Exhibit 99.g(8)
CUSTODIAN SERVICES AGREEMENT
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THIS AGREEMENT is made as of May 1, 2001 by and between PFPC TRUST COMPANY,
a limited purpose trust company incorporated under the laws of Delaware ("PFPC
Trust"), and NEW ALTERNATIVES FUND, INC., a New York corporation (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree that the Custody Administration and Agency Agreement, dated October 28,
1994, between the parties, as amended, is hereby terminated effective the date
hereof, and further agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
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(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Fund and any other
person authorized by the Fund to give Oral or Written Instructions on
behalf of the Fund. An Authorized Person's scope of authority may be
limited by setting forth such limitation in a written document signed
by both parties hereto.
(d) "Book-Entry System" means Federal Reserve Treasury book-entry system
for
United States and federal agency securities, its successor or
successors, and its nominee or nominees and any book-entry system
maintained by an exchange registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities-- Exchange Act, as amended.
(f) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(g) "Oral Instructions" mean oral instructions received by PFPC Trust
from an Authorized Person or from a person reasonably believed by
PFPC Trust to be an Authorized Person. PFPC Trust may, in its sole
discretion in each separate instance, consider and rely upon
instructions it receives from an Authorized Person via electronic
mail as Oral Instructions.
(h) "PFPC Trust" means PFPC Trust Company or a subsidiary or affiliate of
PFPC Trust Company.
(i) "SEC" means the Securities and Exchange Commission.
(j) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(k) "Shares" mean the shares of beneficial interest of any series or
class of the Fund.
(l) "Property" means:
(i) any and all securities and other investment items which the Fund
may from time to time deposit, or cause to be deposited, with
PFPC Trust or which PFPC Trust may from time to time hold for
the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
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(iv) all proceeds of the sale of securities issued by the Fund, which
are received by PFPC Trust from time to time, from or on behalf
of the Fund.
(m) "Written Instructions" mean (i) written instructions signed by one
Authorized Persons and received by PFPC Trust or (ii) trade
instructions transmitted by means of an electronic transaction
reporting system which requires the use of a password or other
authorized identifier in order to gain access. The instructions may
be delivered electronically or by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC Trust to provide custodian
services to the Fund, on behalf of each of its investment portfolios (each,
a "Portfolio"), and PFPC Trust accepts such appointment and agrees to
furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC
Trust with the following:
(a) at PFPC Trust's request, certified or authenticated copies of the
resolutions of the Fund's Board of Directors, approving the
appointment of PFPC Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreements;
(d) a copy of the distribution/underwriting agreement with respect to each
class of Shares;
(e) a copy of each Portfolio's administration agreement;
(f) copies of any distribution and/or shareholder servicing plans and
agreements made in respect of the Fund or a Portfolio; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
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4. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with material applicable requirements of
the Securities Laws and material laws, rules and regulations of
governmental authorities having jurisdiction with respect to the duties to
be performed by PFPC Trust hereunder. Except as specifically set forth
herein, PFPC Trust assumes no responsibility for such compliance by the
Fund or any other entity.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act only
upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from a
person reasonably believed by PFPC Trust to be an Authorized Person)
pursuant to this Agreement. PFPC Trust may assume that any Oral
Instructions or Written Instructions received hereunder are not in any
way inconsistent with the provisions of organizational documents of
the Fund or of any vote, resolution or proceeding of the Fund's Board
of Directors or of the Fund's shareholders, unless and until PFPC
Trust receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions are
given by PFPC Trust or its affiliates) so that PFPC Trust receives the
Written Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC Trust or differ from the
Oral Instructions shall in no way invalidate the transactions or
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enforceability of the transactions authorized by the Oral Instructions
or PFPC Trust's ability to rely upon such Oral Instructions. Where
Oral Instructions or Written Instructions reasonably appear to have
been received from an Authorized Person, PFPC Trust shall incur no
liability to the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC Trust's actions comply with the other
provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC Trust is in doubt as to any action it
should or should not take, PFPC Trust may request directions or
advice, including Oral Instructions or Written Instructions, from the
Fund.
