CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of August 1, 2006 by and between PFPC TRUST
COMPANY, a limited purpose trust company incorporated under the laws of Delaware
("PFPC Trust"), and EIP INVESTMENT TRUST, a Delaware statutory trust (the
"Trust"), on behalf of the Funds listed on Schedule A attached hereto (each a
"Fund"), as such Schedule A may be amended from time to time.
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, on behalf of each 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:
(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 a Fund and any other person
authorized by the Trust to give Oral or Written Instructions on
behalf of a 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 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) "CEA" means the Commodities Exchange Act, as amended.
(f) "Oral Instructions" means 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.
(g) "PFPC Trust" means PFPC Trust Company or a subsidiary or affiliate
of PFPC Trust Company.
(h) "SEC" means the Securities and Exchange Commission.
(i) "Securities Laws" means the 1933 Act, the 1934 Act, the 1940 Act and
the CEA.
(j) "Shares" means the shares of beneficial interest of any series or
class of a Fund.
(k) "Property" means:
(i) any and all securities and other investment items which a 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
a Fund;
(ii) all income in respect of any of such securities or other
investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by a Fund, which
are received by PFPC Trust from time to time, from or on
behalf of a Fund.
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(k) "Written Instructions" means (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 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, on behalf of each Fund, hereby appoints PFPC Trust
to provide custodian services to each Fund as set forth herein, 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 a Fund or any other entity.
4. Instructions.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall act
only upon Oral Instructions or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral Instruction or
Written Instruction it receives 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 a
Fund's shareholders, unless and until PFPC Trust receives Written
Instructions to the contrary.
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(c) The Trust on behalf of each 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 Trust's ability to rely
upon such Oral Instructions.
5. Right to Receive Advice.
(a) Advice of a Fund. If PFPC Trust is in doubt as to any action it
should or should not take, PFPC Trust may request directions or
advice, including Oral Instructions or Written Instructions, from
the relevant Fund.
(b) Advice of Counsel. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should not
take, PFPC Trust may request advice from counsel of its own choosing
(who may be counsel for a Fund, a Fund's investment adviser or PFPC
Trust, at the option of PFPC Trust).
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions PFPC Trust
receives from a Fund, and the advice it receives from counsel, PFPC
Trust shall be entitled to rely upon and follow the advice of
counsel.
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(d) Protection of PFPC Trust. PFPC Trust shall be indemnified by each
Fund and without liability for any action PFPC Trust takes or does
not take in reliance upon directions or advice or Oral Instructions
or Written Instructions PFPC Trust receives from or on behalf of a
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 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.
6. Records; Visits. The books and records pertaining to the Trust and a Fund,
which are in the possession or under the control of PFPC Trust, shall be
the property of such Fund or the Trust, as applicable. Such books and
records shall be prepared and maintained as required by the 1940 Act and
other applicable securities laws, rules and regulations. Each 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 a Fund, copies of any such books and records shall be provided
by PFPC Trust to such Fund or to an authorized representative of the Fund,
at such Fund's expense.
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7. Confidentiality. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include information related to the Trust, a
Fund, PFPC Trust or a Fund's investment manager (the "Manager") including
the following: (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,
a Fund, the Manager or PFPC Trust, their respective 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, a
Fund, the Manager 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 and was obtained through some means other than through the
performance of an agreement between PFPC Trust and an affiliate of a Fund;
(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
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by the receiving party pursuant to a court order, subpoena, governmental
or regulatory agency request or law (provided the receiving party will
provide the other party written notice of the same, to the extent such
notice is permitted); (f) it is necessary for PFPC Trust to release such
information in connection with the provision of services under this
Agreement; (g) it is Fund information provided by PFPC Trust in connection
with an independent third party compliance or other review conducted for
the benefit of PFPC Trust or a Fund and not for the benefit of any
investor and provided that such confidential information is only disclosed
to parties that have signed a confidentiality agreement at least as
restrictive as this Section 7; (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.
