Exhibit 23(g)(i)
CUSTODIAN SERVICES AGREEMENT
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THIS AGREEMENT is made as of April 2, 2001 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and OLD DOMINION INVESTORS TRUST, INC., a corporation
incorporated under the laws of the Commonwealth of Virginia (the "Fund").
WITNESSETH:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Fund wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Definitions. As Used in This Agreement:
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(a) "1933 Act" means the Securities Act of 1933, as amended.
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(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
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(c) "Authorized Person" means any officer of the Fund and any other person
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authorized by the Fund to give Oral or Written Instructions on behalf
of the Fund. An Authorized Person's scope of authority may be limited
by setting forth such limitation in a written document signed by both
parties hereto.
(d) "Book-Entry System" means Federal Reserve Treasury book-entry system
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for United States and federal agency securities, its successor or successors,
and its nominee or
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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.
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(f) "Change of Control" means a change in ownership or control (not
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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
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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
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PFPC Trust Company.
(i) "SEC" means the Securities and Exchange Commission.
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(j) "Securities Laws" mean the 1933 Act, the 1934 Act, the 1940 Act and
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the CEA.
(k) "Shares" mean the shares of beneficial interest of any series or class
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of the Fund.
(l) "Property" means:
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(i) any and all securities and other investment items which the Fund
may from time to time deposit, or cause to be deposited, with
PFPC Trust or which PFPC Trust may from time to time hold for
the Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or investment
items; and
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(iv) all proceeds of the sale of securities issued by the Fund, which
are received by PFPC Trust from time to time, from or on behalf
of the Fund.
(m) "Written Instructions" mean (i) written instructions signed by two
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Authorized Persons and received by PFPC Trust or (ii) trade
instructions transmitted by means of an electronic transaction
reporting system which requires the use of a password or other
authorized identifier in order to gain access. The instructions may be
delivered electronically or by hand, mail, tested telegram, cable,
telex or facsimile sending device.
2. Appointment. The Fund hereby appoints PFPC Trust to provide custodian
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services to the Fund, on behalf of each of its investment portfolios (each,
a "Portfolio"), and PFPC Trust accepts such appointment and agrees to
furnish such services.
3. Delivery of Documents. The Fund has provided or, where applicable, will
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provide PFPC Trust with the following:
(a) at PFPC Trust's request, certified or authenticated copies of the
resolutions of the Fund's Board of Directors, approving the
appointment of PFPC Trust or its affiliates to provide services;
(b) a copy of the Fund's most recent effective registration statement;
(c) a copy of each Portfolio's advisory agreements;
(d) a copy of the distribution/underwriting agreement with respect to each
class of Shares;
(e) a copy of each Portfolio's administration agreement;
(f) copies of any distribution and/or shareholder servicing plans and
agreements made in respect of the Fund or a Portfolio; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
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4. Compliance with Laws. PFPC Trust undertakes to comply with material
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applicable requirements of the Securities Laws and material laws, rules and
regulations of governmental authorities having jurisdiction with respect to the
duties to be performed by PFPC Trust hereunder. Except as specifically set forth
herein, PFPC Trust assumes no responsibility for such compliance by the Fund or
any other entity.
5. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act only
upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives from an Authorized Person (or from a
person reasonably believed by PFPC Trust to be an Authorized Person)
pursuant to this Agreement. PFPC Trust may assume that any Oral
Instructions or Written Instructions received hereunder are not in any
way inconsistent with the provisions of organizational documents of
the Fund or of any vote, resolution or proceeding of the Fund's Board
of Directors or of the Fund's shareholders, unless and until PFPC
Trust receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions are
given by PFPC Trust or its affiliates) so that PFPC Trust receives the
Written Instructions by the close of business on the same day that
such Oral Instructions are received. The fact that such confirming
Written Instructions are not received by PFPC Trust or differ from the
Oral Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral Instructions
or PFPC
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Trust's ability to rely upon such Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear to have been
received from an Authorized Person, PFPC Trust shall incur no
liability to the Fund in acting upon such Oral Instructions or Written
Instructions provided that PFPC Trust's actions comply with the other
provisions of this Agreement.
