AMENDED AND RESTATED
CUSTODIAN SERVICES AGREEMENT
Constellation Funds (formerly, Alpha Select Trust), a Delaware business
trust (the "Trust") consisting of multiple separately managed series (each a
"Fund") and PFPC Trust Company, a limited purpose trust company incorporated
under the laws of Delaware ("PFPC Trust") are parties to a Custodian Services
Agreement between the Trust and PFPC Trust dated July 15, 2002, as amended (the
"Existing Agreement"). The Trust and PFPC Trust wish to amend and restate the
Existing Agreement in full as of July 22, 2004 as set forth in this Agreement.
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust 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 as follows:
1. Definitions. As Used in This Agreement:
(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 Trust and any
other person authorized by the Trust to give Oral or Written
Instructions on behalf of the Trust. 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 a Fund.
(l) "Property" means:
(i) any and all securities and other investment items
which the Trust may, on behalf of any Fund, 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 Trust on behalf of any 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 a 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
two 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 or facsimile sending device.
2. Appointment. The Trust hereby appoints PFPC Trust to provide custodian
services to the Trust, on behalf of each Fund listed on Appendix A
hereto (as the same may be amended by agreement of the Trust and PFPC
Trust), and PFPC Trust accepts such appointment and agrees to furnish
such services.
3. Compliance with Laws.
PFPC Trust shall 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 Trust or any other entity.
4. 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 Trust or of any
vote, resolution or proceeding of the Trust's Board of
Trustees or of the Trust's shareholders, unless and until PFPC
Trust receives Written Instructions to the contrary.
(c) The Trust 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
enforceability of the transactions authorized by the Oral
Instructions or PFPC Trust's ability to rely upon such Oral
Instructions.
5. Right to Receive Advice.
(a) Advice of the Trust. 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 Trust.
(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 Trust, the Trust'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 Trust, 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 indemnified by
the Trust and without liability for any action PFPC Trust
takes or does not take in reliance upon directions or advice
or Oral Instructions or Written Instructions PFPC Trust
receives from or on behalf of the Trust 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 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.
6. Records; Visits. The books and records pertaining to the Trust and any
Fund, which are in the possession or under the control of PFPC Trust,
shall be the property of the Trust. Such books and records shall be
prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Trust and
Authorized Persons shall have access to such books and records at all
times during PFPC Trust's normal business hours. Upon the request of
the Trust, PFPC Trust shall reasonably provide copies of any such books
and records to the Trust or to an authorized representative of the
Trust, at the Trust's expense.
7. 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 Trust 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
affords the Trust 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; (g) has been or is independently developed or obtained
by the receiving party; or (h) is required to be disclosed in
connection with the provision of services under this Agreement.
8. Cooperation with Accountants. PFPC Trust shall cooperate with the
Trust's independent public accountants and shall take all reasonable
action to make any requested information available to such accountants
as reasonably requested by the Trust (including information required to
be provided by PFPC Trust by law or regulation).
9. 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 Trust.
10. 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 Trust, 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.
11. Compensation. As compensation for custody services rendered by PFPC
Trust during the term of this Agreement, the Trust, on behalf of each
of the Funds, will pay to PFPC Trust a fee or fees as may be agreed to
in writing from time to time by the Trust and PFPC Trust. The Trust
acknowledges that PFPC Trust may receive float benefits in connection
with maintaining certain accounts required to provide services under
this Agreement.
12. Indemnification. The Trust, on behalf of each Fund, agrees to
indemnify, defend and hold harmless PFPC Trust and its affiliates,
including their respective officers, directors, agents and employees
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 Trust. Notwithstanding the previous
sentence, however, neither PFPC Trust nor any of its affiliates shall
be indemnified against any liability (or any expenses incident to such
liability) caused by PFPC Trust's or its affiliates' own willful
misfeasance, bad faith, gross negligence or reckless disregard in the
performance of PFPC Trust's activities under this Agreement. The
provisions of this Section 12 shall survive termination of this
Agreement.
