CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of February 23, 2004 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of
Delaware ("PFPC Trust"), and the AMERICAN FEDERATION OF LABOR CONGRESS OF
INDUSTRIAL ORGANIZATIONS HOUSING INVESTMENT TRUST, a business trust organized
under the laws of the District of Columbia (the "Trust").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to 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) "1940 Act" means the Investment Company Act of 1940, as amended.
(d) "Authorized Person" means any officer of the Trust and any other
person authorized by the Trust to give Oral or Written Instructions
on behalf of the Trust. An Authorized Person's scope of authority
may be limited by setting forth such limitation in a written
document signed by both parties hereto.
(e) "Book-Entry System" means the 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 registered with the SEC under the 1934 Act.
(f) "CEA" means the Commodities Exchange Act, as amended.
(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) "Participant" means a registered holder of a Unit of the Trust.
(i) "PFPC Trust" means PFPC Trust Company or a subsidiary or affiliate
of PFPC Trust Company.
(j) "SEC" means the Securities and Exchange Commission.
(k) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(l) "Units" mean the units of participation of the Trust.
(m) "Property" means:
(i) any and all securities and other investment items which the
Trust 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 Trust;
(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 Trust, which
are received by PFPC Trust from time to time, from or on behalf
of the Trust.
(n) "Written Instructions" mean (i) written instructions signed by two
Authorized Persons (or persons reasonably believed by PFPC Trust to
be 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 Trust hereby appoints PFPC Trust to provide
custodian services to the Trust as set forth herein and PFPC Trust
accepts such appointment and agrees to furnish such services.
3. 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 Trust or any other entity.
4. 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 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 Trust or of any vote,
resolution or proceeding of the Trust's Board of Trustees or of the
Trust's Participants, unless and until PFPC Trust receives Written
Instructions to the contrary.
(c) The Trust agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral 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.
5. Right to Receive Advice.
(a) Advice of the Trust. 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 Trust.
(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 to the
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 Trust, and the advice
it receives from counsel to the Trust, PFPC Trust shall be
entitled to rely upon and follow the advice of such counsel.
(d) Protection of PFPC Trust. PFPC Trust shall be indemnified by
the Trust 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 receives from
or on behalf of the Trust 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.
6. Records; Visits. The books and records pertaining to the Trust which are
in the possession or under the control of PFPC Trust shall be the
property of the Trust. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Trust 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 Trust, copies of any
such books and records shall be provided by PFPC Trust to the Trust or to
an authorized representative of the Trust, at the Trust's expense.
7. 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 Trust or PFPC Trust, their respective
subsidiaries and affiliated companies and the customers, clients and
suppliers of any of them; (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
Trust 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, 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: (a) it is already known to the receiving
party at the time it is obtained; (b) it is or becomes publicly known or
available through no wrongful act of the receiving party; (c) it 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) it is
released by the protected party to a third party without restriction; (e)
it 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)
release of such information by PFPC Trust is necessary or desirable in
connection with the provision of services under this Agreement; (g) it is
relevant to the defense of any claim or cause of action asserted against
the receiving party; or (h) it has been or is independently developed or
obtained by the receiving party.
8. Cooperation with Accountants. PFPC Trust shall cooperate with the
Trust's independent public accountants and shall take all reasonable
action to make any requested information available to such accountants as
the Trust may reasonably request.
9. 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
Trust.
10. 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 Trust, 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 negligence, willful
misfeasance, or fraud.
11. Compensation. As compensation for custody services rendered by PFPC
Trust during the term of this Agreement, the Trust will pay to PFPC Trust
a fee or fees as may be agreed to in writing from time to time by the
Trust and PFPC Trust. The Trust acknowledges that PFPC Trust may receive
float benefits in connection with maintaining certain accounts required
to provide services under this Agreement.
