FORM OF AGREEMENT
TRANSFER AGENCY SERVICES AGREEMENT
THIS AGREEMENT is made as of , 2001 by and between PFPC INC., a
Massachusetts corporation ("PFPC"), and EQUITABLE PREMIER FUNDS TRUST, a
Delaware business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
investment portfolios listed on Exhibit A attached hereto and made a part
hereof, as such Exhibit A may be amended from time to time (each a "Portfolio"),
and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document
signed by both parties hereto.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "Oral Instructions" mean oral instructions received by PFPC
from an Authorized Person or from a person reasonably believed
by PFPC to be an Authorized Person. PFPC may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via
electronic mail as Oral Instructions.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(h) "Shares" mean the shares of beneficial interest of any series
or class of the Fund.
(i) "Written Instructions" mean (i) written instructions signed by
an Authorized Person and received by PFPC or (ii) trade
instructions transmitted (and received by PFPC) by means of an
electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to
the Fund in accordance with the terms set forth in this Agreement. PFPC
accepts such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC with the following:
(a) At PFPC's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the
appointment of PFPC or its affiliates to provide services to
the Fund and approving this Agreement;
(b) A copy of the Fund's most recent effective registration
statement;
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(c) A copy of the management agreement with respect to each
investment Portfolio of the Fund;
(d) A copy of the distribution/underwriting agreement with respect
to each class of Shares of the Fund;
(e) A copy of each Portfolio's administration agreements if PFPC
is not providing the Portfolio with such services;
(f) Copies of any distribution and/or shareholder servicing plans
and agreements made in respect of the Fund or a Portfolio;
(g) A copy of the Fund's organizational documents, as filed with
the state in which the Fund is organized; and
(h) Copies (certified or authenticated where applicable) of any
and all amendments or supplements to the foregoing.
4. COMPLIANCE WITH RULES AND REGULATIONS. PFPC undertakes to comply with
all applicable requirements of the Securities Laws and any laws, rules
and regulations of governmental authorities having jurisdiction with
respect to the duties to be performed by PFPC hereunder. Except as
specifically set forth herein, PFPC assumes no responsibility for such
compliance by the Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or
from a person reasonably believed by PFPC to be an Authorized
Person) pursuant to this Agreement. PFPC may assume that any
Oral Instruction or Written Instruction received hereunder is
not in any way inconsistent with the provisions of
organizational documents or this Agreement or of any vote,
resolution or proceeding of the Fund's Board of
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Trustees or of the Fund's shareholders, unless and until PFPC
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Written Instructions
confirming Oral Instructions so that PFPC receives the Written
Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFPC or
differ from the Oral Instructions shall in no way invalidate
the transactions or enforceability of the transactions
authorized by the Oral Instructions or PFPC's ability to rely
upon such Oral Instructions. Where Oral Instructions or
Written Instructions reasonably appear to have been received
from an Authorized Person, PFPC shall incur no liability to
the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC's actions comply with the
other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC is in doubt as to any action it
should or should not take, PFPC may request directions or
advice, including Oral Instructions or Written Instructions,
from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC may request advice from counsel of its own
choosing (who may be counsel for the Fund, the Fund's
investment adviser or PFPC, at the option of PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC receives from the Fund, and the advice
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it receives from counsel, PFPC may rely upon and follow the
advice of counsel.
(d) Protection of PFPC. PFPC shall be protected in any action it
takes or does not take in reliance upon directions or advice
or Oral Instructions or Written Instructions it receives from
the Fund or from counsel and which PFPC believes, in good
faith, to be consistent with those directions or advice or
Oral Instructions or Written Instructions. Nothing in this
section shall be construed so as to impose an obligation upon
PFPC (i) to seek such directions or advice or Oral
Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions
or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of
PFPC's properly taking or not taking such action.
