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EXHIBIT 99.B8-3
Sub-Custodian
Agreement
SUB-CUSTODIAN AGREEMENT
AGREEMENT dated as of December 31, 1994 among THE CHASE
MANHATTAN BANK, N.A. ("Bank"), THE HAVEN CAPITAL MANAGEMENT TRUST (the
"Fund") and PNC BANK, NATIONAL ASSOCIATION ("Company").
W I T N E S S E T H:
WHEREAS, Company has entered into a Custodian Agreement with
the Fund, a Delaware business trust registered under the Investment Company
Act of 1940, as amended (the "Investment Company Act"), to provide certain
custody services; and
WHEREAS, the Company and the Fund wish to retain Bank to
provide certain sub-custodian services to the Company and the Fund for the
benefit of the Fund, and Bank is willing to furnish such services;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as
follows:
1. CUSTODY ACCOUNT. (a) The Bank agrees to establish and
maintain (a) a separate custody account for each
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investment portfolio of the Fund ("Custody Account") for any and all stocks,
shares, bonds, debentures, notes, mortgages or other obligations for the payment
of money and any certificates, receipts, warrants or other instruments
representing rights to receive, purchase or subscribe for the same or evidencing
or representing any other rights or interests therein and other similar property
(hereinafter called "Securities") from time to time received by the Bank or any
sub-custodian (as defined in the second paragraph of Section 3 hereof) for the
account of the particular investment portfolio of the Fund; and (b) a separate
deposit account or accounts in the name of each investment portfolio of the Fund
("Deposit Account") for any and all cash and cash equivalents in any currency
received by the Bank or any sub-custodian for the account of the particular
investment portfolio of the Fund, which cash shall not be subject to withdrawal
by draft or check. The term "Property" as used herein shall mean all Securities,
cash equivalents and other assets of the Fund.
(b) The Bank shall be responsible for providing information to the
Fund to enable the Fund to determine that
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the Bank and each sub-custodian is an eligible foreign custodian, qualified
U.S. bank or overseas branch of a qualified U.S. bank in accordance with
the definitions thereof set forth herein.
2. MAINTENANCE OF PROPERTY ABROAD. Securities in a Custody Account
shall be held in the country or other jurisdiction as shall be specified
from time to time in Instructions (as defined in Section 9 hereof),
provided that such country or other jurisdiction shall be one in which the
principal trading market for such Securities is located or the country or
other jurisdiction in which such Securities are to be presented for payment
or are acquired for the Custody Account, and cash in a Deposit Account
shall be credited to an account in such country or other jurisdiction in
which such cash may be legally deposited or is the legal currency for the
payment of public or private debts. Cash may be held pursuant to
Instructions in either interest or non-interest bearing accounts as may be
available for the particular currency. To the extent Instructions are
issued and the Bank can comply with such Instructions, the Bank is
authorized to maintain
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cash balances on deposit for the Fund with itself or one of its affiliates
at such reasonable rates of interest as may from time to time be paid on
such accounts, or in non-interest bearing accounts as the Fund may direct,
if acceptable to the Bank.
3. ELIGIBLE FOREIGN CUSTODIANS AND SECURITIES DEPOSITORIES. The Trustees
of the Fund authorize the Bank to hold the Securities in the Custody
Account(s) and the cash in the Deposit Account(s) in custody and deposit
accounts, respectively, which have been established by the Bank with one of
its branches, a branch of a qualified U.S. bank, an eligible foreign
custodian or an eligible foreign securities depository; provided, however,
that the Trustees of the Fund have approved the use of, and the Bank's
contract with, such eligible foreign custodian or eligible foreign
securities depository by resolution, and Instructions to such effect have
been provided to the Bank. Furthermore, if a Bank's branch, a branch of a
qualified U.S. bank or an eligible foreign custodian is selected to act as
the Bank's sub-custodian to hold any Property, such entity is authorized to
hold such
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Property in its account with any eligible foreign securities depository in which
it participates so long as such foreign securities depository has been approved
by the Trustees of the Fund. For purposes of this Agreement (a) "qualified U.S.
