CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of October 25, 2006 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and BHR INSTITUTIONAL FUNDS, a Delaware statutory trust (the
"Trust").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, the Trust wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "AUTHORIZED PERSON" means any officer of the Trust and any
other person authorized by the Trust to give Oral or Written
Instructions on behalf of the Trust. An Authorized Person's
scope of authority may be limited by setting forth such
limitation in a written document signed by both parties
hereto.
(d) "BOOK-ENTRY SYSTEM" means 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.
(e) "ORAL INSTRUCTIONS" mean oral instructions received by PFPC
Trust from an Authorized Person or from a person reasonably
believed by PFPC Trust to be an Authorized Person. PFPC Trust
may, in its sole discretion in each separate instance,
consider and rely upon instructions it receives from an
Authorized Person via electronic mail as Oral Instructions.
(f) "PFPC TRUST" means PFPC Trust Company or a subsidiary or
affiliate of PFPC Trust Company.
(g) "SEC" means the Securities and Exchange Commission.
(h) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act and the 1940
Act.
(i) "SHARES" mean the shares of beneficial interest of any series
or class of the Trust.
(j) "PROPERTY" means:
(i) any and all securities and other investment items
which the Trust 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 Trust;
(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
Trust, which are received by PFPC Trust from time to
time, from or on behalf of the Trust.
(k) "WRITTEN INSTRUCTIONS" mean (i) written instructions signed by
two Authorized Persons (or persons reasonably believed by PFPC
Trust to be 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
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to gain access. The instructions may be delivered
electronically (with respect to sub-item (ii) above) or by
hand, mail or facsimile sending device.
2. APPOINTMENT. The Trust hereby appoints PFPC Trust to provide custodian
services to the Trust as set forth herein, on behalf of each of its
investment series (each, a "Series"), and PFPC Trust accepts such
appointment and agrees to furnish such services.
3. COMPLIANCE WITH LAWS.
PFPC Trust undertakes to comply with material applicable requirements
of the Securities Laws and material laws, rules and regulations of
governmental authorities having jurisdiction with respect to the duties
to be performed by PFPC Trust hereunder. Except as specifically set
forth herein, PFPC Trust assumes no responsibility for such compliance
by the Trust or any other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall
act only upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction
or Written Instruction it receives pursuant to this Agreement.
PFPC Trust may assume that any Oral Instructions or Written
Instructions received hereunder are not in any way
inconsistent with the provisions of organizational documents
of the Trust or of any vote, resolution or proceeding of the
Trust's Board of Trustees or of the Trust's shareholders,
unless and until PFPC Trust receives Written Instructions to
the contrary.
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(c) The Trust agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral
Instructions are given by PFPC Trust or its affiliates) so
that PFPC Trust receives the Written Instructions by the close
of business on the same day that such Oral Instructions are
received. The fact that such confirming Written Instructions
are not received by PFPC Trust or differ from the Oral
Instructions shall in no way invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions or PFPC Trust's ability to rely upon such Oral
Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE TRUST. If PFPC Trust is in doubt as to any
action it should or should not take, PFPC Trust may request
directions or advice, including Oral Instructions or Written
Instructions, from the Trust.
(b) ADVICE OF COUNSEL. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PFPC Trust may request advice from counsel of its
own choosing (who may be counsel for the Trust, the Trust's
investment adviser or PFPC Trust, at the option of PFPC
Trust).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions or advice or Oral Instructions or Written
Instructions PFPC Trust receives from the Trust, and the
advice it receives from counsel, PFPC Trust shall be entitled
to rely upon and follow the advice of counsel.
(d) PROTECTION OF PFPC TRUST. PFPC Trust shall be indemnified by
the Trust and without liability for any action PFPC Trust
takes or does not take in reliance upon directions or advice
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or Oral Instructions or Written Instructions PFPC Trust
receives from or on behalf of the Trust or from counsel and
which PFPC Trust believes, in good faith, to be consistent
with those directions or advice or Oral Instructions or
Written Instructions. Nothing in this section shall be
construed so as to impose an obligation upon PFPC Trust (i) to
seek such directions or advice or Oral Instructions or Written
Instructions, or (ii) to act in accordance with such
directions or advice or Oral Instructions or Written
Instructions.
