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EXHIBIT 8(c)
SUB-CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of ____________, 1999 by and between PFPC
TRUST COMPANY, a limited purpose trust company organized under the laws of
Delaware ("Custodian"), PNC Bank, National Association, a national banking
association ("PNC Bank") and each investment company or series thereof listed on
Schedule A (each such investment company or portfolio referred to herein as 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");
and
WHEREAS, PFPC Trust Company serves as custodian for the Fund pursuant
to a Custody Agreement with the Fund; and
WHEREAS, the Custodian and the Fund wish to retain PNC Bank to provide
sub-custodian services, and PNC Bank wishes to furnish sub-custodian services,
either directly or through an affiliate, as more fully described herein.
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.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund, the Custodian
and any other person duly authorized by the Fund's Board of
Directors to give Oral Instructions
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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) "Book-Entry System" means Federal Reserve Treasury book-entry
system for United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "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.
(g) "PNC Bank" means PNC Bank, National Association or a subsidiary or
affiliate of PNC Bank, National Association.
(h) "SEC" means the Securities and Exchange Commission.
(i) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and the
CEA.
(j) "Shares" mean the shares of common stock or beneficial interest of any
series or class of the Fund.
(k) "Property" means:
(i) any and all securities and other investment items which the
Custodian may from time to time deposit, or cause to be deposited,
with PNC Bank or which PNC Bank may from time to time hold for the
Fund;
(ii) all income in respect of any of such securities or other
investment items;
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(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the Fund,
which are received by PNC Bank from time to time, from or
on behalf of the Fund.
(m) "Written Instructions" mean written instructions signed by two
Authorized Persons and received by PNC Bank. The instructions
may be delivered by hand, mail, tested telegram, cable, telex
or facsimile sending device.
2. APPOINTMENT. The Custodian and the Fund hereby appoint PNC Bank to
provide sub-custodian services to the Fund, and 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 to provide sub-custodian services;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of the Fund's advisory agreements;
(d) a copy of the distribution agreement with respect to each
class of Shares;
(e) copies of any shareholder servicing agreements made in respect
of the Fund; and
(f) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
PNC Bank 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 PNC Bank hereunder. Except as specifically set
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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 Instructions or Written Instructions received hereunder are
not in any way inconsistent with the provisions of organizational
documents of the Fund 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 Custodian and the Fund, as applicable, agree to forward to PNC
Bank Written Instructions confirming Oral Instructions (except
where such Oral Instructions are given by PNC Bank or its
affiliates) so that PNC Bank receives the Written Instructions by
the close of business on the same day that such Oral Instructions
are received. The fact that such confirming Written Instructions
are not received by 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
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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 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 Custodian or the Fund as applicable.
(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 Custodian,
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 or Oral Instructions or Written Instructions PNC Bank
receives, and the advice it receives from counsel, PNC Bank shall
be entitled to rely upon and, after notice to Custodian and the
Fund, 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, gross 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 or
Oral Instructions or Written
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Instructions it receives from the Fund or from counsel and which
PNC Bank believes, in good faith, to be consistent with those
directions, advice or Oral Instructions or Written Instructions.
Nothing in this section shall be construed so as to impose an
obligation upon PNC Bank (i) to seek such directions, advice or
Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions, advice or 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, obligations or
responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to Custodian and 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 Custodian, 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
Custodian or the Fund, copies of any such books and records shall be
provided by PNC Bank to the Custodian, the Fund or to an authorized
representative of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. PNC Bank agrees to keep confidential all records of the
Custodian, the Fund and information relating to the Custodian, the Fund
and its shareholders, unless the release of such records or information
is otherwise consented to, in writing, by the
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Custodian or the Fund, as the case may be. The Custodian and the Fund
agree 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
Custodian's and the Fund's independent public accountants and shall take
all reasonable action 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
failures, 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. YEAR 2000 READINESS DISCLOSURE. PNC Bank (a) has reviewed its business
and operations as they relate to the services provided hereunder, (b) has
developed or is developing a program to remediate or replace computer
applications and systems, and (c) has developed a testing plan to test
the remediation or replacement of computer
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applications/systems, in each case, to address on a timely basis the risk
that certain computer applications/systems used by PNC Bank may be unable
to recognize and perform properly date sensitive functions involving
dates prior to, including and after December 31, 1999, including dates
such as February 29, 2000 (the "Year 2000 Challenge"). To the best of PNC
Bank's knowledge and belief, the reasonably foreseeable consequences of
the Year 2000 Challenge will not adversely effect PNC Bank's ability to
perform its duties and obligations under this Agreement.