(b) Advice of Counsel. If PFPC Trust shall be in doubt as to any question
of law pertaining to any action it should or should not take, PFPC
Trust may request advice from counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or PFPC Trust, at
the option of PFPC Trust).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Fund, and the advice it receives from counsel, PFPC
Trust shall be entitled to rely upon and follow the advice of counsel.
(d) Protection of PFPC Trust. PFPC Trust shall be protected in any action
it takes or does not take in reliance upon directions or advice or
Oral Instructions or Written Instructions it receives from the Fund or
from counsel and which PFPC Trust believes, in good faith, to be
consistent with those directions or advice or Oral Instructions or
Written Instructions. Nothing in this section shall be construed so
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as to impose an obligation upon PFPC Trust (i) to seek such directions
or advice or Oral Instructions or Written Instructions, or (ii) to act
in accordance with such directions or advice or Oral Instructions or
Written Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC Trust's properly
taking or not taking such action.
7. RECORDS; VISITS. The books and records pertaining to the Fund and any
Portfolio, which are in the possession or under the control of PFPC Trust,
shall be the property of the Fund. Such books and records shall be prepared
and maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFPC Trust's normal
business hours. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by PFPC Trust to the Fund or to an
authorized representative of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about product plans, marketing
strategies, finances, operations, customer relationships, customer
profiles, customer lists, sales estimates, business plans, and internal
performance results relating to the past, present or future business
activities of the Fund or PFPC Trust, their respective subsidiaries and
affiliated companies and the customers, clients and suppliers of any of
them; (b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret
in the sense that its confidentiality
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affords the Fund or PFPC Trust a competitive advantage over its
competitors; (c) all confidential or proprietary concepts, documentation,
reports, data, specifications, computer software, source code, object code,
flow charts, databases, inventions, know-how, and trade secrets, whether or
not patentable or copyrightable; and (d) anything designated as
confidential. Notwithstanding the foregoing, information shall not be
subject to such confidentiality obligations if it: (a) is already known to
the receiving party at the time it is obtained; (b) is or becomes publicly
known or available through no wrongful act of the receiving party; (c) is
rightfully received from a third party who, to the best of the receiving
party's knowledge, is not under a duty of confidentiality; (d) is released
by the protected party to a third party without restriction; (e) is
required to be disclosed by the receiving party pursuant to a requirement
of a court order, subpoena, governmental or regulatory agency or law
(provided the receiving party will provide the other party written notice
of such requirement, to the extent such notice is permitted); (f) is
relevant to the defense of any claim or cause of action asserted against
the receiving party; or (g) has been or is independently developed or
obtained by the receiving party.
9. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable action to make
any requested information available to such accountants as reasonably
requested by the Fund.
10. PFPC SYSTEM. PFPC Trust shall retain title to and ownership of any and all
data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC Trust in
connection with the services provided by PFPC Trust to the Fund.
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11. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in effect
with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. In the event of equipment
failures, PFPC Trust shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC Trust shall have
no liability with respect to the loss of data or service interruptions
caused by equipment failure provided such loss or interruption is not
caused by PFPC Trust's own willful misfeasance, bad faith, gross negligence
or reckless disregard of its duties or obligations under this Agreement.
12. COMPENSATION. As compensation for custody services rendered by PFPC Trust
during the term of this Agreement, the Fund, on behalf of each of the
Portfolios, will pay to PFPC Trust a fee or fees as may be agreed to in
writing from time to time by the Fund and PFPC Trust. The Fund acknowledges
that PFPC Trust may receive float benefits in connection with maintaining
certain accounts required to provide services under this Agreement.
13. INDEMNIFICATION. The Fund, on behalf of each Portfolio, agrees to indemnify
and hold harmless PFPC Trust and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities arising under
the Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly from any action or omission to act which
PFPC Trust takes in connection with the provision of services to the Fund.
Neither PFPC Trust, nor any of its affiliates, shall be indemnified against
any liability (or any expenses incident
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to such liability) caused by PFPC Trust's or its affiliates' own willful
misfeasance, bad faith, negligence or reckless disregard of its duties and
obligations under this Agreement.
14. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of the Fund or any Portfolio except as specifically set forth
herein or as may be specifically agreed to by PFPC Trust and the Fund
in a written amendment hereto. PFPC Trust shall be obligated to
exercise care and diligence in the performance of its duties hereunder
and to act in good faith in performing services provided for under
this Agreement. PFPC Trust shall be liable only for any damages
arising out of PFPC Trust's failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC Trust's willful
misfeasance, bad faith, negligence or reckless disregard of its duties
under this Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC Trust shall not be liable for
losses beyond its control, including without limitation (subject to
Section 11), delays or errors or loss of data occurring by reason of
circumstances beyond PFPC Trust's control, provided that PFPC Trust
has acted in accordance with the standard set forth in Section 14(a)
above; and (ii) PFPC Trust shall not be under any duty or obligation
to inquire into and shall not be liable for the validity or invalidity
or authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which PFPC Trust reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
PFPC Trust nor its affiliates shall be liable for any consequential,
special or indirect losses or
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damages, whether or not the likelihood of such losses or damages was
known by PFPC Trust or its affiliates.
(d) No party may assert a cause of action against PFPC Trust or any of its
affiliates more than 365 days after the date on which such party
became aware of such alleged cause of action.
(e) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
15. DESCRIPTION OF SERVICES.
(a) Delivery of the Property. The Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by the Portfolios,
including cash received as a result of the distribution of Shares,
during the term of this Agreement. PFPC Trust will not be responsible
for such property until actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon Written
Instructions, shall open and maintain separate accounts in the Fund's
name using all cash received from or for the account of the Fund,
subject to the terms of this Agreement. In addition, upon Written
Instructions, PFPC Trust shall open separate custodial accounts for
each separate Portfolio of the Fund (collectively, the "Accounts") and
shall hold in the Accounts all cash received from or for the Accounts
of the Fund specifically designated to each separate Portfolio.
PFPC Trust shall make cash payments from or for the Accounts of a
Portfolio only for:
(i) purchases of securities in the name of a Portfolio, PFPC Trust,
PFPC Trust's nominee or a sub-custodian or nominee thereof as
provided in sub-section (j) and for which PFPC Trust has
received a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
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(ii) purchase or redemption of Shares of the Fund delivered to PFPC
Trust;
(iii) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory and
management fees which are to be borne by a Portfolio;
(iv) payment to, subject to receipt of Written Instructions, the
Fund's transfer agent, as agent for the shareholders, 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, or, in lieu of paying the
Fund's transfer agent, PFPC Trust may arrange for the direct
payment of cash dividends and distributions to shareholders in
accordance with procedures mutually agreed upon from time to
time by and among the Fund, PFPC Trust and the Fund's transfer
agent.
(v) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities owned
or subscribed to by the Fund and held by or delivered to PFPC
Trust;
(vi) payments of the amounts of dividends received with respect to
securities sold short;
(vii) payments to PFPC Trust for its services hereunder;
(viii) payments to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(ix) other payments, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks, drafts or
other orders for the payment of money received as custodian for the Accounts.
(c) Receipt of Securities; Subcustodians.
(i) PFPC Trust shall hold all securities received by it for the Accounts
in a separate account that physically segregates such securities from
those of any other persons, firms or corporations, except for
securities held in a Book-Entry System. All such securities shall be
held or disposed of only upon Written Instructions of the Fund
pursuant to the terms of this Agreement. PFPC Trust shall have no
power or authority to assign, hypothecate, pledge or otherwise dispose
of any such securities or investment, except upon the express terms of
this Agreement or upon Written Instructions authorizing the
transaction. In no case may any
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member of the Fund's Board of Directors, or any officer, employee or
agent of the Fund withdraw any securities.
At PFPC Trust's own expense and for its own convenience, PFPC Trust
may enter into sub-custodian agreements with other banks or trust
companies to perform duties described in this sub-section (c) with
respect to domestic assets. Such bank or trust company shall have an
aggregate capital, surplus and undivided profits, according to its
last published report, of at least one million dollars ($1,000,000),
if it is a subsidiary or affiliate of PFPC Trust, or at least twenty
million dollars ($20,000,000) if such bank or trust company is not a
subsidiary or affiliate of PFPC Trust. In addition, such bank or trust
company must be qualified to act as custodian and agree to comply with
the relevant provisions of applicable rules and regulations. Any such
arrangement will not be entered into without prior written notice to
the Fund (or as otherwise provided in the 1940 Act).