8. Cooperation with Accountants. PFPC Trust shall cooperate with each Fund's
independent public accountants and shall take all reasonable action to
make any requested information available to such accountants as reasonably
requested by a Fund.
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 each Fund.
Notwithstanding the foregoing, the parties acknowledge each Fund shall
retain all ownership rights in Fund data which resides on the PFPC system.
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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 a 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.
11. Compensation.
(a) As compensation for custody services rendered by PFPC Trust during
the term of this Agreement, each Fund will pay to PFPC Trust a fee
or fees as may be agreed to in writing from time to time by such
Fund and PFPC Trust. The Trust on behalf of each Fund acknowledges
that PFPC Trust may receive float benefits in connection with
maintaining certain accounts required to provide services under this
Agreement.
(b) The undersigned hereby represents and warrants to PFPC Trust that
(i) the terms of this Agreement, (ii) the fees and expenses
associated with this Agreement, and (iii) any benefits accruing to
PFPC Trust or to the adviser or sponsor to a Fund in connection with
this Agreement, including but not limited to any fee waivers,
conversion cost reimbursements, up front payments, signing payments
or periodic payments made or to be made by PFPC Trust to such
adviser or sponsor or any affiliate of a Fund 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.
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12. Indemnification. The Trust, on behalf of each Fund, agrees to indemnify,
defend and hold harmless PFPC Trust and its affiliates, including their
respective officers, directors, agents and employees from all taxes,
charges, expenses, assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities arising
under the Securities Laws and any state and foreign securities and blue
sky laws) arising directly or indirectly from any action or omission to
act which PFPC Trust takes in connection with the provision of services to
each 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
misfeasance, bad faith, gross negligence or reckless disregard in the
performance of PFPC Trust's activities under this Agreement. Any amounts
payable by a Fund hereunder shall be satisfied only against the relevant
Fund's assets and not against the assets of any other investment fund of
the Trust. 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 a Fund except as specifically set forth
herein or as may be specifically agreed to by PFPC Trust and the
Trust in a written amendment hereto. PFPC Trust shall be obligated
to exercise care and diligence in the performance of its duties
hereunder and to act in good faith in performing services provided
for under this Agreement. PFPC Trust shall be liable 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.
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(b) Notwithstanding anything in this Agreement to the contrary, (i) PFPC
Trust shall not be liable for losses, delays, failure, errors,
interruption or loss of data occurring directly or indirectly by
reason of circumstances beyond its reasonable control, including
without limitation (subject to Section 10), 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 provided that PFPC Trust has taken reasonable steps to
minimize service interruptions; 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 that conforms to
the applicable requirements of this Agreement and which PFPC Trust
reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
party 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 the party or its affiliates.
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(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), each Fund 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, each Fund 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.
14. Description of Services.
(a) Delivery of the Property. Each Fund will deliver or arrange for
delivery to PFPC Trust, all the Property owned by such Fund,
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
Fund (each an "Account" and collectively the "Accounts") and shall
maintain in the Accounts all cash and other assets received from or
for each Fund specifically designated to such Account.
PFPC Trust shall make cash payments from or for the Account of a
Fund only for:
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(i) purchases of securities in the name of a Fund, PFPC Trust,
PFPC Trust's nominee or a sub-custodian or nominee thereof as
provided in sub-section (j) and for which PFPC Trust has
received a copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(ii) purchase or redemption of Shares of a Fund delivered to PFPC
Trust;
(iii) payment of, subject to Written Instructions, interest, taxes
(provided that tax which PFPC Trust considers is required to
be deducted or withheld "at source" will be governed by
Section 14(h)(iii)(B) of this Agreement), administration,
accounting, distribution, advisory and management fees which
are to be borne by a Fund;
(iv) payment to, subject to receipt of Written Instructions, a
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
each 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 each Fund, PFPC Trust and
a 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 a Fund and held by or delivered to PFPC
Trust;
(vi) payments of the amounts of dividends received with respect to
securities sold short;
(vii) payments to PFPC Trust for its services hereunder;
(viii) payments to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(ix) other payments, upon Written Instructions.
