<PAGE> 1
As filed with the U.S. Securities and Exchange Commission
on August 14, 1998
Securities Act File No. 333-60687
Investment Company Act File No. 811-08925
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 [x]
Pre-Effective Amendment No. 1 [x]
Post-Effective Amendment No.__ [ ]
and/or
REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT
OF 1940 [x]
Amendment No. 1 [x]
(Check appropriate box or boxes)
Warburg, Pincus Long-Short Market Neutral Fund, Inc.
(Exact Name of Registrant as Specified in Charter)
466 Lexington Avenue
New York, New York 10017-3147
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, including Area Code: (212) 878-0600
Mr. Eugene P. Grace
Warburg, Pincus Long-Short Market Neutral Fund, Inc.
466 Lexington Avenue
New York, New York 10017-3147
(Name and Address of Agent for Service)
Copy to:
Rose F. DiMartino, Esq.
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
<PAGE> 2
Approximate Date of Proposed Public Offering: As soon as practicable after the
effective date of this Registration Statement.
Title of Securities Being Registered: Common Stock, $.001 par value
per share.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended (the "1933 Act"), or
until the Registration Statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
<PAGE> 3
WARBURG, PINCUS LONG-SHORT MARKET NEUTRAL FUND, INC.
FORM N-1A
CROSS REFERENCE SHEET
<TABLE>
<CAPTION>
Part A
Item No. Prospectus Heading
- -------- ------------------
<S> <C> <C>
1. Cover Page.................................................... Cover Page
2. Synopsis...................................................... The Funds' Expenses
3. Condensed Financial Information............................... Not applicable
4. General Description of
Registrant.................................................. Cover Page; Investment Objectives and
Policies; Risk Factors and Special
Considerations and Certain Investment
Strategies; Investment Guidelines;
General Information
5. Management of the Fund........................................ Management of the Funds
6. Capital Stock and Other
Securities.................................................. General Information
7. Purchase of Securities Being
Offered..................................................... How to Open an Account; How to
Purchase Shares; Management of the
Funds; Net Asset Value
8. Redemption or Repurchase...................................... How to Redeem and Exchange Shares
9. Pending Legal Proceedings..................................... Not applicable
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Part B
Item No.
- --------
<S> <C> <C>
10. Cover Page.................................................... Cover Page
11. Table of Contents............................................. Contents
12. General Information and History............................... Directors and Officers
13. Investment Objectives
and Policies................................................ Common Investment Objectives and
Policies
14. Management of the Registrant.................................. Directors and Officers
15. Control Persons and Principal
Holders of Securities....................................... Directors and Officers; See
Prospectus-- "Management of the Funds"
16. Investment Advisory and
Other Services.............................................. Investment Advisory and Servicing
Arrangements; See Prospectus--
"Management of the Funds"
17. Brokerage Allocation
and Other Practices......................................... Common Investment Policies --
Portfolio Transactions; See
Prospectus-- "Portfolio Transactions
and Turnover Rate"
18. Capital Stock and Other
Securities.................................................. Additional Information Concerning the
Company Shares; See
Prospectus-"General Information"
19. Purchase, Redemption and Pricing
of Securities Being Offered................................. Purchase and Redemption Information;
See
</TABLE>
<PAGE> 5
<TABLE>
<S> <C> <C>
Prospectus-"How to Open an
Account," "How to Purchase Shares,"
"How to Redeem and Exchange Shares,"
"Net Asset Value"
20. Tax Status.................................................... Taxes; See Prospectus--"Dividends,
Distributions and Taxes"
21. Underwriters.................................................. Common Investment Policies-- Portfolio
Transactions; See Prospectus--
"Management of the Funds"
22. Calculation of Performance Data............................... Performance and Yield Information
23. Financial Statements.......................................... Financial Statements; Report of
PricewaterhouseCoopers LLP,
Independent Accountants
</TABLE>
Part C
Information required to be included in Part C is set forth after the appropriate
item, so numbered, in Part C to this Registration Statement.
<PAGE> 6
The Prospectuses and Statements of Additional Information are incorporated by
reference to the original registration statement filed on August 5, 1998.
<PAGE> 7
PART C
OTHER INFORMATION
Item 24. Financial Statements and Exhibits
(a) Financial Statements --
(1) Financial Statements included in Part B. 1
(a) Report of PricewaterhouseCoopers LLP, Independent
Accountants 1
(b) Statement of Net Assets and Liabilities 1
(b) Exhibits:
Exhibit No. Description of Exhibit
1 Articles of Incorporation. 2
2 By-Laws. 2
3 Not applicable.
4 Registrant's Forms of Stock Certificates.
5 Form of Investment Advisory Agreement. 3
6 Form of Distribution Agreement. 3
7 Not applicable.
8(a) Custodian Agreement with Custodian Trust Company.
9(a) Transfer Agency and Service Agreement. 3
(b) Form of Co-Administration Agreement with Counsellors Funds
Service, Inc. 3
(c) Form of Co-Administration Agreement with PFPC Inc. 3
10(a) Opinion and Consent of Willkie Farr & Gallagher, counsel to
the Fund.
(b) Opinion and Consent of Venable, Baetjer and Howard, LLP,
Maryland counsel to the Fund.
11 Not applicable.
12 Not applicable.
- -----------
1 To be filed by amendment.
2 Incorporated by reference to Registrant's Registration Statement on Form N-1A
filed on August 5, 1998 (Securities Act File No. 333-60687).
3 Incorporated by reference; material provisions of this exhibit substantially
similar to those of the corresponding exhibit in Pre-Effective Amendment No.
1 to the Registration Statement of Form N-1A of Warburg, Pincus Emerging
Markets II Fund, Inc. filed on August 14, 1998 (Securities Act file No.
333-60677).
<PAGE> 8
13 Form of Purchase Agreement. 3
14 Not applicable
15(a) Form of Shareholder Servicing and Distribution Plan. 3
(b) Form of Distribution Plan. 3
16 Not applicable.
17 Not applicable
18 Form of 18f-3 Plan. 3
Item 25. Persons Controlled by or Under Common Control with Registrant
From time to time, Warburg Pincus Asset Management, Inc. ("Warburg")
may be deemed to control the Fund and other registered investment companies it
advises through it beneficial ownership of more than 25% of the relevant fund's
shares on behalf of discretionary advisory clients. Warburg has seven
wholly-owned subsidiaries: Counsellors Securities, Inc., a New York corporation;
Counsellors Funds Service, Inc., a Delaware corporation; Counsellors Agency
Inc., a New York corporation; Warburg, Pincus Investments International
(Bermuda), Ltd., a Bermuda corporation; Warburg, Pincus Asset Management
International, Inc. a Delaware corporation; Warburg Pincus Asset Management
(Japan), Inc., a Japanese corporation; and Warburg Pincus Asset Management
(Dublin) Limited, an Irish corporation.
Item 26. Number of Holders of Securities
It is anticipated that Warburg will hold all Registrant's shares of
common stock, par value $.001 per share, on the date Registrant's Registration
Statement becomes effective.
Item 27. Indemnification
Registrant, officers and directors of Warburg, of Counsellors
Securities Inc. ("Counsellors Securities") and of Registrant are covered by
insurance policies indemnifying them for liability incurred in connection with
the operation of Registrant. Discussion of this coverage is incorporated by
reference to Item 27 of Part C of the Fund's initial Registration Statement on
Form N-1A filed August 5, 1998.
<PAGE> 9
Item 28. Business and Other Connections of Investment Adviser
BEA Associates ("BEA") acts as investment adviser to the Registrant.
BEA renders investment advice to a wide variety of individual and institutional
clients. The list required by this Item 28 of officers and directors of BEA,
together with information as to their other business, profession, vocation or
employment of a substantial nature during the past
<PAGE> 10
two years, is incorporated by reference to Schedules A and D of Form ADV filed
by BEA (SEC File No. 801-37170).
Item 29. Principal Underwriter
(a) Counsellors Securities will act as distributor for
Registrant, as well as for Warburg Pincus Balanced Fund; Warburg Pincus Capital
Appreciation Fund; Warburg Pincus Cash Reserve Fund; Warburg Pincus Central and
Eastern Europe Fund; Warburg Pincus Emerging Growth Fund; Warburg Pincus
Emerging Markets Fund; Warburg Pincus Emerging Markets II Fund; Warburg Pincus
European Equity Fund; Warburg Pincus Fixed Income Fund; Warburg Pincus Global
Fixed Income Fund; Warburg Pincus Global Post-Venture Capital Fund; Warburg
Pincus Global Telecommunications Fund; Warburg Pincus Growth & Income Fund;
Warburg Pincus Health Sciences Fund; Warburg Pincus High Yield Fund; Warburg
Pincus Institutional Fund; Warburg Pincus Intermediate Maturity Government Fund;
Warburg Pincus International Equity Fund; Warburg Pincus International Growth
Fund; Warburg Pincus International Small Company Fund; Warburg Pincus Japan
Growth Fund; Warburg Pincus Japan OTC Fund; Warburg Pincus Long-Short Equity
Fund; Warburg Pincus Long-Short Market Neutral Fund; Warburg Pincus Major
Foreign Markets Fund; Warburg Pincus Money Market Fund; Warburg Pincus Municipal
Bond Fund; Warburg Pincus New York Intermediate Municipal Fund; Warburg Pincus
New York Tax Exempt Fund; Warburg Pincus Post-Venture Capital Fund; Warburg
Pincus Select Economic Value Equity Fund; Warburg Pincus Small Company Growth
Fund; Warburg Pincus Small Company Value Fund; Warburg Pincus Strategic Global
Fixed Income Fund; Warburg Pincus Strategic Value Fund; Warburg Pincus Tax Free
Money Market Fund; Warburg Pincus Trust; Warburg Pincus Trust II; Warburg Pincus
U.S. Core Fixed Income Fund and Warburg Pincus U.S. Core Equity Fund.
