertion, and shall keep the
other party advised with respect to all developments concerning such claim. The
party who may be required to indemnify shall have the option to participate with
the party seeking indemnification in the defense of such claim. The party
seeking indemnification shall in no case confess any claim or make any
compromise in any case in which the other party may be required to indemnify it
except with the other party's prior written consent.
(d) The members of the Board of the Fund, its officers and
Shareholders, or of any Portfolio thereof, shall not be liable for any
obligations of the Fund, or any such Portfolio, under this Agreement, and PFPC
agrees that in asserting any rights or claims under this Agreement, it shall
look only to the assets and property of the Fund or the particular Portfolio in
settlement of such rights or claims and not to such members of the Board, its
officers or Shareholders. PFPC further agrees that it will look only to the
assets and property of a particular Portfolio of the Fund, should the Fund have
established separate series, in asserting any rights or claims under this
Agreement
with respect to services rendered with respect to that Portfolio and will not
seek to obtain settlement of such rights or claims from the assets of any other
Portfolio of the Fund.
13. Insurance. PFPC shall maintain insurance of the types and in the
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amounts deemed by it to be appropriate. To the extent that policies of insurance
may provide for coverage of claims for liability or indemnity by the parties set
forth in this Agreement, the contracts of insurance shall take precedence, and
no provision of this Agreement shall be construed to relieve an insurer of any
obligation to pay claims to the Fund, PFPC or other insured party which would
otherwise be a covered claim in the absence of any provision of this Agreement.
14. Security.
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PFPC represents and warrants that, to the best of its
knowledge, the various procedures and systems which PFPC has implemented with
regard to the safeguarding from loss or damage attributable to fire, theft or
any other cause (including provision for twenty-four hours a day restricted
access) of the Fund's blank checks, certificates, records and other data and
PFPC's equipment, facilities and other property used in the performance of its
obligations hereunder are adequate, and that it will make such changes therein
from time to time as in its judgment are required for the secure performance of
its obligations hereunder. PFPC shall review such systems and procedures on a
periodic basis, and the Fund shall have reasonable access to review these
systems and procedures.
15. Responsibility of PFPC.
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(a) PFPC shall be under no duty to take any action on behalf
of the Fund except as specifically set forth herein or as may be specifically
agreed to by PFPC in writing. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder, to act in good
faith and to use its best efforts in performing services provided for under this
Agreement. PFPC shall be liable for any damages arising out of PFPC's failure to
perform its duties under this Agreement to the extent such damages arise out of
PFPC's willful misfeasance, bad faith, negligence or reckless disregard of such
duties.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, PFPC shall not be under any duty or
obligation to inquire into and shall not be liable for (A) the validity or
invalidity or authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which conforms to the applicable
requirements of this Agreement, and which PFPC reasonably believes to be
genuine; or (B) subject to Section 10, delays or errors or loss of data
occurring by reason of circumstances beyond PFPC's control, including acts of
civil or military authority, national emergencies, labor difficulties, fire,
flood, catastrophe, acts of God, insurrection, war, riots or failure of the
mails, transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the
contrary, neither PFPC nor its affiliates shall be liable to the Fund for any
consequential, special or indirect losses or damages which the Fund may incur or
suffer by or as a consequence of PFPC's or its affiliates' performance of the
services provided hereunder, whether or not the likelihood of such losses or
damages was known by PFPC or its affiliates.
(d) Notwithstanding anything in this Agreement to the
contrary, the Fund shall not be liable to PFPC nor its affiliates for any
consequential, special or indirect losses or damages which PFPC or its
affiliates may incur or suffer by or as a consequence of PFPC's performance of
the services provided hereunder, whether or not the likelihood of such losses or
damages was known
by the Fund.
16. Description of Services.
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(a) Services Provided on an Ongoing Basis, If Applicable.
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(i) Calculate 12b-1 payments to financial
intermediaries, including brokers, and financial
intermediary trail commissions;
(ii) Develop, monitor and maintain, in consultation
with the Fund, all systems necessary to implement
and operate the four-tier distribution system,
including Class B conversion feature, as
described in the registration statement and
related documents of the Fund, as they may be
amended from time to time;
(iii) Calculate contingent deferred sales charge
amounts upon redemption of Fund shares and deduct
such amounts from redemption proceeds;
(iv) Calculate front-end sales load amounts at time of
purchase of shares;
(v) Determine dates of Class B conversion and effect
the same;
(vi) Establish and maintain proper shareholder
registrations;
(vii) Review new applications and correspond with
shareholders to complete or correct information;
(viii) Direct payment processing of checks or wires;
(ix) Prepare and certify stockholder lists in
conjunction with proxy solicitations;
(x) Prepare and mail to shareholders confirmation of
activity;
(xi) Provide toll-free lines for direct shareholder
use, plus customer liaison staff for on-line
inquiry response;
(xii) Send duplicate confirmations to broker-dealers of
their clients' activity, whether executed through
the broker-dealer or directly with PFPC;
(xiii) Provide periodic shareholder lists, outstanding
share calculations and related statistics to the
Fund;
(xiv) Provide detailed data for underwriter/broker
confirmations;
(xv) Prepare and mail required calendar and taxable
year-end tax and statement information (including
forms 1099-DIV and 1099-B and accompanying
statements);
(xvi) Notify on a daily basis the investment adviser,
accounting agent, and custodian of fund activity;
(xvii) Perform, itself or through a delegate, all of the
services, whether or not included within the
scope of another paragraph of this Paragraph
16(a), specified on Annex B hereto; and
(xviii) 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
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Instructions.