6. RECORDS; VISITS. The books and records pertaining to the Trust and any
Series, which are in the possession or under the control of PFPC Trust,
shall be the property of the Trust. Such books and records shall be
prepared and maintained as required by the 1940 Act and other
applicable securities laws, rules and regulations. The Trust and
Authorized Persons shall have access to such books and records at all
times during PFPC Trust's normal business hours. Upon the reasonable
request of the Trust, copies of any such books and records shall be
provided by PFPC Trust to the Trust or to an authorized representative
of the Trust, at the Trust's expense.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that
is competitively sensitive material, and not generally known to the
public, including, but not limited to, information about product plans,
marketing strategies, finances, operations, customer relationships,
customer profiles, customer lists, sales estimates, business plans, and
internal performance results relating to the past, present or future
business activities of the Trust or PFPC Trust, their respective
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subsidiaries and affiliated companies; (b) any scientific or technical
information, design, process, procedure, formula, or improvement that
is commercially valuable and secret in the sense that its
confidentiality affords the Trust or PFPC Trust a competitive advantage
over its competitors; (c) all confidential or proprietary concepts,
documentation, reports, data, specifications, computer software, source
code, object code, flow charts, databases, inventions, know-how, and
trade secrets, whether or not patentable or copyrightable; and (d)
anything designated as confidential. Notwithstanding the foregoing,
information shall not be 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 requested or 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) release of such
information by PFPC Trust is necessary or desirable in connection with
the provision of services under this Agreement; (g) it is Trust
information provided by PFPC Trust in connection with an independent
third party compliance or other review; (h) it is relevant to the
defense of any claim or cause of action asserted against the receiving
party; or (i) 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.
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8. COOPERATION WITH ACCOUNTANTS. PFPC Trust shall cooperate with the
Trust's independent public accountants and shall take all reasonable
action to make any requested information available to such accountants
as reasonably requested by the Trust.
9. PFPC SYSTEM. PFPC Trust shall retain title to and ownership of any and
all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions,
discoveries, patentable or copyrightable matters, concepts, expertise,
patents, copyrights, trade secrets, and other related legal rights
utilized by PFPC Trust in connection with the services provided by PFPC
Trust to the Trust.
10. DISASTER RECOVERY. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making
reasonable provisions for emergency use of electronic data processing
equipment to the extent appropriate equipment is available. In the
event of equipment failures, PFPC Trust shall, at no additional expense
to the Trust, take reasonable steps to minimize service interruptions.
PFPC Trust shall have no liability with respect to the loss of data or
service interruptions caused by equipment failure provided such loss or
interruption is not caused by PFPC Trust's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION.
(a) As compensation for custody services rendered by PFPC Trust
during the term of this Agreement, the Trust, on behalf of
each of the Series, will pay to PFPC Trust a fee or fees as
may be agreed to in writing from time to time by the Trust and
PFPC Trust. The Trust acknowledges that PFPC Trust may receive
float benefits in connection with maintaining certain accounts
required to provide services under this Agreement.
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(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 Trust 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 Trust relating to
this Agreement have been fully disclosed to the Board of
Trustees of the Trust 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.
12. INDEMNIFICATION.
(a) The Trust, on behalf of each Series, 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,
reasonable attorneys' fees and disbursements) arising directly
or indirectly from any action or omission to act which PFPC
Trust takes in connection with the provision of services to
the Trust. Neither PFPC Trust, nor any of its affiliates,
shall be indemnified against any liability (or any expenses
incident to such liability) caused by PFPC Trust's or its
affiliates' own willful misfeasance, bad faith, gross
negligence or reckless disregard in the performance of PFPC
Trust's activities under this Agreement.
(b) PFPc Trust agrees to indemnify, defend and hold harmless the
Trust and its officers, directors and employees only from
taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, reasonable attorneys' fees and
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disbursements) caused by PFPC Trust's failure to perform its
duties under this Agreement and only to the extent such taxes,
charges, expenses, assessments, claims and liabilities are the
result of PFPC Trust's willful misfeasance, bad faith, gross
negligence or reckless disregard of its duties under this
Agreement. Any obligation of PFPC Trust to indemnify, defend
or hold harmless the Trust is subject to the provisions of
this Agreement limiting PFPC Trust's responsibility to the
Trust; any limitation on the Trust's ability to be
indemnified, defended or held harmless shall also apply to any
ability of the Trust's officer, directors and employees to the
indemnified, defended or held harmless.
(c) The provisions of this Section 12 shall survive termination of
this Agreement.
13. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action hereunder
on behalf of the Trust or any Series except as specifically
set forth herein or as may be specifically agreed to by PFPC
Trust and the Trust in a written amendment hereto. PFPC Trust
shall be obligated to exercise care and diligence in the
performance of its duties hereunder and to act in good faith
in performing services provided for under this Agreement. PFPC
Trust shall be liable only for any damages arising out of PFPC
Trust's failure to perform its duties under this Agreement and
only to the extent such damages arise out of PFPC Trust's
willful misfeasance, bad faith, gross negligence or reckless
disregard of its duties under this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary,
(i) PFPC Trust shall not be liable for losses, delays,
failure, errors, interruption or loss of data occurring
directly or indirectly by reason of circumstances beyond its
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reasonable control, including without limitation acts of God;
action or inaction of civil or military authority; public
enemy; war; terrorism; riot; fire; flood; sabotage; epidemics;
labor disputes; civil commotion; interruption, loss or
malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature;
or non-performance by a third party; and (ii) PFPC Trust shall
not be under any duty or obligation to inquire into and shall
not be liable for the validity or invalidity, authority or
lack thereof, or truthfulness or accuracy or lack thereof, of
any instruction, direction, notice, instrument or other
information which PFPC Trust reasonably believes to be
genuine.
(c) Notwithstanding anything in this Agreement to the contrary,
(i) neither PFPC Trust nor its affiliates shall be liable for
any consequential, special or indirect losses or damages,
whether or not the likelihood of such losses or damages was
known by PFPC Trust or its affiliates and (ii) PFPC Trust's
cumulative liability to the Trust for all losses, claims,
suits, controversies, breaches or damages for any nature
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 an amount equal to the
greatest amount of fees received by PFPC Trust for services
provided hereunder during a particular eighteen (18)
consecutive month period.
(d) Each party shall have a duty to mitigate damages for which the
other party may become responsible.
(e) Notwithstanding anything in this Agreement to the contrary
(other than as specifically provided in Section
14(h)(ii)(B)(4) and Section 14(h)(iii)(A) of this Agreement),
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the Trust shall be responsible for all filings, tax returns
and reports on any transactions undertaken pursuant to this
Agreement, or in respect of the Property or any collections
undertaken pursuant to this Agreement, which may be requested
by any relevant authority. In addition, the Trust shall be
responsible for the payment of all taxes and similar items
(including without limitation penalties and interest related
thereto).
(f) The provisions of this Section 13 shall survive termination of
this Agreement.
(h) Notwithstanding anything in this Agreement to the contrary,
PFPC Trust shall have no liability either for any error or
omission of any of its predecessors as servicer on behalf of
the Trust or for any failure to discover any such error or
omission.
14. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Trust will deliver or arrange
for delivery to PFPC Trust, all the Property owned by the
Series, 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 Series of the Trust (each an
"Account") and shall maintain in the Account of a particular
Series all cash and other assets received from or for the
Trust specifically designated to such Account.
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PFPC Trust shall make cash payments from or for the Account of
a Series only for:
(i) purchases of securities in the name of a Series, 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) redemption of Shares of the Trust upon receipt of
Written Instructions;
(iii) payment of, subject to Written Instructions,
interest, taxes (provided that tax which PFPC Trust
considers is required to be deducted or withheld "at
source" will be governed by Section 14(h)(iii)(B) of
this Agreement), administration, accounting,
distribution, advisory and management fees which are
to be borne by a Series;
(iv) payment to, subject to receipt of Written
Instructions, the Trust's transfer agent, as agent
for the shareholders, of an amount equal to the
amount of dividends and distributions stated in the
Written Instructions to be distributed in cash by the
transfer agent to shareholders, or, in lieu of paying
the Trust's transfer agent, PFPC Trust may arrange
for the direct payment of cash dividends and
distributions to shareholders in accordance with
procedures mutually agreed upon from time to time by
and among the Trust, PFPC Trust and the Trust's
transfer agent;
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender
of securities owned or subscribed to by the Trust 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
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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 Trust's Board of
Trustees, or any officer, employee or agent of the
Trust withdraw any securities.
At PFPC Trust's own expense and for its own
convenience, PFPC Trust may enter into sub-custodian
agreements with other banks or trust companies to
perform duties described in this sub-section (c) with
respect to domestic assets. Such bank or trust
company shall have aggregate capital, surplus and
undivided profits, according to its last published
report, of at least one million dollars ($1,000,000),
if it is a subsidiary or affiliate of PFPC Trust, or
at least twenty million dollars ($20,000,000) if such
bank or trust company is not a subsidiary or
affiliate of PFPC Trust. In addition, such bank or
trust company must be qualified to act as custodian
and agree to comply with the relevant provisions of
applicable rules and regulations. Any such
arrangement will not be entered into without prior
written notice to the Trust (or as otherwise provided
in the 1940 Act).
