Form of agreement subject to completion
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of __________, 2006 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of
Delaware ("PFPC Trust"), and E*Trade Funds, a Delaware statutory business trust
(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");
WHEREAS, PFPC Trust represents that it is a bank having the qualifications
prescribed in the 1940 Act to act as custodian for management investment
companies registered under 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
as follows:1
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) "1940 Act" means the Investment Company Act of 1940, as amended.
(d) "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.
(e) "Book-Entry System" means the Federal Reserve Treasury book-entry
system for United States and federal agency securities, its
successor or successors, and its nominee or nominees and any
book-entry system registered with the SEC under the 1934 Act.
(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 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 and the 1940 Act.
(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
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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
(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" means (i) written instructions signed by an
Authorized Person and received by PFPC Trust or (ii) trade
instructions transmitted (and received by PFPC Trust) by means of
an electronic transaction reporting system access to which requires
use of a password or other authorized identifier. The instructions
may be delivered electronically or by hand, mail, tested telegram,
cable, telex or facsimile sending device; provided, however, that
if delivered by electronic mail, it must be sent to at least two
(2) of the parties listed in the Authorized E-mail Recipient List,
which PFPC Trust will make available to the Fund and Authorized
Persons.
2. Appointment. The Fund hereby appoints PFPC Trust to provide custodian
services to the Fund as set forth herein, on behalf of each of its
investment portfolios (each, a "Portfolio"), and PFPC Trust accepts such
appointment and agrees to furnish such services.
3. Compliance with Laws.
PFPC Trust undertakes to comply with all applicable requirements of the
Securities Laws and any applicable 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
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by the Fund 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 in good faith 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 this Agreement or of any
vote, resolution or proceeding of the Fund's Board of Trustees or
of the Fund's shareholders, unless and until PFPC Trust receives
Written Instructions to the contrary or unless PFPC has actual
knowledge 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 as promptly as practicable and in
any event by the close of business on the day after 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 so long as it acts in good faith, unless PFPC Trust
has actual knowledge to the contrary.
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5. 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
any Authorized Person.
(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 at its own cost 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);
provided, however, that such counsel and any related expense must
be approved in advance by the Fund.
(c) Conflicting Advice. In the event of a conflict between directions
or advice or Oral Instructions or Written Instructions PFPC Trust
receives from any Authorized Person, and the advice it receives
from counsel, if it involves an issue of compliance with law or
legal requirements, PFPC Trust may rely upon and follow the advice
of counsel, only after it has discussed the matter with the Fund
and the Fund's counsel and the conflict is not resolved. In the
event PFPC Trust so relies on the advice of counsel, PFPC Trust
remains liable for any action or omission on the part of PFPC Trust
which constitutes willful misfeasance, willful misconduct, bad
faith, negligence or reckless disregard by PFPC Trust of any
duties, obligations or responsibilities set forth in this Agreement.
(d) Protection of PFPC Trust. PFPC Trust shall be indemnified by the
Fund and without liability for any action PFPC Trust takes or does
not take in good faith and reliance upon directions or advice or
Oral Instructions or Written Instructions
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PFPC Trust receives from or on behalf of the Fund or from counsel
and which PFPC Trust reasonably 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 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
and the staff of any regulatory agency having authority over the Fund
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 Person, at the Fund's expense. Upon
reasonable notice by the Fund, PFPC Trust shall make available during
regular business hours its facilities and premises employed in connection
with the performance of this Agreement for reasonable visits by the Fund,
any agent or person designated by the Fund or any regulatory agency
having authority over the Fund.
Subject to applicable provisions of the 1940 Act and the Investment
Advisers Act of 1940, as amended (the "Advisers Act"), regarding the
location of Fund records (and/or the appropriate disclosure thereof),
PFPC Trust may house these records in a third-party
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storage facility and notwithstanding the use of such facility, shall
remain responsible for all such records as provided in this Agreement. In
addition, to the extent required by, and in the manner prescribed by and
in accordance with, the 1940 Act, the books and records of PFPC Trust
pertaining to its actions under the Agreement and reports by PFPC Trust
or its independent accountants concerning its accounting system,
procedures for safeguarding securities, and internal accounting controls
will be open to inspection and audit at reasonable times by officers,
employees or agents of the Fund or auditors employed by the Fund and will
be preserved by PFPC Trust.
