Exhibit (g)
DELEGATION, CUSTODY AND INFORMATION SERVICES AGREEMENT
AGREEMENT dated as of December 10th, 1998 between PPM American Funds
("Trust"), a business trust organized under the laws of the Commonwealth of
Massachusetts having its principal office and place of business at 000 Xxxx
Xxxxxx Xxxxx, Xxxxxxx, XX 00000, and BOSTON SAFE DEPOSIT AND TRUST COMPANY
("Custodian"), a Massachusetts trust company with its principal place of
business at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, The Trust is authorized to issue shares in separate series with
each such series representing interests in a separate portfolio of securities
and other assets, and the Trust has made the PPM America Value Equity Fund, the
PPM America Small Cap Value Equity Fund and the PPM American High Yield Bond
Fund subject to this Agreement (each such series, together with all other series
subsequently established by the Trust and made subject to the Agreement in
accordance with the terms hereof, shall be referred to as a Fund" and
collectively as the "Funds";.
WHEREAS, The Board desires to delegate certain of its responsibilities for
performing the services set forth in paragraphs (c)(1), (c)(2) and (c)(3) of
Rule 17f-5 to the Custodian;
WHEREAS, The Custodian agrees to accept such delegation with respect to
Assets held by Eligible Foreign Custodians in the jurisdictions listed on
APPENDIX B as set forth in Article II;
WHEREAS, The Trust desires to hire the Custodian as a vendor to provide
certain information available to the Custodian with respect to foreign
jurisdictions, Securities Depositories and Foreign Custodians not listed on
APPENDIX B for which the board or a delegatee other than the Custodian has the
responsibilities described in paragraphs (c)(1), (c)(2) and (c)(3) of
Rule 17f-5; and
WHEREAS, The Custodian agrees to provide, as a vendor, the information
described in Article IV if, and when available in accordance with the terms and
conditions of Article IV.
WHEREAS, The Trust and the Custodian desire to set forth their agreement
with respect to the custody of the Funds' Securities and cash and the processing
of Securities transactions;
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth, the Trust and the Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement or in any Appendices to this Agreement, the
following words and phrases, unless the context otherwise requires, shall have
the following meanings:
(a) "Affiliated Person" shall have the meaning of the term within
Section 2(a)3 of the 1940 Act.
(b) "Agreement" shall mean this Delegation, Custody and Information
Services Agreement.
(c) "Assets" shall mean any of Funds' investments (including foreign
currencies) for which the primary market is outside the United States,
and such cash and cash equivalents as are reasonably necessary to
effect the Funds' transactions in such investments.
(d) "Authorized Person" shall be deemed to include the Chairman of
the Board, the President, and any Vice President, the Secretary, the
Treasurer or any other person, whether or not any such person is an
officer or employee of the Trust, duly authorized by the Board to add
or delete jurisdictions pursuant to Article II and to give Oral
Instructions and Written Instructions on behalf of a Fund and listed
in the certification annexed hereto as APPENDIX A or such other
certification as may be received by the Custodian from time to time.
(e) "Board" shall mean the Board of Trustees of the Trust.
(f) "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency Securities, its
successor or successors and its nominee or nominees.
(g) "Business Day" shall mean any day on which the Fund, the
Custodian, the Book-Entry System and appropriate clearing
corporation(s) are open for business.
(h) "Certificate" shall mean any notice, instruction or other
instrument in writing, authorized or required by this Agreement to be
given to the Custodian, which is actually received by the Custodian
and signed on behalf of a Fund by any two Authorized Persons.
(i) "Country Risk" means all factors reasonably related to the
systematic risk of holding assets in a particular country including,
but not limited to, such country's financial infrastructure (including
any Securities Depositories operating in such country), prevailing
custody and settlement practices and laws applicable to the
safekeeping and recovery of Assets held in custody.
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(j) "Custodian" shall mean Boston Safe Deposit and Trust Company in
its capacity as delegate, custodian or information services provider
as required under the terms of each Article.
(k) "Custody Agreement" shall mean the provisions of Articles I, III
and V of this Agreement and any Appendices referenced therein and
attached to this Agreement.
(l) "Information Services Agreement" shall mean the provisions of
Articles I and IV and V of this Agreement and any Appendices
referenced therein and attached to this Agreement.
(m) Master Trust Agreement shall mean Declaration and Agreement of
Trust of the Trust dated September 9, 1998, as the same may be amended
from time to time.
(n) "Foreign Custodian" shall mean: (a) a banking institution or
trust company incorporated or organized under the laws of a country
other than the United States, that is regulated as such by the
country's government or an agency of the country's government; (b) a
majority-owned direct or indirect subsidiary of a U.S. Bank or bank-
holding company; or (c) any entity other than a Securities Depository
with respect to which exemptive or no-action relief has been granted
by the U. S. Securities and Exchange Commission. For the avoidance of
doubt, the term "Foreign Custodian" shall not include Euroclear,
Cedel, First Chicago Clearing Centre or any other transnational system
for the central handling of securities or equivalent book-entries
regardless of whether or not such entities are acting in a custodial
capacity with respect to Assets, Securities or other property of the
Fund.
(o) "Delegation Agreement" shall mean the provisions of Articles I,
II and V of this Agreement and any Appendices referenced therein and
attached to this Agreement.
(p) "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest and
principal by the government of the United States or agencies or
instrumentalities thereof ("U.S. government securities"), commercial
paper, bank certificates of deposit, bankers' acceptances and
short-term corporate obligations, where the purchase or sale of such
securities normally requires settlement in federal funds on the same
day as such purchase or sale, and repurchase and reverse repurchase
agreements with respect to any of the foregoing types of securities.
(q) "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by the
Custodian to be an
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Authorized Person or Senior Authorized Person.
(r) "Prospectus" shall mean a Fund's current prospectus and statement of
additional information relating to the registration of the Fund's
Shares under the Securities Act of 1933, as amended.
(s) "Rule 17f-5" shall mean Rule 17f-5 promulgated under Section 17(f) of
the 1940 Act as such rule (and any successor regulation) may be
amended from time to time.
(t) "Selected Countries" means the jurisdictions listed on APPENDIX B as
such may be amended from time to time in accordance with Article II.
(u) "Senior Authorized Person" shall be deemed to be Xxxx X. Xxxxxxx or
Xxxx X. Xxxxx
(v) "Shares" refers to shares of beneficial interest of each Fund.
(w) "Security" or "Securities" shall be deemed to include bonds,
debentures, notes, stocks, shares, evidences of indebtedness, and
other securities, commodities interests and investments from time to
time owned by the Funds.
(x) "Securities Depository" shall mean any entity described in
subparagraph (a)(1)(ii) or paragraph (a)(6) of Rule 17f-5 or any
other recognized foreign or domestic clearing facility, book-entry
system, centralized custodial depository or similar organization. For
the avoidance of doubt, the term "Securities Depository" shall include
Euroclear, Cedel, First Chicago Clearing Centre or any other
transnational system for the central handling of securities or
equivalent book-entries regardless of whether or not such entities are
acting in a custodial capacity with respect to Assets, Securities or
other property of the Funds.
