CUSTODIAN SERVICES AGREEMENT
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THIS AGREEMENT is made as of October 1, 1999 by and between PFPC TRUST
COMPANY, a limited purpose trust company organized under the laws of Delaware
("PFPC Trust"), and HARVEST FUNDS, a Delaware business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, In consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund and any
other person duly authorized by the Fund's Board of Trustees
to give Oral Instructions and Written Instructions on behalf
of the Fund and listed on the Authorized Persons Appendix
attached hereto and made a part hereof or any amendment
thereto as may be received by PFPC Trust. An Authorized
Person's scope of authority may be limited by the Fund by
setting forth such limitation in the Authorized Persons
Appendix.
(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury book-entry
system for United States and federal agency securities, its
successor or successors, and its nominee or nominees and any
book-entry system maintained by an exchange registered with
the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "FOREIGN CUSTODY MANAGER" means Citibank, N.A. or other entity
appointed by the Fund's Board of Trustees to select and
monitor the Fund's foreign sub-custodians and securities
depositories.
(g) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC
Trust from an Authorized Person or from a person reasonably
believed by PFPC Trust to be an Authorized Person.
(h) "REGISTRATION STATEMENT" means the Fund's registration
statement filed with the Securities and Exchange Commission,
as most recently amended.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(k) "SHARES" mean the shares of beneficial interest of any series
or class of the Fund.
(l) "PROPERTY" means:
(i) any and all cash, securities and other investment
items which the Fund may from time to time deposit,
or cause to be deposited, with PFPC Trust or which
PFPC Trust may from time to time hold for the Fund;
(ii) all income in respect of any of such securities or
other investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the
Fund, which are
received by PFPC Trust from time to time, from or on
behalf of the Fund.
(m) "WRITTEN INSTRUCTIONS" mean written instructions signed by two
Authorized Persons and received by PFPC Trust. The
instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC Trust to provide custodian
services to the Fund, on behalf of each of its investment portfolios
(each, a "Portfolio"), and PFPC Trust accepts such appointment and
agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC Trust with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, approving the appointment of PFPC
Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of each Portfolio's advisory agreements;
(d) a copy of the distribution agreement with respect to each
class of Shares;
(e) a copy of each Portfolio's administration agreement if PFPC
Trust is not providing the Portfolio with such services;
(f) copies of any shareholder servicing agreements made in respect
of the Fund or a Portfolio; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with all applicable requirements of the
Securities Laws and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by PFPC Trust hereunder. Except as specifically set
forth herein, PFPC Trust assumes no responsibility for such compliance
by the Fund or any Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall
act only upon Oral Instructions and Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral
Instructions and Written Instructions it receives from an
Authorized Person (or from a person reasonably believed by
PFPC Trust to be an Authorized Person) pursuant to this
Agreement. PFPC Trust may assume that any Oral Instructions or
Written Instructions received hereunder are not in any way
inconsistent with the provisions of organizational documents
of the Fund or of any vote, resolution or proceeding of the
Fund's Board of Trustees or of the Fund's shareholders, unless
and until PFPC Trust receives Written Instructions to the
contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral
Instructions are given by PFPC Trust or its affiliates) so
that PFPC Trust receives the Written Instructions by the close
of business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions
are not received by PFPC Trust 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
Fund 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 FUND. If PFPC Trust is in doubt as to any action
it should or should not take, PFPC Trust may request
directions or advice, including Oral Instructions or Written
Instructions, from the Fund.
