RETIREMENT PLAN CUSTODIAL SERVICES AGREEMENT
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THIS AGREEMENT is made and entered into as of October 21, 1999, by and
between PERMANENT PORTFOLIO FAMILY OF FUNDS, INC., a Maryland corporation
("Company"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust
company ("State Street").
WHEREAS, Company desires to name a custodial trustee without discretionary
trust powers and/or a custodian (in either or both capacities a "Custodian") for
individual retirement accounts, simplified employee pension plans, 403(b)(7)
custodial accounts and defined contribution retirement plans (whether or not
"qualified" under the Internal Revenue Code of 1986 ("Code") and whether or not
subject to the Employee Retirement Income Security Act of 1974 ("ERISA")) (all
such accounts and plans are herein referred to collectively as "Plans") which
Company sponsors, or may hereafter sponsor, for participants to invest solely in
shares of the Company's investment portfolio or portfolios; and
WHEREAS, State Street is willing to serve as Custodian with respect to
Plans approved by State Street, but only on the terms and conditions set forth
herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1 . State Street shall serve as Custodian for Plans sponsored by the
Company which State Street approves as hereinafter provided. Company and State
Street agree to evidence their agreement for State Street to act as such with
respect to each Plan approved by State Street by executing a Retirement Plan
Custodial Services Confirmation substantially in the form attached hereto as
Exhibit A ("Confirmation"), and each party agrees to execute such further
documents evidencing such agreement as may be reasonably requested by either
party from time to time. As to each Plan, the "Effective Date" for purposes
hereof shall be the date specified as such in the Confirmation for such Plan.
State Street certifies that it is qualified to act as Custodian for the Plans
under the requirements of the Code.
2. No Plan shall provide for State Street to serve as Custodian for any
assets whatsoever other than shares of the Company. In no event shall any Plan
provide for State Street (i) to have or exercise any discretionary authority or
discretionary control whatsoever respecting management of the Plan or any
authority or control respecting management or disposition of any assets of the
Plan; (ii) to render or have authority or responsibility to render investment
advice with respect to any moneys or other property of any Plan; or (iii) to
have or exercise any discretionary authority or discretionary responsibility in
the administration of any Plan. No Plan shall provide for State Street to be,
and in no event shall State Street be deemed to be, a "fiduciary" as defined in
XXXXX.
0 . Xxxxx Xxxxxx shall at all times have full access to and use of all
accounts and records relating to accounts on which State Street is named
custodian or trustee and which are maintained by Chase Global Funds Services
Company on the Investar IMSP6 System of SunGard Shareholder Systems Inc. (the
"System") for purposes of performing its duties and obligations as such
custodian or trustee. In addition, State Street, its auditors and accountants,
and to the extent required by law its regulatory authorities, shall have full
access at all times to all such accounts and records for purposes of audit,
examination, and testing and verifying compliance with the terms of the Plans
and any other applicable governing documents, all applicable requirements of law
and all applicable accounting standards. Company hereby irrevocably authorizes
and instructs Chase Global Funds Services Company to provide such access to
State Street and to permit State Street to make use of such accounts and records
upon demand. The Company irrevocably acknowledges and agrees that State Street
may appoint agents and subcontractors with respect to servicing such accounts.
The provisions of this paragraph shall continue after the termination of System
and other services provided by to the Company for so long as such access to and
use of such accounts and records may be reasonably required by State Street.
Further, Company shall deliver to State Street a Consent and Authorization
substantially in the form attached hereto as Exhibit B. State Street's agreement
to serve as Custodian hereunder shall not be effective as to the Company until
State Street has received such Consent and Authorization executed by the
Company.
4. Company shall submit to State Street for approval all Plans for which
Company wishes for State Street to serve as Custodian, including any and all
related application forms, adoption agreements, transfer request forms,
disclosure statements, Plan loan-related documents, beneficiary designation
forms and any other Plan-related documents ("Plan Documents"), and any and all
amendments, modifications and supplements thereto which Company may propose to
use from time to time. State Street shall not become the Custodian of any Plan
unless and until it has approved the applicable Plan Documents in writing as
evidenced by its execution of the Confirmation referencing the same, and State
Street shall not be deemed to have accepted and agreed to any subsequent
amendment, modification or supplement to any Plan Document unless and until it
has approved the same in writing. State Street's review and approval of all Plan
Documents and any and all amendments, modifications and supplements thereto is
solely for State Street's benefit, and Company shall bear full responsibility
for the form and content thereof and compliance with all applicable laws, rules
and regulations, as amended from time to time. Company shall be responsible for
acquiring, at Company's sole expense, Internal Revenue Service determination
letters ("IRS Letters") with respect to all Plans for which such determination
letters are required by the Code and shall promptly provide State Street copies
thereof
5. Company shall be solely responsible for all costs and expenses (i) of
preparing, printing and distributing all Plan Documents and amendments,
modifications and supplements thereto, including but not limited to costs and
expenses necessary in order to comply with new or amended laws, rules and
regulations, or (ii) related to or arising from any merger, reorganization,
dissolution, termination or other organizational change involving any Plan or
Company.
