CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of July 15, 2002 by and between PFPC TRUST COMPANY,
a limited purpose trust company incorporated under the laws of Delaware ("PFPC
Trust"), and THE XXXXXX FUNDS, a Massachusetts business trust (the "Fund").
W I T N E S S E T H
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, the Fund wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to nu furnish custodian services, either
directly or through an affiliate or affiliates, as more fully described
herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any other
person authorized by the Fund to give Oral or Written Instructions
on behalf of the Fund. An Authorized Person's scope of
authority may be limited by setting forth such limitation in a
written document signed by both parties hereto.
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(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury book-entry
system for United States and federal agency securities, its
successor or successors, and its nominee or nominees and any
book-entry system maintained by an exchange registered with the SEC
under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "CHANGE OF CONTROL" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the
beneficial ownership of the shares of common stock or shares of
beneficial interest of an entity or its parent(s).
(g) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC Trust
from an Authorized Person or from a person reasonably believed by
PFPC Trust to be an Authorized Person. PFPC Trust may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic
mail as Oral Instructions.
(h) "PFPC TRUST" means PFPC Trust Company or a subsidiary or affiliate
of PFPC Trust Company.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(k) "SHARES" mean the shares of beneficial interest of any series or
class of the Fund.
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(l) "PROPERTY" means:
(i) any and all securities and other investment items
which the Fund may from time to time deposit, or
cause to be deposited, with PFPC Trust or which PFPC
Trust may from time to time hold for the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the
Fund, which are received by PFPC Trust from time
to time, from or on behalf of the Fund.
(m) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by two
Authorized Persons and received by PFPC Trust or (ii) trade
instructions transmitted by means of an electronic transaction
reporting system which requires the use of a password or other
authorized identifier in order to gain access. The instructions may
be delivered electronically or by hand, mail or facsimile sending
device.
2. APPOINTMENT. The Fund hereby appoints PFPC Trust to provide custodian
services to the Fund, on behalf of each of its investment portfolios
(each, a "Portfolio"), and PFPC Trust accepts such appointment and
agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC Trust with the following:
(a) at PFPC Trust's request, certified or authenticated copies of the
resolutions of the Fund's Board of Trustees, approving the
appointment of PFPC Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreements;
(d) a copy of the distribution/underwriting agreement with respect
to each class of Shares;
(e) a copy of each Portfolio's administration agreement;
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(f) copies of any distribution and/or shareholder servicing plans
and agreements made in respect of the Fund or a Portfolio; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with material applicable requirements of the
Securities Laws and material laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed by
PFPC Trust hereunder. Except as specifically set forth herein, PFPC Trust
assumes no responsibility for such compliance by the Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall
act only upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction
or Written Instruction it receives from an Authorized
Person (or from a person reasonably believed by PFPC Trust to
be an Authorized Person) pursuant to this Agreement. PFPC
Trust may assume that any Oral Instructions or Written
Instructions received hereunder are not in any way
inconsistent with the provisions of organizational
documents of the Fund or of any vote, resolution or proceeding
of the Fund's Board of Trustees or of the Fund's shareholders,
unless and until PFPC Trust receives Written Instructions
to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral
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Instructions are given by PFPC Trust or its affiliates) so
that PFPC Trust receives the Written Instructions by the
close of business on the same day that such Oral Instructions
are received. The fact that such confirming Written
Instructions are not received by PFPC Trust or differ from the
Oral Instructions shall in no way invalidate the transactions
or enforceability of the transactions authorized by the Oral
Instructions or PFPC Trust's ability to rely upon such Oral
Instructions.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PFPC Trust is in doubt as to any action
it should or should not take, PFPC Trust may request
directions or advice, including Oral Instructions or Written
Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC Trust may request advice from counsel of its
own nu choosing (who may be counsel for the Fund, the Fund's
investment adviser or PFPC Trust, at the option of PFPC
Trust).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC Trust receives from the Fund, and the advice
it nu receives from counsel, PFPC Trust shall be entitled to
rely upon and follow the advice of counsel.
(d) PROTECTION OF PFPC TRUST. PFPC Trust shall be indemnified by
the Fund and without liability for any action PFPC Trust
takes or does not take in reliance upon directions or advice
or Oral Instructions or Written Instructions PFPC Trust
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receives from or on behalf of the Fund or from counsel and
which PFPC Trust believes, in good faith, to be consistent
with those directions or advice or Oral Instructions or
Written Instructions. Nothing in this section shall be
construed so as to impose an obligation upon PFPC Trust (i) to
seek such directions or advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written
Instructions.
