DRAFT
FORM OF TRANSFER AGENCY AGREEMENT
THIS AGREEMENT is made as of , 1998 by and between PFPC INC., a Delaware
corporation ("PFPC"), and Xxxxxxxx Xxxxxxxx Portfolios, a [Delaware business
trust](the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to the
Trust, and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Trust and any other
person duly authorized by the Trust's Board of Directors or Trustees ("Board")
to give Oral Instructions and Written Instructions on behalf of the Trust and
listed on the Authorized Persons Appendix attached hereto and made a part hereof
or any amendment thereto as may be received by PFPC. An Authorized Person's
scope of authority may be limited by the Trust by setting forth such limitation
in the Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC from
an Authorized Person.
(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 common stock or beneficial interest of
any series or class of the Trust.
(i) "WRITTEN INSTRUCTIONS" mean written instructions signed by an
Authorized Person and received by PFPC. The instructions may be delivered by
hand, mail, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Trust hereby appoints PFPC to serve as transfer
aent, registrar, dividend disbursing agent and shareholder servicing agent
to the Trust in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
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3. DELIVERY OF DOCUMENTS. The Trust has provided or, where applicable,
will provide PFPC with the following:
(a) Certified or authenticated copies of the resolutions of the
Trust's Board approving the appointment of PFPC to provide services to the Trust
and approving this Agreement;
(b) A copy of each executed broker-dealer agreement with respect to
each Trust; and
(c) Copies (certified or authenticated if requested by PFPC) of any
post-effective amendment to the Trust'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 comply with
all applicable requirements of the Securities Laws and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by PFPC hereunder. Except as specifically set forth
herein, PFPC assumes no responsibility for such compliance by the Trust or any
of its series or investment portfolios (each, a "Portfolio").
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act only
upon Oral Instructions and Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instructions and
Written Instructions it receives from an Authorized Person pursuant to this
Agreement. PFPC may assume that any Oral Instruction or Written Instruction
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received hereunder is not in any way inconsistent with the provisions of
organizational documents or of any vote, resolution or proceeding of the Trust's
Board or of the Trust's shareholders, unless and until PFPC receives Written
Instructions to the contrary.
(c) The Trust agrees to forward to PFPC Written Instructions
confirming Oral Instructions so that PFPC receives the Written Instructions by
the close of business on the next day that such Oral Instructions are received.
The fact that such confirming Written Instructions are not received by PFPC
shall in no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received from an Authorized
Person, PFPC shall incur no liability to the Trust in acting upon such Oral
Instructions or Written Instructions provided that PFPC's actions comply with
the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE TRUST. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or advice, including Oral
Instructions or Written Instructions, from the Trust.
(b) ADVICE OF COUNSEL. If PFPC shall be in doubt as to any question of
law pertaining to any action it should or should not take, PFPC may request
advice at its own cost from such counsel of its own choosing (who may be counsel
for the Trust, the Trust's investment adviser or PFPC, at the option of PFPC).
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(c) CONFLICTING ADVICE. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC receives from the
Trust, and the advice it receives from counsel, PFPC may rely upon and follow
the advice of counsel. In the event PFPC so relies on the advice of counsel,
PFPC remains liable for any action or omission on the part of PFPC which
constitutes willful misfeasance, bad 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 action it takes
or does not take in reliance upon directions, advice or Oral Instructions or
Written Instructions it receives from the Trust or from counsel and which PFPC
believes, in good faith, to be consistent with those directions, advice or Oral
Instructions or Written Instructions. Nothing in this section shall be construed
so as to impose an obligation upon PFPC (i) to seek such directions, advice or
Oral Instructions or Written Instructions, or (ii) to act in accordance with
such directions, advice or Oral Instructions or Written Instructions unless,
under the terms of other provisions of this Agreement, the same is a condition
of PFPC's properly taking or not taking such action. Nothing in this subsection
shall excuse PFPC when an action or omission on the part of PFPC constitutes
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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 and
accurate form all books and records necessary for it to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to the
Trust, including (a) all those records required to be prepared and maintained by
the Trust 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 Trust, which are in the
possession or under the control of PFPC, shall be the property of the Trust. The
Trust and Authorized Persons shall have access to such books and records in the
possession of PFPC at all times during PFPC's normal business hours. Upon the
reasonable request of the Trust, copies of any such books and records in the
possession of PFPC shall be provided by PFPC to the Trust or to an Authorized
Person, at the Trust's expense. Upon reasonable notice by the Trust, PFPC shall
make available during regular business hours its facilities and premises
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employed in connection with its performance of this Agreement for reasonable
visits by the Trust, any agent or person designated by the Trust or any
regulatory agency having authority over the Trust.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records of the
Trust and information relating to the Trust 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 Trust prior to its release. The Trust agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC may be exposed to civil
or criminal contempt proceedings or when required to divulge such information or
records to duly constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Trust's
independent public accountants and shall take all reasonable actions in the
performance of its obligations under this Agreement to ensure that the necessary
information is made available to such accountants for the expression of their
opinion, as required by the Trust.
10. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable provisions for
periodic backup of computer files and data with respect to the Trust and
emergency use of electronic data processing equipment. In the event of equipment
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failures, PFPC shall, at no additional expense to the Trust, take reasonable
steps to minimize service interruptions. PFPC shall have no liability with
respect to the loss of data or service interruptions caused by equipment
failure, provided such loss or interruption is not caused by PFPC's own willful
misfeasance, bad faith, 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 during
the term of this Agreement, the Trust will pay to PFPC a fee or fees as
may be agreed to from time to time in writing by the Trust and PFPC.
12. INDEMNIFICATION.
(a) The Trust 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 Trust or (b) upon Oral
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Instructions or Written Instructions or (ii) the acceptance, processing and/or
negotitation 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, 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, negligence or reckless disregard of such duties and
obligations.
(b) PFPC agrees to indemnify and hold harmless the Trust 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
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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 Trust and Shareholders of the
Trust, or any Portfolio thereof, shall not be liable for any obligations of the
Trust, 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 Trust or the particular Portfolio in settlement of
such rights or claims and not to such members of the Board or Shareholders. PFPC
further agrees that it will look only to the assets and property of a particular
Portfolio of the Trust, should the Trust 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 Trust.
Notwithstanding the foregoing, in asserting any rights or claims under this
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Agreement, PFPC shall not be prevented from looking to the assets and property
of the Trust sponsor or any other appropriate party(ies) in settlement of such
rights or claims.
13. INSURANCE. PFPC shall maintain insurance of the types and in the
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 Trust, PFPC or other insured party which would
otherwise be a covered claim in the absence of any provision of this Agreement.
14. SECURITY.
(a) 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
Trust'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
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obligations hereunder. PFPC shall review such systems and procedures on a
periodic basis and the Trust shall have reasonable access to review these
systems and procedures.
(b) Y2K Compliance. PFPC further represents and warrants that any and
all electronic data processing systems and programs that it uses in connection
with the provision of services hereunder and over which PFPC has control prior
to 1999 will be year 2000 compliant.
15. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf of the
Trust except as specifically set forth herein or as may be specifically agreed
to by PFPC in writing. PFPC shall be obligated to exercise care and diligence in
the performance of its duties hereunder, to act in good faith and to use its
best efforts 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
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Section 10, delays or errors or loss of data occurring by reason of
circumstances beyond PFPC's control, including acts of civil or military
authority, national emergencies, labor difficulties, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PFPC nor its affiliates shall be liable to the Trust for any
consequential, special or indirect losses or damages which the Trust may incur
or suffer by or as a consequence of PFPC's or its affiliates' performance of the
services provided hereunder, whether or not the likelihood of such losses or
damages was known by PFPC or its affiliates.
16. DESCRIPTION OF SERVICES.
(a) SERVICES PROVIDED ON AN ONGOING BASIS, IF APPLICABLE.
(i) Calculate 12b-1 payments to financial intermediaries and
financial intermediary trail commissions;
(ii) Develop, monitor and maintain, in consultation with the
Trust, 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 Trust, as they may be amended from time
to time;
(iii) Calculate contingent deferred sales charge amounts upon
redemption of Trust shares and deduct such amounts from redemption proceeds;
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(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 con- junction 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 clients as agreed to by PFPC and the
Trust from time to time;
(xiv) Provide detailed data for underwriter/broker confirmations;
(xv) Prepare periodic mailing of year-end tax and statement
information;
(xvi) Notify on a daily basis the investment adviser, accounting
agent, and custodian of Trust activity; and
(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 A hereto; and
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(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
INSTRUCTIONS.
(i) Accept and post daily Trust 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 of an
investor, in the manner described in the Trust'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 Trusts for such
order to the Trust's custodian.
(d) REDEMPTION OF SHARES. PFPC shall redeem Shares only if that
function is properly authorized by the Trust's organizational documents or
resolutions of the Trust's Board. Shares shall be redeemed and payment therefor
shall be made in accordance with the Trust's or Portfolio's prospectus.
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(i) BROKER-DEALER ACCOUNTS.
When a broker-dealer notifies PFPC of a redemption desired by
a customer, and the Trust's Custodian (the "Custodian")
provides PFPC with Trusts, PFPC shall prepare and send the
redemption check to the broker-dealer and made payable to the
broker-dealer on behalf of its customer.
(ii) TRUST-ONLY ACCOUNTS.
If Shares are received in proper form, at the Trust's request
Shares may be redeemed before the Trusts are provided to PFPC
from the Custodian. If the recordholder has not directed that
redemption proceeds be wired, when the Custodian provides
PFPC with Trusts, 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.