(y) "Transfer Agent" shall mean the person which performs the transfer
agent, dividend disbursing agent and shareholder servicing agent
functions for a Fund.
(z) "Written Instructions" shall mean a written communication actually
received by the Custodian from a person reasonably believed by the
Custodian to be an Authorized Person or Senior Authorized Person by
any system, including, without limitation, electronic transmissions,
facsimile and telex.
(aa) The "1940 Act" refers to the Investment Company Act of 1940, and the
Rules and Regulations thereunder, all as amended from time to time.
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ARTICLE II
DELEGATION AGREEMENT
1. REPRESENTATIONS.
(a) STATUS OF CUSTODIAN. The Custodian represents that it is a U.S. Bank
within the meaning of paragraph (a)(7) of Rule 17f-5 under the 1940
Act.
(b) TRUST DETERMINATIONS AND AUTHORIZATIONS. The Board represents that it
has determined that it is reasonable to rely on Custodian to perform
the responsibilities delegated pursuant to this Delegation Agreement
and that it has made the delegations set forth below, subject to the
acceptance of such delegation by the Custodian on the terms and
conditions set forth in this Delegation Agreement.
(c) TRUST RESPONSIBILITIES. The Trust acknowledges and agrees that,
except as expressly set forth in this Delegation Agreement, the Trust
is solely responsible to assure that the maintenance of the each
Fund's Securities and cash (including Assets) hereunder complies with
applicable laws and regulations, including without limitation the 1940
Act and the rules and regulations promulgated thereunder and
applicable interpretations thereof or exemptions therefrom.
2. DELEGATION AND CUSTODIAN'S SERVICES.
(a) DELEGATION. Subject to the provisions of this Delegation Agreement
and the requirements of Rule 17f-5, the Board hereby delegates to, and
the Custodian hereby agrees to accept the responsibility for
selecting, contracting with and monitoring Foreign Custodians in
Selected Countries in accordance with paragraphs (c)(1), (c)(2) and
(c)(3) of Rule 17f-5. Pursuant to this delegation, the Board
authorizes the Custodian to place and maintain Assets in the care of
any Foreign Custodian(s) in the Selected Countries and to enter into,
on behalf of a Fund, such written contracts governing the Fund's
foreign custody arrangements with such Foreign Custodian(s) as the
Custodian deems appropriate.
(b) SCOPE OF DELEGATION. The delegation contained in Section 2(a) applies
only to the selection of, contracting with and monitoring of Foreign
Custodians located in Selected Countries and only with respect to
Assets held by such Foreign Custodians in Selected Countries. The
Board and the Custodian agree that nothing in this Delegation
Agreement or this Agreement as a whole shall cause or be deemed to
cause any delegation to the Custodian of any of the Board's
responsibilities with respect to Assets, Securities or other property
held in Securities Depositories or Assets held by Foreign Custodians
in jurisdictions other than Selected Countries.
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(c) ADDITIONS TO APPENDIX B. APPENDIX B may be amended from time to time
to add jurisdictions by an instrument in writing signed by an
Authorized Person and the Custodian, provided that with respect to any
amendment that adds a jurisdiction to APPENDIX B, the Custodian's
responsibility and authority with respect to any jurisdiction so added
will commence at the later of (i) the time that the Custodian and the
Authorized Person have both executed such amendment, or (ii) the time
that the Custodian receives a copy of such executed amendment.
(d) DELETIONS FROM APPENDIX B. The Board may withdraw its delegation with
respect to any jurisdiction upon written notice to the Custodian. The
Custodian shall withdraw its acceptance of delegated authority with
respect to any jurisdiction upon written notice to the Board. Upon
receipt of such notice by the party to whom such notice is given, the
Custodian shall have no further responsibilities under this Delegation
Agreement with respect to the selecting, contracting with, and
monitoring of any Foreign Custodian holding Assets in the removed
jurisdiction.
(e) REPORTS TO BOARD. Custodian shall provide written reports notifying
Board of the placement of Assets with a particular Foreign Custodian
and of any material change in a Fund's foreign custody arrangements.
Such reports shall be provided to Board quarterly, except as otherwise
agreed by the Custodian and the Trust.
(f) MONITORING SYSTEM. In each case in which the Custodian has exercised
the authority delegated under this Article II, Section 2 to place
Assets with an Foreign Custodian, the Custodian is authorized to, and
shall, on behalf of a Fund, establish a system to re-assess or
re-evaluate, at least annually (i) the appropriateness of maintaining
Assets with such Foreign Custodian and (ii) the contract governing the
Fund's arrangements with such Foreign Custodian.
3. GUIDELINES AND PROCEDURES.
(a) COUNTRY RISK. In exercising its delegated authority under Article II,
Section 2, the Custodian may assume, for all purposes, that the Board
(or the Fund's investment adviser, pursuant to authority delegated by
the Board) has considered, and, pursuant to its fiduciary duties to
the Funds and the Fund's shareholders, determined to accept, such
Country Risk. In exercising its delegated authority under Article II,
Section 2, the Custodian may also assume that the Board (or the Fund's
investment adviser, pursuant to authority delegated by the Board) has,
and will continue to, monitor such Country Risk to the extent the
Board deems necessary or appropriate. Nothing in this Delegation
Agreement shall require the Custodian to make any selection or to
engage in any monitoring on behalf of a Fund (i) that would entail
consideration of Country Risk or (ii) otherwise in connection with any
Securities Depository or Foreign Custodians in jurisdictions other
than Selected Countries.
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(b) STANDARD OF CARE FOR SELECTION OF ELIGIBLE FOREIGN CUSTODIANS. In
exercising the authority delegated under Article II, Section 2, to
place Assets with a Foreign Custodian in a Selected Country, the
Custodian shall determine that Assets will be subject to reasonable
care, based on the standards applicable to custodians in the Selected
Country in which the Assets will be held, after considering all
factors relevant to the safekeeping of such assets, including the
factors set forth in Rule 17f-5(c)(1)(i)-(iv).
(c) STANDARD FOR CONTRACTING WITH ELIGIBLE FOREIGN CUSTODIANS. In
exercising the authority delegated under Article II, Section 2, to
enter into a written contract governing a Fund's foreign custody
arrangements with a Foreign Custodian in a Selected Country, the
Custodian shall determine that such contract provides reasonable care
for Assets based on the standards applicable to Foreign Custodians in
the Selected Country. In making this determination, the Custodian
shall consider the provisions of Rule 17f-5(c)(2).
(d) STANDARD OF CARE FOR DELEGATED AUTHORITY. In exercising the authority
delegated under Article II, Section 2, the Custodian agrees to
exercise reasonable care, prudence and diligence such as a person
having responsibility for the safekeeping of the Assets would
exercise.