In addition, PFPC Trust may enter into arrangements with
sub-custodians with respect to services regarding foreign assets. Any
such arrangement will be entered into with prior written notice to the
Fund (or as otherwise provided in the 1940 Act).
PFPC Trust shall remain responsible for the performance of all of its
duties as described in this Agreement and shall hold the Fund and each
Portfolio harmless from its own acts or omissions, under the standards
of care provided for herein, or the acts and omissions of any
sub-custodian chosen by PFPC Trust under the terms of this sub-section
(c).
(d) Transactions Requiring Instructions. Upon receipt of Oral Instructions or
Written Instructions and not otherwise, PFPC Trust, directly or through the
use of the Book-Entry System, shall:
(i) deliver any securities held for a Portfolio against the receipt of
payment for the sale of such securities;
(ii) execute and deliver to such persons as may be designated in such Oral
Instructions or Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the authority of a
Portfolio as owner of any securities may be exercised;
(iii) deliver any securities to the issuer thereof, or its agent, when such
securities are called, redeemed, retired or otherwise become payable
at the option of the holder; provided that, in any such case, the
cash or other
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consideration is to be delivered to PFPC Trust;
(iv) deliver any securities held for a Portfolio against receipt of other
securities or cash issued or paid in connection with the liquidation,
reorganization, refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise of any
conversion privilege;
(v) deliver any securities held for a Portfolio to any protective
committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, and receive
and hold under the terms of this Agreement such certificates of
deposit, interim receipts or other instruments or documents as may be
issued to it to evidence such delivery;
(vi) make such transfer or exchanges of the assets of the Portfolios and
take such other steps as shall be stated in said Oral Instructions or
Written Instructions to be for the purpose of effectuating a duly
authorized plan of liquidation, reorganization, merger, consolidation
or recapitalization of the Fund;
(vii) release securities belonging to a Portfolio to any bank or trust
company for the purpose of a pledge or hypothecation to secure any
loan incurred by the Fund on behalf of that Portfolio; provided,
however, that securities shall be released only upon payment to PFPC
Trust of the monies borrowed, except that in cases where additional
collateral is required to secure a borrowing already made subject to
proper prior authorization, further securities may be released for
that purpose; and repay such loan upon redelivery to it of the
securities pledged or hypothecated therefor and upon surrender of the
note or notes evidencing the loan;
(viii)release and deliver securities owned by a Portfolio in connection
with any repurchase agreement entered into on behalf of the Fund, but
only on receipt of payment therefor; and pay out moneys of the Fund
in connection with such repurchase agreements, but only upon the
delivery of the securities;
(ix) release and deliver or exchange securities owned by the Fund in
connection with any conversion of such securities, pursuant to their
terms, into other securities;
(x) release and deliver securities to a broker in connection with the
broker's custody of margin collateral relating to futures and options
transactions;
(xi) release and deliver securities owned by the Fund for the purpose of
redeeming in kind shares of the Fund upon delivery thereof to PFPC
Trust;
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and
(xii) release and deliver or exchange securities owned by the Fund for
other purposes.
PFPC Trust must also receive a certified resolution describing the
nature of the corporate purpose and the name and address of the
person(s) to whom delivery shall be made when such action is pursuant
to sub-paragraph d(xii).
(e) Use of Book-Entry System. PFPC Trust is authorized and instructed, on a
continuous basis, to deposit in the Book-Entry System all securities
belonging to the Portfolios eligible for deposit therein and to utilize the
Book-Entry System to the extent possible in connection with settlements of
purchases and sales of securities by the Portfolios, and deliveries and
returns of securities loaned, subject to repurchase agreements or used as
collateral in connection with borrowings. PFPC Trust shall continue to
perform such duties until it receives Written Instructions or Oral
Instructions authorizing contrary actions.