(b) For information relating to each director, officer or
partner of Counsellors Securities, reference is made to Form BD (SEC File No.
8-32482) filed by Counsellors Securities under the Securities Exchange Act of
1934.
(c) None.
Item 30. Location of Accounts and Records
(1) Warburg, Pincus Long-Short Market Neutral
Fund, Inc.
466 Lexington Avenue
New York, New York 10017-3147
(Fund's Articles of Incorporation, By-Laws and minute books)
(2) BEA Associates
One Citicorp Center
153 East 53rd Street
New York, New York 10022
<PAGE> 11
(records relating to its functions as investment adviser)
(3) PFPC Inc.
400 Bellevue Parkway
Wilmington, Delaware 19809
(records relating to its functions as co-administrator)
(4) Counsellors Funds Service, Inc.
466 Lexington Avenue
New York, New York 10017-3147
(records relating to its functions as co-administrator)
(5) State Street Bank and Trust Company
225 Franklin Street
Boston, Massachusetts 02110
(records relating to its functions as transfer agent and
dividend disbursing agent)
(7) Boston Financial Data Services, Inc.
2 Heritage Drive
North Quincy, Massachusetts 02171
(records relating to its functions as transfer agent and
dividend disbursing agent)
(8) Custodial Trust Company
101 Carnegie Center
Princeton, NJ 08540
(records relating to its functions as custodian)
(9) Counsellors Securities Inc.
466 Lexington Avenue
New York, New York 10017-3147
(records relating to its functions as distributor)
Item 31. Management Services
Not applicable.
Item 32. Undertakings.
(a) Registrant hereby undertakes to furnish each person to whom a
prospectus is delivered with a copy of the latest annual report to shareholders
for the Fund, upon request and without charge.
(b) Registrant hereby undertakes to call a meeting of its shareholders
for the purpose of voting upon the question of removal of a director or
directors of Registrant when requested in writing to do so by the holders of at
least 10% of Registrant's outstanding shares. Registrant undertakes further, in
connection with the meeting, to comply with the provisions of
<PAGE> 12
Section 16(c) of the 1940 Act relating to communications with the shareholders
of certain common-law trusts.
(c) Registrant hereby undertakes not to sell its shares to the public,
except in connection with the reorganization, until the Fund files a
post-effective amendment to its registration statement including audited
financial statements.
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
and the Investment Company Act of 1940, as amended, the Registrant has duly
caused this Amendment to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of New York and the
State of New York, on the 14th day of August, 1998.
WARBURG, PINCUS LONG-SHORT MARKET NEUTRAL
FUND, INC.
By: /s/ Eugene L. Podsiadlo
-----------------------
Eugene L. Podsiadlo
President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment has been signed below by the following persons in the capacities
and on the date indicated:
Signature Title Date
- --------- ----- ----
/s/John L. Furth Chairman of the Board of August 14, 1998
- ------------------------- Directors
John L. Furth
/s/Eugene L. Podsiadlo President August 14, 1998
- -------------------------
Eugene L. Podsiadlo
/s/Howard Conroy Vice President and Chief August 14, 1998
- ------------------------- Financial Officer
Howard Conroy
/s/Daniel S. Madden Treasurer and Chief August 14, 1998
- ------------------------- Accounting Officer
Daniel S. Madden
/s/Richard N. Cooper Director August 14, 1998
- -------------------------
Richard N. Cooper
/s/Jack W. Fritz Director August 14, 1998
- -------------------------
Jack W. Fritz
/s/Jeffrey E. Garten Director August 14, 1998
- -------------------------
Jeffrey E. Garten
/s/Arnold M. Reichman Director August 14, 1998
- -------------------------
Arnold M. Reichman
/s/Alexander B. Trowbridge Director August 14, 1998
- -------------------------
Alexander B. Trowbridge
<PAGE> 14
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
4 Registrant's Forms of Stock Certificates.
8(a) Custodian Agreement with Custodian Trust Company.
10(a) Opinion and Consent of Willkie Farr & Gallagher,
counsel to the Fund.
10(b) Opinion and Consent of Venable, Baetjer and
Howard, LLP, Maryland counsel to the Fund.
<PAGE> 1
Exhibit 4
<PAGE> 2
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
WARBURG, PINCUS LONG-SHORT MARKET NEUTRAL FUND, INC.
THE CORPORATION IS AUTHORIZED TO ISSUE THREE BILLION SHARES, PAR VALUE $.001.
SPECIMEN
<PAGE> 3
The Corporation is authorized to issue three or more classes of stock. The
Corporation will furnish to any stockholder on request and without charge a full
statement of the designation and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications and
terms and conditions of redemption of the stock of each class which the
Corporation is authorized to issue and, if the Corporation is authorized to
issue any preferred or special class in series, of the differences in the
relative rights and preferences between the shares of each series to the extent
they have been set and the authority of the Board of Directors to set the
relative rights and preferences of subsequent series.
<PAGE> 4
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
WARBURG, PINCUS LONG-SHORT MARKET NEUTRAL FUND, INC.
THE CORPORATION IS AUTHORIZED TO ISSUE ONE BILLION SHARES, PAR VALUE $.001.
DESIGNATED INSTITUTIONAL SHARES
SPECIMEN
<PAGE> 5
The Corporation is authorized to issue three or more classes of stock. The
Corporation will furnish to any stockholder on request and without charge a full
statement of the designation and any preferences, conversion and other rights,
voting powers, restrictions, limitations as to dividends, qualifications and
terms and conditions of redemption of the stock of each class which the
Corporation is authorized to issue and, if the Corporation is authorized to
issue any preferred or special class in series, of the differences in the
relative rights and preferences between the shares of each series to the extent
they have been set and the authority of the Board of Directors to set the
relative rights and preferences of subsequent series.
<PAGE> 1
Exhibit 8(a)
<PAGE> 2
CUSTODY AGREEMENT
AGREEMENT, dated as of June 24, 1998 by and between THE RBB FUND, INC.
(the "Company"), a corporation organized and existing under the laws of the
State of Maryland, acting with respect to and on behalf of each of the series of
the Company that are identified on Exhibit A hereto (each, a "Portfolio"), and
CUSTODIAL TRUST COMPANY, a bank organized and existing under the laws of the
State of New Jersey (the "Custodian").
WHEREAS, the Company desires that the securities, funds and other
assets of the Portfolios be held and administered by Custodian pursuant to this
Agreement;
WHEREAS, each Portfolio is an investment portfolio represented by a
series of Shares constituting part of the capital stock of the Company, an
open-end management investment company registered under the 1940 Act;
WHEREAS, Custodian represents that it is a bank having the
qualifications prescribed in the 1940 Act to act as custodian for management
investment companies registered under the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made,
the Company and Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following terms, unless the
context otherwise requires, shall mean:
<PAGE> 3
1.1 "AUTHORIZED PERSON" means any person authorized by resolution of
the Board of Directors to give Oral Instructions and Written Instructions on
behalf of the Company and identified, by name or by office, in Exhibit B hereto
or any person designated to do so by an investment adviser of any Portfolio who
is named by the Company in Exhibit C hereto.
1.2 "BOARD OF DIRECTORS TRUSTEES" means the Board of Directors of the
Company or, when permitted under the 1940 Act, the Executive Committee thereof,
if any.
1.3 "BOOK-ENTRY SYSTEM" means a book-entry system maintained by a
Federal Reserve Bank for securities of the United States government or of
agencies or instrumentalities thereof (including government-sponsored
enterprises).
1.4 "BUSINESS DAY" means any day on which banks in the State of New
Jersey and New York are open for business.
1.5 "CUSTODY ACCOUNT" means, with respect to a Portfolio, the account
in the name of such Portfolio, which is provided for in Section 3.2 below.
1.6 "DOMESTIC SECURITIES DEPOSITORY" means The Depository Trust Company
and any other clearing agency registered with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, which acts as a securities
depository.
1.7 "ELIGIBLE DOMESTIC BANK" means a bank as defined in the 1940 Act.
1.8 "ELIGIBLE FOREIGN CUSTODIAN" means any banking institution, trust
company or other entity (including any Foreign Securities Depository) organized
under the laws of a country other than the United States which is eligible under
the 1940 Act to act
-2-
<PAGE> 4
as a custodian for securities and other assets of a Portfolio held outside the
United States.
1.9 "FOREIGN CUSTODY MANAGER" has the same meaning as in the 1940 Act.
1.10 "FOREIGN SECURITIES DEPOSITORY" means a foreign securities
depository or clearing agency as defined in the 1940 Act.
1.11 "MASTER REPURCHASE AGREEMENT" means the Master Repurchase
Agreement of even date herewith between the Company and Bear, Stearns & Co. Inc.
as it may from time to time be amended.
1.12 "MASTER SECURITIES LOAN AGREEMENT" means the Master Securities
Loan Agreement of even date herewith between the Company and Bear, Stearns
Securities Corp. as it may from time to time be amended.
1.13 "1940 ACT" means the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder.
1.14 "ORAL INSTRUCTIONS" means instructions orally transmitted to and
accepted by Custodian which are (a) reasonably believed by Custodian to have
been given by an Authorized Person, (b) recorded and kept among the records of
Custodian made in the ordinary course of business, and (c) completed in
accordance with Custodian's requirements from time to time as to content of
instructions and their manner and timeliness of delivery by the Company.
1.15 "PROPER INSTRUCTIONS" means Oral Instructions or Written
Instructions. Proper Instructions may be continuing Written Instructions when
deemed appropriate by the Company and Custodian.
-3-
<PAGE> 5
1.16 "SECURITIES DEPOSITORY" means any Domestic Securities Depository
or Foreign Securities Depository.
1.17 "SHARES" means, with respect to a Portfolio, those shares in a
series or class of the capital stock of the Company that represent interests in
such Portfolio.
