1
EXHIBIT(9)
AMENDED ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of October 29, 1997 by and between WEBS Index
Fund, Inc., a Maryland corporation (the "Fund"), and PFPC INC., a Delaware
corporation ("PFPC"), which is an indirect wholly owned subsidiary of PNC Bank
Corp.
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 issues its shares in WEBS Index Series; and
WHEREAS, the Fund wishes to retain PFPC to provide administration and
accounting services to its WEBS Index Series listed on Exhibit A attached hereto
and made a part hereof, as such Exhibit A may be amended from time to time
(each, an "WEBS Index Series"), and PFPC wishes to furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, and intending to be legally bound hereby the parties
hereto agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934,
as amended.
(c) "Authorized Person" means any officer of the Fund and
any other person duly authorized by the Fund's Board
of Directors to give Oral Instructions and Written
Instructions on behalf of the Fund and listed on the
Authorized Persons Appendix attached hereto and made
a part hereof or any amendment thereto as may be
received by PFPC. An Authorized Person's scope of
authority may be limited by the Fund by setting forth
such limitation in the Authorized Persons Appendix.
(d) "CEA" means the Commodity 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.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" means the 1933 Act, the 1934 Act,
the 1940 Act and the CEA.
1
2
(h) "Shares" mean the shares of beneficial interest of
any series or class of the Fund.
(i) "Written Instructions" mean written instructions
signed by an Authorized Person and received by PFPC.
The instructions may be delivered by hand, mail,
tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Fund hereby appoints PFPC to provide
administration and accounting services to the Fund and to each WEBS Index Series
of 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) certified or authenticated copies of the resolutions
of the Fund's Board of Directors, approving the
appointment of PFPC or its affiliates to provide
services to the Fund and to each WEBS Index Series of
the Fund and approving this Agreement;
(b) a copy of Fund's most recent effective registration
statement;
(c) a copy of the Fund's advisory agreement;
(d) a copy of the distribution agreement with respect to
each class of Shares representing an interest in the
Fund;
(e) a copy of any shareholder servicing agreement made in
respect of one or more WEBS Index Series of the Fund;
and
(f) 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.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC shall
act only upon Oral Instructions and Written Instructions.
2
3
(b) PFPC shall be entitled to rely upon any Oral Instructions
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 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 Directors 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 (except where such Oral Instructions are given by
PFPC or its affiliates) so that PFPC receives the Written Instructions within a
reasonable period of time. The fact that such confirming Written Instructions
are not received by PFPC shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions. Where
Oral Instructions or Written Instructions reasonably appear to have been
received from an Authorized Person, PFPC shall incur no liability to the Fund in
acting upon such Oral Instructions or Written Instructions provided that PFPC's
actions comply with such Oral Instructions or Written Instructions and the other
provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC is in doubt as to any action
it should or should not take, PFPC may request directions or advice, including
Oral Instructions or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC shall be in doubt as to any
question of law pertaining to any action it should or should not take, PFPC may
request advice at its own cost from such counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or PFPC, at the option of
PFPC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice, Oral Instructions or Written Instructions PFPC receives from
the Fund and the advice PFPC 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, gross 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, Oral
Instructions or Written Instructions it receives from the Fund or from counsel
and which PFPC believes, in good faith, to be consistent with those directions,
advice, Oral Instructions or Written Instructions subject to the limitations set
forth in paragraph 6(c). Nothing in this section shall be construed so as to
impose an obligation upon PFPC (i) to seek such directions, advice, Oral
Instructions or Written Instructions, or (ii) to act in accordance with such
directions, advice, Oral Instructions or Written Instructions unless,
3
4
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, gross negligence or reckless disregard by PFPC
of any duties, obligations or responsibilities set forth in this Agreement.
7. RECORDS; VISITS.
(a) 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.
(b) PFPC shall keep the following records:
(i) all books and records with respect to the Fund's
books of account;
(ii) records of the Fund's securities transactions;
(iii) all other books and records as PFPC is required to
maintain pursuant to Rule 31a-1 of the 1940 Act in
connection with the services provided hereunder.