7. Confidentiality.
(a) 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 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,
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know-how, and trade secrets, whether or not patentable or
copyrightable; and (d) anything designated as confidential.
Notwithstanding the foregoing, information shall not be
Confidential Information and shall not be subject to such
confidentiality obligations if: (a) it is already known to the
receiving party at the time it is obtained; (b) it is or becomes
publicly known or available through no wrongful act of the
receiving party; (c) it is rightfully received from a third party
who, to the best of the receiving party's knowledge, is not under a
duty of confidentiality; (d) it is released by the protected party
to a third party without restriction; (e) it is required to be
disclosed by the receiving party pursuant to a court order,
subpoena, governmental or regulatory agency request or law
(provided the receiving party will provide the other party written
notice of the same, to the extent such notice is permitted); (f) it
is relevant to the defense of any claim or cause of action asserted
against the receiving party; or (g) it has been or is independently
developed or obtained by the receiving party. The provisions of
this Section 7 shall survive termination of this Agreement for a
period of three (3) years after such termination.
(b) PFPC Trust agrees to keep confidential all records of the Fund and
information relating to the Fund or its shareholders, unless the
release of such records or information is otherwise consented to,
in writing, by the Fund. The Fund agrees that such consent shall
not be unreasonably withheld and may not be withheld when PFPC
Trust may be exposed to civil or criminal contempt proceedings or
when required to divulge such information or records to duly
constituted authorities.
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Notwithstanding any provision herein to the contrary, each party agrees
that any Nonpublic Personal Information as defined under Section 248.3(t)
of Regulation S-P ("Regulation S-P"), promulgated under the ▇▇▇▇▇-▇▇▇▇▇
▇▇▇▇▇▇ Act (the "Act"), disclosed or otherwise made accessible by a party
hereunder is for the specific purpose of permitting the other party to
perform its duties as set forth in this Agreement. Each party agrees
that, with respect to such information, it will comply with Regulation
S-P and the Act and that it will not disclose any Nonpublic Personal
Information received in connection with this Agreement to any other
party, except to the extent necessary to carry out the services set forth
in this Agreement or as otherwise permitted by Regulation S-P or the Act.
8. Property of the Fund. Information or material including client data owned
by the Fund shall remain the property of the Fund. In the event of
termination of this Agreement, information belonging to the Fund,
including client data owned by the Fund shall be returned by PFPC Trust,
as directed by the Fund. This information shall be in a form that can
reasonably be accessed by the Fund; however, nothing herein shall require
PFPC Trust to disclose any of its intellectual property to the Fund or to
any other service provider or third party.
9. Cooperation with Accountants. PFPC Trust shall cooperate with the Fund's
independent public accountants and shall take all reasonable actions in
the performance of its obligations under this Agreement to ensure that
the necessary information is made available to such accountants for the
expression of their opinion, as required by the Fund.
10. 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,
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derivative works, inventions, discoveries, patentable or copyrightable
matters, concepts, expertise, patents, copyrights, trade secrets, and
other related legal rights developed by and utilized by PFPC Trust in
connection with the services provided by PFPC Trust to the Fund. PFPC
Trust shall have no right, title or interest in any of the foregoing
(including, without limitation, any databases) or in any information
developed, owned or used by the Fund or its affiliates or furnished to
PFPC Trust by the Fund or its affiliates and all such rights, property
and information shall remain vested in the Fund and its affiliates. No
rights or licenses to any of the foregoing rights, property or
information are implied or granted under this Agreement.
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. The Fund shall have the
right to review any such agreement or arrangement. In the event of
equipment failures, PFPC Trust shall, at no additional expense to the
Fund or the Fund's investment adviser, make reasonable best efforts 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, willful misconduct, bad faith, negligence or
reckless disregard of its duties or obligations under this Agreement.
12. Compensation.
(a) 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
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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.
