FORM OF
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of ___________, 1998 by and between PNC BANK,
NATIONAL ASSOCIATION, a national banking association ("PNC Bank"), and GOLF
ASSOCIATED FUND, 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 PNC Bank to provide custodian services,
and PNC Bank 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) "AUTHORIZED PERSON" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Trustees to give Oral
Instructions and Written Instructions on behalf of the Fund and
listed on the Authorized Persons Appendix attached hereto and made a
part hereof or any amendment thereto as may be received by PNC Bank.
An Authorized Person's scope of authority may be limited by the Fund
by setting forth such limitation in the Authorized Persons Appendix.
(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury book-entry system
for United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934
Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "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 PNC Bank from
an Authorized Person or from a person reasonably believed by PNC
Bank to be an Authorized Person.
(h) "PNC BANK" means PNC Bank, National Association or a subsidiary or
affiliate of PNC Bank, National Association.
(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.
(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 PNC Bank or which PNC Bank may from time to time hold for
the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the Fund,
which are received by PNC Bank from time to time, from or on
behalf of the Fund.
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(m) "WRITTEN INSTRUCTIONS" mean written instructions signed by two
Authorized Persons and received by PNC Bank. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. APPOINTMENT. The Fund hereby appoints PNC Bank to provide custodian
services to the Fund, on behalf of each of its investment portfolios
(each, a "Portfolio"), and PNC Bank accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PNC Bank with the following:
(a) certified or authenticated copies of the resolutions of the Fund's
Board of Trustees, approving the appointment of PNC Bank 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 agreement with respect to each
class of Shares;
(e) a copy of each Portfolio's administration agreement if PNC Bank is
not providing the Portfolio with such services;
(f) copies of any shareholder servicing 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.
PNC Bank undertakes to comply with all applicable requirements of the
Securities Laws and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be performed
by PNC Bank hereunder. Except as specifically set forth herein, PNC Bank
assumes no responsibility for such compliance by the Fund or any
Portfolio.
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5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PNC Bank shall act only
upon Oral Instructions and Written Instructions.
(b) PNC Bank shall be entitled to rely upon any Oral Instructions and
Written Instructions it receives from an Authorized Person (or from
a person reasonably believed by PNC Bank to be an Authorized Person)
pursuant to this Agreement. PNC Bank may assume that any Oral
Instructions or Written Instructions received hereunder are not in
any way inconsistent with the provisions of organizational documents
of the Fund or of any vote, resolution or proceeding of the Fund's
Board of Trustees or of the Fund's shareholders, unless and until
PNC Bank receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PNC Bank Written Instructions
confirming Oral Instructions (except where such Oral Instructions
are given by PNC Bank or its affiliates) so that PNC Bank receives
the Written Instructions by the close of business on the same day
that such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PNC Bank shall
in no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear to have been
received from an Authorized Person, PNC Bank shall incur no
liability to the Fund in acting upon such Oral Instructions or
Written Instructions provided that PNC Bank's actions comply with
the other provisions of this Agreement.
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6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PNC Bank is in doubt as to any action it
should or should not take, PNC Bank may request directions or
advice, including Oral Instructions or Written Instructions, from
the Fund.
(b) ADVICE OF COUNSEL. If PNC Bank shall be in doubt as to any question
of law pertaining to any action it should or should not take, PNC
Bank may request advice at its own cost from such counsel of its own
reasonable choosing (who may be counsel for the Fund, the Fund's
investment adviser or PNC Bank, at the option of PNC Bank).
(c) CONFLICTING ADVICE. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PNC Bank
receives from the Fund, and the advice it receives from counsel, PNC
Bank shall be entitled to rely upon and follow the advice of
counsel. In the event PNC Bank so relies on the advice of counsel,
PNC Bank remains liable for any action or omission on the part of
PNC Bank which constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by PNC Bank of any duties,
obligations or responsibilities set forth in this Agreement.
