Exhibit (g)(i)
AMENDED AND RESTATED CUSTODIAN SERVICES AGREEMENT
TERMS AND CONDITIONS
This Agreement is made, as of ______________, 2003, separately by and
between each of Schwab Capital Trust, Schwab Investments, The Xxxxxxx Xxxxxx
Family of Funds and Schwab Annuity Portfolios (each a "Fund") and PFPC Trust
Company ("PFPC Trust").
Each Fund is registered as an open-end investment company under the
Investment Company Act of 1940 (the "1940 Act"), as amended, unless otherwise
set forth on the signature page hereof.
Each Fund wishes to retain PFPC Trust to provide custody services to its
investment portfolios listed on Schedule A, as attached hereto (each a
"Portfolio"), and PFPC Trust wishes to furnish such services as more fully
described herein.
In consideration of the promises and mutual covenants herein contained,
each separate Fund and PFPC Trust agree as follows:
1. Definitions.
(a) "Authorized Person". The term "Authorized Person" shall mean any
person authorized by a Fund to give Oral or Written Instructions with respect to
such Fund. Such persons are listed on the Authorized Persons Appendix which is
attached hereto as Schedule B (as the same may be revised by a particular Fund
with respect to the Authorized Persons applicable to it upon reasonable prior
notice to PFPC Trust from time to time).
(b) "Book-Entry System". The term "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 or clearing agency registered with the SEC
under the 1934 Act.
(c) "CFTC". The term "CFTC" shall mean the Commodities Futures
Trading Commission.
(d) "Governing Board". The term "Governing Board" shall mean a
particular Fund's Board of Directors if the Fund is a corporation or a
particular Fund's Board of Trustees if the Fund is a trust, or, where duly
authorized, a competent committee thereof. If a Fund is a limited partnership,
the term "Governing Board" shall mean such Fund's general partner.
(e) "Oral Instructions". The term "Oral Instructions" shall mean
oral or e-mail instructions received by PFPC Trust from an Authorized Person (or
from a person reasonably believed by PFPC Trust to be an Authorized Person
listed on the then current Authorized Persons Appendix). For the benefit of PFPC
Trust, any e-mail communication sent to PFPC Trust shall be sent to all of the
persons listed on Schedule C hereto (as such Schedule C may be changed by PFPC
Trust upon notice to the Funds), and PFPC Trust shall not be obligated to
consider an e-mail instruction that is not sent to all of such persons to be an
Oral Instruction under this Agreement.
(f) "SEC". The term "SEC" shall mean the Securities and Exchange
Commission.
(g) "Securities and Commodities Laws". The terms the
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"1933 Act" shall mean the Securities Act of 1933, the "1934 Act" shall mean the
Securities Exchange Act of 1934, the "1940 Act" shall mean the Investment
Company Act of 1940, as amended, and the "CEA" shall mean the Commodities
Exchange Act, as amended. The 1933 Act, the 1934 Act, the 1940 Act and CEA shall
together be the "Securities and Commodities Laws."
(h) "Shares". The term "Shares" shall mean the units of beneficial
interest of any Portfolio or class of a Fund.
(i) "Property". The term "Property" shall mean:
(i) any and all securities and other investment items which
a Portfolio may from time to time deposit, or cause to
be deposited, with PFPC Trust hereunder or which PFPC
Trust may from time to time maintain hereunder with
respect to a Portfolio;
(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
other investment items; and
(iv) all proceeds of the sale of securities issued by a
Portfolio, which are received by PFPC Trust from time to
time, from or on behalf of the Portfolio.
(j) "Written Instructions". The term "Written Instructions" shall
mean (i) written trade instructions signed by
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two Authorized Persons (or two persons reasonably believed by PFPC Trust to be
Authorized Persons listed on the then current Authorized Persons Appendix) and
received by PFPC Trust or (ii) electronic 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 or (iii) written
instructions (other then trade instructions) signed by one Authorized Person (or
a person reasonably believed by PFPC Trust to be an Authorized Person listed on
the then current Authorized Persons Appendix) and received by PFPC Trust. The
instructions may be delivered electronically (for clarity, e-mail instructions
are governed by Section 1(e) of the Agreement) or by hand, mail or facsimile
sending device.
2. Appointment. Each Fund hereby appoints PFPC Trust to provide custodian
services to each of its Portfolios listed in Schedule A hereto, and PFPC Trust
accepts such appointment and agrees to furnish such services pursuant to and in
accordance with the terms hereof.
3. Delivery of Documents. Each Fund has provided or, where applicable,
will provide PFPC Trust with the following:
(a) if requested by PFPC Trust, certified or authenticated copies
of the resolutions of the Fund's Governing Board, approving
the appointment of PFPC Trust or its affiliates to provide
services;
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(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of the Fund's advisory agreement or agreements;
(d) a copy of the Fund's distribution agreement or agreements;
(e) a copy of the Fund's administration agreements if PFPC Trust
or an affiliate thereof is not providing the Fund with such
services;
(f) copies of any shareholder servicing agreements made in respect
of the Fund; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. Compliance with Government Rules and Regulations. With respect to each
respective Fund, PFPC Trust undertakes to comply with all applicable
requirements of the 1933 Act, the 1934 Act, the 1940 Act, and the CEA and with
the requirements of such other laws that are applicable to the duties to be
performed by PFPC Trust with respect to such Fund hereunder as are reasonably
requested of PFPC by such Fund and as are acceptable to PFPC Trust (such
acceptance by PFPC Trust not to be unreasonably withheld). Except as stated
herein, PFPC Trust assumes no responsibility for compliance by a Fund or any
other entity with respect to any requirements applicable to the Fund or any
other entity.