PFPC Trust shall administer the Book-Entry System as follows:
(i) With respect to securities of each Portfolio which are maintained in
the Book-Entry System, the records of PFPC Trust shall identify by
Book-Entry or otherwise those securities belonging to each Portfolio.
(ii) Assets of each Portfolio deposited in the Book-Entry System will at
all times be segregated from any assets and cash controlled by PFPC
Trust in other than a fiduciary or custodian capacity but may be
commingled with other assets held in such capacities.
PFPC Trust will provide the Fund with such reports on its own system
of internal control as the Fund may reasonably request from time to
time.
(f) Registration of Securities. All Securities held for a Portfolio which are
issued or issuable only in bearer form, except such securities held in the
Book-Entry System,
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shall be held by PFPC Trust in bearer form; all other securities held
for a Portfolio may be registered in the name of the Fund on behalf
of that Portfolio, PFPC Trust, the Book-Entry System, a
sub-custodian, or any duly appointed nominee of the Fund, PFPC Trust,
Book-Entry System or sub-custodian. The Fund reserves the right to
instruct PFPC Trust as to the method of registration and safekeeping
of the securities of the Fund. The Fund agrees to furnish to PFPC
Trust appropriate instruments to enable PFPC Trust to hold or deliver
in proper form for transfer, or to register in the name of its
nominee or in the name of the Book-Entry System or in the name of
another appropriate entity, any securities which it may hold for the
Accounts and which may from time to time be registered in the name of
the Fund on behalf of a Portfolio.
(g) Voting and Other Action. Neither PFPC Trust nor its nominee shall vote any
of the securities held pursuant to this Agreement by or for the account of
a Portfolio, except in accordance with Written Instructions. PFPC Trust,
directly or through the use of the Book-Entry System, shall execute in
blank and promptly deliver all notices, proxies and proxy soliciting
materials received by PFPC Trust as custodian of the Property to the
registered holder of such securities. If the registered holder is not the
Fund on behalf of a Portfolio, then Written Instructions or Oral
Instructions must designate the person who owns such securities.
(h) Transactions Not Requiring Instructions. In the absence of contrary Written
Instructions, PFPC Trust is authorized to take the following actions:
(i) Collection of Income and Other Payments.
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(A) collect and receive for the account of each Portfolio, all
income, dividends, distributions, coupons, option premiums,
other payments and similar items, included or to be included in
the Property, and, in addition, promptly advise each Portfolio
of such receipt and credit such income, as collected, to each
Portfolio's custodian account;
(B) endorse and deposit for collection, in the name of the Fund,
checks, drafts, or other orders for the payment of money;
(C) receive and hold for the account of each Portfolio all
securities received as a distribution on the Portfolio's
securities as a result of a stock dividend, share split-up or
reorganization, recapitalization, readjustment or other
rearrangement or distribution of rights or similar securities
issued with respect to any securities belonging to a Portfolio
and held by PFPC Trust hereunder;
(D) present for payment and collect the amount payable upon all
securities which may mature or be, on a mandatory basis, 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) PFPC Trust 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 in accordance with street delivery
custom;
(2) for the exchange of interim receipts or temporary
securities for definitive securities; and
(3) for transfer of securities into the name of the Fund on
behalf of a Portfolio or PFPC Trust or a sub-custodian or a
nominee of one of the foregoing, or for exchange of
securities for a different number of bonds, certificates,
or other evidence, representing the same aggregate face
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amount or number of units bearing the same interest rate,
maturity date and call provisions, if any; provided that,
in any such case, the new securities are to be delivered to
PFPC Trust.
(B) unless and until PFPC Trust receives Oral Instructions or
Written Instructions to the contrary, PFPC Trust shall:
(1) pay all income items held by it which call for payment upon
presentation and hold the cash received by it upon such
payment for the account of each Portfolio;
(2) collect interest and cash dividends received, with notice
to the Fund, to the account of each Portfolio;
(3) hold for the account of each Portfolio all stock dividends,
rights and similar securities issued with respect to any
securities held by PFPC Trust; and
(4) execute as agent on behalf of the Fund all necessary
ownership certificates required by the Internal Revenue
Code or the Income Tax Regulations of the United States
Treasury Department or under the laws of any state now or
hereafter in effect, inserting the Fund's name, on behalf
of a Portfolio, on such certificate as the owner of the
securities covered thereby, to the extent it may lawfully
do so.