7. RECORDS; VISITS. The books and records pertaining to the Fund, which
are in the possession or under the control of PFPC, shall be the
property of the Fund. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFPC's normal
business hours. Upon the reasonable request of the Fund, copies of any
such books and records shall be provided by PFPC to the Fund or to an
Authorized Person, at the Fund's expense.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
customer profiles, customer lists,
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sales estimates, business plans, and internal performance results
relating to the past, present or future business activities of the Fund
or PFPC, their respective subsidiaries and affiliated companies and the
customers, clients and suppliers of any of them; (b) any scientific or
technical information, design, process, procedure, formula, or
improvement that is commercially valuable and secret in the sense that
its confidentiality affords the Fund or PFPC a competitive advantage
over its competitors; (c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source
code, object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and (d)
anything designated as confidential. Notwithstanding the foregoing,
information shall not be subject to such confidentiality obligations if
it: (a) is already known to the receiving party at the time it is
obtained; (b) is or becomes publicly known or available through no
wrongful act of the receiving party; (c) is rightfully received from a
third party who, to the best of the receiving party's knowledge, is not
under a duty of confidentiality; (d) is released by the protected party
to a third party without restriction; (e) is required to be disclosed
by the receiving party pursuant to a requirement of a court order,
subpoena, governmental or regulatory agency or law (provided the
receiving party will provide the other party written notice of such
requirement, to the extent such notice is permitted); (f) is relevant
to the defense of any claim or cause of action asserted against the
receiving party; or (g) has been or is independently developed or
obtained by the receiving party.
9. COOPERATION WITH ACCOUNTANTS. PFPC shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in
the performance of its
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obligations under this Agreement to ensure that the necessary
information is made available to such accountants for the expression of
their opinion, as required by the Fund.
10. PFPC SYSTEM. PFPC shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC in connection with the services provided by PFPC to
the Fund.
11. DISASTER RECOVERY. PFPC shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of
equipment failures, PFPC shall, at no additional expense to the Fund,
take reasonable steps to minimize service interruptions. PFPC shall
have no liability with respect to the loss of data or service
interruptions caused by equipment failure, provided such loss or
interruption is not caused by PFPC's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
12. COMPENSATION. As compensation for services rendered by PFPC during the
term of this Agreement, the Fund will pay to PFPC a fee or fees as may
be agreed to from time to time in writing by the Fund and PFPC. The
Fund acknowledges that PFPC may receive float benefits and/or
investment earnings in connection with maintaining certain accounts
required to provide services under this Agreement.
13. INDEMNIFICATION BY THE FUND.
(a) The Fund agrees to indemnify and hold harmless PFPC and its
affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without
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limitation, attorneys' fees and disbursements and liabilities
arising under the Securities Laws and any state and foreign
securities and blue sky laws) arising directly or indirectly
out of the Fund's willful misfeasance, bad faith or gross
negligence or willful disregard of its obligations under this
Agreement. Neither PFPC, nor any of its affiliates, shall be
indemnified against any liability (or any expenses incident to
such liability) caused by PFPC's or its affiliates' own
willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties and obligations under this Agreement,
provided that in the absence of a finding to the contrary the
acceptance, processing and/or negotiation of a fraudulent
payment for the purchase of Shares shall be presumed not to
have been the result of PFPC's or its affiliates own willful
misfeasance, bad faith, gross negligence or reckless disregard
of such duties and obligations.
(b) Upon the assertion of a claim for which the Fund may be
required to indemnify PFPC, PFPC shall promptly notify the
Fund of such assertion, and shall keep the Fund advised with
respect to all developments concerning such claim. The Fund
shall have the option to participate with PFPC in the defense
of such claim. PFPC shall in no case confess any claim or make
any compromise in any case in which the Fund may be required
to indemnify it except with the Fund's prior written consent.
14. INDEMNIFICATION BY PFPC.
(a) PFPC agrees to indemnify and hold harmless the Fund and its
affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation,
attorneys' fees and disbursements and liabilities arising
under the
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Securities Laws and any state and foreign securities and blue
sky laws) arising directly or indirectly out of PFPC's willful
misfeasance, bad faith, gross negligence or reckless disregard
of its duties under this Agreement. Neither the Fund, nor any
of its affiliates, shall be indemnified against any liability
(or any expenses incident to such liability) caused by the
Fund's or its affiliates' own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties and
obligations under this Agreement.
(b) Upon the assertion of a claim for which PFPC may be required
to indemnify the Fund, the Fund shall promptly notify PFPC of
such assertion, and shall keep PFPC advised with respect to
all developments concerning such claim. PFPC shall have the
option to participate with the Fund in the defense of such
claim. The Fund shall in no case confess any claim or make any
compromise in any case in which PFPC may be required to
indemnify it except with PFPC's prior written consent.
15. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action hereunder on
behalf of the Fund except as specifically set forth herein or
as may be specifically agreed to by PFPC and the Fund in a
written amendment hereto. PFPC shall be obligated to exercise
care and diligence in the performance of its duties hereunder
and to act in good faith in performing services provided for
under this Agreement.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PFPC shall not be
liable for losses beyond its control, including without
limitation (subject to Section 11), delays or errors or loss
of data
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occurring by reason of circumstances beyond PFPC's control,
provided that PFPC has acted in accordance with the standard
set forth in Section 14(a) above; and (ii) PFPC shall not be
under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity or authority or lack
thereof of any Oral Instruction or Written Instruction, notice
or other instrument which conforms to the applicable
requirements of this Agreement, and which PFPC reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
(i) neither PFPC nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether
or not the likelihood of such losses or damages was known by
PFPC or its affiliates.
(d) No party may assert a cause of action against either the Fund
or PFPC or any of their respective affiliates that allegedly
occurred more than 12 months immediately prior to the filing
of the suit (or, if applicable, commencement of arbitration
proceedings) alleging such cause of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
16. DESCRIPTION OF SERVICES.
(a) Services Provided on an Ongoing Basis, If Applicable.
(i) Calculate 12b-1 payments;
(ii) Maintain shareholder registrations;
(iii) Review new applications and correspond with
shareholders to complete or correct information;
(iv) Direct payment processing of checks or wires;
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(v) Prepare and certify stockholder lists in conjunction
with proxy solicitations;
(vi) Countersign share certificates;
(vii) Prepare and mail to shareholders confirmation of
activity;
(viii) Provide toll-free lines for direct shareholder use,
plus customer liaison staff for on-line inquiry
response;
(ix) Mail duplicate confirmations to broker-dealers of
their clients' activity, whether executed through the
broker-dealer or directly with PFPC;
(x) Provide periodic shareholder lists and statistics to
the Fund;
(xi) Provide detailed data for underwriter/broker
confirmations;
(xii) Prepare periodic mailing of year-end tax and
statement information;
(xiii) Notify on a timely basis the investment adviser,
accounting agent, and custodian of fund activity; and
(xiv) Perform other participating broker-dealer shareholder
services as may be agreed upon from time to time.
(b) Services Provided by PFPC Under Oral Instructions or Written
Instructions.
(i) Accept and post daily Share purchases and
redemptions;
(ii) Accept, post and perform shareholder transfers and
exchanges;
(iii) Pay dividends and other distributions;
(iv) Solicit and tabulate proxies; and
(v) Issue and cancel certificates (when requested in
writing by the shareholder).
(c) Purchase of Shares. PFPC shall issue and credit an account of
an investor, in the manner described in the Fund's prospectus,
once it receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder
account; and
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(iii) Confirmation of receipt or crediting of funds for
such order to the Fund's custodian.
(d) Redemption of Shares. PFPC shall redeem Shares only if that
function is properly authorized by the certificate of
incorporation or resolution of the Fund's Board of Trustees.
Shares shall be redeemed and payment therefor shall be made in
accordance with the Fund's prospectus, when the recordholder
tenders Shares in proper form and directs the method of
redemption. If Shares are received in proper form, Shares
shall be redeemed before the funds are provided to PFPC from
the Fund's custodian (the "Custodian"). If the recordholder
has not directed that redemption proceeds be wired, when the
Custodian provides PFPC with funds, the redemption check shall
be sent to and made payable to the recordholder, unless:
(i) the surrendered certificate is drawn to the order of
an assignee or holder and transfer authorization is
signed by the recordholder; or
(ii) transfer authorizations are signed by the
recordholder when Shares are held in book-entry form.
When a broker-dealer notifies PFPC of a redemption desired by
a customer, and the Custodian provides PFPC with funds, PFPC
shall prepare and send the redemption check to the
broker-dealer and made payable to the broker-dealer on behalf
of its customer.
(e) Dividends and Distributions. Upon receipt of a resolution of
the Fund's Board of Trustees authorizing the declaration and
payment of dividends and distributions, PFPC shall issue
dividends and distributions declared by the Fund in Shares,
or, upon shareholder election, pay such dividends and
distributions in cash, if
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provided for in the Fund's prospectus. Such issuance or
payment, as well as payments upon redemption as described
above, shall be made after deduction and payment of the
required amount of funds to be withheld in accordance with any
applicable tax laws or other laws, rules or regulations. PFPC
shall mail to the Fund's shareholders such tax forms and other
information, or permissible substitute notice, relating to
dividends and distributions paid by the Fund as are required
to be filed and mailed by applicable law, rule or regulation.