13. Responsibility of PFPC Trust.
(a) PFPC Trust shall be under no duty to take any action hereunder
on behalf of the Trust or any Fund except as specifically set
forth herein or as may be specifically agreed to by PFPC Trust
and the Trust 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 to the Trust and the Funds 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, gross negligence
or reckless disregard of its duties under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary,
(i) PFPC Trust shall not be liable for losses, delays,
failure, errors, interruption or loss of data occurring
directly or indirectly by reason of circumstances beyond its
reasonable control, including without limitation acts of God;
action or inaction of civil or military authority; public
enemy; war; terrorism; riot; fire; flood; sabotage; epidemics;
labor disputes; civil commotion; interruption, loss or
malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature;
or non-performance by a third party; 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, authority or
lack thereof, or truthfulness or accuracy or lack thereof, of
any instruction, direction, notice, instrument or other
information sent or otherwise communicated to it by or on
behalf of the Trust which PFPC Trust reasonably believes to be
genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
(i) neither PFPC Trust nor its affiliates shall be liable for
any consequential, special or indirect losses or damages,
whether or not the likelihood of such losses or damages was
known by PFPC Trust or its affiliates and (ii) PFPC Trust's
cumulative liability to the Trust for all losses, claims,
suits, controversies, breaches or damages for any cause
whatsoever (including but not limited to those arising out of
or related to this Agreement) and regardless of the form of
action or legal theory shall not exceed the fees received by
PFPC Trust for services provided hereunder during the 18
months immediately prior to the date of such loss or damage.
(d) The Trust may not assert a cause of action against PFPC Trust
or any of its affiliates that allegedly occurred more than 12
months immediately prior to the filing of the suit (or, if
applicable, commencement of arbitration proceedings) alleging
such cause of action.
(e) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(f) Notwithstanding anything in this Agreement to the contrary
(other than as specifically provided in Section
14(h)(ii)(B)(4) and Section 14(h)(iii)(A) of this Agreement),
the Trust shall be responsible for all filings, tax returns
and reports on any transactions undertaken pursuant to this
Agreement, or in respect of the Property or any collections
undertaken pursuant to this Agreement, which may be requested
by any relevant authority. In addition, the Trust shall be
responsible for the payment of all taxes and similar items
(including without limitation penalties and interest related
thereto).
(g) The provisions of this Section 13 shall survive termination of
this Agreement.
14. Description of Services.
(a) Delivery of the Property. The Trust will deliver or arrange
for delivery to PFPC Trust, all the Property owned by the
Funds, 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 a separate custodial account
for each separate Fund (each an "Account") and shall maintain
in the Account relating to a particular Fund all cash received
from or for the account of that Fund. PFPC Trust shall make
cash payments from or for the Account of a Fund only for:
(i) purchases of securities in the name of a Fund, 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;
(ii) purchase or redemption of Shares of a Fund delivered
to PFPC Trust;
(iii) payment of, subject to Written Instructions,
interest, taxes (provided that tax which PFPC Trust
considers is required to be deducted or withheld "at
source" will be governed by Section 14(h)(iii)(B) of
this Agreement), administration, accounting,
distribution, advisory and management fees which are
to be borne by a Fund;
(iv) payment to, subject to receipt of Written
Instructions, the Trust'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 Trust'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 Trust, PFPC Trust and the Trust'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 a 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 or through a
sub-custodian or depository. All such securities
shall be held or disposed of only upon Written
Instructions of the Trust or otherwise pursuant to
the terms of this Agreement. PFPC Trust shall have no
power or authority to assign, hypothecate, pledge or
otherwise dispose of any such securities or
investment, except upon the express terms of this
Agreement or upon Written Instructions authorizing
the transaction. In no case may any member of the
Trust's Board of Trustees, or any officer, employee
or agent of the Trust 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 Trust (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
Trust (or as otherwise provided in the 1940 Act).
PFPC Trust shall remain responsible for the acts and
omissions of any sub-custodian chosen by PFPC Trust
under the terms of this sub-section (c) to the same
extent that PFPC Trust is responsible for its own
acts and omissions under this Agreement.
(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC
Trust shall:
(i) deliver any securities held for a Fund against the
receipt of payment for the sale of such securities or
otherwise in accordance with standard market
practice;
(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 Fund
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 consideration is to be delivered to PFPC
Trust;
(iv) deliver any securities held for a 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 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 the
Funds 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 Trust;
(vii) release securities belonging to a Fund to any bank or
trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the
Trust on behalf of that Fund; 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 Fund 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 a
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 a Fund for
the purpose of redeeming in kind shares of the Fund
upon delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by a
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 or Other Depository. PFPC Trust is
authorized and instructed, on a continuous basis, to deposit
in Book-Entry Systems and other depositories all securities
belonging to the Funds eligible for deposit therein and to
utilize Book-Entry Systems and other depositories to the
extent possible in connection with settlements of purchases
and sales of securities by the Funds, 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 a Book-Entry System or other depository
as follows:
(i) With respect to securities of each Fund which are
maintained in a Book-Entry System or other
depository, the records of PFPC Trust shall identify
by book-entry or otherwise those securities belonging
to each Fund.
