CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of October 28, 1999 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and XXXXXXXXX & XXXXX FUND TRUST, a Delaware business trust (the
"Trust").
WITNESSETH:
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) "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 and listed on the Authorized Persons Appendix
attached hereto or any amendment thereto as may be received by PFPC
Trust. An Authorized Person's scope of authority may be limited by the
Trust by setting forth such limitation in the Authorized Persons
Appendix.
(d) "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
or depository or clearing agency which the use hereunder is permitted
by Rule 17f-4 under the 1940 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "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.
(g) "SEC" means the Securities and Exchange Commission.
(h) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(i) "SHARES" mean the shares of beneficial interest of any series or class
of the Trust.
(j) "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.
(k) "WRITTEN INSTRUCTIONS" mean written instructions signed by an
Authorized Person and received by PFPC Trust. The instructions may be
delivered by hand, mail, tested telegram, cable, telex or facsimile
sending device.
2. APPOINTMENT. The Trust hereby appoints PFPC Trust to provide custodian
services to the Trust, on behalf of each of its investment portfolios
(each, a "Portfolio"), and PFPC
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Trust accepts such appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Trust has provided or, where applicable, will
provide PFPC Trust with the following:
(a) certified or authenticated copies of the resolutions of the Trust's
Trustees, approving the appointment of PFPC Trust to provide services;
(b) a copy of the Trust'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;
(f) copies of any shareholder servicing agreements (other than agreements
with financial intermediaries) made in respect of the Trust or a
Portfolio; and
(g) copies (certified or authenticated, where applicable) of any and all
amendments or supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with applicable requirements of the
Securities Laws and 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
Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act only
upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instructions or
Written Instructions it receives from an Authorized Person (or from a
person reasonably
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believed by PFPC Trust to be an Authorized Person) pursuant to this
Agreement. PFPC Trust may assume that any Oral Instructions or Written
Instructions received hereunder are not in any way inconsistent with
the provisions of organizational documents of the Trust or of any
vote, resolution or proceeding of the Trust's Trustees or of the
Trust's shareholders, 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 business day
after such Oral Instructions are received. The fact that such
confirming Written Instructions are not received by PFPC Trust 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, PFPC Trust shall incur no
liability to the Trust in acting upon such Oral Instructions or
Written Instructions provided that PFPC Trust's actions comply with
the other provisions of this Agreement.
6. 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
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pertaining to any action it should or should not take, PFPC Trust may
request advice at its own cost from such counsel of its own choosing
(who may be counsel for the Trust, the Trust's investment adviser or
PFPC Trust, at the option of PFPC Trust).
(c) CONFLICTING ADVICE. In the event of a conflict between directions,
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Trust, and the advice it receives from counsel, PFPC
Trust shall be entitled to rely upon and follow the advice of counsel.
In the event PFPC Trust so relies on the advice of counsel, PFPC Trust
remains liable for any action or omission on the part of PFPC Trust
which constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard by PFPC Trust of any duties, obligations or
responsibilities set forth in this Agreement.
(d) PROTECTION OF PFPC TRUST. PFPC Trust 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 Trust or
from counsel and which PFPC Trust 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 PFPC Trust (i) to seek such directions,
advice or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions, advice or Oral Instructions or
Written Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC Trust's properly
taking or not taking such action. Nothing in this subsection shall
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excuse PFPC Trust when an action or omission on the part of PFPC Trust
constitutes willful misfeasance, bad faith, gross negligence or
reckless disregard by PFPC Trust of any duties, obligations or
responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the Trust and any
Portfolio, which are in the possession or under the control of PFPC Trust,
shall be the property of the Trust and shall be surrendered promptly on
request of the Trust. Such books and records shall be prepared and
maintained by PFPC Trust 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.
8. CONFIDENTIALITY. PFPC Trust agrees to keep confidential all records of the
Trust and information relating to the Trust and its shareholders, unless
the release of such records or information is otherwise consented to, in
writing, by the Trust. The Trust agrees that such consent shall not be
unreasonably withheld and may not be withheld where PFPC Trust may be
exposed to civil or criminal contempt proceedings or when PFPC Trust is
required to divulge such information or records to duly constituted
authorities.
9. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the Trust's
independent public accountants and shall take all reasonable action to make
such information available to such accountants as is reasonably requested
by the Trust.