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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.
(i) PFPC Trust shall hold all securities received by it for the
Accounts in a separate account that physically segregates such
securities from those of any other persons, firms or
corporations, except for securities held in a Book-Entry
System or through a sub-custodian or depository. All such
securities shall be held or disposed of only upon Written
Instructions or otherwise pursuant to the terms of this
Agreement. PFPC Trust shall have no power or authority to
assign, hypothecate, pledge or otherwise dispose of any such
securities or investment, except upon the express terms of
this Agreement or upon Written Instructions authorizing the
transaction. In no case may any member of the Trust's Board of
Trustees, or any officer, employee or agent of a Fund withdraw
any securities.
(ii) 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 a Fund (or as
otherwise provided in the 1940 Act).
(iii) 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 each Fund (or as otherwise provided in
the 1940 Act).
(iv) 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.
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(d) Transactions Requiring Instructions. Upon receipt of Oral
Instructions or Written Instructions and not otherwise, PFPC Trust
shall:
(i) deliver any securities held for a Fund against the receipt of
payment for the sale of such securities or otherwise in
accordance with standard market practice;
(ii) execute and deliver to such persons as may be designated in
such Oral Instructions or Written Instructions, proxies,
consents, authorizations, and any other instruments whereby
the authority of a Fund as owner of any securities may be
exercised;
(iii) deliver any securities to the issuer thereof, or its agent,
when such securities are called, redeemed, retired or
otherwise become payable at the option of the holder; provided
that, in any such case, the cash or other consideration is to
be delivered to PFPC Trust;
(iv) deliver any securities held for a Fund against receipt of
other securities or cash issued or paid in connection with the
liquidation, reorganization, refinancing, tender offer,
merger, consolidation or recapitalization of any corporation,
or the exercise of any conversion privilege;
(v) deliver any securities held for a Fund to any protective
committee, reorganization committee or other person in
connection with the reorganization, refinancing, merger,
consolidation, recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this
Agreement such certificates of deposit, interim receipts or
other instruments or documents as may be issued to it to
evidence such delivery;
(vi) make such transfer or exchanges of the assets of a Fund 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 a
Fund;
(vii) release securities belonging to a Fund to any bank or trust
company for the purpose of a pledge or hypothecation to secure
any loan incurred by such Fund; provided, however, that
securities shall be released only upon payment to PFPC Trust
of the monies borrowed, except that in cases where additional
collateral is required to secure a borrowing already made
subject to proper prior authorization, further securities may
be released for that purpose; and repay such loan upon
redelivery to it of the securities pledged or hypothecated
therefor and upon surrender of the note or notes evidencing
the loan;
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(viii) release and deliver securities owned by a Fund in connection
with any repurchase agreement entered into by such Fund, but
only on receipt of payment therefor; and pay out monies of
such Fund in connection with such repurchase agreements, but
only upon the delivery of the securities;
(ix) release and deliver or exchange securities owned by a Fund in
connection with any conversion of such securities, pursuant to
their terms, into other securities;
(x) release and deliver securities to a broker in connection with
the broker's custody of margin collateral relating to futures
and options transactions;
(xi) release and deliver securities owned by a Fund for the purpose
of redeeming in kind shares of such Fund upon delivery thereof
to PFPC Trust; and
(xii) release and deliver or exchange securities owned by a Fund for
other purposes.
PFPC Trust must also receive a certified resolution describing
the nature of the corporate purpose and the name and address
of the person(s) to whom delivery shall be made when such
action is pursuant to sub-paragraph d(xii).
(e) Use of Book-Entry System or Other Depository. PFPC Trust will
deposit in Book-Entry Systems and other depositories all securities
belonging to a Fund 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
a Fund, 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.