6. With respect to all existing and future Plans (if any) in existence with
enrolled participants prior to the Effective Date with respect thereto
(including but not limited to Plans associated with any investment companies
hereafter acquired):
(i) Company, at its sole expense, shall in a timely manner obtain the
removal or resignation of any prior trustee or custodian, modify and amend
Plan Documents as necessary to name State Street as Custodian and give all
notices, obtain all approvals and take such other steps as may be required
in connection therewith under the Plan Documents and applicable laws, rules
and regulations.
(ii) Except as provided in the next paragraph, Company, at its sole
expense, shall cause to be prepared, mailed, distributed and filed all tax
reports, information returns and other documents required by the Code with
respect to Plan accounts ("Returns"), and shall cause to be withheld and
paid all taxes relating to such accounts, with respect to the portion of
the calendar year during which the Effective Date occurs which is prior
thereto.
(iii) Provided that State Street consents to do so in writing, State
Street shall cause to be prepared, mailed, distributed and filed all
Returns for the calendar year in which the Effective Date occurs; provided,
however, that Company shall provide or cause to be provided to State Street
all necessary information with respect to the portion of such year prior to
the Effective Date. State Street shall be entitled to rely on the accuracy
and completeness of such information with no duty to investigate or verify
the same, and Company shall indemnify and hold harmless State Street from
and against any and all losses, liabilities, claims, demands, actions,
suits and expenses (including reasonable attorneys fees and penalties and
other sums assessed by any federal, state or local governmental agency
including the Internal Revenue Service and the United States Department of
Labor ("Government Authority")) arising out of or resulting from any error,
omission, inaccuracy or other deficiency therein. Company, at its sole
expense, shall cause to be withheld and paid all taxes relating to such
accounts with respect to the portion of the calendar year during which the
Effective Date occurs which is prior thereto.
(iv) If and to the extent necessary to permit performance of all
duties and obligations of the Custodian, Company, at its sole expense,
shall transfer or cause to be transferred onto the System to the maximum
extent possible, and shall otherwise deliver or cause to be delivered to
the transfer agent or other agent(s) which will perform shareholder account
recordkeeping and servicing functions with respect to Plan accounts after
the Effective Date, all relevant records previously maintained with respect
to the accounts of participants in such Plans.
(v) State Street shall have no responsibility for, and Company shall,
except to the extent (if any) prohibited by ERISA, indemnify and hold
harmless State Street from and against, any and all losses, liabilities,
claims, demands, actions, suits and expenses (including reasonable
attorneys fees and penalties and other sums assessed by any Government
Authority) arising out of or resulting from (a) any acts, omissions or
errors of any previous trustee or custodian, including but not limited to
its failure to file or mail any Returns, withhold or pay any taxes, or file
any schedules or other required information, (b) any error, omission,
inaccuracy or other deficiency in the Plan participant account records or
other relevant records created and maintained prior to the Effective Date,
or (c) costs and expenses of enforcing Company's obligations and agreements
hereunder.
7. As compensation for its services as Custodian as provided for in this
Agreement, the Company agrees that State Street shall be paid the fees set forth
in Exhibit C attached hereto, as the same may be amended from time to time by
mutual agreement of the parties.
8. Subject to any longer notice periods required by the Plan Documents,
Company may remove State Street, and State Street may resign, as Custodian of
any or all the Plans by providing sixty (60) days written notice to the other
party. In the event of such removal or resignation, Company, at its sole
expense, shall in a timely manner appoint a successor trustee or custodian,
modify and amend Plan Documents as necessary to delete all references to State
Street, and give all notices, obtain all approvals and take such other steps as
may be required in connection therewith under the Plan Documents and applicable
laws, rules and regulations.
9. Except to the extent (if any) prohibited by ERISA, and except to the
extent resulting from the negligence or willful misconduct of State Street,
Company shall indemnify and hold harmless State Street from and against any and
all losses, liabilities, claims, demands, actions, suits and expenses whatsoever
(including reasonable attorneys fees, penalties and other sums assessed by any
Government Authority, and all costs and expenses of enforcing Company's
obligations and agreements hereunder) arising out of, resulting from or in
connection with (i) the Plans and Plan Documents, (ii) the appointment of and
service by State Street as Custodian therefor, (iii) any acts, omissions or
errors of any successor trustee or custodian (including but not limited to its
failure to file or mail any Returns, reports, schedules or other required
documentation, or withhold or pay any taxes) or of any Plan administrator,
co-trustee or other fiduciary, (iv) any instructions given by or on behalf of
the Company, or any policies, procedures or practices adopted or followed by the
Company or the Company's transfer or other shareholder servicing agent(s) (other
than State Street), with respect to shareholder account recordkeeping and
servicing which impacts Plan accounts, or (v) the failure of Company to perform
any of its obligations hereunder.
10. State Street will take reasonable steps to ensure that its products
(and those of its third-party suppliers) reflect the available state of the art
technology to offer products that are Year 2000 ready, including, but not
limited to, century recognition of dates, calculations that correctly compute
same century and multi century formulas and date values, and interface values
that reflect the date issues arising between now and the next one-hundred years,
and if any changes are required, State Street will make the changes to its
products at no cost to Company and in a commercially reasonable time frame and
will require third-party suppliers to do likewise.