PFPC shall prepare, maintain and file with the IRS and other
appropriate taxing authorities reports relating to all
dividends above a stipulated amount paid by the Fund to its
shareholders as required by tax or other law, rule or
regulation.
(f) Shareholder Account Services.
(i) PFPC may arrange, in accordance with the prospectus,
for issuance of Shares obtained through:
- Any pre-authorized check plan; and
- Direct purchases through broker wire orders,
checks and applications.
(ii) PFPC may arrange, in accordance with the prospectus,
for a shareholder's:
- Exchange of Shares for shares of another
fund with which the Fund has exchange
privileges;
- Automatic redemption from an account where
that shareholder participates in a automatic
redemption plan; and/or
- Redemption of Shares from an account with a
checkwriting privilege.
(g) Communications to Shareholders. Upon timely Written
Instructions, PFPC shall mail all communications by the Fund
to its shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
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(iii) Monthly or quarterly statements;
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PFPC will receive and tabulate the proxy cards
for the meetings of the Fund's shareholders.
(h) Records. PFPC shall maintain records of the accounts for each
shareholder showing the following information:
(i) Name, address and United States Tax Identification or
Social Security number;
(ii) Number and class of Shares held and number and class
of Shares for which certificates, if any, have been
issued, including certificate numbers and
denominations;
(iii) Historical information regarding the account of each
shareholder, including dividends and distributions
paid and the date and price for all transactions on a
shareholder's account;
(iv) Any stop or restraining order placed against a
shareholder's account;
(v) Any correspondence relating to the current
maintenance of a shareholder's account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for PFPC to perform
any calculations required by this Agreement.
(i) Lost or Stolen Certificates. PFPC shall place a stop notice
against any certificate reported to be lost or stolen and
comply with all applicable federal regulatory requirements for
reporting such loss or alleged misappropriation. A new
certificate shall be registered and issued only upon:
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(i) The shareholder's pledge of a lost instrument bond or
such other appropriate indemnity bond issued by a
surety company approved by PFPC; and
(ii) Completion of a release and indemnification agreement
signed by the shareholder to protect PFPC and its
affiliates.
(j) Shareholder Inspection of Stock Records. Upon a request from
any Fund shareholder to inspect stock records, PFPC will
notify the Fund and the Fund will issue instructions granting
or denying each such request. Unless PFPC has acted contrary
to the Fund's instructions, the Fund agrees to and does hereby
release PFPC from any liability for refusal of permission for
a particular shareholder to inspect the Fund's stock records.
(k) Withdrawal of Shares and Cancellation of Certificates. Upon
receipt of Written Instructions, PFPC shall cancel outstanding
certificates surrendered by the Fund to reduce the total
amount of outstanding shares by the number of shares
surrendered by the Fund.
(l) Lost Shareholders. PFPC shall perform such services as are
required in order to comply with Rules 17a-24 and 17Ad-17 of
the 1934 Act (the "Lost Shareholder Rules"), including, but
not limited to, those set forth below. PFPC may, in its sole
discretion, use the services of a third party to perform some
of or all such services.
(i) documentation of search policies and procedures;
(ii) execution of required searches;
(iii) tracking results and maintaining data sufficient to
comply with the Lost Shareholder Rules; and
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(iv) preparation and submission of data required under the
Lost Shareholder Rules. Except as set forth above,
PFPC shall have no responsibility for any escheatment
services.
(m) Print Mail. In addition to performing the foregoing services, the
Fund hereby engages PFPC as its print/mail service provider with
respect to those items identified in the Fee Letter.
17. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or by PFPC on sixty (60) days' prior written
notice to the other party. In the event the Fund gives notice of
termination, all expenses associated with movement (or duplication) of
records and materials and conversion thereof to a successor transfer
agent or other service provider, and all trailing expenses incurred by
PFPC, will be borne by the Fund.
18. NOTICES. Notices shall be addressed (a) if to PFPC, at 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President; (b) if to
the Fund, at , Attention: or (c) if to neither of the foregoing, at
such other address as shall have been given by like notice to the
sender of any such notice or other communication by the other party. If
notice is sent by confirming telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been
given three days after it has been mailed. If notice is sent by
messenger, it shall be deemed to have been given on the day it is
delivered.