(b) The undersigned hereby represents and warrants to PFPC Trust that
(i) the terms of this Agreement, (ii) the fees and expenses
associated with this Agreement, and (iii) any benefits accruing to
PFPC Trust or to the adviser or sponsor to the Fund in connection
with this Agreement, including but not limited to any fee waivers,
conversion cost reimbursements, up front payments, signing payments
or periodic payments made or to be made by PFPC Trust to such
adviser or sponsor or any affiliate of the Fund relating to this
Agreement have been fully disclosed to the Board of Trustees of the
Fund and that, if required by applicable law, such Board of
Trustees has approved or will approve the terms of this Agreement,
any such fees and expenses, and any such benefits.
13. Indemnification.
(a) Subject to subsection (c) of this Section 13, the Fund, on behalf
of each Portfolio, 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 Fund. Neither PFPC Trust, nor any of its
affiliates, shall be indemnified against any liability (or any
expenses
11
incident to such liability) arising out of PFPC Trust's or its
affiliates' own willful misfeasance, willful misconduct, bad faith,
negligence or reckless disregard in the performance of PFPC Trust's
services under this Agreement.
(b) PFPC Trust agrees to indemnify and hold harmless the Fund and its
affiliates from any and all taxes, charges, assessments, claims and
liabilities arising out of PFPC Trust's or its affiliates' own
willful misfeasance, willful misconduct, bad faith, negligence or
reckless disregard in the performance of PFPC Trust's services
under this Agreement (including, without limitation, liabilities
arising under the Securities Laws, and any state and foreign
securities and blue sky laws, and amendments thereto) and expenses,
including (without limitation) reasonable attorneys' fees and
disbursements arising directly or indirectly out of PFPC Trust's or
its nominees' own willful misfeasance, bad faith, negligence or
reckless disregard of its duties and obligations under this
Agreement.
(c) The Trustees and shareholders of the Fund, or any Portfolio
thereof, shall not be liable for any obligations of the Fund, or
any such Portfolio, under this Agreement, and PFPC Trust agrees
that in asserting any rights or claims under this Agreement, it
shall look only to the assets and property of the particular
Portfolio in settlement of such rights or claims and not to such
members of the Board of Trustees or shareholders. PFPC Trust
further agrees that it will look only to the assets and property of
a particular Portfolio of the Fund, should the Fund have
established separate series, in asserting any rights or claims
under this Agreement with respect to services rendered with respect
to that Portfolio and will not seek to obtain settlement of such
rights or claims from assets of any other Portfolio of the
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Fund. Notwithstanding the foregoing, in asserting any rights or
claims under this Agreement, PFPC Trust shall not be prevented from
looking to the assets and property of the Fund sponsor or any other
appropriate party(ies) in settlement of such rights or claims.
(d) In order that the indemnification provisions contained in this
Section shall apply, upon the assertion of a claim for which any
party may be required to indemnify any other party, the party
seeking indemnification shall promptly notify the other party of
such assertion, and shall keep the other party advised with respect
to all developments concerning such claim. The party who may be
required to indemnify shall have the option to participate with the
party seeking indemnification in the defense of such claim. The
party seeking indemnification shall in no case confess any claim or
make any compromise in any case in which the other party may be
required to indemnify it except with the other party's prior
written consent.
(e) The provisions of this Section 13 shall survive termination of 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 and use its best efforts
in performing services provided for under this Agreement. PFPC
Trust shall be liable for any damages arising out of PFPC Trust's
failure to perform its duties
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under this Agreement to the extent such damages arise out of PFPC
Trust's willful misfeasance, willful misconduct, bad faith,
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 caused by any of the foregoing; provided that PFPC Trust has
acted in accordance with the standard of care set forth above and
has used reasonable efforts to minimize the impact of any of the
foregoing on its ability to fully perform its obligations
hereunder; 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 which PFPC Trust reasonably
believes to be genuine.
(c) No party may assert a cause of action against PFPC Trust or any of
its affiliates that allegedly occurred more than twelve (12) months
immediately prior to the filing of the suit (or, if applicable,
commencement of arbitration proceedings) alleging such cause of
action.
(d) Each party shall have a duty to mitigate damages for which the
other party may
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become responsible.