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ARTICLE III
CUSTODY PROVISIONS
1. APPOINTMENT OF CUSTODIAN.
(a) The Board hereby constitutes and appoints the Custodian as
custodian of all the Securities and monies at the time owned by or in
the possession of the Funds during the period of this Agreement.
(b) The Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as hereinafter set forth
2. CUSTODY OF CASH AND SECURITIES.
(a) RECEIPT AND HOLDING OF ASSETS. The Funds will deliver or cause
to be delivered to the Custodian all Securities and monies owned by
them at any time during the period of this Custody Agreement. The
Custodian will not be responsible for such Securities and monies until
actually received by it. The Board hereby specifically authorizes the
Custodian to hold Securities, Assets or other property of the Funds
with any domestic subcustodian, Foreign Custodian or Securities
Depository. Securities and monies of the Funds deposited in a
Securities Depository will be represented in accounts which include
only assets held by the Custodian for customers, including but not
limited to accounts for which the Custodian acts in a fiduciary or
representative capacity.
(b) ACCOUNTS AND DISBURSEMENTS. The Custodian shall establish and
maintain a separate account in the name of each Fund and shall credit
to such separate accounts all monies received by it for the account of
each Fund and shall disburse the same only:
1. In payment for Securities purchased for the applicable Fund;
2. In payment of dividends or distributions with respect to the
Shares;
3. In payment of original issue or other taxes with respect to the
Shares;
4. In payment for Shares which have been redeemed by the applicable
Fund;
5. Pursuant to Written Instructions received by a Senior Authorized
Person setting forth the name and address of the person to whom the
payment is to be made, the amount to be paid and the purpose for which
payment is to be made, provided that in the event of disbursements
pursuant to this sub-section 2(b), the
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Trust shall indemnify and hold the Custodian harmless from any claims
or losses arising out of such disbursements in reliance on such
Written Instructions which it, in good faith, believes to be received
from duly Senior Authorized Persons; or
6. In payment of fees and in reimbursement of the expenses and
liabilities of the Custodian attributable to the applicable Fund, as
provided in Article III, Section 9(I) and Article V, Section 1.
(c) CONFIRMATION AND STATEMENTS. Promptly after the close of
business on each day, the Custodian shall furnish each Fund with
confirmations and a summary of all transfers to or from the account of
the Fund during said day. Where securities purchased by a Fund are in
a fungible bulk of securities registered in the name of the Custodian
(or its nominee) or shown on the Custodian's account on the books of a
Securities Depository, the Custodian shall by book-entry or otherwise
identify the quantity of those securities belonging to that Fund. At
least monthly, the Custodian shall furnish each Fund with a detailed
statement of the Securities and monies held for the Fund under this
Custody Agreement.
(d) REGISTRATION OF SECURITIES AND PHYSICAL SEPARATION. The
Custodian is authorized to hold all Securities, Assets, or other
property of each Fund in nominee name, in bearer form or in book-entry
form. The Custodian may register any Securities, Assets or other
property of each Fund in the name of the Trust or the Fund, in the
name of the Custodian, any domestic subcustodian, or Foreign
Custodian, in the name of any duly appointed registered nominee of
such entity, or in the name of a Securities Depository or its
successor or successors, or its nominee or nominees. The Custodian is
hereby authorized to deposit with, and hold Securities, Assets or
other property of the applicable Fund with any Securities Depository.
The Trust agrees to furnish to the Custodian appropriate instruments
to enable the Custodian to hold or deliver in proper form for
transfer, or to register in the name of its registered nominee or in
the name of a Securities Depository, any Securities which it may hold
for the account of the applicable Fund and which may from time to time
be registered in the name of the Trust or the applicable Fund. The
Custodian shall hold all such Securities specifically allocated to the
applicable Fund which are not held in a Securities Depository in a
separate account for the Fund in the name of the Fund physically
segregated at all times from those of any other person or persons.
(e) SEGREGATED ACCOUNTS. Upon receipt of a Written Instruction, the
Custodian will establish segregated accounts on behalf of the
applicable Fund to hold liquid or other assets as it shall be directed
by a Written Instruction and shall increase or decrease the assets in
such segregated account only as it shall be directed by subsequent
Written Instruction.
(f) COLLECTION OF INCOME AND OTHER MATTERS AFFECTING SECURITIES.
Unless otherwise instructed to the contrary by a Written Instruction,
the Custodian by
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itself, or through the use of a Securities Depository with respect to
Securities therein deposited, shall with respect to all Securities
held for the Funds in accordance with this Agreement:
1. Collect all income due or payable, provided that the Custodian
shall not be responsible for the failure to receive payment of (or
late payment of) distribution with respect to securities or other
property held in the account;
2. Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, retired or
otherwise become payable. Notwithstanding the foregoing, the
Custodian shall have no responsibility to the Funds for monitoring or
ascertaining any call, redemption or retirement dates with respect to
put bonds which are owned by the Funds and held by the Custodian or
its nominees. Nor shall the Custodian have any responsibility or
liability to the Funds for any loss by the Funds for any missed
payments or other defaults resulting therefrom, unless the Custodian
received timely notification from the Funds specifying the time, place
and manner for the presentment of any such put bond owned by the Funds
and held by the Custodian or its nominee. The Custodian shall not be
responsible and assumes no liability for the accuracy or completeness
of any notification the Custodian may furnish to the Funds with
respect to put bonds;
3. Surrender Securities in temporary form for definitive Securities;
4. Promptly execute any necessary declarations or certificates of
ownership under the Federal income tax laws or the laws or regulations
of any other taxing authority now or hereafter in effect; and
5. Hold directly, or through a Securities Depository with respect to
Securities therein deposited, for the account of the applicable Fund
all rights and similar Securities issued with respect to any
Securities held by the Custodian hereunder for that Fund.
