TRANSFER AGENCY SALES AGREEMENT
THIS AGREEMENT is made as of ____________________________, 1996 by and
between PNC BANK, NATIONAL ASSOCIATION ("PNC Bank"), and FOREIGN FUND, INC., a
Maryland corporation (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")
issued in series and organized as a series fund; and
WHEREAS, the Fund wishes to retain PNC Bank to serve as transfer agent,
registrar, dividend disbursing agent and shareholder servicing agent to its
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 "Index Series"), and PNC
Bank 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.
-1-
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED AGENT" 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 PNC Bank. An Authorized Person's scope
of authority may be limited by the Fund by setting forth such limitation in the
Authorized Persons Appendix.
(d) "CEA" means the Commodities Exchange Act, as amended.
(e) "ORAL INSTRUCTIONS" mean oral instructions received by PNC Bank
from an Authorized Person or from a person reasonably believed by PNC Bank to be
an Authorized Person.
(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 written instructions signed by an
Authorized Person and received by PNC Bank. The
-2-
instructions may be delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PNC Bank 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. PNC Bank
accepts such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable,
will provide PNC Bank with the following:
(a) Certified or authenticated copies of the
resolutions of the Fund's Board of Directors,
approving the appointment of PNC Bank 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;
(c) A copy of the advisory agreement with respect to
the Fund;
(d) A copy of the distribution agreement with
respect to each class of Shares of the Fund;
(e) Copies of any shareholder servicing agreements
made in respect 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. PNC Bank undertakes to comply
with all applicable requirements of the
-3-
Securities Laws, and any laws, rules and regulations of governmental authorities
having jurisdiction with respect to the duties to be performed by PNC Bank
hereunder. Except as specifically set forth herein, PNC Bank assumes no
responsibility for such compliance by the Fund.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PNC Bank shall act
only upon Oral Instructions and Written Instructions.
(b) PNC Bank 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 PNC Bank to be an Authorized Person) pursuant to this
Agreement. PNC Bank 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 PNC Bank receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PNC Bank Written Instructions
confirming Oral Instructions so that PNC Bank receives the Written Instructions
by the close of business within a
-4-
reasonable period of time. The fact that such confirming Written Instructions
are not received by PNC Bank 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, PNC Bank shall incur no liability to the
Fund in acting upon such Oral Instructions or Written Instructions provided that
PNC Bank'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 PNC Bank is in doubt as to any action it
should or should not take, PNC Bank may request directions or advice, including
Oral Instructions or Written Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If PNC Bank shall be in doubt as to any
question of law pertaining to any action it should or should not take, PNC
Bank 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 PNC Bank,
at the option of PNC Bank).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice, Oral Instructions or Written Instructions PNC Bank receives
from the Fund, and the advice it
-5-
receives from counsel, PNC Bank may rely upon and follow the advice of
counsel. In the event PNC Bank so relies on the advice of counsel, PNC Bank
remains liable for any action or omission on the part of PNC Bank which
constitutes willful misfeasance, bad faith, negligence or reckless disregard
by PNC Bank of any duties, obligations or responsibilities set forth in this
Agreement.
(d) PROTECTION OF PNC Bank. PNC Bank 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 PNC Bank 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 PNC Bank (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, under the terms of other provisions of this Agreement, the
same is a condition of PNC Bank's properly taking or not taking such action.
Nothing in this subsection shall excuse PNC Bank when an action or omission on
the part of PNC Bank constitutes willful misfeasance, bad faith, negligence or
reckless disregard by PNC Bank of any duties,
-6-
obligations or responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Fund which
are in the possession or under the control of PNC Bank 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 PNC Bank's normal business hours. Upon the reasonable request of
the Fund, copies of any such books and records shall be provided by PNC Bank to
the Fund or to an Authorized Person, at the Fund's expense.
