Form of Agreement
CO-ADMINISTRATION AGREEMENT
TERMS AND CONDITIONS
This Agreement is made as of ________ ____, 2001 by and between Credit
Suisse Warburg Pincus __________ Fund (the "Fund"), a [Delaware] Massachussetts
business, and PFPC Inc. ("PFPC"), a Massachusetts corporation.
The Fund is registered as an open-end investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"). The Fund wishes to
retain PFPC to provide certain administration and accounting services, and PFPC
wishes to furnish such services.
In consideration of the promises and mutual covenants herein contained, the
parties agree as follows:
1. Definitions.
(a) "Authorized Person." The term "Authorized Person" shall mean any
officer of the Fund and any other person, who is duly authorized by
the Fund's Board of Trustees, to give Oral and Written Instructions on
behalf of the Fund. Such persons are listed in the Certificate
attached hereto as the Authorized Persons Appendix to each Services
Attachment to this Agreement. If PFPC provides more than one service
hereunder the Fund's designation of Authorized Persons may vary by
service.
(b) "Board of Trustees." The term "Board of Trustees" shall mean the
Fund's Board of Trustees or where duly authorized, a competent
committee thereof.
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(c) "CFTC." The term "CFTC" shall mean the Commodities Futures Trading
Commission.
(d) "Oral Instructions." The term "Oral Instructions"' shall mean oral
instructions received by PFPC from an Authorized Person or from a
person reasonably believed by PFPC to be an Authorized Person.
(e) "SEC." The term "SEC" shall mean the Securities and Exchange
Commission.
(f) "Securities and Commodities Laws." The terms the "1933 Act" shall mean
the Securities Act of 1933, as amended, the "1934 Act" shall mean the
Securities Exchange Act of 1934, as amended, the "1940 Act" shall mean
the Investment Company Xxx 0000, as amended, and the "CEA" shall mean
the Commodities Exchange Act, as amended.
(g) "Services." The term "Services" shall mean the service provided to the
Fund by PFPC.
(h) "Shares." The term "Shares" shall mean the shares of any class of
beneficial interest, par value [$.001] per share, of the Fund.
(i) "Property ." The term "Property" shall mean:
(i) any and all securities and other investment items which the Fund
may from time to time deposit, or cause to be deposited, with
the custodian or which the custodian may from time to time hold
for the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or investment
items; and
(iv) all proceeds of the sale of securities issued by the Fund, which
are received by the custodian from time to time, from or on
behalf of the Fund.
(j) "Written Instructions." The term "Written Instructions" shall mean
written instructions signed by two Authorized Persons and received by
PFPC. The
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instructions may be delivered by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. Appointment.
The Fund hereby appoints PFPC to provide administration and accounting
services, 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) certified or authenticated copies or the resolutions of the Board
of Directors, approving the appointment of PFPC or its affiliates
to provide services to the Fund;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of the Fund's advisory agreement;
(d) a copy of the Fund's distribution agreements;
(e) a copy of the Fund's co-administration agreement if PFPC is not
providing the Fund with such services;
(f) copies of any shareholder servicing agreements made in respect of
the Fund; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
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4. Compliance with Government Rules and Regulations.
PFPC undertakes to comply with all applicable requirements of the 1933
Act, the 1934 Act, the 1940 Act, and the CEA, and any laws, rules and
regulations of governmental authorities having jurisdiction with respect to
all duties to be performed by PFPC hereunder. Except as specifically set
forth herein, PFPC assumes no responsibility for such compliance by the
Fund.
5. Instructions.
Unless otherwise provided in this Agreement, PFPC shall act only upon
Oral and Written Instructions.
PFPC shall be entitled to rely upon any Oral and Written Instructions
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 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 Board of
Trustees or of the Fund's shareholders.
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
shall in no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions. The Fund further agrees
that PFPC shall incur no liability to the Fund in acting upon Oral or
Written Instructions provided such instructions reasonably appear to have
been received form an Authorized Person.