8. CONFIDENTIALITY. PFPC agrees to keep confidential all records
of the Fund and information relating to the Fund and its shareholders, 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 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. 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 with respect to the Fund. PFPC
shall take all reasonable action in the performance of its duties under this
Agreement to assure that the necessary information is made available to such
accountants for the expression of their opinion, as required by the Fund.
10. 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
4
5
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.
11. COMPENSATION. As compensation for services rendered by PFPC
during the term of this Agreement, the Fund will pay to PFPC a fee or fees as
may be agreed to in writing by the Fund and PFPC and disclosed in the Fund's
Prospectus and Statement of Additional Information.
12. INDEMNIFICATION. The Fund agrees to indemnify and hold
harmless PFPC and its affiliates from all taxes, charges, expenses, assessments,
claims and liabilities (including, without limitation, liabilities arising under
the Securities Laws and any state or foreign securities and blue sky laws, and
amendments thereto), and expenses, including (without limitation) attorneys'
fees and disbursements arising directly or indirectly from any action or
omission to act which PFPC, its affiliates or a Sub-Administrator (as defined in
Section 16(b)) takes (i) at the request or on the direction of or in reliance on
the advice of the Fund or (ii) upon Oral Instructions or Written Instructions.
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, gross negligence or reckless
disregard of its duties and obligations under this Agreement. Any amounts
payable by the Fund hereunder shall be satisfied only against the relevant WEBS
Index Series' assets and not against the assets of any other WEBS Index Series
of the Fund.
13. RESPONSIBILITY OF PFPC.
(a) PFPC shall be under no duty to take any action on behalf
of the Fund except as specifically set forth herein or as may be specifically
agreed to by PFPC in writing. PFPC shall be obligated to exercise care and
diligence in the performance of its duties hereunder, to act in good faith and
to use its best efforts, within reasonable limits, in performing services
provided for under this Agreement. PFPC shall be liable for any damages arising
out of PFPC's failure to perform its duties under this Agreement to the extent
such damages arise out of PFPC's willful misfeasance, bad faith, gross
negligence or reckless disregard of such duties.
(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, provided that PFPC has acted in accordance with the standard
of care set forth above; and (ii) PFPC 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
5
6
its affiliates shall be liable to the Fund for any consequential, special or
indirect losses or damages which the Fund may incur or suffer by or as a
consequence of PFPC's or any affiliates' performance of the services provided
hereunder, whether or not the likelihood of such losses or damages was known by
PFPC or its affiliates.
14. DESCRIPTION OF ACCOUNTING SERVICES ON A CONTINUOUS BASIS.
PFPC will perform the following accounting services with respect to the
Fund:
(i) Journalize investment, capital share and income and
expense activities;
(ii) Verify investment buy/sell trade tickets when
received from the investment adviser for the Fund
(the "Adviser") and transmit trades to the Fund's
custodian (the "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 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 an officer of
the Fund of any proposed adjustments;
(x) Control all disbursements and authorize such
disbursements upon Written Instructions;
(xi) Calculate capital gains and losses;
(xii) Determine 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
6
7
investments;
(xiv) Transmit or mail a copy of the daily valuation to the
Adviser;
(xv) Compute net asset value;
(xvi) As appropriate, compute yields, 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 ON A CONTINUOUS BASIS.
PFPC will perform the following administration services with respect
to the Fund:
(i) Prepare quarterly broker security transactions
summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply various normal and customary Fund statistical
data as requested on an ongoing basis;
(iv) Prepare for execution and file the Fund's Federal
income, Federal excise and state tax returns;
(v) Prepare and file with the SEC the Fund's Semi-Annual
Reports on Form N-SAR and the Fund's Rule 24f-2
Notices;
(vi) Assist in the preparation and coordinate the
production and filing of the Fund's annual,
semi-annual, and quarterly shareholder reports;
(vii) Assist in the preparation of registration statements
and other filings relating to the registration of
Shares;
(viii) Monitor the Fund's status as a regulated investment
company under Sub-
7
8
Chapter M of the Internal Revenue Code of 1986, as
amended;
(ix) Coordinate contractual relationships and
communications between the Fund and its contractual
service providers;
(x) Monitor the Fund's compliance with the amounts and
conditions of each state qualification; and
(xi) Prepare minutes of meetings of Board of Directors and
shareholders.