12. COMPENSATION. As compensation for sub-custody services rendered by PNC
Bank during the term of this Agreement, the Custodian will pay to PNC
Bank a fee or fees as may be agreed to in writing from time to time by
the Custodian and PNC Bank.
13. INDEMNIFICATION. The Fund agrees to indemnify and hold harmless PNC Bank
and its affiliates from all taxes, charges, 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 Custodian 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 under this Agreement.
14. RESPONSIBILITY OF PNC BANK.
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(a) PNC Bank shall be under no duty to take any action on behalf of Custodian
or the Fund except as specifically set forth herein or as are reasonably
incidental to those 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 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 its duties under this Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PNC Bank shall not be under any duty or
obligation to inquire into and 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 PNC Bank reasonably
believes to be genuine; or (B) 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, 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 Custodian or the Fund for
any consequential,
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special or indirect losses or damages which the Fund may incur or
suffer, including 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.
15. DESCRIPTION OF SERVICES.
(a) Delivery of the Property. The Custodian, for the account of the
Fund, will deliver or arrange for delivery to PNC Bank, certain
Property owned by the Fund, including cash received as a result of
the distribution of Shares, during the period that is set forth in
this Agreement. PNC Bank will not be responsible for such Property
until actual receipt.
(b) Receipt and Disbursement of Money. PNC Bank, acting upon Written
Instructions, shall open and maintain separate accounts in
Custodian's name for the benefit of the Fund using all cash
received from or for the account of the Fund, subject to the terms
of this Agreement. In addition, upon Written Instructions, PNC
Bank shall open separate custodial accounts for each separate
series or portfolio of the Fund (collectively, the "Accounts") and
shall hold in the Accounts all cash received from or for the
Accounts of the Fund specifically designated to each separate
series or portfolio.
PNC Bank shall make cash payments from or for the Accounts of the
Fund only for:
(i) purchases of securities in the name of the Fund or PNC Bank
or PNC Bank's nominee as provided in sub-section (j) and
for which PNC Bank has received a copy of the broker's or
dealer's confirmation or payee's invoice, as appropriate;
(ii) purchase or redemption of Shares of the Fund;
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(iii) payment of, subject to Written Instructions, interest,
taxes, administration, accounting, distribution, advisory,
management fees or similar expenses which are to be borne
by the Fund;
(iv) payment to, subject to receipt of Written Instructions, the
Fund's transfer agent, as agent for the shareholders, an
amount equal to the amount of dividends and distributions
stated in the Written Instructions to be distributed in
cash by the transfer agent to shareholders, or, in lieu of
paying the Fund's transfer agent, PNC Bank may arrange for
the direct payment of cash dividends and distributions to
shareholders in accordance with procedures mutually agreed
upon from time to time by and among the Fund, PNC Bank and
the Fund's transfer agent.
(v) payments, upon receipt Written Instructions, in connection
with the conversion, exchange or surrender of securities
owned or subscribed to by the Fund and held by or delivered
to PNC Bank;
(vi) payments of the amounts of dividends received with respect
to securities sold short; and
(vii) payments, upon Written Instructions, made for other Fund
purposes.
PNC Bank is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as sub-custodian for
the Accounts.
(c) Receipt of Securities; Subcustodians.
(i) PNC Bank shall hold all securities received by it for the
Accounts in a separate account that segregates such
securities from those of any other persons, firms or
corporations, except for securities held in a Book-Entry
System. All such securities shall be held or disposed of
only upon Written Instructions of the Custodian or Fund
pursuant to the terms of this Agreement. PNC Bank shall
have no power or authority to assign, hypothecate, pledge
or otherwise dispose of any such securities or investment,
except upon the express terms of this Agreement and upon
Written Instructions, accompanied by a certified resolution
of the Fund's Board of Directors, authorizing the
transaction. In no case may any member of the Fund's Board
of Directors, or any officer, employee or agent of the Fund
withdraw any securities.
At PNC Bank's own expense and for its own convenience, PNC
Bank may enter into sub-custodian agreements with other
United States banks or trust companies to perform duties
described in this sub-section (c). Such
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bank or trust company shall have an aggregate capital, surplus and
undivided profits, according to its last published report, of at
least twenty million dollars ($20,000,000), and be a subsidiary or
affiliate of PNC Bank. In addition, such bank or trust company
must be qualified to act as custodian and agree to comply with
this Agreement and with the relevant provisions of the 1940 Act
and other applicable rules and regulations. Any such arrangement
will not be entered into without prior written consent of the
Fund.