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PFPC Trust shall administer a Book-Entry System or other depository as
follows:
(i) With respect to securities of a Fund 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 such Fund.
(ii) Assets of a Fund deposited in a Book-Entry System or another
depository will (to the extent consistent with applicable law
and standard practice) at all times be segregated from any
assets and cash controlled by PFPC Trust in other than a
fiduciary or custodian capacity but may be commingled with
other assets held in such capacities.
PFPC Trust will provide a Fund with such reports on its own system
of internal control as such Fund may reasonably request from time to
time.
(f) Registration of Securities. All securities held for a Fund which are
issued or issuable only in bearer form, except such securities
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 Fund may be registered in the name of such Fund,
PFPC Trust, a Book-Entry System, another depository, a
sub-custodian, or any duly appointed nominee of a Fund, PFPC Trust,
Book-Entry System, depository or sub-custodian. Each Fund reserves
the right to instruct PFPC Trust as to the method of registration
and safekeeping of the securities of a Fund. The Trust on behalf of
each Fund agrees to furnish to PFPC Trust appropriate instruments to
enable PFPC Trust to maintain or deliver in proper form for
transfer, or to register in the name of its nominee or in the name
of the Book-Entry System or in the name of another appropriate
entity, any securities which it may maintain for the Accounts. With
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respect to uncertificated securities which are registered in the
name of a Fund (or a nominee thereof), PFPC Trust will reflect such
securities on its records based upon the holdings information
provided to it by the issuer of such securities, but notwithstanding
anything in this Agreement to the contrary PFPC Trust shall not be
obligated to safekeep such securities or to perform other duties
with respect to such securities other than to make payment for the
purchase of such securities upon receipt of Oral or Written
Instructions, accept in sale proceeds received by PFPC Trust upon
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 Fund, except in accordance with Written
Instructions. PFPC Trust, directly or through the use of another
entity, shall execute in blank and promptly deliver all notices,
proxies and proxy soliciting materials received by PFPC Trust as
custodian of the Property to the registered holder of such
securities. If the registered holder is not a Fund, 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:
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(i) Collection of Income and Other Payments.
(A) collect and receive for the account of a Fund, all
income, dividends, distributions, coupons, option
premiums, other payments and similar items, included or
to be included in the Property, and, in addition,
promptly advise such Fund of such receipt and credit
such income to such Fund's custodian account;
(B) endorse and deposit for collection, in the name of a
Fund, checks, drafts, or other orders for the payment of
money;
(C) receive and hold for the account of a Fund all
securities received as a distribution on such Fund's
securities as a result of a stock dividend, share
split-up or reorganization, recapitalization,
readjustment or other rearrangement or distribution of
rights or similar securities issued with respect to any
securities belonging to such Fund 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 Fund in accordance with street
delivery custom;
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(2) for the exchange of interim receipts or temporary
securities for definitive securities; and
(3) for transfer of securities into the name of a Fund
or PFPC Trust or a sub-custodian or a nominee of
one of the foregoing, or for exchange of
securities for a different number of bonds,
certificates, or other evidence, representing the
same aggregate face amount or number of units
bearing the same interest rate, maturity date and
call provisions, if any; provided that, in any
such case, the new securities are to be delivered
to PFPC Trust.
(B) 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 a Fund;
(2) collect interest and cash dividends received, with
notice to a Fund;
(3) hold for the account of a Fund all stock
dividends, rights and similar securities issued
with respect to any securities held by PFPC Trust;
and
(4) subject to receipt of such documentation and
information as PFPC Trust may request, execute as
agent on behalf of a Fund all necessary ownership
certificates required by a national governmental
taxing authority or under the laws of any U.S.
state now or hereafter in effect, inserting a
Fund's name, 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
19
(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 a Fund. Such accounts may be used
to transfer cash and securities, including securities in a
Book-Entry System or other depository:
(A) for the purposes of compliance by a Fund with the
procedures required by a securities or option
exchange, providing such procedures comply with
the 1940 Act and any releases of the SEC relating
to the maintenance of segregated accounts by
registered investment companies; and
(B) upon receipt of Written Instructions, for other
purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such shareholders holding Shares
through XXX accounts, in accordance with each Fund's private
placement memorandum, 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 a Fund, PFPC Trust and such Fund's
transfer agent.