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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 or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any questions
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 (the "Adviser") or PFPC, at the option of
PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral or Written Instructions PFPC receives
from the Fund, and the advice it receives from counsel, PFPC
shall be entitled to 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, advice or
Oral 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 and Oral or Written Instructions.
Nothing in this paragraph shall be construed so as to impose an
obligation upon PFPC (i) to seek such directions, advice or Oral or
Written Instructions, or (ii) to act in accordance with such
directions, advice or Oral or Written Instructions unless, under the
term of other provisions of this Agreement, the same is a condition of
PFPC's properly taking or not taking such action.
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7. Records.
The books and records pertaining to the Fund, which are in the
possession 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, or the
Fund's Authorized Persons, shall have access to such books and record 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 of the Fund, at the Fund' s expense.
PFPC shall keep the following records:
(a) all books and records with respect to the Fund's books of
account;
(b) records of the Fund's securities transactions; and
(c) all other books and records as PFPC is required to maintain
pursuant to Rule 31a-1 of the 1940 Act and as specifically
set forth in Appendix A hereto.
8. Confidentiality.
PFPC agrees to keep confidential all records of the Fund and
information relative to the Fund and its shareholders (past, present and
potential), unless the release of such records or information is otherwise
consented to, in writing, by the Fund. The Fund agrees that such consent
shall not be unreasonably withheld. The Fund further agrees that, should
PFPC be required to provide such information or records to duly constituted
authorities (who may institute civil or criminal contempt proceedings for
failure to comply), PFPC shall not be required to seek the Fund's consent
prior to disclosing such information.
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9. Liaison with Accountants.
PFPC shall act as liaison with the Fund's independent public
accountants and shall provide account analyses, fiscal year summaries, and
other audit-related schedules. PFPC shall take all reasonable action in the
performance of its obligations under this Agreement to assure that the
necessary information is made available to such accountants for the
expression of their opinion, as such may be required by the Fund from time
to time.
10. Disaster Recovery.
PFPC shall enter into and shall maintain in effect with appropriate
parties one or more agreements making reasonable provision of 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 but shall have no liability with respect thereto.
11. Compensation.
As compensation for services rendered by PFPC during the term of this
Agreement, the Fund will pay PFPC a fee or fees as may be agreed to in
writing by the Fund and PFPC.
12. Indemnification.
The Fund agrees to indemnify and hold harmless PFPC and its nominees
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the 1933 Act, the
1934 Act, the 1940 Act, the CEA and any state and foreign securities and
blue sky laws, and amendments thereto, and expenses, including (without
limitation) attorneys' fees and disbursements, arising
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directly or indirectly from any action which PFPC takes or does not take
(a) at the request or on the direction of or in reliance on the advice of
the Fund or (b) upon Oral or Written Instructions. Neither PFPC, nor any of
its nominees, shall be indemnified against any liability to the Fund or to
its shareholders (or any expenses incident to such liability) arising out
of PFPC's own willful misfeasance, bad faith, negligence or reckless
disregard of its duties and obligations under this Agreement.
13. Responsibility of PFPC.
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, within reasonable limits, in performing services provided
for under this Agreement. PFPC shall be responsible for its own negligent
failure to perform its duties under this Agreement. Notwithstanding the
foregoing, PFPC shall not be responsible for losses beyond its control,
provided that PFPC has acted in accordance with the standard of care set
forth above; and provided further that PFPC shall only be responsible for
that portion of losses or damages suffered by the Fund that are
attributable to the negligence of PFPC.
Without limiting the generality of the foregoing or of any other
provision of this Agreement, PFPC, in connection with its duties under this
Agreement, shall not be liable for (a) the validity or invalidity or
authority or lack thereof of any Oral 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) delays
or errors or loss of data occurring by reason of circumstances beyond
PFPC's control,
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including acts of civil or military authority, national emergencies, labor
difficulties, fire, flood or catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power
supply.
