Exhibit 99.g
FORM OF AGREEMENT
MUTUAL FUND CUSTODY AND
SERVICES AGREEMENT
TABLE OF CONTENTS
-----------------
SECTION GE
------- --
DEFINITIONS....................................................................1
ARTICLE I - CUSTODY PROVISIONS.................................................3
1. APPOINTMENT OF CUSTODIAN...............................................3
2. CUSTODY OF CASH AND SECURITIES.........................................3
3. SETTLEMENT OF FUND TRANSACTIONS........................................7
4. LENDING OF SECURITIES..................................................8
5. PERSONS HAVING ACCESS TO ASSETS OF THE FUND............................8
6. STANDARD OF CARE; SCOPE OF CUSTODIAL RESPONSIBILITIES..................9
7. APPOINTMENT OF SUBCUSTODIANS..........................................10
8. OVERDRAFT FACILITY AND SECURITY FOR PAYMENT...........................10
9. TAX OBLIGATIONS.......................................................11
ARTICLE II - FOREIGN CUSTODY MANAGER SERVICES.................................12
1. DELEGATION............................................................12
2. CHANGES TO APPENDIX C.................................................12
3. REPORTS TO BOARD......................................................12
4. MONITORING SYSTEM.....................................................12
5. STANDARD OF CARE......................................................12
6. USE OF SECURITIES DEPOSITORIES........................................12
ARTICLE III - INFORMATION SERVICES............................................12
1. RISK ANALYSIS.........................................................12
2. MONITORING OF SECURITIES DEPOSITORIES.................................13
3. USE OF AGENTS.........................................................13
4. EXERCISE OF REASONABLE CARE...........................................13
5. LIABILITIES AND WARRANTIES............................................13
ARTICLE IV - GENERAL PROVISIONS...............................................13
1. COMPENSATION..........................................................13
2. INSOLVENCY OF FOREIGN CUSTODIANS......................................14
3. LIABILITY FOR DEPOSITORIES............................................14
4. DAMAGES...............................................................14
5. INDEMNIFICATION; LIABILITY OF THE FUND................................14
6. FORCE MAJEURE.........................................................14
7. TERMINATION...........................................................14
8. INSPECTION OF BOOKS AND RECORDS.......................................15
9. MISCELLANEOUS.........................................................15
APPENDIX A. AUTHORIZED PERSONS...............................................19
APPENDIX B. TRUST OFFICERS...................................................20
APPENDIX C. SELECTED COUNTRIES................................................1
APPENDIX D. LIST OF FUNDS ....................................................5
EXHIBIT A. CUSTOMER IDENTIFICATION PROGRAM NOTICE.............................3
i
MUTUAL FUND CUSTODY AND
SERVICES AGREEMENT
This AGREEMENT, effective as of the 1ST day of October, 2004, and is
between PRIMECAP ODYSSEY FUNDS, (the "Trust") a statutory trust organized under
the laws of Delaware having its principal office and place of business at
______________________, and MELLON BANK, N.A., (the "Custodian") a national
banking association with its principal place of business at Xxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Trust is authorized to issue shares in separate series with
each such series representing interests in a separate portfolio of securities
and other assets, and the Trust has made the Funds listed on Appendix F subject
to this Agreement (each such series, together with all other series subsequently
established by the Trust and made subject to the Agreement in accordance with
the terms hereof, shall be referred to as a "Fund" and collectively as the
"Funds");
WHEREAS, the Trust and the Custodian desire to set forth their agreement
with respect to the custody of the Funds' Securities and cash and the processing
of Securities transactions;
WHEREAS, the Board desires to delegate certain of its responsibilities
for performing the services set forth in paragraphs (c)(1), (c)(2) and (c)(3) of
Rule 17f-5 to the Custodian as a Foreign Custody Manager;
WHEREAS, the Custodian agrees to accept such delegation with respect to
Assets, including those held by Foreign Custodians in the Selected Countries as
set forth in jurisdictions listed on Appendix C as set forth in Article II; and
WHEREAS, the Custodian agrees to perform the function of a Primary
Custodian under Rule 17f-7;
NOW THEREFORE, the Trust and the Custodian agree as follows:
DEFINITIONS
The following words and phrases, unless the context requires otherwise,
shall have the following meanings:
1. "Act": the Investment Company Act of 1940 and the Rules and Regulations
thereunder, all as amended from time to time.
2. "Agreement": this agreement and any amendments.
3. "Assets": any of the Funds' investments, including foreign currencies and
investments for which the primary market is outside the United States, and such
cash and cash equivalents as are reasonably necessary to effect the Funds'
transactions in such investments.
4. "Authorized Person": the Chairman of the Trust's Board, its President, and
any Vice President, Secretary, Treasurer or any other person, whether or not any
such person is an officer or employee of the Trust, duly authorized by the Board
to add or delete jurisdictions pursuant to Article II and to give Instructions
on behalf of a Fund which is listed in the Certificate annexed hereto as
Appendix A or such other Certificate as may be received by the Custodian from
time to time.
5. "Board": the Board of Managers (or the body authorized to exercise authority
similar to that of the board of directors of a corporation) of the Trust.
6. "Book-Entry System": the Federal Reserve/Treasury book-entry system for
United States and federal agency Securities, its successor or successors and its
nominee or nominees.
7. "Business Day": any day on which the Fund, the Custodian, the Book-Entry
System and appropriate clearing corporation(s) are open for business.