(g) DELIVERY OF SECURITIES AND EVIDENCE OF AUTHORITY. Upon receipt
of a Written Instruction and not otherwise, except for subparagraphs
5, 6, 7, and 8 of this section 2(g) which may be effected by Oral or
Written Instructions, the Custodian, directly or through the use of a
Securities Depository, shall:
1. Execute and promptly deliver or cause to be executed and
delivered to such persons as may be designated in such Written
Instructions, proxies, consents, authorizations, and any other
instruments whereby the authority of the applicable Fund as owner of
any Securities may be exercised;
2. Deliver or cause to be delivered any Securities held for the
applicable Fund in exchange for other Securities or cash issued or
paid in connection with
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the liquidation, reorganization, refinancing, merger, consolidation or
recapitalization of any corporation, or the exercise of any conversion
privilege;
3. Deliver or cause to be delivered any Securities held for the
applicable Fund to any protective committee, reorganization committee
or other person in connection with the reorganization, refinancing,
merger, consolidation or recapitalization or sale of assets of any
corporation, and receive and hold under the terms of this Custody
Agreement in the separate account for the Fund such certificates of
deposit, interim receipts or other instruments or documents as may be
issued to it to evidence such delivery;
4. Make or cause to be made such transfers or exchanges of the
assets specifically allocated to the separate account of the
applicable Fund and take such other steps as shall be stated in
Written Instructions to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger, consolidation
or recapitalization of the Fund;
5. Deliver Securities upon sale of such Securities for the account
of the applicable Fund pursuant to Section 3;
6. Deliver Securities upon the receipt of payment in connection with
any repurchase agreement related to such Securities entered into by
the applicable Fund;
7. Deliver Securities owned by the applicable Fund to the issuer
thereof or its agent when such Securities are called, redeemed,
retired or otherwise become payable; provided, however, that in any
such case the cash or other consideration is to be delivered to the
Custodian. Notwithstanding the foregoing, the Custodian shall have no
responsibility to the Fund for monitoring or ascertaining any call,
redemption or retirement dates with respect to the put bonds which are
owned by the Fund and held by the Custodian or its nominee. Nor shall
the Custodian have any responsibility or liability to the Fund for any
loss by the Fund for any missed payment or other default resulting
therefrom unless the Custodian received timely notification from the
Fund specifying the time, place and manner for the presentment of any
such put bond owned by the Fund and held by the Custodian or its
nominee. The Custodian shall not be responsible and assumes no
liability to the Fund for the accuracy or completeness of any
notification the Custodian may furnish to the Fund with respect to put
bonds;
8. Deliver Securities for delivery in connection with any loans of
Securities made by the Funds but only against receipt of adequate
collateral as agreed upon from time to time by the Custodian and the
Funds which may be in the form of cash or U.S. government securities
or a letter of credit;
9. Deliver Securities for delivery as security in connection with
any
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borrowings by the Funds requiring a pledge of the applicable Fund's
assets, but only against receipt of amounts borrowed;
10. Deliver Securities upon receipt of Written Instructions from a
Fund for delivery to the Transfer Agent or to the holders of Shares in
connection with distributions in kind, as may be described from time
to time in the Fund's Prospectus, in satisfaction of requests by
holders of Shares for repurchase or redemption;
11. Deliver Securities as collateral in connection with short sales
by a Fund of common stock for which the Fund owns the stock or owns
preferred stocks or debt securities convertible or exchangeable,
without payment or further consideration, into shares of the common
stock sold short;
12. Deliver Securities for any purpose expressly permitted by and in
accordance with procedures described in the Trust's Prospectus; and
13. Deliver Securities for any other proper business purpose, but
only upon receipt of, in addition to Written Instructions, a certified
copy of a resolution of the Board signed by an Authorized Person and
certified by the Secretary of the Funds, specifying the Securities to
be delivered, setting forth the purpose for which such delivery is to
be made, declaring such purpose to be a proper business purpose, and
naming the person or persons to whom delivery of such Securities shall
be made.
Notwithstanding anything in this Agreement to the contrary, the Custodian
shall not be liable for the acts or omissions of any agent appointed under
paragraph (f) of Section 9 pursuant to Oral or Written Instructions
including, but not limited to, any broker-dealer or other entity designated
by a Fund or its investment advisor to hold any Securities or other
property of the Fund as collateral or otherwise pursuant to any investment
strategy.
(h) ENDORSEMENT AND COLLECTION OF CHECKS, ETC. The Custodian is
hereby authorized to endorse and collect all checks, drafts or other
orders for the payment of money received by the Custodian for the
account of the applicable Fund.
3. SETTLEMENT OF FUNDS TRANSACTIONS.
(a) CUSTOMARY PRACTICES. Notwithstanding anything to the contrary in this
Agreement, the Custodian is authorized to settle transactions in
accordance with trading and processing practices customary in the
jurisdiction or market where the transaction occurs. The Trust
acknowledges that this may, in certain circumstances, require the
delivery of cash or Securities (or other property) without the
concurrent receipt of Securities (or other property) or cash and, in
such circumstances, the Trust shall have responsibility for
nondelivery of Securities or other property (or late delivery)
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or nonreceipt of payments of monies (or late payment) by the
counterparty.
(b) CONTRACTUAL INCOME. The Custodian shall credit the applicable Fund
with income and maturity proceeds on securities on contractual payment
date net of any taxes or upon actual receipt as agreed between the
Custodian and the Fund. To the extent the Fund and the Custodian have
agreed to credit income on contractual payment date, the Custodian may
reverse such accounting entries with back value to the contractual
payment date if the Custodian reasonably believes that it will not
receive such amount.
(c) CONTRACTUAL SETTLEMENT. The Custodian will attend to the settlement
of securities transactions on the basis of either contractual
settlement date accounting or actual settlement date accounting as
agreed between the Trust and the Custodian. To the extent the Trust
and the Custodian have agreed to settle certain securities
transactions on the basis of contractual settlement date accounting,
the Custodian may reverse with back value to the contractual
settlement date any entry relating to such contractual settlement
where the related transaction remains unsettled in accordance with
established procedures.
4. LENDING OF SECURITIES.
The Custodian may lend the assets of the Funds in accordance with the terms
and conditions of a separate securities lending agreement.
5. PAYMENT OF DIVIDENDS OR DISTRIBUTIONS.
(a) The Trust shall furnish to the Custodian the vote of the Board
certified by the Secretary (i) authorizing the declaration of
distributions on a specified periodic basis and authorizing the
Custodian to rely on Oral or Written Instructions specifying the date
of the declaration of such distribution, the date of payment thereof,
the record date as of which shareholders entitled to payment shall be
determined, the amount payable per share to the shareholders of record
as of the record date and the total amount payable to the Transfer
Agent on the payment date, or (ii) setting forth the date of
declaration of any distribution by the Funds, the date of payment
thereof, the record date as of which shareholders entitled to payment
shall be determined, the amount payable per share to the shareholders
of record as of the record date and the total amount payable to the
Transfer Agent on the payment date.
(b) Upon the payment date specified in such vote, Oral Instructions
or Written Instructions, as the case may be, the Custodian shall pay
out the total amount payable to the Transfer Agent of the Trust.
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6. SALE AND REDEMPTION OF SHARES OF THE FUNDS.
(a) Whenever a Fund shall sell any Shares, that Fund shall deliver or
cause to be delivered to the Custodian a Written Instruction duly
specifying:
1. The number of Shares sold, trade date, and price; and
2. The amount of money to be received by the Custodian for the sale
of such Shares.
The Custodian understands and agrees that Written Instructions may be
furnished subsequent to the purchase of Shares and that the
information contained therein will be derived from the sales of Shares
as reported to the Fund by the Transfer Agent.
(b) Upon receipt of money from the Transfer Agent, the Custodian
shall credit such money to the separate account of the applicable
Fund.
(c) Upon issuance of any Shares in accordance with the foregoing
provisions of this Section 6, the Custodian shall pay all original
issue or other taxes required to be paid in connection with such
issuance upon the receipt of a Written Instruction specifying the
amount to be paid.