bank" shall mean a qualified U.S. bank as defined in Rule 17f-5 under the
Investment Company Act, ("Rule 17f-5"); (b) "eligible foreign custodian" shall
mean (i) 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
that country's government or an agency thereof and that has shareholders' equity
in excess of $200 million in U.S. currency (or a foreign currency equivalent
thereto) or (ii) a majority-owned direct or indirect subsidiary of a qualified
U.S. bank or bank holding company that is incorporated or organized under the
laws of a country other than the United States and that has shareholders' equity
in excess of $100 million in U.S. currency (or a foreign currency equivalent
thereto) as of dates specified in Rule 17f-5; and (c) "eligible foreign
securities depository" shall mean a securities depository or clearing agency,
incorporated
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or organized under the laws of a country other than the United States, which
operates (i) the central system, or in specific markets a system that is the
subject of a then currently viable and favorable "no-action letter" that has
been issued to Chase Manhattan Bank, N.A. by the staff of the Securities and
Exchange Commission, for handling of securities or equivalent book-entries in
that country or (ii) a transnational system for the central handling of
securities or equivalent book-entries.
Hereinafter the term "sub-custodian" will refer to any Bank branch, any
branch of a qualified U.S. bank, any eligible foreign custodian or any
eligible foreign securities depository with which the Bank has entered into
an agreement of the type contemplated hereunder regarding Securities and/or
cash held in or to be acquired for a Custody Account or a Deposit Account.
If, after the initial approval of the sub-custodians by the Trustees of
the Fund in connection with this Agreement, the Bank wishes to appoint other
sub-custodians to hold the Fund's Property, it will so notify the Company
and the Fund and
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will provide them with information reasonably necessary to determine any
such new sub-custodian's eligibility under Rule 17f-5, including a copy of
the proposed agreement with such sub-custodian. The Fund shall within 30
days after receipt of such notice give a written approval or disapproval of
the proposed action.
If the Bank intends to remove any sub-custodian previously approved, it
shall so notify the Fund and the Company and shall move the Property
deposited with such sub-custodian to another sub-custodian previously
approved or to a new sub-custodian, provided that the appointment of any new
sub-custodian will be subject to the requirements set forth in the preceding
paragraph. The Bank shall take steps as may be required to remove any
sub-custodian which has ceased to meet the requirements of Rule 17f-5.
4. USE OF SUB-CUSTODIANS. With respect to Property which is maintained
by the Bank in the physical custody of a sub-custodian pursuant to Section 3:
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(a) The Bank will identify on its books as belonging to the particular
investment portfolio of the Fund any Property held by such sub-custodian.
(b) In the event that a sub-custodian permits any of the Securities
placed in its care to be held in an eligible foreign securities depository,
such sub-custodian will be required by its agreement with the Bank to
identify on its books such Securities as being held for the account of the
Bank as a custodian for its customers.
(c) Any Securities in a custody account held by a sub-custodian of the
Bank will be subject only to the instructions of the Bank or its agents;
and any Securities held in an eligible foreign securities depository for
the account of a sub-custodian will be subject only to the instructions of
such sub-custodian.
(d) The Bank will only deposit Securities in an account with a
sub-custodian which includes exclusively the assets held by the Bank for its
customers, and the Bank will cause such account to be designated by such
sub-custodian as
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a special custody account for the exclusive benefit of customers of the
Bank.
(e) Any agreement the Bank shall enter into with a sub-custodian with
respect to the holding of Securities shall be consistent with Rule 17f-5 and
shall require that (i) the Securities are not subject to any right, charge,
security interest, lien or claim of any kind in favor of such sub-custodian or
its creditors except for a claim of payment for its safe custody or
administration and (ii) beneficial ownership of such Securities is freely
transferable without the payment of money or value other than for safe
custody or administration; provided, however, that the foregoing shall not
apply to the extent that any of the above-mentioned rights, charges, etc. result
from any compensation or other expenses arising with respect to the
safekeeping of Securities pursuant to such agreement.
(f) The Bank shall allow independent public accountants of the Fund such
reasonable access to the records of the Bank relating to Property held in a
Custody Account and a Deposit Account as required by such accountants in
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connection with their examination of the books and records pertaining to
the affairs of the Fund. The Bank shall, subject to restrictions under
applicable law, also obtain from any sub-custodian with which the Bank
maintains the physical possession of any Property an undertaking to permit
independent public accountants of the Fund such reasonable access to the
records of such sub-custodian as may be required in connection with their
examination of the books and records pertaining to the affairs of the Fund
or to supply a verifiable confirmation of the contents of such records. The
Bank shall furnish the Fund and the Company such reports (or portions
thereof) of the Bank's external auditors as relate directly to the Bank's
system of internal accounting controls applicable to the Bank's duties
under this Agreement.