(ii) Assets of each Fund deposited in a Book-Entry System
or another depository will (to the extent consistent
with applicable law and standard practice) 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 Trust with such reports on its own
system of internal control as the Trust may reasonably request
from time to time.
(f) Registration of Securities. All securities held for a Fund
which are issued or issuable only in bearer form, except such
securities held in a Book-Entry System or in another
depository, shall be held by PFPC Trust in bearer form; all
other securities held for a Fund may be registered in the name
of the Trust on behalf of that Fund, PFPC Trust, a Book-Entry
System, another depository, a sub-custodian, or any duly
appointed nominee of the Trust, PFPC Trust, Book-Entry System,
depository or sub-custodian. The Trust reserves the right to
instruct PFPC Trust as to the method of registration and
safekeeping of the securities of the Funds. The Trust 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.
(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 Fund, except in
accordance with Written Instructions. PFPC Trust, directly or
through the use of another entity, 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 Trust on behalf of a Fund, 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.
(A) collect and receive for the account of each
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 each Fund of such receipt and credit
such income to each Fund's custodian
account;
(B) endorse and deposit for collection, in the
name of the Trust, checks, drafts, or other
orders for the payment of money;
(C) receive and hold for the account of each
Fund all securities received as a
distribution on the Fund'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 Fund 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
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 the Trust on behalf of a
Fund 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 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 Fund;
(2) collect interest and cash dividends
received, with notice to the Trust,
to the account of each Fund;
(3) hold for the account of each Fund
all stock dividends, rights and
similar securities issued with
respect to any securities held by
PFPC Trust; and
(4) subject to receipt of such
documentation and information as
PFPC Trust may request, execute as
agent on behalf of the Trust all
necessary ownership certificates
required by a national governmental
taxing authority or under the laws
of any U.S. state now or hereafter
in effect, inserting the Trust's
name, on behalf of a Fund, on such
certificate as the owner of the
securities covered thereby, to the
extent it may lawfully do so.
(iii) Other Matters.
(A) subject to receipt of such documentation and
information as PFPC Trust may request, PFPC
Trust will, in such jurisdictions as PFPC
Trust may agree from time to time, seek to
reclaim or obtain a reduction with respect
to any withholdings or other taxes relating
to assets maintained hereunder (provided
that PFPC Trust will not be liable for
failure to obtain any particular relief in a
particular jurisdiction); and
(B) PFPC Trust is authorized to deduct or
withhold any sum in respect of tax which
PFPC Trust considers is required to be
deducted or withheld "at source" by any
relevant law or practice.
(i) Segregated Accounts.
(i) PFPC Trust shall upon receipt of Written Instructions
or Oral Instructions establish and maintain
segregated accounts on its records for and on behalf
of each Fund. Such accounts may be used to transfer
cash and securities, including securities in a
Book-Entry System or other depository:
(A) for the purposes of compliance by the Trust
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 ▇▇▇
custodian accounts for such shareholders holding
Shares through ▇▇▇ accounts, in accordance with the
Trust'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 Trust, PFPC Trust and the Trust'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 Fund 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 Fund
(or otherwise in accordance with standard market
practice) pay out of the moneys held for the account
of the Fund 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;
(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 Fund involved.
PFPC Trust 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 Instructions or
Written Instructions. Notwithstanding anything to the contrary in this
Agreement, PFPC Trust may accept payment in such form as is consistent
with standard industry practice, 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 Trust the following
reports:
(A) such periodic and special reports as the
Trust may reasonably request;
(B) a monthly statement summarizing all
transactions and entries for the account of
each Fund, listing each portfolio security
belonging to each Fund (with the
corresponding security identification
number) held at the end of such month and
stating the cash balance of each Fund at the
end of such month;
(C) the reports required to be furnished to the
Trust 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 Trust and PFPC
Trust.
(ii) PFPC Trust shall transmit promptly to the Trust 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 other obligation to inform the Trust 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 Trust 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 Trust.
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 Trust 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 or any sub-custodian of any advance or
credit made by PFPC Trust or any sub-custodian (including
charges related thereto) to such Account. PFPC Trust may
assign any of its rights under this sub-section (m) to any
sub-custodian designated by PFPC Trust to the Trust.