(d) Except as provided hereafter, whenever any Shares are redeemed, a
Fund shall cause the Transfer Agent to promptly furnish to the
Custodian Written Instructions, specifying:
1. The number of Shares redeemed; and
2. The amount to be paid for the Shares redeemed.
The Custodian further understands that the information contained in
such Written Instructions will be derived from the redemption of
Shares as reported to the Fund by the Transfer Agent.
(e) Upon receipt from the Transfer Agent of advice setting forth the
number of Shares received by the Transfer Agent for redemption and
that such Shares are valid and in good form for redemption, the
Custodian shall make payment to the Transfer Agent of the total amount
specified in a Written Instruction issued pursuant to paragraph (d) of
this Section 6.
(f) Notwithstanding the above provisions regarding the redemption of
Shares, whenever such Shares are redeemed pursuant to any check
redemption privilege which may from time to time be offered by the
Funds, the Custodian, unless otherwise instructed by a Written
Instruction shall, upon receipt of advice from
14
the Funds or its agent stating that the redemption is in good form for
redemption in accordance with the check redemption procedure, honor
the check presented as part of such check redemption privilege out of
the monies specifically allocated to the Funds in such advice for such
purpose.
7. INDEBTEDNESS.
(a) The Trust will cause to be delivered to the Custodian by any bank
(excluding the Custodian) from which the a Fund borrows money for
temporary administrative or emergency purposes using Securities as
collateral for such borrowings, a notice or undertaking in the form
currently employed by any such bank setting forth the amount which
such bank will loan to the Fund against delivery of a stated amount of
collateral. The Fund shall promptly deliver to the Custodian Written
Instructions stating with respect to each such borrowing: (1) the
name of the bank; (2) the amount and terms of the borrowing, which may
be set forth by incorporating by reference an attached promissory
note, duly endorsed by the Funds, or other loan agreement; (3) the
time and date, if known, on which the loan is to be entered into (the
"borrowing date"); (4) the date on which the loan becomes due and
payable; (5) the total amount payable to the Funds on the borrowing
date; (6) the market value of Securities to be delivered as collateral
for such loan, including the name of the issuer, the title and the
number of shares or the principal amount of any particular Securities;
(7) whether the Custodian is to deliver such collateral through a
Securities Depository; and (8) a statement that such loan is in
conformance with the 1940 Act and the Trust's Prospectus.
(b) Upon receipt of the Written Instruction referred to in
subparagraph (a) above, the Custodian shall deliver on the borrowing
date the specified collateral and the executed promissory note, if
any, against delivery by the lending bank of the total amount of the
loan payable, provided that the same conforms to the total amount
payable as set forth in the Written Instruction. The Custodian may,
at the option of the lending bank, keep such collateral in its
possession, but such collateral shall be subject to all rights therein
given the lending bank by virtue of any promissory note or loan
agreement. The Custodian shall deliver as additional collateral in
the manner directed by the Fund from time to time such Securities as
may be specified in Written Instruction to collateralize further any
transaction described in this Section 7. The Fund shall cause all
Securities released from collateral status to be returned directly to
the Custodian, and the Custodian shall receive from time to time such
return of collateral as may be tendered to it. In the event that the
Fund fails to specify in Written Instruction all of the information
required by this Section 7, the Custodian shall not be under any
obligation to deliver any Securities. Collateral returned to the
Custodian shall be held hereunder as it was prior to being used as
collateral.
15
8. PERSONS HAVING ACCESS TO ASSETS OF THE FUNDS.
(a) No trustee or agent of the Trust, and no officer, director,
employee or agent of the Trust's investment adviser, of any
sub-investment adviser of the Trust, or of the Trust's administrator,
shall have physical access to the assets of the Funds held by the
Custodian or be authorized or permitted to withdraw any investments of
the Funds, nor shall the Custodian deliver any assets of the Funds to
any such person. No officer, director, employee or agent of the
Custodian who holds any similar position with the Trust's investment
adviser, with any sub-investment adviser of the Trust or with the
Trust's administrator shall have access to the assets of the Funds.
(b) Nothing in this Section 8 shall prohibit any duly authorized
officer, employee or agent of the Trust, including the Trust's
independent public accountants or any duly authorized officer,
director, employee or agent of the investment adviser, of any
sub-investment adviser of the Funds or of the Fund's administrator,
from giving Oral Instructions or Written Instructions to the Custodian
or executing a Certificate so long as it does not result in delivery
of or access to assets of the Funds prohibited by paragraph (a) of
this Section 8.
9. CONCERNING THE CUSTODIAN.
(a) STANDARD OF CONDUCT. Notwithstanding any other provision of this
Custody Agreement, the Custodian shall not be liable for any loss or
damage, including counsel fees, resulting from its action or omission
to act or otherwise, except for any such loss or damage arising out of
the negligence or willful misconduct of the Custodian. The Custodian
will use reasonable care in the performance of its duties under this
contract. The Custodian may, with respect to questions of law, apply
for and obtain the advice and opinion of counsel to the Trust or of
its own counsel, at the expense of the Trust, and shall be fully
protected with respect to anything done or omitted by it in good faith
in conformity with such advice or opinion.
(b) LIMIT OF DUTIES. Without limiting the generality of the
foregoing, the Custodian shall be under no duty or obligation to
inquire into, and shall not be liable for:
1. The validity of the issue of any Securities purchased by the
Funds, the legality of the purchase thereof, or the propriety of the
amount paid therefor;
2. The legality of the sale of any Securities by the Funds or the
propriety of the amount for which the same are sold;
3. The legality of the issue or sale of any Shares, or the
sufficiency of the
16
amount to be received therefor;
4. The legality of the redemption of any Shares, or the propriety of
the amount to be paid therefor;
5. The legality of the declaration or payment of any distribution of
the Funds;
6. The legality of any borrowing for temporary administrative or
emergency purposes.
(c) NO LIABILITY UNTIL RECEIPT. The Custodian shall not be liable
for, or considered to be the Custodian of, any money, whether or not
represented by any check, draft, or other instrument for the payment
of money, received by it on behalf of the Funds until the Custodian
actually receives and collects such money.
(d) AMOUNTS DUE FROM TRANSFER AGENT. The Custodian shall not be
under any duty or obligation to take action to effect collection of
any amount due to the Funds from the Transfer Agent nor to take any
action to effect payment or distribution by the Transfer Agent of any
amount paid by the Custodian to the Transfer Agent in accordance with
this Custody Agreement.
(e) COLLECTION WHERE PAYMENT REFUSED. The Custodian shall not be
under any duty or obligation to take action to effect collection of
any amount, if the Securities upon which such amount is payable are in
default, or if payment is refused after due demand or presentation,
unless and until (i) it shall be directed to take such action by a
Certificate and (ii) it shall be assured to its satisfaction of
reimbursement of its costs and expenses in connection with any such
action.