7. RECORDS; VISITS. The books and records pertaining to the Fund and any
Portfolio, which are in the possession or under the control of PFPC
Trust, shall be the property of the Fund. Such books and records
shall be prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Fund and
Authorized Persons shall have access to such books and records at
all times during PFPC Trust's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records
shall be provided by PFPC Trust to the Fund or to an authorized
representative of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information
that is competitively sensitive material, and not generally known to
the public, including, but not limited to, information about product
plans, marketing strategies, finances, operations, customer
relationships, customer profiles, customer lists, sales estimates,
business plans, and internal performance results relating to the past,
present or future business activities of the Fund or PFPC Trust or
their respective subsidiaries and affiliated companies; (b) any
scientific or technical information, design, process, procedure,
formula, or improvement that is commercially valuable and secret in
the sense that its confidentiality affords the Fund or PFPC Trust a
competitive advantage over its competitors; (c) all confidential or
proprietary concepts, documentation, reports, data, specifications,
computer software, source code, object code, flow charts, databases,
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inventions, know-how, and trade secrets, whether or not patentable
or copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be subject to such
confidentiality obligations if it: (a) is already known to the
receiving party at the time it is obtained; (b) is or becomes
publicly known or available through no wrongful act of the receiving
party; (c) is rightfully received from a third party who, to the
best of the receiving party's knowledge, is not under a duty of
confidentiality; (d) is released by the protected party to a third
party without restriction; (e) is required to be disclosed by the
receiving party pursuant to a requirement of a court order, subpoena,
governmental or regulatory agency or law (provided the receiving
party will provide the other party written notice of such
requirement, to the extent such notice is permitted); (f) is relevant
to the defense of any claim or cause of action asserted against the
receiving party; (g) has been or is independently developed or
obtained by the receiving party; or (h) is required to be disclosed in
connection with the provision of services under this Agreement.
9. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the
Fund's independent public accountants and shall take all reasonable
action to make any requested information available to such accountants
as reasonably requested by the Fund.
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10. PFPC SYSTEM. PFPC Trust shall retain title to and ownership of any and
all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC Trust in connection with the services provided by PFPC
Trust to the Fund.
11. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making
reasonable provisions for emergency use of electronic data processing
equipment to the extent appropriate equipment is available. In the
event of equipment failures, PFPC Trust shall, at no additional
expense to the Fund, take reasonable steps to minimize service
interruptions. PFPC Trust shall have no liability with respect to the
loss of data or service interruptions caused by equipment failure
provided such loss or interruption is not caused by PFPC Trust's own
willful misfeasance, bad faith, gross negligence or reckless disregard
of its duties or obligations under this Agreement.
12. COMPENSATION. As compensation for custody services rendered by PFPC
Trust during the term of this Agreement, the Fund, on behalf of each
of the Portfolios, will pay to PFPC Trust a fee or fees as may be
agreed to in writing from time to time by the Fund and PFPC Trust. The
Fund acknowledges that PFPC Trust may receive float benefits in
connection with maintaining certain accounts required to provide
services under this Agreement.
13. INDEMNIFICATION. The Fund, on behalf of each Portfolio, agrees to
indemnify, defend and hold harmless PFPC Trust and its affiliates,
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including their respective officers, directors, agents and employees
from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, attorneys' fees and disbursements
and liabilities arising under the Securities Laws and any state and
foreign securities and blue sky laws) arising directly or indirectly
from any action or omission to act which PFPC Trust takes in connection
with the provision of services to the Fund. Neither PFPC Trust, nor
any of its affiliates, shall be indemnified against any liability (or
any expenses incident to such liability) caused by PFPC Trust's or its
affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard in the performance of PFPC Trust's activities under
this Agreement. The provisions of this Section 13 shall survive
termination of this Agreement.
14. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of the Fund or any Portfolio except as specifically set
forth herein or as may be specifically agreed to by PFPC Trust
and the Fund in a written amendment hereto. PFPC Trust shall be
obligated to exercise care and diligence in the performance of
its duties hereunder and to act in good faith in performing
services provided for under this Agreement. PFPC Trust shall be
liable only for any damages arising out of PFPC Trust's failure
to perform its duties under this Agreement to the extent such
damages arise out of PFPC Trust's willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties under this
Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, (i)
PFPC Trust shall not be liable for losses, delays, failure,
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errors, interruption or loss of data occurring directly or
indirectly by reason of circumstances beyond its reasonable
control, including without limitation acts of God; action or
inaction of civil or military authority; public enemy; war;
terrorism; riot; fire; flood; sabotage; epidemics; labor
disputes; civil commotion; interruption, loss or malfunction of
utilities, transportation, computer or communications
capabilities; insurrection; elements of nature; or
non-performance by a third party; and (ii) PFPC Trust shall not
be under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity, authority or lack thereof,
or truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information which PFPC
Trust reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither PFPC Trust nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or
not the likelihood of such losses or damages was known by PFPC
Trust or its affiliates and (ii) PFPC Trust's cumulative
liability to the Fund for all losses, claims, suits,
controversies, breaches or damages for any cause whatsoever
(including but not limited to those arising out of or related to
this Agreement) and regardless of the form of action or legal
theory shall not exceed the lesser of $100,000 or the fees
received by PFPC Trust for services provided hereunder during the
12 months immediately prior to the date of such loss or damage.
(d) No party may assert a cause of action against PFPC Trust or any
of its affiliates that allegedly occurred more than 12 months
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immediately prior to the filing of the suit (or, if applicable,
commencement of arbitration proceedings) alleging such cause of
action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(f) Notwithstanding anything in this Agreement to the contrary (other
than as specifically provided in Section 15(h)(ii)(B)(4) and
Section 15(h)(iii)(A) of this Agreement), the Fund shall be
responsible for all filings, tax returns and reports on any
transactions undertaken pursuant to this Agreement, or in respect
of the Property or any collections undertaken pursuant to this
Agreement, which may be requested by any relevant authority. In
addition, the Fund shall be responsible for the payment of all
taxes and similar items (including without limitation penalties
and interest related thereto).
