Exhibit (9)
ADMINISTRATION AND ACCOUNTING SERVICES AGREEMENT
THIS AGREEMENT is made as of March 11, 1996 by and between FOREIGN
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 Index Series; and
WHEREAS, the Fund wishes to retain PFPC to provide administration
and accounting services 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 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.
(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 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 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 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.
(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, 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 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.
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 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 Index Series'
assets and not against the assets of any other 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, promvided 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 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
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-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.
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 day after receiving all applicable reports
from outside vendors; and
(x) Maintain a "task list" calendar noting required completion
dates.
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 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 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
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).
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.
(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.
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
Xxxxxxx X. Xxxxx
Executive Vice President
FOREIGN FUND, INC.
By: /s/Xxxxxx Most
Xxxxxx Most
President
EXHIBIT A
THIS EXHIBIT A, dated as of March 11, 1996, is Exhibit A to that
certain Administration and Accounting Services Agreement dated as of
March 11, 1996 between PFPC Inc. 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 (Free) Index Series
Netherlands Index Series
Singapore (Free) Index Series
Spain Index Series
Sweden Index Series
Switzerland Index Series
United Kingdom Index Series
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
Xxxx X. Xxxxxxx /s/Xxxx X. Xxxxxxx
Asst. Secretary
Xxxx X. Xxxx /s/Xxxx X. Xxxx
Asst. Secretary
Xxxx Xxxx /s/Xxxx Xxxx
Xxxxx Xxxxxxxx /s/Xxxxx Xxxxxxxx
Xxxx Xxxxxxxx /s/Xxxx Xxxxxxxx
Xxxx Xxxxx /s/Xxxx Xxxxx
Xxxx Xxxxxxxxx /s/Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxx /s/Xxxxxxxxx Xxxxxx
Xxx Xxxxxxxxxxx /s/Xxx Xxxxxxxxxxx
Xxxx Xxxxxxx /s/Xxxx Xxxxxxx