(f) APPOINTMENT OF SUBCUSTODIANS. (i) The Custodian is hereby
authorized to appoint one or more domestic subcustodians (which may be
an affiliate of the Custodian) to hold Securities and monies at any
time owned by the Funds. The Custodian is also hereby authorized to
place Assets with any Foreign Custodian located in a jurisdiction
which is not a Selected Country and with Euroclear, Cedel, First
Chicago Clearing Centre or any other transnational depository.
(g) NO DUTY TO ASCERTAIN AUTHORITY. The Custodian shall not be under
any duty or obligation to ascertain whether any Securities at any time
delivered to or held by it for the Funds are such as may properly be
held by the Funds under the provisions of the Master Trust Agreement
and the Prospectus.
(h) RELIANCE ON CERTIFICATES AND INSTRUCTIONS. The Custodian shall
be entitled to rely upon any Certificate, notice or other instrument
in writing received by the Custodian and reasonably believed by the
Custodian to be genuine and to be signed by an officer or Authorized
Person or a Senior Authorized Person. The Custodian shall be entitled
to rely upon any Written Instructions or Oral
17
Instructions actually received by the Custodian pursuant to the
applicable Sections of this Agreement and reasonably believed by the
Custodian to be genuine and to be given by such person. The Funds
agree to forward to the Custodian Written Instructions from an
Authorized Person or Senior Authorized Person confirming such Oral
Instructions in such manner so that such Written Instructions are
received by the Custodian, whether by hand delivery, telex or
otherwise, by the close of business on the same day that such Oral
Instructions are given to the Custodian. The Funds agree that the
fact that such confirming instructions are not received by the
Custodian shall in no way affect the validity of the transactions or
enforceability of the transactions hereby authorized by the Funds.
The Funds agree that the Custodian shall incur no liability to the
Funds in acting upon Oral Instructions given to the Custodian
hereunder concerning such transactions provided such instructions
reasonably appear to have been received from a duly Authorized Person
or Senior Authorized Person. The Custodian shall be under no duty to
question any direction of an Authorized Person or a Senior Authorized
Person with respect to the portion of the account over which such
person has authority, to review any property held in the account, to
make any suggestions with respect to the investment and reinvestment
of the assets in the account, or to evaluate or question the
performance of any Authorized Person or Senior Authorized Person. The
Custodian shall not be responsible or liable for any diminution of
value of any securities or other property held by the Custodian.
(i) OVERDRAFT FACILITY AND SECURITY FOR PAYMENT. In the event that the
Custodian is directed by Written Instruction (or Oral Instructions
confirmed in writing in accordance with Section 9(h) hereof) to make
any payment or transfer of monies on behalf of the Funds for which
there would be, at the close of business on the date of such payment
or transfer, insufficient monies held by the Custodian on behalf of
the Funds, the Custodian may, in its sole discretion, provide an
overdraft (an "Overdraft") to the Funds in an amount sufficient to
allow the completion of such payment or transfer. The Custodian shall
promptly notify the Funds (an "Overdraft Notice") of any Overdraft by
facsimile transmission or in such other manner as the Funds and the
Custodian may agree. Any Overdraft provided hereunder: (a) shall be
payable on the next Business Day after receipt of an Overdraft Notice,
unless otherwise agreed by the Funds and the Custodian; and (b) shall
accrue interest from the date of the Overdraft to the date of payment
in full by the Funds at a rate agreed upon from time to time, by the
Custodian and the Funds. The Custodian and the Funds acknowledge that
the purpose of such Overdraft is to temporarily finance the purchase
of Securities for prompt delivery in accordance with the terms hereof,
to meet unanticipated or unusual redemptions, to allow the settlement
of foreign exchange contracts or to meet other emergency expenses not
reasonably foreseeable by the Funds. To secure payment of any
Overdraft, the Funds hereby grant to the Custodian a continuing
security interest in and right of setoff against the Securities and
cash in the Fund's accounts from time to time in the full amount of
such Overdraft. Should the Funds fail to pay promptly any amounts
owed hereunder, the Custodian shall be
18
entitled to use available cash in the applicable Fund's account and to
liquidate Securities in the account as is necessary to meet the Fund's
obligations under the Overdraft. In any such case, and without
limiting the foregoing, the Custodian shall be entitled to take such
other actions(s) or exercise such other options, powers and rights as
the Custodian now or hereafter has as a secured creditor under the
Massachusetts Uniform Commercial Code or any other applicable law.
ARTICLE IV
INFORMATION SERVICES AGREEMENT
The following sets forth our agreement with respect to the delivery of certain
information to the Board or its agents as requested by the Board from time to
time.
1. PROVISIONS OF INFORMATION
In accordance with the provisions of this Information Services Agreement, the
Custodian agrees to provide to the Board, or at the direction of the Board,
to the Trust's investment advisers, the information set forth in Article
IV, Section 2 with respect to Foreign Custodians and Securities
Depositories which hold Securities, Assets, or other property of the Funds
and the systems and environment for securities processing in the
jurisdiction in which such Foreign Custodians or Securities Depositories
are located. The Custodian shall provide only that portion of such
information as is reasonably available to it.
2. INFORMATION TO BE PROVIDED
COUNTRY INFORMATION
- Settlement Environment
- Depository
- Settlement Period
- Trading
- Security Registration
- Currency
- Foreign Investment Restrictions
- Entitlements
- Proxy Voting
- Foreign Taxation
DEPOSITORY INFORMATION (IF APPLICABLE TO THE COUNTRY)
- Name
- Information relative to Determining Compulsory or Voluntary Status of
the Facility
- Type of Entity
- Ownership Structure
- Operating History
- Eligible Instruments
19
- Security Form
- Financial Data
- Regulator
- External Auditor
SUBCUSTODIAN INFORMATION
- Financial Information
- Regulator
- External Auditor
- How Securities are Held
- Operational Capabilities
- Insurance Coverage
INFORMATION ON THE FOLLOWING LEGAL QUESTIONS
- Would the applicable foreign law restrict the access afforded the
independent public accountants of the Funds to books and records kept
by a foreign custodian?
- Would the applicable foreign law restrict the ability of the Funds to
recover its assets in the event of bankruptcy of the foreign custodian?
- Would the applicable foreign law restrict the ability of the Funds to
recover assets that are lost while under the control of the foreign
custodian?
- What are the foreseeable difficulties in converting the Fund's cash into
U.S. dollars?
3. LIABILITY AND WARRANTIES
The Custodian will use reasonable best efforts to ensure that the information
provided is accurate. However, due to the nature and source of this
information, and the necessity of relying on various information sources, most
of which are external to the Custodian, the Custodian shall have no liability
for direct or indirect use of such information. The Custodian makes no other
warranty or condition, either express or implied, as to the merchantability or
fitness for any particular purpose of the information provided under this
Article IV.