(d) PROTECTION OF PNC BANK. PNC Bank shall be protected in any action it
takes or does not take in reliance upon directions, advice or Oral
Instructions or Written Instructions it receives from the Fund or
from counsel and which PNC Bank believes, in good faith, to be
consistent with those directions, advice or Oral Instructions or
Written Instructions. Nothing in this section shall be construed so
as to impose an obligation upon PNC Bank (i) to seek such
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directions, advice or Oral Instructions or Written Instructions, or
(ii) to act in accordance with such directions, advice or Oral
Instructions or Written Instructions unless, under the terms of
other provisions of this Agreement, the same is a condition of PNC
Bank's properly taking or not taking such action. Nothing in this
subsection shall excuse PNC Bank when an action or omission on the
part of PNC Bank constitutes willful misfeasance, bad faith, gross
negligence or reckless disregard by PNC Bank of any duties,
obligations or responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Fund and any
Portfolio, which are in the possession or under the control of PNC Bank,
shall be the property of the Fund. Such books and records shall be
prepared and maintained as required by the 1940 Act and other applicable
securities laws, rules and regulations. The Fund and Authorized Persons
shall have access to such books and records at all times during PNC Bank's
normal business hours. Upon the reasonable request of the Fund, copies of
any such books and records shall be provided by PNC Bank to the Fund or to
an authorized representative of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. PNC Bank agrees to keep confidential all records of the
Fund and information relating to the Fund and its shareholders, unless the
release of such records or information is otherwise consented to, in
writing, by the Fund. The Fund agrees that such consent shall not be
unreasonably withheld and may not be withheld where PNC Bank may be
exposed to civil or criminal contempt proceedings or when required to
divulge such information or records to duly constituted authorities.
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9. COOPERATION WITH ACCOUNTANTS. PNC Bank shall cooperate with the Fund's
independent public accountants and shall take all reasonable action in the
performance of its obligations under this Agreement to ensure that the
necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. DISASTER RECOVERY. PNC Bank shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to
the extent appropriate equipment is available. In the event of equipment
failures, PNC Bank shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PNC Bank shall have no
liability with respect to the loss of data or service interruptions caused
by equipment failure provided such loss or interruption is not covered by
PNC Bank's own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties or obligations under this Agreement.
11. YEAR 2000 REPRESENTATION.
(a) The Fund and PFPC acknowledge that the ability of each party to
perform its obligations hereunder may depend upon the ability of
certain of such party's computer system/applications to recognize
and perform properly date-sensitive functions involving dates prior
to and after December 31, 1999, including leap year calculations
(the "Year 2000 Change"). Each party represents to the others that
(i) each is reviewing those operations within such party's
organization involved in the Services described herein and which
could be adversely affected by the Year 2000 Change and is
developing or has developed a program to remediate or replace
affected applications/systems on a timely basis, and to test such
remediation or replacement on a timely basis and (ii) that based
upon the foregoing, to the best of each party's knowledge and
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belief, the Year 2000 Change will not have a material adverse affect
on the ability of such party to perform hereunder.
(b) The Fund and PFPC agree to contact any third-party vendors involved
in their respective performance under this Agreement to determine
such vendors' strategies and time-lines regarding the Year 2000
Change and to communicate such information to the other parties to
this Agreement.
12. COMPENSATION. As compensation for custody services rendered by PNC Bank
during the term of this Agreement, the Fund, on behalf of each of the
Portfolios, will pay to PNC Bank a fee or fees as may be agreed to in
writing from time to time by the Fund and PNC Bank.
13. INDEMNIFICATION
(a) The Fund, on behalf of each Portfolio, agrees to indemnify and hold
harmless PNC Bank and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including, without
limitation, liabilities arising under the Securities Laws and any
state and foreign securities and blue sky laws, and amendments
thereto, and expenses, including (without limitation) attorneys'
fees and disbursements, arising directly or indirectly from any
action or omission to act which PNC Bank takes (i) at the request or
on the direction of or in reliance on the advice of the Fund or (ii)
upon Oral Instructions or Written Instructions. Neither PNC Bank,
nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) arising out
of PNC Bank's or its affiliates' own willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties under this
Agreement.
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(b) In order that the indemnification provisions contained in this
section shall apply, it is understood that in any case in which the
Fund may be asked to indemnify or hold PNC Bank harmless, the Fund
shall be timely advised of material facts concerning the situation
in question, and it is further understood that PNC Bank will use
reasonable care to notify the Fund on a timely basis of a claim for
indemnification against the Fund. Failure by PNC Bank to furnish the
information provided for in the preceding sentence will not impair
PNC Bank's right to indemnification hereunder unless such failure
materially impairs the Fund's ability to defend the claim. The Fund
shall have the option, which will be undertaken at the expense of
the Fund, to defend PNC Bank against any claim which may be the
subject of this indemnification, which option must be exercised
within a time period that will not materially adversely affect PNC
Bank. In the event that the Fund so elects, it will so notify PNC
Bank and thereupon the Fund shall take over complete defense of the
claim, and PNC Bank shall in such situation initiate no further
legal or other expenses for which it shall seek indemnification
under this section. Such defense shall be conducted by counsel
reasonably acceptable to PNC Bank. PNC Bank shall in no case confess
any claim or make any compromise in any case in which the Fund will
be asked to indemnify PNC Bank except with the Fund's prior written
consent. The Fund will not settle or make any compromise of any
claim, demand, expense or liability without PNC Bank's prior
consent.