(b) ADVICE OF COUNSEL. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC Trust may request advice at its own cost from
such counsel of its own choosing (who may be counsel for the
Fund, the Fund's investment adviser or PFPC Trust, at the
option of PFPC Trust).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice or Oral Instructions or Written
Instructions PFPC Trust receives from the Fund, 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 Fund or from the Fund's 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 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 Fund and any
Portfolio, which are in the possession or under the control of PFPC
Trust, shall be the property of the Fund. Such books and records shall
be prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Fund and
Authorized Persons shall have access to such books and records at all
times during PFPC Trust's normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records shall be
provided by PFPC Trust to the Fund or to an authorized representative
of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. PFPC Trust agrees to keep confidential all records of
the Fund and information relating to the Fund and its shareholders,
unless the release of such records or information is otherwise
consented to, in writing, by the Fund. The Fund agrees that such
consent shall not be unreasonably withheld and may not be withheld
where PFPC Trust may be exposed to civil or criminal contempt
proceedings or when required to divulge such information or records to
duly constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the
Fund's independent public accountants and shall take all reasonable
action in the performance of its obligations under this Agreement to
ensure that the necessary information is made available to such
accountants for the expression of their opinion, as required by the
Fund.
10. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making
reasonable provisions for emergency use of electronic data processing
equipment to the extent appropriate equipment is available. In the
event of equipment failures, PFPC Trust shall, at no additional expense
to the Fund, take reasonable steps to minimize service interruptions.
PFPC Trust shall have no liability with respect to the loss of data or
service interruptions caused by equipment failure provided such loss or
interruption is not covered 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 (a) has reviewed its business and
operations as they relate to the services provided hereunder, (b) has
remediated or replaced computer applications and systems controlled by
PFPC and which are mission-critical to providing services hereunder
(the "Relevant Systems"), and (c) has implemented a testing plan to
test the remediation or replacement of the Relevant Systems to address
on a timely basis the risk that the Relevant Systems may be unable to
process over the January 1, 2000 boundary and on the leap day of
February 29, 2000. PFPC represents and warrants that, based on
assessments and testing to date, processing errors by the Relevant
Systems involving such boundary and leap day are not likely to occur.
PFPC will continue to monitor and test the Relevant Systems and make
adjustments as necessary.
12. COMPENSATION. As compensation for custody services rendered by PFPC
Trust during the term of this Agreement, the Fund, on behalf of each of
the Portfolios, will pay to PFPC Trust a fee or fees as may be agreed
to in writing from time to time by the Fund and PFPC Trust.
13. INDEMNIFICATION. The Fund, on behalf of each Portfolio, agrees to
indemnify and hold harmless PFPC Trust and its affiliates from all
taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the
Securities Laws and any state and foreign securities and blue sky laws,
and amendments thereto, and expenses, including (without limitation)
attorneys' fees and disbursements, arising directly or indirectly from
any action or omission to act which PFPC Trust takes (i) at the request
or on the direction of or in reliance on the advice of the Fund or (ii)
upon Oral Instructions or Written Instructions. Neither PFPC Trust, nor
any of its affiliates, shall be indemnified against any liability (or
any expenses incident to such liability) arising out of PFPC Trust's or
its affiliates' own willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties under this Agreement.
14. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action on behalf
of the Fund or any Portfolio except as specifically set forth
herein or as may be specifically agreed to by 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 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, (i) PFPC Trust shall not be
under any duty or obligation to inquire into and shall not be
liable for (A) the validity or invalidity or authority or lack
thereof of any Oral Instruction or Written Instruction, notice
or other instrument which conforms to the applicable
requirements of this Agreement, and which PFPC Trust
reasonably believes to be genuine; or (B) subject to section
10, delays or errors or loss of data 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
Fund or to any Portfolio for any consequential, special or
indirect losses or damages which the Fund may incur or suffer
by or as a consequence of PFPC Trust's or its affiliates'
performance of the services provided hereunder, 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 Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the
Portfolios, including cash received as a result of the
distribution of Shares, during the period that is set forth in
this Agreement. PFPC Trust will not be responsible for such
property until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PFPC Trust, acting upon
Written Instructions, shall open and maintain separate
accounts in the Fund's name using all cash received from or
for the account of the Fund, subject to the terms of this
Agreement. In addition, upon Written Instructions, PFPC Trust
shall open separate custodial accounts for each separate
series or Portfolio of the Fund (collectively, the "Accounts")
and shall hold in the Accounts all cash received from or for
the Accounts of the Fund specifically designated to each
separate series or Portfolio.