1.18 "WRITTEN INSTRUCTIONS" means written communications received by
Custodian that are (a) reasonably believed by Custodian to have been signed or
sent by an Authorized Person, (b) sent or transmitted by letter, facsimile,
central processing unit connection, on-line terminal or magnetic tape, and (c)
completed in accordance with Custodian's requirements from time to time as to
content of instructions and their manner and timeliness of delivery by the
Company.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 APPOINTMENT. The Company hereby appoints Custodian as custodian of
all such securities, funds and other assets of each Portfolio as may be
acceptable to Custodian and from time to time delivered to it by the Company or
others for the account of such Portfolio.
2.2 ACCEPTANCE. Custodian hereby accepts appointment as such custodian
and agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF SECURITIES, FUNDS AND OTHER ASSETS
3.1 SEGREGATION. All securities and non-cash property of a Portfolio in
the possession of Custodian (other than securities maintained by Custodian with
a sub-custodian appointed pursuant to this Agreement or in a Securities
Depository or Book-Entry System)
-4-
<PAGE> 6
shall be physically segregated from other such securities and non-cash property
in the possession of Custodian. All cash, securities and other non-cash property
of a Portfolio shall be identified as belonging to such Portfolio.
3.2 CUSTODY ACCOUNT. (a) Custodian shall open and maintain in its trust
department a custody account in the name of each Portfolio, subject only to
draft or order of Custodian, in which Custodian shall enter and carry all
securities, funds and other assets of such Portfolio which are delivered to
Custodian and accepted by it.
(b) If, with respect to any Portfolio, Custodian at any time fails to
receive any of the documents referred to in Section 3.10(a) below, then, until
such time as it receives such document, it shall not be obligated to receive any
securities into the Custody Account of such Portfolio and shall be entitled to
return to such Portfolio any securities that it is holding in such Custody
Account.
3.3 SECURITIES IN PHYSICAL FORM. Custodian may, but shall not be
obligated to, hold securities that may be held only in physical form.
3.4 DISCLOSURE TO ISSUERS OF SECURITIES. Custodian is authorized to
disclose the Company's and any Portfolio's names and addresses, and the
securities positions in such Portfolio's Custody Account, to the issuers of such
securities when requested by them to do so.
3.5 EMPLOYMENT OF DOMESTIC SUB-CUSTODIANS. At any time and from time to
time, Custodian in its discretion may appoint and employ, and may also cease to
employ, any Eligible Domestic Bank as sub-custodian to hold securities and other
assets of a Portfolio that are maintained in the United States and to carry out
such other provisions of this Agreement as it may determine, provided,
-5-
<PAGE> 7
however, that the employment of any such sub-custodian has been approved by the
Company. The employment of any such sub-custodian shall be at Custodian's
expense and shall not relieve Custodian of any of its obligations or liabilities
under this Agreement.
3.6 EMPLOYMENT OF FOREIGN SUB-CUSTODIANS. (a) At any time and from time
to time, Custodian in its discretion may appoint and employ in accordance with
the 1940 Act, and may also cease to employ, (i) any overseas branch of any
Eligible Domestic Bank, or (ii) any Eligible Foreign Custodian selected by the
Foreign Custody Manager, in each case as a foreign sub-custodian for securities
and other assets of a Portfolio that are maintained outside the United States,
provided, however, that the employment of any such overseas branch has been
approved by the Company and, provided further that, in the case of any such
Eligible Foreign Custodian, the Foreign Custody Manager has approved, in
writing, the agreement (and/or, in the case of a Foreign Securities Depository,
the rules and/or established practices and procedures thereof) pursuant to which
Custodian employs such Eligible Foreign Custodian.
(b) Set forth on Exhibit D hereto, with respect to each Portfolio, are
the foreign sub-custodians (including Foreign Securities Depositories) that
Custodian may employ pursuant to Section 3.6(a) above. Exhibit D shall be
revised from time to time as foreign sub-custodians are added or deleted.
(c) If the Company proposes to have a Portfolio make an investment
which is to be held in a country in which Custodian does not have appropriate
arrangements in place with a foreign sub-custodian selected by the Foreign
Custody Manager, then the Company shall inform Custodian sufficiently in advance
of such investment to allow Custodian to make such arrangements.
(d) Notwithstanding anything to the contrary in Section 8.1 below,
Custodian shall have no greater liability to any Portfolio or the Company for
the actions or omissions of any foreign
-6-
<PAGE> 8
sub-custodian appointed pursuant to this Agreement than any such foreign
sub-custodian has to Custodian, and Custodian shall not be required to discharge
any such liability which may be imposed on it unless and until such foreign
sub-custodian has effectively indemnified Custodian against it or has otherwise
discharged its liability to Custodian in full.
(e) Upon the request of the Foreign Custody Manager, Custodian shall
furnish to the Foreign Custody Manager information concerning all foreign
sub-custodians employed pursuant to this Agreement which shall be similar in
kind and scope to any such information that may have been furnished to the
Foreign Custody Manager in connection with the initial approval by the Foreign
Custody Manager of the agreements pursuant to which Custodian employs such
foreign sub-custodians or as otherwise required by the 1940 Act.
3.7 EMPLOYMENT OF OTHER AGENTS. Custodian may employ other suitable
agents, which may include affiliates of Custodian such as Bear, Stearns & Co.
Inc. ("Bear Stearns") or Bear, Stearns Securities Corp.("BS Securities"), both
of which are securities broker-dealers, provided, however, that Custodian shall
not employ (a) BS Securities to hold any collateral pledged by BS Securities
under the Master Securities Loan Agreement or any other securities loan
agreement between the Company and BS Securities, whether now or hereafter in
effect, or (b) Bear Stearns to hold any securities purchased from Bear Stearns
under the Master Repurchase Agreement or any other repurchase agreement between
the Company and Bear Stearns, whether now or hereafter in effect. The
appointment of any agent pursuant to this Section 3.7 shall not relieve
Custodian of any of its obligations or liabilities under this Agreement.
3.8 BANK ACCOUNTS. In its discretion and from time to time Custodian
may open and maintain one or more demand deposit accounts with any Eligible
Domestic Bank (any such accounts to be in the name of Custodian and subject only
to its draft or order), provided, however, that the opening and maintenance of
any such
-7-
<PAGE> 9
account shall be at Custodian's expense and shall not relieve Custodian of any
of its obligations or liabilities under this Agreement.
3.9 DELIVERY OF ASSETS TO CUSTODIAN. Provided they are acceptable to
Custodian, the Company shall deliver to Custodian the securities, funds and
other assets of each Portfolio, including (a) payments of income, payments of
principal and capital distributions received by such Portfolio with respect to
securities, funds or other assets owned by such Portfolio at any time during the
term of this Agreement, and (b) funds received by such Portfolio for the
issuance, at any time during such term, of Shares of such Portfolio. Custodian
shall not be under any duty or obligation to require the Company to deliver to
it any securities or other assets owned by a Portfolio and shall have no
responsibility or liability for or on account of securities or other assets not
so delivered.
3.10 DOMESTIC SECURITIES DEPOSITORIES AND BOOK-ENTRY SYSTEMS. Custodian
and any sub-custodian appointed pursuant to Section 3.5 above may deposit and/or
maintain securities of any Portfolio in a Domestic Securities Depository or in a
Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of securities of a Portfolio in any Domestic
Securities Depository or Book-Entry System, the Company shall deliver to
Custodian a resolution of the Board of Directors, certified by an officer of the
Company, authorizing and instructing Custodian (and any sub-custodian appointed
pursuant to Section 3.5 above) on an on-going basis to deposit in such Domestic
Securities Depository or Book-Entry System all securities eligible for deposit
therein and to make use of such Domestic Securities Depository or Book-Entry
System to the extent possible and practical in connection with the performance
of its obligations hereunder (or under the applicable sub-custody agreement in
the case of such sub-custodian), including, without limitation, in connection
with settlements of purchases and sales of securities, loans of
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securities, and deliveries and returns of collateral consisting of securities.
(b) Securities of a Portfolio kept in a Book-Entry System or Domestic
Securities Depository shall be kept in an account ("Depository Account") of
Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) in
such Book-Entry System or Domestic Securities Depository which includes only
assets held by Custodian (or such sub-custodian) as a fiduciary, custodian or
otherwise for customers.
(c) The records of Custodian with respect to securities of a Portfolio
that are maintained in a Book-Entry System or Domestic Securities Depository
shall at all times identify such securities as belonging to such Portfolio.
(d) If securities purchased by a Portfolio are to be held in a
Book-Entry System or Domestic Securities Depository, Custodian (or any
sub-custodian appointed pursuant to Section 3.5 above) shall pay for such
securities upon (i) receipt of advice from the Book-Entry System or Domestic
Securities Depository that such securities have been transferred to the
Depository Account, and (ii) the making of an entry on the records of Custodian
(or of such sub-custodian) to reflect such payment and transfer for the account
of such Portfolio. If securities sold by a Portfolio are held in a Book-Entry
System or Domestic Securities Depository, Custodian (or such sub-custodian)
shall transfer such securities upon (A) receipt of advice from the Book-Entry
System or Domestic Securities Depository that payment for such securities has
been transferred to the Depository Account, and (B) the making of an entry on
the records of Custodian (or of such sub-custodian) to reflect such transfer and
payment for the account of such Portfolio.
(e) Custodian shall provide the Company with copies of any report
obtained by Custodian (or by any sub-custodian appointed pursuant to Section 3.5
above) from a Book-Entry System or Domestic Securities Depository in which
securities of a Portfolio are kept
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on the internal accounting controls and procedures for safeguarding securities
deposited in such Book-Entry System or Domestic Securities Depository.