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(i) Accept and post daily Fund and class 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) Cancel certificates.
(c) Purchase of Shares. PFPC shall issue and credit an account
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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
(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
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function is
properly authorized by the Fund's organizational documents or resolutions of the
Fund's Board. Shares shall be redeemed and payment therefor shall be made in
accordance with the Fund's or Portfolio's prospectus.
(i) Broker-Dealer Accounts.
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When a broker-dealer notifies PFPC of a
redemption desired by a customer, and the Fund's
or Portfolio's custodian (the "Custodian") has
provided PFPC with funds, PFPC shall (a) transfer
by Fedwire or other agreed upon electronic means
such redemption payment to the broker-dealer for
the credit to, and for the benefit of, the
customer's account or (b) shall prepare and send
a redemption check to the broker-dealer, made
payable to the broker-dealer on behalf of its
customer.
(ii) Fund-Only Accounts.
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If Shares (or appropriate instructions) are
received in proper form, at the Fund's request
Shares may be redeemed before the funds are
provided to PFPC from 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:
(a) the surrendered certificate is drawn to
the order of an assignee or holder and
transfer authorization is signed by the
recordholder; or
(b) transfer authorizations are signed by
the recordholder
when Shares are held in book-entry form.
(e) Dividends and Distributions. Upon receipt of a resolution
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of the Fund's Board 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 appropriate Fund's or Portfolio'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 law or other laws, rules or
regulations. PFPC shall mail to the Fund's shareholders and the IRS and other
appropriate taxing authorities such tax forms, or permissible substitute forms,
and other information relating to dividends and distributions paid by the Fund
(including designations of the portions of distributions of net capital gain
that are 20% rate gain distributions and 28% rate gain distributions pursuant to
IRS Notice 97-64) as are required to be filed and mailed by applicable law, rule
or regulation within the time required thereby. 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.
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(i) PFPC will arrange, in accordance with the
appropriate Fund's or Portfolio's prospectus, for
issuance of Shares obtained through:
- The transfer of funds from shareholders' accounts
at financial institutions, provided PFPC receives
advance Oral or Written Instruction of such
transfer;
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders, checks
and applications.
(ii) PFPC will arrange, in accordance with the
appropriate Fund's or Portfolio's 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 systematic withdrawal
plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
(g) Communications to Shareholders. Upon timely Written
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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 forms (including substitute forms) and
accompanying information containing the information
required by paragraph 16(e).
If requested by the Fund, PFPC will receive and tabulate the proxy
cards for the meetings of the Fund's shareholders and supply personnel to serve
as inspectors of election.
(h) Records. PFPC shall maintain those records required by the
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Securities Laws and any laws, rules and regulations of governmental authorities
having jurisdiction with respect to the duties to be performed by PFPC hereunder
with respect to shareholder accounts or by transfer
agents generally, including records of the accounts for each shareholder showing
the following information:
(i) Name, address and United States Taxpayer
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, their character (e.g. ordinary
income, net capital gain (including 20% rate gain
and 28% rate gain), exempt-interest, foreign tax-
credit and dividends received deduction eligible)
for federal income tax purposes 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 the transfer
agent to perform any calculations contemplated or
required by this Agreement.
(i) Lost or Stolen Certificates. PFPC shall place a stop notice
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against any certificate reported to be lost or stolen and comply with all
applicable federal regulatory requirements for reporting such loss or alleged
misappropriation. The lost or stolen certificate will be canceled and
uncertificated Shares will be issued to a shareholder's account 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
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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 and does hereby
release PFPC from any liability for refusal of permission for a particular
shareholder to inspect the Fund's shareholder records.
(k) Withdrawal of Shares and Cancellation of Certificates.
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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.
17. Duration and Termination.
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(a) This Agreement shall be effective on the date first written
above and shall continue for a period of three (3) years (the "Initial Term").