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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 willful misfeasance, bad faith, gross negligence
or reckless disregard of its duties or obligations under this Agreement.
11. YEAR 2000 READINESS DISCLOSURE. PFPC Trust (a) has reviewed its business
and operations as they relate to the services provided hereunder, (b) has
developed or is developing a program to remediate or replace computer
applications and systems, and (c) has developed a testing plan to test the
remediation or replacement of computer applications/systems, in each case,
to address on a timely basis the risk that certain computer
applications/systems used by PFPC Trust may be unable to recognize and
perform date sensitive functions involving dates prior to, including and
after December 31, 1999, including dates such as February 29, 2000 (the
"Year 2000 Challenge"). To the best of PFPC Trust's knowledge and belief,
the reasonably foreseeable consequences of the Year 2000 Challenge will not
adversely affect PFPC Trust's ability to perform its duties and obligations
under this Agreement.
12. COMPENSATION. As compensation for custody services rendered by PFPC Trust
during the term of this Agreement, the Trust, on behalf of each of the
Portfolios, will pay to
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PFPC Trust a fee or fees as may be agreed to in writing from time to time
by the Trust and PFPC Trust.
13. INDEMNIFICATION. The Trust, on behalf of each Portfolio, agrees to
indemnify and hold harmless PFPC Trust from all taxes, charges,
assessments, claims and liabilities (including, without limitation,
liabilities arising under the Securities Laws and any state or foreign
securities or 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 PFPC Trust
takes (i) at the request or on the direction of or in reliance on the
advice of the Trust or (ii) upon Oral Instructions or Written Instructions.
Notwithstanding the preceding sentence, PFPC Trust shall not be
indemnified, and PFPC Trust shall indemnify and hold harmless the Trust and
its affiliates, against any liability (or any expenses incident to such
liability) arising out of PFPC Trust's willful misfeasance, bad faith,
gross negligence or reckless disregard of its duties under this Agreement.
Any amounts payable by the Trust hereunder shall be satisfied only against
the relevant Portfolio's assets and not against the assets of any other
investment portfolio of the Trust.
14. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action on behalf of the
Trust or any Portfolio except as specifically set forth herein or as
may be specifically agreed to by PFPC Trust in writing. 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
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liable for any damages arising out of PFPC Trust's failure to perform
its duties under this Agreement to the extent such damages arise out
of PFPC Trust's willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties under this Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, PFPC Trust shall not be under any duty or
obligation to inquire into and shall not be liable for (i) 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
PFPC Trust reasonably believes to be genuine; or (ii) subject to
section 10, delays, errors, loss of data or other losses occurring by
reason of circumstances beyond PFPC Trust'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
PFPC Trust nor its affiliates shall be liable to the Trust or to any
Portfolio for any consequential, special or indirect losses or damages
which the Trust may incur or suffer, whether or not the likelihood of
such losses or damages was known by PFPC Trust or its affiliates.
15. 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 Portfolios,
including cash received as a result
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of the distribution of Shares, during the term of this Agreement. PFPC
Trust will not be responsible for such property until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PFPC Trust, acting upon Written
Instructions, shall open and maintain separate accounts in the Trust's
name using all cash received from or for the account of the Trust,
subject to the terms of this Agreement. In addition, upon Written
Instructions, PFPC Trust shall open separate custodial accounts for
each separate Portfolio of the Trust (collectively, the "Accounts")
and shall hold in the Accounts all cash received from or for the
Accounts of the Trust specifically designated to each separate
Portfolio.
PFPC Trust shall make cash payments from or for the Accounts of a
Portfolio only for:
(i) purchases of securities in the name of a Portfolio, PFPC Trust,
PFPC Trust's nominee or a sub-custodian or nominee thereof as
provided in sub-section (j) and for which PFPC Trust has received
a copy of the broker's or dealer's confirmation or payee's
invoice, as appropriate;
(ii) redemption of Shares of the Trust delivered to PFPC Trust;
(iii)payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory, management
fees or similar expenses which are to be borne by a Portfolio;
(iv) payment to, subject to receipt of Written Instructions, the
Trust's transfer agent, as agent for the shareholders, of an
amount equal to the amount of dividends and distributions stated
in the Written Instructions to be distributed in cash by the
transfer agent to shareholders, or, in lieu of paying the Trust's
transfer agent, PFPC Trust may arrange for the direct payment of
cash dividends and distributions to shareholders in accordance
with procedures mutually agreed upon from time to time by and
among the 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;
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(vi) payments of the amounts of dividends received with respect to
securities sold short;
(vii) payments made to a sub-custodian pursuant to sub-section (c) of
this Section; and
(viii) 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.