Similarly, Company will take reasonable steps to ensure that its electronic
systems reflect the available state of the art technology and are Year 2000
ready, including, but not limited to, century recognition of dates, calculations
that correctly compute same century and multi century formulas and date values,
and interface values that reflect the date issues arising between now and the
next one-hundred years, and if any changes are required, Company will make the
changes to its systems at no cost to State Street and in a commercially
reasonable time frame.
11. This Agreement shall be construed according to, and the rights and
liabilities of the parties hereto shall be governed by, the laws of the State of
Massachusetts, without reference to the conflicts of laws principles thereof.
12. Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party hereto, whether voluntarily, involuntarily or by
operation of law, without the prior written consent of the other, such consent
not to be unreasonably withheld, except to entities controlled by, under common
control with or controlling the assigning party, provided that such assignee has
financial capacity at least equal to that of the assignor. The foregoing
restriction on assignment shall not preclude either party from appointing agents
and delegating responsibilities hereunder
to such agents. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
13. The provisions for indemnification extended hereunder are intended to
and shall continue after and survive the expiration, termination or cancellation
of this Agreement. All rights and remedies of each party hereunder shall be
cumulative of all other rights and remedies which may be available to such
party.
14. No provisions of the Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by each party
hereto.
15. 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.
16. If any provision of this Agreement shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement shall not be affected
thereby, and every provision of this Agreement shall remain in full force and
effect and shall remain enforceable to the fullest extent permitted by
applicable law.
17. Neither the execution nor performance of this Agreement shall be deemed
to create a partnership or joint venture by and between Company and State
Street.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written by their respective duly authorized
officers.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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PERMANENT PORTFOLIO FAMILY OF FUNDS, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: President
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EXHIBIT A
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RETIREMENT PLAN CUSTODIAL SERVICES CONFIRMATION
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THIS CONFIRMS THAT PERMANENT PORTFOLIO FAMILY OF FUNDS, INC. ("Company") has
designated, and hereby designates, STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company with principal offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("State Street"), as custodial trustee without
discretionary trust powers/custodian under the Traditional and Xxxx individual
retirement accounts ("Plans") sponsored by Company, which are created and
governed by the following described Plan document:
The Permanent Portfolio Family of Funds Combined Traditional/Xxxx XXX, effective
January 1, 0000
Xxxxx Xxxxxx has accepted, and hereby accepts, such appointment and certifies
that it is qualified to act as such under the applicable provisions of the
Internal Revenue Code of 1986, as amended.
This agreement is made under and subject to the terms of that certain Retirement
Plan Custodial Services Agreement by and between Company and State Street dated
as of October 21, 1999 (the "Agreement"), which is hereby incorporated herein by
reference.
The Effective Date of this agreement for purposes of the Agreement shall be
October 21, 1999.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by
their respective duly authorized officers.
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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PERMANENT PORTFOLIO FAMILY OF FUNDS, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: President
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EXHIBIT B
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CONSENT AND AUTHORIZATION
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In consideration of State Street Bank and Trust Company ("State Street") serving
as custodian and/or custodial trustee for the Accounts (as hereinafter defined),
the undersigned registered investment company agrees that State Street shall at
all times have full access to and use of all accounts and records relating to
Accounts which are maintained on the Investar IMSP6 computerized mutual fund
shareholder recordkeeping system of Chase Global Funds Services Company ("System
Provider") for purposes of performing its duties and obligations as such
custodian and/or custodial trustee. In addition, State Street, its auditors and
accountants, and to the extent required by law its regulatory authorities, shall
have full access at all times to all such accounts and records for purposes of
audit, examination, and testing and verifying compliance with all applicable
requirements of law, all applicable accounting standards, and the terms of the
retirement plan documents, trust and custody agreements and other applicable
governing documents relating to the Accounts.
System Provider is hereby authorized and instructed to provide such access to
State Street and to permit State Street to make use of such accounts and records
upon demand. The undersigned acknowledges and agrees that System provider may
serve as agent and sub-contractor of State Street with respect to the Accounts.
The provisions of this Consent and Authorization shall continue after the
termination of System and other services provided by System Provider to the
undersigned for so long as such access to and use of such accounts and records
may be reasonably required by State Street.
The term "Accounts" shall mean all individual retirement accounts, simplified
employee pension plan accounts, 403(b)(7) custodial accounts, Xxxxx accounts,
defined contribution retirement plan accounts and other accounts of any type for
which State Street may from time to time be named as custodian or trustee which
contain shares issued by the undersigned investment company.
This Consent and Authorization is irrevocable in every respect, shall be binding
upon the undersigned and its successors and assigns and shall inure to the
benefit of State Street and System Provider and their respective successors and
assigns.
PERMANENT PORTFOLIO FAMILY OF FUNDS, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: President
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EXHIBIT C
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FEE SCHEDULE
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In consideration for State Street's services as custodian of retirement accounts
offered or sponsored by the Company, the Company will pay annually to State
Street the following compensation:
Annual custodian fee: $1.75 per individual retirement account