8. "Certificate": any notice, instruction or other instrument in writing,
authorized or required by this Agreement to be given to the Custodian, which is
actually received by the Custodian and signed on behalf of a Fund by an
Authorized Person or Persons designated by the Board to issue a Certificate.
9. "Eligible Securities Depository": the meaning of the term set forth in Rule
17f-7(b)(1).
10. "Foreign Custodian": (a) a banking institution or trust company incorporated
or organized under the laws of a country other than the United States, that is
regulated as such by the country's government or an agency of the country's
government; (b) a majority-owned direct or indirect subsidiary of a U.S. Bank or
bank-holding company; or (c) any entity other than a Securities Depository with
respect to which exemptive or no-action relief has been granted by the
Securities and Exchange Commission. For the avoidance of doubt, the term
"Foreign Custodian" shall not include Euroclear, Clearstream, Bank One or any
other transnational system for the central handling of securities or equivalent
book-entries regardless of whether or not such entities or their service
providers are acting in a custodial capacity with respect to Assets, Securities
or other property of the Fund.
11. "Instructions": (i) all directions to the Custodian from an Authorized
Person pursuant to the terms of this Agreement; (ii) all directions by or on
behalf of the Trust to
2
the Custodian (or any of its affiliates) with respect to contracts for foreign
exchange; (iii) all directions by or on behalf of the Trust pursuant to an
agreement with Custodian (or any of its affiliates) with respect to benefit
disbursement services or information or transactional services provided via a
web site sponsored by the Custodian (or any of its affiliates) (e.g., the
"Workbench web site") and (iv) all directions by or on behalf of the Trust
pursuant to any other agreement or procedure between the Custodian (or any of
its affiliates) and the Trust, if such agreement or procedure specifically
provides that authorized persons thereunder are deemed to be authorized to give
instructions under this Agreement. Instructions shall be in writing, by
facsimile transmission, electronic transmission subject to the Custodian's
practices, or any other method specifically agreed to in writing by the Trust
and Custodian, provided that the Custodian may, in its discretion, accept oral
directions and instructions and may require confirmation in writing.
12. "Primary Custodian": the meaning set forth in Rule 17f-7(b)(2).
13. "Prospectus": a Fund's current prospectus and statement of additional
information relating to the registration of the Shares under the Securities Act
of 1933, as amended.
14. "Risk Analysis": the analysis required under Rule 17f-7(a)(1)(i)(A).
15. "Rules 17f-4, 17f-5 and 17f-7": such Rules as promulgated under Section
17(f) of the Act, as such rules (and any successor rules or regulations) may be
amended from time to time.
16. "Security" or "Securities": bonds, debentures, notes, stocks, shares,
evidences of indebtedness, and other securities, commodities, interests and
investments from time to time owned by the Fund.
17. "Securities Depository": a system for the central handling of securities as
defined in Rule 17f-4.
18. "Selected Countries": the jurisdictions listed on Appendix C as such may be
amended from time to time in accordance with Article II.
19. "Shares": shares of each Fund, however designated.
ARTICLE I. - CUSTODY PROVISIONS
1. Appointment of Custodian. The Board appoints, and the Custodian accepts
appointment as custodian of all the Securities and monies at the time owned by
or in the possession of the Fund during the period of this Agreement.
2. Custody of Cash and Securities.
3
a. Receipt and Holding of Assets. The Fund will deliver or cause to be
delivered to the Custodian all Securities and monies owned by it at any time
during the period of this Custody Agreement. The Custodian will not be
responsible for such Securities and monies until actually received. The Board
specifically authorizes the Custodian to hold Securities, Assets or other
property of the Fund with any domestic subcustodian, or Securities Depository,
and Foreign Custodians or Eligible Securities Depositories in the Selected
Countries as provided in Article II. Securities and monies of the Fund deposited
in a Securities Depository or Eligible Securities Depositories will be reflected
in an account or accounts which include only assets held by the Custodian or a
Foreign Custodian for its customers.
b. Disbursements of Cash and Delivery of Securities. The Custodian shall
disburse cash or deliver out Securities only for the purposes listed below.
Instructions must specify or evidence the purpose for which any transaction is
to be made and the Fund shall be solely responsible to assure that Instructions
are in accord with any limitations or restrictions applicable to the Fund
(1) In payment for Securities purchased for the applicable Fund;
(2) In payment of dividends or distributions with respect to
Shares;
(3) In payment for Shares which have been redeemed by the
applicable Fund;
(4) In payment of taxes;
(5) When Securities are sold, called, redeemed, retired, or
otherwise become payable;
(6) In exchange for or upon conversion into other securities
alone or other securities and cash pursuant to any plan or merger,
consolidation, reorganization, recapitalization or readjustment;
(7) Upon conversion of Securities pursuant to their terms into
other securities;
(8) Upon exercise of subscription, purchase or other similar
rights represented by Securities;
(9) For the payment of interest, management or supervisory fees,
distributions or operating expenses;
(10) In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the applicable Fund;
(11) In connection with any borrowings by the applicable Fund or
short sales of securities requiring a pledge of Securities, but only against
receipt of amounts
4
borrowed;
(12) In connection with any loans, but only against receipt of
adequate collateral as specified in Instructions which shall reflect any
restrictions applicable to the Fund.