16. DESCRIPTION OF ADDITIONAL REGULATORY COMPLIANCE AND
ADMINISTRATION SERVICES.
(a) PFPC will perform the following services with respect to the
Fund.
(i) Assist the investment adviser in monitoring the
Fund's compliance with certain investment
restrictions, limited to after-transactions testing
regarding the following procedures:
- Industry Diversification
- Issuer Diversification;
(ii) Assist in developing a response to the Securities and
Exchange Commission staff's routine examinations;
(iii) Assist in the preparation of Post Effective
Amendments to the Fund's Registration Statement on
Form N-1A;
(iv) Monitor various SEC and IRS regulatory developments
affecting investment companies;
(v) Coordinate the preparations for the Fund's Board
Meetings, including the preparation of an agenda and
the administration report and coordination of reports
and related materials from the adviser, distributor,
transfer agent and custodian, etc.;
(vi) Provide the Fund with officers which may be
authorized by the Fund to facilitate certain required
regulatory filings and the processing of invoices;
(vii) Monitor the maintenance of directors' and officers'
insurance and fidelity bond insurance coverage on
behalf of the Fund;
(viii) Coordinate with independent auditors and printers for
the preparation of shareholder reports;
(ix) Prepare and distribute operational reports to
management by the tenth business
8
9
day after receiving all applicable reports from
outside vendors; and
(x) Maintain a "task list" calendar noting required
completion dates.
(b) PFPC may contract with a third party (a "Sub-Administrator")
acceptable to the Fund (as evidenced by the Fund being a party to such contract)
to perform, or assist PFPC in performing, the following services with respect to
the Fund, provided that PFPC will not be liable for the manner in which such
services referred to in Section 16(b)(iv), (vii) and (viii) are provided by the
Sub-Administrator.
(i) Assisting in developing solutions to legal,
administration and operations related issues with
respect to the Fund (provided that the services to be
provided by the Sub-Administrator pursuant to this
provision shall relate solely to the operations of
the Fund and shall not encompass other services, such
as those relating to the trading of WEBS in the
secondary market);
(ii) In conjunction with PFPC supervising the Fund's
relationships with counsel and auditors;
(iii) Assisting in developing Board agendas and developing
and making Board presentations;
(iv) Responding to questions of existing investors,
including assisting in investor understanding of
tracking variances;
(v) Assisting with new product development initiatives
from a trading, operations and legal perspective
(provided that the services to be provided by the
Sub-Administrator pursuant to this provision shall
relate solely to the operations of the Fund and shall
not encompass other services, such as those relating
to the trading of WEBS in the secondary market);
(vi) Providing review of information provided by Xxxxxx
Xxxxxxx Capital International for reasonableness of
disclosure in Fund materials;
(vii) Assisting in the coordination of the Fund's
relationship with the American Stock Exchange and its
specialists.
(viii) Providing space for Board meetings and non-marketing
related business meetings concerning the Fund and
WEBS.
(ix) Reviewing and commenting upon prospectus and
statement of additional information drafts and draft
reports and other communications to shareholders; and
(x) Other services of an administrative and operational
nature as reasonably
9
10
requested by PFPC and agreed to by such third party.
It is understood and agreed that in no event will the
Sub-Administrator or any of its affiliates provide legal or investment advice to
the Fund or any WEBS Index Series thereof.
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. However, this Agreement shall terminate immediately with
respect to any WEBS Index Series, the shares of which are no longer trading.
