1
EXHIBIT(9)(E)
SUB-ADMINISTRATION AGREEMENT
THIS AGREEMENT is made as of October 29, 1997 by and between WEBS INDEX
FUND, INC., a Maryland corporation (the "Fund"), PFPC INC., a Delaware
corporation and an indirect wholly owned subsidiary of PNC Bank Corp. ("PFPC")
and XXXXXX XXXXXXX TRUST COMPANY, a New York State chartered trust company
("MSTC").
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, pursuant to an Administration and Accounting Services
Agreement dated March 11, 1996, PFPC has been appointed Administrator to the
Fund's 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, a "WEBS Index
Series"); and
WHEREAS, the Fund and PFPC wish MSTC (directly or through affiliated
companies) to provide certain administrative services to the Fund's WEBS Index
Series listed on Exhibit A, and MSTC wishes to furnish such services, as
Sub-Administrator to the Fund.
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 PFPC to give Oral
Instructions and Written Instructions on behalf of
PFPC and listed on the Authorized Persons Appendix
attached hereto and made a part hereof or any
amendment thereto as may be received by MSTC. An
Authorized Person's scope of authority may be limited
by PFPC 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 MSTC from an Authorized Person or from a person
reasonably believed by MSTC to be an Authorized
Person.
(f) "SEC" means the Securities and Exchange Commission.
2
(g) "Securities Laws" means 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 MSTC.
The instructions may be delivered by hand, mail,
tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Fund and PFPC hereby appoint MSTC to provide
certain sub-administrative services to the Fund and to each WEBS Index Series
of the Fund in accordance with the terms set forth in this Agreement. MSTC
accepts such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund and PFPC have provided or,
where applicable, will provide MSTC with the following:
(a) certified or authenticated copies of the resolutions of
the Fund's Board of Directors, approving the
appointment of MSTC (directly or through its
affiliates) to provide sub-administrative 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 series 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. MSTC 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 MSTC hereunder. Except as specifically
set forth herein, MSTC assumes no responsibility for such compliance by the Fund
or PFPC.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, MSTC
shall act only upon Oral
2
3
Instructions and Written Instructions.
(b) MSTC 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 MSTC to be an Authorized Person) pursuant to this
Agreement. MSTC 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 MSTC receives Written Instructions to the contrary.
(c) PFPC agrees to forward to MSTC Written Instructions
confirming Oral Instructions so that MSTC receives the Written Instructions
within a reasonable period of time. The fact that such confirming Written
Instructions are not received by MSTC 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, MSTC shall incur no liability
to the Fund or PFPC in acting upon such Oral Instructions or Written
Instructions provided that MSTC'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 PFPC. If MSTC is in doubt as to any action it
should or should not take, MSTC may request directions or advice, including Oral
Instructions or Written Instructions, from PFPC.
(b) Advice of Counsel. If MSTC shall be in doubt as to any
question of law pertaining to any action it should or should not take, MSTC may
request advice at its own cost from such counsel of its own choosing (who may be
counsel for PFPC, the Fund, the Fund's investment adviser or MSTC, at the option
of MSTC).
(c) Conflicting Advice. In the event of a conflict between
directions, advice, Oral Instructions or Written Instructions MSTC receives from
PFPC and the advice MSTC receives from counsel, MSTC may rely upon and follow
the advice of counsel. In the event MSTC so relies on the advice of counsel,
MSTC remains liable for any action or omission on the part of MSTC which
constitutes willful misfeasance, bad faith, gross negligence or reckless
disregard by MSTC of any duties, obligations or responsibilities set forth in
this Agreement.
(d) Protection of MSTC. MSTC 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 PFPC and which MSTC believes, in good
faith, to be consistent with those directions, advice, Oral Instructions or
Written Instructions subject to the limitations set forth in paragraph
3
4
6(c). Nothing in this section shall be construed so as to impose an obligation
upon MSTC (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 MSTC's properly taking or not
taking such action. Nothing in this subsection shall excuse MSTC when an action
or omission on the part of MSTC constitutes willful misfeasance, bad faith,
gross negligence or reckless disregard by MSTC of any duties, obligations or
responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The records pertaining to the Fund and the
WEBS Index Series which are in the possession or under the control of MSTC shall
be the property of the Fund. PFPC, and its Authorized Persons shall have access
to such records at all times during MSTC's normal business hours. Upon the
reasonable request of PFPC, copies of any such records shall be provided by MSTC
to the Fund, to PFPC or to an Authorized Person, at the Fund's expense.