ARTICLE V
ADDITIONAL PROVISIONS
1. COMPENSATION.
(a) The Custodian shall be entitled to receive, and the Trust agrees
to pay to the Custodian, such compensation as may be agreed upon from
time to time between
20
the Custodian and the Trust. The Custodian may charge against any
monies held on behalf of the Funds pursuant to this Agreement such
compensation and any reasonable expenses incurred by the Custodian in
the performance of its duties pursuant to this Agreement. The
Custodian shall also be entitled to charge against any money held on
behalf of the Funds pursuant to this Agreement the amount of any loss,
damage, liability or expense incurred with respect to the Funds,
including counsel fees, for which it shall be entitled to
reimbursement under the provisions of this Agreement. The expenses
which the Custodian may charge against such account include, but are
not limited to, the expenses of domestic subcustodians and Foreign
Custodians incurred in settling transactions outside of Boston,
Massachusetts or New York City, New York involving the purchase and
sale of Securities.
(b) The Trust will compensate the Custodian for its services rendered
under this Agreement in accordance with the fees set forth in a
separate Fee Schedule which schedule may be modified by the Custodian
upon not less than sixty days prior written notice to the Trust.
(c) Any compensation agreed to hereunder may be adjusted from time to
time by a revised Fee Schedule, dated and signed by a Senior
Authorized Person or authorized representative of each party hereto.
(d) The Custodian will xxxx the Trust as soon as practicable after
the end of each calendar month. The Trust will promptly pay to the
Custodian the amount of such billing. In making payments to service
providers pursuant to Written Instructions, the Trust acknowledges
that the Custodian is acting as a paying agent and not as the payor,
for tax information reporting and withholding purposes.
2. INSOLVENCY OF ELIGIBLE FOREIGN CUSTODIANS.
The Custodian shall not be responsible or liable for any losses or
damages suffered by the Funds arising as a result of the insolvency of any
Foreign Custodian except with respect to any Foreign Custodian in any
Selected Country which the Custodian appointed in accordance with the
provisions of Article II but only to the extent that the Custodian failed
to comply with the standard of care set forth in Article II with respect to
the selection and monitoring of such Foreign Custodian.
3. LIABILITY FOR DEPOSITORIES.
The Custodian shall not be responsible for any losses resulting from
the deposit or maintenance of Securities, Assets or other property of the
Funds with any Securities Depository.
21
4. DAMAGES.
Under no circumstances shall the Custodian be liable for any indirect,
consequential or special damages with respect to its role as Delegate,
Custodian or information vendor.
5. LIMITATION OF LIABILITY.
The Funds and the Custodian agree that the obligations of the Trust under
this Agreement shall not be binding upon any of the Trustees, shareholders,
nominees, officers, employees or agents, whether past, present or future,
of the Funds, individually, but are binding only upon the assets and
property of the Trust, as provided in the Master Trust Agreement. The
execution and delivery of this Agreement have been authorized by the
Trustees of the Trust, and signed by an authorized officer of the Trust,
acting as such. Neither such authorization by such Trustees nor such
execution and delivery by such officer shall be deemed to have been made by
any of them or any shareholder of the Funds individually or to impose any
liability on any of them or any shareholder of the Funds personally, but
shall bind only the assets and property of the Trust as provided in the
Master Trust Agreement.
6. TERM AND TERMINATION.
(a) This Agreement and any portion thereof shall become effective on
the date first set forth above (the "Effective Date") and shall
continue in effect thereafter until such time as this Agreement may be
terminated in accordance with the provisions hereof.
(b) Either of the parties hereto may terminate this Agreement as a
whole or may terminate either the Delegation Agreement or the
Information Services Agreement individually or the Delegation
Agreement collectively by giving to the other party a notice in
writing specifying the date and scope of such termination, which shall
be not less than 60 days after the date of receipt of such notice. In
the event such notice is given by the Trust, it shall be accompanied
by a certified vote of the Board, electing to terminate this Agreement
or the applicable portion thereof and designating a successor, which
shall be a person qualified to so act under the 1940 Act if necessary.
In the event such notice is given by the Custodian of any
termination which include the Custody Agreement, the Trust shall, on
or before the termination date, deliver to the Custodian a certified
vote of the Board, designating a successor custodian or custodians.
In the absence of such designation by the Trust, the Custodian may
designate a successor custodian, which shall be a person qualified to
so act under the 0000 Xxx. If the Trust fails to designate a
successor custodian, the Trust shall upon the date specified in the
notice of termination of this Agreement and upon the delivery by the
Custodian of all Securities and monies
22
then owned by the Funds, be deemed to be its own custodian and the
Custodian shall thereby be relieved of all duties and responsibilities
pursuant to this Agreement or the portion so terminated, other than
the duty with respect to Securities held in the Book-Entry System
which cannot be delivered to the Funds.
(c) Upon the date set forth in such notice under paragraph (b) of
this Section 6, this Agreement or portion thereof shall terminate to
the extent specified in such notice, and if the Custody Agreement is
terminated the Custodian shall upon receipt of a notice of acceptance
by the successor custodian on that date deliver directly to the
successor custodian all Securities and monies then held by the
Custodian on behalf of the Funds, after deducting all fees, expenses
and other amounts for the payment or reimbursement of which it shall
then be entitled.
7. FORCE MAJEURE.
Notwithstanding anything in this Agreement to the contrary, neither the
Custodian nor the Trust shall be liable for any losses resulting from or
caused by events or circumstances beyond its reasonable control, including,
but not limited to, losses resulting from nationalization, strikes,
expropriation, devaluation, revaluation, confiscation, seizure,
cancellation, destruction or similar action by any governmental authority,
de facto or de jure; or enactment, promulgation, imposition or enforcement
by any such governmental authority of currency restrictions, exchange
controls, taxes, levies or other charges affecting the Fund's property; or
the breakdown, failure or malfunction of any utilities or
telecommunications systems; or any order or regulation of any banking or
securities industry including changes in market rules and market conditions
affecting the execution or settlement of transactions; or acts of war,
terrorism, insurrection or revolution; or any other similar or third-party
event. This Section shall survive the termination of this Agreement.
8. INSPECTION OF BOOKS AND RECORDS.
The books and records of the Custodian shall be open to inspection and
audit at reasonable times by officers and auditors employed by the Trust at
its own expense and with prior written notice to the Custodian, and by the
appropriate employees of the Securities and Exchange Commission.
9. MISCELLANEOUS.
(a) Annexed hereto as APPENDIX C is a certification signed by the
Secretary of the Trust setting forth the names and the signatures of
the present Authorized and Senior Authorized Persons. The Trust
agrees to furnish to the Custodian a new certification in similar form
in the event that any such present person ceases to be such an
Authorized Person or Senior Authorized Person or in the event that
other or additional persons are elected or appointed. Until such new
certification shall be received, the Custodian shall be fully
protected in acting under the provisions
23
of this Agreement upon Oral Instructions or signatures of the present
Authorized and Senior Authorized Persons as set forth in the last
delivered certification.
(b) Annexed hereto as APPENDIX A is a certification signed by the
Secretary of the Trust setting forth the names and the signatures of
the present officers of the Trust. The Trust agrees to furnish to the
Custodian a new certification in similar form in the event any such
present officer ceases to be an officer of the Trust or in the event
that other or additional officers are elected or appointed. Until
such new certification shall be received, the Custodian shall be fully
protected in acting under the provisions of this Agreement upon the
signature of an officer as set forth in the last delivered
certification.