(j) Purchases of Securities. PFPC Trust shall settle purchased
securities upon receipt of Oral Instructions or Written Instructions
that specify:
(i) the name of the issuer and the title of the securities,
including CUSIP number if applicable;
(ii) the number of shares or the principal amount purchased and
accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase; and
20
(vi) the name of the person from whom or the broker through whom
the purchase was made. PFPC Trust shall upon receipt of
securities purchased by or for a Fund (or otherwise in
accordance with standard market practice) pay out of the
monies held for the account of such Fund the total amount
payable to the person from whom or the broker through whom the
purchase was made, provided that the same conforms to the
total amount payable as set forth in such Oral Instructions or
Written Instructions.
(k) Sales of Securities. PFPC Trust shall settle sold securities upon
receipt of Oral Instructions or Written Instructions that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and accrued
interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to a Fund upon such sale;
(vi) the name of the broker through whom or the person to whom the
sale was made; and
(vii) the location to which the security must be delivered and
delivery deadline, if any.
PFPC Trust shall deliver the securities upon receipt of the total amount
payable to a Fund upon such sale, provided that the total amount payable
is the same as was set forth in the Oral Instructions or Written
Instructions. Notwithstanding anything to the contrary in this Agreement,
PFPC Trust may accept payment in such form as is consistent with standard
industry practice and may deliver assets and arrange for payment in
accordance with standard market practice.
(l) Reports; Proxy Materials.
(i) PFPC Trust shall furnish to each Fund the following reports:
21
(A) such periodic and special reports as a Fund may
reasonably request;
(B) a monthly statement summarizing all transactions and
entries for the account of a Fund, listing each
portfolio security belonging to such Fund (with the
corresponding security identification number) held at
the end of such month and stating the cash balance of
such Fund at the end of such month.
(C) the reports required to be furnished to a 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 a Fund and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to a 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 such Fund as to such actions or events. For
clarification, upon termination of this Agreement PFPC Trust
shall have no responsibility to transmit such material or to
inform such Fund or any other person of such actions or
events.
(m) Crediting of Accounts. PFPC Trust may in its sole discretion credit
the Accounts 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 the Accounts on
a contractual settlement date with respect to any sale, exchange or
purchase applicable to the Accounts; 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
22
credits the Accounts 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
Accounts, and to otherwise pursue recovery of any such amounts so
credited from a Fund. The Trust on behalf of each Fund hereby grants
to PFPC Trust and to each sub-custodian utilized by PFPC Trust in
connection with providing services to each Fund a first priority
contractual possessory security interest in and a right of setoff
against the assets maintained in the Accounts 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 the Accounts. 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 a Fund which
sub-custodian makes any credits or advances with respect to such
Fund.
23
(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 a Fund. If payment is not received by PFPC Trust within a
reasonable time after proper demands have been made, PFPC Trust
shall notify such Fund in writing, including copies of all demand
letters, any written responses and memoranda of all oral responses
and shall await instructions from such 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 each Fund as soon as reasonably practicable whenever income
due on securities is not collected in due course and shall provide
each Fund with periodic status reports of such income collected
after a reasonable time.
(o) Excess Cash Sweep. PFPC Trust will, consistent with applicable law,
sweep any net excess cash balances daily into an investment vehicle
or other instrument designated in Written Instructions, so long as
the investment vehicle or instrument 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.