5. Instructions. Unless otherwise provided in this
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Agreement, PFPC Trust shall act only upon Oral or Written Instructions. PFPC
Trust shall be entitled to rely upon any Oral or Written Instructions it
receives from an Authorized Persons (or from a person reasonably believed by
PFPC Trust to be an Authorized Person listed on the then current Authorized
Persons Appendix). PFPC Trust may assume that any Oral or Written Instructions
received hereunder are not in any way inconsistent with the provisions of
governing documents of a Fund or this Agreement or of any vote, resolution or
proceeding relating to a Fund or the assets maintained hereunder.
Each Fund agrees to forward to PFPC Trust Written Instructions confirming
Oral Instructions so that PFPC Trust receives the Written Instructions by the
close of business on the same day that such Oral Instructions are received
(provided that Oral Instructions transmitted by means of e-mail do not need to
be so confirmed). 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. PFPC Trust shall promptly notify the Fund providing such
confirming Written Instructions of any differences between the Oral Instructions
and the confirming Written Instructions. Each Fund further agrees that PFPC
Trust shall incur no liability to the Fund for relying upon Oral or Written
Instructions provided such instructions reasonably appear to have been received
from an Authorized Person listed on
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the then current Authorized Persons Appendix.
6. Right to Receive Advice.
(a) Advice of Counsel. If PFPC Trust shall be in doubt as to any
questions of law pertaining to any action it should or should not take, PFPC
Trust may (but is not required to) request advice at its own cost from counsel
of its own choosing (who may be counsel for any Fund, any Fund's advisor or PFPC
Trust, at the option of PFPC Trust). If PFPC Trust requests advice with respect
to a Fund from counsel for such Fund, it will inform the Fund of that fact.
(b) Protection of PFPC Trust. Without limiting PFPC Trust's other
protections under this Agreement, PFPC Trust shall be protected in any action it
takes or does not take in good faith reliance upon directions, advice or Oral or
Written Instructions it receives from a Fund or from counsel for a Fund and
which is in compliance with those directions, advice or Oral or Written
Instructions.
Nothing in this Agreement shall be construed so as to impose an obligation
upon PFPC Trust to act in accordance with directions, advice or Oral 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.
7. Records. The books and records pertaining to a Fund, which are in the
possession of PFPC Trust, shall be the property of such Fund. Such books and
records shall be prepared and maintained
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in a manner reasonably requested by the Fund and acceptable to PFPC Trust;
provided that if the Fund is an investment company registered under the 1940
Act, such books and records shall, in addition, be prepared and maintained as
required by the 1940 Act and other applicable securities laws, rules and
regulations. Each Fund, or the Fund's Authorized Persons, shall have access to
the books and records pertaining to the Fund (provided the same are in PFPC
Trust's possession) at all times during PFPC Trust's normal business hours. Upon
the reasonable request of a Fund, copies of any books and records pertaining to
the Fund (provided the same are in PFPC Trust's possession) shall be provided by
PFPC Trust to the Fund or to an Authorized Person of the Fund, at the Fund's
expense; provided that upon termination of this Agreement with respect to any
Fund or Portfolio, the original records of the Fund (or such Portfolio) shall be
delivered to the successor custodian, at the Fund's reasonable expense.
Following termination of this Agreement with respect to a Fund or Portfolio,
PFPC Trust may maintain a copy of the records of such Fund or Portfolio at its
own expense.
8. Confidentiality. PFPC Trust shall keep confidential information
relating to a Fund which it obtains hereunder, and each Fund shall keep
confidential information relating to PFPC Trust which it obtains hereunder.
Information to be kept confidential 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,
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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 a Fund or PFPC Trust; (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 a Fund or PFPC Trust a
competitive advantage over its competitors; (c) all confidential or proprietary
concepts, documentation, reports, data, specifications, computer software,
source code, object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and (d) anything
designated as confidential. Information shall not be subject to confidentiality
obligations under this Agreement 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 party to which the information relates (i.e., PFPC Trust or a Fund,
as applicable) with written notice of such requirement, to the extent such
notice
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is permitted); (f) release of the information is required 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.
PFPC Trust will not gather, store, or use any Customer Information (as
defined below), and will not disclose, distribute, sell, share, rent or
otherwise transfer any Customer Information to any third party, except as
provided in this Agreement or as PFPC Trust may be directed in advance in
writing by a Fund or as required in connection with the provision of services
under this Agreement or as permitted or required by applicable law. PFPC Trust
represents, covenants, and warrants that PFPC Trust will use Customer
Information only in compliance with: (a) this Agreement; (b) any applicable Fund
or Schwab privacy policies provided to PFPC Trust and accepted by PFPC Trust;
and (c) all applicable laws, policies and regulations (including but not limited
to applicable laws, policies and regulations related to spamming, privacy, and
consumer protection). As soon as PFPC Trust no longer needs to retain such
Customer Information in order to perform its duties under this Agreement, PFPC
Trust will upon request promptly return or (if so instructed by a Fund in
writing) destroy all originals and copies of such Customer Information, except
to the extent PFPC Trust is prohibited by law from doing so. "Customer
Information" means all intentionally or unintentionally disclosed non-public
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personal information, however collected, including without limitation, through
"cookies", Web bugs or non-electronic means, pertaining to or identifiable to a
Customer (as defined below), including without limitation: (a) name, address,
e-mail address, passwords, personal financial information, personal preferences,
demographic data, marketing data, data about securities transactions, credit
data, or any other identification data; (b) any information that reflects use of
or interactions with a Schwab Service (as defined below), including but not
limited to, information concerning computer search paths, any profiles created,
or general usage data; or (c) any data otherwise submitted in the process of
registering for, or during the course of using, a Schwab Service. "Customer"
means any individual (a) customer, (b) prospect, or (c) subscriber or user of
any Schwab Service. "Schwab Service" means any service that Xxxxxxx Xxxxxx &
Co., Inc. and its affiliates make available to their Customers through Web
sites, desktops, e-mail, wireless devices, or from any other communications
channel or other medium developed, owned, licensed, operated, hosted, or
otherwise controlled by or on behalf of Xxxxxxx Xxxxxx & Co., Inc. and its
affiliates.