6. Right to Receive Advice.
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(a) Advice of the Fund. If PFPC Trust is in doubt as to any action it
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should or should not take, PFPC Trust may request directions or
advice, including Oral Instructions or Written Instructions, from the
Fund.
(b) Advice of Counsel. If PFPC Trust shall be in doubt as to any question
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of law pertaining to any action it should or should not take, PFPC
Trust may request advice from counsel of its own choosing (who may be
counsel for the Fund, the Fund's investment adviser or PFPC Trust, at
the option of PFPC Trust).
(c) Conflicting Advice. In the event of a conflict between directions or
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advice or Oral Instructions or Written Instructions PFPC Trust
receives from the Fund, and the advice it receives from counsel, PFPC
Trust shall be entitled to rely upon and follow the advice of counsel.
(d) Protection of PFPC Trust. PFPC Trust shall be protected in any action
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it takes or does not take in reliance upon directions or advice or
Oral Instructions or Written Instructions it receives from the Fund or
from counsel and which PFPC Trust believes, in good faith, to be
consistent with those directions or advice or Oral Instructions or
Written Instructions. Nothing in this section shall be construed so as
to impose an obligation upon PFPC Trust (i) to seek such directions or
advice
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or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of PFPC Trust's properly
taking or not taking such action.
7. Records; Visits. The books and records pertaining to the Fund and any
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Portfolio, which are in the possession or under the control of PFPC Trust,
shall be the property of the Fund. Such books and records shall be prepared
and maintained as required by the 1940 Act and other applicable securities
laws, rules and regulations. The Fund and Authorized Persons shall have
access to such books and records at all times during PFPC Trust's normal
business hours. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by PFPC Trust to the Fund or to an
authorized representative of the Fund, at the Fund's expense.
8. Confidentiality. Each party shall keep confidential any information
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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
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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 parry who, to the best of the receiving party's
knowledge, is not under a duty of confidentiality; (d) is released by the
protected party to a third party without restriction; (e) is required to be
disclosed by the receiving party pursuant to a requirement of a court
order, subpoena, governmental or regulatory agency or law (provided the
receiving party will provide the other party written notice of such
requirement, to the extent such notice is permitted); (f) is relevant to
the defense of any claim or cause of action asserted against the receiving
party; or (g) has been or is independently developed or obtained by the
receiving party.
9. Cooperation with Accountants. PFPC Trust shall cooperate with the Fund's
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independent public accountants and shall take all reasonable action to make
any requested information available to such accountants as reasonably
requested by the Fund.
10. PFPC System. PFPC Trust shall retain title to and ownership of any and all
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data bases, computer programs, screen formats, report formats, interactive
design techniques, derivative works, inventions, discoveries, patentable or
copyrightable matters, concepts, expertise, patents, copyrights, trade
secrets, and other related legal rights utilized by PFPC Trust in
connection with the services provided by PFPC Trust to the Fund.
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11. Disaster Recovery. PFPC Trust shall enter into and shall maintain in
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effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. In the event of equipment
failures, PFPC Trust shall, at no additional expense to the Fund, take
reasonable steps to minimize service interruptions. PFPC Trust shall have
no liability with respect to the loss of data or service interruptions
caused by equipment failure provided such loss or interruption is not
caused by PFPC Trust's own willful misfeasance, bad faith, gross negligence
or reckless disregard of its duties or obligations under this Agreement.
12. Compensation. As compensation for custody services rendered by PFPC. Trust
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during the term of this Agreement, the Fund, on behalf of each of the
Portfolios, will pay to PFPC Trust a fee or fees as may be agreed to in
writing from time to time by the Fund and PFPC Trust. The Fund acknowledges
that PFPC Trust may receive float benefits in connection with maintaining
certain accounts required to provide services under this Agreement.
13. Indemnification. The Fund, on behalf of each Portfolio, agrees to
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indemnify and hold harmless PFPC Trust and its affiliates from all taxes,
charges, expenses, assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities arising under
the Securities Laws and any state and foreign securities and blue sky laws)
arising directly or indirectly from any action or omission to act which
PFPC Trust takes in connection with the provision of services to the Fund.