(e) The provisions of this Section 14 shall survive termination of this
Agreement.
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 any assets until actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon Written
Instructions, shall open and maintain a separate account for each
separate Portfolio of the Fund (each an "Account") and shall
maintain in the Account of a particular Portfolio all cash and
other assets received from or for the Fund specifically designated
to such Account.
PFPC Trust shall make cash payments from or for the Account 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;
(ii) purchase or redemption of Shares of the 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 15(h)(iii)(B) of this Agreement), 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
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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 or through a sub-custodian or depository. All such
securities shall be held or disposed of only upon Written
Instructions or otherwise pursuant to the terms of this
Agreement. PFPC Trust shall have no power or authority to
assign, hypothecate, pledge or otherwise dispose of any such
securities or investment, except upon the express terms of
this Agreement or upon Written Instructions authorizing the
transaction. In no case may any member of the Fund's Board of
Trustees, 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 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
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custodian and agree to comply with the relevant provisions of
applicable rules and regulations, including, but not limited
to, Securities Laws. Such bank or trust company must be
qualified to act as a custodian and if holding assets agree
to comply with the relevant provisions of applicable laws,
rules and regulations. In addition, if foreign assets are
held outside of the United States by an entity organized
outside of the United States, then such entity must qualify
as an "eligible foreign custodian" pursuant to Rule 17a-7
under the 1940 Act. 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 has entered into a Subcustodial
Services Agreement with Citibank, N.A. ("Citibank") dated
January 10, 1996 (the "Subcustodial Agreement") under which
Citibank has agreed to perform certain of PFPC Trust's duties
as described in this Agreement with respect to the Fund's
foreign assets. PFPC Trust may enter into other arrangements
with sub-custodians with respect to services regarding
foreign assets. Any such arrangement will not be entered into
without prior written notice to the Fund (or as otherwise
provided in the 1940 Act).
Sub-custodians utilized by PFPC Trust may be subsidiaries or
affiliates of PFPC Trust; provided that such entities satisfy
the requirements of this Section 15(c) and otherwise comply
with applicable laws, rules and regulations, including, but
not limited to, Securities Laws. Such entities will be
compensated for their services at such rates as are agreed
between the entity and PFPC Trust. 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 Portfolio 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 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
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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 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 by the
Fund on behalf of that Portfolio, but only on receipt of
payment therefor; and pay out monies 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
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redeeming in kind shares of the Fund upon delivery thereof to
PFPC Trust; 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 or Other Depository. PFPC Trust will
deposit in Book-Entry Systems and other depositories all securities
belonging to the Portfolios eligible for deposit therein and will
utilize Book-Entry Systems and other depositories 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. Notwithstanding
anything in this Agreement to the contrary, PFPC Trust's use of a
Book-Entry System shall comply with the requirements of Rule 17f-4
under the 1940 Act.
PFPC Trust shall administer a Book-Entry System or other depository as
follows:
(i) With respect to securities of each Portfolio which are
maintained in a Book-Entry System or another depository, the
records of PFPC Trust shall identify by book-entry or
otherwise those securities as belonging to each Portfolio.
(ii) Assets of each Portfolio 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.
19
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 maintained in the Book-Entry System or in another
depository, shall be held by PFPC Trust in bearer form; all other
securities maintained for a Portfolio may be registered in the name
of the Fund on behalf of that Portfolio, PFPC Trust, a Book-Entry
System, another depository, a sub-custodian, or any duly appointed
nominee of the Fund, PFPC Trust, Book-Entry System, depository 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 maintain 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 maintain for the
Accounts. With respect to uncertificated securities which are
registered in the name of the Fund or a Portfolio (or a nominee
thereof), PFPC Trust will reflect such securities on its records
based upon the holdings information provided to it by the issuer of
such securities, but notwithstanding anything in this Agreement to
the contrary PFPC Trust shall not be obligated to safekeep such
securities or to perform other duties with respect to such
securities other than to make payment for the purchase of such
securities upon receipt of Oral or Written Instructions, accept in
sale proceeds received by PFPC Trust upon
20
the sale of such securities of which PFPC Trust is informed
pursuant to Oral or Written Instructions, and accept in other
distributions received by PFPC Trust with respect to such
securities or reflect on its records any reinvested distributions
with respect to such securities of which it is informed by the
issuer of the securities.