PNC Bank shall remain responsible for the performance of all of its
duties as described in this Agreement and shall hold the Custodian and
the Fund harmless from its own acts or omissions, under the standards of
care provided for herein, or the acts and omissions of any sub-custodian
retained by PNC Bank under the terms of this sub-section (c).
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PNC Bank,
directly or through the use of the Book-Entry System, shall:
(i) deliver any securities held for the Fund against the
receipt of payment for the sale of such securities;
(ii) execute and deliver to such persons as may be
designated in such Oral Instructions or Written
Instructions, proxies, consents, authorizations, and any
other instruments whereby the authority of the Fund as
owner of any securities may be exercised;
(iii) deliver any securities to the issuer thereof, or
its agent, when such securities are called, redeemed,
retired or otherwise become payable; provided that, in any
such case, the cash or other consideration is to be
delivered to PNC Bank;
(iv) deliver any securities held for the Fund against receipt of
other securities or cash issued or paid in connection with
the liquidation, reorganization, refinancing, tender offer,
merger, consolidation or recapitalization of any
corporation, or the exercise of any conversion privilege;
(v) deliver any securities held for the Fund to any protective
committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
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Agreement such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to
evidence such delivery;
(vi) make such transfer or exchanges of the assets of the Fund
and take such other steps as shall be stated in said Oral
Instructions or Written Instructions to be for the purpose
of effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization
of the Fund;
(vii) release securities belonging to the Fund to any bank or
trust company for the purpose of a pledge or hypothecation
to secure any loan incurred by the Fund; provided, however,
that securities shall be released only upon payment to PNC
Bank of the monies borrowed, except that in cases where
additional collateral is required to secure a borrowing
already made subject to proper prior authorization, further
securities may be released for that purpose; and repay such
loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or
notes evidencing the loan;
(viii) release and deliver securities owned by the Fund in
connection with any repurchase agreement entered into on
behalf of the Fund, but only on receipt of payment
therefor; and pay out moneys of the Fund in connection with
such repurchase agreements, but only upon the delivery of
the securities;
(ix) release and deliver or exchange securities owned by the
Fund in connection with any conversion of such securities,
pursuant to their terms, into other securities;
(x) release and deliver securities owned by the Fund for the
purpose of redeeming in kind shares of the Fund upon
delivery thereof; and
(xi) release and deliver or exchange securities owned by the
Fund for other corporate purposes.
PNC Bank must also receive a certified resolution
describing the nature of the corporate purpose and the name
and address of the person(s) to whom delivery shall be made
when such action is pursuant to sub-paragraph (d)(xi).
(e) Use of Book-Entry System. The Fund shall deliver to PNC Bank
certified resolutions of the Fund's Board of Directors approving,
authorizing and instructing
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PNC Bank on a continuous basis, to deposit in the Book-Entry System all
securities belonging to the Fund eligible for deposit therein and to
utilize the Book-Entry System to the extent possible in connection with
settlements of purchases and sales of securities by the Fund, and
deliveries and returns of securities loaned, subject to repurchase
agreements or used as collateral in connection with borrowings. PNC Bank
shall continue to perform such duties until it receives Written
Instructions or Oral Instructions authorizing contrary actions.
PNC Bank shall administer the Book-Entry System as follows:
(i) With respect to securities of the Fund which are maintained in the
Book-Entry System, the records of PNC Bank shall identify by
Book-Entry or otherwise those securities belonging to the Fund.
PNC Bank shall furnish to the Custodian and Fund a detailed
statement of the Property held for the Fund under this Agreement
at least monthly and from time to time and upon written request.
(ii) Securities and any cash of the Fund deposited in the Book-Entry
System will at all times be segregated from any assets and cash
controlled by PNC Bank in other than a fiduciary or custodian
capacity but may be commingled with other assets held in such
capacities. PNC Bank and its sub-custodian, if any, will pay out
money only upon receipt of securities and will deliver securities
only upon the receipt of money.
(iii) All books and records maintained by PNC Bank which relate to the
Fund's participation in the Book-Entry System will at all times
during PNC Bank's regular business hours be open to the inspection
of Authorized Persons, and PNC Bank will furnish to the Custodian
and the Fund all information in respect of the services rendered
as it may require.