(i) Segregated Accounts.
(i) PFPC Trust shall upon receipt of Written Instructions or Oral
Instructions establish and maintain segregated accounts on its
records for and on behalf of each Portfolio. Such accounts may
be used to transfer cash and securities, including securities in
the Book-Entry System:
(A) for the purposes of compliance by the Fund with the
procedures required by a securities or option exchange,
providing such procedures comply with the 1940 Act and any
releases of the SEC relating to the maintenance of
segregated accounts by registered investment companies; and
(B) upon receipt of Written Instructions, for other purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX custodian
accounts for such shareholders holding Shares through XXX
accounts, in accordance
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with the Fund's prospectuses, the Internal Revenue Code of 1986,
as amended (including regulations promulgated thereunder), and
with such other procedures as are mutually agreed upon from time
to time by and among the Fund, PFPC Trust and the Fund's
transfer agent.
(j) Purchases of Securities. PFPC Trust shall settle purchased securities
upon receipt of Oral Instructions or Written Instructions that
specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
(ii) the number of shares or the principal amount purchased and
accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker through whom
the purchase was made. PFPC Trust shall upon receipt of
securities purchased by or for a Portfolio pay out of the
moneys held for the account of the Portfolio the total amount
payable to the person from whom or the broker through whom
the purchase was made, provided that the same conforms to the
total amount payable as set forth in such Oral Instructions
or Written Instructions.
(k) Sales of Securities. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
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(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 involved.
PFPC Trust shall deliver the securities upon receipt of the total amount
payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set forth in the Oral Instructions or Written
Instructions. Notwithstanding the other provisions thereof, PFPC Trust may
accept payment in such form as shall be satisfactory to it, and may deliver
securities and arrange for payment in accordance with the customs
prevailing among dealers in securities.
(l) Reports; Proxy Materials.
(i) PFPC Trust shall furnish to the Fund the following reports:
(A) such periodic and special reports as the Fund may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of each portfolio, listing each
portfolio security belonging to each Portfolio with the
adjusted average cost of each issue and the market value at
the end of such month and stating the cash account of each
Portfolio including disbursements;
(C) the reports required to be furnished to the Fund pursuant
to Rule 17f-4 of the 1940 Act; and
(D) such other information as may be agreed upon from time to
time between the Fund and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or conversion or
similar communication received by it as custodian of the
Property. PFPC Trust shall be under no
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other obligation to inform the Fund as to such actions or
events. For clarification, upon termination of this Agreement
PFPC Trust shall have no responsibility to transmit such
material or to inform the Fund or any other person of such
actions or events.
(m) Crediting of Accounts. If PFPC Trust in its sole discretion credits
an Account with respect to (a) income, dividends, distributions,
coupons, option premiums, other payments or similar items on a
contractual payment date or otherwise in advance of PFPC Trust's
actual receipt of the amount due, (b) the proceeds of any sale or
other disposition of assets on the contractual settlement date or
otherwise in advance of PFPC Trust's actual receipt of the amount due
or (c) provisional crediting of any amounts due, and (i) PFPC Trust
is subsequently unable to collect full and final payment for the
amounts so credited within a reasonable time period using reasonable
efforts or (ii) pursuant to standard industry practice, law or
regulation PFPC Trust is required to repay to a third party such
amounts so credited, or if any Property has been incorrectly
credited, PFPC Trust shall have the absolute right in its sole
discretion without demand to reverse any such credit or payment, to
debit or deduct the amount of such credit or payment from the
Account, and to otherwise pursue recovery of any such amounts so
credited from the Fund. Nothing herein or otherwise shall require
PFPC Trust to make any advances or to credit any amounts until PFPC
Trust's actual receipt thereof. The Fund hereby grants a first
priority contractual possessory security interest in and a right of
setoff against the assets maintained in an Account hereunder in the
amount necessary to secure the return and payment to PFPC Trust of
any advance or
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credit made by PFPC Trust (including charges related thereto) to such
Account.