19. AMENDMENTS. This Agreement, or any term thereof, may be changed or
waived only by
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a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
20. USE OF FUND'S NAME. PFPC shall not use the name of the Fund or the
Portfolios in a manner not approved prior thereto, provided, however,
PFPC may use without such approval its name in representative client
lists which merely refer in accurate terms to the appointment of PFPC
hereunder or which are required by the SEC or a state securities
commission, and, provided, further, that in no event shall such
approval be unreasonably withheld.
21. SECURITY. PFPC represents and warrants that, to the best of its
knowledge, the various procedures and systems which PFPC has
implemented with regard to safeguarding from loss or damage the Fund's
blank check, records and other data and PFPC's records, data,
equipment, facilities and other property used in the performance of its
obligations hereunder are commercially reasonable. The parties may
review such systems and procedures on a periodic basis.
22. REGISTRATION AS A TRANSFER AGENT. PFPC represents that it is currently
registered with the appropriate Federal agency for the registration of
transfer agents, and that it will remain so registered for the duration
of this Agreement. PFPC agrees that it will promptly notify the Fund in
the event of any material changes in its status as a registered
transfer agent.
23. DELEGATION; ASSIGNMENT. PFPC may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PFPC or The PNC Financial Services Group, Inc., provided that (i) PFPC
gives the Fund 30 days prior written notice of such assignment or
delegation, (ii) the delegate or assignee is registered and qualified
under the
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1934 Act to act as a transfer agent, (iii) the assignee or delegate
agrees to comply with the relevant provision of the 1940 Act, and (iv)
PFPC and such assignee or delegate promptly provide such information as
the Fund may reasonably request, and respond to such questions as the
Fund may reasonably ask, relative to the assignment or delegation
(including, without limitation, the capabilities of the assignee or
delegate).
24. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
25. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
26. XXXXXXXXXX.XXX SERVICES. PFPC shall provide to the Fund the internet
access services as set forth on Exhibit B attached hereto and made a
part hereof, as such Exhibit B may be amended from time to time.
27. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC hereunder without
reasonable notice to
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PFPC.
(c) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(d) Governing Law. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
(e) Partial Invalidity. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
(f) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(g) Facsimile Signatures. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party. IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of
the day and year first above written.
PFPC INC.
By:
Title:
EQUITABLE PREMIER FUNDS
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By:
Title:
20
EXHIBIT A
THIS EXHIBIT A, dated as of , 2001, is Exhibit A to that certain
Transfer Agency Services Agreement dated as of , 2001, between PFPC Inc. and
Equitable Premier Funds.
PORTFOLIOS
[List all Portfolios here]
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EXHIBIT B
IMPRESSNET.COMR SERVICES
1. DEFINITIONS. Any term not herein defined shall have the meaning given such
term in the Agreement. The following definitions shall apply to this Exhibit B:
(a) "End-User" means any Shareholder, Financial Intermediary or
broker-dealer back office operation that accesses the PFPC System via
IMPRESSNet.comR.
(b) "End-User Data" means data generated as a result of an End-User's
access of the hypertext link from the Fund Web Site to IMPRESSNet.comR , and
includes personal and Fund account information.
(c) "Confidential Information" means the term defined in Section 8 of
the Agreement, and includes any and all confidential or other proprietary
information in any form, whether written, electronic or oral, that is disclosed
by one party to another including, but not limited to, End-User Data, financial
reports, specifications, interfaces, programs and any related information or
materials. "Confidential Information" will not include information (i) already
lawfully known to or independently developed by the receiving party, (ii)
disclosed in published materials, (iii) generally known to the public, (iv)
lawfully obtained from any third party without any obligation of
confidentiality, or (v) required to be disclosed by law.
(d) "Financial Intermediary" means any investment advisor,
broker-dealer, financial planner or any other person authorized by a Shareholder
or the Fund to act on behalf of a Shareholder.
(e) "Fund Web Site" means the collection of electronic documents,
electronic files and pages residing on any computer system(s) maintained on
behalf of the Fund, connected to the Internet and accessible by hypertext link
through the World Wide Web to and from IMPRESSNet.comR.
(f) "IMPRESSNet.comR Services" means the services identified in Section
2 hereof to be provided by PFPC utilizing the Fund Web Site, the Internet and
certain software, equipment and systems provided by PFPC, telecommunications
carriers and security providers which have been certified by ICSA or a
nationally-recognized audit firm (including but not limited to firewalls and
encryption), whereby Inquires may be performed and Transactions may be requested
by accessing IMPRESSNet.comR via hypertext link from the Fund Web Site.