24
15. Duration and Termination.
(a) The term of this Agreement is for an initial term beginning from the
date of this Agreement and continuing through the close of business
three (3) years thereafter (the "Initial Term"). Upon the expiration
of the Initial Term, this Agreement will automatically renew for
successive terms of one (1) year ("Renewal Terms"). Either Party may
terminate this Agreement 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 sixty (60) days prior to the expiration of the Initial
Term or the then current Renewal Term. In the event a Fund gives
notice of termination, all expenses associated with movement (or
duplication) of records and materials and conversion thereof to a
successor service provider (or each successor service provider, if
there are more than one), and all trailing expenses incurred by PFPC
Trust, will be borne by such Fund.
(b) If a party hereto fails in any material respect to perform its
duties and obligations hereunder (a "Defaulting Party"), or if a
representation and warranty of a party hereof becomes untrue or
inaccurate in any material respect, the other party (the
"Non-Defaulting Party") may give written notice thereof to the
25
Defaulting Party, and if such material 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. Termination of this Agreement by the
Non-Defaulting Party shall not constitute a waiver of any other
rights or remedies with respect to obligations of the parties prior
to such termination or rights of PFPC Trust to be reimbursed for all
of its out-of-pocket expenses and its normal monthly fees or other
obligations due it. 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.
(c) Notwithstanding anything contained in this Agreement to the
contrary, should a merger, acquisition, change in control,
re-structuring, re-organization or any other decision involving a
Fund or any affiliate (as defined under the 0000 Xxx) of a Fund
result in such Fund's desire to cease to use PFPC Trust as the
provider of any of the services set forth hereunder in favor of
another service provider prior to the expiration of the then current
Initial or Renewal Term, PFPC Trust shall make a good faith effort
to facilitate a conversion of services to such Fund's successor
service provider, however, there can be no guarantee that PFPC Trust
will be able to facilitate such a conversion of services on the
conversation date requested by such Fund. In connection with the
26
foregoing and prior to such conversion to the successor service
provider, the payment of all fees to PFPC Trust as set forth herein
shall be accelerated to a date prior to the conversion or
termination of services and calculated as if the services had
remained with PFPC Trust until the expiration of the then current
Initial or Renewal Term and calculated at the asset and/or
shareholder account levels, as the case may be, on the date notice
of termination was given to PFPC Trust.
(d) Upon occurrence of any of the following events, the party not
subject to such event shall have the right to immediately terminate
this Agreement upon written notice to the other party: (i) either
party ceases doing (or gives notice of ceasing to do) business and
its business is not continued by another corporation or entity who
has agreed to assume its obligations, (ii) either party becomes
insolvent or files for or becomes a party to any involuntary
bankruptcy, receivership or similar proceeding, and such involuntary
proceeding is not dismissed within forty-five (45) calendar days
after filing, or (iii) either party makes an assignment for the
benefit of creditors.
17. Notices. Notices shall be addressed (a) if to PFPC Trust at 0000 Xxxxxxx
Xxxxxxxxx, 0xx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxx
Xxxxxxxx (or such other address as PFPC Trust may inform the Trust in
writing); (b) if to a Fund, at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx
00000, Attn: President or (c) if to neither of the foregoing, at such
27
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 (5) days
after it has been mailed. If notice is sent by messenger, it shall be
deemed to have been given on the day it is delivered.
18. Amendments. This Agreement, or any term hereof, may be changed or waived
only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought.
19. Delegation; Assignment. PFPC Trust may assign its rights and delegate its
duties hereunder to any affiliate of PFPC Trust or of The PNC Financial
Services Group, Inc., provided that PFPC Trust gives each Fund thirty (30)
days prior written notice of such assignment or delegation.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. Miscellaneous.
(a) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter hereof,
provided that the parties may embody in one or more separate
documents their agreement, if any, with respect to delegated duties
and fee schedules.
28
(b) No Representations or Warranties. Except as expressly provided in
this Agreement, PFPC Trust hereby disclaims all representations and
warranties, express or implied, made to the Trust or any other
person, including, without limitation, any warranties regarding
quality, suitability, merchantability, fitness for a particular
purpose or otherwise (irrespective of any course of dealing, custom
or usage of trade), of any services or any goods provided incidental
to services provided under this Agreement. PFPC Trust disclaims any
warranty of title or non-infringement except as otherwise set forth
in this Agreement.