8. CONFIDENTIALITY. PNC Bank agrees on its own behalf and that of its
employees to keep confidential all records of the Fund and information relating
to the Fund and its shareholders (past, present and future), 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 PNC Bank may be exposed to civil or criminal contempt
proceedings or when required to divulge such information or records to duly
constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. PNC Bank shall cooperate with the
Fund's independent public accountants and shall take all
-7-
reasonable actions in the performance of its obligations under this Agreement
to ensure that the necessary information is made available to such
accountants for the expression of their opinion, as required by the Fund.
10. DISASTER RECOVERY. PNC Bank 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 failure,
PNC Bank shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. PNC Bank 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 PNC Bank's own willful misfeasance,
bad faith, negligence or reckless disregard of its duties or obligations under
this Agreement.
11. COMPENSATION. As compensation for services rendered by PNC Bank
during the term of this Agreement, the Fund will pay to PNC Bank a fee or fees
as may be agreed to from time to time in writing by the Fund and PNC Bank.
12. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless PNC
Bank and its affiliates from all taxes, charges,
-8-
expenses, assessments, claims and liabilities (including, without limitation,
liabilities arising under the Securities Laws and any state and foreign
securities and blue sky laws, and amendments thereto), and expenses, including
(without limitation) attorneys' fees and disbursements, arising directly or
indirectly from any action or omission to act which PNC Bank 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 PNC Bank, nor any of its
affiliates, shall be indemnified against any liability (or any expenses incident
to such liability) arising out of PNC Bank's or its affiliates' own willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
13. RESPONSIBILITY OF PNC BANK.
(a) PNC Bank 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 PNC Bank in writing. PNC Bank 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. PNC Bank shall be liable for any damages
arising out of PNC Bank's failure to perform
-9-
its duties under this Agreement to the extent such damages arise out of PNC
Bank's willful misfeasance, bad faith, negligence or reckless disregard of such
duties.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PNC Bank, shall not be liable for losses beyond
its control, provided that PNC Bank has acted in accordance with the standard of
care set forth above; and (ii) PNC Bank shall not be under any duty or
obligation to inquire into and shall not be liable for (i) the validity or
invalidity or authority or lack thereof of any Oral Instruction, Written
Instruction, notice or other instrument which conforms to the applicable
requirements of this Agreement, and which PNC Bank reasonably believes to be
genuine; or (ii) subject to Section 10, delays or errors or loss of data
occurring by reason of circumstances beyond PNC Bank'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 PNC Bank nor its affiliates shall be liable to the Fund for any
consequential, special or indirect losses or
-10-
damages which the Fund may incur or suffer by or as a consequence of PNC Bank's
or its affiliates' performance of the services provided hereunder, whether or
not the likelihood of such losses or damages was known by PNC Bank or its
affiliates.
14. DESCRIPTION OF SERVICES.
(a) SERVICES PROVIDED ON AN ONGOING BASIS, IF APPLICABLE.
(i) Maintain proper shareholder registrations;
(ii) Direct payment processing of checks or wires;
(iii) Prepare and certify stockholder lists in conjunction with
proxy solicitations;
(iv) Countersign share certificates;
(v) Prepare and mail to shareholders confirmation of activity;
(vi) Provide periodic shareholder lists and statistics to the
clients;
(vii) Provide detailed data for underwriter/broker confirmations;
(viii) Prepare periodic mailing of year-end tax and statement
information;
(ix) Notify on a timely basis the investment adviser, accounting
agent, and custodian of fund activity; and
(b) SERVICES PROVIDED BY PNC BANK UNDER ORAL INSTRUCTIONS OR WRITTEN
INSTRUCTIONS.
(i) Accept and post daily Fund purchases and redemptions;
-11-
(ii) Accept, post and perform shareholder transfers;
(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. PNC Bank shall issue and credit an account
of an investor, in the manner described in the Fund's prospectus, once it
receives:
(i) A purchase order;
(ii) Proper information to establish a shareholder account; and
(iii) Confirmation of receipt or crediting of securities and funds
for such order to the Fund's custodian.