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 or
PFPC Trust or PFPC Trust's nominee as provided in
sub-section (j) and for which PFPC Trust has received
a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(ii) purchase or redemption of Shares of the Fund
delivered to PFPC Trust;
(iii) payment of, subject to Written Instructions,
interest, taxes, 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 Fund's transfer agent, as agent for
the shareholders, an amount equal to the amount of
dividends and distributions stated in the Written
Instructions to be distributed in cash by the
transfer agent to shareholders, or, in lieu of paying
the Fund's transfer agent, PFPC Trust may arrange for
the direct payment of cash dividends and
distributions to shareholders in accordance with
procedures mutually agreed upon from time to time by
and among the Fund, PFPC Trust and the Fund's
transfer agent.
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender
of securities owned or subscribed to by the Fund and
held by or delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with
respect to securities sold short;
(vii) payments made to a sub-custodian pursuant to
provisions in sub-section (c) of this Section; and
(viii) payments, upon Written Instructions, made for other
proper Fund purposes.
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 Fund 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 and upon Written Instructions, accompanied
by a certified resolution of the Fund's Board of
Trustees, authorizing the transaction. In no case may
any member of the Fund's Board of Trustees, or any
officer, employee or agent of the Fund withdraw any
securities.
At PFPC Trust's own expense and for its own
convenience, PFPC Trust may enter into sub-custodian
agreements with other United States banks or trust
companies to perform duties described in this
sub-section (c). Such bank or trust company shall
have an aggregate capital, surplus and undivided
profits, according to its last published report, of
at least one million dollars ($1,000,000), if it is a
subsidiary or affiliate of 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 the 1940 Act
and other applicable rules and regulations. Any such
arrangement will not be entered into without prior
written notice to the Fund.
PFPC Trust shall remain responsible for the performance of all of its
duties as described in this Agreement and shall hold the Fund and each
Portfolio harmless from its own acts or omissions, under the standards
of care provided for herein, or the acts and omissions of
any sub-custodian chosen by 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; provided that,
in any such case, the cash or other consideration is
to be delivered to PFPC Trust;
(iv) deliver any securities held for a Portfolio against
receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization,
refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise
of any conversion privilege;
(v) deliver any securities held for a Portfolio to any
protective committee, reorganization committee or
other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization
or sale of assets of any corporation, and receive and
hold under the terms of this Agreement such
certificates of deposit, interim receipts or other
instruments or documents as may be issued to it to
evidence such delivery;
(vi) make such transfer or exchanges of the assets of the
Portfolios and take such other steps as shall be
stated in said Oral Instructions or Written
Instructions to be for the purpose of effectuating a
duly authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the
Fund;
(vii) release securities belonging to a Portfolio to any
bank or trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the Fund
on behalf of that Portfolio; provided, however, that
securities shall be released only upon payment to
PFPC Trust of the monies borrowed, except that in
cases where additional collateral is required to
secure a borrowing already made subject to proper
prior authorization,
further securities may be released for that purpose;
and repay such loan upon redelivery to it of the
securities pledged or hypothecated therefor and upon
surrender of the note or notes evidencing the loan;
(viii) release and deliver securities owned by a Portfolio
in connection with any repurchase agreement entered
into on behalf of the Fund, but only on receipt of
payment therefor; and pay out moneys of the Fund in
connection with such repurchase agreements, but only
upon the delivery of the securities;
(ix) release and deliver or exchange securities owned by
the Fund in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities owned by the Fund for
the purpose of redeeming in kind shares of the Fund
upon delivery thereof to PFPC Trust; and
(xi) release and deliver or exchange securities owned by
the Fund for other corporate purposes.
PFPC Trust must also receive a certified resolution
of the Board of Trustees of the Fund describing the
nature of the corporate purpose and the name and
address of the person(s) to whom delivery shall be
made when such action is pursuant to sub-paragraph d.