(f) At its election, the Company shall be subrogated to the rights of
Custodian (or of any sub-custodian appointed pursuant to Section 3.5 above) with
respect to any claim against a Book-Entry System or Domestic Securities
Depository or any other person for any loss or damage to a Portfolio arising
from the use of such Book-Entry System or Domestic Securities Depository, if and
to the extent that such Portfolio has not been made whole for any such loss or
damage.
3.11 RELATIONSHIP WITH SECURITIES DEPOSITORIES. No Book-Entry System,
Securities Depository, or other securities depository or clearing agency
(whether foreign or domestic) which it is or may become standard market practice
to use for the comparison and settlement of trades in securities shall be an
agent or sub-contractor of Custodian for purposes of Section 3.7 above or
otherwise.
3.12 PAYMENTS FROM CUSTODY ACCOUNT. Upon receipt of Proper Instructions
with respect to a Portfolio but subject to its right to foreclose upon and
liquidate collateral pledged to it pursuant to Section 9.3 below, Custodian
shall make payments from the Custody Account of such Portfolio, but only in the
following cases, provided, first, that such payments are in connection with the
clearance and/or custody of securities or other assets, second, that there are
sufficient funds in such Custody Account, whether belonging to such Portfolio or
advanced to it by Custodian in its sole and absolute discretion as set forth in
Section 3.18 below, for Custodian to make such payments, and, third, that after
the making of such payments, such Portfolio would not be in violation of any
margin or other requirements agreed upon pursuant to Section 3.18 below:
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(a) For the purchase of securities for such Portfolio but only (i) in
the case of securities (other than options on securities, futures contracts and
options on futures contracts), against the delivery to Custodian (or any
sub-custodian appointed pursuant to this Agreement) of such securities
registered as provided in Section 3.20 below or in proper form for transfer or,
if the purchase of such securities is effected through a Book-Entry System or
Domestic Securities Depository, in accordance with the conditions set forth in
Section 3.10 above, and (ii) in the case of options, futures contracts and
options on futures contracts, against delivery to Custodian (or such
sub-custodian) of evidence of title thereto in favor of such Portfolio, the
Custodian, any such sub-custodian, or any nominee referred to in Section 3.20
below;
(b) In connection with the conversion, exchange or surrender, as set
forth in Section 3.13(f) below, of securities owned by such Portfolio;
(c) For transfer in accordance with the provisions of any agreement
among the Company, Custodian and a securities broker-dealer, relating to
compliance with rules of The Options Clearing Corporation and of any registered
national securities exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with transactions of such
Portfolio;
(d) For transfer in accordance with the provisions of any agreement
among the Company, Custodian and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding margin
or other deposits in connection with transactions of such Portfolio;
(e) For the funding of any time deposit (whether certificated or not)
or other interest-bearing account with any banking institution (including
Custodian), provided that Custodian shall
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receive and retain such certificate, advice, receipt or other evidence of
deposit (if any) as such banking institution may deliver with respect to any
such deposit or account;
(f) For the purchase from a banking or other financial institution of
loan participations, but only if Custodian has in its possession a copy of the
agreement between the Company and such banking or other financial institution
with respect to the purchase of such loan participations and provided that
Custodian shall receive and retain such participation certificate or other
evidence of participation (if any) as such banking or other financial
institution may deliver with respect to any such loan participation;
(g) For the purchase and/or sale of foreign currencies or of options to
purchase and/or sell foreign currencies, for spot or future delivery, for the
account of such Portfolio pursuant to contracts between the Company and any
banking or other financial institution (including Custodian, any sub-custodian
appointed pursuant to this Agreement and any affiliate of Custodian);
(h) For transfer to a securities broker-dealer as margin for a short
sale of securities for such Portfolio, or as payment in lieu of dividends paid
on securities sold short for such Portfolio;
(i) For the payment as provided in Article IV below of any dividends,
capital gain distributions or other distributions declared on the Shares of such
Portfolio;
(j) For the payment as provided in Article IV below of the redemption
price of the Shares of such Portfolio;
(k) For the payment of any expense or liability incurred by such
Portfolio, including but not limited to the following payments for the account
of such Portfolio: interest, taxes, and administration, investment advisory,
accounting, auditing, transfer agent, custodian, trustee and legal fees, and
other operating
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expenses of such Portfolio; in all cases, whether or not such expenses are to be
in whole or in part capitalized or treated as deferred expenses; and
(l) For any other proper purpose, but only upon receipt of Proper
Instructions, specifying the amount and purpose of such payment, certifying such
purpose to be a proper purpose of such Portfolio, and naming the person or
persons to whom such payment is to be made.
3.13 DELIVERIES FROM CUSTODY ACCOUNT. Upon receipt of Proper
Instructions with respect to a Portfolio but subject to its right to foreclose
upon and liquidate collateral pledged to it pursuant to Section 9.3 below,
Custodian shall release and deliver securities and other assets from the Custody
Account of such Portfolio, but only in the following cases, provided, first,
that such deliveries are in connection with the clearance and/or custody of
securities or other assets, second, there are sufficient amounts and types of
securities or other assets in such Custody Account for Custodian to make such
deliveries, and, third, that after the making of such deliveries, such Portfolio
would not be in violation of any margin or other requirements agreed upon
pursuant to Section 3.18 below:
(a) Upon the sale of securities for the account of such Portfolio but,
subject to Section 3.14 below, only against receipt of payment therefor or, if
such sale is effected through a Book-Entry System or Domestic Securities
Depository, in accordance with the provisions of Section 3.10 above;
(b) To an offeror's depository agent in connection with tender or other
similar offers for securities of such Portfolio; provided that, in any such
case, the funds or other consideration for such securities is to be delivered to
Custodian;
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(c) To the issuer thereof or its agent when such securities are called,
redeemed or otherwise become payable, provided that in any such case the funds
or other consideration for such securities is to be delivered to Custodian;
(d) To the issuer thereof or its agent for exchange for a different
number of certificates or other evidence representing the same aggregate face
amount or number of units; provided that, in any such case, the new securities
are to be delivered to Custodian;
(e) To the securities broker through whom securities are being sold for
such Portfolio, for examination in accordance with the "street delivery" custom;
(f) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the issuer of
such securities, or pursuant to provisions for conversion contained in such
securities, or pursuant to any deposit agreement, including surrender or receipt
of underlying securities in connection with the issuance or cancellation of
depository receipts; provided that, in any such case, the new securities and
funds, if any, are to be delivered to Custodian;
(g) In the case of warrants, rights or similar securities, to the
issuer of such warrants, rights or similar securities, or its agent, upon the
exercise thereof, provided that, in any such case, the new securities and funds,
if any, are to be delivered to Custodian;
(h) To the borrower thereof, or its agent, in connection with any loans
of securities for such Portfolio pursuant to any securities loan agreement
entered into by the Company, but only against receipt by Custodian of such
collateral as is required under such securities loan agreement;
(i) To any lender, or its agent, as collateral for any borrowings from
such lender by such Portfolio that require a pledge
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of assets of such Portfolio, but only against receipt by Custodian of the
amounts borrowed;
(j) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of such Portfolio or the Company;
(k) For delivery in accordance with the provisions of any agreement
among the Company, Custodian and a securities broker-dealer, relating to
compliance with the rules of The Options Clearing Corporation and of any
registered national securities exchange (or of any similar organization or
organizations) regarding escrow or other arrangements in connection with
transactions of such Portfolio;
(l) For delivery in accordance with the provisions of any agreement
among the Company, Custodian, and a futures commission merchant, relating to
compliance with the rules of the Commodity Futures Trading Commission and/or any
contract market (or any similar organization or organizations) regarding margin
or other deposits in connection with transactions of such Portfolio;
(m) For delivery to a securities broker-dealer as margin for a short
sale of securities for such Portfolio;
(n) To the issuer of American Depositary Receipts or International
Depositary Receipts (hereinafter, collectively, "ADRs") for such securities, or
its agent, against a written receipt therefor adequately describing such
securities, provided that such securities are delivered together with
instructions to issue ADRs in the name of Custodian or its nominee and to
deliver such ADRs to Custodian;
(o) In the case of ADRs, to the issuer thereof, or its agent, against a
written receipt therefor adequately describing such ADRs, provided that such
ADRs are delivered together with instructions to
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deliver the securities underlying such ADRs to Custodian or an agent of
Custodian; or
(p) For any other proper purpose, but only upon receipt of Proper
Instructions, specifying the securities or other assets to be delivered, setting
forth the purpose for which such delivery is to be made, certifying such purpose
to be a proper purpose of such Portfolio, and naming the person or persons to
whom delivery of such securities or other assets is to be made.
3.14 DELIVERY PRIOR TO FINAL PAYMENT. When instructed by the Company to
deliver securities of a Portfolio against payment, Custodian shall be entitled,
but only if in accordance with generally accepted market practice, to deliver
such securities prior to actual receipt of final payment therefor and,
exclusively in the case of securities in physical form, prior to receipt of
payment therefor. In any such case, such Portfolio shall bear the risk that
final payment for such securities may not be made or that such securities may be
returned or otherwise held or disposed of by or through the person to whom they
were delivered, and Custodian shall have no liability for any of the foregoing.
3.15 CREDIT PRIOR TO FINAL PAYMENT. In its sole discretion and from
time to time, Custodian may credit the Custody Account of a Portfolio, prior to
actual receipt of final payment thereof, with (a) proceeds from the sale of
securities of such Portfolio which it has been instructed to deliver against
payment, (b) proceeds from the redemption of securities or other assets in such
Custody Account, and (c) income from securities, funds or other assets in such
Custody Account. Any such credit shall be conditional upon actual receipt by
Custodian of final payment and may be reversed if final payment is not actually
received in full. Custodian may, in its sole discretion and from time to time,
permit a Portfolio to use funds so credited to its Custody Account in
anticipation of actual receipt of final payment. Any funds so used shall
constitute an advance subject to Section 3.18 below.