9. Cooperation with Accountants. PFPC Trust shall cooperate with each
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
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with respect to the assets maintained hereunder, as required by a Fund.
10. Disaster Recovery. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provision 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 a Fund, take steps to minimize
service interruptions with respect to the accounts and the assets maintained
hereunder with respect to such Fund.
11. Compensation. The fees for services rendered by PFPC Trust during the
term of this Agreement with respect to a particular Fund are set forth in the
fee letter between the Fund and PFPC Trust in effect on the date hereof (and to
the extent necessary such fee letters are hereby amended to relate to this
Agreement), or as the same may be amended from time to time.
12. Indemnification. Each Fund agrees to indemnify and hold harmless PFPC
Trust from all taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, reasonable attorney's fees and disbursements)
(collectively, "Losses") arising (A) from any action which PFPC Trust takes or
does not take (i) at the request or on the direction of or in reliance on the
advice of a Fund or (ii) upon Oral or Written Instructions or (B) in connection
with the provision of services to a Fund. Notwithstanding the above, PFPC Trust
shall not be indemnified and
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held harmless by a Fund against Losses to the extent (and only to the extent)
that such Losses arise out of PFPC Trust's (i) breach of its duties and
obligations with respect to such Fund under this Agreement; (ii) willful
misfeasance with respect to such Fund under this Agreement; (iii) bad faith with
respect to such Fund under this Agreement; or (iv) negligence with respect to
such Fund under this Agreement.
PFPC Trust will indemnify and hold harmless a Fund from all Losses
incurred by such Fund to the extent (and only to the extent) that such Losses
arise out of PFPC Trust's (i) breach of its duties and obligations with respect
to such Fund under this Agreement; (ii) willful misfeasance with respect to such
Fund under this Agreement; (iii) bad faith with respect to such Fund under this
Agreement; or (iv) negligence with respect to such Fund under this Agreement.
The provisions of this Section 12 shall survive termination of this
Agreement with respect to any Fund.
13. Responsibility of PFPC Trust. PFPC Trust shall be under no duty to
take any action on behalf of a Fund except as stated herein or as may be agreed
to by PFPC Trust, in writing. PFPC Trust shall be obligated to exercise
reasonable care and reasonable diligence in the performance of its duties and
obligations hereunder and to act in good faith in performing services provided
for under this Agreement. For purposes of indemnification under Section 12 of
this Agreement, the standards set forth in the prior
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sentence will be used as the measurement of whether PFPC Trust's performance is
in breach of its duties and obligations with respect to a Fund under this
Agreement.
For all purposes under this Agreement, reasonableness shall be determined
under the facts and circumstances prevailing in the particular market where
performance is rendered.
PFPC Trust, in connection with its duties under this Agreement, shall not
be under any duty or obligation to inquire into and shall not be liable for the
validity or invalidity or authority or lack thereof of any Oral 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. Notwithstanding anything in this Agreement to the contrary, PFPC Trust
shall not be liable for any Losses, delays or errors or loss of data occurring
by reason of circumstances beyond PFPC Trust's reasonable control, including
without limitation acts of civil or military authority, national emergencies,
labor difficulties, fire, flood or catastrophe, acts of God, acts of terrorism,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply. For clarity, the immediately preceding sentence shall not
obviate PFPC Trust's duties under Section 10 of this Agreement.
Notwithstanding anything in this Agreement to the contrary, neither PFPC
Trust nor its affiliates shall be liable to any Fund for any consequential,
special or indirect losses or damages,
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whether or not the likelihood of such losses or damages was known by PFPC Trust
or its affiliates. Notwithstanding anything in this Agreement to the contrary,
no Fund nor any of its affiliates shall be liable to PFPC Trust for any
consequential, special or indirect losses or damages, whether or not the
likelihood of such losses or damages was known by the Fund or its affiliates.
Notwithstanding anything herein to the contrary (other than as
specifically provided in Section 14(h)(ii)(B)(4) and Section 14(h)(iii)(A) of
this Agreement), each Fund shall be responsible for all filings, tax returns and
reports with respect to its Property or any transactions or collections
undertaken pursuant to this Agreement with respect to such Fund, which may be
requested by any relevant authority. In addition, each Fund shall be responsible
for the payment of all taxes and similar items (including without limitation
penalties and interest related thereto) relating to that Fund.
14. Description of Services.
(a) Delivery of the Property. Each Fund will deliver or arrange for
delivery to PFPC Trust, all the Property to be maintained with respect to its
Portfolios hereunder, during the period that is set forth in 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 (subject to the terms of this Agreement) open and
maintain a separate custody account in the
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name of each Portfolio or, with respect to a Portfolio denoted with an "*" on
Schedule A hereto, in the name of such separate sub-advised accounts of such
Portfolio as the applicable Fund may inform PFPC Trust from time to time by
means of a Written Instruction (each such separate custody account is defined in
this Agreement as an "Account").
PFPC Trust shall make cash payments from or for an Account only for:
(i) purchases of securities in the name of such Account (or
the name of the Portfolio to which such Account relates)
or PFPC Trust or PFPC Trust's nominee or a sub-custodian
or a sub-sub-custodian or nominee thereof as provided in
sub-paragraph j;
(ii) purchase or redemption of shares of the Portfolio to
which such Account relates which are delivered to PFPC
Trust;
(iii) payment of, subject to receipt of 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, management fees or similar
expenses which are to be borne by such
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Account (or the Portfolio to which such Account
relates);
(iv) payment to, subject to receipt of Written Instructions,
the transfer agent for the Portfolio to which such
Account relates, 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 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 applicable Fund, PFPC
Trust and the transfer agent;
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender of
securities held by or delivered to PFPC Trust with
respect to such Account hereunder (except that
transactions of a mandatory or involuntary nature may be
processed by PFPC Trust without Written Instructions);
(vi) payments of the amounts of dividends received
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with respect to securities sold short;
(vii) payments made to a sub-custodian or sub-sub-custodian
pursuant to Section 14(c)of this Agreement; and
(viii) payments, upon receipt of Written Instructions, made
for other purposes. PFPC Trust is hereby authorized to
endorse and collect all checks, drafts or other orders
for the payment of money received as custodian for a
Portfolio.