14. RESPONSIBILITY OF PNC BANK.
(a) PNC Bank shall be under no duty to take any action on behalf of the
Fund or any Portfolio except as specifically set forth herein or as
may be specifically agreed to by PNC Bank in writing. PNC Bank shall
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be obligated to exercise reasonable care and diligence in the
performance of its duties hereunder, to act in good faith and to use
its best efforts, within reasonable limits, in performing services
provided for under this Agreement. PNC Bank shall be liable for any
taxes, charges, expenses, assessments, claims and liabilities of the
Fund arising out of PNC Bank's failure to perform its duties under
this agreement to the extent such damages arise out of PNC Bank's
willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties under this Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PNC Bank shall not be under any
duty or obligation to inquire into and shall not be liable for (A)
the validity or invalidity or authority or lack thereof of any Oral
Instruction or Written Instruction, notice or other instrument which
conforms to the applicable requirements of this Agreement, and which
PNC Bank reasonably believes to be genuine; or (B) subject to
section 10, delays or errors or loss of data occurring by reason of
circumstances beyond PNC Bank's control, including acts of civil or
military authority, national emergencies, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PNC Bank nor its affiliates shall be liable to the Fund or to any
Portfolio for any consequential, special or indirect losses or
damages which the Fund may incur or suffer by or as a consequence of
PNC Bank's or its affiliates' performance of the services provided
hereunder, whether or not the likelihood of such losses or damages
was known by PNC Bank or its affiliates.
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15. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Fund will deliver or arrange for
delivery to PNC Bank, all the Property owned by the Portfolios,
including cash received as a result of the distribution of Shares,
during the period that is set forth in this Agreement. PNC Bank will
not be responsible for such property until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PNC Bank, acting upon Written
Instructions, shall open and maintain separate accounts in the
Fund's name using all cash received from or for the account of the
Fund, subject to the terms of this Agreement. In addition, upon
Written Instructions, PNC Bank shall open separate custodial
accounts for each separate series or Portfolio of the Fund
(collectively, the "Accounts") and shall hold in the Accounts all
cash received from or for the Accounts of the Fund specifically
designated to each separate series or Portfolio. PNC Bank shall make
cash payments from or for the Accounts of a Portfolio only for:
(i) purchases of securities in the name of a Portfolio or PNC Bank
or PNC Bank's nominee as provided in sub-section (j) and for
which PNC Bank has received a copy of the broker's or dealer's
confirmation or payee's invoice, as appropriate;
(ii) purchase or redemption of Shares of the Fund delivered to PNC
Bank;
(iii) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory, management
fees or similar operating expenses 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, an
amount equal to the amount of dividends and distributions
stated in the Written Instructions to be distributed in cash
by the transfer agent to shareholders, or, in lieu of paying
the Fund's transfer agent, PNC Bank may arrange for the direct
payment of cash dividends and distributions to shareholders in
accordance with procedures mutually agreed upon from time to
time by and among the Fund, PNC Bank and the Fund's transfer
agent.
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(v) payments, upon receipt Written Instructions, in connection
with the conversion, exchange or surrender of securities owned
or subscribed to by the Fund and held by or delivered to PNC
Bank;
(vi) payments of the amounts of dividends received with respect to
securities sold short;
(vii) payments made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(viii)payments, upon Written Instructions, made for other proper
Fund purposes.
PNC Bank 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) PNC Bank 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. All such securities shall be held or disposed of only
upon Written Instructions of the Fund pursuant to the terms of
this Agreement. PNC Bank shall have no power or authority to
assign, hypothecate, pledge or otherwise dispose of any such
securities or investment, except upon the express terms of
this Agreement and upon Written Instructions, accompanied by a
certified resolution of the Fund's Board of Trustees,
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.
(ii) At PNC Bank's own expense and for its own convenience, PNC
Bank may enter into sub-custodian agreements with other United
States banks or trust companies to perform duties described in
this sub-section (c). Such 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 PNC Bank,
or at least twenty million dollars ($20,000,000) if such bank
or trust company is not a subsidiary or affiliate of PNC Bank.
