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EXHIBIT 8(C)
CUSTODIAN SERVICES AGREEMENT
This Agreement is made as of January 10, 1994 by and between PNC BANK,
NATIONAL ASSOCIATION, a national banking association ("PNC Bank"), and PACIFIC
HORIZON FUNDS, INC., a Maryland Corporation (the "Fund").
The Fund is registered as an open-end investment company under the
Investment Company Act of 1940, as amended (the "1940" Act). The Fund wishes to
retain PNC Bank to provide custodian services for the portfolios listed in
Appendix A, as amended from time to time (each a "Portfolio"), and PNC Bank
wishes to furnish custodian services, either directly or though an affiliate or
affiliates, as more fully described herein.
In consideration of the promises and mutual covenants herein contained,
the parties agree as follows:
1. Definitions.
(a) "Authorized Person". The term "Authorized Person"
shall mean any officer of the Fund and any other person, who is duly authorized
by the Fund's Governing Board, to give Oral and Written Instructions on behalf
of the Fund, provided, however, that if the Governing Board determines that Oral
Instructions or Written Instructions require the approval of more than one
person, the term "Authorized Person" shall mean such persons as are in
combination so authorized. Such persons are listed in the Certificate attached
hereto as the Authorized Persons Appendix as
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such appendix may be amended in writing by the Fund's Governing Board from time
to time.
(b) "Book-Entry System". The term "Book-Entry System"
shall mean the Federal Reserve Treasury book-entry system for United States and
federal agency securities, its successor or successors, and its nominee or
nominees and any book-entry system maintained by an exchange registered with the
SEC under the 1934 Act.
(c) "CFTC". The term "CFTC" shall mean the Commodities Futures
Trading Commission.
(d) "Governing Board". The term "Governing Board" shall
mean the Fund's Board of Directors, or, where duly authorized, a competent
committee thereof.
(e) "Oral Instructions". The term "Oral Instructions"
shall mean oral instructions received by PNC Bank from an Authorized Person or
from a person reasonably identified to PNC Bank as an Authorized Person.
(f) "PNC Bank". The term "PNC Bank" shall mean PNC
Bank, National Association or a subsidiary or affiliate of PNC Bank, National
Association.
(g) "SEC". The term "SEC" shall mean the Securities and
Exchange Commission.
(h) "Securities and Commodities Laws". The term
"Securities and Commodities Laws" shall mean the "1933 Act," which shall mean
the Securities Act of 1933, as amended, the "1934 Act," which shall mean the
Securities Exchange Act of 1934,
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as amended, the "1940 Act," which shall mean the Investment Company Act of 1940,
as amended and the "CEA," which shall mean the Commodities Exchange Act, as
amended.
(i) "Shares". The term "Shares" shall mean the shares of any
series or class of common stock of the Fund.
(j) "Property". The term "Property" shall mean:
(i) any and all securities and other investment items
which the Fund may from time to time deposit, or
cause to be deposited, with PNC Bank or which PNC
Bank may from time to time hold for the Fund;
(ii) All income in respect of any of such securities
or other investment items;
(iii) all proceeds of the sale of any of such
securities or investment items; and
(iv) all proceeds of the sale of securities issued by
the Fund, which are received by PNC Bank from
time to time, from or on behalf of the Fund.
(k) "Written Instructions". The term "Written Instructions"
shall mean written instructions signed by one or more Authorized Persons as
required by the Governing Board from time to time and received by PNC Bank. The
instructions may be delivered by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. Appointment. The Fund hereby appoints PNC Bank to provide custodian
services for the Portfolios, and PNC Bank accepts such appointment and agrees to
furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable,
will provide PNC Bank with the following:
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(a) certified or authenticated copies of the resolutions of
the Fund's Governing Board, approving the appointment of
PNC Bank or its affiliates to provide custodian services
for the Portfolios;
(b) a copy of the Fund's most recent effective registration
statement with respect to the Portfolios;
(c) a copy of the Fund's administration agreement; and
(d) certified or authenticated copies of any and all
amendments or supplements to the foregoing.
4. Compliance with Government Rules and Regulations.
PNC Bank undertakes to comply with all applicable requirements of the
Securities and Commodities Laws and any other laws, rules and regulations of
state and federal governmental authorities having jurisdiction with respect to
all duties to be performed by PNC Bank hereunder. Except as specifically set
forth herein, PNC Bank assumes no responsibility for such compliance by the
Fund.