PNC Bank will also provide the Custodian and the Fund with such reports
on its own system of internal control as the Custodian and the Fund may
reasonably request from time to time.
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(f) Registration of Securities. All Securities held for the Fund which
are issued or issuable only in bearer form, except such securities
held in the Book-Entry System, shall be held by PNC Bank in bearer
form; all other securities held for the Fund may be registered in
the name of the Custodian on behalf of the Fund, PNC Bank, the
Book-Entry System, a sub-custodian, or any duly appointed nominees
of the Custodian, Fund, PNC Bank, Book-Entry System or
sub-custodian. The Custodian and the Fund reserves the right to
instruct PNC Bank as to the method of registration and safekeeping
of the securities of the Fund. The Fund agrees to furnish to PNC
Bank appropriate instruments to enable PNC Bank to hold or deliver
in proper form for transfer, or to register in the name of its
nominee or in the name of the Book-Entry System, any securities
which it may hold for the Accounts and which may from time to time
be registered in the name of the Fund.
(g) Voting and Other Action. Neither PNC Bank nor its nominee shall
vote any of the securities held pursuant to this Agreement by or
for the account of the Fund, except in accordance with Written
Instructions. PNC Bank, directly or through the use of the
Book-Entry System, shall execute in blank and promptly deliver all
notices, proxies and proxy soliciting materials to the registered
holder of such securities. If the registered holder is not the
Fund, then Written Instructions or Oral Instructions must
designate the person who owns such securities.
(h) Transactions Not Requiring Instructions. In the absence of
contrary Written Instructions, PNC Bank is authorized to take the
following actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the Fund, all
income,
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dividends, distributions, coupons, option premiums,
other payments and similar items, included or to be
included in the Property, and, in addition, promptly
advise the Fund of such receipt and credit such
income, as collected, to the Fund's account;
(B) endorse and deposit for collection, in the name of
the Fund, checks, drafts, or other orders for the
payment of money;
(C) receive and hold for the account of the Fund all
securities received as a distribution on the Fund's
securities as a result of a stock dividend, share
split-up or reorganization, recapitalization,
readjustment or other rearrangement or distribution
of rights or similar securities issued with respect
to any securities belonging to the Fund and held by
PNC Bank hereunder;
(D) present for payment and collect the amount payable
upon all securities which may mature or be called,
redeemed, or retired, or otherwise become payable on
the date such securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such
income and other payments and the endorsement for
collection of checks, drafts, and other negotiable
instruments.
(ii) Miscellaneous Transactions.
(A) deliver or cause to be delivered Property against
payment or other consideration or written receipt
therefor in the following cases:
(1) for examination by a broker or dealer selling
for the account of the Fund in accordance
with street delivery custom;
(2) for the exchange of interim receipts or
temporary securities for definitive
securities; and
(3) for transfer of securities into the name of
the Fund or PNC Bank or nominee of either, or
for exchange of securities for a different
number of bonds, certificates, or other
evidence, representing the same aggregate
face amount or number of units bearing the
same interest rate, maturity date and call
provisions, if any; provided that, in any
such case, the new securities are to be
delivered to PNC Bank.
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(B) Unless and until PNC Bank receives Oral Instructions
or Written Instructions to the contrary, PNC Bank
shall:
(1) pay all income items held by it which call
for payment upon presentation and hold the
cash received by it upon such payment for
the account of the Fund;
(2) collect interest and cash dividends
received, with notice to the Fund, to the
account of the Fund;
(3) hold for the account of the Fund all stock
dividends, rights and similar securities
issued with respect to any securities held
by PNC Bank; and
(4) execute as agent on behalf of the Fund all
necessary ownership certificates required by
the Internal Revenue Code or the Income Tax
Regulations of the United States Treasury
Department or under the laws of any state
now or hereafter in effect, inserting the
Fund's name on such certificate as the owner
of the securities covered thereby, to the
extent it may lawfully do so.
(i) Segregated Accounts.
(i) PNC Bank shall upon receipt of Written Instructions or Oral
Instructions establish and maintain a segregated accounts on
its records for and on behalf of the Fund. Such accounts may
be used to transfer cash and securities, including securities
in the Book-Entry System:
(A) for the purposes of compliance by the Fund with the
procedures required by a securities or option
exchange, providing such procedures comply with the
1940 Act and any releases of the SEC relating to the
maintenance of segregated accounts by registered
investment companies; and
(B) Upon receipt of Written Instructions, for other
proper corporate purposes.