(13) For the purpose of redeeming Shares of the capital stock of
the applicable Fund and the delivery to, or the crediting to the account of, the
Custodian or the applicable Fund's transfer agent, such Shares to be purchased
or redeemed;
(14) For the purpose of redeeming in kind Shares of the
applicable Fund against delivery to the Custodian, its Subcustodian or the
Customer Fund's transfer agent of such Shares to be so redeemed;
(15) For delivery in accordance with the provisions of any
agreement among the Trust, the Custodian and a broker-dealer registered under
the Securities Exchange Act of 1934 (the "Exchange Act") and a member of The
National Association of Securities Dealers, Inc. ("NASD"), relating to
compliance with the rules of The Options Clearing Corporation and of any
registered national securities exchange, or of any similar organization or
organizations, regarding escrow or other arrangements in connection with
transactions by the Trust. The Custodian will act only in accordance with
Instructions in the delivery of Securities to be held in escrow and will have no
responsibility or liability for any such Securities which are not returned
promptly when due other than to make proper requests for such return;
(16) For spot or forward foreign exchange transactions to
facilitate security trading, receipt of income from Securities or related
transactions;
(17) Upon the termination of this Agreement; and
(18) For other proper purposes as may be specified in
Instructions issued by an officer of the Trust which shall include a statement
of the purpose for which the delivery or payment is to be made, the amount of
the payment or specific Securities to be delivered, the name of the person or
persons to whom delivery or payment is to be made, and a Certificate stating
that the purpose is a proper purpose under the instruments governing the Trust.
c. Actions Which May be Taken Without Instructions. Unless an
Instruction to the contrary is received, the Custodian shall:
(1) Collect all income due or payable, provided that the
Custodian shall not be responsible for the failure to receive payment of (or
late payment of) distributions or other payments with respect to Securities or
other property held in the account;
(2) Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, retired or otherwise become
payable. Notwithstanding the foregoing, the Custodian shall have no
responsibility to the Fund for
5
monitoring or ascertaining any call, redemption or retirement dates with respect
to put bonds or similar instruments which are owned by the Fund and held by the
Custodian or its nominees where such dates are not published in sources
routinely used by the Custodian. Nor shall the Custodian have any responsibility
or liability to the Fund for any loss by the Fund for any missed payments or
other defaults resulting therefrom, unless the Custodian received timely
notification from the Fund specifying the time, place and manner for the
presentment of any such put bond owned by the Fund and held by the Custodian or
its nominee. The Custodian shall not be responsible and assumes no liability for
the accuracy or completeness of any notification the Custodian may furnish to
the Fund with respect to put bonds or similar instruments;
(3) Surrender Securities in temporary form for definitive
Securities;
(4) Hold directly, or through a Securities Depository with
respect to Securities therein deposited, for the account of the applicable Fund
all rights and similar Securities issued with respect to any Securities held by
the Custodian hereunder for that Fund;
(5) Submit or cause to be submitted to the applicable Fund or its
investment advisor as designated by the Trust information actually received by
the Custodian regarding ownership rights pertaining to property held for the
applicable Fund;
(6) Deliver or cause to be delivered any Securities held for the
applicable Fund in exchange for other Securities or cash issued or paid in
connection with the liquidation, reorganization, refinancing, merger,
consolidation or recapitalization of any corporation, or the exercise of any
conversion privilege;
(7) Deliver or cause to be delivered any Securities held for the
applicable Fund to any protective committee, reorganization committee or other
person in connection with the reorganization, refinancing, merger, consolidation
or 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;
(8) Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the applicable Fund and take such other steps
as shall be stated in Instructions to be for the purpose of effectuating any
duly authorized plan of liquidation, reorganization, merger, consolidation or
recapitalization of the applicable Fund;
(9) Deliver Securities upon the receipt of payment in connection
with any repurchase agreement related to such Securities entered into by the
Fund;
(10) Deliver Securities owned by the applicable Fund to the
issuer thereof or its agent when such Securities are called, redeemed, retired
or otherwise become payable; provided, however, that in any such case the cash
or other consideration is to be delivered to the Custodian. Notwithstanding the
foregoing, the Custodian shall have no
6
responsibility to the Fund for monitoring or ascertaining any call, redemption
or retirement dates with respect to the put bonds or similar instruments which
are owned by the Fund and held by the Custodian or its nominee where such dates
are not published in sources routinely used by the Custodian. Nor shall the
Custodian have any responsibility or liability to the Fund for any loss by the
Fund for any missed payment or other default resulting therefrom unless the
Custodian received timely notification from the Fund specifying the time, place
and manner for the presentment of any such put bond owned by the Fund and held
by the Custodian or its nominee. The Custodian shall not be responsible and
assumes no liability to the Fund for the accuracy or completeness of any
notification the Custodian may furnish to the applicable Fund applicable Fund
with respect to put bonds or similar investments;
(11) Endorse and collect all checks, drafts or other orders for
the payment of money received by the Custodian for the account of the applicable
Fund; and
(12) Execute any and all documents, agreements or other
instruments as may be necessary or desirable for the accomplishment of the
purposes of this Agreement.