12. Indemnification.
(a) The Trust agrees to indemnify, defend and hold harmless PFPC Trust
and its affiliates, including their respective officers, directors,
agents and employees from all taxes, charges, expenses,
assessments, claims and liabilities (including, without limitation,
reasonable 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 Trust. 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 negligence, willful
misfeasance, or fraud in the performance of PFPC Trust's activities
under this Agreement. The provisions of this Section 12 shall
survive termination of this Agreement.
(b) PFPC agrees to indemnify, defend and hold harmless the Trust,
including its officers, directors, agents and employees, from any
and all direct damages sustained or incurred because of or in
connection with this agreement; provided, however, that PFPC Trust
shall only indemnify the Trust for those direct damages arising out
of PFPC Trust's own negligence, willful misfeasance of fraud.
13. Responsibility of PFPC Trust.
(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of the Trust except as specifically set forth herein or as
may be specifically agreed to by PFPC Trust and the Trust 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 and only to the extent such damages arise out of PFPC
Trust's negligence, willful misfeasance, or fraud.
(b) Notwithstanding anything in this Agreement to the contrary, (i)
PFPC Trust shall not be liable for losses, delays, failure, 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, 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.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) Notwithstanding anything in this Agreement to the contrary (other
than as specifically provided in Section 14(h)(ii)(B)(4) and Section
14(h)(iii)(A) of this Agreement), the Trust 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 Trust shall
be responsible for the payment of all taxes and similar items
(including without limitation penalties and interest related
thereto).
(f) The provisions of this Section 13 shall survive termination of this
Agreement.
(g) Notwithstanding anything in this Agreement to the contrary, PFPC
Trust shall have no liability either for any error or omission of
any of its predecessors as servicer on behalf of the Fund or for any
failure to discover any such error or omission.
14. Description of Services.
(a) Delivery of the Property. The Trust will deliver or arrange
for delivery to PFPC Trust, all the Property owned by the
Trust, including cash received as a result of the distribution
of Units, during the term of this Agreement. PFPC Trust will
not be responsible for any assets until actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon
Written Instructions, shall open and maintain one or more
separate accounts for the Trust (each, an "Account") and shall
maintain in such Account all cash and other assets received
from or for the Trust specifically designated to such Account.
PFPC Trust shall make cash payments from or for the Trust only for:
(i) purchases of securities in the name of the Trust, 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 Units of the Trust 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
14(h)(iii)(B) of this Agreement), administration, accounting,
distribution, advisory and management fees which are to be
borne by the Trust;
(iv) payment to, subject to receipt of Written Instructions, the
Trust's transfer agent, as agent for the Participants, of an
amount equal to the amount of distributions stated in the
Written Instructions to be distributed in cash by the transfer
agent to Participants, or, in lieu of paying the Trust's
transfer agent, PFPC Trust may arrange for the direct payment
of cash distributions to Participants in accordance with
procedures mutually agreed upon from time to time by and among
the Trust, PFPC Trust and the Trust'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 Trust and held by or delivered to PFPC
Trust; and
(vi) 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 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 Trust's Board of Trustees, or any
officer, employee or agent of the Trust 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 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 under applicable law,
including the 1940 Act, 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 Trust (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 the Trust 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 the Trust 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 the Trust against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer,
merger, consolidation or recapitalization of any
corporation, or the exercise of any conversion privilege;
(v) deliver any securities held for the Trust 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 Trust
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 Trust;
(vii) release securities belonging to the Trust to any bank or trust
company for the purpose of a pledge or hypothecation to secure
any loan incurred by the Trust; 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 the Trust in
connection with any repurchase agreement entered into by the
Trust, but only on receipt of payment therefor; and pay out
monies of the Trust in connection with such repurchase
agreements, but only upon the delivery of the securities;
(ix) release and deliver or exchange securities owned by the Trust
in connection with any conversion of such securities, pursuant
to their terms, into other securities;
(x) release and deliver securities owned by the Trust for the
purpose of redeeming in kind Units of the Trust upon delivery
thereof to PFPC Trust; and
(xi) release and deliver or exchange securities owned by the Trust
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(xi).