(c) Receipt of Securities.
(i) Segregation. PFPC Trust shall segregate all securities
received by it for a particular Account hereunder from
securities of any other persons, firms or corporations.
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 a Fund's Board
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of Trustees, or any officer, employee or agent of the
Fund withdraw any securities maintained with respect to
a Portfolio of that Fund.
(ii) Domestic Sub-custodians. At PFPC Trust's own expense,
PFPC Trust may retain any bank (as defined in Section
2(a)(5) of the 1940 Act and which meets the requirements
of a custodian under Section 17(f) of the 1940 Act and
the rules and regulations thereunder) to act as
sub-custodian with respect to domestic assets maintained
hereunder. Any such sub-custodian shall have an
aggregate capital, surplus and undivided profits,
according to its last published report, of at least one
million dollars ($1,000,000) if it is a subsidiary or
affiliate of PFPC Trust, or at least twenty million
dollars ($20,000,000) if such sub-custodian is not a
subsidiary or affiliate of PFPC Trust. In addition, any
such sub-custodian must agree to comply with the
relevant provisions of the 1940 Act and other applicable
laws, rules and regulations referenced in Section 4
hereof.
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(iii) Foreign Sub-Custodians. PFPC Trust may at any time and
from time to time enter into arrangements with
sub-custodians with respect to services regarding
foreign assets maintained hereunder. Any such
arrangement will be entered into only with prior notice
to the applicable Fund or as otherwise provided in the
1940 Act (e.g., pursuant to Rule 17f-5). In addition,
any sub-custodian may engage another entity to act as
sub-sub-custodian for purposes of holding the assets
maintained hereunder. The sub-sub-custodians through
which a Fund's foreign assets may be maintained are
solely those set forth on Schedule D hereto (as the same
may be amended as set forth in Section 17 of this
Agreement). Each Fund agrees that it cannot maintain
foreign assets through any sub-sub-custodian or in any
jurisdiction other than as set forth in Schedule D
hereto (as the same may be amended as set forth in
Section 17 of this Agreement).
(iv) Responsibility for Domestic and Foreign Sub-Custodians.
PFPC Trust shall be fully
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responsible for the actions or inactions of any bank
chosen by PFPC Trust as a sub-custodian pursuant to
Section 14(c)(ii) of this Agreement with respect to the
Funds' domestic assets and any sub-custodian chosen by
PFPC Trust pursuant to Section 14(c)(iii) of this
Agreement with respect to the Funds' foreign assets as
well as any sub-sub-custodian engaged by such a
sub-custodian with respect to the Funds' foreign assets
(provided such sub-sub-custodian is listed on Schedule D
hereto (as the same may be amended as set forth in
Section 17 of this Agreement))to the same extent that
PFPC Trust would be liable to a particular Fund
hereunder if such actions or inactions were its own
hereunder (including for purposes of indemnification
under Section 12 of this Agreement). Notwithstanding
anything herein or otherwise to the contrary, (i) no
depository, clearing agency or system, book-entry
system, settlement system or other similar entity, and
no transfer agent or registrar for uncertificated
securities,
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shall be considered a sub-custodian or
sub-sub-custodian, (ii) PFPC Trust shall have no
liability for any action or inaction of or for any event
relating to any of the foregoing entities and (iii)
assets maintained at any of the foregoing entities shall
be subject to and may be maintained in accordance with
the rules, terms, conditions and procedures applicable
to use of such entity.
(d) Transactions Requiring Instructions. Upon receipt of Oral or
Written Instructions and not otherwise (unless such an event described in
sub-clause (iii), (iv), (v) or (ix) of this sub-section (d) is of a mandatory or
involuntary nature, in which case PFPC Trust may handle such event without
Written Instructions), PFPC Trust shall (provided PFPC Trust has received such
Oral or Written Instructions within such timeframes as PFPC Trust may designate
from time to time, which timeframes shall be reasonable based upon the standards
in the market where performance is rendered):
(i) deliver any assets maintained hereunder against the
receipt of payment for the sale of such assets or
otherwise in accordance with prevailing market practice;
(ii) execute and deliver to such persons as may be
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designated in such Oral or Written Instructions,
proxies, consents, authorizations, and any other
instruments actually received by PFPC Trust hereunder
whereby the authority of a particular Portfolio as owner
of any securities maintained in a particular Account of
such Portfolio hereunder may be exercised;
(iii) deliver any securities maintained hereunder 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 PFPC Trust;
(iv) deliver any securities maintained hereunder 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 maintained hereunder to any
protective committee, reorganization committee or other
person in connection with the reorganization,
refinancing, merger,
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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 maintained
with respect to a particular Portfolio hereunder and
take such other steps as shall be stated in said Oral or
Written Instructions to be for the purpose of
effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or
recapitalization of such Portfolio;
(vii) release assets maintained in a particular Account
hereunder to any bank or trust company for the purpose
of a pledge or hypothecation to secure any loan incurred
with respect to that Account; provided, however, that
assets 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
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prior authorization, further assets may be released for
that purpose; and repay such loan upon redelivery to
PFPC Trust of the securities pledged or hypothecated
therefor and upon surrender of the note or notes
evidencing the loan;
(viii) release and deliver securities maintained in a
particular Account hereunder in connection with any
repurchase agreement entered into with respect to that
Account, but only on receipt of payment therefor; and
pay out monies maintained in a particular Account
hereunder in connection with a repurchase agreement
entered into with respect to that Account, but only upon
the delivery of the securities;
(ix) release and deliver or exchange assets maintained
hereunder in connection with any conversion of such
assets, pursuant to their terms, into other assets;
(x) release and deliver assets to a broker in connection
with the broker's custody of margin collateral relating
to futures and options or other transactions;
(xi) release and deliver assets maintained in a
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particular Account hereunder for the purpose of
redeeming in kind Shares of the Portfolio to which such
Account relates, upon delivery thereof to PFPC Trust;
and
(xii) release and deliver or exchange assets maintained
hereunder for other purposes.