(g) "Inquiry" means any access to the PFPC System via IMPRESSNet.comR
requested by an End-User which is not a Transaction.
(h) "Internet" means the communications network comprised of multiple
communications networks linking education, government, industrial and private
computer networks.
22
(i) "IMPRESSNet.comR" means the collection of electronic documents,
electronic files and pages residing on PFPC's computer system(s) (or those
elements of the computer system of one or more Internet Service Providers
("ISPs") retained by PFPC and necessary for PFPC's services hereunder),
connected to the Internet and accessible by hypertext link from the Funds Web
Site through the World Wide Web, whereby the Inquiry and Transaction data fields
and related screens provided by PFPC may be viewed.
(j) "Shareholder" means the record owner or authorized agent of the
record owner of shares of the Fund.
(k) "Transaction" shall mean purchase, redemption, exchange or any
other activity involving the movement of Shares initiated by an End-User,
provided that broker-dealer back office operations will not be permitted to
initiate Transactions.
2. PFPC RESPONSIBILITIES. Subject to the provisions of this Exhibit B and the
Agreement, PFPC shall provide or perform, or shall retain other persons to
provide or perform, the following, at PFPC's expense (unless otherwise provided
herein):
(a) all computers, telecommunications equipment, encryption technology
and other materials and services reasonably necessary to develop and maintain
IMPRESSNet.comR to permit persons to be able to view information about the Fund
and to permit End-Users with appropriate identification and access codes to
request Inquiries and initiate Transactions;
(b) at least one consistent return hypertext link from IMPRESSNet.comR
to a page within the Fund Web Site designated by the Fund, which shall be
displayed subject to the mutual agreement of the parties;
(c) at the Fund's expense, notification and promotional mailings and
other communications provided by the Fund to Financial Intermediaries and/or
Shareholders regarding the availability of IMPRESSNet.comR Services;
[(d) upon availability of such service, preparation and processing of
new account applications received through IMPRESSNet.comR from Shareholders
determined by the Fund to be eligible for such services;][Omit for B-D Back
Office Only Version]
(e) the set up of personal identification numbers ("PIN's"), as
described in the IMPRESSNet.comR Product Guide provided to the Fund, which shall
include verification of initial identification numbers issued, resetting and
activation of personalized PIN's and reissuance of new PIN's in the case of lost
PIN's;
(f) installation services, which shall include reviewing and approving
the Fund's network requirements, recommending a method of establishing (and, as
applicable, cooperating with the Fund to implement and maintain) a hypertext
link between IMPRESSNet.comR and the Fund Web Site and testing the network
connectivity and performance;
23
(g) the establishment of systems to guide, assist and permit End-Users
who access IMPRESSNet.comR from the Fund Web Site to electronically perform
Inquiries and create and transmit Transaction requests to PFPC;
(h) delivery to the Fund of one (1) copy of the PFPC IMPRESSNet.comR
Product Guide, as well as all updates thereto on a timely basis;
(i) delivery of monthly billing reports to the Fund, which shall
include reports of Inquiries and Transactions processed on a monthly basis;
(j) a form of encryption that is generally available to the public in
the U.S. for standard Internet browsers and shall establish, monitor and verify
firewalls and other security features in a commercially reasonable manner and
shall exercise commercially reasonable efforts to maintain the security and
integrity of the PFPC Web Site and the End-User Data, in accordance with the
Fund's specifications;
(k) maintenance of all on-screen disclaimers, including, without
limitation, copyright, trademark and service xxxx notifications provided by the
Fund to PFPC in writing from time to time, and all "point and click" features of
the PFPC Web Site relating to Shareholder acknowledgment and acceptance of such
disclaimers and notifications;
(l) monthly site visitation (hit reports) and other information
regarding End-User activity under this Agreement, and as agreed by PFPC and the
Fund from time to time;
(l) monitoring of the telephone lines involved in providing
IMPRESSNet.comR Services and shall inform the Fund promptly of and correct any
malfunctions or service interruptions;
(m) periodic scanning of its Internet interfaces and IMPRESSNet.comR
for viruses and shall promptly remove any such viruses located thereon;
(n) maintenance and support of IMPRESSNet.comR, which shall include
providing error corrections, minor enhancements and interim upgrades to
IMPRESSNet.comR made generally available to IMPRESSNet.comR customers and
providing help desk support to assist Fund employees in furtherance of the
Fund's use of IMPRESSNet.comR;
Maintenance and support shall not include (i) access to or use of any
substantial added functionality, new interfaces, new architecture, new
platforms, new versions or major development efforts, unless made generally
available by PFPC to IMPRESSNet.comR clients, as determined solely by PFPC; or
(ii) maintenance of customized features; and
(o) access to IMPRESSNet.comR by End-Users via a logon I.D. and PIN
twenty-four (24) hours per day, each day of the year, which shall be secured and
protected from unauthorized use by commercially reasonable means, including
Secure Sockets Layer (SSL) encryption technology.