(n) Collections. All collections of monies or other property in respect,
or which are to become part, of the Property (but not the safekeeping
thereof upon receipt by PFPC Trust) shall be at the sole risk of the
Fund. If payment is not received by PFPC Trust within a reasonable
time after proper demands have been made, PFPC Trust shall notify the
Fund in writing, including copies of all demand letters, any written
responses and memoranda of all oral responses and shall await
instructions from the Fund. PFPC Trust shall not be obliged to take
legal action for collection unless and until reasonably indemnified
to its satisfaction. PFPC Trust shall also notify the Fund as soon as
reasonably practicable whenever income due on securities is not
collected in due course and shall provide the Fund with periodic
status reports of such income collected after a reasonable time.
16. DURATION AND TERMINATION. This Agreement shall continue until terminated by
the Fund or PFPC Trust on sixty (60) days' prior written notice to the
other party. In the event this Agreement is terminated (pending appointment
of a successor to PFPC Trust or vote of the shareholders of the Fund to
dissolve or to function without a custodian of its cash, securities or
other property), PFPC Trust shall not deliver cash, securities or other
property of the Portfolios to the Fund. It may deliver them to a bank or
trust company of PFPC Trust's choice, having an aggregate capital, surplus
and undivided profits, as shown by its last published report, of not less
than twenty million dollars ($20,000,000), as a custodian for the Fund to
be held under terms similar to those of this Agreement. PFPC Trust shall
not be required to make any delivery or payment of assets upon termination
until full payment shall have been made to PFPC Trust of all of its fees,
compensation,
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costs and expenses (such expenses include, without limitation, expenses
associated with movement (or duplication) of records and materials and
conversion thereof to a successor service provider, or to a bank or trust
company pending appointment of such successor, and all trailing expenses
incurred by PFPC Trust). PFPC Trust shall have a security interest in and
shall have a right of setoff against the Property as security for the
payment of such fees, compensation, costs and expenses.
17. CHANGE OF CONTROL. Notwithstanding any other provision of this Agreement,
in the event of an agreement to enter into a transaction that would result
in a Change of Control of the Fund's adviser or sponsor, the Fund's ability
to terminate the Agreement pursuant to Section 16 will be suspended from
the time of such agreement until two years after the Change of Control.
18. NOTICES. Notices shall be addressed (a) if to PFPC Trust at 0000 Xxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000,
Attention: Xxx Xxxxxxxx; (b) if to the Fund, at 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx; or (c) if to neither
of the foregoing, at such other address as shall have been given by like
notice to the sender of any such notice or other communication by the other
party. If notice is sent by confirming telegram, cable, telex or facsimile
sending device, it shall be deemed to have been given immediately. If
notice is sent by first-class mail, it shall be deemed to have been given
five days after it has been mailed. If notice is sent by messenger, it
shall be deemed to have been given on the day it is delivered.
19. 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
22
waiver is sought.
20. DELEGATION; ASSIGNMENT. PFPC Trust may assign its rights and delegate its
duties hereunder to any affiliate of PFPC Trust or of The PNC Financial
Services Group, Inc., provided that PFPC Trust gives the Fund 30 days'
prior written notice of such assignment or delegation.
21. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
23. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided
that the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) No Representations or Warranties. Except as expressly provided in
this Agreement, PFPC Trust hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other person,
including, without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose or
otherwise (irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to services
provided under this Agreement. PFPC Trust disclaims any warranty of
title or
23
non-infringement except as otherwise set forth in this Agreement.
(c) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Fund agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC Trust hereunder without the prior written
approval of PFPC Trust, which approval shall not be unreasonably
withheld or delayed.
(d) Captions. The captions in this Agreement are included for convenience
of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
(e) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law. PFPC Trust and the Fund hereby agree
to resolve any dispute arising out of this Agreement in accordance
with the rules of the American Arbitration Association.
(f) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(g) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(h) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall
24
constitute the valid and binding execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
By:
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Title:
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NEW ALTERNATIVES FUND, INC.
By:
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Title:
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