(e) Use of Book-Entry System. PFPC Trust is authorized and
instructed, on a continuous and on-going basis with respect to each of the
Funds, to deposit in the Book-Entry System all securities maintained hereunder
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,
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 or Oral Instructions
authorizing contrary actions(s).
To administer the Book-Entry System properly, the following provisions
shall apply:
(i) With respect to securities which are maintained in the
Book-Entry System, the records of PFPC Trust shall
identify by book-entry or otherwise the Accounts to
which such securities relate. PFPC Trust shall furnish
each Fund a detailed statement of the Property held in
each of the Fund's Accounts
-26-
at least monthly and from time to time and upon written
request.
(ii) Securities and any cash of the Portfolios which are
maintained hereunder and which are 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.
(iii) All books and records maintained by PFPC Trust which
relate to the maintenance of a particular Fund's
Property in the Book-Entry System will at all times
during PFPC Trust's regular business hours be open to
the inspection of such Fund's duly authorized employees
or agents, and the Fund will be furnished with all
information in respect of the services rendered to it
hereunder as it may require.
(iv) PFPC Trust will provide each Fund with copies of any
report obtained by PFPC Trust on the system of internal
accounting control of the Book-Entry System promptly
after receipt of such a report by PFPC Trust. PFPC Trust
will
-27-
also provide a 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 maintained hereunder
which are issued or issuable only in bearer form, except such securities held in
the Book-Entry System or another depository, shall be held by PFPC Trust in
bearer form; all other securities maintained hereunder may be registered in the
name of PFPC Trust; the Book-Entry System; a depository; a sub-custodian; or a
sub-sub-custodian; or any duly appointed nominee(s) of PFPC Trust, Book-Entry
System, depository, sub-custodian or sub-sub-custodian. Each Fund reserves the
right to instruct PFPC Trust as to the method of registration and safekeeping of
its securities maintained hereunder. Each Fund agrees to furnish to PFPC Trust
appropriate instruments to enable PFPC Trust to hold or deliver in proper form
for transfer, or to register in the name of PFPC Trust's nominee or in the name
of the Book-Entry System or in the name of another appropriate entity, any
securities of the Fund which PFPC Trust may maintain hereunder.
(g) Voting and Other Action.
(i) PFPC Trust, directly or through the use of another
entity, shall execute in blank and promptly deliver all
notices (other than notices relating to class actions or
similar matters), proxies, and proxy soliciting
-28-
materials which are received by PFPC Trust as custodian
hereunder with respect to a particular security
maintained hereunder to the registered holder of such
security. If the registered owner is not the particular
Portfolio for which the security is maintained, then
Written or Oral Instructions must designate the person
to whom such notice, proxy or proxy soliciting material
is to be sent.
(ii) Neither PFPC Trust nor its nominee shall vote any of the
securities held pursuant to this Agreement, except in
accordance with Written Instructions (provided PFPC
Trust has received such Written Instructions within such
timeframes as PFPC Trust may designate from time to
time, which timeframes shall be reasonable based on the
standards in the market where performance is rendered).
(iii) PFPC Trust shall promptly deliver all notices relating
to class actions or similar matters which are received
by PFPC Trust as custodian hereunder with respect to a
particular security maintained hereunder to the
registered holder of such security. If the
-29-
registered owner is not the particular Portfolio for
which the security is maintained, then Written or Oral
Instructions must designate the person to whom such
notice is to be sent. Notwithstanding anything in this
Agreement to the contrary, PFPC Trust will not be under
a duty to respond to any class actions or similar
matters.
(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 all income, dividends,
distributions, coupons, option premiums, other
payments and similar items, included or to be
included in the Property maintained in a
particular Account hereunder, and, in addition,
promptly advise the Portfolio to which such
Account relates of such receipt and credit such
income to such Account;
(B) endorse and deposit for collection, in the name of
the applicable Portfolio, checks, drafts, or other
orders for the payment of money;
-30-
(C) receive and maintain in a particular Account
hereunder all securities received as a
distribution on the portfolio securities
maintained in such Account 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 such portfolio
securities;
(D) present for payment and collect the amount payable
upon all securities maintained in a particular
Account hereunder which may mature or which may on
a mandatory or involuntary basis be called,
redeemed, 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.
-31-
(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 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
a particular Fund or Portfolio or Account or
PFPC Trust or a sub-custodian or
sub-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.
-32-
(B) unless and until PFPC Trust receives Oral or
Written Instructions to the contrary, PFPC Trust
shall:
(1) pay all income items held by it hereunder
which call for payment upon presentation and
hold the cash received by it upon such
payment in the applicable Account hereunder;
(2) collect interest and cash dividends received
with respect to the securities maintained
hereunder, with notice to the applicable
Fund;
(3) hold in the applicable Account hereunder all
stock dividends, rights and similar
securities issued with respect to any
securities held by PFPC Trust in such
Account; and
(4) subject to receipt of such documentation and
information as PFPC Trust may request,
execute as agent on behalf of the applicable
Fund all necessary ownership certificates
required by a national governmental taxing
authority, inserting the Fund's name on such
-33-
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 in which PFPC Trust
acts as Foreign Custody Manager for a particular
Portfolio, seek to reclaim or obtain a reduction
with respect to any withholdings or other taxes
relating to assets of such Portfolio maintained
hereunder; 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.