Neither PFPC Trust, nor any of its affiliates, shall be indemnified against
any liability (or any expenses incident to such liability) caused by PFPC
Trust's or its affiliates' own willful
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misfeasance, bad faith, gross negligence or reckless disregard of its
duties and obligations under this Agreement.
14. Responsibility of PFPC Trust.
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(a) PFPC Trust shall be under no duty to take any action hereunder on
behalf of the Fund or any Portfolio except as specifically set forth
herein or as may be specifically agreed to by PFPC Trust and the Fund
in a written amendment hereto. PFPC Trust shall be obligated to
exercise care and diligence in the performance of its duties hereunder
and to act in good faith in performing services provided for under
this Agreement. PFPC Trust shall be liable only for any damages
arising out of PFPC Trust's failure to perform its duties under this
Agreement to the extent such damages arise out of PFPC Trust's willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties under this Agreement.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PFPC Trust shall not be liable for
losses beyond its control, including without limitation (subject to
Section 11), delays or errors or loss of data occurring by reason of
circumstances beyond PFPC Trust's control, provided that PFPC Trust
has acted in accordance with the standard set forth in Section 14(a)
above; and (ii) PFPC Trust shall not be under any duty or obligation
to inquire into and shall not be liable for the validity or invalidity
or authority or lack thereof of any Oral Instruction or Written
Instruction, notice or other instrument which PFPC Trust reasonably
believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, (i)
neither PFPC Trust nor its affiliates shall be liable for any
consequential, special or indirect losses or
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damages, whether or not the likelihood of such losses or damages was
known by PFPC Trust or its affiliates and (ii) PFPC Trust's cumulative
liability to the Fund 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
lesser of $100,000 or the fees received by PFPC Trust for services
provided hereunder during the 12 months immediately prior to the date
of such loss or damage.
(d) No party may 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.
15. Description of Services.
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(a) Delivery of the Property. The Fund will deliver or arrange for
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delivery to PFPC Trust, all the Property owned by the Portfolios,
including cash received as a result of the distribution of Shares,
during the term of this Agreement. PFPC Trust will not be responsible
for such property until actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon Written
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Instructions, shall open and maintain separate accounts in the Fund's
name using all cash received from or for the account of the Fund,
subject to the terms of this Agreement. In addition, upon Written
Instructions, PFPC Trust shall open
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separate custodial accounts for each separate Portfolio of the Fund
(collectively, the "Accounts") and shall hold in the Accounts all cash
received from or for the Accounts of the Fund specifically designated
to each separate Portfolio. PFPC Trust shall make cash payments from
or for the Accounts of a Portfolio only for:
(i) purchases of securities in the name of a Portfolio, PFPC Trust,
PFPC Trust's nominee or a sub-custodian or nominee thereof as
provided in sub-section (j) and for which PFPC Trust has
received a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(ii) purchase or redemption of Shares of the Fund delivered to PFPC
Trust;
(iii) payment of, subject to Written Instructions, interest, taxes,
administration, accounting, distribution, advisory and
management fees which are to be borne by a Portfolio;
(iv) payment to, subject to receipt of Written Instructions, the
Fund's transfer agent, as agent for the shareholders, of an
amount equal to the amount of dividends and distributions
stated in the Written Instructions to be distributed in cash by
the transfer agent to shareholders, or, in lieu of paying the
Fund's transfer agent, PFPC Trust may arrange for the direct
payment of cash dividends and distributions to shareholders in
accordance with procedures mutually agreed upon from time to
time by and among the Fund, PFPC Trust and the Fund's transfer
agent.
(v) payments, upon receipt of Written Instructions, in connection
with the conversion, exchange or surrender of securities owned
or subscribed to by the Fund and held by or delivered to PFPC
Trust;
(vi) payments of the amounts of dividends received with respect to
securities sold short;
(vii) payments to PFPC Trust for its services hereunder;
(viii) payments to a sub-custodian pursuant to provisions in sub-
section (c) of this Section; and
(ix) other payments, upon Written Instructions.
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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.