d. Confirmation and Statements. Promptly after the close of business on
each day, the Custodian shall furnish each Fund with confirmations and a summary
of all transfers to or from the account of the Fund during the day. Where
securities purchased by a Fund are in a fungible bulk of securities registered
in the name of the Custodian (or its nominee) or shown on the Custodian's
account on the books of a Securities Depository, the Custodian shall by
book-entry or otherwise identify the quantity of those securities belonging to
that Fund. At least monthly, the Custodian shall furnish each Fund with a
detailed statement of the Securities and monies held for the Fund under this
Custody Agreement.
e. Registration of Securities. The Custodian is authorized to hold all
Securities, Assets, or other property of each Fund in nominee name, in bearer
form or in book-entry form. The Custodian may register any Securities, Assets or
other property of each Fund in the name of the Trust or the Fund, in the name of
the Custodian, any domestic subcustodian, or Foreign Custodian, in the name of
any duly appointed registered nominee of such entity, or in the name of a
Securities Depository or its successor or successors, or its nominee or
nominees. The Trust agrees to furnish to the Custodian appropriate instruments
to enable the Custodian to hold or deliver in proper form for transfer, or to
register in the name of its registered nominee or in the name of a Securities
Depository, any Securities which it may hold for the account of the applicable
Fund and which may from time to time be registered in the name of the Trust or
the applicable Fund.
f. Segregated Accounts. Upon receipt of Instructions, the Custodian
will, from time to time establish segregated accounts on behalf of the
applicable Fund to hold and deal with specified assets as shall be directed.
3. Settlement of Fund Transactions.
7
a. Customary Practices. Settlement of transactions may be effected in
accordance with trading and processing practices customary in the jurisdiction
or market where the transaction occurs. The Trust acknowledges that this may, in
certain circumstances, require the delivery of cash or Securities (or other
property) without the concurrent receipt of Securities (or other property) or
cash. In such circumstances, the Custodian shall have no responsibility for
nonreceipt of payments (or late payment) or nondelivery of Securities or other
property (or late delivery) by the counterparty.
b. Contractual Income. Unless the parties agree to the contrary, the
Custodian shall credit the applicable Fund, in accordance with the Custodian's
standard operating procedure, with income and maturity proceeds on securities on
contractual payment date net of any taxes or upon actual receipt. To the extent
the Custodian credits income on contractual payment date, the Custodian may
reverse such accounting entries to the contractual payment date if the Custodian
reasonably believes that such amount will not be received.
c. Contractual Settlement. Unless the parties agree to the contrary, the
Custodian will attend to the settlement of securities transactions in accordance
with the Custodian's standard operating procedure, on the basis of either
contractual settlement date accounting or actual settlement date accounting. To
the extent the Custodian settles certain securities transactions on the basis of
contractual settlement date accounting, the Custodian may reverse to the
contractual settlement date any entry relating to such contractual settlement if
the Custodian reasonably believes that such amount will not be received.
4. Lending of Securities. The Custodian may lend the assets of the Fund in
accordance with the terms and conditions of a separate securities lending
agreement, approved by the Trust.
5. Persons Having Access to Assets of the Fund.
a. No trustee or agent of the Trust, and no officer, director, employee
or agent of the Trust's investment adviser, of any sub-investment adviser of the
Trust, or of the Trust's administrator, shall have physical access to the assets
of the Fund held by the Custodian or be authorized or permitted to withdraw any
investments of the Fund, nor shall the Custodian deliver any assets of the Fund
to any such person. No officer, director, employee or agent of the Custodian who
holds any similar position with the Trust's investment adviser, with any
sub-investment adviser of the Trust or with the Trust's administrator shall have
access to the assets of the Fund.
b. Nothing in this Section 5 shall prohibit any duly authorized officer,
employee or agent of the Trust, or any duly authorized officer, director,
employee or agent of the investment adviser, of any sub-investment adviser of
the Fund or of the Fund's administrator, from giving Instructions to the
Custodian or executing a Certificate so long as it does not result in delivery
of or access to assets of the Fund prohibited by paragraph (a) of this Section
5.
8
6. Standard of Care; Scope of Custodial Responsibilities.
a. Standard of Care. Custodian shall be required to exercise reasonable
care with respect to its duties under this Agreement unless otherwise provided.
(1) Notwithstanding any other provision of this Custody
Agreement, the Custodian shall not be liable for any loss or damage, including
counsel fees, resulting from its action or omission to act or otherwise, except
for any such loss or damage arising out of the negligence or willful misconduct
of the Custodian.
(2) The Custodian may, with respect to questions of law, apply
for and obtain the advice and opinion of counsel to the Trust or of its own
counsel, at the expense of the Trust, and shall be fully protected with respect
to anything done or omitted by it in good faith in conformity with such advice
or opinion.
b. Scope of Duties. Without limiting the generality of the foregoing,
the Custodian shall be under no duty or obligation to inquire into, and shall
not be liable for:
(1) The acts or omissions of any agent appointed pursuant to
Instructions of the Trust or its investment advisor including, but not limited
to, any broker-dealer or other entity to hold any Securities or other property
of the Trust as collateral or otherwise pursuant to any investment strategy.