5. Instructions. Unless otherwise provided in this Agreement or
by resolution of the Governing Board which has been submitted to PNC Bank, PNC
Bank shall act only upon Oral and Written Instructions. PNC Bank shall be
entitled to rely upon any Oral and Written Instructions. PNC Bank may assume
that any Oral or Written Instructions received hereunder are not in any way
inconsistent with the provisions of organizational documents of the Fund or of
any vote, resolution or proceeding of the Fund's Governing Board or any
committee thereof or of the Fund's shareholders.
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The Fund agrees to forward to PNC Bank Written Instructions confirming
Oral Instructions so that PNC Bank receives the Written Instructions by the
close of business on the same day that such Oral Instructions are received. The
fact that such confirming Written Instructions are not received by PNC Bank
shall in no way invalidate the transactions or enforceability of the
transactions authorized by the Oral Instructions.
The Fund further agrees that PNC Bank shall incur no liability to the
Fund in acting upon Oral or Written Instructions.
6. Right to Receive Advice.
(a) Advice of the Fund. If PNC Bank is in doubt as to any
action it should or should not take, PNC Bank may request Oral or Written
Instructions from the Fund.
(b) Advice of Counsel. If PNC Bank shall be in doubt as to any
questions of law pertaining to any action it should or should not take, PNC Bank
may request advice at its own cost from such counsel of its own choosing (who
may be counsel for the Fund or PNC Bank, at the option of PNC Bank).
(c) Conflicting Advice. In the event of a conflict between Oral
or Written Instructions PNC Bank receives from the Fund, and the written advice
it receives from counsel, PNC Bank shall be entitled to rely upon and follow
such advice of counsel after notice to the Fund.
(d) Protection of PNC Bank. PNC Bank shall be protected in any
action it takes or does not take in reliance
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upon Oral or Written Instructions it receives from the Fund or written advice of
counsel.
Nothing in this paragraph shall be construed so as to impose an
obligation upon PNC Bank (i) to seek Oral or Written Instructions, or (ii) to
act in accordance with Oral or Written Instructions unless, under the terms of
other provisions of this Agreement, the same is a condition of PNC Bank's
properly taking or not taking such action.
Nothing in this subsection shall excuse PNC Bank when an action or
omission on the part of PNC Bank constitutes willful misfeasance, bad faith,
negligence or reckless disregard by PNC Bank of any duties or obligations under
this Agreement.
7. Records. The books and records pertaining to the Fund, which
are in the possession of PNC Bank, shall be the property of the Fund. Such books
and records shall be prepared and maintained as required by the 1940 Act and
other applicable securities laws, rules and regulations and shall, to the extent
practicable, be maintained separately for each Portfolio of the Fund. The Fund,
or the Fund's authorized representatives, shall have access to such books and
records at all times during PNC Bank's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be
provided by PNC Bank to the Fund or to an authorized representative of the Fund,
at the Fund's expense.
8. Confidentiality. PNC Bank agrees to keep confidential and to treat
as proprietary information of the Fund all records
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of the Fund and information relative to the Fund and its shareholders (past,
present and potential), unless the release of such records or information is
otherwise authorized by the Governing Board. The Fund further agrees that,
should PNC Bank be required to provide such information or records to duly
constituted authorities (who may institute civil or criminal contempt
proceedings for failure to comply), PNC Bank shall not be required to seek the
Fund's consent prior to disclosing such information; provided that PNC Bank
gives the Fund prior written notice of the provision of such information and
records.
9. Cooperation with Accountants. PNC Bank shall cooperate with
the Fund's independent public accountants and shall take all reasonable action
in the performance of its obligations under this Agreement to ensure that the
necessary information is made available to such accountants for the expression
of their opinion, as required by the Fund.
10. Disaster Recovery. As soon as reasonably possible, PNC Bank
shall at its expense 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, PNC Bank shall, at no additional
expense to the Fund, take reasonable steps to minimize service interruptions but
shall have no liability with respect thereto.
11. Compensation. As compensation for custody services rendered by PNC
Bank during the term of this Agreement, the Fund
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will pay to PNC Bank a fee or fees as may be agreed to in writing from time to
time by the Fund and PNC Bank.