(d) REDEMPTION OF SHARES. PNC Bank shall redeem Shares only if that
function is properly authorized by the certificate of incorporation or
resolution of the Fund's Board of Directors. Shares shall be redeemed and
payment therefor shall be made in accordance with the Fund's prospectus and
statement of additional information when the recordholder tenders a redemption
request in "proper form" as described in the Fund's prospectus and statement of
additional information.
(e) DIVIDENDS AND DISTRIBUTIONS. Upon receipt of a
-12-
resolution of the Fund's Board of Directors authorizing the declaration and
payment of dividends and distributions, PNC Bank shall pay such dividends and
distributions in cash, as provided for in the Fund's prospectus and statement of
additional information. Such 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. PNC Bank 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. PNC Bank 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) COMMUNICATIONS TO SHAREHOLDERS. Upon timely Written
Instructions, PNC Bank shall mail all communications by the Fund to its
shareholders, including:
(i) Reports to shareholders;
(ii) Confirmations of purchases and sales of Fund shares;
(iii) Monthly or quarterly statements;
-13-
(iv) Dividend and distribution notices;
(v) Proxy material; and
(vi) Tax form information.
In addition, PNC Bank will receive and tabulate the proxy cards for
the meetings of the Fund's shareholders.
(g) RECORDS. PNC Bank 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
shareholders' account;
(vi) Information with respect to withholdings; and
(vii) Any information required in order for the transfer agent to
perform any calculations contemplated or required by this
Agreement.
(h) LOST OR STOLEN CERTIFICATES. PNC Bank shall place a stop notice
against any certificate reported to be lost or stolen
-14-
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:
(i) The shareholder's pledge of a lost instrument bond or such
other appropriate indemnity bond issued by a surety company
approved by PNC Bank; and
(ii) Completion of a release and indemnification agreement signed
by the shareholder to protect PNC Bank and its affiliates.
(i) SHAREHOLDER INSPECTION OF STOCK RECORDS. Upon a request from any
Fund shareholder to inspect stock records, PNC Bank will notify the Fund and the
Fund will issue instructions granting or denying each such request. Unless PNC
Bank has acted contrary to the Fund's instructions, the Fund agrees and does
hereby, release PNC Bank from any liability for refusal of permission for a
particular shareholder to inspect the Fund's stock records.
15. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or by PNC Bank on sixty (60) days' prior written
notice to the other party. However, this Agreement shall terminate
immediately with respect to any Index Series the shares of which are no
longer trading.
16. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming
-15-
telegram, cable, telex or facsimile sending device. Notices shall be addressed
(a) if to PNC Bank, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (b) if
to the Fund, at X/X Xx. Xxxxxx Xxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000-
0000; 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.
17. 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.
18. DELEGATION; ASSIGNMENT. PNC Bank 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 PNC Bank and
the
-16-
Fund to comply with all relevant provisions of the 1940 Act; and (ii) PNC Bank
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).
19. 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.
20. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
21. 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 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
-17-
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 by such party.
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PNC BANK, N.A.
By:_________________________________
Title:_______________________________
FOREIGN FUND, INC.
By:___________________________________
Title:________________________________
-19-
EXHIBIT A
THIS EXHIBIT A, dated as of ____________________________, 1996, is
Exhibit A to that certain Transfer Agency Services Agreement dated as of
________________________, 1996 between PNC Bank, N.A. and Foreign Fund, Inc.
This Exhibit A shall supersede all previous forms of Exhibit A.
INDEX SERIES
Australia Index Series
Austria Index Series
Belgium Index Series
Canada Index Series
France Index Series
Germany Index Series
Hong Kong Index Series
Italy Index Series
Japan Index Series
Malaysia Index Series
Mexico Index Series
Netherlands Index Series
Singapore (Free) Index Series
Spain Index Series
Sweden Index Series
Switzerland Index Series
United Kingdom Index Series
-20-
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
______________________________ ________________________________
______________________________ ________________________________
______________________________ ________________________________
______________________________ ________________________________
______________________________ ________________________________
______________________________ ________________________________
-21-