(e) USE OF BOOK-ENTRY SYSTEM. The Fund shall deliver to PFPC Trust
certified resolutions of the Fund's Board of Trustees
approving, authorizing and instructing PFPC Trust on a
continuous basis, to deposit in the Book-Entry System all
securities belonging to the Portfolios eligible for deposit
therein and to utilize the Book-Entry System to the extent
possible in connection with settlements of purchases and sales
of securities by the Portfolios, and deliveries and returns of
securities loaned, subject to 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. PFPC Trust shall furnish to the Fund a
detailed statement of the Property held for each
Portfolio under this Agreement at least monthly and
from time to time and upon written request.
(ii) Securities and any cash of each Portfolio deposited
in the Book-Entry System will at all times be
segregated from any assets and cash controlled by
PFPC Trust in other than a fiduciary or custodian
capacity but may be commingled with other assets held
in such capacities. PFPC Trust and its sub-custodian,
if any, will pay out money only upon receipt of
securities and will deliver securities only upon the
receipt of money.
(iii) All books and records maintained by PFPC Trust which
relate to the Fund's participation in the Book-Entry
System will at all times during PFPC Trust's regular
business hours be open to the inspection of
Authorized Persons, and PFPC Trust will furnish to
the Fund all information in respect of the services
rendered as it may require.
PFPC Trust will also provide the Fund with such reports on its
own system of internal control as the Fund may reasonably
request from time to time.
(f) REGISTRATION OF SECURITIES. All Securities held for a
Portfolio which are issued or issuable only in bearer form,
except such securities held in the Book-Entry System, shall be
held by PFPC Trust in bearer form; all other securities held
for a Portfolio may be registered in the name of the Fund on
behalf of that Portfolio, PFPC Trust, the Book-Entry System, a
sub-custodian, or any duly appointed nominees of the Fund,
PFPC Trust, Book-Entry System or sub-custodian. The Fund
reserves the right to instruct PFPC Trust as to the method of
registration and safekeeping of the securities of the Fund.
The Fund agrees to furnish to PFPC Trust appropriate
instruments to enable PFPC Trust to hold or deliver in proper
form for transfer, or to register in the name of its nominee
or in the name of the
Book-Entry System, any securities which it may hold for the
Accounts and which may from time to time be registered in the
name of the Fund on behalf of a Portfolio.
(g) VOTING AND OTHER ACTION. Neither 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 to the registered holder of such
securities. If the registered holder is not the Fund on behalf
of a Portfolio, then Written Instructions or Oral Instructions
must designate the person who owns such securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of
contrary Written Instructions, 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 Fund, checks, drafts, or other
orders for the payment of money;
(C) receive and hold for the account of each
Portfolio all securities received as a
distribution on the Portfolio's securities
as a result of a stock dividend, share
split-up or reorganization,
recapitalization, readjustment or other
rearrangement or distribution of rights or
similar securities issued with respect to
any securities belonging to a Portfolio and
held by PFPC Trust hereunder;
(D) present for payment and collect the amount
payable upon all securities which may mature
or be called, redeemed, or retired, or
otherwise become payable on the date such
securities become payable; and
(E) take any action which may be necessary and
proper in connection with the collection and
receipt of such income and other payments
and the endorsement for collection of
checks, drafts, and other negotiable
instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) deliver or cause to be delivered Property
against payment or other consideration or
written receipt therefor in the following
cases:
(1) for examination by a broker or
dealer selling for the account of a
Portfolio in accordance with street
delivery custom;
(2) for the exchange of interim
receipts or temporary securities
for definitive securities; and
(3) for transfer of securities into the
name of the Fund on behalf of a
Portfolio or PFPC Trust or nominee
of either, or for exchange of
securities for a different number
of bonds, certificates, or other
evidence, representing the same
aggregate face amount or number of
units bearing the same interest
rate, maturity date and call
provisions, if any; provided that,
in any such case, the new
securities are to be delivered to
PFPC Trust.