(g) The provisions of this Section 14 shall survive termination of
this Agreement.
15. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Portfolios,
including cash received as a result of the distribution of
Shares, during the term of this Agreement. PFPC Trust will not be
responsible for such property until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PFPC Trust, acting upon
Written Instructions, shall open and maintain separate accounts
in the Fund's name using all cash received from or for the
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account of the Fund, subject to the terms of this Agreement. In
addition, upon Written Instructions, PFPC Trust shall open
separate custodial accounts for each separate Portfolio of the
Fund (collectively, the "Accounts") and shall hold in the
Accounts all cash received from or for the Accounts of the Fund
specifically designated to each separate Portfolio.
PFPC Trust shall make cash payments from or for the Accounts of a
Portfolio only for:
(i) purchases of securities in the name of a Portfolio,
PFPC Trust, PFPC Trust's nominee or a sub-custodian
or nominee thereof as provided in sub-section (j) and
for which PFPC Trust has received a copy of the
broker's or dealer's confirmation or payee's invoice,
as appropriate;
(ii) purchase or redemption of Shares of the Fund
delivered to PFPC Trust;
(iii) payment of, subject to Written Instructions,
interest, taxes (provided that tax which PFPC Trust
considers is required to be deducted or withheld "at
source" will be governed by Section 15(h)(iii)(B) of
this Agreement), administration, accounting,
distribution, advisory and management fees which are
to be borne by a Portfolio;
(iv) payment to, subject to receipt of Written
Instructions, the Fund's transfer agent, as agent for
the shareholders, of an amount equal to the amount of
dividends and distributions stated in the Written
Instructions to be distributed in cash by the
transfer agent to shareholders, or, in lieu of paying
the Fund's transfer agent, PFPC Trust may arrange for
the direct payment of cash dividends and
distributions to shareholders in accordance with
procedures mutually agreed upon from time to time by
and among the Fund, PFPC Trust and the Fund's
transfer agent.
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender
of securities owned or subscribed to by the Fund and
held by or delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with
respect to securities sold short;
(vii) payments to PFPC Trust for its services hereunder;
(viii) payments to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
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(ix) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks,
drafts or other orders for the payment of money received as custodian
for the Accounts.
(c) RECEIPT OF SECURITIES; SUBCUSTODIANS.
(i) PFPC Trust shall hold all securities received by
it for the Accounts in a separate account that
physically segregates such securities from those of
any other persons, firms or corporations, except for
securities held in a Book-Entry System or through a
sub-custodian or depository. All such securities
shall be held or disposed of only upon Written
Instructions of the Fund or otherwise pursuant to the
terms of this Agreement. PFPC Trust shall have no
power or authority to assign, hypothecate, pledge or
otherwise dispose of any such securities or
investment, except upon the express terms of this
Agreement or upon Written Instructions authorizing
the transaction. In no case may any member of the
Fund's Board of Trustees, or any officer, employee or
agent of the Fund withdraw any securities.
At PFPC Trust's own expense and for its own
convenience, PFPC Trust may enter into sub-custodian
agreements with other banks or trust companies to
perform duties described in this sub-section (c) with
respect to domestic assets. Such bank or trust
company shall have an aggregate capital, surplus and
undivided profits, according to its last published
report, of at least one million dollars ($1,000,000),
if it is a subsidiary or affiliate of PFPC Trust, or
at least twenty million dollars ($20,000,000) if such
bank or trust company is not a subsidiary or
affiliate of PFPC Trust. In addition, such bank or
trust company must be qualified to act as custodian
and agree to comply with the relevant provisions of
applicable rules and regulations. Any such
arrangement will not be entered into without prior
written notice to the Fund (or as otherwise provided
in the 1940 Act).
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In addition, PFPC Trust may enter into arrangements
with sub-custodians with respect to services
regarding foreign assets. Any such arrangement will
be entered into with prior written notice to the Fund
(or as otherwise provided in the 1940 Act).
PFPC Trust shall remain responsible for the acts and
omissions of any sub-custodian chosen by PFPC Trust
under the terms of this sub-section (c) to the same
extent that PFPC Trust is responsible for its own
acts and omissions under this Agreement.