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(i) PFPC Trust shall hold all securities received by it for the Accounts
in a separate account that physically segregates such securities from
those of any other persons, firms or corporations, except for
securities held in a Book-Entry System. All such securities shall be
held or disposed of only upon Written Instructions of the Fund
pursuant to the terms of this Agreement. PFPC Trust shall have no
power or authority to assign, hypothecate, pledge or otherwise dispose
of any such securities or investment, except upon the express terms of
this Agreement or upon Written Instructions authorizing the
transaction. In no case may any member of the Fund's Board of
Directors, or any officer, employee or agent of the Fund withdraw any
securities.
At PFPC Trust's own expense and for its own convenience, PFPC Trust
may enter into sub-custodian agreements with other banks or trust
companies to perform duties described in this sub-section (c) with
respect to domestic assets. Such bank or trust company shall have an
aggregate capital, surplus and undivided profits, according to its
last published report, of at least one million dollars ($1,000,000),
if it is a subsidiary or affiliate of PFPC Trust, or at least twenty
million dollars ($20,000,000) if such bank or trust company is not a
subsidiary or affiliate of PFPC Trust. In addition, such bank or trust
company must be qualified to act as custodian and agree to comply with
the relevant provisions of applicable rules and regulations. Any such
arrangement will not be entered into without prior written notice to
the Fund (or as otherwise provided in the 1940 Act).
In addition, PFPC Trust may enter into arrangements with sub-
custodians with respect to services regarding foreign assets. Any such
arrangement will be entered into with prior written notice to the Fund
(or as otherwise provided in the 1940 Act).
PFPC Trust shall remain responsible for the performance of all of its
duties as described in this Agreement and shall hold the Fund and each
Portfolio harmless from its own acts or omissions, under the standards
of care provided for herein, or the acts and omissions of any sub-
custodian chosen by PFPC Trust under the terms of this sub-section
(c).
(d) Transactions Requiring Instructions. Upon receipt of Oral Instructions or
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Written Instructions and not otherwise, PFPC Trust, directly or through the
use of the Book-Entry System, shall:
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(i) deliver any securities held for a Portfolio against the receipt of
payment for the sale of such securities;
(ii) execute and deliver to such persons as may be designated in such
Oral Instructions or Written Instructions, proxies, consents,
authorizations, and any other instruments whereby the authority of
a Portfolio as owner of any securities may be exercised;
(iii) deliver any securities to the issuer thereof, or its agent, when
such securities are called, redeemed, retired or otherwise become
payable at the option of the holder; provided that, in any such
case, the cash or other consideration is to be delivered to PFPC
Trust;
(iv) deliver any securities held for a Portfolio against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer, merger,
consolidation or recapitalization of any corporation, or the
exercise of any conversion privilege;
(v) deliver any securities held for a Portfolio to any protective
committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation,
recapitalization or sale of assets of any corporation, and receive
and hold under the terms of this Agreement such certificates of
deposit, interim receipts or other instruments or documents as may
be issued to it to evidence such delivery;
(vi) make such transfer or exchanges of the assets of the Portfolios
and take such other steps as shall be stated in said Oral
Instructions or Written Instructions to be for the purpose of
effectuating a duly authorized plan of liquidation,
reorganization, merger, consolidation or recapitalization of the
Fund;
(vii) release securities belonging to a Portfolio to any bank or trust
company for the purpose of a pledge or hypothecation to secure any
loan incurred by the Fund on behalf of that Portfolio; provided,
however, that securities shall be released only upon payment to
PFPC Trust of the monies borrowed, except that in cases where
additional collateral is required to secure a borrowing already
made subject to proper prior authorization, further securities may
be released for that purpose; and repay such loan upon redelivery
to it of the securities pledged or hypothecated therefor and upon
surrender of the note or notes evidencing the loan;
(viii) release and deliver securities owned by a Portfolio in connection
with any repurchase agreement entered into on behalf of the Fund,
but only on receipt of payment therefor; and pay out moneys of the
Fund in connection with such repurchase agreements, but only upon
the delivery of the securities;
(viii) 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;
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(ix) release and deliver securities to a broker in connection with the
broker's custody of margin collateral relating to futures and
options transactions;
(x) release and deliver securities owned by the Fund for the purpose of
redeeming in kind shares of the Fund upon delivery thereof to PFPC
Trust, and
(xii) release and deliver or exchange securities owned by the Fund for
other purposes. PFPC Trust must also receive a certified resolution
describing the nature of the corporate purpose and the name and
address of the person(s) to whom delivery shall be made when such
action is pursuant to sub-paragraph d(xii).