Upon the expiration of the Initial Term, this Agreement shall automatically
renew for successive terms of one (1) year ("Renewal Terms") each provided that
it may be terminated by either party during a Renewal Term upon written notice
given at least ninety (90) days prior to termination. During either the Initial
Term or the Renewal Terms, this Agreement may also be terminated on an earlier
date by either party for cause.
(b) With respect to the Fund, cause includes, but is not limited
to, (i) PFPC's material breach of this Agreement causing it to fail to
substantially perform its duties under this Agreement. In order for such
material breach to constitute "cause" under this Paragraph, PFPC must receive
written notice from the Fund specifying the material breach and PFPC shall not
have corrected such breach within a 15-day period; (ii) financial difficulties
of PFPC evidenced by the authorization or commencement of a voluntary or
involuntary bankruptcy under the U.S. Bankruptcy Code or any applicable
bankruptcy or similar law, or under any applicable law of any jurisdiction
relating to the liquidation or reorganization of debt, the appointment of a
receiver or to the modification or alleviation of the rights of creditors; and
(iii) issuance of an administrative or court order against PFPC with regard to
the material violation or alleged material violation of the Securities Laws or
other applicable laws related to its business of performing transfer agency
services;
(c) With respect to PFPC, cause includes, but is not limited to,
the failure of the Fund to pay the compensation set forth in writing pursuant to
Paragraph 11 of this Agreement.
(d) Any notice of termination for cause in conformity with
subparagraphs (a), (b) and (c) of this Paragraph by the Fund shall be effective
thirty (30) days from the date of any such notice. Any notice of termination for
cause by PFPC shall be effective 90 days from the date of such notice.
(e) Upon the termination hereof, the Fund shall pay to PFPC such
compensation as may be due for the period prior to the date of such termination.
In the event that the Fund designates a successor to any of PFPC's obligations
under this Agreement, PFPC shall, at the direction and expense of the Fund,
transfer to such successor all relevant books, records and other data
established or maintained by PFPC hereunder including, a certified list of the
shareholders of the Fund or any Portfolio thereof with name, address, and if
provided, taxpayer identification or Social Security number, and a complete
record of the account of each shareholder. To the extent that PFPC incurs
expenses related to a transfer of responsibilities to a successor, other than
expenses involved in PFPC's providing the Fund's books and records described in
the preceding sentence to the successors, PFPC shall be entitled to be
reimbursed for such extraordinary expenses, including any out-of-pocket expenses
reasonably incurred by PFPC in connection with the transfer.
(f) Any termination effected pursuant to this Paragraph shall
not affect the rights and obligations of the parties under Paragraph 12 hereof.
(g) Notwithstanding the foregoing, this Agreement shall
terminate with respect to the Fund or any Portfolio thereof upon the
liquidation, merger, or other dissolution of the Fund or Portfolio or upon the
Fund's ceasing to be a registered investment company.
18. Registration as a Transfer Agent. PFPC represents that it is
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currently registered with the appropriate federal agency for the registration of
transfer agents, or is otherwise permitted to lawfully conduct its activities
without such registration and that it will remain so registered or able to so
conduct such activities for the duration of this Agreement. PFPC agrees that it
will promptly notify the Fund in the event of any material change in its status
as a registered transfer agent. Should PFPC fail to be registered with the SEC
as a transfer agent at any time during this Agreement, and such failure to
register does not permit PFPC to lawfully conduct its activities, the Fund may,
on written notice to PFPC, terminate this Agreement upon five days written
notice to PFPC.
19. Notices. All notices and other communications, including Written
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Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device. Notices shall be addressed (a) if to PFPC, at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if to the Fund, at the address
of the Fund 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 during regular business hours, it shall
be deemed to have been given immediately; if sent at a time other than regular
business hours, such notice shall be deemed to have been given at the opening of
the next business day. 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. All postage, cable, telegram, telex
and facsimile sending device charges arising from the sending of a notice
hereunder shall be paid by the sender.
20. 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.
21. Additional Portfolios. In the event that the Fund establishes one
---------------------
or more investment series in addition to and with respect to which it desires to
have PFPC render services as transfer agent, registrar, dividend disbursing
agent and related services agent under the terms set forth in this Agreement, it
shall so notify PFPC in writing, and PFPC shall agree in writing to provide such
services, and such investment series shall become a Portfolio hereunder, subject
to such additional terms, fees and conditions as are agreed to by the parties.
22. Delegation; Assignment.
----------------------
(a) PFPC may, at its own expense, assign its rights and delegate
its duties hereunder to any wholly-owned direct or indirect subsidiary of The
PNC Financial Services Group, Inc., provided that (i) PFPC gives the Fund thirty
(30) days' prior written notice; (ii) the delegate (or assignee) agrees with
PFPC and the Fund to comply with all relevant provisions of the Securities Laws;
and (iii) PFPC and such delegate (or assignee) promptly provide such information
as the Fund may request, and respond to such questions as the Fund may ask,
relative to the delegation (or assignment), including (without limitation) the
capabilities of the delegate (or assignee). The assignment and delegation of any
of PFPC's duties under this subparagraph (a) shall not relieve PFPC of any of
its responsibilities or liabilities under this Agreement.