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral Instructions or
Written Instructions and not otherwise, PFPC Trust shall:
(i) deliver any securities held for a Portfolio against the receipt of
payment for the sale of such securities or otherwise in accordance with
standard market practice;
(ii) execute and deliver to such persons as may be designated in such
Oral Instructions or Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the authority of a
Portfolio as owner of any securities may be exercised;
(iii) deliver any securities to the issuer thereof, or its agent, when
such securities are called, redeemed, retired or otherwise become
payable at the option of the holder; provided that, in any such case,
the cash or other consideration is to be delivered to PFPC Trust;
(iv) deliver any securities held for a Portfolio against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the exercise
of any conversion privilege;
(v) deliver any securities held for a Portfolio to any protective
committee, reorganization committee or other person in connection with
the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, and receive and
hold under the terms of this Agreement such certificates of deposit,
interim receipts or other instruments or documents as may be issued to
it to evidence such delivery;
(vi) make such transfer or exchanges of the assets of the Portfolios
and take such other steps as shall be stated in said Oral Instructions
or Written Instructions to be for the purpose of effectuating a duly
authorized plan of liquidation, reorganization, merger, consolidation
or recapitalization of the Fund;
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(vii) release securities belonging to a Portfolio to any bank or trust
company for the purpose of a pledge or hypothecation to secure any loan
incurred by the Fund on behalf of that Portfolio; provided, however,
that securities shall be released only upon payment to PFPC Trust of
the monies borrowed, except that in cases where additional collateral
is required to secure a borrowing already made subject to proper prior
authorization, further securities may be released for that purpose; and
repay such loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or notes
evidencing the loan;
(viii) release and deliver securities owned by a Portfolio in
connection with any repurchase agreement entered into on behalf of the
Fund, but only on receipt of payment therefor; and pay out moneys of
the Fund in connection with such repurchase agreements, but only upon
the delivery of the securities;
(ix) release and deliver or exchange securities owned by the Fund in
connection with any conversion of such securities, pursuant to their
terms, into other securities;
(x) release and deliver securities to a broker in connection with the
broker's custody of margin collateral relating to futures and options
transactions;
(xi) release and deliver securities owned by the Fund for the purpose
of redeeming in kind shares of the Fund upon delivery thereof to PFPC
Trust; and
(xii) release and deliver or exchange securities owned by the Fund for
other purposes.
PFPC Trust must also receive a certified resolution describing the nature of the
corporate purpose and the name and address of the person(s) to whom delivery
shall be made when such action is pursuant to sub-paragraph d(xii).
(e) USE OF BOOK-ENTRY SYSTEM. PFPC Trust is authorized and instructed, on a
continuous basis, to deposit in Book-Entry Systems and other depositories all
securities belonging to the Portfolios eligible for deposit therein and to
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utilize Book-Entry Systems and other depositories to the extent possible in
connection with settlements of purchases and sales of securities by the
Portfolios, and deliveries and returns of securities loaned, subject to
repurchase agreements or used as collateral in connection with borrowings. PFPC
Trust shall continue to perform such duties until it receives Written
Instructions or Oral Instructions authorizing contrary actions. PFPC Trust shall
administer a Book-Entry System or other depository as follows:
(i) With respect to securities of each Portfolio which
are maintained in a Book-Entry System or other
depository, the records of PFPC Trust shall identify
by book-entry or otherwise those securities belonging
to each Portfolio.
(ii) Assets of each Portfolio deposited in a Book-Entry
System or another depository will (to the extent
consistent with applicable law and standard practice)
at all times be segregated from any assets and cash
controlled by PFPC Trust in other than a fiduciary or
custodian capacity but may be commingled with other
assets held in such capacities.
PFPC Trust will provide the Fund with such reports on its own system of internal
control as the Fund may reasonably request from time to time.
(f) REGISTRATION OF SECURITIES. All Securities held for a
Portfolio which are issued or issuable only in bearer
form, except such securities held in the Book-Entry
System or in another depository, shall be held by PFPC
Trust in bearer form; all other securities held for a
Portfolio may be registered in the name of the Fund on
behalf of that Portfolio, PFPC Trust, a Book-Entry
System, another depository, a sub-custodian, or any
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duly appointed nominee of the Fund, PFPC Trust,
Book-Entry System, depository or sub-custodian. The
Fund reserves the right to instruct PFPC Trust as to
the method of registration and safekeeping of the
securities of the Fund. The Fund agrees to furnish to
PFPC Trust appropriate instruments to enable PFPC Trust
to hold or deliver in proper form for transfer, or to
register in the name of its nominee or in the name of
the Book-Entry System or in the name of another
appropriate entity, any securities which it may hold
for the Accounts.
(g) VOTING AND OTHER ACTION. Neither PFPC Trust nor its
nominee shall vote any of the securities held pursuant
to this Agreement by or for the account of a Portfolio,
except in accordance with Written Instructions. PFPC
Trust, directly or through the use of another entity,
shall execute in blank and promptly deliver all
notices, proxies and proxy soliciting materials
received by PFPC Trust as custodian of the Property to
the registered holder of such securities. If the
registered holder is not the Fund on behalf of a
Portfolio, then Written Instructions or Oral
Instructions must designate the person who owns such
securities. Notwithstanding anything in this Agreement
to the contrary, with respect to securities that are
out on loan the Fund acknowledges that PFPC Trust will
not be able to facilitate the proxy voting process
unless such securities are returned by the record date
for the proxy.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence
of contrary Written Instructions, PFPC Trust is
authorized to take the following actions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of each
Portfolio, all income, dividends,
distributions, coupons, option premiums,
other payments and similar items, included
or to be included in the Property, and, in
addition, promptly advise each Portfolio of
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such receipt and credit such income to each
Portfolio's custodian account;
(B) endorse and deposit for collection, in the
name of the Fund, checks, drafts, or other
orders for the payment of money;
(C) receive and hold for the account of each
Portfolio all securities received as a
distribution on the Portfolio's securities
as a result of a stock dividend, share
split-up or reorganization,
recapitalization, readjustment or other
rearrangement or distribution of rights or
similar securities issued with respect to
any securities belonging to a Portfolio and
held by PFPC Trust hereunder;
(D) present for payment and collect the amount
payable upon all securities which may mature
or be, on a mandatory basis, called,
redeemed, or retired, or otherwise become
payable on the date such securities become
payable; and
(E) take any action which may be necessary and
proper in connection with the collection and
receipt of such income and other payments
and the endorsement for collection of
checks, drafts, and other negotiable
instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) PFPC Trust is authorized to deliver or cause
to be delivered Property against payment or
other consideration or written receipt
therefor in the following cases:
(1) for examination by a broker or dealer
selling for the account of a Portfolio in
accordance with street delivery custom;
(2) for the exchange of interim receipts or
temporary securities for definitive
securities; and
(3) for transfer of securities into the
name of the Fund on behalf of a
Portfolio or PFPC Trust or a
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sub-custodian or a nominee of one of
the foregoing, or for exchange of
securities for a different number of
bonds, certificates, or other
evidence, representing the same
aggregate face amount or number of
units bearing the same interest
rate, maturity date and call
provisions, if any; provided that,
in any such case, the new securities
are to be delivered to PFPC Trust.