(c) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Custodian, shall be sufficiently
given if addressed to the Custodian and mailed or delivered to it at
its offices at Xxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 or at
such other place as the Custodian may from time to time designate in
writing.
(d) Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Trust, shall be sufficiently
given if addressed to the Trust and mailed or delivered to it at its
offices at 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 or at
such other place as the Trust may from time to time designate in
writing.
(e) Except as provided in Article II, Section 2 this Agreement may
not be amended or modified in any manner except by a written agreement
executed by both parties with the same formality as this Agreement (i)
authorized, or ratified and approved by a vote of the Board of
Trustees of the Trust, including a majority of the members of the
Board of Trustees of the Trust who are not "interested persons" of the
Fund (as defined in the 1940 Act), or (ii) authorized, or ratified and
approved by such other procedures as may be permitted or required by
the 1940 Act.
(f) This Agreement shall extend to and shall be binding upon the
parties hereto, and their respective successors and assigns; provided,
however, that this Agreement shall not be assignable by the Trust
without the written consent of the Custodian, or by the Custodian
without the written consent of the Trust authorized or approved by a
vote of the Board of Trustees of the Trust provided, however, that the
Custodian may assign the Agreement to an Affiliated Person and any
attempted assignment without such written consent shall be null and
void. Nothing in this Agreement shall give or be construed to give or
confer upon any third party any rights hereunder.
(g) The Fund represents that a copy of the Master Trust Agreement is
on file with the Secretary of the Commonwealth of Massachusetts and
with the Boston
24
City Clerk.
(h) This Agreement shall be construed in accordance with the laws of
The Commonwealth of Massachusetts.
(i) The captions of the 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.
(j) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but such counterparts
shall, together, constitute only one instrument.
(k) Each party represents to the other that it has all necessary
power and authority, and has obtained any consent or approval
necessary to permit it, to enter into and perform under this Agreement
and that this Agreement does not violate, breach, give rise to a
default or right of termination under or otherwise conflict with any
applicable law, regulation, ruling, decree or other governmental
authorization or any contract to which it is a party or by which any
of its assets is bound.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective representatives duly authorized as of the day and year first
above written.
PPM AMERICA FUNDS
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: CFO
BOSTON SAFE DEPOSIT AND TRUST COMPANY
By: /s/ Xxxxxxxxxxx Xxxxx
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
25
APPENDIX A
I, Xxxx X. Xxxxx, the Secretary of the PPM America Funds, a business trust
organized under the laws of the Commonwealth of Massachusetts (the "Trust"), do
hereby certify that:
The following individuals have been duly authorized as Authorized Persons
to give Oral Instructions and Written Instructions on behalf of the Trust and
each Fund thereof and the specimen signatures set forth opposite their
respective names are their true and correct signatures:
Name Position Signature
---- -------- ---------
Xxxx X. Xxxxxxx* Chief Financial /s/ Xxxx X. Xxxxxxx
Officer and Treasurer
Xxxx X. Xxxxx* Secretary /s/ Xxxx X. Xxxxx
XxXxxx Xxxxxx Vice President /s/ XxXxxx Xxxxxx
Xxxxxxx Xxxxx Vice President /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxx Employee of PPM America, Inc. /s/ Xxxxxxx Xxxx
Xxxxx Xxxxxxxx Employee of PPM America, Inc. /s/ Xxxxx Xxxxxxxx
Xxx Xxxxxx Employee of PPM America, Inc. /s/ Xxx Xxxxxx
Xxx Xxxxx Employee of PPM America, Inc. /s/ Xxx Xxxxx
Xxxx Xxxxx Employee of PPM America, Inc. /s/ Xxxx Xxxxx
Xxxxx Close Employee of PPM America, Inc. /s/ Xxxxx Close
Xxxxxx Xxxx Employee of PPM America, Inc. /s/ Xxxxxx Xxxx
Sheridan Auth Employee of PPM America, Inc. /s/ Sheridan Auth
Xxxxx Xxxxxxxx Employee of PPM America, Inc. /s/ Xxxxx Xxxxxxxx
Xxxxxxx Xxxx Employee of PPM America, Inc. /s/ Xxxxxxx Xxxx
Xxxx XxXxxxxx Employee of PPM America, Inc. /s/ Xxxx XxXxxxxx
Xxxxxx Xxx Employee of PPM America, Inc. /s/ Xxxxxx Xxx
Xxx Xxx Employee of PPM America, Inc. /s/ Xxx Xxx
* Senior Authorized Person
By: /s/ Xxxx Xxxxx
Secretary
Dated: 12/10/98
APPENDIX B
SELECTED COUNTRIES
ARGENTINA KOREA, REPUBLIC OF
AUSTRALIA LUXEMBOURG
AUSTRIA MALAYSIA
BANGLADESH MAURITIUS
BELGIUM MEXICO
BERMUDA NAMIBIA
BOTSWANA THE NETHERLANDS
BRAZIL NEW ZEALAND
CANADA NORWAY
CHILE PAKISTAN
CHINA, PEOPLES' REPUBLIC OF PERU
COLOMBIA THE PHILIPPINES
CYPRUS POLAND
THE CZECH REPUBLIC PORTUGAL
DENMARK SINGAPORE
EGYPT SLOVAK REPUBLIC
FINLAND SOUTH AFRICA
FRANCE SPAIN
GERMANY SRI LANKA
GHANA SWEDEN
GREECE SWITZERLAND
HONG KONG TAIWAN
HUNGARY THAILAND
INDIA TURKEY
INDONESIA UNITED KINGDOM
IRELAND URUGUAY
ISRAEL VENEZUELA
ITALY ZAMBIA
JAPAN ZIMBABWE
KENYA
26
APPENDIX C
I, Xxxx X. Xxxxx, the Secretary of the PPM America Funds, a business trust
organized under the laws of the Commonwealth of Massachusetts (the "Trust"), do
hereby certify that:
The following individuals serve in the following positions with the Fund
and each individual has been duly elected or appointed to each such position and
qualified therefor in conformity with the Trust's Master Trust Agreement and the
specimen signatures set forth opposite their respective names are their true and
correct signatures:
Name Position Signature
---- -------- ---------
Xxxxxxx X. Xxxxxxx President /s/ Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx Chief Financial /s/ Xxxx X. Xxxxxxx
Officer and Treasurer
Xxxx X. Xxxxx Secretary and Assistant Treasurer /s/ Xxxx X. Xxxxx
Xxxxxxx X. Xxxxx Vice President /s/ Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxx, Xx. Vice President /s/ Xxxxx X. Xxxxx, Xx.
XxXxxx X. Xxxxxx Vice President /s/ XxXxxx X. Xxxxxx
By: /s/ Xxxx X. Xxxxx
Secretary
Dated: 12/10/98
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