(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 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 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. Notwithstanding anything
in this Agreement requiring instructions in order to take a
particular action, in the absence of a contrary Written
Instruction, PFPC Trust is authorized to take the following actions
without the need for instructions:
(i) Collection of Income and Other Payments.
(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 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;
21
(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 called, redeemed,
retired or otherwise become payable (on a mandatory
basis) 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 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) 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
22
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) subject to receipt of such documentation and
information as PFPC Trust may request, execute
as agent on behalf of the Fund 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 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.
(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 Portfolio. 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 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
23
(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 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 (or otherwise in
accordance with standard market practice) pay out of the
monies 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;
24
(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 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 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 assets and arrange for payment in
accordance with standard market practice.
(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 corresponding security identification number) held
at the end of such month and stating the cash balance
of each Portfolio at the end of such month.
(C) the reports required to be furnished to the Fund
pursuant to Rule 17f-4 of the 1940 Act;
(D) the written reports from Citibank notifying the Fund of
the placement of its foreign assets with an "Eligible
Foreign Custodian" and notifying the Fund of any
material change in the
25
arrangements with the "Eligible Foreign Custodian"; and
(E) 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 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. PFPC Trust may in its sole discretion credit
an Account with respect to income, dividends, distributions,
coupons, option premiums, other payments or similar items prior to
PFPC Trust's actual receipt thereof, and in addition PFPC Trust may
in its sole discretion credit or debit the assets in an Account on
a contractual settlement date with respect to any sale, exchange or
purchase applicable to the Account; provided that nothing herein or
otherwise shall require PFPC Trust to make any advances or to
credit any amounts until PFPC Trust's actual receipt thereof. If
PFPC Trust credits an Account with respect to (a) income,
dividends, distributions, coupons, option premiums, other payments
or similar items on a contractual payment date or otherwise in
advance of PFPC Trust's actual receipt of the amount due, (b) the
proceeds of any sale or other disposition of assets on the
contractual settlement date or otherwise in advance of PFPC Trust's
actual receipt of the amount due or (c) provisional
26
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.
(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.
(o) Excess Cash Sweep. PFPC Trust will, consistent with applicable law,
sweep any net excess cash balances daily into an investment vehicle
or other instrument designated in Written Instructions, so long as
the investment vehicle or instrument
27
is acceptable to PFPC Trust, subject to a fee, paid to PFPC Trust
for such service, to be agreed between the parties. Such investment
vehicle or instrument may be offered by an affiliate of PFPC Trust
or by a PFPC Trust client and PFPC Trust may receive compensation
therefrom.
(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.
16. Duration and Termination.
(a) This Agreement shall be effective on the date first written above
and shall continue for a period of three (3) years (the "Initial
Term"); provided, however, that the Fund may terminate the
Agreement prior to the conclusion of the Initial Term by providing
PFPC Trust not less than ninety (90) days' written notice of such
termination.
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal
Terms") each, unless the Fund or PFPC Trust provides written notice
to the other of its intent not to renew. Such notice must be
received not less than ninety (90) days' prior to the expiration of
the Initial Term or the then current Renewal Term.
(c) In the event the Fund gives notice of termination, all expenses
associated with movement of records and materials and conversion
thereof to a successor service
28
provider will be borne by the Fund and paid to PFPC Trust prior to
any such conversion.
(d) In the event PFPC gives notice of termination, the Fund will be
reimbursed for reasonable out of pocket costs and expenses related
directly to the Fund's conversion to another service provider.
(e) If for the thirty (30) days preceding the written notice referenced
below in this sentence a party hereto is guilty of a material
failure to perform its duties and obligations hereunder (a
"Defaulting Party") the other party (the "Non-Defaulting Party")
may give written notice thereof to the Defaulting Party, and if
such material failure shall not have been remedied within sixty
(60) days after such written notice is given, then the
Non-Defaulting Party may terminate this Agreement by giving a
written termination notice to the Defaulting Party. In all cases,
termination by the Non-Defaulting Party shall not constitute a
waiver by the Non-Defaulting Party of any other rights it might
have under this Agreement or otherwise against the Defaulting Party.