12. Indemnification . The Fund agrees to indemnify and hold
harmless PNC Bank and its nominees from all taxes, charges, expenses,
assessments, claims and liabilities (including, without limitation, liabilities
arising under the Securities and Commodities Laws, and any state and foreign
securities and blue sky laws, and amendments thereto), and expenses, including
(without limitation) reasonable attorneys' fees and disbursements, arising
directly or indirectly from any action which PNC Bank takes or does not take on
the direction of or in reliance on Oral or Written Instructions provided that
neither PNC Bank, nor any of its nominees, shall be indemnified against any
liability to the Fund or to its shareholders (or any expenses incident to such
liability) arising out of PNC Bank's or its nominees' own willful misfeasance,
bad faith, negligence or reckless disregard of its duties and obligations under
this Agreement or PNC Bank's own negligent failure to perform its duties under
this Agreement.
13. Responsibility of PNC Bank. PNC Bank shall be under no duty
to take any action on behalf of the Fund except as specifically set forth herein
or as may be specifically agreed to by PNC Bank, in writing. PNC Bank itself
shall perform all duties specified herein unless the Governing Board has
approved the performance of such duties by an affiliate of PNC Bank,
provided, that PNC Bank shall retain responsibility therefor as
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specified herein. PNC Bank shall be obligated to exercise care and diligence in
the performance of its duties hereunder and, shall be responsible for its own or
its affiliates' and nominees' own willful misfeasance, bad faith, negligence or
reckless disregard of its duties and obligations under this Agreement or PNC
Bank's own negligent failure to perform its duties under this Agreement.
Without limiting the generality of the foregoing or of any other
provision of this Agreement, PNC Bank, 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 (a) 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 PNC Bank reasonably
believes to be genuine; or (b) delays or errors or loss of data occurring by
reason of circumstances beyond PNC Bank's control, including acts of civil or
military authority, national emergencies, fire, flood or catastrophe, acts of
God, insurrection, war, riots or failure of the mails, transportation,
communication or power supply.
Notwithstanding anything in this Agreement to the contrary, PNC Bank
expressly disclaims all responsibility for consequential damages, including but
not limited to any that may result from performance or non-performance of any
duty or obligation whether express or implied in this Agreement and also
expressly disclaims
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any express or implied warranty of products or services provided in connection
with this Agreement.
14. Description of Services.
(a) Delivery of the Property. The Fund will deliver or
arrange for delivery to PNC Bank, all (except as otherwise determined by the
Governing Board) the Property it owns, including cash received as a result of
the distribution of its Shares, during the period that is set forth in this
Agreement. PNC Bank will not be responsible for such Property until actual
receipt.
(b) Receipt and Disbursement of Money. PNC Bank, acting
upon Written Instructions, shall open and maintain separate account(s) in the
Fund's name using all cash received from or for the account of the Fund, subject
to the terms of this Agreement. In addition, upon Written Instructions, PNC Bank
shall open and maintain separate custodial accounts for each separate series,
Portfolio or class of the Fund and shall hold in such account(s) all cash
received from or for the accounts of the Fund specifically designated to each
separate series, Portfolio or class.
PNC Bank shall make cash payments from or for the account of each
Portfolio of the Fund only for:
(i) purchases of securities in the name of the
Portfolios of the Fund or PNC Bank or PNC
Bank's nominee as provided in sub-paragraph
(j) and for which PNC Bank has received a
copy of the broker's or dealer's
confirmation or payee's invoice, as
appropriate;
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(ii) purchase or redemption of Shares of the
Fund delivered to PNC Bank;
(iii) payment of, subject to Written
Instructions, interest, taxes,
administration, accounting, distribution,
advisory, management fees or similar
expenses which are to be borne by the Fund;
(iv) payment to, subject to receipt of Written
Instructions, the Fund's transfer agent, as
agent for the Fund's shareholders, of 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 of the
applicable Portfolio, or, in lieu of paying
the Fund's transfer agent, PNC Bank may
arrange for the direct payment of cash
dividends and distributions to shareholders
in accordance with procedures mutually
agreed upon from time to time by and among
the Fund, PNC Bank and the Fund's transfer
agent;
(v) payments, upon receipt of Written
Instructions, in connection with the
conversion, exchange or surrender of
securities owned or subscribed to by the
Fund and held by or delivered to PNC Bank;
(vi) payments of the amounts of dividends
received with respect to securities sold
short;
(vii) payments made to a sub-custodian pursuant
to provisions in sub-paragraph (c) of this
Paragraph 14; and
(viii) payments, upon receipt of Written
Instructions, for other proper Fund
purposes.