(B) unless and until PFPC Trust receives Oral
Instructions or Written Instructions to the
contrary, PFPC Trust shall:
(1) pay all income items held by it which call
for payment upon presentation and hold the
cash received by it upon such payment for
the account of each Portfolio;
(2) collect interest and cash dividends
received, with notice to the Fund, to the
account of each Portfolio;
(3) hold for the account of each
Portfolio all stock dividends,
rights and similar securities issued
with respect to any securities held
by PFPC Trust; and
(4) subject to receipt of such
documentation and information as
PFPC Trust may request, execute as
agent on behalf of the Fund all
necessary ownership certificates
required by a national governmental
taxing authority or under the laws
of any U.S. state now or hereafter
in effect, inserting the Fund's
name, on behalf of a Portfolio, on
such certificate as the owner of the
securities covered thereby, to the
extent it may lawfully do so.
(iii) OTHER MATTERS.
(A) subject to receipt of such documentation and
information as PFPC Trust may request, PFPC
Trust will, in such jurisdictions as PFPC
Trust may agree from time to time, seek to
reclaim or obtain a reduction with respect
to any withholdings or other taxes relating
to assets maintained hereunder (provided
that PFPC Trust will not be liable for
19
failure to obtain any particular relief in a
particular jurisdiction); and
(B) PFPC Trust is authorized to deduct or
withhold any sum in respect of tax which
PFPC Trust considers is required to be
deducted or withheld "at source" by any
relevant law or practice.
(i) SEGREGATED ACCOUNTS.
(i) PFPC Trust shall upon receipt of Written Instructions
or Oral Instructions establish and maintain
segregated accounts on its records for and on behalf
of each Portfolio. Such accounts may be used to
transfer cash and securities, including securities in
a Book-Entry System or other depository:
(A) for the purposes of compliance by the Fund
with the procedures required by a securities
or option exchange, providing such
procedures comply with the 1940 Act and any
releases of the SEC relating to the
maintenance of segregated accounts by
registered investment companies; and
(B) upon receipt of Written Instructions, for
other purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such shareholders holding
Shares through XXX accounts, in accordance with the
Fund's prospectuses, the Internal Revenue Code of
1986, as amended (including regulations promulgated
thereunder), and with such other procedures as are
mutually agreed upon from time to time by and among
the Fund, PFPC Trust and the Fund's transfer agent.
(j) PURCHASES OF SECURITIES. PFPC Trust shall settle purchased securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
20
(ii) the number of shares or the principal amount
purchased and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker
through whom the purchase was made. PFPC Trust shall
upon receipt of securities purchased by or for a
Portfolio (or otherwise in accordance with standard
market practice) pay out of the moneys held for the
account of the Portfolio the total amount payable to
the person from whom or the broker through whom the
purchase was made, provided that the same conforms to
the total amount payable as set forth in such Oral
Instructions or Written Instructions.
(k) SALES OF SECURITIES. PFPC Trust shall settle sold securities
upon receipt of Oral Instructions or Written Instructions that
specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and
accrued interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
21
(vi) the name of the broker through whom or the person to
whom the sale was made;
(vii) the location to which the security must be delivered
and delivery deadline, if any; and
(viii) the Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Portfolio upon such sale, provided that the total
amount payable is the same as was set forth in the Oral Instructions or
Written Instructions. Notwithstanding the other provisions hereof, PFPC
Trust may accept payment in such form as shall be satisfactory to it,
and may deliver securities and arrange for payment in accordance with
the customs prevailing among dealers in securities.
(l) REPORTS; PROXY MATERIALS.
(i) PFPC Trust shall furnish to the Fund the following reports:
(A) such periodic and special reports as the
Fund may reasonably request;
(B) a monthly statement summarizing all
transactions and entries for the account of
each Portfolio, listing each portfolio
security belonging to each Portfolio (with
the corresponding security identification
number) held at the end of such month and
stating the cash balance of each Portfolio
at the end of such month;
(C) the reports required to be furnished to the
Fund pursuant to Rule 17f-4 of the 1940 Act;
and
(D) such other information as may be agreed upon
from time to time between the Fund and PFPC
Trust.