(c) No Changes that Materially Affect Obligations. Notwithstanding
anything in this Agreement to the contrary, the Trust agrees not to
make any modifications to its registration statement or adopt any
policies which would affect materially the obligations or
responsibilities of PFPC Trust hereunder without the prior written
approval of PFPC Trust, which approval shall not be unreasonably
withheld or delayed.
(d) Captions. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or
effect.
(e) Information. Each Fund will provide such information and
documentation as PFPC Trust may reasonably request in connection
with services provided by PFPC Trust to each Fund.
29
(f) Governing Law. This Agreement shall be deemed to be a contract made
in Delaware and governed by Delaware law, without regard to
principles of conflicts of law.
(g) Partial Invalidity. If any provision of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby.
(h) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(i) Facsimile Signatures. The facsimile signature of any party to this
Agreement shall constitute the valid and binding execution hereof by
such party.
(j) Customer Identification Program Notice. To help the U.S. government
fight the funding of terrorism and money laundering activities, U.S.
Federal law requires each financial institution to obtain, verify,
and record certain information that identifies each person who
initially opens an account with that financial institution on or
after October 1, 2003. Consistent with this requirement, PFPC Trust
may request (or may have already requested) each Fund's name,
address and taxpayer identification number or other
government-issued identification number, and, if such party is a
natural person, that party's date of birth. PFPC Trust may also ask
(and may have already asked) for additional identifying information,
and PFPC Trust may take steps (and may have already taken steps) to
verify the authenticity and accuracy of these data elements.
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/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
EIP INVESTMENT TRUST, on behalf of
the Funds listed on Schedule A
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
SCHEDULE A
EIP Growth and Income Fund
August 1, 2006
EIP INVESTMENT TRUST
Re: Custodian Services Fees
Dear Sir/Madam:
This letter constitutes our agreement with respect to compensation to be
paid to PFPC Trust Company ("PFPC Trust") under the terms of a Custodian
Services Agreement dated as of August 1, 2006 between PFPC Trust and EIP
Investment Trust on behalf of the Funds listed on Schedule A (each a "Fund" and
collectively the "Funds"), as amended from time to time (the "Agreement") for
services provided on behalf of the Funds. Pursuant to Paragraph 11 of the
Agreement, and in consideration of the services to be provided to the Funds, the
Funds will pay PFPC Trust certain fees and out-of-pocket and other charges as
follows:
Asset Based Fees for U.S. Securities:
The following fee will be calculated daily based upon each Fund's average
gross assets and payable monthly, in the following amounts:
.01% of average gross assets.
Transaction Charges for U.S. Securities:
A transaction includes buys, sells, calls, puts, maturities, free
deliveries, free receipts, exercised or expired options, opened or closed short
sales and the movement for each piece of underlying collateral for a repurchase
agreement, etc.
DTC/Fed book entry $10.00
Paydowns $ 4.50
Physical certificate $20.00
Options contract $30.00
Repurchase agreement $10.00
Wires $10.00
Third-party foreign exchange $50.00
Short sales $15.00
Fees and Transaction Charges for Non-U.S. Securities:
Fees and expenses relating to foreign custody, including without
limitation market specific asset based fees and transaction fees, are attached
hereto as Schedule B. The fees and expenses set forth in Schedule B are in
addition to the other fees and expenses set forth in this letter and may be
changed by PFPC Trust upon notice to a Fund.
Minimum Monthly Fees:
The minimum monthly fee will be $1,000 per Fund, excluding transaction
charges and out-of-pocket and other charges.