PNC Bank is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the account
of the Fund.
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(c) Receipt and Withdrawal of Securities.
(i) PNC Bank shall hold all securities received
by it for the account of each Portfolio of
the Fund in a separate account that
physically segregates such securities from
those of any other persons, firms or
corporations. All such securities shall be
held or disposed of only upon Written
Instructions of the Fund pursuant to the
terms of this Agreement. PNC Bank shall
have no power or authority to assign,
hypothecate, pledge or otherwise dispose of
any such securities or investment items,
except upon the express terms of this
Agreement and upon Written Instructions,
accompanied by a certified resolution of
the Fund's Governing Board, authorizing the
transaction. In no case may any member of
the Governing Board, or any officer,
employee or agent of the Fund withdraw any
securities.
At PNC Bank's own expense and for its own
convenience, PNC Bank may enter into
subcustodian agreements with other United
States banks or trust companies to perform
duties described in this sub-paragraph (c).
Such bank or trust company shall have an
aggregate capital, surplus and undivided
profits, according to its last published
report, of at least one million dollars
($1,000,000), if it is a subsidiary or
affiliate of PNC Bank, or at least twenty
million dollars ($20,000,000) if such bank
or trust company is not a subsidiary or
affiliate of PNC Bank. In addition, such
bank or trust company must be qualified to
act as custodian and agree to comply with
the relevant provisions of the 1940 Act and
other applicable rules and regulations. Any
such arrangement will not be entered into
without prior written notice to the Fund.
PNC Bank shall remain responsible for the
performance of all of its duties as
described in this Agreement and shall hold
the Fund harmless from its own acts or
omissions, under the standards of care
provided for herein, or the acts and
omissions of any sub-custodian chosen by
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PNC Bank under the terms of this sub-paragraph (c).
(d) Transactions Requiring Instructions. Upon receipt of Oral
or Written Instructions and not otherwise, PNC Bank, directly or through the use
of the Book-Entry System, shall:
(i) deliver any securities held for a Portfolio
of the Fund against the receipt of payment
for the sale of such securities;
(ii) execute and deliver to such persons as may
be designated in such Oral or Written
Instructions, proxies, consents,
authorizations, and any other instruments
whereby the authority of the Fund as owner
of any securities on behalf of a Portfolio
may be exercised;
(iii) deliver any securities held for a Portfolio
of the Fund 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 PNC Bank;
(iv) deliver any securities held for a Portfolio
of the Fund against receipt of other
securities or cash issued or paid in
connection with the liquidation,
reorganization, refinancing, tender offer,
merger, consolidation or recapitalization
of any corporation, or the exercise of any
conversion privilege;
(v) deliver any securities held for a Portfolio
of the Fund to any protective committee,
reorganization committee or other person in
connection with the reorganization,
refinancing, merger, consolidation,
recapitalization or sale of assets of any
corporation, and receive and hold under the
terms of this Agreement such certificates
of deposit, interim receipts or other
instruments or documents as may be issued
to it to evidence such delivery;
(vi) make such transfer or exchanges of the
assets of a Portfolio of the Fund and take
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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 the Fund;
(vii) release securities belonging to a Portfolio
of the Fund to any bank or trust company
for the purpose of a pledge or
hypothecation to secure any loan incurred
by a Portfolio of the Fund; provided,
however, that securities shall be released
only upon payment to PNC Bank of the monies
borrowed, except that in cases where
additional collateral is required to secure
a borrowing already made subject to proper
prior authorization, further securities may
be released for that purpose; and repay
such loan upon redelivery to it of the
securities pledged or hypothecated therefor
and upon surrender of the note or notes
evidencing the loan;
(viii) release and deliver securities owned by a
Portfolio of the Fund in connection with
any repurchase agreement entered into on
behalf of a Portfolio of the Fund, but only
on receipt of payment therefor; and pay out
moneys of a Portfolio of the Fund in
connection with such repurchase agreements,
but only upon the delivery of the
securities;
(ix) release and deliver or exchange securities
owned by a Portfolio of the Fund in
connection with any conversion of such
securities, pursuant to their terms, into
other securities;
(x) release and deliver securities owned by a
Portfolio of the Fund for the purpose of
redeeming in kind shares of the Fund upon
delivery thereof to PNC Bank; and
(xi) release and deliver or exchange securities
owned by a Portfolio of the Fund for other
corporate purposes.