22
(ii) PFPC Trust shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or conversion or similar
communication received by it as custodian of the Property. PFPC Trust shall be
under no other obligation to inform the Fund as to such actions or events. For
clarification, upon termination of this Agreement PFPC Trust shall have no
responsibility to transmit such material or to inform the Fund or any other
person of such actions or events.
(m) CREDITING OF ACCOUNTS. If PFPC Trust in its sole discretion
credits an Account with respect to (a) income, dividends,
distributions, coupons, option premiums, other payments or
similar items on a contractual payment date or otherwise in
advance of PFPC Trust's actual receipt of the amount due,
(b) the proceeds of any sale or other disposition of assets
on the contractual settlement date or otherwise in advance
of PFPC Trust's actual receipt of the amount due or (c)
provisional crediting of any amounts due, and (i) PFPC Trust
is subsequently unable to collect full and final payment for
the amounts so credited within a reasonable time period
using reasonable efforts or (ii) pursuant to standard
industry practice, law or regulation PFPC Trust is required
to repay to a third party such amounts so credited, or if
any Property has been incorrectly credited, PFPC Trust shall
have the absolute right in its sole discretion without
demand to reverse any such credit or payment, to debit or
deduct the amount of such credit or payment from the
Account, and to otherwise pursue recovery of any such
amounts so credited from the Fund. Nothing herein or
otherwise shall require PFPC Trust to make any advances or
to credit any amounts until PFPC Trust's actual receipt
thereof. The Fund hereby grants a first priority contractual
possessory security interest in and a right of setoff
against the assets maintained in an Account hereunder in the
amount necessary to secure the return and payment to PFPC
23
Trust of any advance or credit made by PFPC Trust (including
charges related thereto) to such Account.
(n) COLLECTIONS. All collections of monies or other property in
respect, or which are to become part, of the Property (but
not the safekeeping thereof upon receipt by PFPC Trust)
shall be at the sole risk of the Fund. If payment is not
received by PFPC Trust within a reasonable time after proper
demands have been made, PFPC Trust shall notify the Fund in
writing, including copies of all demand letters, any written
responses and memoranda of all oral responses and shall
await instructions from the Fund. PFPC Trust shall not be
obliged to take legal action for collection unless and until
reasonably indemnified to its satisfaction. PFPC Trust shall
also notify the Fund as soon as reasonably practicable
whenever income due on securities is not collected in due
course and shall provide the Fund with periodic status
reports of such income collected after a reasonable time.
(o) TRANSACTIONS IN CONNECTION WITH SECURITY LOANS.
Notwithstanding anything in this Agreement to the contrary,
(i) PFPC Trust shall not be considered to be the custodian
of nor shall PFPC Trust have any liability or responsibility
with respect to any securities lending collateral after
completion of the release and delivery of such securities
lending collateral in accordance with the terms of any
agreement relating to the Fund's securities lending
arrangements to which the Fund and PFPC Trust are parties;
(ii) PFPC Trust is authorized to release and deliver assets
pursuant to the terms of any agreement relating to the
Fund's securities lending arrangements to which the Fund and
PFPC Trust are parties; (iii) unless otherwise specifically
required in an agreement relating to the Fund's securities
24
lending arrangements to which the Fund and PFPC Trust are
parties, deliveries and receipts of assets in connection
with the Fund's securities lending arrangements may be made
on a free delivery or free receipt basis; and (iv) unless
otherwise specifically required in an agreement relating to
the Fund's securities lending arrangements to which the Fund
and PFPC Trust are parties, release and delivery of assets
in connection with the Fund's securities lending
arrangements may be made upon request or instruction of the
securities borrower and shall not require instruction or
approval (including without limitation Oral or Written
Instructions) from the Fund (for clarity, voluntary
corporate action processing shall continue to require
instructions from the Fund pursuant to the other provisions
of this Agreement).
(p) FOREIGN EXCHANGE. PFPC Trust and/or sub-custodians may enter
into or arrange foreign exchange transactions (at such rates
as they may consider appropriate) in order to facilitate
transactions under this Agreement, and such entities and/or
their affiliates may receive compensation in connection with
such foreign exchange transactions.
16. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or PFPC Trust on sixty (60) days' prior written
notice to the other party. In the event this Agreement is terminated
(pending appointment of a successor to PFPC Trust or vote of the
shareholders of the Fund to dissolve or to function without a
custodian of its cash, securities or other property), PFPC Trust shall
not deliver cash, securities or other property of the Portfolios to
25
the Fund. It may deliver them to a bank or trust company of PFPC
Trust's choice, having an aggregate capital, surplus and undivided
profits, as shown by its last published report, of not less than
twenty million dollars ($20,000,000), as a custodian for the Fund to
be held under terms similar to those of this Agreement. PFPC Trust
shall not be required to make any delivery or payment of assets upon
termination until full payment shall have been made to PFPC Trust of
all of its fees, compensation, costs and expenses (such expenses
include, without limitation, expenses associated with movement (or
duplication) of records and materials and conversion thereof to a
successor service provider, or to a bank or trust company pending
appointment of such successor, and all trailing expenses incurred by
PFPC Trust). PFPC Trust shall have a security interest in and shall
have a right of setoff against the Property as security for the
payment of such fees, compensation, costs and expenses.