In addition, such bank or trust company must be qualified to
act as custodian and agree to comply with the relevant
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provisions of the 1940 Act and other applicable rules and
regulations. Any such arrangement will not be entered into
without prior written notice to the Fund.
PNC Bank shall remain responsible for the performance of all of its duties
as described in this Agreement and shall hold the Fund and each Portfolio
harmless from its own acts or omissions, under the standards of care
provided for herein, or the acts and omissions of any sub-custodian chosen
by PNC Bank under the terms of this sub-section (c).
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PNC Bank,
directly or through the use of the Book-Entry System, shall:
(i) deliver any securities held for a Portfolio against the
receipt of payment for the sale of such securities;
(ii) execute and deliver to such persons as may be designated in
such Oral Instructions or Written Instructions, proxies,
consents, authorizations, and any other instruments whereby
the authority of 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; provided that, in any such case, the
cash or other consideration is to be delivered to PNC Bank;
(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,
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reorganization, merger, consolidation or recapitalization of
the Fund;
(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 PNC Bank of the monies borrowed,
except that in cases where additional collateral is required
to secure a borrowing already made subject to proper prior
authorization, further securities may be released for that
purpose; and repay such loan upon redelivery to it of the
securities pledged or hypothecated therefor and upon surrender
of the note or notes evidencing the loan;
(viii)release and deliver securities owned by 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 owned by the Fund for the
purpose of redeeming in kind shares of the Fund upon delivery
thereof to PNC Bank; and
(xi) release and deliver or exchange securities owned by the Fund
for other corporate purposes.
PNC Bank must also receive a certified resolution describing
the nature of the corporate purpose and the name and address
of the person(s) to whom delivery shall be made when such
action is pursuant to sub-paragraph d.
(e) USE OF BOOK-ENTRY SYSTEM. The Fund shall deliver to PNC Bank
certified resolutions of the Fund's Board of Trustees approving,
authorizing and instructing PNC Bank on a continuous basis, to
deposit in the Book-Entry System all securities belonging to the
Portfolios eligible for deposit therein and to utilize the
Book-Entry System to the extent possible in connection with
settlements of purchases and sales of securities by the Portfolios,
and deliveries and returns of securities loaned, subject to
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repurchase agreements or used as collateral in connection with
borrowings. PNC Bank shall continue to perform such duties until it
receives Written Instructions or Oral Instructions authorizing
contrary actions.
PNC Bank shall administer the Book-Entry System as follows:
(i) With respect to securities of each Portfolio which are
maintained in the Book-Entry System, the records of PNC Bank
shall identify by Book-Entry or otherwise those securities
belonging to each Portfolio. PNC Bank shall furnish to the
Fund a detailed statement of the Property held for each
Portfolio under this Agreement at least monthly and from time
to time and upon written request.
(ii) Securities and any cash of each Portfolio deposited in the
Book-Entry System will at all times be segregated from any
assets and cash controlled by PNC Bank in other than a
fiduciary or custodian capacity but may be commingled with
other assets held in such capacities. PNC Bank and its
sub-custodian, if any, will pay out money only upon receipt of
securities and will deliver securities only upon the receipt
of money.
(iii) All books and records maintained by PNC Bank which relate to
the Fund's participation in the Book-Entry System will at all
times during PNC Bank's regular business hours be open to the
inspection of Authorized Persons, and PNC Bank will furnish to
the Fund all information in respect of the services rendered
as it may require.
PNC Bank will also 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, shall be held by PNC Bank
in bearer form; all other securities held for a Portfolio may be
registered in the name of the Fund on behalf of that Portfolio, PNC
Bank, the Book-Entry System, a sub-custodian, or any duly appointed
nominees of the Fund, PNC Bank, Book-Entry System or sub-custodian.
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The Fund reserves the right to instruct PNC Bank as to the method of
registration and safekeeping of the securities of the Fund. The Fund
agrees to furnish to PNC Bank appropriate instruments to enable PNC
Bank to hold or deliver in proper form for transfer, or to register
in the name of its nominee or in the name of the Book-Entry System,
any securities which it may hold for the Accounts and which may from
time to time be registered in the name of the Fund on behalf of a
Portfolio.