(e) Use of Book-Entry System. The Fund shall deliver to PNC
Bank certified resolutions of the Fund's Governing Board
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approving, authorizing and instructing PNC Bank on a continuous and on-going
basis, to deposit in the Book-Entry System all securities belonging to each
Portfolio of the Fund eligible for deposit therein and to utilize the Book-Entry
System to the extent possible in connection with settlements of purchases and
sales of securities by each Portfolio of the Fund, and deliveries and returns of
securities loaned, subject to repurchase agreements or used as collateral in
connection with borrowings. PNC Bank shall continue to perform such duties until
it receives Written or Oral Instructions authorizing contrary actions(s).
To administer the Book-Entry System properly, the following provisions
shall apply:
(i) With respect to securities of the Fund
which are maintained in the Book-Entry
System, established pursuant to this
sub-paragraph (e) hereof, the records of
PNC Bank shall identify by Book-Entry or
otherwise those securities belonging to the
applicable Portfolio of the Fund. PNC Bank
shall furnish the Fund a detailed statement
of the Property held for each Portfolio of
the Fund under this Agreement at least
monthly and from time to time and upon
written request.
(ii) Securities and any cash of the Fund
deposited in the Book-Entry System will at
all times be segregated from any assets and
cash controlled by PNC Bank in other than a
fiduciary or custodian capacity but may be
commingled with other assets held in such
capacities. PNC Bank and its sub-custodian,
if any, will pay out money only upon
receipt of securities and will deliver
securities only upon the receipt of money.
(iii) All books and records maintained by PNC
Bank which relate to the Fund's
participation in the Book-Entry System will
at all times during PNC Bank's regular
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business hours be open to the inspection of
the Fund's duly authorized employees or
agents, and the Fund will be furnished with
all information in respect of the services
rendered to it as it may require.
(iv) PNC Bank will provide the Fund with copies
of any report obtained by PNC Bank on the
system of internal accounting control of
the Book-Entry System promptly after
receipt of such a report by PNC Bank.
PNC Bank will also provide the Fund with such reports on its own system
of internal control as the Fund may reasonably request from time to time.
(f) Registration of Securities. All Securities held for
the Fund which are issued or issuable only in bearer form, except such
securities held in the Book-Entry System, shall be held by PNC Bank in bearer
form; all other securities held for the Fund may be registered in the name of
the Fund; PNC Bank; the Book-Entry System; a sub-custodian; or any duly
appointed nominee(s) of the Fund, PNC Bank, the Book-Entry System or any
sub-custodian. The Fund reserves the right to instruct PNC Bank as to the method
of registration and safekeeping of the securities of the Fund. The Fund agrees
to furnish to PNC Bank appropriate instruments to enable PNC Bank to hold or
deliver in proper form for transfer, or to register in the name of its
registered nominee or the Book-Entry System, any securities which it may hold
for the account of the Fund and which may from time to time be registered in the
name of the Fund. PNC Bank shall hold all such securities which are not held in
the Book-Entry System in a separate account for each Portfolio of the Fund in
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the name of the applicable Portfolio of the Fund physically segregated at all
times from those of any other person or persons.
(g) Voting and Other Action. Neither PNC Bank nor its nominee
shall vote any of the securities held pursuant to this Agreement by or for the
account of a Portfolio of the Fund, except in accordance with Written
Instructions. PNC Bank, directly or through the use of the Book-Entry System,
shall execute in blank and promptly deliver all notices, proxies, and proxy
soliciting materials to the registered holder of such securities. If the
registered holder is not a Portfolio of the Fund then Written or Oral
Instructions must designate the person(s) who owns such securities.