(2) The validity of the issue of any Securities purchased by the
Fund, the legality of the purchase thereof, or the propriety of the amount paid
therefor;
(3) The legality of the sale of any Securities by the Fund or the
propriety of the amount for which the same are sold;
(4) The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
(5) The legality of the redemption of any Shares, or the
propriety of the amount to be paid therefore
(6) The legality of the declaration or payment of any
distribution of the Fund;
(7) The legality of any borrowing for temporary administrative or
emergency purposes.
c. No Liability Until Receipt. The Custodian shall not be liable for, or
considered to be the Custodian of, any money, whether or not represented by any
check, draft, or other instrument for the payment of money, received by it on
behalf of the Fund until the Custodian actually receives and collects such
money.
d. Amounts Due from Transfer Agent. The Custodian shall not be required
9
to effect collection of any amount due to the Fund from the Fund's transfer
agent nor be required to cause payment or distribution by such transfer agent of
any amount paid by the Custodian to the transfer agent.
e. Collection Where Payment Refused. The Custodian shall not be required
to take action to effect collection of any amount, if the Securities upon which
such amount is payable are in default, or if payment is refused after due demand
or presentation, unless and until it shall be directed to take such action and
it shall be assured to its satisfaction of reimbursement of its related costs
and expenses.
f. No Duty to Ascertain Authority. The Custodian shall not be under any
duty or obligation to ascertain whether any Securities at any time delivered to
or held by it for the Fund are such as may properly be held by the Fund under
the provisions of its governing instruments or Prospectus.
g. Reliance on Instructions. The Custodian shall be entitled to rely
upon any Instruction, notice or other instrument in writing received by the
Custodian and reasonably believed by the Custodian to be genuine and to be
signed by an officer or Authorized Person of the Fund. Where the Custodian is
issued Instructions orally, the Fund acknowledge that if written confirmation is
requested, the validity of the transactions or enforceability of the
transactions authorized by the Fund shall not be affected if such confirmation
is not received or is contrary to oral Instructions given. The Custodian shall
be fully protected in acting in accordance with all such Instructions. The
Custodian shall be under no duty to question any direction of an Authorized
Person with respect to the portion of the account over which such Authorized
Person has authority, to review any property held in the account, to make any
suggestions with respect to the investment and reinvestment of the assets in the
account, or to evaluate or question the performance of any Authorized Person.
The Custodian shall not be responsible or liable for any diminution of value of
any securities or other property held by the Custodian or its subcustodians
pursuant to Instructions.
7. Appointment of Subcustodians. The Custodian is hereby authorized to appoint
one or more domestic subcustodians (which may be an affiliate of the Custodian)
to hold Securities and monies at any time owned by the Fund. The Custodian is
also hereby authorized when acting pursuant to Instructions to: 1) place assets
with any Foreign Custodian located in a jurisdiction which is not a Selected
Country and with Euroclear, Clearstream, Banc One or any other transnational
depository; and 2) place assets with a broker or other agent as subcustodian in
connection with futures, options, short selling or other transactions. When
acting pursuant to such Instructions, the Custodian shall not be liable for the
acts or omissions of any subcustodian so appointed.
8. Overdraft Facility and Security for Payment. In the event that the Custodian
receives Instructions to make payments or transfers of monies on behalf of the
Fund for which there would be, at the close of business on the date of such
payment or transfer, insufficient monies held by the Custodian on behalf of the
Fund, the Custodian may, in its sole discretion, provide an overdraft (an
"Overdraft") to the Fund in an amount sufficient
10
to allow the completion of such payment or transfer. Any Overdraft provided
hereunder: (a) shall be payable on the next Business Day, unless otherwise
agreed by the Fund and the Custodian; and (b) shall accrue interest from the
date of the Overdraft to the date of payment in full by the Fund at a rate
agreed upon from time to time, by the Custodian and the Fund or, in the absence
of specific agreement, by such rate as charged to other customers of Custodian
under procedures uniformly applied. The Custodian and the Fund acknowledge that
the purpose of such Overdraft is to temporarily finance the purchase of
Securities for prompt delivery in accordance with the terms hereof, to meet
unanticipated or unusual redemptions, to allow the settlement of foreign
exchange contracts or to meet other unanticipated Fund expenses. The Custodian
shall promptly notify the Fund (an "Overdraft Notice") of any Overdraft. To
secure payment of any Overdraft, the Fund hereby grant to the Custodian a
continuing security interest in and right of setoff against the Securities and
cash in the Fund's account from time to time in the full amount of such
Overdraft. Should the Fund fail to pay promptly any amounts owed hereunder, the
Custodian shall be entitled to use available cash in the Fund's account and to
liquidate Securities in the account as necessary to meet the Fund's obligations
under the Overdraft. In any such case, and without limiting the foregoing, the
Custodian shall be entitled to take such other actions(s) or exercise such other
options, powers and rights as the Custodian now or hereafter has as a secured
creditor under the Pennsylvania Uniform Commercial Code or any other applicable
law.
9. Tax Obligations. For purposes of this Agreement, "Tax Obligations" shall mean
taxes, withholding, certification and reporting requirements, claims for
exemptions or refund, interest, penalties, additions to tax and other related
expenses. To the extent that the Custodian has received relevant and necessary
information with respect to the account, the Custodian shall perform the
following services with respect to Tax Obligations:
a. The Custodian shall file claims for exemptions or refunds with
respect to withheld foreign (non-U.S.) taxes in instances in which such claims
are appropriate;
b. The Custodian shall withhold appropriate amounts, as required by U.S.
tax laws, with respect to amounts received on behalf of nonresident aliens; and
c. The Custodian shall provide to the Trust or the Authorized Person
such information received by the Custodian which could, in the Custodian's
reasonable belief, assist the Trust or the Authorized Person in the submission
of any reports or returns with respect to Tax Obligations. The Trust shall
inform the Custodian in writing as to which party or parties shall receive
information from the Custodian.