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3.16 DEFINITION OF FINAL PAYMENT. For purposes of this Agreement,
"final payment" means payment in funds which are (or have become) immediately
available, under applicable law are irreversible, and are not subject to any
security interest, levy, lien or other encumbrance.
3.17 PAYMENTS AND DELIVERIES OUTSIDE THE UNITED STATES. Notwithstanding
anything to the contrary that may be required by Section 3.12 or Section 3.13
above, or elsewhere in this Agreement, in the case of securities and other
assets maintained outside the United States and in the case of payments made
outside the United States, Custodian and any sub-custodian appointed pursuant to
this Agreement may receive and deliver such securities or other assets, and may
make such payments, in accordance with the laws, regulations, customs,
procedures and practices applicable in the relevant local market outside the
United States.
3.18 CLEARING CREDIT. Custodian may, in its sole discretion and from
time to time, advance funds to the Company to facilitate the settlement of a
Portfolio's transactions in the Custody Account of such Portfolio. Any such
advance (a) shall be repayable immediately upon demand made by Custodian, (b)
shall be fully secured as provided in Section 9.3 below, and (c) shall bear
interest at such rate, and be subject to such other terms and conditions, as
Custodian and the Company may agree.
3.19 ACTIONS NOT REQUIRING PROPER INSTRUCTIONS. Unless otherwise
instructed by the Company, Custodian shall with respect to all securities and
other assets held for a Portfolio:
(a) Subject to Section 8.4 below, receive into the Custody Account of
such Portfolio any funds or other property, including payments of principal,
interest and dividends, due and payable on or on account of such securities and
other assets;
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(b) Deliver securities of such Portfolio to the issuers of such
securities or their agents for the transfer thereof into the name of such
Portfolio, Custodian or any of the nominees referred to in Section 3.20 below;
(c) Endorse for collection, in the name of such Portfolio, checks,
drafts and other negotiable instruments;
(d) Surrender interim receipts or securities in temporary form for
securities in definitive form;
(e) Execute, as custodian, any necessary declarations or certificates
of ownership under the federal income tax laws of the United States, or the laws
or regulations of any other taxing authority, in connection with the transfer of
such securities or other assets or the receipt of income or other payments with
respect thereto;
(f) Receive and hold for such Portfolio all rights and similar
securities issued with respect to securities or other assets of such Portfolio;
(g) As may be required in the execution of Proper Instructions,
transfer funds from the Custody Account of such Portfolio to any demand deposit
account maintained by Custodian pursuant to Section 3.8 above; and
(h) In general, attend to all non-discretionary details in connection
with the sale, exchange, substitution, purchase and transfer of, and other
dealings in, such securities and other assets.
3.20 REGISTRATION AND TRANSFER OF SECURITIES. All securities held for a
Portfolio that are issuable only in bearer form shall be held by Custodian in
that form, provided that any such securities shall be held in a Securities
Depository or Book-Entry System if
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eligible therefor. All other securities and all other assets held for a
Portfolio may be registered in the name of (a) Custodian as agent, (b) any
sub-custodian appointed pursuant to this Agreement, (c) any Securities
Depository, or (d) any nominee or agent of any of them. The Company shall
furnish to Custodian appropriate instruments to enable Custodian to hold or
deliver in proper form for transfer, or to register as in this Section 3.20
provided, any securities or other assets delivered to Custodian which are
registered in the name of a Portfolio.
3.21 RECORDS. (a) Custodian shall maintain complete and accurate
records with respect to securities, funds and other assets held for a Portfolio,
including (i) journals or other records of original entry containing an itemized
daily record in detail of all receipts and deliveries of securities and all
receipts and disbursements of funds; (ii) ledgers (or other records) reflecting
(A) securities in transfer, if any, (B) securities in physical possession, (C)
monies and securities borrowed and monies and securities loaned (together with a
record of the collateral therefor and substitutions of such collateral), (D)
dividends and interest received, and (E) dividends receivable and interest
accrued; and (iii) cancelled checks and bank records related thereto. Custodian
shall keep such other books and records with respect to securities, funds and
other assets of a Portfolio which are held hereunder as the Company may
reasonably request.
(b) All such books and records maintained by Custodian for a Portfolio
shall (i) be maintained in a form acceptable to the Company and in compliance
with rules and regulations of the Securities and Exchange Commission, (ii) be
the property of such Portfolio and at all times during the regular business
hours of Custodian be made available upon request for inspection by duly
authorized officers, employees or agents of the Company and employees or agents
of the Securities and Exchange Commission, and (iii) if required to be
maintained under the 1940 Act, be preserved for the periods prescribed therein.
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3.22 ACCOUNT REPORTS BY CUSTODIAN. Custodian shall furnish the Company
with a daily activity statement, including a summary of all transfers to or from
the Custody Account of each Portfolio (in the case of securities and other
assets maintained in the United States, on the day following such transfers). At
least monthly and from time to time, Custodian shall furnish the Company with a
detailed statement of the securities, funds and other assets held for each
Portfolio under this Agreement.
3.23 OTHER REPORTS BY CUSTODIAN. Custodian shall provide the Company
with such reports as the Company may reasonably request from time to time on the
internal accounting controls and procedures for safeguarding securities which
are employed by Custodian or any sub-custodian appointed pursuant to this
Agreement.
3.24 PROXIES AND OTHER MATERIALS. (a) Unless otherwise instructed by
the Company, Custodian shall promptly deliver to the Company all notices of
meetings, proxy materials (other than proxies) and other announcements, which it
receives regarding securities held by it in the Custody Account of a Portfolio.
Whenever Custodian or any of its agents receives a proxy with respect to
securities in the Custody Account of a Portfolio, Custodian shall promptly
request instructions from the Company on how such securities are to be voted,
and shall give such proxy, or cause it to be given, in accordance with such
instructions. If the Company timely informs Custodian that the Company wishes to
vote any such securities in person, Custodian shall promptly seek to have a
legal proxy covering such securities issued to the Company. Unless otherwise
instructed by the Company, neither Custodian nor any of its agents shall
exercise any voting rights with respect to securities held hereunder.
(b) Unless otherwise instructed by the Company, Custodian shall
promptly transmit to the Company all other written
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information received by Custodian from issuers of securities held in the Custody
Account of any Portfolio. With respect to tender or exchange offers for such
securities or with respect to other corporate transactions involving such
securities, Custodian shall promptly transmit to the Company all written
information received by Custodian from the issuers of such securities or from
any party (or its agents) making any such tender or exchange offer or
participating in such other corporate transaction. If the Company, with respect
to such tender or exchange offer or other corporate transaction, desires to take
any action that may be taken by it pursuant to the terms of such offer or other
transaction, the Company shall notify Custodian (i) in the case of securities
maintained outside the United States, such number of Business Days prior to the
date on which Custodian is to take such action as will allow Custodian to take
such action in the relevant local market for such securities in a timely
fashion, and (ii) in the case of all other securities, at least five Business
Days prior to the date on which Custodian is to take such action.
3.25 CO-OPERATION. Custodian shall cooperate with and supply necessary
information to the entity or entities appointed by the Company to keep the books
of account of a Portfolio and/or to compute the value of the assets of a
Portfolio.
ARTICLE IV
REDEMPTION OF PORTFOLIO SHARES;
DIVIDENDS AND OTHER DISTRIBUTIONS
4.1 TRANSFER OF FUNDS. From such funds as may be available for the
purpose in the Custody Account of a Portfolio, and upon receipt of Proper
Instructions specifying that the funds are required to redeem Shares of such
Portfolio or to pay dividends or other distributions to holders of Shares of
such Portfolio, Custodian shall transfer each amount specified in such Proper
Instructions to such account of such Portfolio or of an agent thereof (other
than
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Custodian), at such bank, as the Company may designate therein with respect to
such amount.
4.2 SOLE DUTY OF CUSTODIAN. Custodian's sole obligation with respect to
the redemption of Shares of a Portfolio and the payment of dividends and other
distributions thereon shall be its obligation set forth in Section 4.1 above,
and Custodian shall not be required to make any payments to the various holders
from time to time of Shares of a Portfolio nor shall Custodian be responsible
for the payment or distribution by the Company, or any agent designated in
Proper Instructions given pursuant to Section 4.1 above, of any amount paid by
Custodian to the account of the Company or such agent in accordance with such
Proper Instructions.
ARTICLE V
SEGREGATED ACCOUNTS
Upon receipt of Proper Instructions to do so, Custodian shall establish
and maintain a segregated account or accounts for and on behalf of any
Portfolio, into which account or accounts may be transferred funds and/or
securities, including securities maintained in a Securities Depository:
(a) in accordance with the provisions of any agreement among the
Company, Custodian and a securities broker-dealer (or any futures commission
merchant), relating to compliance with the rules of The Options Clearing
Corporation or of any registered national securities exchange (or the Commodity
Futures Trading Commission or any registered contract market), or of any similar
organization or organizations, regarding escrow or other arrangements in
connection with transactions of such Portfolio,
(b) for purposes of segregating funds or securities in connection with
securities options purchased or written by such Portfolio or in connection with
financial futures contracts (or options thereon) purchased or sold by such
Portfolio,
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(c) which constitute collateral for loans of securities made by such
Portfolio,
(d) for purposes of compliance by such Portfolio with requirements
under the 1940 Act for the maintenance of segregated accounts by registered
management investment companies in connection with reverse repurchase
agreements, when-issued, delayed delivery and firm commitment transactions, and
short sales of securities, and
(e) for other proper purposes, but only upon receipt of Proper
Instructions, specifying the purpose or purposes of such segregated account and
certifying such purposes to be proper purposes of such Portfolio.