(e) Use of Book-Entry System. PFPC Trust is authorized and instructed, on a
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continuous basis, to deposit in the Book-Entry System all securities
belonging to the Portfolios eligible for deposit therein and to utilize the
Book-Entry System to the extent possible in connection with settlements of
purchases and sales of securities by the Portfolios, and deliveries and
returns of securities loaned, subject to repurchase agreements or used as
collateral in connection with borrowings. PFPC Trust shall continue to
perform such duties until it receives Written Instructions or Oral
Instructions authorizing contrary actions.
PFPC Trust shall administer the Book-Entry System as follows:
(i) With respect to securities of each Portfolio which are maintained in
the Book-Entry System, the records of PFPC Trust shall identify by
Book-Entry or otherwise those securities belonging to each Portfolio.
(ii) Assets of each Portfolio deposited in the Book-Entry System will at
all times be segregated from any assets and cash controlled by PFPC
Trust in other than a fiduciary or custodian capacity but may be
commingled with other assets held in such capacities.
PFPC Trust will provide the Fund with such reports on its own system of
internal control as the Fund may reasonably request from time to time.
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(f) Registration of Securities. All Securities held for a Portfolio which are
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issued or issuable only in bearer form, except such securities held in the
Book-Entry System, shall be held by PFPC Trust in bearer form; all other
securities held for a Portfolio may be registered in the name of the Fund
on behalf of that Portfolio, PFPC Trust, the Book-Entry System, a sub-
custodian, or any duly appointed nominee of the Fund, PFPC Trust, Book-
Entry System or sub-custodian. The Fund reserves the right to instruct
PFPC Trust as to the method of registration and safekeeping of the
securities of the Fund. The Fund agrees to furnish to PFPC Trust
appropriate instruments to enable PFPC Trust to hold or deliver in proper
form for transfer, or to register in the name of its nominee or in the name
of the Book-Entry System or in the name of another appropriate entity, any
securities which it may hold for the Accounts and which may from time to
time be registered in the name of the Fund on behalf of a Portfolio.
(g) Voting and Other Action. Neither PFPC Trust nor its nominee shall vote any
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of the securities held pursuant to this Agreement by or for the account of
a Portfolio, except in accordance with Written Instructions. PFPC Trust,
directly or through the use of the Book-Entry System, shall execute in
blank and promptly deliver all notices, proxies and proxy soliciting
materials received by PFPC Trust as custodian of the Property to the
registered holder of such securities. If the registered holder, is not the
Fund on behalf of a Portfolio, then Written Instructions or Oral
Instructions must designate the person who owns such securities.
(h) Transactions Not Requiring Instructions. In the absence of contrary
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Written Instructions, PFPC Trust is authorized to take the following
actions:
(i) Collection of Income and Other Payments.
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(A) collect and receive for the account of each Portfolio, all income,
dividends, distributions, coupons, option premiums, other payments
and similar items, included or to be included in the Property, and,
in addition, promptly advise each Portfolio of such receipt and
credit such income, as collected, to each Portfolio's custodian
account;
(B) endorse and deposit for collection, in the name of the Fund, checks,
drafts, or other orders for the payment of money;
(C) receive and hold for the account of each Portfolio all securities
received as a distribution on the Portfolio's securities as a result
of a stock dividend, share split-up or reorganization,
recapitalization, readjustment or other rearrangement or distribution
of rights or similar securities issued with respect to any securities
belonging to a Portfolio and held by PFPC Trust hereunder;
(D) present for payment and collect the amount payable upon all
securities which may mature or be, on a mandatory basis, called,
redeemed, or retired, or otherwise become payable on the date such
securities become payable; and
(E) take any action which may be necessary and proper in connection with
the collection and receipt of such income and other payments and the
endorsement for collection of checks, drafts, and other negotiable
instruments.
(ii) Miscellaneous Transactions.
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(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.
