Exhibit No. 9
TRANSFER AGENCY AND RELATED SERVICES AGREEMENT
THIS AGREEMENT is made as of , 199 by and between PFPC INC., a
Maryland corporation ("PFPC"), and PAINEWEBBER INVESTMENT TRUST II, a
Massachusetts 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:
(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 Directors or 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.
(e) "Oral Instructions" mean oral instructions received by
PFPC from an Authorized Person.
(f) "Portfolio" means a series or investment portfolio of
the 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.
(h) "Securities Laws" mean the 1933 Act, the 1934 Act, the
1940 Act and the CEA.
(i) "Shares" mean the shares of common stock or beneficial
interest of any series or class of the Fund.
(j) "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 Fund hereby appoints PFPC to serve as 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.
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3. Delivery of Documents. The Fund (or a particular Portfolio, 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 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.
(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
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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.
(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 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
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
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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 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 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
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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 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 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.
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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
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
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.
(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,
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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
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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
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.
(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 Fund's blank checks, certificates, records and other data and
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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.
(b) Y2K Compliance. PFPC further represents and warrants that any and
all electronic data processing systems and programs that it uses or retains in
connection with the provision of services hereunder on or before January 1,
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 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,
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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.
(a) Services Provided on an Ongoing Basis, If Applicable.
(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
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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;
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(xvii) Perform, itself or through a delegate,
such of the services, whether or not
included within the scope of another
paragraph of this Paragraph 16(a),
specified on Annex B hereto as may be
agreed upon from time to time; and
(xviii) Perform other participating
broker-dealer shareholder services as
may be agreed upon from time to time.
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(b) Services Provided by PFPC Under Oral Instructions or Written
Instructions.
(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 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 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.
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(i) Broker-Dealer Accounts.
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.
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
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recordholder when Shares are
held in book-entry form.
(e) Dividends and Distributions. Upon receipt of a
resolution 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. 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 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 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
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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
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.
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(h) Records. PFPC shall maintain those records required by
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 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 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
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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
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.
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.
(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
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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
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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
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
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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
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
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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 PNC
Bank, National Association or PNC Bank Corp., 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 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 PaineWebber Incorporated
or Xxxxxxxx Xxxxxxxx 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;
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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.
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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.
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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: ____________________________
Title: _________________________
PAINEWEBBER INVESTMENT TRUST II
By: ____________________________
Title:__________________________
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ANNEX A
Portfolios
PaineWebber Emerging Markets Equity Fund
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AUTHORIZED PERSONS APPENDIX
Name (Type) Signature
___________________ ___________________
___________________ ___________________
___________________ ___________________
___________________ ___________________
___________________ ___________________
___________________ ___________________
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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 PaineWebber
Incorporated ("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 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
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 PaineWebber Mutual Funds held within
the client's brokerage account (if this responsibility is delegated
to 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 PaineWebber systematic
withdrawal plan offered within the client's brokerage account (if
this responsibility is delegated to PaineWebber)
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l. Maintain duplicate shareholder records and reconcile those records
with those at the transfer agent (if this responsibility is delegated
to PaineWebber)
m. Process and mail duplicate PaineWebber monthly or quarterly
statements to 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 PaineWebber Investment Executives
p. Issue dividend checks to shareholders that select cash distributions
to their brokerage account (if this responsibility is delegated to
PaineWebber)
q. Develop and maintain the automatic investment plan offered within the
client's brokerage account (if this responsibility is delegated to
PaineWebber)
r. Provide bank-to-bank wire transfer capabilities related to
transactions in Fund shares
s. Maintain computerized compliance programs for blue sky and
non-resident alien requirements (only with respect to PaineWebber
Cashfund, Inc.)
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