-34-
(i) PFPC Trust shall upon receipt of Written or Oral
Instructions establish and maintain a segregated
accounts(s) on its records which segregated accounts
will relate to a particular Account. Such account(s) may
be used to transfer cash and securities, including
securities in the Book-Entry System:
(A) for the purposes of compliance a Portfolio with
the procedures required by a securities or option
exchange; providing that, if the Portfolio is a
series of a Fund that is an investment company
registered under the 1940 Act, such procedures
comply with the 1940 Act and any releases of the
SEC relating to the maintenance of segregated
accounts by registered investment companies; or
(B) upon receipt of Written Instructions, for other
purposes.
(ii) PFPC Trust may enter into separate custodial agreements
with various futures commission merchants ("FCMs") that
a particular Portfolio (or a particular Portfolio with
respect to a particular Account) uses with respect to
the assets maintained hereunder ("FCM Agreement").
-35-
Pursuant to an FCM Agreement, margin deposits with
respect to any transactions involving futures contracts
and options on futures contracts will be held by PFPC
Trust in accounts ("FCM Account") subject to the
disposition by the FCM involved in such contracts and in
accordance with applicable SEC rules and the rules of
the applicable commodities exchange.
Such FCM Agreements shall only be entered into upon
receipt of a request from the applicable Portfolio.
Transfers of initial margin shall be made into a FCM
Account only upon Written Instructions; transfers of
premium and variation margin may be made into a FCM
Account pursuant to Oral Instructions. Transfers of
funds from a FCM Account to the FCM with respect to
which PFPC Trust holds such an account may only occur
upon certification by the FCM to PFPC Trust that all
conditions precedent to its right to give PFPC Trust
such instructions have been satisfied.
(j) Purchases of Securities. PFPC Trust shall settle purchased
securities upon receipt of Written Instructions that
-36-
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;
(vi) the name of the person from whom or the broker through
whom the purchase was made; and
(vii) the Account to which such purchase applies. PFPC Trust
shall upon receipt of securities purchased or otherwise
in accordance with prevailing market practice pay out of
the monies held in the Account to which the purchase
applies 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 Written Instructions.
Nothing in this Agreement shall require PFPC Trust to
make any advance in order to settle purchased
securities.
(k) Sales of Securities. PFPC Trust shall settle sold
-37-
securities upon receipt of 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, settlement and sale;
(iv) the sale price per unit;
(v) the total amount payable upon such sale;
(vi) the name of the broker through whom or the person to
whom the sale was made; and
(vii) the Account to which the sale applies and 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 upon
such sale or otherwise in accordance with prevailing
market practice, provided that the total amount payable
is the same as was set forth in the Written
Instructions. Notwithstanding any provisions of this
Agreement to the contrary, PFPC Trust may accept payment
in such form as shall be satisfactory to it, and may
deliver assets and arrange for payment in accordance
with
-38-
prevailing market practice.
(l) Reports.
(i) PFPC Trust shall furnish each 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 each of the Fund's Accounts,
listing the portfolio securities maintained in
such Accounts and stating the cash amount of such
Accounts including disbursements;
(C) the reports to be furnished to the Fund pursuant
to Rule 17f-4 (if the Fund is an investment
company registered under the 0000 Xxx); and
(D) such other information as may be agreed upon from
time to time between the Fund and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to each Fund any
proxy statement, proxy material, notice of a call or
conversion or similar communication received by it as
custodian of the Property maintained hereunder with
respect to such Fund's Portfolios. PFPC Trust shall be
-39-
under no other obligation to inform the Fund as to such
actions or events. For clarification, upon termination
of this Agreement with respect to such Fund PFPC Trust
shall have no responsibility to transmit such
information or to inform the Fund or any other person of
such actions or events.
(m) Crediting of Accounts. With respect to registered United States
domestic securities (i.e., securities having an industry CUSIP number), security
purchase and sale transactions will be posted to the applicable Account on
settlement date and dividends, interest payments and final principal redemptions
will be credited to the applicable Account on payable date. With respect to
foreign securities, security purchase and sale transactions will be posted to
the applicable Account on settlement date to the extent that the sub-custodian
and sub-sub-custodian maintaining such securities hereunder so post the
transaction (and otherwise will be posted on the date such sub-custodian and
sub-sub-custodian post the transaction) and dividends, interest payments and
final principal redemptions will be credited to the applicable Account on
payable date to the extent that the sub-custodian and sub-sub-custodian
maintaining such securities hereunder so credit such amounts (and otherwise will
be credited on the date such sub-custodian and sub-sub-custodian credit such
amounts). With respect to transactions or payments not referenced
-40-
in one of the two preceding sentences, such transactions or payments will be
posted or credited to the applicable Account at the time determined by PFPC
Trust in its reasonable discretion (but in no event later than the date on which
such transaction or payment actually settles). No amount will be credited on
payable date with respect to securities that are in default.
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 PFPC Trust, acting in good faith, otherwise reasonably determines
that full and final payment of the amounts so credited is unlikely or (ii)
pursuant to standard industry practice, law or regulation PFPC Trust is required
to repay to a third party such amounts so credited, PFPC Trust shall have the
absolute right in its sole discretion upon notice to the applicable Fund to
reverse any such credit or payment and to debit or deduct the amount of such
credit or payment from the Account, and PFPC Trust shall also be entitled
without the need for such notice to otherwise pursue recovery of
-41-
any such amounts so credited from the applicable Fund. In addition,
notwithstanding the foregoing sentence, if any Property has been incorrectly
paid or credited, PFPC Trust shall have the absolute right in its sole
discretion without demand or prior notice to reverse any such payment or credit,
to debit or deduct the amount of any such payment or credit from the applicable
Account, and to otherwise pursue recovery of any amounts so paid or credited
from the applicable Fund; PFPC Trust will give prompt after-the-fact notice
(i.e., such notice will be given within timeframes that comply with PFPC Trust's
standard operating procedures) to the applicable Fund of the exercise of any
such right of reversal, debit or deduction, which notice may be contained in
periodic account statements made available to the applicable Fund. Each Fund, on
behalf of each of its respective Portfolios, hereby grants a first priority
contractual possessory security interest in and a right of setoff against the
assets maintained in a particular 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) with respect to such Account;
PFPC Trust will give prompt after-the-fact notice (i.e., such notice will be
given within timeframes that comply with PFPC Trust's standard operating
procedures) to the applicable Fund of the exercise of any such right of setoff,
which notice may be contained in periodic account statements made available to
the applicable Fund. Notwithstanding any other provisions of this
-42-
Agreement and without limiting any other rights of PFPC Trust under this
Agreement, PFPC Trust may assign any rights regarding reversal, debit, deduction
or setoff that it has under this Section 14(m) to a sub-custodian or
sub-sub-custodian; PFPC Trust will give notice to the applicable Fund of the
exercise of any such assigned right of reversal, debit, deduction or setoff by a
sub-custodian or sub-sub-custodian, to the same extent PFPC Trust would be
required to give the applicable Fund notice under this Section 14(m) if PFPC
Trust had itself exercised such right.