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(B) unless and until PFPC Trust receives Oral Instructions or Written
Instructions to the contrary, PFPC Trust shall:
(1) pay all income items held by it which call for payment upon
presentation and hold the cash received by it upon such payment
for the account of each Portfolio;
(2) collect interest and cash dividends received, with notice to the
Fund, to the account of each Portfolio;
(3) hold for the account of each Portfolio all stock dividends,
rights and similar securities issued with respect to any
securities held by PFPC Trust; and
(4) execute as agent on behalf of the Fund all necessary ownership
certificates required by the Internal Revenue Code or the Income
Tax Regulations of the United States Treasury Department or under
the laws of any state now or hereafter in effect, inserting the
Fund's name, on behalf of a Portfolio, on such certificate as the
owner of the securities covered thereby, to the extent it may
lawfully do so.
(i) Segregated Accounts.
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(i) PFPC Trust shall upon receipt of Written Instructions or Oral
Instructions establish and maintain segregated accounts on its
records for and on behalf of each Portfolio. Such accounts may be
used to transfer cash and securities, including securities in the
Book-Entry System:
(A) for the purposes of compliance by the Fund with the
procedures required by a securities or option exchange,
providing such procedures comply with the 1940 Act and any
releases of the SEC relating to the maintenance of
segregated accounts by registered investment companies; and
(B) upon receipt of Written Instructions, for other purposes.
(ii) PFPC Trust shall arrange for the establishment of ▇▇▇ 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.
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(j) Purchases of Securities. PFPC Trust shall settle purchased
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securities upon receipt of Oral Instructions or Written Instructions that
specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
(ii) the number of shares or the principal amount purchased
and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker through
whom the purchase was made. PFPC Trust shall upon
receipt of securities purchased by or for a Portfolio
pay out of the moneys held for the account of the
Portfolio the total amount payable to the person from
whom or the broker through whom the purchase was made,
provided that the same conforms to the total amount
payable as set forth in such Oral Instructions or
Written Instructions.
(k) Sales of Securities. PFPC Trust shall settle sold securities upon
-------------------
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security, including
CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
Interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(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
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(viii) the Portfolio involved.
PFPC Trust shall deliver the securities upon receipt of the total amount
payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set forth in the Oral Instructions or Written
Instructions. Notwithstanding the other provisions thereof, PFPC Trust may
accept payment in such form as shall be satisfactory to it, and may deliver
securities and arrange for payment in accordance with the customs prevailing
among dealers in securities.
(1) Reports; Proxy Materials.
------------------------
(i) PFPC Trust shall furnish to the Fund the following reports:
(A) such periodic and special reports as the Fund may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of each portfolio, listing each
portfolio security belonging to each Portfolio with the
adjusted average cost of each issue and the market value at
the end of such month and stating the cash account of each
Portfolio including disbursements;
(C) the reports required to be furnished to the Fund pursuant
to Rule 17f-4 of the 1940 Act; and
(D) such other information as may be agreed upon from time to
time between the Fund and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or conversion or
similar communication received by it as custodian of the
Property. PFPC Trust shall be under no 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
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to transmit such material or to inform the Fund or any other
person of such actions or events.
(m) Crediting of Accounts. If PFPC Trust in its sole discretion credits
---------------------
an Account with respect to (a) income, dividends, distributions,
coupons, option premiums, other payments or similar items on a
contractual payment date or otherwise in advance of PFPC Trust's
actual receipt of the amount due, (b) the proceeds of any sale or
other disposition of assets on the contractual settlement date or
otherwise in advance of PFPC Trust's actual receipt of the amount due
or (c) provisional crediting of any amounts due, and (i) PFPC Trust is
subsequently unable to collect full and final payment for the amounts
so credited within a reasonable time period using reasonable efforts
or (ii) pursuant to standard industry practice, law or regulation PFPC
Trust is required to repay to a third party such amounts so credited,
or if any Property has been incorrectly credited, PFPC Trust shall
have the absolute right in its sole discretion without demand to
reverse any such credit or payment, to debit or deduct the amount of
such credit or payment from the Account, and to otherwise pursue
recovery of any such amounts so credited from the Fund. Nothing herein
or otherwise shall require PFPC Trust: to make any advances or to
credit any amounts until PFPC Trust's actual receipt thereof. The Fund
hereby grants a first priority contractual possessory security
interest in and a right of setoff against the assets maintained in an
Account hereunder in the amount necessary to secure the return and
payment to PFPC Trust of any advance or credit made by PFPC Trust
(including charges related thereto) to such Account.