(h) Transactions Not Requiring Instructions. In the absence of
contrary Written Instructions, PNC Bank is authorized to take the following
actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account
of each Portfolio of the Fund, all
income, dividends, distributions,
coupons, option premiums, other
payments and similar items, included
or to be included in the Property,
and, in addition, promptly advise the
Fund of such receipt and credit such
income, as collected, to the
applicable Portfolio's custodian
account;
(B) endorse and deposit for collection,
in the name of the applicable
Portfolio of the Fund, checks,
drafts, or other orders for the
payment of money on the same day as
received;
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(C) receive and hold for the account of
each Portfolio of the Fund all
securities received as a distribution
on the Portfolio securities as a
result of a stock dividend, share
split-up or reorganization,
recapitalization, readjustment or
other rearrangement or distribution
of rights or similar securities
issued with respect to any portfolio
securities belonging to the Portfolio
held by PNC Bank hereunder;
(D) present for payment and collect the
amount payable upon all securities
which may mature or be called,
redeemed, or retired, or otherwise
become payable on the date such
securities become payable; and
(E) take any action which may be
necessary and proper in connection
with the collection and receipt of
such income and other payments and
the endorsement for collection of
checks, drafts, and other negotiable
instruments.
(ii) Miscellaneous Transactions.
(A) PNC Bank is authorized to deliver or
cause to be delivered Property
against payment or other
consideration or written receipt
therefor in the following cases:
(1) for examination by a broker or dealer
selling for the account of a
Portfolio of the Fund 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 Portfolio of the Fund or
PNC Bank or nominee of either, or for
exchange of securities for a
different number of bonds,
certificates, or other evidence,
representing the same aggregate face
amount or number of units bearing the
same interest rate, maturity date and
call provisions, if
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any; provided that, in any such case,
the new securities are to be
delivered to PNC Bank.
(B) Unless and until PNC Bank receives
Oral or Written Instructions to the
contrary, PNC Bank shall:
(1) pay all income items held by it which
call for payment upon presentation
and hold the cash received by it upon
such payment for the account of the
applicable Portfolio of the Fund;
(2) collect interest and cash dividends
received, with notice to the Fund, to
the account of the applicable
Portfolio of the Fund;
(3) hold for the account of the
applicable Portfolio of the Fund all
stock dividends, rights and similar
securities issued with respect to any
securities held by PNC Bank; and
(4) execute as agent on behalf of the
applicable Portfolio of the Fund all
necessary ownership certificates
required by the Internal Revenue Code
or the Income Tax Regulations of the
United States Treasury Department or
under the laws of any State now or
hereafter in effect, inserting the
Portfolio's name on such certificate
as the owner of the securities
covered thereby, to the extent it may
lawfully do so.
(i) Segregated Accounts.
(i) PNC Bank shall upon receipt of Written or Oral
Instructions establish and maintain a
segregated accounts(s) on its records for and
on behalf of each Portfolio of the Fund. Such
account(s) may be used to transfer cash and
securities, including securities in the
Book-Entry System:
(A) for the purposes of compliance by the
Fund with the procedures required by
a securities or option exchange,
providing such procedures comply with
the 1940 Act
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and any regulations of the SEC
relating to the maintenance of
segregated accounts by registered
investment companies; and
(B) Upon receipt of Written Instructions,
for other proper corporate purposes.
(ii) PNC Bank shall arrange for the establishment
of XXX custodian accounts for such
shareholders holding shares through XXX
accounts, in accordance with the Prospectus,
the Internal Revenue Code (including
regulations), and with such other procedures
as are mutually agreed upon from time to time
by and among the Fund, PNC Bank and the Fund's
transfer agent.
(iii) PNC Bank may enter into separate custodial
agreements with various futures commission
merchants ("FCMs") that the Fund uses (each an
"FCM Agreement"), pursuant to which the Fund's
margin deposits in any transactions involving
futures contracts and options on futures
contracts will be held by PNC Bank in accounts
(each an "FCM Account") subject to the
disposition by the FCM involved in such
contracts in accordance with the customer
contact between FCM and the Fund Contract"),
SEC rules governing such segregated accounts,
CFTC rules and the rules of the applicable
commodities exchange. Such FCM Agreements
shall only be entered into upon receipt of
Written Instructions from the Fund which state
that (i) a customer agreement between the FCM
and the Fund has been entered into; and (ii)
the Fund is in compliance with all the rules
and regulations of the CFTC. Except as
otherwise determined by the Governing Board,
transfers of initial margin shall be made into
an FCM Account only upon Written Instructions;
transfers of premium and variation margin may
be made into an FCM Account pursuant to Oral
Instructions. Transfers of funds from an FCM
Account to the FCM for which PNC Bank holds
such an account may only occur upon
certification by the FCM to PNC Bank that
pursuant to the FCM Agreement and the FCM
Contract, all conditions precedent to its
right to give
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PNC Bank such instruction have been satisfied.