The Custodian shall provide such other services with respect to Tax
Obligations, including preparation and filing of tax returns and reports and
payment of amounts due (to the extent funded), as requested by the Trust and
agreed to by the Custodian in writing. The Custodian shall have no independent
obligation to determine the existence of any information with respect to, or the
extent of, any Tax Obligations now or hereafter imposed on the Trust or the
account by any taxing authority. Except as specifically
11
provided herein or agreed to in writing by the Custodian, the Custodian shall
have no obligations or liability with respect to Tax Obligations, including,
without limitation, any obligation to file or submit returns or reports with any
taxing authorities.
In making payments to service providers pursuant to Instructions, the
Trust acknowledges that the Custodian is acting as a paying agent and not as the
payor, for tax information reporting and withholding purposes.
ARTICLE II. - FOREIGN CUSTODY MANAGER SERVICES
1. Delegation. The Board delegates to, and the Custodian hereby agrees to accept
responsibility as the Trust's Foreign Custody Manager for selecting, contracting
with and monitoring Foreign Custodians in Selected Countries set forth in
Appendix C in accordance with Rule 17f-5(c).
2. Changes to Appendix C. Appendix C may be amended by written agreement from
time to time to add or delete jurisdictions by written agreement signed by an
Authorized Person of the Trust and the Custodian, but the Custodian reserves the
right to delete jurisdictions upon reasonable notice to the Fund.
3. Reports to Board. Custodian shall provide written reports notifying the Board
of the placement of Assets with a particular Foreign Custodian and of any
material change in a Fund's foreign custody arrangements. Such reports shall be
provided to the Board quarterly, except as otherwise agreed by the Custodian and
the Trust.
4. Monitoring System. In each case in which the Custodian has exercised
delegated authority to place Assets with a Foreign Custodian, the Custodian
shall establish a system, to re-assess or re-evaluate selected Foreign
Custodians, at least annually in accordance with Rule 17f-5(c)(3).
5. Standard of Care. In exercising the delegated authority under this Article II
of the Agreement, the Custodian agrees to exercise reasonable care, prudence and
diligence such as a person having responsibility for the safekeeping of the
Assets would exercise in like circumstances. Contracts with Foreign Custodians
shall provide for reasonable care for Assets based on the standards applicable
to Foreign Custodians in the Selected Country. In making this determination, the
Custodian shall consider the provisions of Rule 17f-5(c)(2).
6. Use of Securities Depositories. In exercising its delegated authority, the
Custodian may assume that the Fund and its investment adviser have determined,
pursuant to Rule 17f-7, that the depository provides reasonable safeguards
against custody risks, if a Fund decides to place and maintain foreign assets
with any Securities Depository as to which the Custodian has provided the Trust
on behalf of such Fund with a Risk Analysis.
ARTICLE III. - INFORMATION SERVICES
12
1. Risk Analysis. The Custodian will provide the Trust on behalf of the Fund
with a Risk Analysis with respect to Securities Depositories operating in the
countries listed in Appendix C. If the Custodian is unable to provide a Risk
Analysis with respect to a particular Securities Depository, it will notify the
Trust on behalf of the Fund. If a new Securities Depository commences operation
in one of the Appendix C countries, the Custodian will provide the Trust on
behalf of the Fund with a Risk Analysis in a reasonably practicable time after
such Securities Depository becomes operational. If a new country is added to
Appendix C, the Custodian will provide the Trust on behalf of the Fund with a
Risk Analysis with respect to each Securities Depository in that country within
a reasonably practicable time after the addition of the country to Appendix C.
2. Monitoring of Securities Depositories. The Custodian will monitor the custody
risks associated with maintaining assets with each Securities Depository for
which it has provided the Trust on behalf of the Fund with a Risk Analysis as
required under Rule 17f-7. The Custodian will promptly notify the Trust on
behalf of the Fund or its investment adviser of any material change in these
risks.
3. Use of Agents. The Custodian may employ agents, including, but not limited to
Foreign Custodians, to perform its responsibilities under Sections 1 and 2
above.
4. Exercise of Reasonable Care The Custodian will exercise reasonable care,
prudence, and diligence in performing its responsibilities under this Article
III. With respect to the Risk Analyses provided or monitoring performed by an
agent, the Custodian will exercise reasonable care in the selection of such
agent, and shall be entitled to rely upon information provided by agents so
selected in the performance of its duties and responsibilities under this
Article III.
5. Liabilities and Warranties. While the Custodian will take reasonable
precautions to ensure that information provided is accurate, the Custodian shall
have no liability with respect to information provided to it by third parties.
Due to the nature and source of information, and the necessity of relying on
various information sources, most of which are external to the Custodian, the
Custodian shall have no liability for direct or indirect use of such
information.
ARTICLE IV. - GENERAL PROVISIONS
1. Compensation.
a. The Trust will compensate the Custodian for its services rendered
under this Agreement in accordance with the fees set forth in a separate Fee
Schedule which schedule may be modified by the Custodian upon not less than
sixty days prior written notice to the Trust.
b. The Custodian will xxxx the Trust as soon as practicable after the
end of each calendar month. The Trust will promptly pay to the Custodian the
amount of such billing.