24
(p) the Fund recognizes and acknowledges that (i) End User's Web
Browser and ISP must support SSL encryption technology; and (ii) PFPC will not
provide any software for access to the Internet; software must be acquired from
a third party vendor.
3. FUND RESPONSIBILITIES. Subject to the provisions of this Exhibit B and the
Agreement, the Fund shall at its expense (unless otherwise provided herein):
(a) provide, or retain other persons to provide, all computers,
telecommunications equipment, encryption technology and other materials,
services, equipment and software reasonably necessary to develop and maintain
the Fund Web Site, including the functionality necessary to maintain hypertext
links to IMPRESSNet.comR;
(b) promptly provide PFPC written notice of changes in Fund policies or
procedures requiring changes to the IMPRESSNet.comR Services;
(c) work with PFPC to develop Internet marketing materials for
End-Users and forward a copy of appropriate marketing materials to PFPC;
(d) revise and update the applicable prospectus(es) and other pertinent
materials, such as user agreements with End-Users, to include the appropriate
consents, notices and disclosures for IMPRESSNet.comR Services, including
disclaimers and information reasonably requested by PFPC;
(e) maintain all on-screen disclaimers and copyright, trademark and
service xxxx notifications, if any, provided by PFPC to the Fund in writing from
time to time, and all "point and click" features of the Fund Web Site relating
to acknowledgment and acceptance of such disclaimers and notifications; and
(f) design and develop the Fund Web Site functionality necessary to
facilitate, implement and maintain the hypertext links to IMPRESSNet.comR and
the various Inquiry and Transaction web pages and otherwise make the Fund Web
Site available to End-Users.
4. STANDARDS OF CARE FOR INTERNET SERVICES. Notwithstanding anything to the
contrary contained in the Agreement, although PFPC shall comply with the
standard of care specified in the Agreement and above in providing
IMPRESSNet.comR Services, PFPC shall not be obligated to ensure or verify the
accuracy or the transmission of any Inquiry or Transaction request not actually
received by PFPC due to circumstances beyond the control of PFPC. The Fund shall
advise End-Users to promptly notify the Fund or PFPC of any errors or
inaccuracies in End-User Data or information transmitted via IMPRESSNet.comR
Services, so that PFPC may take steps to promptly correct such End-User Data or
transmittal.
5. ADDITIONAL FEES FOR IMPRESSNET.COMR SERVICES. As consideration for the
performance by PFPC of IMPRESSNet.comR Services, the Fund will pay the fees set
forth in a separate fee letter as agreed between the parties from time to time.
25
6. CONFIDENTIALITY AND PROPRIETARY RIGHTS.
(a) Each of the parties acknowledges and agrees (i) to exercise best
efforts to preserve the confidentiality of the other party's Confidential
Information; (ii) not to disclose, or permit any third party or entity access to
the other party's Confidential Information without prior written permission
(except such disclosure or access which is required to perform any obligations
under this Agreement); (iii) to advise any employees, or any third parties who
receive access to Confidential Information of the confidential and proprietary
nature thereof and the prohibitions on copying, utilizing, or otherwise
revealing the Confidential Information; and (iv) to use any Confidential
Information disclosed only during the term of the Agreement and only in
accordance with the provisions of this Exhibit B and the Agreement. Without
limiting the foregoing, neither party shall have rights in or to any
Confidential Information of the other. Except in the normal course of business
and in conformity with Federal copyright law or with the other party's consent,
neither party nor any of its affiliates shall disclose, use, copy, decompile or
reverse engineer any software or other programs provided to such party by the
other in connection herewith.