(j) Purchases of Securities. PNC Bank shall settle purchased
securities upon receipt of Oral or 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, 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 Portfolio of the Fund to which such
purchase applies. PNC Bank shall upon receipt
of securities purchased by or for a Portfolio
of the Fund pay out of the moneys held for the
account of such Portfolio the total amount
payable to the person from whom or the broker
through whom the purchase was made, provided
that the same conforms to the total amount
payable as set forth in such Oral or Written
Instructions.
(k) Sales of Securities. PNC Bank shall sell securities upon
receipt of Oral Instructions from the Fund that specify:
(i) the name of the issuer and the title of the
security, including CUSIP number if
applicable;
(ii) the number of shares or principal amount sold,
and accrued interest, if any;
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(iii) the date of trade, settlement and sale;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such
sale;
(vi) the name of the broker through whom or the
person to whom the sale was made;
(vii) the location to which the security must be
delivered and delivery deadline, if any; and
(viii) the Portfolio of the Fund to which such sale
applies.
PNC Bank shall deliver the securities upon receipt of the total
amount payable to the Fund upon such sale, provided that the total amount
payable is the same as was set forth in the Oral or Written Instructions.
Subject to the foregoing, PNC Bank may accept payment in such form as shall be
satisfactory to it, and may deliver securities and arrange for payment in
accordance with the customs prevailing among dealers in securities.
(l) Reports.
(i) PNC Bank shall furnish the Fund the following
reports:
(A) such periodic and special reports as
the Fund may reasonably request;
(B) a monthly statement summarizing all
transactions and entries for the
account of each Portfolio of the
Fund, listing the portfolio
securities belonging to each
Portfolio of the Fund with the
adjusted average cost of each issue
and the market value at the end of
such month, and stating the cash
account of each Portfolio of the Fund
including disbursement;
(C) the reports to be furnished to the
Fund pursuant to Rule 17f-4; and
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(D) such other information as may be
agreed upon from time to time between
the Fund and PNC Bank.
(ii) PNC Bank shall transmit promptly to the Fund
any proxy statement, proxy material, notice of
a call or conversion or similar communication
received by it as custodian of the Property.
PNC Bank shall be under no other obligation to
inform the Fund as to such actions or events.
(m) Collections. All collections of monies or other property in
respect, or which are to become part, of the Property (but not the safekeeping
thereof upon receipt by PNC Bank) shall be at the sole risk of the Fund. If
payment is not received by PNC Bank within a reasonable time after proper
demands have been made, PNC Bank shall notify the Fund in writing, including
copies of all demand letters, any written responses, memoranda of all oral
responses and to telephonic demands thereto, and await instructions from the
Fund. PNC Bank shall not be obliged to take legal action for collection unless
and until reasonably indemnified to its satisfaction. PNC Bank shall also notify
the Fund as soon as reasonably practicable whenever income due on securities is
not collected in due course.
15. Duration and Termination. This Agreement shall continue
until terminated by the Fund or by PNC Bank on one hundred eighty (180) days'
prior written notice to the other party. In the event this Agreement is
terminated (pending appointment of a successor to PNC Bank or vote of the
shareholders of the Fund to dissolve or to function without a custodian of its
cash, securities or other property), PNC Bank
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shall not deliver cash, securities or other property of the Fund to the Fund. It
may deliver them to a bank or trust company of PNC Bank's own selection, having
an aggregate capital, surplus and undivided profits, as shown by its last
published report, of not less than twenty million dollars ($20,000,000), as a
custodian for the Fund to be held under terms similar to those of this
Agreement. PNC Bank shall not be required to make any such delivery or payment
until full payment shall have been made to PNC Bank of all of its fees,
compensation, costs and expenses.