ARTICLE VI
CERTAIN REPURCHASE TRANSACTIONS
6.1 TRANSACTIONS. If and to the extent that the necessary funds and
securities of a Portfolio have been entrusted to it under this Agreement, and
subject to Custodian's right to foreclose upon and liquidate collateral pledged
to it pursuant to Section 9.3 below, Custodian, as agent of such Portfolio,
shall from time to time (and unless the Company gives it Proper Instructions to
do otherwise) make from the Custody Account of such Portfolio the transfers of
funds and deliveries of securities which such Portfolio is required to make
pursuant to the Master Repurchase Agreement and shall receive for the Custody
Account of such Portfolio the transfers of funds and deliveries of securities
which the seller under the Master Repurchase Agreement is required to make
pursuant thereto. Custodian shall make and receive all such transfers and
deliveries pursuant to, and subject to the terms and conditions of, the Master
Repurchase Agreement.
6.2 COLLATERAL. Custodian shall daily mark to market the securities
purchased under the Master Repurchase Agreement and held
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in the Custody Account of a Portfolio, and shall give to the seller thereunder
any such notice as may be required thereby in connection with such
mark-to-market.
6.3 EVENTS OF DEFAULT. Custodian shall promptly notify the Company of
any event of default under the Master Repurchase Agreement (as such term "event
of default" is defined therein) of which it has actual knowledge.
6.4 MASTER REPURCHASE AGREEMENT. Custodian hereby acknowledges its
receipt from the Company of a copy of the Master Repurchase Agreement. The
Company shall provide Custodian, prior to the effectiveness thereof, with a copy
of any amendment to the Master Repurchase Agreement.
ARTICLE VII
CERTAIN SECURITIES LENDING TRANSACTIONS
7.1 TRANSACTIONS. If and to the extent that the necessary funds and
securities of a Portfolio have been entrusted to it under this Agreement, and
subject to Custodian's right to foreclose upon and liquidate collateral pledged
to it pursuant to Section 9.3 below, Custodian, as agent of such Portfolio,
shall from time to time (and unless the Company gives it Proper Instructions to
do otherwise) make from the Custody Account of such Portfolio the transfers of
funds and deliveries of securities which such Portfolio is required to make
pursuant to the Master Securities Loan Agreement and shall receive for the
Custody Account of such Portfolio the transfers of funds and deliveries of
securities which the borrower under the Master Securities Loan Agreement is
required to make pursuant thereto. Custodian shall make and receive all such
transfers and deliveries pursuant to, and subject to the terms and conditions
of, the Master Securities Loan Agreement.
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7.2 COLLATERAL. Custodian shall daily mark to market, in the manner
provided for in the Master Securities Loan Agreement, all loans of securities
which may from time to time be outstanding thereunder.
7.3 DEFAULTS. Custodian shall promptly notify the Company of any
default under the Master Securities Loan Agreement (as such term "default" is
defined therein) of which it has actual knowledge.
7.4 MASTER SECURITIES LOAN AGREEMENT. Custodian hereby acknowledges its
receipt from the Company of a copy of the Master Securities Loan Agreement. The
Company shall provide Custodian, prior to the effectiveness thereof, with a copy
of any amendment to the Master Securities Loan Agreement.
ARTICLE VIII
CONCERNING THE CUSTODIAN
8.1 STANDARD OF CARE. Custodian shall be held to the exercise of
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to any Portfolio or the Company for any loss, damage, cost,
expense (including attorneys' fees and disbursements), liability or claim which
does not arise from willful misfeasance, bad faith or negligence on the part of
Custodian. Custodian shall be entitled to rely on and may act upon advice of
counsel in all matters, and shall be without liability for any action reasonably
taken or omitted pursuant to such advice. In no event shall Custodian be liable
for special, incidental or consequential damages, even if Custodian has been
advised of the possibility of such damages, or be liable in any manner
whatsoever for any action taken or omitted upon instructions from the Company or
any agent of the Company.
8.2 ACTUAL COLLECTION REQUIRED. Custodian shall not be liable for, or
considered to be the custodian of, any funds belonging to
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a Portfolio or any money represented by a check, draft or other instrument for
the payment of money, until Custodian or its agents actually receive such funds
or collect on such instrument.
8.3 NO RESPONSIBILITY FOR TITLE, ETC. So long as and to the extent that
it is in the exercise of reasonable care, Custodian shall not be responsible for
the title, validity or genuineness of any assets or evidence of title thereto
received or delivered by it or its agents.
8.4 LIMITATION ON DUTY TO COLLECT. Custodian shall promptly notify the
Company whenever any money or property due and payable from or on account of any
securities or other assets held hereunder for a Portfolio is not timely received
by it. Custodian shall not, however, be required to enforce collection, by legal
means or otherwise, of any such money or other property not paid when due, but
shall receive the proceeds of such collections as may be effected by it or its
agents in the ordinary course of Custodian's custody and safekeeping business or
of the custody and safekeeping business of such agents.
8.5 EXPRESS DUTIES ONLY. Custodian shall have no duties or obligations
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against Custodian. Custodian shall have no discretion whatsoever with respect to
the management, disposition or investment of the Custody Account of any
Portfolio and is not a fiduciary to any Portfolio or the Company. In particular,
Custodian shall not be under any obligation at any time to monitor or to take
any other action with respect to compliance by any Portfolio or the Company with
the 1940 Act, the provisions of the Corporation's charter documents or by-laws,
or any Portfolio's investment objectives, policies and limitations as in effect
from time to time.
ARTICLE IX
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INDEMNIFICATION
9.1 INDEMNIFICATION. Each Portfolio shall indemnify and hold harmless
Custodian, any sub-custodian appointed pursuant to this Agreement and any
nominee of any of them, from and against any loss, damages, cost, expense
(including attorneys' fees and disbursements), liability (including, without
limitation, liability arising under the Securities Act of 1933, the Securities
Exchange Act of 1934, the 1940 Act, and any federal, state or foreign securities
and/or banking laws) or claim arising directly or indirectly (a) from the fact
that securities or other assets in the Custody Account of such Portfolio are
registered in the name of any such nominee, or (b) from any action or inaction,
with respect to such Portfolio, by Custodian or such sub-custodian or nominee
(i) at the request or direction of or in reliance on the advice of the Company
or any of its agents, or (ii) upon Proper Instructions, or (c) generally, from
the performance of its obligations under this Agreement with respect to such
Portfolio, provided that Custodian, any such sub-custodian or any nominee of any
of them shall not be indemnified and held harmless from and against any such
loss, damage, cost, expense, liability or claim arising from willful
misfeasance, bad faith or negligence on the part of Custodian or any such
sub-custodian or nominee.
9.2 INDEMNITY TO BE PROVIDED. If the Company requests Custodian to take
any action with respect to securities or other assets of a Portfolio, which may,
in the opinion of Custodian, result in Custodian or its nominee becoming liable
for the payment of money or incurring liability of some other form, Custodian
shall not be required to take such action until such Portfolio shall have
provided indemnity therefor to Custodian in an amount and form satisfactory to
Custodian.
9.3 SECURITY. As security for the payment of any present or future
obligation or liability of any kind which a Portfolio may
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<PAGE> 29
have to Custodian with respect to or in connection with the Custody Account of
such Portfolio or this Agreement, or which such Portfolio may otherwise have to
Custodian, the Company hereby pledges to Custodian all securities, funds and
other assets of every kind which are in such Custody Account or otherwise held
for such Portfolio pursuant to this Agreement, and hereby grants to Custodian a
lien, right of set-off and continuing security interest in such securities,
funds and other assets.
ARTICLE X
FORCE MAJEURE
Custodian shall not be liable for any failure or delay in performance
of its obligations under this Agreement arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including, without
limitation, acts of God; earthquakes; fires; floods; wars; civil or military
disturbances; sabotage; strikes; epidemics; riots; power failures; computer
failure and any such circumstances beyond its reasonable control as may cause
interruption, loss or malfunction of utility, transportation, computer (hardware
or software) or telephone communication service; accidents; labor disputes; acts
of civil or military authority; actions by any governmental authority, de jure
or de facto; or inability to obtain labor, material, equipment or
transportation.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 REPRESENTATIONS WITH RESPECT TO PORTFOLIOS. The Company represents
and warrants that (a) it has all necessary power and authority to perform the
obligations hereunder of each Portfolio, (b) the execution and delivery by it of
this Agreement, and the performance by it of the obligations hereunder of each
Portfolio, have been duly authorized by all necessary action and will not
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<PAGE> 30
violate any law, regulation, charter, by-law, or other instrument, restriction
or provision applicable to it or such Portfolio or by which it or such
Portfolio, or their respective assets, may be bound, and (c) this Agreement
constitutes a legal, valid and binding obligation of each Portfolio, enforceable
against it in accordance with its terms.
11.2 REPRESENTATIONS OF CUSTODIAN. Custodian represents and warrants
that (a) it has all necessary power and authority to perform its obligations
hereunder, (b) the execution and delivery by it of this Agreement, and the
performance by it of its obligations hereunder, have been duly authorized by all
necessary action and will not violate any law, regulation, charter, by-law, or
other instrument, restriction or provision applicable to it or by which it or
its assets may be bound, and (c) this Agreement constitutes a legal, valid and
binding obligation of it, enforceable against it in accordance with its terms.
ARTICLE XII
COMPENSATION OF CUSTODIAN
Each Portfolio shall pay Custodian such fees and charges as are set
forth in Exhibit E hereto, as such Exhibit E may from time to time be revised by
Custodian upon 14 days' prior written notice to the Company. Any annual fee or
other charges payable by a Portfolio shall be paid monthly by automatic
deduction from funds available therefor in the Custody Account of such
Portfolio, or, if there are no such funds, upon presentation of an invoice
therefor. Out-of-pocket expenses incurred by Custodian in the performance of its
services hereunder for any Portfolio and all other proper charges and
disbursements of the Custody Account of such Portfolio shall be charged to such
Custody Account by Custodian and paid in the same manner as the annual fee and
other charges referred to in this Article XII.