(f) Notwithstanding anything contained in this Agreement to the
contrary, if a merger, consolidation, adoption, acquisition, change
in control, re-structuring, re-organization or any other similar
action involving the Fund or any affiliate (as defined under the
▇▇▇▇ ▇▇▇) of the Fund results in the Fund's giving notice to PFPC
Trust terminating it as the provider of any of the services
hereunder or otherwise terminating this Agreement before the
expiration of the then-current Initial or Renewal Term ("Early
Termination"), PFPC Trust shall, if requested by the Fund, make a
good faith effort to facilitate a conversion to the Fund's
29
successor service provider, provided that PFPC Trust makes no
guarantee that it will be able to effect a conversion on the dates
requested by the Fund.
(g) 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
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, costs, expenses and other amounts owing to it
pursuant to this Section 16.
17. Notices. Notices shall be addressed (a) if to PFPC Trust at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇
▇▇▇▇▇▇▇▇ (or such other address as the Fund may inform PFPC Trust in
writing); (b) if to the Fund, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: President (or such other address as PFPC Trust may
inform the Fund in writing); 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, 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 (5) days after it has been mailed. If notice is sent
30
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, which has been mutually consented to by the
parties hereto.
19. Delegation; Assignment. Except as provided below, this Agreement may not
be assigned by either party without the written consent of the other
party. PFPC Trust may assign, at its own expense, this Agreement to any
affiliate (as defined in the ▇▇▇▇ ▇▇▇) of PFPC Trust or of The PNC
Financial Services Group, Inc., provided that (i) PFPC Trust gives the
Fund sixty (60) days' prior written notice of such assignment, (ii) the
assignee agrees to comply with the relevant provisions of the 1940 Act,
and (iii) PFPC Trust and such assignee promptly provide such information
as the Fund may reasonably request, and respond to such questions as the
Fund may reasonably ask, relative to the assignment (including, without
limitation, the capabilities of the assignee).
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,
31
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 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) Information. The Fund will provide such information and
documentation as PFPC Trust may reasonably request in connection
with services provided by PFPC Trust to the Fund.
(f) 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.
(g) 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
32
Agreement shall not be affected thereby.
(h) 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.
(i) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof
by such party.
(j) Customer Identification Program Notice. To help the U.S. government
fight the funding of terrorism and money laundering activities,
U.S. Federal law requires each financial institution to obtain,
verify, and record certain information that identifies each person
who initially opens an account with that financial institution on
or after October 1, 2003. Consistent with this requirement, PFPC
Trust may request (or may have already requested) the Fund's name,
address and taxpayer identification number or other
government-issued identification number, and, if such party is a
natural person, that party's date of birth. PFPC Trust may also ask
(and may have already asked) for additional identifying
information, and PFPC Trust may take steps (and may have already
taken steps) to verify the authenticity and accuracy of these data
elements.
22. Limitations of Liability of the Trustees and Shareholders. A copy of the
Certificate of Trust of the Fund is on file with the Secretary of State
of the State of Delaware, and notice is hereby given that this instrument
is executed on behalf of the Trustees of the Trust as Trustees, and not
individually, and that the obligations of this instrument are not binding
upon any of the Trustees or shareholders individually but are binding
only upon the assets and property of the Fund.
33
23. Insurance. PFPC Trust shall maintain insurance of the types and in the
amounts deemed by it to be appropriate. To the extent that policies of
insurance may provide for coverage of claims for liability or indemnity
by the parties set forth in this Agreement, the contracts of insurance
shall take precedence, and no provisions of this Agreement shall be
construed to relieve an insurer of any obligation to pay claims to PFPC
Trust or other insured party which would otherwise be a covered claim in
the absence of any provision of this Agreement.
34
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:
Title:
-----------------------------
E*TRADE FUNDS
By:
Title:
Business Approval:__________________________
Date:_______________________________________
Legal Approval:_____________________________
Date:_______________________________________
AML Approval:_______________________________
Date:_______________________________________
35