(n) Collections. Provided PFPC Trust has complied with its required
standard of care with respect to a particular Portfolio under this Agreement,
all collections of monies or other property (including share entitlements), in
respect, or which are to become part of the Property of such Portfolio (but not
the safekeeping thereof upon receipt by PFPC Trust) shall be at the sole risk of
such Portfolio. If payment is not received by PFPC Trust within a reasonable
time after proper demands have been made, PFPC Trust shall notify the applicable
Fund in writing, including copies of all demand letters, any written responses,
and memoranda of all telephonic demands and oral responses, and shall await
instructions from the Fund. PFPC Trust shall not be obliged to take legal action
for collection unless and until reasonably indemnified to its satisfaction. PFPC
Trust shall also notify the applicable Fund as soon as reasonably practicable
whenever income due on securities is not collected in due course. Provided PFPC
Trust or
-43-
the applicable sub-custodian or sub-sub-custodian has made reasonable efforts to
collect monies or other property (including share entitlements) due with respect
to assets that are not registered in the name of PFPC Trust, the Book-Entry
System, a depository, a sub-custodian, a sub-sub-custodian, or a duly appointed
nominee thereof, PFPC Trust shall have no responsibility with respect to any
failure to collect monies or other property (including share entitlements) due
with respect to such assets.
(o) PFPC Trust and/or sub-custodians and/or sub-sub-custodians may
enter into or arrange foreign exchange transactions (at such rates as they may
consider appropriate) in order to facilitate transactions under this Agreement,
and such entities and/or their affiliates may receive reasonable and customary
compensation in connection with such foreign exchange transactions. If a Fund
specifically instructs PFPC Trust to use a particular entity with respect to a
foreign exchange transaction, PFPC Trust will not have any responsibility for
that entity in relation to such foreign exchange transaction (even if such
entity serves as a sub-custodian or sub-sub-custodian under this Agreement).
15. Duration and Termination. This Agreement shall continue in full force
and effect with respect to a particular Fund (or Portfolio thereof) unless
terminated as hereinafter provided. With respect to a particular Fund (or
Portfolio thereof) and PFPC Trust, this Agreement may be terminated by either of
such Fund or PFPC Trust by an instrument in writing delivered, faxed or mailed,
-44-
postage prepaid, to the other, such termination to take effect on the date
stated therein, which date shall not be sooner than sixty (60) days after the
date of such delivery or mailing. In the event this Agreement is terminated with
respect to a particular Fund (or Portfolio thereof), pending appointment of a
successor to PFPC Trust, PFPC Trust may deliver the assets of such Fund (or such
Portfolio) that are maintained hereunder to a bank or trust company of PFPC
Trust's choosing, 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), to be held under terms similar to those of this Agreement. PFPC
Trust shall not be required to make any delivery or payment of the assets
maintained hereunder with respect to a particular Fund (or Portfolio thereof)
until full payment shall have been made by such Fund (or such Portfolio) to PFPC
Trust of all of PFPC Trust's fees, compensation, costs and expenses relating to
such Fund (or such Portfolio); PFPC Trust shall have a security interest in and
shall have a right of setoff against such Fund's (or such Portfolio's) Property
which is in PFPC Trust's possession (or in the possession of a sub-custodian or
sub-sub-custodian) as security for the payment of PFPC Trust's fees,
compensation, costs and expenses relating to such Fund (or such Portfolio).
16. Notices. Notice shall be addressed (a) if to PFPC Trust at PFPC
Trust's address, 0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, marked for the attention of the
-45-
Mutual Fund Custody Department (or its successor); (b) if to a Fund, at the
address of the Fund; or (c) if to neither a Fund or PFPC Trust, at such other
address as shall have been notified to the sender of any such notice. If notice
is sent by confirming 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.
17. 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; provided that notwithstanding the foregoing,
(i) Schedule B hereto may be amended as set forth in Section 1(a) of this
Agreement, (ii) Schedule C hereto may be amended as set forth in Section 1(e) of
this Agreement, and (iii) PFPC Trust may add entities and/or jurisdictions to
Schedule D hereto from time to time upon written notice to the Funds and PFPC
Trust may remove entities and/or jurisdictions from Schedule D hereto from time
to time upon thirty(30) days prior written notice to the Funds. PFPC Trust
agrees to consult in good faith with a Fund should the Fund wish to add
additional entities and/or jurisdictions to Schedule D hereto, but nothing in
this Agreement shall require PFPC Trust to add entities and/or jurisdictions to
Schedule D hereto and there may from time to time be entities and/or
jurisdictions that PFPC Trust
-46-
determines it will not add to Schedule D hereto.
18. Delegation. PFPC Trust may, with the prior written consent of a Fund,
which consent may not be unreasonably withheld, assign its rights and delegate
its duties with respect to such Fund hereunder to any wholly-owned direct or
indirect subsidiary of PFPC Trust or of The PNC Financial Services Group, Inc.,
provided that (i) PFPC Trust provides the Fund a minimum of thirty (30) days in
which to decide and to consent by written notice; (ii) if the Fund is an
investment company registered under the 1940 Act, the delegate agrees with PFPC
Trust to comply with all relevant provisions of this Agreement and the 1940 Act;
and (iii) PFPC Trust and such delegate promptly provide such information as the
Fund may request, and respond to such questions as the Fund may ask, relative to
the delegation, including (without limitation) the capabilities of the delegate.