ARTICLE XIII
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TAXES
13.1 TAXES PAYABLE BY PORTFOLIOS. Any and all taxes, including any
interest and penalties with respect thereto, which may be levied or assessed
under present or future laws or in respect of the Custody Account of any
Portfolio or any income thereof shall be charged to such Custody Account by
Custodian and paid in the same manner as the annual fee and other charges
referred to in Article XII above.
13.2 TAX RECLAIMS. Upon the written request of the Company, Custodian
shall exercise, on behalf of any Portfolio, any tax reclaim rights of such
Portfolio which arise in connection with foreign securities in the Custody
Account of such Portfolio.
ARTICLE XIV
AUTHORIZED PERSONS; NOTICES
14.1 AUTHORIZED PERSONS. Custodian may rely upon and act in accordance
with any notice, confirmation, instruction or other communication which is
reasonably believed by Custodian to have been given or signed on behalf of the
Company by one of the Authorized Persons designated by the Company in Exhibit B
hereto, as it may from time to time be revised. The Company may revise Exhibit B
hereto at any time by notice in writing to Custodian given in accordance with
Section 14.4 below, but no revision of Exhibit B hereto shall be effective until
Custodian actually receives such notice.
14.2 INVESTMENT ADVISERS. Custodian may also rely upon and act in
accordance with any Written or Oral Instructions given with respect to a
Portfolio which are reasonably believed by Custodian to have been given or
signed by one of the persons designated from time to time by any of the
investment advisers of such Portfolio who are specified in Exhibit C hereto (if
any) as it may from time to time be revised. The Company may revise Exhibit C
hereto at any
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<PAGE> 32
time by notice in writing to Custodian given in accordance with Section 14.4
below, and each investment adviser specified in Exhibit C hereto (if any) may at
any time by like notice designate an Authorized Person or remove an Authorized
Person previously designated by it, but no revision of Exhibit C hereto (if any)
and no designation or removal by such investment adviser shall be effective
until Custodian actually receives such notice.
14.3 ORAL INSTRUCTIONS. Custodian may rely upon and act in accordance
with Oral Instructions. All Oral Instructions shall be confirmed to Custodian in
Written Instructions. However, if Written Instructions confirming Oral
Instructions are not received by Custodian prior to a transaction, it shall in
no way affect the validity of the transaction authorized by such Oral
Instructions or the authorization given by an Authorized Person to effect such
transaction. Custodian shall incur no liability to any Portfolio or the Company
in acting upon Oral Instructions. To the extent such Oral Instructions vary from
any confirming Written Instructions, Custodian shall advise the Company of such
variance but unless confirming Written Instructions are timely received, such
Oral Instructions shall govern.
14.4 ADDRESSES FOR NOTICES. Unless otherwise specified herein, all
demands, notices, instructions, and other communications to be given hereunder
shall be sent, delivered or given to the recipient at the address, or the
relevant telephone number, set forth after its name hereinbelow:
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<PAGE> 33
If to the Company:
THE RBB FUND
for [INSERT NAME OF PORTFOLIO]
Bellevue Park Corporate Center
400 Bellevue Parkway (Ste 100)
Wilmington, DE 19809
Attention: _____________________________
Telephone: (302) ___-____
Facsimile: (302) ___-____
If to Custodian:
CUSTODIAL TRUST COMPANY
101 Carnegie Center
Princeton, New Jersey 08540-6231
Attention: Vice President - Trust Operations
Telephone: (609) 951-2320
Facsimile: (609) 951-2327
or at such other address as either party hereto shall have provided to the other
by notice given in accordance with this Section 14.4. Writing shall include
transmissions by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
14.5 REMOTE CLEARANCE. Written Instructions for the receipt, delivery
or transfer of securities may include, and Custodian shall accept, Remote
Clearance Instructions (as defined hereinbelow) and Bulk Input Instructions (as
defined hereinbelow), provided that such Instructions are given in accordance
with the procedures prescribed by Custodian from time to time as to content of
instructions and their manner and timeliness of delivery by Customer. Custodian
shall be entitled to conclusively assume that all Remote Clearance Instructions
and Bulk Input Instructions have been given by an Authorized Person, and
Custodian is hereby irrevocably authorized to act in accordance therewith. For
purposes of this Agreement, "Remote Clearance Instructions" means instructions
that are input directly via a remote terminal which is located on the premises
of the Company, or of an investment adviser
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named in Exhibit C hereto, and linked to Custodian; and "Bulk Input
Instructions" means instructions that are input by bulk input computer tape
delivered to Custodian by messenger or transmitted to it via such transmission
mechanism as the Company and Custodian shall from time to time agree upon.
ARTICLE XV
TERMINATION
Either party hereto may terminate this Agreement with respect to one or
more of the Portfolios by giving to the other party a notice in writing
specifying the date of such termination, which shall be not less than sixty (60)
days after the date of the giving of such notice. Upon the date set forth in
such notice this Agreement shall terminate with respect to each Portfolio
specified in such notice, and Custodian shall, upon receipt of a notice of
acceptance by the successor custodian, on that date (a) deliver directly to the
successor custodian or its agents all securities (other than securities held in
a Book-Entry System or Securities Depository) and other assets then owned by
such Portfolio and held by Custodian as custodian, and (b) transfer any
securities held in a Book-Entry System or Securities Depository to an account of
or for the benefit of such Portfolio, provided that such Portfolio shall have
paid to Custodian all fees, expenses and other amounts to the payment or
reimbursement of which it shall then be entitled.
ARTICLE XVI
MISCELLANEOUS
16.1 BUSINESS DAYS. Nothing contained in this Agreement shall require
Custodian to perform any function or duty on a day other than a Business Day.
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16.2 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
conflict of law principles thereof.
16.3 REFERENCES TO CUSTODIAN. The Company shall not circulate any
printed matter which contains any reference to Custodian without the prior
written approval of Custodian, excepting printed matter contained in the
prospectus or statement of additional information for a Portfolio and such other
printed matter as merely identifies Custodian as custodian for a Portfolio. The
Company shall submit printed matter requiring approval to Custodian in draft
form, allowing sufficient time for review by Custodian and its counsel prior to
any deadline for printing.
16.4 NO WAIVER. No failure by either party hereto to exercise, and no
delay by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise of any other right, and the remedies provided herein are
cumulative and not exclusive of any remedies provided at law or in equity.
16.5 AMENDMENTS. This Agreement cannot be changed orally and, except as
otherwise provided herein with respect to the Exhibits attached hereto, no
amendment to this Agreement shall be effective unless evidenced by an instrument
in writing executed by the parties hereto.
16.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
16.7 SEVERABILITY. If any provision of this Agreement shall be invalid,
illegal or unenforceable in any respect under any
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<PAGE> 36
applicable law, the validity, legality and enforceability of the remaining
provisions shall not be affected or impaired thereby.
16.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that this Agreement shall not be assignable by
either party hereto without the written consent of the other party. Any
purported assignment in violation of this Section 16.8 shall be void.
16.9 JURISDICTION. Any suit, action or proceeding with respect to this
Agreement may be brought in the Supreme Court of the State of New York, County
of New York, or in the United States District Court for the Southern District of
New York, and the parties hereto hereby submit to the non-exclusive jurisdiction
of such courts for the purpose of any such suit, action or proceeding, and
hereby waive for such purpose any other preferential jurisdiction by reason of
their present or future domicile or otherwise.
16.10 HEADINGS. The headings of sections in this Agreement are for
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its representative
thereunto duly authorized, all as of the day and year first above written.
THE RBB FUND, INC.
with respect to and on behalf
of the Portfolios identified on
Exhibit A hereto
By: ____________________
Name: Edward J. Roach
Title: President & Treasurer
CUSTODIAL TRUST COMPANY
By: _____________________
Name:
Title:
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<PAGE> 38
EXHIBIT A
PORTFOLIOS
- BEA Long-Short Market Neutral Fund
- BEA Long-Short Equity Fund
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<PAGE> 39
EXHIBIT B
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Company to administer the Custody Accounts of the Portfolios.
Name Signature
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
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<PAGE> 40
EXHIBIT C
INVESTMENT ADVISERS
ALL PORTFOLIOS
BEA Associates
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<PAGE> 41
EXHIBIT D
APPROVED FOREIGN SUB-CUSTODIANS AND SECURITIES DEPOSITORIES
ALL PORTFOLIOS
<TABLE>
<CAPTION>
Foreign Sub-custodian Country(ies) Securities Depositories
- --------------------- ------------ -----------------------
<S> <C> <C>
</TABLE>
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<PAGE> 42
EXHIBIT E
CUSTODY FEES AND TRANSACTION CHARGES
(BEA LONG-SHORT MARKET NEUTRAL FUND)
DOMESTIC FEES. Assets maintained by the BEA Long-Short Market Neutral
Fund ("Portfolio One") in the United States are hereinafter referred to as
"Domestic Assets". For purposes of calculating the annual fee hereinafter
provided for and charging the transaction fees hereinafter provided for, all
Domestic Assets held in the account established pursuant to the Special Custody
Account among the Company, Custodian and Bear Stearns, dated as of June 24,
1998, shall be deemed to be held in the Custody Account of Portfolio One under
this Agreement and all transactions in such Domestic Assets shall be deemed to
have occurred in such Custody Account.