17. CHANGE OF CONTROL. Notwithstanding any other provision of this
Agreement, in the event of an agreement to enter into a transaction
that would result in a Change of Control of the Fund's adviser or
sponsor, the Fund's ability to terminate the Agreement pursuant to
Section 16 will be suspended from the time of such agreement until
eighteen months after the Change of Control.
18. NOTICES. Notices shall be addressed (a) if to PFPC Trust at 0000
Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxx Xxxxxxxx; (b) if to the Fund, at _______, Attention:
_______; or (c) if to neither of the foregoing, at such other address
as shall have been given by like notice to the sender of any such
notice or other communication by the other party. If notice is sent by
confirming electronic, hand or facsimile sending device, it shall be
deemed to
26
have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given five days after it has been mailed.
If notice is sent by messenger, it shall be deemed to have been given
on the day it is delivered.
19. AMENDMENTS. This Agreement, or any term hereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
20. DELEGATION; ASSIGNMENT. PFPC Trust may assign its rights and delegate
its duties hereunder to any affiliate of PFPC Trust or of The PNC
Financial Services Group, Inc., provided that PFPC Trust gives the
Fund 30 days' prior written notice of such assignment or delegation.
21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
22. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties.
(b) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided
in this Agreement, PFPC Trust hereby disclaims all
representations and warranties, express or implied, made to
27
the Fund or any other person, including, without limitation,
any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to
services provided under this Agreement. PFPC Trust disclaims
any warranty of title or non-infringement except as otherwise
set forth in this Agreement.
(c) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC Trust hereunder
without the prior written approval of PFPC Trust, which
approval shall not be unreasonably withheld or delayed.
(d) CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(e) GOVERNING LAW. This Agreement shall be deemed to be a contract
made in Delaware and governed by Delaware law, without regard
to principles of conflicts of law.
(f) PARTIAL INVALIDITY. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
28
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(h) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx III
Title: Vice President
THE XXXXXX FUNDS
By: /s/ Xxxxx X. Xxxxx
Title: Vice President
30
____________, 2002
THE XXXXXX FUNDS
ALPHA SELECT TRUST
WESTLAKES INSTITUTIONAL PORTFOLIOS
RE: CUSTODIAN SERVICES FEES
Dear Sir/Madam:
This letter constitutes the agreement with respect to compensation to
be paid to PFPC Trust Company ("PFPC Trust") under the terms of (i) a Custodian
Services Agreement dated July 15, 2002 (as amended from time to time)
between PFPC Trust and The Xxxxxx Funds, (ii) a Custodian Services Agreement
dated _______, 2002 (as amended from time to time) between PFPC Trust and Alpha
Select Trust and (iii) a Custodian Services Agreement dated July 10, 2002 (as
amended from time to time) between PFPC Trust and Westlakes Institutional
Portfolios (The Xxxxxx Funds, Alpha Select Trust and Westlakes Institutional
Portfolios are together referred to as the "Funds") for services provided on
behalf of each of the Funds' portfolios as listed on Exhibit A hereto (the
"Portfolios"). Pursuant to Paragraph 12 of the respective Custodian Services
Agreements with the Funds, and in consideration of the services to be provided
to each of the Funds' Portfolios, the Funds will pay PFPC Trust certain fees and
compensate PFPC Trust for its out-of-pocket and other charges as follows:
ASSET BASED FEES:
The following fee will be calculated daily based upon the Portfolios'
total aggregate gross assets and payable monthly, in the following amounts, such
fee to be allocated based on the average gross asset value of each Portfolio:
.007% of the Portfolios' first $5 billion of aggregate gross assets;
and .006% of the Portfolios' aggregate gross assets over $5 billion.
TRANSACTION CHARGES:
A transaction includes buys, sells, calls, puts, maturities, free
deliveries, free receipts, exercised or expired options, opened or closed short
sales and the movement for each piece of underlying collateral for a repurchase
agreement, etc.
DTC/Fed book entry $ 8.50
Paydowns $ 4.00
Physical certificate $20.00
Options contract $30.00
31
Futures margin variation $10.00
Short sale $15.00
Trade revision/cancellation* $ 3.50
*Trade revisions represent those trades manually reversed as a result
of incorrect trade information from the investment advisor.
MINIMUM MONTHLY FEES:
The aggregate minimum monthly fee will be $9,583 for the Funds'
Portfolios, excluding transaction charges and out-of-pocket and other charges.
Such minimum monthly fee will be allocated based on the average gross asset
value of each Portfolio.
OUT-OF-POCKET AND OTHER CHARGES:
PFPC Trust's out-of-pocket and other charges, include, but are not
limited to, global sub-custody charges, data warehouse access fees, federal
express delivery, data transmissions, deconversion amounts, check processing
fees, $1 per month holdings charge per security, segregated accounts and federal
reserve wire fees.
MISCELLANEOUS:
With respect to any daily net overdrawn cash balances for a Portfolio,
a monthly charge shall be payable by the Portfolio based on 125% of the average
federal funds rate for that month.
PFPC Trust will, consistent with applicable law, sweep any net excess
cash balances of a Portfolio daily into an investment vehicle or other
instrument designated in writing by the applicable Fund (from which PFPC Trust
may receive compensation), so long as the vehicle or instrument is acceptable to
PFPC Trust. PFPC Trust will credit the Portfolio with such sweep earnings on a
monthly basis (less .25% of assets swept).