(b) The Fund Web Site and IMPRESSNet.comR may contain certain
intellectual property, including, but not limited to, rights in copyrighted
works, trademarks and trade dress that is the property of the other party
(collectively, "Intellectual Property"). Each party retains all rights in such
intellectual property that may reside on the other party's web site, not
including any intellectual property provided by or otherwise obtained from such
other party. During the term of this Agreement, each party grants to the other a
non-exclusive, non-sublicensable, non-transferable, royalty-free license to
reproduce, display, distribute, perform and publicly and digitally use the other
party's Intellectual Property, and any and all rights contained therein, on each
party's respective web site, provided such use is necessary for the parties to
perform as contemplated in this Agreement. Each party warrants that it has
sufficient right, title and interest in and to its web site and its intellectual
property to enter into these obligations, and that to its knowledge, the license
hereby granted to the other party does not and will not infringe on any U.S.
patent, U.S. copyright or other U.S. proprietary right of a third party.
(c) Each of the parties acknowledges and agrees that the Fund will
solely and exclusively own all right, title and interest in and to any End-User
Data collected at the Fund Web Site or IMPRESSNet.comR. PFPC's use of the
End-User Data shall at all times be limited to the purposes contemplated in this
Agreement and only in accordance with the Fund's privacy policy. Neither PFPC
nor any of its affiliates shall distribute, sell, rent, transfer or otherwise
disclose End-User Data to third parties without the prior written consent of the
Fund, except as necessary to third parties providing services relating to
IMPRESSNet.comR. PFPC further shall cause such third party service providers to
be subject to written agreements establishing the same restrictions on the sale,
transfer, use, rent or disclosure of End-User Data.
7. REPRESENTATION AND WARRANTY. Neither party shall knowingly insert into any
interface, other software, or other program provided by such party to the other
hereunder, or accessible on IMPRESSNet.comR or Fund Web Site, as the case may
be, any "back door," "time bomb," "Trojan Horse," "worm," "drop dead device,"
"virus" or other computer software code or routines or hardware components
designed to disable, damage or impair the operation of any
26
system, program or operation hereunder. For failure to comply with this
warranty, the non-complying party shall immediately replace all copies of the
affected work product, system or software. All costs incurred with replacement
including, but not limited to cost of media, shipping, deliveries and
installation shall be borne by such party.
8. LIABILITY LIMITATIONS; INDEMNIFICATION.
(a) THE INTERNET. Each party acknowledges that the Internet is an
unsecured, unstable, unregulated, unorganized and unreliable network, and that
the ability of the other party to provide or perform services or duties
hereunder is dependent upon the Internet and equipment, software, systems, data
and services provided by various telecommunications carriers, equipment
manufacturers, firewall providers, encryption system developers and other
vendors and third parties. Each party agrees that the other shall not be liable
for any functions or malfunctions of the Internet beyond the reasonable control
of either party; provided further, that the Fund shall not be liable for, and
shall be indemnified by PFPC for, any claims by End-Users relating to viruses,
system failures or other interruptions of IMPRESSNet.comR Services due to the
conduct of PFPC or its third party service providers. Each party agrees the
other shall not be liable for the actions or omissions of any third party
wrongdoers (i.e., hackers not employed by such party or its affiliates) or of
any third parties involved in the IMPRESSNet.comR Services unless such party
breached the standard of care specified herein with respect to that selection.
(b) PFPC'S EXPLICIT DISCLAIMER OF CERTAIN WARRANTIES. EXCEPT AS
SPECIFICALLY PROVIDED IN SECTIONS 2 AND 4, AND TO THE EXTENT LIMITED BY LAW, ALL
SOFTWARE AND SYSTEMS DESCRIBED IN THIS EXHIBIT B ARE PROVIDED "AS-IS" ON AN
"AS-AVAILABLE" BASIS, AND PFPC HEREBY SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED
WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
9. MISCELLANEOUS.
(a) Independent Contractor. The parties to this Agreement are and shall remain
independent contractors, and nothing herein shall be construed to create a
partnership or joint venture between them and none of them shall have the power
or authority to bind or obligate the other in any manner not expressly set forth
herein. Any contributions to IMPRESSNet.comR by the Fund and any contributions
to the Fund Web Site by PFPC shall be works for hire pursuant to Section 101 of
the Copyright Act.
(b) Conflict with Agreement. In the event of a conflict between
specific terms of this Exhibit B and the Agreement, this Exhibit B shall control
as to IMPRESSNet.comR Services.
(c) Compliance with Law. Each Party shall be responsible for compliance
with all applicable laws, rules and regulations, if any, related to the
performance of its obligations under this Agreement.
27