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.
20. Further Actions. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
21. Miscellaneous. As between each separate Fund and PFPC Trust, this
Agreement embodies the entire agreement and understanding between such Fund and
PFPC Trust and supersedes all prior agreements and understandings between such
Fund and PFPC
-47-
Trust relating to the subject matter hereof.
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. This Agreement shall be deemed to
be a contract made in New York and governed by New York law. 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.
This Agreement shall be binding and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
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 owned or licensed and utilized by PFPC Trust in
connection with the services provided by PFPC Trust to any of the Funds.
There are no oral or written representations, agreements or understandings
between PFPC Trust and any Fund relating to the subject matter of this Agreement
except as stated in this Agreement.
PFPC Trust is entering into this Agreement with each of the Funds
separately, and any duty, obligation or liability owed or
-48-
incurred by PFPC Trust with respect to a particular Fund shall be owed or
incurred solely with respect to that Fund, and shall not in any way create any
duty, obligation or liability with respect to any other Fund. This Agreement
shall be interpreted to carry out the intent of the parties hereto that PFPC
Trust is entering into a separate arrangement with each separate Fund.
The respective names Schwab Capital Trust, Schwab Investments, The Xxxxxxx
Xxxxxx Family of Funds and Schwab Annuity Portfolios refers to each of such
respective Funds and its Trustees, as Trustees but not individually or
personally, acting under their respective Declarations of Trust dated May 6,
1993, October 26, 1990, May 9, 1995 and January 21, 1994. The obligations of any
one of the aforementioned Funds entered into in the name of or on behalf of a
Portfolio of such Fund by any of the Trustees, representatives or agents of such
Fund are made not individually, but in such capacities. Such obligations are not
binding upon any of the Trustees, shareholders or representatives of such Fund
personally, but bind only the assets of such Fund belonging to such Portfolio
for the enforcement of any claims against such Fund.
-49-
Transactions entered into by a particular Portfolio of a Fund are
considered independent transactions and shall in no way effect transactions
entered into by any other Portfolio of such Fund. Any amount owed by a Fund with
respect to any obligation arising out of this Agreement, as amended, shall be
paid only out of the assets and property of the particular Portfolio that
entered into such transaction.
-50-
IN WITNESS WHEREOF, each of the respective parties hereto have caused this
Agreement to be executed on the day and year first above written.
PFPC TRUST COMPANY
/s:/ Xxx Xxxxxxxx
-------------------------------
By: Xxx Xxxxxxxx, XX
Title: President
SCHWAB CAPITAL TRUST
/s:/ Tai-Xxxx Xxxx
-------------------------------
By: Tai-Xxxx Xxxx
Title: Treasurer and Principal
Financial Officer
SCHWAB INVESTMENTS
/s:/ Tai-Xxxx Xxxx
-------------------------------
By: Tai-Xxxx Xxxx
Title: Treasurer and Principal
Financial Officer
THE XXXXXXX XXXXXX FAMILY OF FUNDS
/s:/ Tai-Xxxx Xxxx
-------------------------------
By: Tai-Xxxx Xxxx
Title: Treasurer and Principal
Financial Officer
SCHWAB ANNUITY PORTFOLIOS
/s:/ Tai-Xxxx Xxxx
-------------------------------
By: Tai-Xxxx Xxxx
Title: Treasurer and Principal
Financial Officer
-51-
SCHEDULE A
INVESTMENT PORTFOLIOS
Schwab Capital Trust
Schwab S&P 500 Fund
Schwab Core Equity Fund
Schwab Institutional Select S&P 500 Fund
Schwab Institutional Select Large-Cap Value Index Fund
Schwab Institutional Select Small-Cap Value Index Fund
Schwab Total Stock Market Index Fund
Schwab U.S. MarketMasters Fund *
Schwab Balanced MarketMasters Fund *
Schwab Small-Cap MarketMasters Fund *
Schwab International MarketMasters Fund *
Schwab Hedged Equity Fund
Schwab Investments
Schwab 1000
Schwab Short-Term Bond Market Fund
Schwab Total Bond Market Fund
Schwab California Short/Intermediate Tax-Free Bond Fund
Schwab California Long-Term Tax-Free Bond Fund
Schwab Short/Intermediate Tax-Free Bond Fund
Schwab Long-Term Tax-Free Bond Fund
Schwab YieldPlus Fund
Schwab GNMA Fund
The Xxxxxxx Xxxxxx Family of Funds
Schwab Money Market Fund
Schwab Value Advantage Money Fund
Schwab Institutional Advantage Money Fund
Schwab Retirement Money Fund
Schwab Government Money Fund
Xxxxxx U.S. Treasury Money Fund
Schwab Municipal Money Fund
Schwab California Municipal Money Fund
Schwab New York Municipal Money Fund
Schwab Florida Municipal Money Fund
Schwab Government Cash Reserves Fund
Schwab Pennsylvania Municipal Money Fund
Schwab New Jersey Municipal Money Fund
Schwab Massachusetts Municipal Money Fund
Schwab Annuity Portfolios
Schwab Money Market Portfolio
Schwab S&P 500 Portfolio
-52-
SCHEDULE B
AUTHORIZED PERSONS APPENDIX
Schwab Capital Trust
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Schwab Investments
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
-53-
SCHEDULE B
AUTHORIZED PERSONS APPENDIX
The Xxxxxxx Xxxxxx Family of Funds
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Schwab Annuity Portfolios
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
-54-
SCHEDULE C
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxxx
Xxxxxx Xxxxxx
-55-
SCHEDULE D
Sub-Sub-Custodian Jurisdiction
----------------- ------------
-56-