(e) DIVIDENDS AND DISTRIBUTIONS. Upon receipt of a resolution of the
Trust's Board authorizing the declaration and payment of dividends and
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distributions, PFPC shall issue dividends and distributions declared by the
Trust in Shares, or, upon shareholder election, pay such dividends and
distributions in cash, if provided for in the appropriate Trust'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 Trusts to be withheld in accordance with any applicable tax laws or
other laws, rules or regulations. PFPC shall mail to the Trust's shareholders
such tax forms and other information, or permissible substitute notice, relating
to dividends and distributions paid by the Trust as are required to be filed and
mailed by applicable law, rule or regulation. PFPC shall prepare, maintain and
file with the IRS and other appropriate taxing authorities reports relating to
all dividends above a stipulated amount paid by the Trust to its shareholders as
required by tax or other law, rule or regulation.
(f) SHAREHOLDER ACCOUNT SERVICES.
(i) PFPC will arrange, in accordance with the appropriate
Trust's or Portfolio's pro- spectus, for issuance of Shares
obtained through:
- The transfer of Trusts from shareholders' accounts at
financial institutions, provided PFPC receives advance Oral
Instruction of such transfer;
- Any pre-authorized check plan; and
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- Direct purchases through broker wire orders, checks and
applications.
(ii) PFPC will arrange, in accordance with the appropriate
Trust's or Portfolio's pro- spectus, for a shareholder's:
- Exchange of Shares for shares of another Trust with which
the Trust 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 Instructions,
PFPC shall mail all communications by the Trust to its shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Trust shares;
(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
If requested by the Trust, PFPC will receive and tabulate the proxy cards
cards for the meetings of the Trust's shareholders and supply personnel to serve
as inspectors of election.
(h) RECORDS. PFPC shall maintain those records required by the
Securities Laws and any laws, rules and regulations of governmental authorities
having jurisdication with respect to the duties to be performed by PFPC
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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 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 the transfer agent to
perform any calculations contemplated or 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.
(J) SHAREHOLDER INSPECTION OF STOCK RECORDS. Upon a request from any
Trust shareholder to inspect stock records, PFPC will notify the Trust, and the
Trust will issue instructions granting or denying each such request. Unless PFPC
has acted contrary to the Trust's instructions, the Trust agrees and does
hereby, release PFPC from any liability for refusal of permission for a
particular shareholder to inspect the Trust's shareholder records.
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(k) WITHDRAWAL OF SHARES AND CANCELLATION OF CERTIFICATES.
Upon receipt of Written Instructions, PFPC shall cancel outstanding
certificates surrendered by the Trust to reduce the total amount of outstanding
shares by the number of shares surrendered by the Trust.
17. DURATION AND TERMINATION.
(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 Initital 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 Trust, 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 Trust specifying the material breach and PFPC shall not have corrected such
breach within a 15-day period; (ii) financial difficulties of PFPC evidenced by
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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 Trust 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 Trust 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 Trust 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 Trust designates a successor to any of PFPC's obligations
under this Agreement, PFPC shall, at the direction and expense of the Trust,
transfer to such successor all relevant books, records and other data
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established or maintained by PFPC hereunder including, a certified list of the
shareholders of the Trust 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 Trust'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 Trust or any Portfolio thereof upon the liquidation, merger, or
other dissolution of the Trust or Portfolio or upon the Trust's ceasing to be a
registered investment company.
18. REGISTRATION AS A TRANSFER AGENT. PFPC represents that it is 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
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promptly notify the Trust 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 Trust 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
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 Trust, at the
address of the Trust 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
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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 SERIES. In the event that the Trust 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
shareholder servicing 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 PNC Bank,
National Association or PNC Bank Corp., provided that (i) PFPC gives the Trust
thirty (30) days' prior written notice; (ii) the delegate (or assignee) agrees
with PFPC and the Trust to comply with all relevant provisions of the Securities
Laws; and (iii) PFPC and such delegate (or assignee) promptly provide such
information as the Trust may request, and respond to such questions as the Trust
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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 PaineWebber Incorporated its obligation to
perform the services described on Annex A hereto. In addition, PFPC may assign
its rights and delegate its other duties hereunder to PaineWebber Incorporated
or Xxxxxxxx Xxxxxxxx Asset Management Inc. or an affiliated person of either,
provided that (i) PFPC gives the Trust thirty (30) days' prior written notice;
(ii) the delegate (or assignee) agrees with PFPC and the Trust to comply with
all relevant provisions of the 1940 Act; and (iii) PFPC and such delegate (or
assignee) promptly provide such information as the Trust may request, and
respond to such questions as the Trust 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.
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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.
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(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.
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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:
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Title:
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Xxxxxxxx Xxxxxxxx Portfolios
By:
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Title:
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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