In addition, PFPC Trust may enter into arrangements
with sub-custodians with respect to services
regarding foreign assets. Any such arrangement will
not be entered into without prior written notice to
the Trust (or as otherwise provided in the 1940 Act).
Sub-custodians utilized by PFPC Trust may be
subsidiaries or affiliates of PFPC Trust, and 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 Series 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
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Instructions, proxies, consents, authorizations, and
any other instruments whereby the authority of a
Series 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 Series 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 Series 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
Series and take such other steps as shall be stated
in said Oral Instructions or Written Instructions to
be for the purpose of effectuating a duly authorized
plan of liquidation, reorganization, merger,
consolidation or recapitalization of the Trust;
(vii) release securities belonging to a Series to any bank
or trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the
Trust on behalf of that Series; 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 Series in
connection with any repurchase agreement entered into
by the Trust on behalf of that Series, but only on
receipt of payment therefor; and pay out monies of
the Trust in connection with such repurchase
agreements, but only upon the delivery of the
securities;
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(ix) release and deliver or exchange securities owned by
the Trust 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 Trust for
the purpose of redeeming in kind shares of the Trust
upon delivery thereof to PFPC Trust; and
(xii) release and deliver or exchange securities owned by
the Trust 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 Series 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
Series, 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 Series 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 Series.
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(ii) Assets of each Series deposited in a Book-Entry
System or another depository will (to the extent
consistent with applicable law and standard practice)
at all times be segregated from any assets and cash
controlled by PFPC Trust in other than a fiduciary or
custodian capacity but may be commingled with other
assets held in such capacities.
PFPC Trust will provide the Trust with such reports on its own
system of internal control as the Trust may reasonably request
from time to time.
(f) REGISTRATION OF SECURITIES. All securities held for a Series
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 Series may be registered in
the name of the Trust on behalf of that Series, PFPC Trust, a
Book-Entry System, another depository, a sub-custodian, or any
duly appointed nominee of the Trust, PFPC Trust, Book-Entry
System, depository or sub-custodian. The Trust reserves the
right to instruct PFPC Trust as to the method of registration
and safekeeping of the securities of the Trust. The Trust
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 Trust or a Series (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
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payment for the purchase of such securities upon receipt of
Oral or Written Instructions, accept in sale proceeds received
by PFPC Trust upon 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 Series, except in
accordance with Written Instructions. PFPC Trust, directly or
through the use of another entity, shall execute in blank and
promptly deliver all notices, proxies and proxy soliciting
materials received by PFPC Trust as custodian of the Property
to the registered holder of such securities. If the registered
holder is not the Trust on behalf of a Series, 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
Series, 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 Series of
such receipt and credit such income to each
Series' custodian account;
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(B) endorse and deposit for collection, in the
name of the Trust, checks, drafts, or other
orders for the payment of money;
(C) receive and hold for the account of each
Series all securities received as a
distribution on the Series' 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 Series 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
Series in accordance with street
delivery custom;
(2) for the exchange of interim
receipts or temporary securities
for definitive securities; and
(3) for transfer of securities into the
name of the Trust on behalf of a
Series 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) 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 Series;
(2) collect interest and cash dividends
received, with notice to the Trust,
to the account of each Series;
(3) hold for the account of each Series
all stock dividends, rights and
similar securities issued with
respect to any securities held by
PFPC Trust; and
(4) subject to receipt of such
documentation and information as
PFPC Trust may request, execute as
agent on behalf of the Trust all
necessary ownership certificates
required by a national governmental
taxing authority or under the laws
of any U.S. state now or hereafter
in effect, inserting the Trust's
name, on behalf of a Series, 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 Series. Such accounts may be used to transfer
cash and securities, including securities in a
Book-Entry System or other depository:
(A) for the purposes of compliance by the Trust
with the procedures required by a securities
or option exchange, providing such
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procedures comply with the 1940 Act and any
releases of the SEC relating to the
maintenance of segregated accounts by
registered investment companies; and
(B) upon receipt of Written Instructions, for
other purposes.