(e) Use of Book-Entry System or Other Depository. PFPC Trust will
deposit in Book-Entry Systems and other depositories all securities
belonging to the Trust eligible for deposit therein and will utilize
Book-Entry Systems and other depositories to the extent possible in
connection with settlements of purchases and sales of securities by
the Trust, and deliveries and returns of securities 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. Notwithstanding anything in this Agreement to the
contrary, PFPC Trust's use of a Book-Entry System shall comply with
the requirements of Rule 17f-4 under the 1940 Act.
PFPC Trust shall administer a Book-Entry System or other depository
as follows:
(i) With respect to securities of the Trust which are maintained in
a Book-Entry System or another depository, the records of PFPC
Trust shall identify by book-entry or otherwise those securities
as belonging to the Trust.
(ii) Assets of the Trust 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 Trust with such reports on its own
system of internal control as the Trust may reasonably request from
time to time.
(f) Registration of Securities. All securities held for the Trust which
are issued or issuable only in bearer form, except such securities
maintained in the Book-Entry System or in another depository, shall
be held by PFPC Trust in bearer form; all other securities
maintained for the Trust may be registered in the name of the Trust,
PFPC Trust, a Book-Entry System, another depository, a
sub-custodian, or any duly appointed nominee of the Trust, PFPC
Trust, Book-Entry System, depository or sub-custodian. The Trust
reserves the right to instruct PFPC Trust as to the method of
registration and safekeeping of the securities of the Trust. The
Trust agrees to furnish to PFPC Trust appropriate instruments to
enable PFPC Trust to maintain 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 maintain for the Accounts. With
respect to uncertificated securities which are registered in the
name of the Trust (or a nominee thereof), PFPC Trust will reflect
such securities on its records based upon the holdings information
provided to it by the issuer of such securities, but notwithstanding
anything in this Agreement to the contrary PFPC Trust shall not be
obligated to safekeep such securities or to perform other duties
with respect to such securities other than to make payment for the
purchase of such securities upon receipt of Oral or Written
Instructions, accept in sale proceeds received by PFPC Trust upon
the sale of such securities of which PFPC Trust is informed pursuant
to Oral or Written Instructions, and accept in other distributions
received by PFPC Trust with respect to such securities or reflect on
its records any reinvested distributions with respect to such
securities of which it is informed by the issuer of the securities.
(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 the Trust, 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 Trust, then Written
Instructions or Oral Instructions must designate the person who owns
such securities.
(h) Transactions Not Requiring Instructions. Notwithstanding anything
in this Agreement requiring instructions in order to take a
particular action, in the absence of a contrary Written Instruction,
PFPC Trust is authorized to take the following actions without the
need for instructions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of the Trust, 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
the Trust of such receipt and credit such income to the
Trust's custodian account;
(B) endorse and deposit for collection, in the name of the
Trust, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of the Trust all
securities received as a distribution on the Trust's
securities as a result of a stock dividend, share split-up
or reorganization, recapitalization, readjustment or other
rearrangement or distribution of rights or similar
securities issued with respect to any securities belonging
to the Trust and held by PFPC Trust hereunder;
(D) present for payment and collect the amount payable upon all
securities which may mature or be called, redeemed, retired
or otherwise become payable (on a mandatory basis) 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 the Trust in accordance with street
delivery custom;
(2) for the exchange of interim receipts or temporary
securities for definitive securities;
(3) for transfer of securities into the name of the Trust
on behalf of the Trust or PFPC Trust or a
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;
(4) for the exchange of construction loan securities for
permanent loan securities; and
(5) for the exchange of existing participation
certificates for new participation certificates in
connection with a construction draw.
(B) 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 the Trust;
(2) collect interest and cash dividends received,
with notice to the Trust, to the account of the
Trust;
(3) hold for the account of the Trust all stock
dividends, rights and similar securities issued
with respect to any securities held by PFPC Trust
on behalf of the Trust; and
(4) subject to receipt of such documentation and
information as PFPC Trust may request, execute as
agent on behalf of the Trust 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 Trust's name 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
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 the Trust. 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 Trust 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.