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(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
16. Duration and Termination. This Agreement shall continue until terminated
------------------------
by the Fund or PFPC Trust on sixty (60) days' prior written notice to the
other party. In the event this Agreement is terminated (pending appointment
of a successor to PFPC Trust or vote of the shareholders of the Fund to
dissolve or to function without a custodian of its cash, securities or
other property), PFPC Trust shall not deliver cash, securities or other
property of the Portfolios to the Fund. It may deliver them to a bank or
trust company of PFPC Trust's choice, having an aggregate capital, surplus
and undivided profits, as shown by its last published report, of not less
than twenty million dollars ($20,000,000), as a custodian for the Fund to
be held under terms similar to those of this Agreement. PFPC Trust shall
not be required to make any delivery or payment of assets upon termination
until full payment shall have been made to PFPC Trust of all of its fees,
compensation, costs and expenses (such expenses include, without
limitation, expenses
21
associated with movement (or duplication) of records and materials and
conversion thereof to a successor service provider, or to a bank or trust
company pending appointment of such successor, and all trailing expenses
incurred by PFPC Trust). PFPC Trust shall have a security interest in and
shall have a right of setoff against the Property as security for the
payment of such fees, compensation, costs and expenses.
17. Change of Control. Notwithstanding any other provision of this Agreement,
-----------------
in the event of an agreement to enter into a transaction that would result
in a Change of Control of the Fund's adviser or sponsor, the Fund's ability
to terminate the Agreement pursuant to Section 16 will be suspended from
the time of such agreement until two years after the Change of Control.
18. Notices. Notices shall be addressed (a) if to PFPC Trust at 8800 Tinicurn
-------
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇; (b) if to the Fund, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 telegram, cable, telex or facsimile sending
device, it shall be deemed to have been given immediately. If notice is
sent by first-class mail, it shall be deemed to have been given five days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
19. Amendments. This Agreement. or any term hereof, may be changed or waived
----------
only by a written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
22
20. Delegation; Assignment. PFPC Trust may assign its rights and delegate its
----------------------
duties hereunder to any affiliate of PFPC Trust or of The PNC Financial
Services Group, Inc., provided that PFPC Trust gives the Fund 30 days' prior
written notice of such assignment or delegation.
21. Counterparts. This Agreement may be executed in two or more counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
22. Further Actions. Each party agrees to perform such further acts and
---------------
execute such further documents as are necessary to effectuate the purposes
hereof.
23. Miscellaneous.
--------------
(a) Entire Agreement. This Agreement embodies the entire agreement and
----------------
understanding between the parties and supersedes all prior agreements
and understandings relating to the subject matter hereof, provided that
the parties may embody in one or more separate documents their
agreement, if any, with respect to delegated duties.
(b) No Representations or Warranties. Except as expressly provided in this
--------------------------------
Agreement, PFPC Trust hereby disclaims all representations and
warranties, express or implied, made to the Fund or any other person,
including, without limitation, any warranties regarding quality,
suitability, merchantability, fitness for a particular purpose or
otherwise (irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to services
provided under this Agreement. PFPC Trust disclaims any warranty of
title or non-infringement except as otherwise set forth in this
Agreement.
23
(c) No Changes that Materially Affect Obligations. Notwithstanding anything
---------------------------------------------
in this Agreement to the contrary, the Fund agrees not to make any
modifications to its registration statement or adopt any policies which
would affect materially the obligations or responsibilities of PFPC
Trust hereunder without the prior written approval of PFPC Trust, which
approval shall not be unreasonably withheld or delayed.
(d) Captions. The captions in this Agreement are included for convenience
--------
of reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect.
(e) Governing Law. This Agreement shall be deemed to be a contract made in
-------------
Delaware and governed by Delaware law, without regard to principles of
conflicts of law.
(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.
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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: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Vice President
OLD DOMINION INVESTORS' TRUST, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Secretary and Treasurer
25