All such securities shall be held or disposed of only upon
Written Instructions of the Trust 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,
except upon the express terms of this Agreement or upon Written
Instructions authorizing the transaction. In no case may any of
the Trust's 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 an aggregate capital, surplus and undivided profits,
according to its last published report, of at least two million
dollars ($2,000,000), if it is a subsidiary or affiliate of PFPC
Trust, or at least twenty million dollars ($20,000,000) if such
bank or trust company is not a subsidiary or affiliate of PFPC
Trust. In addition, such bank or trust company must be qualified
to act as custodian and agree to comply with the relevant
provisions of applicable rules and regulations. Any such
arrangement will not be entered into without prior written notice
to the Trust (or as otherwise provided in the 1940 Act).
In addition, PFPC Trust may enter into arrangements with
sub-custodians with respect to services regarding foreign assets.
Any such arrangement will be entered into with prior written
notice to the Trust (or as otherwise provided in the 1940 Act).
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PFPC Trust shall remain responsible for the performance of all of
its duties as described in this Agreement and shall indemnify and
hold the Trust and each Portfolio harmless from its own acts or
omissions, under the standards of care provided for herein, and
the acts and omissions of any sub-custodian chosen by PFPC Trust
under the terms of this sub-section (c).
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral Instructions
or Written Instructions and not otherwise, PFPC Trust, 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 at the option of the holder; provided that, in any such
case, the cash or other consideration is to be delivered to PFPC
Trust;
(iv) deliver any securities held for a Portfolio against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege;
(v) deliver any securities held for a Portfolio to any protective
committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, and
receive and hold under the terms of this Agreement such
certificates of deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such delivery;
(vi) make such transfer or exchanges of the assets of the Portfolios
and take such other steps as shall be stated in said Oral
Instructions or Written Instructions to be for the purpose of
effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the
Trust;
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(vii) release securities belonging to a Portfolio to any bank or trust
company for the purpose of a pledge or hypothecation to secure
any loan incurred by the Trust on behalf of that Portfolio;
provided, however, that securities shall be released only upon
payment to PFPC Trust of the monies borrowed, except that in
cases where additional collateral is required to secure a
borrowing already made subject to proper prior authorization,
further securities may be released for that purpose; and repay
such loan upon redelivery to it of the securities pledged or
hypothecated therefor and upon surrender of the note or notes
evidencing the loan;
(viii)release and deliver securities owned by a Portfolio in
connection with any repurchase agreement entered into on behalf
of the Trust, but only on receipt of payment therefor; and pay
out moneys 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 to a broker in connection with the
broker's custody of margin collateral relating to futures and
options transactions;
(xi) release and deliver securities owned by the Trust for the purpose
of redeeming in kind shares of the Trust upon delivery thereof to
PFPC Trust; and
(xii)release and deliver or exchange securities owned by the Trust
for other purposes.
PFPC Trust must also receive Written Instructions describing the
nature of the corporate purpose and the name and address of the
person(s) to whom delivery shall be made when such action is
pursuant to sub-paragraph (d)(xii).
(e) USE OF BOOK-ENTRY SYSTEM. PFPC Trust is authorized and instructed, on
a continuous basis and in compliance with Rule 17f-4 (d) under the
1940 Act, 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
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possible in connection with settlements of purchases and sales of
securities by the Portfolios, and deliveries and returns of securities
loaned, subject to repurchase agreements or used as collateral in
connection with borrowings. PFPC Trust shall continue to perform such
duties until it receives Written Instructions or Oral Instructions
authorizing contrary actions.
PFPC Trust shall administer 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 PFPC Trust shall
identify by Book-Entry or otherwise those securities belonging to
each Portfolio.