8. CONFIDENTIALITY. MSTC agrees on its own behalf and that of
its employees to keep confidential all records of PFPC and 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 PFPC or the Fund. PFPC agrees that such consent
shall not be unreasonably withheld and may not be withheld where MSTC may be
exposed to civil or criminal contempt proceedings or when required to divulge
such information or records to duly constituted authorities. Notwithstanding the
foregoing, it is understood and agreed that MSTC and its affiliates may promptly
supply any records or information upon the request of any regulatory authority
that has jurisdiction over MSTC or its affiliates.
9. COMPENSATION. As compensation for services rendered by MSTC
during the term of this Agreement, PFPC will pay to MSTC a fee or fees as may be
agreed to in writing by the Fund, PFPC and MSTC.
10. INDEMNIFICATION. PFPC agrees to indemnify and hold harmless
MSTC 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 MSTC takes (i) at the request or on the direction of or in
reliance on the advice of PFPC or (ii) upon Oral Instructions or Written
Instructions. Neither MSTC nor any of its affiliates', shall be indemnified
against any liability (or any expenses incident to such liability) arising out
of MSTC's or its affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties and obligations under this
Agreement.
11. RESPONSIBILITY OF MSTC.
(a) MSTC shall be under no duty to take any action on behalf
of PFPC or the Fund except as specifically set forth herein or as may be
specifically agreed to by MSTC in writing. MSTC shall be obligated to exercise
care and diligence in the performance of its duties
4
5
hereunder, to act in good faith and to use its best efforts, within reasonable
limits, in performing services provided for under this Agreement. MSTC shall be
liable for any damages arising out of MSTC's failure to perform its duties under
this Agreement only to the extent such damages arise out of MSTC'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) MSTC shall not be liable for losses
beyond its control, provided that MSTC has acted in accordance with the standard
of care set forth above; and (ii) MSTC 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 MSTC reasonably believes to be
genuine; or (B) delays or errors or loss of data occurring by reason of
circumstances beyond MSTC'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 MSTC nor its affiliates shall be liable to PFPC, the Fund or
any WEBS Index Series for any consequential, special or indirect losses or
damages which PFPC, the Fund or any WEBS Index Series may incur or suffer by or
as a consequence of MSTC's or any affiliates' performance of the services
provided hereunder, whether or not the likelihood of such losses or damages was
known by MSTC or its affiliates.
12. DESCRIPTION OF ADMINISTRATION SERVICES ON A CONTINUOUS BASIS.
MSTC will 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 12 (iv), (vii) and (viii) are
provided by MSTC.
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 MSTC 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
5
6
by MSTC 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.
x. Other services of an administrative and operational
nature as reasonably requested by PFPC and agreed to
by MSTC.
It is understood and agreed that in no event shall MSTC or
any of its affiliates provide legal or investment advice to the Fund or any WEBS
Index Series thereof.
13. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund, PFPC or by MSTC on sixty (60) days' prior written notice
to the other parties. However, this Agreement shall terminate immediately with
respect to any WEBS Index Series, the shares of which are no longer trading.
14. 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 MSTC, at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx, 00000;
(b) if to PFPC, at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; (c) if to
the Fund, at c/o Xx. Xxxxxx Most, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxx
00000-0000; or (d) if to none 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.
15. 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.
16. DELEGATION; ASSIGNMENT. MSTC may assign all or part of its
rights and delegate
6
7
all or part of its duties hereunder, to any affiliate that is either a direct or
indirect majority owned subsidiary of Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover &
Co. provided that (i) MSTC gives PFPC thirty (30) days' prior written notice;
(ii) the delegate (or assignee) agrees with MSTC and PFPC to comply with all
relevant provisions of the 1940 Act, if any, and all relevant provisions of this
Sub-Administration Agreement; and (iii) MSTC and such delegate (or assignee)
promptly provide such information as PFPC may request, and respond to such
questions as PFPC may ask, relative to the delegation (or assignment), including
(without limitation) the capabilities of the delegate(s) (or assignee(s)).
17. 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.
18. FURTHER ACTIONS. Each party agrees to perform such further
acts and execute such further documents as are necessary to effectuate the
purposes hereof.
19. 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 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.
7
8
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
------------------------
XXXXXX XXXXXXX TRUST COMPANY
By: /s/ XXXXXXX XXXXXXXX
-------------------------
Title: Vice President
----------------------
WEBS INDEX FUND, INC.
By:/s/ Xxxxxx Most
---------------
Title:President
---------
8
9
EXHIBIT A
THIS EXHIBIT A, dated as of October 29, 1997, is Exhibit A to that
certain Sub-Administration Services Agreement dated as of October 29, 1997
between WEBS Index Fund, Inc., PFPC Inc. and Xxxxxx Xxxxxxx Trust Company.
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
9
10
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 ---------------------
10