PFPC Trust shall be entitled to deduct its fees and charges from the
applicable Portfolio's account monthly when due, provided that PFPC Trust shall
promptly account for such fees and charges to the applicable Fund. Adjustments
to such fees and charges (if any) will be made in the next monthly payment
period.
The fee for the period from the day of the year this fee letter is
entered into until the end of that year shall be prorated according to the
proportion which such period bears to the full annual period.
32
If the foregoing accurately sets forth our agreement and you intend to
be legally bound thereby, please execute a copy of this letter and return it to
us.
Very truly yours,
PFPC TRUST COMPANY
By:___________________
Name:_________________
Title:___________________
Agreed and Accepted:
THE XXXXXX FUNDS
By: ___________________
Name: ___________________
Title: ___________________
ALPHA SELECT TRUST
By: ___________________
Name: ___________________
Title: ___________________
WESTLAKES INSTITUTIONAL PORTFOLIOS
By: ___________________
Name: ___________________
Title: ___________________
33
AMENDED EXHIBIT A
This Amended Exhibit A dated as of January 2, 2003 is Exhibit
A to the Custodian Services Fee letter dated July 15, 2002 by and among PFPC
Trust Company, The Xxxxxx Funds, Alpha Select Trust and Westlakes Institutional
Portfolios.
List of Portfolios
Financial Services Fund
Healthcare & Biotechnology Fund
Total Return Fixed Income Fund
Micro Cap Growth Fund
Mid Cap Growth Fund
New Enterprise Fund
Short Duration Fixed Income Fund
Large Cap Growth Opportunities Fund
Small Cap Equity Fund
Small Cap Growth Fund
Small Cap Value Opportunities
TAX MANAGED US EQUITY FUND
Concentrated Growth Fund
Technology Fund
Small Cap - Clover
Mid Cap - Clover
Large Cap - Clover
Core Fixed Income Fund
Alpha Select
34
Ultra Short Duration Fixed Fund
Disciplined Large Cap Growth Fund
Xxxxxx High Yield Fund (Xxxxxx Fund)
Xxxxxx Strategic Value and High Income Fund
HIGH YIELD FIXED INCOME PORTFOLIO
High Quality Fixed Income Portfolio
BBB Fixed Income Portfolio
Core Fixed Income Portfolio
Small Cap Core Portfolio
Mid Cap Core Portfolio
THE XXXXXX FUNDS PFPC TRUST COMPANY
By: __________________ By: _________________
Title: __________________ Title: _________________
WESTLAKES INSTITUTIONAL PORTFOLIOS
By: ___________________
Title: ___________________
ALPHA SELECT TRUST
By: ___________________
Title: ___________________
35
AMENDMENT
This Amendment amends the terms of the Custodian Services Agreement (the
"Agreement") dated as of July 15, 2002 between The Xxxxxx Funds (the "Fund") and
PFPC Trust Company ("PFPC Trust"). The date of this Amendment is as of December
2, 2002.
Background:
The Fund and PFPC Trust wish to amend the Agreement in connection with the
Fund's securities lending arrangements.
Terms:
In consideration of the terms set forth in this Amendment and other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
(1) The third sentence of Section 15(a) of the Agreement (i.e., the
sentence beginning with the words "For clarification") is hereby
deleted.
(2) Section 15(o) of the Agreement shall be amended and restated in its
entirety as follows:
(o) TRANSACTIONS IN CONNECTION WITH SECURITY LOANS.
Notwithstanding anything in this Agreement to the contrary,
(i) PFPC Trust shall not be considered to be the custodian of
nor shall PFPC Trust have any liability or responsibility with
respect to any securities lending collateral after completion
of the release and delivery of such securities lending
collateral in accordance with the terms of any agreement
relating to the Fund's securities lending arrangements to
which the Fund and PFPC Trust are parties; (ii) PFPC Trust is
authorized to release and deliver assets pursuant to the terms
of any agreement relating to the Fund's securities lending
arrangements to which the Fund and PFPC Trust are parties;
(iii) unless otherwise specifically required in an agreement
relating to the Fund's securities lending arrangements to
which the Fund and PFPC Trust are parties, deliveries and
receipts of assets in connection with the Fund's securities
lending arrangements may be made on a free delivery or free
receipt basis; and (iv) unless otherwise specifically required
in an agreement relating to the Fund's securities lending
arrangements to which the Fund and PFPC Trust are parties,
release and delivery of assets in connection with the Fund's
securities lending arrangements may be made upon request or
instruction of the securities borrower and shall not require
instruction or approval (including without limitation Oral or
Written Instructions) from the Fund (for clarity, voluntary
corporate action processing shall continue to require
instructions from the Fund pursuant to the other provisions of
this Agreement).
(3) Capitalized terms used by not defined herein will have the meaning
set forth in the Agreement.
36
(4) Except as specifically amended in this Amendment, the Agreement
will continue in full force and effect and be binding upon the
parties hereto, and the Agreement is hereby ratified and
confirmed as amended and supplemented hereby,
(5) This Amendment may be executed in counterparts, each of which
when executed and delivered will be an original but all
of which will together constitute one and the same agreement. A
facsimile signature will be binding upon the party executing
the Amendment.
PFPC TRUST COMPANY
By: ____________________
Title: ____________________
THE XXXXXX FUNDS
By: ____________________
37