(ii) Assets of each Portfolio deposited in the Book-Entry System will
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 a Portfolio which
are issued or issuable only in bearer form, except such securities
held in the Book-Entry System, shall be held by PFPC Trust in bearer
form; all other securities held for a Portfolio may be registered in
the name of the Trust on behalf of that Portfolio, PFPC Trust, the
Book-Entry System, a sub-custodian, or any duly appointed nominee of
the Trust, PFPC Trust, the Book-Entry System 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 hold or deliver in proper form for transfer, or to register
in the name of its nominee or in the name of the
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Book-Entry System or in the name of another appropriate entity, any
securities which it may hold for the Accounts and which may from time
to time be registered in the name of the Trust on behalf of a
Portfolio.
(g) VOTING AND OTHER ACTION. Neither PFPC Trust nor its nominee shall vote
any of the securities held pursuant to this Agreement by or for the
account of a Portfolio, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of the
Book-Entry System, 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 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, PFPC Trust is authorized to take the following
actions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of each Portfolio, all
income, dividends, distributions, coupons, option premiums,
other payments and similar items, included or to be included
in the Property, and, in addition, promptly advise each
Portfolio of 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
Trust, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of each Portfolio all
securities received as a distribution on the Portfolio's
securities as a result of a stock dividend, share split-up
or reorganization, recapitalization, readjustment or other
rearrangement or distribution of rights or
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similar securities issued with respect to any securities
belonging to a Portfolio and held by PFPC Trust hereunder;
(D) present for payment and collect the amount payable upon all
securities which may mature or be, on a mandatory basis,
called, redeemed, or retired, or otherwise become payable on
the date such securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such income
and other payments and the endorsement for collection of
checks, drafts, and other negotiable instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) PFPC Trust is authorized to deliver or cause to be delivered
Property against payment or other consideration or written
receipt therefor in the following cases:
(1) for examination by a broker or dealer selling for the
account of a Portfolio in accordance with street
delivery custom;
(2) for the exchange of interim receipts or temporary
securities for definitive securities; and
(3) for transfer of securities into the name of the Trust
on behalf of a Portfolio 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.
(B) unless and until PFPC Trust receives Oral Instructions or
Written Instructions to the contrary, PFPC Trust shall:
(1) present for payment all income items held by it which
call for payment upon presentation and hold the cash
received by it upon such payment for the account of
each Portfolio;
(2) collect interest and cash dividends received, with
notice to
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the Trust, to the account of each Portfolio;
(3) hold for the account of each Portfolio all stock
dividends, rights and similar securities issued with
respect to any securities held by PFPC Trust; and
(4) execute as agent on behalf of the Trust 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 Trust'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) PFPC Trust shall upon receipt of Written Instructions or Oral
Instructions establish and maintain segregated accounts on its
records for and on behalf of each Portfolio. Such accounts may be
used to transfer cash and securities, including securities in the
Book-Entry System:
(A) for the purposes of compliance by the Trust with the
procedures required by a securities, futures or options
exchange, provided 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 corporate
purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX custodian
accounts for such shareholders holding Shares through XXX
accounts, in accordance with the Trust's prospectuses, the
Internal Revenue Code of 1986, as amended (including regulations
promulgated thereunder), and such other procedures as are
mutually agreed upon from time to time by and among the Trust,
PFPC Trust and the Trust's transfer agent.
(j) PURCHASES OF SECURITIES. PFPC Trust shall settle purchased securities
upon receipt of Oral Instructions or Written Instructions that
specify:
(i) the name of the issuer and the title of the securities, including
CUSIP number if applicable;
(ii) the number of shares or the principal amount purchased and
accrued
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interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker through whom the
purchase was made. PFPC Trust shall upon receipt of securities
purchased by or for a Portfolio pay out of the moneys held for
the account of the Portfolio the total amount payable to the
person from whom or the broker through whom the purchase was
made, provided that the same conforms to the total amount payable
as set forth in such Oral Instructions or Written Instructions.
(k) SALES OF SECURITIES. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security, including
CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Trust upon such sale;
(vi) the name of the broker through whom or the person to whom the
sale was made;
(vii) the location to which the security must be delivered and
delivery deadline, if any; and
(viii) the Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total amount
payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set
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forth in the Oral Instructions or Written Instructions. Notwithstanding the
other provisions thereof, PFPC Trust may accept payment in such form as
shall be satisfactory to it, and may deliver securities and arrange for
payment in accordance with the customs prevailing among dealers in
securities.