13
c. If not paid directly or timely by the Trust, the Custodian may charge
against assets held on behalf of the Fund compensation and any expenses incurred
by the Custodian in the performance of its duties pursuant to this Agreement.
The Custodian shall also be entitled to charge against assets of the Fund the
amount of any loss, damage, liability or expense incurred with respect to the
Fund, including counsel fees, for which it shall be entitled to reimbursement
under the provisions of this Agreement. The expenses which the Custodian may
charge include, but are not limited to, the expenses of domestic subcustodians
and Foreign Custodians incurred in settling transactions.
2. Insolvency of Foreign Custodians. The Custodian shall be responsible for
losses or damages suffered by the Fund arising as a result of the insolvency of
a Foreign Custodian only to the extent that the Custodian failed to comply with
the standard of care set forth in Article II with respect to the selection and
monitoring of such Foreign Custodian.
3. Liability for Depositories. The Custodian shall not be responsible for any
losses resulting from the deposit or maintenance of Securities, Assets or other
property of the Fund with a Securities Depository.
4. Damages. Under no circumstances shall the Custodian be liable for any
indirect, consequential or special damages with respect to its role as Foreign
Custody Manager, Custodian or information vendor.
5. Indemnification; Liability of the Fund.
a. The Trust shall indemnify and hold the Custodian harmless from all
liability and expense, including reasonable counsel fees and expenses, arising
out of the performance of the Custodian's obligations under this Agreement
except as a result of the Custodian's negligence or willful misconduct.
b. The Fund and the Custodian agree that the obligations of the Trust
under this Agreement shall not be binding upon any of the trustees,
shareholders, nominees, officers, employees or agents, whether past, present or
future, of the Fund, individually, but are binding only upon the assets and
property of the Trust.
6. Force Majeure. Notwithstanding anything in this Agreement to the contrary
contained herein, the Custodian shall not be responsible or liable for its
failure to perform under this Agreement or for any losses to the account
resulting from any event beyond the reasonable control of the Custodian, its
agents or subcustodians. This provision shall survive the termination of this
Agreement
7. Termination.
a. Either party may terminate this Agreement by giving the other party
sixty (60) days notice in writing, specifying the date of such termination. In
the event notice is given by the Trust, it shall be accompanied by a Certificate
evidencing the vote of the Trust's Board to terminate this Agreement and
designating a successor.
14
b. In the event notice of termination is given by the Custodian, the
Trust shall, on or before the termination date, deliver to the Custodian a
Certificate evidencing the vote of the Board designating a successor custodian.
In the absence of such designation, the Custodian may designate a successor
custodian, which shall be a person qualified to so act under the Act or the
Fund. If the Trust fails to designate a successor custodian, the Trust shall,
upon the date specified in the notice of termination, and upon the delivery by
the Custodian of all Securities and monies then owned by the Fund, be deemed to
be its own custodian and the Custodian shall thereby be relieved of all duties
and or the Fund responsibilities under this Agreement other than the duty with
respect to Securities held in the Book-Entry System which cannot be delivered to
the Fund.
c. Upon termination of the Agreement, the Custodian shall, upon receipt
of a notice of acceptance by the successor custodian, deliver to the successor
all Securities and monies then held by the Custodian on behalf of the Fund,
after deducting all fees, expenses and other amounts owed.
d. In the event of a dispute following the termination of this
Agreement, all relevant provisions shall be deemed to continue to apply to the
obligations and liabilities of the parties.
8. Inspection of Books and Records. The books and records of the Custodian shall
be open to inspection and audit at reasonable times by officers and auditors
employed by the Trust at its own expense and with prior written notice to the
Custodian, and by the appropriate employees of the Securities and Exchange
Commission.
9. Miscellaneous.
a. Appendix A is a Certificate signed by the Secretary of the Trust
setting forth the names and the signatures of Authorized Persons. The Trust
shall furnish a new Certificate when the list of Authorized Persons is changed
in any way. Until a new certification is received, the Custodian shall be fully
protected in acting upon Instructions from Authorized Persons as set forth in
the last delivered Certificate.
b. Appendix B is a Certificate signed by the Secretary of the Trust
setting forth the names and the signatures of the present officers of the Trust.
The Trust agrees to furnish to the Custodian a new Certificate when any changes
are made. Until a new Certificate is received, the Custodian shall be fully
protected in relying upon the last delivered Certificate.
c. Any required written notice or other instrument shall be sufficiently
given if addressed to the Custodian or the Trust as the case may be and
delivered to it at its offices at:
The Custodian:
Mellon Bank, N.A.
15
000 Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
The Trust:
Primecap Odyssey Funds
___________________________________
___________________________________
Attn. _____________________________
or at such other place as the parties may from time to time designate to
the other in writing.
d. This Agreement may not be amended or modified except by a written
agreement executed by both parties.
e. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Trust without the written consent
of the Custodian, or by the Custodian without the written consent of the Trust
authorized or approved by a vote of the Board, provided, however, that the
Custodian may assign the Agreement or any function thereof to any corporation or
entity which directly or indirectly is controlled by, or is under common control
with, the Custodian and any other attempted assignment without written consent
shall be null and void.
f. Nothing in this Agreement shall give or be construed to give or
confer upon any third party any rights hereunder.
g. The Custodian represents that it is a U.S. Bank within the meaning of
paragraph (a)(7) of Rule 17f-5.
h. The Trust acknowledges and agrees that, except as expressly set forth
in this Agreement, the Trust is solely responsible to assure that the
maintenance of the Fund's Securities and cash hereunder complies with applicable
laws and regulations, including without limitation the Act and the rules and
regulations promulgated thereunder and applicable interpretations thereof or
exemptions therefrom. The Trust represents that it has determined that it is
reasonable to rely on Custodian to perform the responsibilities delegated
pursuant to this Agreement.
i. This Agreement shall be construed in accordance with the laws of The
Commonwealth of Pennsylvania.
j. The captions of the 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.