(g) VOTING AND OTHER ACTION. Neither PNC Bank nor its nominee shall vote
any of the securities held pursuant to this Agreement by or for the
account of a Portfolio, except in accordance with Written
Instructions. PNC Bank, directly or through the use of the
Book-Entry System, shall execute in blank and promptly deliver all
notices, proxies and proxy soliciting materials to the registered
holder of such securities. If the registered holder is not the Fund
on behalf of a Portfolio, then Written Instructions or Oral
Instructions must designate the person who owns such securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of contrary
Written Instructions, PNC Bank is authorized to take the following
actions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of 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 such receipt and
credit such income, as collected, 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;
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(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 PNC Bank
hereunder;
(D) present for payment and collect the amount payable upon
all securities which may mature or be called, redeemed,
or retired, or otherwise become payable on the date such
securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such
income and other payments and the endorsement for
collection of checks, drafts, and other negotiable
instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) deliver or cause to be delivered Property against
payment or other consideration or written receipt
therefor in the following cases:
(1) for examination by a broker or dealer selling for
the account of 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 PNC Bank or
nominee of either, or for exchange of securities
for a different number of bonds, certificates, or
other evidence, representing the same aggregate
face amount or number of units bearing the same
interest rate, maturity date and call provisions,
if any; provided that, in any such case, the new
securities are to be delivered to PNC Bank.
(B) Unless and until PNC Bank receives Oral Instructions or
Written Instructions to the contrary, PNC Bank shall:
(1) pay all income items held by it which call for
payment upon presentation and hold the cash
received by it upon such payment for the account
of each Portfolio;
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(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 PNC Bank;
and
(4) execute as agent on behalf of the Fund all
necessary ownership certificates required by the
Internal Revenue Code or the Income Tax
Regulations of the United States Treasury
Department or under the laws of any state now or
hereafter in effect, inserting the Fund's name, on
behalf of a Portfolio, on such certificate as the
owner of the securities covered thereby, to the
extent it may lawfully do so.
(i) SEGREGATED ACCOUNTS.
(i) PNC Bank shall upon receipt of Written Instructions or Oral
Instructions establish and maintain a segregated accounts on
its records for and on behalf of each Portfolio. Such accounts
may be used to transfer cash and securities, including
securities in the Book-Entry System:
(A) for the purposes of compliance by the Fund with the
procedures required by a securities or option exchange,
providing such procedures comply with the 1940 Act and
any releases of the SEC relating to the maintenance of
segregated accounts by registered investment companies;
and
(B) Upon receipt of Written Instructions, for other proper
corporate purposes.
(ii) PNC Bank 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, PNC Bank and the Fund's transfer agent.
(j) PURCHASES OF SECURITIES. PNC Bank shall settle purchased securities
upon receipt of Oral Instructions or Written Instructions from the
Fund or its investment advisers that specify:
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(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;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker through whom
the purchase was made. PNC Bank shall upon receipt of
securities purchased by or for a Portfolio 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. PNC Bank shall settle sold securities upon
receipt of Oral Instructions or Written Instructions from the Fund
that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(vi) the name of the broker through whom or the person to whom the
sale was made; and
(vii) the location to which the security must be delivered and
delivery deadline, if any; and
(viii) the Portfolio involved.
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PNC Bank 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. Subject to the foregoing, PNC Bank may accept payment in
such form as shall be satisfactory to it, and may deliver securities and
arrange for payment in accordance with the customs prevailing among
dealers in securities.
(l) REPORTS; PROXY MATERIALS.
(i) PNC Bank shall furnish to the 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 securities belonging to each Portfolio with
the adjusted average cost of each issue and the market
value at the end of such month and stating the cash
account of each Portfolio including disbursements;
(C) the reports required to be furnished to the Fund
pursuant to Rule 17f-4; and
(D) such other information as may be agreed upon from time
to time between the Fund and PNC Bank.
(iii) PNC Bank shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or conversion or
similar communication received by it as custodian of the
Property. PNC Bank shall be under no other obligation to
inform the Fund as to such actions or events.
(m) COLLECTIONS. All collections of monies or other property in respect,
or which are to become part, of the Property (but not the
safekeeping thereof upon receipt by PNC Bank) shall be at the sole
risk of the Fund. If payment is not received by PNC Bank within a
reasonable time after proper demands have been made, PNC Bank shall
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notify the Fund in writing, including copies of all demand letters,
any written responses, memoranda of all oral responses and shall
await instructions from the Fund. PNC Bank shall not be obliged to
take legal action for collection unless and until reasonably
indemnified to its satisfaction. PNC Bank shall also notify the 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.