(l) REPORTS; PROXY MATERIALS.
(i) PFPC Trust shall furnish to the 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 each Portfolio, listing each portfolio
security 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 Trust pursuant
to Rule 17f-4 of the 1940 Act; and
(D) such other information as may be agreed upon from time to
time between the Trust and PFPC Trust.
(ii) 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.
(m) CREDITING OF ACCOUNTS. If PFPC Trust in its sole discretion credits an
Account with respect to (a) income, dividends, distributions, coupons,
option premiums, other payments or similar items on a contractual
payment date or otherwise in advance of PFPC Trust's actual receipt of
the amount due, (b) the proceeds of any sale or other disposition of
assets on the contractual settlement date or otherwise
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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. Nothing
herein or otherwise shall require PFPC Trust to make any advances or
to credit any amounts until PFPC Trust's actual receipt thereof. The
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,
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
20
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.
17. DURATION AND TERMINATION. This Agreement shall continue for two years from
the date hereof and continuously thereafter until terminated by the Trust
or PFPC Trust on sixty (60) days' prior written notice to the other party.
During the term of this Agreement, either party may terminate this
Agreement upon written notice if the other party materially breaches this
Agreement and fails to cure such breach within thirty (30) days following
receipt of written notice of breach. In the event this Agreement is
terminated (pending appointment of a successor to PFPC Trust or vote of the
shareholders of the Trust to dissolve or to function without a custodian of
its cash, securities or other property), PFPC Trust shall not deliver cash,
securities or other property of the Portfolios to the Trust. It may deliver
them to a bank or trust company of PFPC Trust's choice, having an aggregate
capital, surplus and undivided profits, as shown by its last published
report, of not less than twenty million dollars ($20,000,000), as a
custodian for the Trust to be held under terms similar to those of this
Agreement. PFPC Trust shall not be required to make any delivery or payment
of assets upon termination until full payment shall have been made to PFPC
Trust of all of its fees, compensation, costs and expenses. PFPC Trust
shall have a security interest in and shall have a right of setoff against
the Property as security for the payment of such fees, compensation, costs
and expenses.
18. NOTICES. All notices and other written communications, including Written
Instructions,
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shall be delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device. Notice shall be addressed (a) if to PFPC Trust at
000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxx Xxxxxxxx; (b)
if to the Trust, at Xxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000,
Attn: Xxxxx X. Xxxxx, with a copy to Xxxxxx X. Xxxxxxxxxx, Esq., at Xxx
Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000; 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 tested 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 three 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 majority-owned direct or indirect subsidiary of
PFPC Trust or of PNC Bank Corp., provided that (i) PFPC Trust gives the
Trust 30 days' prior written notice of such assignment or delegation; (ii)
the assignee or delegate agrees to comply with all the provisions of this
Agreement; (iii) PFPC Trust and such assignee or delegate promptly provide
such information as the Trust may reasonably request, and respond to such
questions as the Trust may reasonably ask, relative to the assignment or
delegation (including, without limitation, the capabilities of the assignee
or delegate); and (iv) PFPC
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Trust remains responsible for all of its obligations under this Agreement.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
23. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof.
(b) CAPTIONS. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(c) GOVERNING LAW. This Agreement shall be deemed to be a contract made in
Delaware and governed by Delaware 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.
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(f) FACSIMILE SIGNATURES. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(g) LIMITATIONS. The obligations assumed by the Trust under this Agreement
are assumed on behalf of each Portfolio separately, and no Portfolio
shall be liable for the obligations of any other Portfolio. Neither
the Trustees nor any of the Trust's shareholders, officers, employees
or agents, whether past, present or future, shall be personally liable
for the obligations of the Trust or any Portfolio.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Title: Senior Vice President
----------------------
XXXXXXXXX & XXXXX FUND TRUST
By: /s/ Xxxxx X. Xxxxx
-------------------
Title: President
----------------
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
XXXXX X. XXXXX
-------------------------- -------------------------
XXXXXX X. XXXXXX
-------------------------- -------------------------
XXXXXX X. XXXXXXXXXX
-------------------------- -------------------------
XXXXXX X. XXXXXXXX
-------------------------- -------------------------
-------------------------- -------------------------
-------------------------- -------------------------
Dated: October 28, 1999
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