(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;
(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; and
(vi) 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 the
Trust (or otherwise in accordance with standard market practice) pay
out of the monies held for the account of the Trust 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 Trust upon such sale;
(vi) the name of the broker through whom or the person to whom the
sale was made; and
(vii) the location to which the security must be delivered and
delivery deadline, if any.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Trust upon such sale, provided that the total
amount payable is the same as was set forth in the Oral Instructions or
Written Instructions. Notwithstanding anything to the contrary in this
Agreement, PFPC Trust may accept payment in such form as is consistent
with standard industry practice and may deliver securities and arrange
for payment in accordance with the customs prevailing among dealers in
securities.
(l) Reports; Online Access; Proxy Materials.
(i) PFPC Trust shall furnish to the Trust the following reports:
(A) such periodic and special reports as the Trust may
reasonably request;
(B) a monthly statement summarizing all transactions and entries
for the account of the Trust, listing each portfolio
security belonging to the Trust (with the corresponding
security identification number) held at the end of such
month and stating the cash balance of the Trust at the end
of such month.
(C) any reports required to be furnished to the Trust pursuant
to the Securities Laws or other applicable law; and
(D) such other information as may be agreed upon from time to
time between the Trust and PFPC Trust.
(ii) PFPC Trust shall make its proprietary DataPath system (or any
replacement system) available to the Trust to provide the Trust
with immediate access to all current and historical custody data
(including, but not limited to, monthly transaction statements,
account balance information and daily activity) and as an
interface for the Trust to download information for the creation
of any customized reporting.
(iii) PFPC Trust shall transmit promptly to the Trust 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 Trust
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 Trust or any other person
of such actions or events.
(m) Crediting of Accounts. PFPC Trust may in its sole discretion
credit an Account with respect to income, dividends,
distributions, coupons, option premiums, other payments or similar
items prior to PFPC Trust's actual receipt thereof, and in
addition PFPC Trust may in its sole discretion credit or debit the
assets in an Account on a contractual settlement date with respect
to any sale, exchange or purchase applicable to the Account;
provided that nothing herein or otherwise shall require PFPC Trust
to make any advances or to credit any amounts until PFPC Trust's
actual receipt thereof; and further provided that PFPC Trust shall
promptly notify the Trust of any such credit or debit. If PFPC
Trust 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 Trust;
provided that PFPC Trust shall promptly notify the Trust of any
such reversal, debit or deduction. The Trust 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
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 of, 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 Trust. If payment is not received by PFPC
Trust within a reasonable time after proper demands have been
made, PFPC Trust shall notify the Trust in writing, including
copies of all demand letters, any written responses and memoranda
of all oral responses and shall await instructions from the Trust.
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 Trust as soon as
reasonably practicable whenever income due on securities is not
collected in due course and shall provide the Trust with periodic
status reports of such income collected after a reasonable time.
15. PFPC Trust DataPath(SM) Access ("DataPath") Services.
(a) PFPC Trust shall provide to the Trust the following DataPath
Internet access services:
(i) Provide Internet access to PFPC Trust DataPath services at
xxx.xxxxxxxxxxxx.xxx or other site operated by PFPC Trust
(the "Site") for Trust portfolio data otherwise supplied by
PFPC Trust to the Trust service providers via other
electronic and manual methods. Types of information to be
provided on the Site include: (i) data relating to Trust
transactions; and (ii) Trust security and cash balances
(collectively, the "Custody Services").
(ii) Supply each of the authorized users (an "Authorized User"),
as specified in writing by an Authorized Person , with a
logon ID and Password;
(iii) Provide to Authorized Users access to the information listed
in subsection (i) above using standard inquiries and reports.
(iv) Utilize a form of encryption that is generally available to
the public in the U.S. for standard Internet browsers and
establish, monitor and verify firewalls and other security
features (commercially reasonable for this type of
information and these types of users) and exercise
commercially reasonable efforts to attempt to maintain the
security and integrity of the Site.