Portfolio One shall pay Custodian the following fees for Domestic
Assets and the following charges for transactions in the United States, all such
fees and charges to be payable monthly:
(1) an annual fee equal to the sum of (a) 0.04% (four basis points) per
annum of the value of the Domestic Assets held in Portfolio One's Custody
Account up to $50 million, plus (b) 0.02% (two basis points) per annum of the
amount by which the value of such Domestic Assets is more than $50 million but
less than $200 million, plus (c) 0.01% (one basis point) per annum of the amount
by which the value of such Domestic Assets exceeds $200 million, with each such
percentage fee to be based upon the total market value of such Domestic Assets
as determined on the last Business Day of the month for which such fee is
charged;
(2) a transaction charge of $25 for each receive or deliver into or
from such Custody Account of securities in physical form;
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(3) a transaction charge for each repurchase transaction in such
Custody Account which represents a cash sweep investment for Portfolio One's
account, computed on the basis of a 360-day year and for the actual number of
days such repurchase transaction is outstanding at a rate of 0.10% (ten basis
points) per annum on the amount of the purchase price paid by Portfolio One in
such repurchase transaction;
(4) a charge of $10 for each "free" transfer of funds from such Custody
Account;
(5) an administrative fee for each purchase in such Custody Account of
shares or other interests in a money market or other fund, which purchase
represents a cash sweep investment for Portfolio One's account, computed for
each day that there is a positive balance in such fund to equal 1/365th of 0.10%
(ten basis points) on the amount of such positive balance for such day; and
(6) a service charge for each holding of securities or other assets of
Portfolio One that are sold by way of private placement or in such other manner
as to require services by Custodian which in its reasonable judgment are
materially in excess of those ordinarily required for the holding of publicly
traded securities in the United States.
INTERNATIONAL FEES. Portfolio One shall pay Custodian fees for assets
maintained by Portfolio One outside the United States ("Foreign Assets") and
charges for transactions by Portfolio One outside the United States (including,
without limitation, charges for funds transfers and tax reclaims) in accordance
with such schedule of fees and charges for each country in which Foreign Assets
of Portfolio One are held as Custodian shall from time to time provide to the
Company. Any asset-based fee shall be based upon the total market value of the
applicable Foreign Assets as determined on the last Business Day of the month
for which such fee is charged.
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<PAGE> 44
(BEA LONG-SHORT EQUITY FUND)
DOMESTIC FEES. BEA Long-Short Equity Fund ("Portfolio Two") shall pay
Custodian the following fees for assets maintained by Portfolio Two in the
United States ("Domestic Assets") and the following charges for transactions by
Portfolio Two in the United States, all such fees and charges to be payable
monthly:
(1) an annual fee equal to the sum of (a) 0.02% (two basis points) per
annum of the value of the Domestic Assets held in Portfolio Two's Custody
Account up to $50 million, plus (b) 0.01% (one basis point) per annum of the
amount by which the value of such Domestic Assets is more than $50 million but
less than $200 million, plus (c) 0.005% (one-half basis point) per annum of the
amount by which the value of such Domestic Assets exceeds $200 million, with
each such percentage fee to be based upon the total market value of such
Domestic Assets as determined on the last Business Day of the month for which
such fee is charged;
(2) a transaction charge of $25 for each receive or deliver into or
from such Custody Account of securities in physical form;
(3) a transaction charge for each repurchase transaction in such
Custody Account which represents a cash sweep investment for Portfolio Two's
account, computed on the basis of a 360-day year and for the actual number of
days such repurchase transaction is outstanding at a rate of 0.10% (ten basis
points) per annum on the amount of the purchase price paid by Portfolio Two in
such repurchase transaction;
(4) a charge of $10 for each "free" transfer of funds from such Custody
Account;
(5) an administrative fee for each purchase in such Custody Account of
shares or other interests in a money market or other
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<PAGE> 45
fund, which purchase represents a cash sweep investment for Portfolio Two's
account, computed for each day that there is a positive balance in such fund to
equal 1/365th of 0.10% (ten basis points) on the amount of such positive balance
for such day; and
(6) a service charge for each holding of securities or other assets of
Portfolio Two that are sold by way of private placement or in such other manner
as to require services by Custodian which in its reasonable judgment are
materially in excess of those ordinarily required for the holding of publicly
traded securities in the United States.
INTERNATIONAL FEES. Portfolio Two shall pay Custodian fees for assets
maintained by Portfolio Two outside the United States ("Foreign Assets") and
charges for transactions by Portfolio Two outside the United States (including,
without limitation, charges for funds transfers and tax reclaims) in accordance
with such schedule of fees and charges for each country in which Foreign Assets
of Portfolio Two are held as Custodian shall from time to time provide to the
Company. Any asset-based fee shall be based upon the total market value of the
applicable Foreign Assets as determined on the last Business Day of the month
for which such fee is charged.
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<PAGE> 1
Exhibit 10(a)
<PAGE> 2
[LETTERHEAD OF WILLKIE FARR & GALLAGHER]
August 11, 1998
Warburg, Pincus Long-Short Market Neutral Fund, Inc.
466 Lexington Avenue
New York, New York 10017-3147
Ladies and Gentlemen:
We have acted as counsel to Warburg, Pincus Long-Short Market Neutral Fund, Inc.
(the "Fund"), a corporation organized under the laws of the State of Maryland,
in connection with the preparation of a registration statement on Form N-1A
covering the offer and sale of an indefinite number of shares of Common Stock of
the Fund (the "Common Stock"), one billion of which are designated "Common
Shares," one billion of which are designated "Institutional Shares," and one
billion of which are designated "Advisor Shares," par value $.001 per share
(collectively, the "Shares").
We have examined copies of the Charter and By-Laws of the Fund, as amended, the
Fund's prospectuses and statement of additional information (the "Statement of
Additional Information") included in its Registration Statement on Form N-1A,
Securities Act File No. 333-60687 and Investment Company Act File No. 811-08925
(the "Registration Statement"), all resolutions adopted by the Fund's Board of
Directors (the "Board") at its organizational meeting held on July 20, 1998,
consents of the Board and other records, documents and papers that we have
deemed necessary for the purpose of this opinion. We have also examined such
other statutes and authorities as we have deemed necessary to form a basis for
the opinion hereinafter expressed.
In our examination of material, we have assumed the genuineness of all
signatures and the conformity to original documents of all copies submitted to
us. As to various questions of fact material to our opinion, we have relied upon
statements and certificates of officers and representatives of the Fund and
others.
<PAGE> 3
Warburg, Pincus Long-Short
Market Neutral Fund, Inc.
August 11, 1998
Page 2
Based upon the foregoing, we are of the opinion that:
1. The Fund is duly organized and validly existing as a
corporation in good standing under the laws of the State of
Maryland.
2. The three presently issued and outstanding shares of Common
Stock representing one Common Share, one Institutional Share
and one Advisor Share in the Fund have been validly and
legally issued and are fully paid and nonassessable.
3. The Shares of the Fund to be offered for sale pursuant to the
Registration Statement are, to the extent of the number of
Shares authorized to be issued by the Fund in its Charter,
duly authorized and, when sold, issued and paid for as
contemplated by the Registration Statement, will have been
validly and legally issued and will be fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, to the reference to us in the Statement of Additional
Information and to the filing of this opinion as an exhibit to any application
made by or on behalf of the Fund or any distributor or dealer in connection with
the registration or qualification of the Fund or the Shares under the securities
laws of any state or other jurisdiction.
We are members of the Bar of the State of New York only and do not opine as to
the laws of any jurisdiction other than the laws of the State of New York and
the laws of the United States, and the opinions set forth above are,
accordingly, limited to the laws of those jurisdictions. As to matters involving
the application of the laws of the State of Maryland, we have relied on the
opinion of Messrs. Venable, Baetjer and Howard, LLP.
Very truly yours,
/s/ Willkie Farr & Gallagher
<PAGE> 1
Exhibit 10(b)
VENABLE, BAETJER AND HOWARD, LLP
1800 MERCANTILE BANK AND TRUST BUILDING
TWO HOPKINS PLAZA
BALTIMORE, MARYLAND 21201
August 14, 1998
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6099
Re: Warburg, Pincus Long-Short Market Neutral Fund, Inc.
Ladies and Gentlemen:
We have acted as special Maryland counsel for Warburg, Pincus
Long-Short Market Neutral Fund, Inc., a Maryland corporation (the "Fund"), in
connection with the organization of the Fund and the issuance of shares of its
common stock, par value $.001 per share including the Common Shares, the
Institutional Shares and the Advisor Shares.
As Maryland counsel for the Fund, we are familiar with its
Charter and Bylaws, as amended. We have examined its Registration Statement on
Form N-1A, Securities Act File No. 333-60687 and Investment Company Act File No.
811-08925, including the prospectus and statement of additional information
contained therein, substantially in the form in which it is to become effective
(the "Registration Statement"). We have further examined and relied upon a
certificate of the Maryland State Department of Assessments and Taxation to the
effect that the Fund is duly incorporated and existing under the laws of the
State of Maryland and is in good standing and duly authorized to transact
business in the State of Maryland.
We have also examined and relied upon such corporate records
of the Fund and other documents and certificates with respect to factual matters
as we have deemed necessary to render the opinion expressed herein. We have
assumed, without independent verification, the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity with originals of all documents submitted to us as copies.
<PAGE> 2
Based on such examination, we are of the opinion and so advise
you that:
1. The Fund is a corporation duly organized and validly
existing in good standing under the laws of the State
of Maryland.
2. The 3 presently issued and outstanding shares of
common stock of the Fund including one Common Share,
one Institutional Share and one Advisor Share have
been duly authorized and are validly issued, fully
paid and nonassessable.
3. The Common Shares, the Institutional Shares and the
Advisor Shares of the Fund to be offered for sale
pursuant to the Registration Statement are, to the
extent of the number of shares authorized to be
issued by the Fund in its Charter, duly authorized
and, when sold, issued and paid for as contemplated
by the Registration Statement, will have been validly
and legally issued and will be fully paid and
nonassessable.
This letter expresses our opinion with respect to the Maryland
General Corporation Law governing matters such as due organization and the
authorization and issuance of stock. It does not extend to the securities or
"blue sky" laws of Maryland, to federal securities laws or to other laws.
You may rely upon our foregoing opinion in rendering your
opinion to the Fund that is to be filed as an exhibit to the Registration
Statement. We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/VENABLE, BAETJER AND HOWARD, LLP