Notwithstanding anything in this Agreement to the contrary, PFPC shall
have no liability 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 performance of the services provided hereunder, whether or not
the likelihood of such losses or damages was known by PFPC.
14. Description of Accounting Services.
(a) Services on a Continuing Basis. PFPC will perform the following
accounting functions if required:
(i) Journalize the Fund's investment, capital share and
income and expense activities;
(ii) Verify investment buy/sell trade tickets when received
from the Adviser and transmit trades to the Fund's
custodian for proper settlement;
(iii) Maintain individual ledgers for investment securities;
(iv) Maintain historical tax lots for each security;
(v) Reconcile cash and investment balances of the Fund with
the custodian, and provide the Adviser with the
beginning cash balance available for investment
purposes;
(vi) Update the cash availability throughout the day as
required by the Adviser;
(vii) Post to and prepare the Fund's Statement of Assets and
Liabilities and the Statement of Operations;
(viii) Calculate various contractual expenses (e.g., advisory
and custody fees);
(ix) Monitor the expense accruals and notify the Fund's
management of any proposed adjustments;
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(x) Control all disbursements from the Fund and authorize
such disbursements upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine the Fund's net income;
(xiii) Obtain security market quotes from independent pricing
services approved by the Adviser, or if such quotes are
unavailable, then obtain such prices from the Adviser,
and in either case calculate the market value of the
Fund's investments;
(xiv) Transmit or mail a copy of the daily portfolio valuation
to the Adviser;
(xv) Compute the net asset value of the Fund;
(xvi) As appropriate, compute the Fund's yield, total return,
expense ratios, portfolio turnover rate, and, if
required, portfolio average dollar-weighted maturity;
and
(xvii) Prepare a monthly financial statement, which will
include the following items:
Schedule of Investments
Statement of Assets and Liabilities
Statement of Operations
Statement of Changes in Net Assets
Cash Statement
Schedule of Capital Gains and Losses.
15. Description of Administration Services.
(a) Services on a Continuing Basis.
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Prepare for execution and file the Fund's federal and state tax
returns;
(iv) Prepare and file the Fund's semi-annual reports with the SEC on
Form N-SAR;
(v) Prepare and file with the SEC the Fund's annual and semi-annual
shareholder reports;
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(vi) Assist with the preparation of registration statements and other
filings relating to the registration of Shares; and
(vii) Monitor the Fund's status as a regulated investment company
under Sub-Chapter M of the Internal Revenue Code of 1986, as
amended.
16. 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.
17. Notices.
All notices and other communications, including Written Instructions,
shall be in writing or by confirming telegram, cable, telex or facsimile
sending device. 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-c1ass 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. Notices shall be addressed (a) if to PFPC, at PFPC's address,
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 notified to the sender of any such notice
or other communication.
18. Amendments.
This Agreement, or any term thereof, may be changed or waived only by
written amendment, signed by the party against whom enforcement of such
change or waiver is sought.
19. Delegation.
PFPC may assign its rights and delegate its duties hereunder to any
affiliate (as
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defined in the 0000 Xxx) of or 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 assignee or delegate agrees to comply with the
relevant provision of the 1940 Act, and (iii) 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).
20. 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.
21. Further Actions.
Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
22. Miscellaneous.
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 and/or Oral Instructions.
The captions in this Agreement are included for convenience of
reference only and in no way define or delimit any of the provisions hereof
otherwise affect their construction or effect.
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This Agreement shall be deemed to be a contract made in Delaware and
governed by Delaware law. 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. This Agreement
shall be binding and shall inure to the benefit of the parties hereto and
their respective successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first above
written.
PFPC INC.
By:_________________________
Name:_______________________
Title:______________________
WARBURG, XXXXXX ____________
__________ FUND, INC.
By:_________________________
Name:_______________________
Title:______________________
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APPENDIX A
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