(b) In connection with the DataPath services, it is understood that it
shall be the responsibility of the Trust to (i) provide and maintain
a web browser supporting Secure Sockets Layer 128-bit encryption;
(ii) keep logon IDs and passwords confidential; and (iii) notify PFPC
immediately in the event that a logon ID or password is lost, stolen
or if you have reason to believe that the logon ID and password are
being used by an unauthorized person.
(c) The Trust acknowledges that the Internet is an "open," publicly
accessible network and not under the control of any party. PFPC
Trust's provision of Custody Services is dependent upon the proper
functioning of the Internet and services provided by
telecommunications carriers, firewall providers, encryption system
developers and others. The Trust agrees that PFPC Trust shall not be
liable in any respect for the actions or omissions of any third party
wrongdoers (i.e., hackers not employed by such party or its
affiliates) or of any third parties involved in the Custody Services
and shall not be liable in any respect for the selection of any such
third party, unless that selection constitutes a breach of PFPC
Trust's standard of care above.
16. Duration and Termination.
(a) This Agreement shall continue for a period of three years from [the
date first written above] (the "Initial Term") and will be renewed
thereafter from year to year (each a "Renewal Term") unless
terminated by either party as provided below. This Agreement may be
terminated upon the expiration of the Initial Term or the applicable
Renewal Term by the Trust or PFPC Trust on ninety (90) days" prior
written notice to the other party, which notice must be received at
least ninety (90) days" prior to the expiration of the then current
term. In the event this Agreement is terminated (pending
appointment of a successor to PFPC Trust or vote of the Board of
Trustees of the Trust to function without a custodian of its cash,
securities or other property, as provided below), PFPC Trust shall
not deliver cash, securities or other property of the Trust to the
Trust. 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 (including without limitation reasonable fees and
reasonable expenses associated with deconversion or conversion to
another service provider and other reasonable trailing expenses
incurred by PFPC Trust). PFPC Trust shall have a first priority
contractual possessory 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. Successor Custodian. If a successor custodian shall be appointed by the
Board of Trustees of the Trust, PFPC Trust shall, upon termination,
without cost to the Trust at the expense of the Trust as described in
Section 16 above, deliver to such successor custodian, duly endorsed and
in the form for transfer, all Property then held by it hereunder, and
shall transfer to an account of the successor custodian all of the
Trust's securities held in a Book-Entry System or other depository. If
no successor custodian shall be appointed, PFPC Trust shall, in like
manner, upon receipt of a copy of a vote of the Board of Trustees,
deliver and transfer such Property in the manner directed by the vote of
the Board. In the event that PFPC Trust does not receive a notice of
appointment of a successor custodian or copy of a vote of the Board, PFPC
Trust may, upon termination, deliver the Property to a bank or trust
company (which is a "bank" as defined in the 0000 Xxx) of PFPC Trust's
choice, having aggregate capital, surplus and undivided profits, as shown
by its last published report, of not less than twenty million dollars
($20,000,000), and qualified to serve as a custodian under the 1940 Act,
as custodian for the Trust to be held under terms similar to those of
this Agreement.
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 Trust, at 0000 X Xxxxxx, Xxx. 000, Xxxxxxxxxx,
X.X. 00000, Attention: Controller; 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 delivery, hand or facsimile
sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been given
five days after it has been mailed. If notice is sent by messenger, it
shall be deemed to have been given on the day it is delivered.
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 Trust 30 days'
prior written notice of such assignment or delegation.
19. 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.
21. 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 the Trust 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 Trust 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) Information. The Trust will provide such information and
documentation as PFPC Trust may reasonably request in connection
with services provided by PFPC Trust to the Trust.
(f) 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.
(g) 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.
(h) 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.
(i) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(j) Customer Identification Program Notice. To help the U.S. government
fight the funding Trusting of terrorism and money laundering
activities, U.S. Federal law requires each financial institution to
obtain, verify, and record certain information that identifies each
person who initially opens an account with that financial
