Exhibit No.8
FORM OF TRANSFER AGENCY AND RELATED SERVICES AGREEMENT
------------------------------------------------------
THIS AGREEMENT is made as of __________, 2000 by and between PFPC
INC., a Delaware corporation ("PFPC"), and XXXXXXXX XXXXXXXX SECURITIES TRUST, 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 related services agent to the Trust's
Portfolio (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 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) "Portfolio" means a series or investment portfolio of the Trust
-----------
identified on Annex A hereto, as the same may from time to time be amended, if
the Trust consists of more than one series or investment portfolio; however, if
the Trust does not have separate series or investment portfolios, then this term
shall be deemed to refer to the Trust 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 Trust.
(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 Trust hereby appoints PFPC to serve as transfer
-----------
agent, registrar, dividend disbursing agent and related services agent to the
Trust, and should the Trust 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 Trust (or a particular Portfolio, as
---------------------
appropriate) has provided or, where applicable, will provide PFPC with the
following:
2
(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 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 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 after such Oral Instructions are received. The fact
that such confirming Written Instructions
3
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).
(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
4
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 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 or under the control 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 or under the control of PFPC
shall be provided by PFPC to the Trust or to an Authorized Person. Upon
reasonable notice by the Trust, 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
5
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 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.
6
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
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 Trust'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 Trust's policy(ies) of insurance that provide for coverage of such
liability, and the Trust's insurance coverage shall take precedence.
(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,
7
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 Trust, its officers and
Shareholders, or of 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, its
officers 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.
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
8
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
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) 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
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
9
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 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.
(d) Notwithstanding anything in this Agreement to the contrary, the
Trust 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 Trust.
10
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 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;
(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 Trust;
(xiv) Provide detailed data for underwriter/broker confirmations;
11
(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 activity in the Trust;
(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
------------------------------------------------------------
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 funds 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.
12
(i) Broker-Dealer Accounts.
----------------------
When a broker-dealer notifies PFPC of a redemption desired by
a customer, and the Trust'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 Trust'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 of the
---------------------------
Trust's Board authorizing the declaration and payment of dividends and
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,
13
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 Trust'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 Trust
(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 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 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
Trust's or Portfolio's prospectus, for a shareholder's:
- Exchange of Shares for shares of another fund 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.
14
(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 forms (including substitute forms) and accompanying
information containing the information required by paragraph
16(e).
If requested by the Trust, PFPC will receive and tabulate the proxy
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 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;
15
(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 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
---------------------------------------
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.
(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.
16
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 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
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.
17
(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
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
18
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 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
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.
19
21. ADDITIONAL PORTFOLIOS. 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 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 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
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 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)
20
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.
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.
21
(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:
XXXXXXXX XXXXXXXX SECURITIES TRUST
By:___________________________________
Title:
22
ANNEX A
Portfolios
PaineWebber Enhanced S&P 500 Fund
PaineWebber Enhanced Nasdaq-100 Fund
23
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
___________ __________
___________ __________
___________ __________
___________ __________
___________ __________
___________ __________
24
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 Trust shareholders
c. Issue checks from proceeds of Trust 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)
l. Maintain duplicate shareholder records and reconcile those records with
those at the transfer agent (if this responsibility is delegated to
PaineWebber)
25
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 Trust shares)
o. Process and mail purchase, redemption and exchange confirmations to Trust
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
Trust shares
26