(j) Purchases of Securities. PNC Bank shall settle purchased
securities upon receipt of Oral Instructions or Written Instructions
from the Fund or its investment advisers that specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
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(ii) the number of shares or the principal amount purchased and
accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Fund involved; and
(vii) the name of the person from whom or the broker through whom
the purchase was made. PNC Bank shall upon receipt of
securities purchased by or for the Fund pay out of the moneys
held for the account of the Fund the total amount payable to
the person from whom or the broker through whom the purchase
was made, provided that the same conforms to the total amount
payable as set forth in such Oral Instructions or Written
Instructions.
(k) Sales of Securities. PNC Bank shall settle sold securities upon receipt
of Oral Instructions or Written Instructions from the Fund that
specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(vi) the name of the broker through whom or the person to whom the
sale was made; and
(vii) the location to which the security must be delivered and
delivery deadline, if any.
PNC Bank shall deliver the securities upon receipt of the total amount payable
to the Fund upon such sale, provided that the total amount payable is the same
as was set forth in the
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Oral Instructions or Written Instructions. Subject to the foregoing, PNC Bank
may accept payment in such form as shall be satisfactory to it, and may deliver
securities and arrange for payment in accordance with the customs prevailing
among dealers in securities.
(l) Reports; Proxy Materials.
(i) PNC Bank shall furnish to the Custodian and the Fund the following
reports:
(A) such periodic and special reports as the Custodian and/or
the Fund may reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of the Fund, listing securities
belonging to the Fund with the adjusted average cost of
each issue and the market value at the end of such month
and stating the cash account of the Fund including
disbursements;
(C) the reports required to be furnished to the Fund pursuant
to Rule 17f-4; and
(D) such other information as may be agreed upon from time to
time between the Custodian or the Fund and PNC Bank.
(ii) PNC Bank shall transmit promptly to the Fund any proxy statement,
proxy material, notice of a call or conversion or similar
communication received by it as sub-custodian of the Property. PNC
Bank shall be under no other obligation to inform the Fund as to
such actions or events.
(m) Collections. All collections of monies or other property in
respect, or which are to become part, of the Property (but not the
safekeeping thereof upon receipt by PNC Bank) shall be at the sole risk
of the Fund. If payment is not received by PNC Bank within a reasonable
time after proper demands have been made, PNC Bank shall notify the Fund
in writing, including copies of all demand
20
letters, any written responses, memoranda of all oral responses
and shall await instructions from the Fund. PNC Bank shall not be
obliged to take legal action for collection unless and until
reasonably indemnified to its satisfaction. PNC Bank shall also
notify the Custodian and the Fund as soon as reasonably
practicable whenever income due on securities is not collected in
due course and shall provide the Custodian and the Fund with
periodic status reports of such income collected after a
reasonable time.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated
by the Custodian, the Fund or PNC Bank on 120 days' prior written notice
to the other parties.
17. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex
or facsimile sending device. Notice shall be addressed (a) if to PNC Bank
at Airport Business Center, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, (b) if to the Custodian, at Airport
Business Center, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇
▇▇▇▇▇▇▇▇ (c) if to the Fund at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attn: President or (d) 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 five 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.
21
19. AMENDMENTS. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
20. DELEGATION; ASSIGNMENT. PNC Bank may assign its rights and delegate its
duties hereunder to any majority-owned direct or indirect subsidiary of
PNC Bank, or PNC Bank Corp., provided that (i) PNC Bank receives the
Fund's prior written consent to such assignment or delegation; (ii) the
assignee or delegate agrees to comply with this Agreement and with the
relevant provisions of the 1940 Act and other applicable law; and (iii)
PNC Bank and such assignee or delegate promptly provide such information
as the Fund may reasonably request, and respond to such questions as the
Fund may reasonably ask, relative to the assignment or delegation
(including, without limitation, the capabilities of the assignee or
delegate). In the event of such delegation, PNC Bank shall remain liable
under this Agreement for the acts of its 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 shall be deemed to constitute a
separate Agreement between each Fund, PNC Bank and PFPC Trust, as
if each Fund had executed a separate Agreement naming only itself,
PNC Bank and PFPC Trust as
22
parties. No Fund shall have any liability under this Agreement for the
obligations of any other Fund.