16. Notices. All notices and other communications, including
Written Instructions, shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. Notice shall be addressed (a) if to PNC Bank
at PNC Bank's address, Airport Business Center, International Court 2, 000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000, marked for the attention of the
Custodian Services Department (or its successor) (b) if to the Fund, at the
address of the Fund at 000 X. 00xx Xxxxxx, Xxx Xxxx, XX 00000 with copies to
Xxxxxx X. Xxxxxxx, Esq., Chairman, XxXxxxxxx & Xxxxxxx, 000 Xxxxx Xxxx Xxxxxx,
Xxxxx 000, Xxxxxxxx, XX 00000- 3005 and to W. Xxxxx XxXxxxxx, III, Esq.,
Secretary, Drinker Xxxxxx & Xxxxx, Philadelphia National Bank Building, 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000; or (c) if to neither of the foregoing,
at such other address as shall have been notified to the sender of any such
Notice or other communication. If notice is sent by confirming telegram, cable,
telex or facsimile sending device, it shall be deemed to have
-24-
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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.
18. Assignment. 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 Fund
without the written consent of PNC Bank, or by PNC Bank without the written
consent of the Fund, authorized or approved by a resolution of the Fund's
Governing Board.
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. No Limitation. Nothing contained in this Agreement shall be
construed in any way so as to limit any guaranty or obligations of any signing
party, as set forth in the letter agreement dated July 21, 1993 by and among
PFPC, Inc., Bank of
-25-
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America NTSA, Seattle-First National Bank and Concord Financial Group, Inc.
22. Miscellaneous. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody in one or more separate documents their agreement, if any, with
respect to delegated duties and/or Oral Instructions.
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 governed by
Pennsylvania 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
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thereby. This Agreement shall be binding and shall inure to the benefit of the
parties hereto and their respective successors.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the
day and year first above written.
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxx
--------------------------
Title: V.P.
PACIFIC HORIZON FUNDS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Title: Treasurer
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APPENDIX A
Pacific Horizon Blue Chip Fund
Pacific Horizon Flexible Bond Fund
Pacific Horizon Asset Allocation Fund
Pacific Horizon National Municipal Bond Fund
Pacific Horizon Corporate Bond Fund
Pacific Horizon Utilities Fund
Pacific Horizon Growth and Income Fund
Pacific Horizon International Bond Fund
Pacific Horizon International Equity Fund
Pacific Horizon Short-Term Government Fund
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AUTHORIZED PERSONS
APPENDIX
Name (Typed) Signature
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January 10, 1994
PACIFIC HORIZON FUNDS, INC.
Re: Custodian Services Fees
Dear Sir/Madam:
This letter constitutes our agreement with respect to
compensation to be paid to PNC Bank, National Association ("PNC Bank") under the
terms of a Custodian Services Agreement dated January 10, 1994 between PNC Bank
and Pacific Horizon Funds, Inc. (the "Fund") as amended from time to time (the
"Agreement") relating to the portfolios of the Fund listed on Exhibit A attached
hereto (the "Portfolios"). Pursuant to paragraph 11 of the Agreement, the Fund
shall pay PNC Bank a monthly fee for each Portfolio of $100 for services to each
Portfolio including, but not limited to, recordkeeping and check issuance. The
Fund agrees to reimburse PNC Bank for its out-of-pocket expenses incurred on
behalf of the Portfolios, including, but not limited to postage, telephone,
telex, federal express, and outside independent pricing service charges,
confirmation fees, federal reserve wire fees and interest claims.
If the foregoing accurately sets forth our agreement and you
intend to be legally bound thereby, please execute a copy of this letter and
return it to us.
Very truly yours,
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxx
--------------------------
Title: V.P.
Accepted:
PACIFIC HORIZON FUNDS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------
Title: Treasurer
31
EXHIBIT A
Portfolios
PACIFIC HORIZON BLUE CHIP FUND
PACIFIC HORIZON FLEXIBLE BOND FUND
PACIFIC HORIZON ASSET ALLOCATION FUND
PACIFIC HORIZON NATIONAL MUNICIPAL BOND FUND
PACIFIC HORIZON CORPORATE BOND FUND
PACIFIC HORIZON UTILITIES FUND
PACIFIC HORIZON GROWTH AND INCOME FUND
PACIFIC HORIZON INTERNATIONAL BOND FUND
PACIFIC HORIZON INTERNATIONAL EQUITY FUND
PACIFIC HORIZON SHORT-TERM GOVERNMENT FUND
And any other portfolios of the Fund, whether now existing or
hereafter created, for which the Fund has approved PNC Bank to provide custodian
services and for which PNC Bank provides custodian services.