16. DURATION AND TERMINATION.
(a) This Agreement shall continue until terminated by the Fund or by
PFPC on sixty (60) days' prior written notice to the other party;
(b) in the event this Agreement is terminated (pending appointment
of a successor to PNC Bank or vote of the shareholders of the Fund
to dissolve or to function without a custodian of its cash,
securities or other property), PNC Bank shall deliver to a successor
custodian for the Fund appointed by the Board of Trustees all cash,
securities and other property of the Fund duly endorsed and in the
form for transfer then held by it hereunder and shall transfer to an
account of the successor custodian all of the securities of the Fund
held in Book-Entry System. If this Agreement is terminated and no
such successor custodian shall be appointed, PFPC shall, in like
manner, as directed by vote of the holders of a majority of the
outstanding shares of the Fund or upon receipt of a certified copy
of a vote or resolution of the Board, deliver and transfer such
21
Property and cash of the Fund then held by it hereunder as specified
and in accordance with such vote or resolution; (c) in the event
that no written order designating a successor custodian or certified
copy of a vote or resolution of the Board shall have been delivered
to PFPC on or before the date when termination of this Agreement
shall become effective, then PFPC shall have the right to deliver
all cash, securities and other property of the Fund to a bank or
trust company of PNC Bank'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; and (d) upon termination of this Agreement, the Fund
shall pay to PFPC such compensation as may be due hereunder as of
the date of such termination and also shall reimburse PFPC for its
costs, expenses and disbursements as contemplated by this Agreement.
PNC Bank 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 will be suspended from the time of such
agreement until two years after the Change of Control, provided that
notwithstanding the foregoing provisions of this sentence the Fund may
terminate this Agreement if the following have occurred: (i) the Fund
gives PNC Bank notice that for the preceding thirty (30) days PNC Bank has
been in material breach of the Agreement (and PNC Bank has in fact been in
such material breach) and that PNC Bank has sixty (60) days from receipt
of such notice to cure such material breach; (ii) PNC Bank fails to cure
such material breach within such sixty (60) day period; and (iii) at the
conclusion of such sixty (60) day period the Fund gives PNC Bank notice
that it is terminating the Agreement.
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18. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex
or facsimile sending device. Notice shall be addressed (a) if to PNC Bank
at Airport Business Center, International Court 2, 000 Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxx 00000, marked for the attention of the Custodian
Services Department (or its successor) (b) if to the Fund, at 0000 Xxxxx
Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx, 00000, Attn.: Xxxxxxx X. Xxxxxxxx
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
telegram, cable, telex or facsimile sending device, it shall be deemed to
have been given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given five days after it has been mailed. If
notice is sent by messenger, it shall be deemed to have been given on the
day it is delivered.
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. Except as provided below, neither this Agreement
nor any rights or obligations hereunder may be assigned by either party
without the written consent of the other party. PNC Bank may assign its
rights and delegate its duties hereunder to any affiliate (as defined in
the 0000 Xxx) or any majority-owned direct or indirect subsidiary of PFPC
or PNC Bank Corp., provided that (i) PNC Bank gives the Fund thirty (30)
days' prior written notice of such assignment or delegation, (ii) the
assignee or delegate agrees to comply with the with relevant provision of
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the 1940 Act, and (iii) PNC Bank and such assignee or delegate promptly
provide such information as the Fund may reasonably request, and respond
to such questions as the Fund may reasonably ask, relative to the
assignment or delegation (including, without limitation, the capabilities
of the assignee or delegate.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
23. LIMITATIONS OF LIABILITY OF THE TRUSTEES AND SHAREHOLDERS. A copy of the
Declaration of Trust of the Fund is on file with the Secretary of The
Commonwealth of Massachusetts, and notice is hereby given that this
instrument is executed on behalf of the Trustees of the Trust as Trustees
and not individually and that the obligations of this instrument are not
binding upon any of the Trustees or Shareholders individually but are
binding only upon the assets and property of the Fund.
24. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties
and Oral Instructions.
(b) CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect.
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(c) GOVERNING LAW. This Agreement shall be deemed to be a contract made
in Pennsylvania and governed by Pennsylvania law, without regard to
principles of conflicts of law.
(d) PARTIAL INVALIDITY. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written. PNC BANK, NATIONAL
ASSOCIATION
By:
---------------------------
Title:
------------------------
GOLF ASSOCIATED FUND
By:
--------------------------
Title:
------------------------
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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