(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 Trust. If payment is not received by
PFPC Trust within a reasonable time after proper demands have
been made, PFPC Trust shall notify the Trust in writing,
including copies of all demand letters, any written responses
and memoranda of all oral responses and shall await
instructions from the Trust. 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 Trust as soon as reasonably practicable
whenever income due on securities is not collected in due
course and shall provide the Trust with periodic status
reports of such income collected after a reasonable time.
(o) Transactions in connection with Security Loans.
Notwithstanding anything in this Agreement to the contrary,
(i) PFPC Trust shall not be considered to be the custodian of
nor shall PFPC Trust have any liability or responsibility with
respect to any securities lending collateral after completion
of the release and delivery of such securities lending
collateral in accordance with the terms of any agreement
relating to the Trust's securities lending arrangements to
which the Trust and PFPC Trust are parties; (ii) PFPC Trust is
authorized to release and deliver assets pursuant to the terms
of any agreement relating to the Trust's securities lending
arrangements to which the Trust and PFPC Trust are parties;
(iii) unless otherwise specifically required in an agreement
relating to the Trust's securities lending arrangements to
which the Trust and PFPC Trust are parties, deliveries and
receipts of assets in connection with the Trust's securities
lending arrangements may be made on a free delivery or free
receipt basis; and (iv) unless otherwise specifically required
in an agreement relating to the Trust's securities lending
arrangements to which the Trust and PFPC Trust are parties,
release and delivery of assets in connection with the Trust's
securities lending arrangements may be made upon request or
instruction of the securities borrower and shall not require
instruction or approval (including without limitation Oral or
Written Instructions) from the Trust (for clarity, voluntary
corporate action processing shall continue to require
instructions from the Trust pursuant to the other provisions
of this Agreement).
(p) Foreign Exchange. PFPC Trust and/or sub-custodians may enter
into or arrange foreign exchange transactions (at such rates
as they may consider appropriate) in order to facilitate
transactions under this Agreement, and such entities and/or
their affiliates may receive compensation in connection with
such foreign exchange transactions.
15. Duration and Termination. This Agreement shall continue until
terminated by the Trust 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 Trust 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 Funds to the
Trust. 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 Trust 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, 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.
16. 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 or has resulted in a Change of Control of the
Trust's adviser or sponsor (including without limitation the Change of
Control relating to Constellation Investment Management becoming the
Trust's Adviser), the Trust's ability to terminate the Agreement
pursuant to Section 15 will be suspended from the time of such
agreement until eighteen months after the Change of Control.
17. Notices. Notices shall be addressed (a) if to PFPC Trust at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇; (b) if to the Trust, at Constellation
Investment Management Co., LP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: President; 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 electronic delivery, hand 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.
18. 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.
19. 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
Trust 30 days' prior written notice of such assignment or delegation.
20. 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.
21. 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 Trust 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 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 Trust 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.
(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 constitute the valid and binding
execution hereof by such party.
(i) Information. The Trust will provide such information and
documentation as PFPC Trust may reasonably request in
connection with services provided by PFPC Trust to the Trust.
(j) The Amendment dated as of July 15, 2002 relating to the
Existing Agreement, a copy of which is attached hereto, is
hereby made a part of this Agreement.
(k) The Amendment set forth in the letter dated March 21, 2003
relating to the Existing Agreement, a copy of which is
attached hereto, is hereby made a part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of July 22, 2004.
PFPC TRUST COMPANY
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇ III
----------------------------
Title: Vice President
CONSTELLATION FUNDS
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: President
EXHIBIT A
List of Constellation Funds
Constellation TIP Healthcare & Biotechnology Fund
Constellation Chartwell Short Duration Fixed Income Fund
Constellation Small Cap Value Opportunities Fund
Constellation Clover Small Cap Value Fund
Constellation Clover Core Value Fund
Constellation Clover Core Fixed Income Fund
Constellation Chartwell Ultra Short Duration Fixed Income Fund
Constellation Strategic Value and High Income Fund
Constellation Pitcairn Diversified Value Fund
Constellation Pitcairn Diversified Growth Fund
Constellation Pitcairn Select Value Fund
Constellation Sands Capital Select Growth Fund
Constellation Pitcairn Small Cap Fund
Constellation Pitcairn Family Heritage(R) Fund
Constellation Pitcairn Taxable Bond Fund
Constellation Pitcairn Tax-Exempt Bond Fund
Constellation International Equity Fund
Constellation HLAM Large Cap Quality Stock Fund
Constellation TIP Mid Cap Fund