(ii) PFPC Trust shall arrange for the establishment of ▇▇▇
custodian accounts for such shareholders holding
Shares through ▇▇▇ accounts, in accordance with the
Trust's prospectuses, the Internal Revenue Code of
1986, as amended (including regulations promulgated
thereunder), and with such other procedures as are
mutually agreed upon from time to time by and among
the Trust, PFPC Trust and the Trust's transfer agent.
(j) PURCHASES OF SECURITIES. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written
Instructions that specify:
(i) the name of the issuer and the title of the
securities, including CUSIP number if applicable;
(ii) the number of shares or the principal amount
purchased and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Series 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
Series (or otherwise in accordance with standard
market practice) pay out of the monies held for the
account of the Series 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;
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(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 Trust 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 Series involved.
PFPC Trust shall deliver the securities upon receipt of the total
amount payable to the Series 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 Trust the following
reports:
(A) such periodic and special reports as the
Trust may reasonably request;
(B) a monthly statement summarizing all
transactions and entries for the account of
each Series, listing each portfolio security
belonging to each Series (with the
corresponding security identification
number) held at the end of such month and
stating the cash balance of each Series at
the end of such month.
(C) the reports required to be furnished to the
Trust pursuant to Rule 17f-4 of the 1940
Act; and
21
(D) such other information as may be agreed upon
from time to time between the Trust and PFPC
Trust.
(ii) PFPC Trust shall transmit promptly to the Trust any
proxy statement, proxy material, notice of a call or
conversion or similar communication received by it as
custodian of the Property. PFPC Trust shall be under
no other obligation to inform the Trust as to such
actions or events. For clarification, upon
termination of this Agreement PFPC Trust shall have
no responsibility to transmit such material or to
inform the Trust or any other person of such actions
or events.
(m) CREDITING OF ACCOUNTS. 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 crediting of any amounts due, and (i) PFPC
Trust is subsequently unable to collect full and final payment
22
for the amounts so credited within a reasonable time period
using reasonable efforts or (ii) pursuant to standard industry
practice, law or regulation PFPC Trust is required to repay to
a third party such amounts so credited, or if any Property has
been incorrectly credited, PFPC Trust shall have the absolute
right in its sole discretion without demand to reverse any
such credit or payment, to debit or deduct the amount of such
credit or payment from the Account, and to otherwise pursue
recovery of any such amounts so credited from the Trust. The
Trust hereby grants to PFPC Trust and to each sub-custodian
utilized by PFPC Trust in connection with providing services
to the Trust 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 and to each such
sub-custodian of any advance or credit made by PFPC Trust
and/or by such sub-custodian (including charges related
thereto) to such Account. Notwithstanding anything in this
Agreement to the contrary, PFPC Trust shall be entitled to
assign any rights it has under this sub-section (m) to any
sub-custodian utilized by PFPC Trust in connection with
providing services to the Trust which sub-custodian makes any
credits or advances with respect to the Trust.
(n) COLLECTIONS. All collections of monies or other property in
respect, or which are to become part, of the Property (but not
the safekeeping thereof upon receipt by PFPC Trust) shall be
at the sole risk of the Trust. If payment is not received by
PFPC Trust within a reasonable time after proper demands have
been made, PFPC Trust shall notify the Trust in writing,
including copies of all demand letters, any written responses
23
and memoranda of all oral responses and shall await
instructions from the Trust. PFPC Trust shall not be obliged
to take legal action for collection unless and until
reasonably indemnified to its satisfaction. PFPC Trust shall
also notify the Trust as soon as reasonably practicable
whenever income due on securities is not collected in due
course and shall provide the Trust with periodic status
reports of such income collected after a reasonable time.
(o) 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
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.
15. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written
above and unless terminated pursuant to its terms shall
continue for a period of three (3) years (the "Initial Term").
Upon the expiration of the Initial Term, this Agreement will
automatically renew for successive terms of one (1) year (the
"Renewal Term"). Either party may terminate this Agreement
24
effective at the end of the Initial Term, or any Renewal Term
by providing written notice to the other party of its intent
not to renew. Notice of termination must be received not less
than thirty (30) days prior to the expiration of the Initial
Term or the then current Renewal Term, as applicable.
(b) In the event this Agreement is terminated (pending appointment
of a successor to PFPC Trust or vote of the shareholders of
the Trust to dissolve or to function without a custodian of
its cash, securities or other property), PFPC Trust shall not
deliver cash, securities or other property of the Series to
the Trust. 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 Trust to be held under terms similar to
those of this Agreement. PFPC Trust shall not be required to
make any delivery or payment of assets upon termination until
full payment shall have been made to PFPC Trust of all of its
fees, compensation, costs and expenses (including without
limitation fees and expenses associated with deconversion or
conversion to another service provider and other trailing
expenses incurred by PFPC Trust). PFPC Trust shall have a
first priority contractual possessory 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.