(B) Unless and until PFPC Trust receives Oral
Instructions or Written Instructions to the
contrary, PFPC Trust shall:
(1) pay all income items held by it
which call for payment upon
presentation and hold the cash
received by it upon such payment
for the account of each Portfolio;
(2) collect interest and cash dividends
received, with notice to the Fund,
to the account of each Portfolio;
(3) hold for the account of each
Portfolio all stock dividends,
rights and similar securities
issued with respect to any
securities held by PFPC Trust; and
(4) execute as agent on behalf of the
Fund all necessary ownership
certificates required by the
Internal Revenue Code or the Income
Tax Regulations of the United
States Treasury Department or under
the laws of any state now or
hereafter in effect, inserting the
Fund's name, on behalf of a
Portfolio, on such certificate as
the owner of the securities covered
thereby, to the extent it may
lawfully do so.
(i) SEGREGATED ACCOUNTS.
(i) 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 Fund
with the procedures required by a securities
or option exchange, providing such
procedures comply with the 1940 Act and any
releases of the SEC relating to the
maintenance of segregated accounts by
registered investment companies; and
(B) Upon receipt of Written Instructions, for
other proper corporate purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such shareholders holding
Shares through XXX accounts, in accordance with the
Fund's Registration Statement, as amended from time
to time, the Internal Revenue Code of 1986, as
amended (including regulations promulgated
thereunder), and with such other procedures as are
mutually agreed upon from time to time by and among
the Fund, PFPC Trust and the Fund's transfer agent.
(j) PURCHASES OF SECURITIES. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written
Instructions from the Fund or its investment advisers that
specify:
(i) the name of the issuer and the title of the
securities, including CUSIP number if applicable;
(ii) the number of shares or the principal amount
purchased and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(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 from
the Fund that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and
accrued interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(vi) the name of the broker through whom or the person to
whom the sale was made; and
(vii) the location to which the security must be delivered
and delivery deadline, if any; and
(viii) the Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Portfolio upon such sale, provided that the total
amount payable is the same as was set forth in the Oral Instructions or
Written Instructions. Subject to the foregoing, PFPC Trust may accept
payment in such form as shall be satisfactory to it, and may deliver
securities and arrange for payment in accordance with the customs
prevailing among dealers in securities.
(l) REPORTS; PROXY MATERIALS.
(i) PFPC Trust shall furnish to the Fund the following
reports:
(A) such periodic and special reports as the
Fund may reasonably request;
(B) a monthly statement summarizing all
transactions and entries for the account of
each Portfolio, listing the securities
belonging to each Portfolio, with the
adjusted average cost of each issue and the
market value at the end of such month and
stating the cash account of each Portfolio
including disbursements;
(C) the reports required to be furnished to the
Fund pursuant to Rule 17f-4; and
(D) such other information as may be agreed upon
from time to time between the Fund and PFPC
Trust.
(ii) PFPC Trust shall transmit promptly to the Fund any
proxy statement, proxy material, notice of a call or
conversion or similar communication received by it as
custodian of the Property. PFPC Trust shall be under
no other obligation to inform the Fund as to such
actions or events.
(m) CREDITING OF ACCOUNTS. If PFPC Trust in its sole discretion
credits an Account with respect to (a) income, dividends,
distributions, coupons, option premiums, other payments or
similar items on a contractual payment date or otherwise in
advance of PFPC Trust's actual receipt of the amount due, (b)
the proceeds of any sale or other disposition of assets on the
contractual settlement date or otherwise in advance of PFPC
Trust's actual receipt of the amount due or (c) provisional
crediting of any amounts due, and (i) PFPC Trust is
subsequently unable to collect
full and final payment for the amounts so credited within a
reasonable time period using reasonable efforts or (ii)
pursuant to standard industry practice, law or regulation PFPC
Trust is required to repay to a third party such amounts so
credited, or if any Property has been incorrectly credited,
PFPC Trust shall have the absolute right in its sole
discretion without demand to reverse any such credit or
payment, to debit or deduct the amount of such credit or
payment from the Account, and to otherwise pursue recovery of
any such amounts so credited from the Fund. Nothing herein or
otherwise shall require PFPC Trust to make any advances or to
credit any amounts until PFPC Trust's actual receipt thereof.