16
k. Each party represents to the other that it has all necessary power
and authority, and has obtained any consent or approval necessary to permit it,
to enter into and perform this Agreement and that this Agreement does not
violate, give rise to a default or right of termination under or otherwise
conflict with any applicable law, regulation, ruling, decree or other
governmental authorization or any contract to which it is a party or by which
any of its assets is bound. The parties have received and read the "Customer
Identification Program Notice", a copy of which is attached to this Agreement as
Exhibit A.
l. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but such counterparts shall, together,
constitute only one instrument.
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives duly authorized as of the day and
year first above written.
PRIMECAP ODYSSEY FUNDS
By:
----------------------------
Name:
Title:
MELLON BANK, N.A.
By:
----------------------------
Name:
Title:
18
APPENDIX A
----------
LIST OF AUTHORIZED PERSONS
--------------------------
I, _______________________________, the Secretary of PRIMECAP ODYSSEY
FUNDS, a statutory trust organized under the laws of the State of Delaware (the
"Trust"), do hereby certify that:
The following individuals have been duly authorized as Authorized
Persons to give Instructions on behalf of the Trust and each Fund thereof and
the specimen signatures set forth opposite their respective names are their true
and correct signatures:
Name Signature
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
-----------------------------
By:
-----------------------------
Secretary
Dated:
00
XXXXXXXX X
----------
TRUST OFFICERS
--------------
I, ____________________________, the Secretary of PRIMECAP ODYSSEY
FUNDS, a statutory trust organized under the laws of the State of Delaware (the
"Trust"), do hereby certify that:
The following individuals serve in the following positions with the Fund
and each individual has been duly elected or appointed to each such position and
qualified therefor in conformity with the Trust's governing instrument and the
specimen signatures set forth opposite their respective names are their true and
correct signatures:
Name Position Signature
---- -------- ---------
Chairman of the Board _____________________________
President _____________________________
Treasurer _____________________________
Secretary _____________________________
Vice President and
Investment Officer _____________________________
Vice President and
Investment Officer _____________________________
By: _____________________________
Secretary
Dated:
20
APPENDIX C
SELECTED COUNTRIES
------------------
ARGENTINA
AUSTRALIA LEBANON
AUSTRIA LUXEMBOURG
BAHRAIN MALAYSIA
BANGLADESH MAURITIUS
BELGIUM MEXICO
BERMUDA MOROCCO
BOTSWANA THE NETHERLANDS
BRAZIL NEW ZEALAND
BULGARIA NORWAY
CANADA XXXX
XXXXX XXXXXXXX
XXXXX/XXXXXXXX XXXXXX
XXXXX/XXXXXXXX XXXX
CLEARSTREAM THE PHILIPPINES
COLOMBIA POLAND
CROATIA PORTUGAL
CZECH REPUBLIC ROMANIA
DENMARK RUSSIA
EGYPT SINGAPORE
ESTONIA SLOVAKIA
EUROCLEAR SLOVENIA
FINLAND SOUTH AFRICA
FRANCE SOUTH KOREA
GERMANY SPAIN
GHANA SRI LANKA
GREECE SWEDEN
HONGKONG SWITZERLAND
HUNGARY TAIWAN
ICELAND THAILAND
INDIA TURKEY
INDONESIA UGANDA
IRELAND UKRAINE
ISRAEL UNITED KINGDOM
ITALY UNITED STATES
JAPAN URUGUAY
JORDAN VENEZUELA
KAZAKHSTAN VIETNAM
KENYA ZAMBIA
ZIMBABWE
21
"*Note, Custodian will not act as a Foreign Custody Manager with respect to
assets held in this country. Holding assets and use of Mellon's usual
subcustodian in this country is subject to Instructions by the Fund and its
execution of a separate letter-agreement pertaining to custody and market
risks."
APPENDIX D
----------
LIST OF FUNDS
-------------
(as of ______________, 2004)
PRIMECAP Odyssey Stock Fund
PRIMECAP Odyssey Aggressive Growth Fund
PRIMECAP Odyssey Growth Fund
2
EXHIBIT A
---------
CUSTOMER IDENTIFICATION PROGRAM NOTICE
--------------------------------------
[GRAPHIC OMITTED]MELLON
--------------------------------------------------------------------------------
CUSTOMER IDENTIFICATION PROGRAM NOTICE
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW
ACCOUNT
To help the government fight the funding of terrorism and money laundering
activities, all financial institutions are required by law to obtain, verify and
record information that identifies each individual or entity that opens an
account.
What this means for you: When you open an account, we will ask you for
your name, address, taxpayer or other government identification number and other
information, such as date of birth for individuals, that will allow us to
identify you. We may also ask to see identification documents such as a driver's
license, passport or documents showing existence of the entity.
--------------------------------------------------------------------------------
Rev. 09/03