Out-of-Pocket and Other Charges:
PFPC Trust's out-of-pocket and other charges, include, but are not limited
to, global custody fees and charges, data warehouse access fees, federal express
delivery, data transmissions, reproduction, conversion and deconversion amounts,
check processing fees, tax processing and filing fees, $2 per month holdings
charge per security, $50 per third party currency movement (unless foreign
exchange is directed to PFPC Trust), segregated account charges ($100 per
segregated account), proxy services, SWIFT charges, and federal reserve wire
fees.
Miscellaneous:
With respect to any daily net overdrawn cash balances for the Funds, a
monthly charge shall be assessed based on 125% of the average federal funds rate
for that month.
PFPC Trust will, with respect to sweep earnings from the sweep of net
excess cash balances performed pursuant to the Agreement, credit each Fund with
such sweep earnings on a monthly basis (less .25% of assets swept as a service
fee to PFPC Trust).
PFPC Trust shall be entitled to deduct its fees and charges from each
Fund's account monthly when due, provided that PFPC Trust shall promptly account
for such fees and charges to each Fund. Adjustments to such fees and charges (if
any) will be made in the next monthly payment period.
PFPC Trust has made the following assumptions in preparing this fee
letter: (i) trade information will be transmitted electronically to PFPC Trust;
(ii) any securities lending activity will utilize PFPC Trust as the Fund's
securities lending agent pursuant to PFPC Trust's standard securities lending
program; and (iii) daily and monthly reports will be accessed via PFPC Trust's
on-line data warehouse. Any material departure from these assumptions may result
in a fee adjustment at the discretion of PFPC Trust.
The fee for the period from the day of the year this fee letter is entered
into until the end of that year shall be prorated according to the proportion
which such period bears to the full annual period.
If the foregoing accurately sets forth our agreement and you intend to be
legally bound thereby, please execute a copy of this letter and return it to us.
Very truly yours,
PFPC TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx, III
Title: Vice President
Agreed and Accepted:
EIP INVESTMENT TRUST,
On behalf of the Funds listed on Schedule A
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: CEO
-------------------------------
SCHEDULE A
EIP Growth and Income Fund
SCHEDULE B
Asset Based Fees and Transaction Charges for Non-U.S. Securities:
The following annual fee schedule will be calculated daily based upon the
total gross assets of each Fund and payable monthly:
Market Transaction Charge Basis Point
------ ------------------ -----------
Xxxxxxxxx 00 00
Xxxxxxxxx 00 0
Xxxxxxx 75 0
Xxxxxxx 00 0
Xxxxxxxx 000 00
Xxxxxx - includes local administration 50 25
Canada 25 3
Xxxxx/Xxxxxxxxx 00 0
Xxxxx- not including local administration 85 50
China 85 50
Colombia - not including local administration 00 00
Xxxxx Xxxxxxxx 60 00
Xxxxxxx 00 0
Xxxxxxx 000 00
Xxxxx 120 45
Xxxxxxx 00 0
Xxxxxx 00 0
Xxxxxxx 50 5
Greece 85 50
Hong Kong 50 8
Hungary 120 45
India 120 45
Indonesia 50 25
Ireland 35 3
Israel 50 20
Italy 40 4
Japan 40 4
Jordan 90 50
Korea 40 12
Market Transaction Charge Basis Point
------ ------------------ -----------
Malaysia 50 00
Xxxxxx 00 0
Xxxxxxx 000 00
Xxxxxxxxxxx 40 4
New Zealand 50 5
Xxxxxx 00 0
Xxxxxxxx 00 00
Xxxx 90 50
Philippines 80 00
Xxxxxx 00 00
Xxxxxxxx 00 00
Xxxxxx (Xxx Fin Bods only) 90 45
Singapore 80 6
South Africa 40 0
Xxxxx 00 0
Xxx Xxxxx 60 20
Sweden 40 4
Switzerland 45 4
Xxxxxx 00 00
Xxxxxxxx 00 0
Xxxxxx 50 20
United Kingdom 25 3
Uruguay 80 40
Venezuela 00 00
Xxxxxxxx 000 00