The Fund hereby grants a first priority contractual possessory
security interest in and a right of setoff against the assets
maintained in an Account hereunder in the amount necessary to
secure the return and payment to PFPC Trust of any advance or
credit made by PFPC Trust (including charges related thereto)
to such Account.
(n) COLLECTIONS. All collections of monies or other property in
respect, or which are to become part, of the Property (but not
the safekeeping thereof upon receipt by PFPC Trust) shall be
at the sole risk of the Fund. If payment is not received by
PFPC Trust within a reasonable time after proper demands have
been made, PFPC Trust shall notify the Fund in writing,
including copies of all demand letters, any written responses,
memoranda of all oral responses and shall await instructions
from the Fund. PFPC Trust shall not be obliged to take legal
action for collection unless and until reasonably indemnified
to its satisfaction. PFPC Trust shall also notify the Fund as
soon as reasonably practicable whenever income due on
securities is not collected in due course and shall provide
the Fund with periodic
status reports of such income collected after a reasonable
time.
16. DURATION AND TERMINATION. This Agreement shall be effective on the date
first above written and shall continue in effect for an initial period
of two (2) years. Thereafter, this Agreement shall continue
automatically for successive terms of one (1) year; provided, however,
that this Agreement may be terminated on its anniversary date by either
party upon 90 days' written notice to the other party. In the event
this Agreement is terminated (pending appointment of a successor to
PFPC Trust or vote of the shareholders of the Fund to dissolve or to
function without a custodian of its cash, securities or other
property), PFPC Trust shall not deliver cash, securities or other
property of the Portfolios to the Fund. It may deliver them to a bank
or trust company of PFPC Trust's choice, having an aggregate capital,
surplus and undivided profits, as shown by its last published report,
of not less than twenty million dollars ($20,000,000), as a custodian
for the Fund to be held under terms similar to those of this Agreement.
PFPC Trust shall not be required to make any such delivery or payment
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.
17. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. Notice shall be addressed (a) if to
PFPC Trust at Airport Business Center, 000 Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxx 00000, marked for the attention of the Custodian Services
Department (or its successor) (b) if to the Fund, at 000 Xxxxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attn: Xxxxx X. Xxxxxxxx; or (c) if
to neither of the foregoing, at such
other address as shall have been given by like notice to the sender of
any such notice or other communication by the other party. If notice is
sent by confirming telegram, cable, telex or facsimile sending device,
it shall be deemed to have been given immediately. If notice is sent by
first-class mail, it shall be deemed to have been given five days after
it has been mailed. If notice is sent by messenger, it shall be deemed
to have been given on the day it is delivered.
18. 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.
19. 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 PFPC Bank Corp., provided that (i) PFPC
Trust gives the Fund sixty (60) days' prior written notice; (ii) the
delegate (or assignee) agrees with PFPC Trust and the Fund to comply
with all relevant provisions of the Securities Laws; and (iii) PFPC
Trust and such delegate (or assignee) promptly provide such information
as the Fund may request, and respond to such questions as the Fund may
ask, relative to the delegation (or assignment), including (without
limitation) the capabilities of the delegate (or assignee).
20. LIMITATIONS OF LIABILITY. PFPC Trust is hereby expressly put on notice
of the limitations of shareholder and trustee liability as set forth in
the Fund's Agreement and Declaration of Trust. PFPC Trust agrees that
any obligations of the Fund under this Agreement shall be limited in
all cases to the Fund and its assets, and PFPC shall not seek
satisfaction of any such obligations from the Fund's shareholders nor
from the trustees of the Fund. Any obligations payable by the Fund on
behalf of a specific Portfolio or Portfolios hereunder
shall be satisfied only against the relevant Portfolio's assets and not
against the assets of any other Portfolio of the Fund.
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, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties and Oral Instructions.
(b) CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(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.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
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:___________________________
Title:________________________
HARVEST FUNDS
By:___________________________
Title:________________________
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
O. XXX XXXXX
______________________________ ______________________________
XXXXX XXXXXXXX
______________________________ ______________________________
XXXXXX XXXXXX
______________________________ ______________________________
XXXXXXX XXXXXXXX
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
______________________________ ______________________________