In the case of each Fund that is a series of an investment company
organized as a Massachusetts business trust, the declarations of trust
for each such trust refer to the trustees collectively as trustees and
not as individuals personally, and the declarations of trust provide that
no shareholder, trustee, officer, employee or agent of the trust shall be
subject to claims against or obligations of the trust to any extent
whatsoever, but that the trust estate only shall be liable.
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 deemed to be a contract made in
Pennsylvania and governed by Pennsylvania law, 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.
23
(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 TRUST COMPANY
By:
------------------------
Title:
---------------------
PNC BANK, NATIONAL ASSOCIATION
By:
------------------------
Title:
---------------------
24
WARBURG, ▇▇▇▇▇▇ BALANCED FUND, INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ CAPITAL APPRECIATION FUND
By:
------------------------
Title:
---------------------
WARBURG, PINCUS CASH RESERVE FUND, INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ EMERGING GROWTH FUND, INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ EMERGING MARKETS FUND, INC.
By:
------------------------
Title:
---------------------
25
WARBURG, ▇▇▇▇▇▇ FIXED INCOME FUND
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ GLOBAL FIXED INCOME FUND,
INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ GLOBAL POST-VENTURE CAPITAL
FUND, INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ GROWTH & INCOME FUND, INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ HEALTH SCIENCES FUND, INC.
By:
------------------------
Title:
---------------------
26
WARBURG, ▇▇▇▇▇▇ INSTITUTIONAL FUND, INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ INTERMEDIATE MATURITY
GOVERNMENT FUND, INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ INTERNATIONAL EQUITY FUND,
INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ INTERNATIONAL SMALL COMPANY
FUND, INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ JAPAN GROWTH FUND, INC.
By:
------------------------
27
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ JAPAN SMALL COMPANY FUND,
INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ MAJOR FOREIGN MARKETS FUND,
INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ NEW YORK INTERMEDIATE
MUNICPAL FUND
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ NEW YORK TAX EXEMPT FUND,
INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ POST-VENTURE CAPITAL FUND,
INC.
By:
------------------------
28
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ SMALL COMPANY GROWTH FUND,
INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ SMALL COMPANY VALUE FUND,
INC.
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ TRUST
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST II
By:
------------------------
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ WORLDPERKS MONEY MARKET
FUND, INC.
By:
------------------------
29
Title:
---------------------
WARBURG, ▇▇▇▇▇▇ WORLDPERKS TAX FREE MONEY
MARKET FUND, INC.
By:
------------------------
Title:
---------------------
30
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
---------------------------- -------------------------------
---------------------------- -------------------------------
---------------------------- -------------------------------
---------------------------- -------------------------------
---------------------------- -------------------------------
---------------------------- -------------------------------
31
SCHEDULE A
- Warburg, ▇▇▇▇▇▇ Balanced Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Capital Appreciation Fund
- Warburg, Pincus Cash Reserve Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Emerging Growth Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Emerging Markets Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Fixed Income Fund
- Warburg, ▇▇▇▇▇▇ Global Fixed Income Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Global Post-Venture Capital Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Growth & Income Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Health Sciences Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Institutional Fund, Inc.:
Emerging Markets Portfolio
International Equity Portfolio
Japan Growth Portfolio
Post-Venture Capital Portfolio
Small Company Growth Portfolio
Small Company Value Portfolio
Value Portfolio
- Warburg, ▇▇▇▇▇▇ Intermediate Maturity Government Fund, Inc.
- Warburg, ▇▇▇▇▇▇ International Equity Fund, Inc.
- Warburg, ▇▇▇▇▇▇ International Small Company Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Japan Growth Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Japan Small Company Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Major Foreign Markets Fund, Inc.
- Warburg, ▇▇▇▇▇▇ New York Intermediate Municipal Fund
- Warburg, ▇▇▇▇▇▇ New York Tax Exempt Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Post-Venture Capital Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Small Company Growth Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Small Company Value Fund, Inc.
- Warburg, ▇▇▇▇▇▇ Trust:
Emerging Markets Portfolio
Growth & Income Portfolio
International Equity Portfolio
Small Company Growth Portfolio
- Warburg, ▇▇▇▇▇▇ Trust II:
Fixed Income Portfolio
Global Fixed Income Portfolio
- Warburg, ▇▇▇▇▇▇ WorldPerks Money Market Fund, Inc.
- Warburg, ▇▇▇▇▇▇ WorldPerks Tax Free Money Market Fund, Inc.