(c) If 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
25
breach shall not have been remedied within thirty (30) days
after such written notice is given, then the Non-Defaulting
Party may terminate this Agreement by giving thirty (30) days
written notice of such termination 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.
16. NOTICES. Notices shall be addressed (a) if to PFPC Trust at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇ (or such other address as PFPC Trust may inform
the Trust in writing); (b) if to the Trust, at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ (or such other
address as the Trust may inform PFPC Trust 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
electronic delivery, hand or facsimile sending device, it shall be
deemed to have been given immediately. If notice is sent by first-class
mail, it shall be deemed to have been given five days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have been
given on the day it is delivered.
17. AMENDMENTS. This Agreement, or any term hereof, may be changed or
waived only by a written amendment,signed by the party against whom
enforcement of such change or waiver is sought.
18. ASSIGNMENT. PFPC Trust may assign its rights and delegate
its duties hereunder to any affiliate of PFPC Trust or of The PNC
Financial Services Group, Inc., provided that PFPC Trust gives the
Trust thirty (30) days' prior written
26
notice of such assignment, that the assignee agrees to comply with all
relevant provisions of the 1940 Act and that the assignee shall
promptly provide such information as the Trust may ask, relative to the
assignment, including (without limitation) the capabilities of the
assignee.
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
20. 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) NON-SOLICITATION. During the term of this Agreement and for
one year thereafter, the Trust shall not (with the exceptions
noted in the immediately succeeding sentence) knowingly
solicit or recruit for employment or hire any of PFPC Trust's
employees, and the Trust shall cause the Trust's sponsor and
the Trust's affiliates to not (with the exceptions noted in
the immediately succeeding sentence) knowingly solicit or
recruit for employment or hire any of PFPC Trust's employees
involved in providing services to the Trust. To "knowingly"
solicit, recruit or hire within the meaning of this provision
does not include, and therefore does not prohibit,
solicitation, recruitment or hiring of a PFPC Trust employee
by the Trust, the Trust's sponsor or an affiliate of the Trust
if the PFPC Trust employee was identified by such entity
solely as a result of the PFPC Trust employee's response to a
general advertisement by such entity in a publication of trade
or industry interest or other similar general solicitation by
such entity.
27
(c) NO REPRESENTATIONS OR WARRANTIES. Except as expressly provided
in this Agreement, PFPC Trust hereby disclaims all
representations and warranties, express or implied, made to
the Trust or any other person, including, without limitation,
any warranties regarding quality, suitability,
merchantability, fitness for a particular purpose or otherwise
(irrespective of any course of dealing, custom or usage of
trade), of any services or any goods provided incidental to
services provided under this Agreement. PFPC Trust disclaims
any warranty of title or non-infringement except as otherwise
set forth in this Agreement.
(d) NO CHANGES THAT MATERIALLY AFFECT OBLIGATIONS. Notwithstanding
anything in this Agreement to the contrary, the Trust agrees
not to make any modifications to its registration statement or
adopt any policies which would affect materially the
obligations or responsibilities of PFPC Trust hereunder
without the prior written approval of PFPC Trust, which
approval shall not be unreasonably withheld or delayed.
(e) 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.
(f) INFORMATION. The Trust will provide such information and
documentation as PFPC Trust may reasonably request in
connection with services provided by PFPC Trust to the Trust.
28
(g) 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.
(h) 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.
(i) 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.
(j) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
(k) LIABILITY. The Trust and PFPC Trust agree that the obligations
of the Trust under this Agreement shall not be binding upon
any of the Trustees, shareholders, nominees, officer,
employees or agents, whether past or present of future, of the
Trust individually, but are binding only upon the assets of
the Trust or applicable portfolio thereof. The execution and
deliver of this Agreement have been authorized by the Trustees
of the Trust, and signed by an authorized officer of the
Trust, acting as such, and neither such authorization by the
Trustees nor such executions by such officer shall be deemed
to have been made by them or any shareholder of the Trust
personally, bit shall bind only the assets and property of the
Trust or applicable portfolio thereof.
(l) 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
29
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 Trust'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.
30
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Director
BHR INSTITUTIONAL FUNDS
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
31