EXHIBIT (g)(i)
AMENDED AND RESTATED CUSTODIAN SERVICES AGREEMENT
TERMS AND CONDITIONS
This Agreement is made, as of September 25, 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.
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(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 "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:
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(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 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.
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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;
(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.
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5. Instructions. Unless otherwise provided in this 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 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
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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 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
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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, 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
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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 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
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
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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 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
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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 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
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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 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, whether or not the likelihood of such
losses or damages was known by PFPC Trust or its affiliates.
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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 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:
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(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 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;
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(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 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
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Instructions, authorizing the transaction.
In no case may any member of a Fund's Board
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.
(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
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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
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
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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,
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
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prevailing market practice;
(ii) execute and deliver to such persons as may
be 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,
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
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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
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
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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
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:
-20-
(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 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 also provide a Fund with such
reports on its own system of internal
control as the Fund may reasonably
-21-
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
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.
-22-
(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 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
-23-
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;
(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.
(A) PFPC Trust is authorized to deliver or
cause to be delivered
-24-
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.
(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;
-25-
(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 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
-26-
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.
(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
-27-
Portfolio (or a particular Portfolio with
respect to a particular Account) uses with
respect to the assets maintained hereunder
("FCM Agreement"). 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 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,
-28-
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
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;
-29-
(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
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
-30-
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 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
-31-
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 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
-32-
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 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 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
-33-
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 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
-34-
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,
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
-35-
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 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 determines it will not add to Schedule D
hereto.
18. Delegation. PFPC Trust may, with the prior written consent of a
Fund, which consent
-36-
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 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
-37-
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 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
-38-
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.
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.
-39-
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
-40-
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
-41-
Schwab Annuity Portfolios
Schwab Money Market Portfolio
Schwab S&P 500 Portfolio
-42-
SCHEDULE B
AUTHORIZED PERSONS APPENDIX
Schwab Capital Trust
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
Schwab Investments
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
________________________________
-43-
SCHEDULE B
AUTHORIZED PERSONS APPENDIX
The Xxxxxxx Xxxxxx Family of Funds
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________________________________
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Schwab Annuity Portfolios
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-44-
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-45-
SCHEDULE C
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Xxxx Xxxxxxx
Xxxxxx Xxxxxx
-46-
SCHEDULE D
Sub-Sub-Custodian Jurisdiction
- 47 -