18. 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-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. Notices shall
be addressed (a) if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000; (b) if to the Fund, at c/o Xx. Xxxxxx Most, X.X. Xxx 000, Xxxxxxxxxx,
Xxxxxxxxxx 00000-0000; or (c) if to neither of the foregoing, at such other
address as shall have been provided by like notice to the sender of any such
notice or other communication by the other party.
19. 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.
20. DELEGATION; ASSIGNMENT. PFPC may not 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., without prior notice to and
consent of the Fund, which consent shall not be unreasonably withheld and
provided further that (i) the delegate (or assignee) agrees with PFPC and the
Fund to comply with all relevant provisions of the 1940 Act; and (ii) PFPC and
such delegate (or assignee) promptly provide such information as the Fund may
request, and respond to such questions as the Fund may ask, relative to the
delegation (or assignment), including (without limitation) the capabilities of
the delegate (or assignee). PFPC may not assign its rights and delegate its
duties hereunder otherwise than as contemplated herein without the written
consent of the Fund, except that PFPC may retain a Sub-Administrator to perform,
or assist it in performing, certain services as contemplated in Section 16(b)
hereof.
21. 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.
22. FURTHER ACTIONS. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
23. MISCELLANEOUS.
10
11
(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 and Oral Instructions.
(b) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(c) Governing Law. This Agreement shall be governed by the
laws of the State of New York, 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.
11
12
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: /s/ Xxxxxxx X. Xxxxx
--------------------
Title: Executive Vice President
------------------------
WEBS Index Fund, Inc.
By: /s/ Xxxxxx Most
---------------
Title: President
---------
12
13
EXHIBIT A
THIS EXHIBIT A, dated as of October 29, 1997, is Exhibit A to that
certain Amended Administration and Accounting Services Agreement dated as of
October 29, 1997 between PFPC Inc. and WEBS Index Fund, Inc. This Exhibit A
shall supersede all previous forms of Exhibit A.
WEBS INDEX SERIES
Australia WEBS Index Series
Austria WEBS Index Series
Belgium WEBS Index Series
Canada WEBS Index Series
France WEBS Index Series
Germany WEBS Index Series
Hong Kong WEBS Index Series
Italy WEBS Index Series
Japan WEBS Index Series
Malaysia (Free) WEBS Index Series
Mexico (Free) WEBS Index Series
Netherlands WEBS Index Series
Singapore (Free) WEBS Index Series
Spain WEBS Index Series
Sweden WEBS Index Series
Switzerland WEBS Index Series
United Kingdom WEBS Index Series
13
14
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
Xxxxxx Most /s/ Xxxxxx Most
President ---------------
Xxxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxx
Treasurer --------------------
XxXxxx X. Xxxxxxx /s/ XxXxxx X. Xxxxxxx
Asst. Treasurer ---------------------
Xxxxxxx X. Beach /s/ Xxxxxxx X. Beach
Asst. Treasurer --------------------
R. Xxxxxxx Xxxxxxx /s/ R. Xxxxxxx Xxxxxxx
Secretary ----------------------
Xxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
Asst. Secretary -------------------
Xxxxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxx
Asst. Secretary ---------------------
Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxxx
-----------------
Xxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
------------------
Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxxx
-----------------
Xxxxxxx Xxxxxx /s/ Xxxxxxx Xxxxxx
------------------
Xxxxxxxxx Xxxxxx /s/ Xxxxxxxxx Xxxxxx
--------------------
Xxxx Xxxxx /s/ Xxxx Xxxxx
--------------
14
15
Xxxx Xxxxxx /s/ Xxxx Xxxxxx
---------------
Xxxxx Xxxxx /s/ Xxxxx Xxxxx
---------------
Xxxx Xxxxxx /s/ Xxxx Xxxxxx
---------------
Xxxxx Xxxxxx /s/ Xxxxx Xxxxxx
----------------
Xxxxxxx Xxxx /s/ Xxxxxxx Xxxx
----------------
Xxx Xxxxxxxxxxx /s/ Xxx Xxxxxxxxxxx
-------------------
Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxx
------------------
15