(b) PFPC may delegate to UBS PaineWebber Incorporated its
obligation to perform the services described on Annex B hereto. In addition,
PFPC may assign its rights and delegate its other duties hereunder to UBS
PaineWebber Incorporated or [Xxxxxxx Advisors Asset Management Inc.] or an
affiliated person of either, provided that (i) PFPC gives the Fund thirty (30)
days' prior written notice; (ii) the delegate (or assignee) agrees with PFPC and
the Fund to comply with all relevant provisions of the Securities Laws; and
(iii) PFPC and such delegate (or assignee) promptly provide such information as
the Fund may request, and respond to such questions as the Fund may ask,
relative to the delegation (or assignment), including (without limitation) the
capabilities of the delegate (or assignee). In assigning its rights and
delegating its duties under this paragraph, PFPC may impose such conditions or
limitations as it determines appropriate including the condition that PFPC be
retained as a sub-transfer agent.
(c) In the event that PFPC assigns its rights and delegates
its duties under this section, no amendment of the terms of this Agreement shall
become effective without the written consent of PFPC.
23. 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.
24. Further Actions. Each party agrees to perform such further
---------------
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
25. 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 services to be performed and fees payable under this
Agreement.
(b) Captions. The captions in this Agreement are included
--------
for convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(c) Governing Law. This Agreement shall be deemed to be a
--------------
contract made in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(d) Partial Invalidity. If any provision of this Agreement
-------------------
shall be held or made invalid by a court decision, statute, rule or otherwise,
the remainder of this Agreement shall not be affected thereby.
(e) Successors and Assigns. This Agreement shall be binding
----------------------
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(f) Facsimile Signatures. The facsimile signature of any
---------------------
party to this Agreement shall constitute the valid and binding execution hereof
by such party.
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:_____________________
[XXXXXXX ADVISORS ______________]
By:________________________
Title:_____________________
ANNEX A
Portfolios
AUTHORIZED PERSONS APPENDIX
Name (Type) Signature
___________ ___________
___________ ___________
___________ ___________
___________ ___________
___________ ___________
___________ ___________
ANNEX B
a. Establish and maintain a dedicated service center with sufficient
facilities, equipment and skilled personnel to address all shareholder
inquiries received by telephone, mail or in-person regarding the Funds and
their accounts
b. Provide timely execution of redemptions, exchanges and non-financial
transactions directed to investment executives and specifically requested
by Fund shareholders
c. Issue checks from proceeds of Fund share redemptions to shareholders as
directed by the shareholders or their agents
d. Process and maintain shareholder account registration information
e. With respect to customer accounts maintained through UBS PaineWebber
Incorporated ("UBS PaineWebber"), review new applications and correspond
with shareholders to complete or correct information
f. Prepare and mail monthly or quarterly consolidated account statements that
reflect UBS PaineWebber Mutual Fund balances and transactions (such
information to be combined with other activity and holdings in investors'
brokerage accounts if this responsibility is delegated to UBS PaineWebber)
g. Establish and maintain a dedicated service center with sufficient
facilities, equipment and skilled personnel to address all branch
inquiries regarding operational issues and performance
h. Capture, process and mail required tax information to shareholders and
report this information to the Internal Revenue Service
i. Provide the capability to margin UBS PaineWebber Mutual Funds held within
the client's brokerage account (if this responsibility is delegated to UBS
PaineWebber)
j. Prepare and provide shareholder registrations for mailing of proxies,
reports and other communications to shareholders
k. Develop, maintain and issue checks from the UBS PaineWebber systematic
withdrawal plan offered within the client's brokerage account (if this
responsibility is delegated to UBS PaineWebber)
l. Maintain duplicate shareholder records and reconcile those records with
those at the transfer
agent (if this responsibility is delegated to UBS PaineWebber)
m. Process and mail duplicate UBS PaineWebber monthly or quarterly statements
to UBS PaineWebber Investment Executives
n. Establish and maintain shareholder distribution options (i.e., election to
have dividends paid in cash, rather than reinvested in Fund shares)
o. Process and mail purchase, redemption and exchange confirmations to Fund
shareholders and UBS PaineWebber Investment Executives
p. Issue dividend checks to shareholders that select cash distributions to
their brokerage account (if this responsibility is delegated to UBS
PaineWebber)
q. Develop and maintain the automatic investment plan offered within the
client's brokerage account (if this responsibility is delegated to UBS
PaineWebber)
r. Provide bank-to-bank wire transfer capabilities related to transactions in
Fund shares