(g) The Bank will supply to the Fund, care of its investment
adviser, and the Company at least monthly a statement in respect to any
Property in a Custody and a Deposit Account held by each sub-custodian,
including an identification of the entity having possession of such
Property, and the Bank will send to the Fund and the Company
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an advice or notification of any transfers of Property to or from the
Custody Account and Deposit Account, indicating, as to Property acquired
for an investment portfolio of the Fund, the identity of the entity having
physical possession of such Property. In the absence of the filing in
writing with the Bank by the Company of exceptions or objections to any
such statement within sixty (60) days of the Company's receipt of such
statement, or within sixty (60) days after the date that a material defect
is reasonably discoverable, the Company shall be deemed to have approved
such statement and in such case or upon written approval of the Company of
any such statement the Bank shall, to the extent permitted by law and
provided the Bank has met the standard of care in Section 12 hereof, be
released, relieved and discharged with respect to all matters and things
set forth in such statement as though such statement has been settled by
the decree of a court of competent jurisdiction in an action in which the
Fund and all persons having any equity interest in the Fund were parties.
(h) The Bank shall provide to the Company and to the Trustees of the Fund
on an annual basis a report
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confirming the Bank's belief that it and each of the sub-custodians is an
eligible foreign custodian, a qualified U.S. Bank or branch of a qualified
U.S. Bank, as defined herein. The Bank shall also provide such relevant
information regarding the Securities and other assets, any sub-custodian,
any foreign country or itself as may be reasonably requested from time to
time by the Company or the Fund.
(i) The Bank hereby warrants to the Fund and the Company that in its
opinion, after due inquiry, the established procedures to be followed by
each of its branches, each branch of a qualified U.S. bank, each eligible
foreign custodian and each eligible foreign securities depository holding
Securities or cash of the Fund pursuant to this Agreement afford protection
for such Securities or cash at least equal to that afforded by the Bank's
established procedures with respect to similar Securities or cash held by
the Bank (and its securities depositories) in New York.
(j) The Bank hereby warrants to the Fund and the Company that as of the
date of this Agreement it is maintaining a Bankers Blanket Bond and hereby
agrees to notify
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the Fund and the Company in the event its Bankers Blanket Bond is cancelled or
otherwise lapses.
5. DEPOSIT ACCOUNT PAYMENTS. Subjectto the provisions of Section 7,
the Bank shall make, or cause its sub-custodian to make, payments of cash
credited to a Deposit Account only:
(a) In connection with the purchase of Securities for the particular
investment portfolio of the Fund involved and the delivery of such
Securities to, or the crediting of such Securities to the particular
Custody Account of, the Bank or its sub-custodian, each such payment to be
made at prices as confirmed by Instructions from Authorized persons (as
defined in Section 10 hereof);
(b) For the purchase or redemption of shares of the capital stock of the
particular investment portfolio of the Fund involved and the delivery to,
or crediting to the account of, the Bank or its sub-custodian of such
shares to be so purchased or redeemed;
(c) For the payment for the account of the particular investment portfolio
of the Fund involved of
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dividends, interest, taxes, management or supervisory fees, capital
distributions or operating expenses;
(d) For the payments to be made in connection with the conversion,
exchange or surrender of Securities held in a Custody Account;
(e) For other proper corporate purposes of the particular investment
portfolio of the Fund involved; or
(f) Upon the termination of this Custody Agreement as hereinafter set
forth.
All payments of cash for a purpose permitted by subsection (a), (b), (c) or
(d) of this Section 5 will be made only upon receipt by the Bank of
Instructions from Authorized Persons which shall specify the purpose for
which the payment is to be made and the applicable subsection of this
Section 5. In the case of any payment to be made for the purpose permitted
by subsection (e) of this Section 5, the Bank must first receive a
certified copy of a resolution of the Trustees of the Fund adequately
describing such payment, declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom such payment shall be
made. Any payment
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pursuant to subsection (f) of this Section 5 will be made in accordance
with Section 17 hereof. In the event that any payment for an investment
portfolio of the Fund made under this Section 5 exceeds the funds available
in that investment portfolio's Deposit Account, the Bank may, in its
discretion, advance the Fund on behalf of that investment portfolio an
amount equal to such excess and such advance shall be deemed a loan from
the Bank to that investment portfolio payable on demand, bearing interest
at the rate of interest customarily charged by the Bank on similar loans.
If the Bank causes a Deposit Account to be credited on the payable date for
interest, dividends or redemptions, the particular investment portfolio of
the Fund involved will promptly return to the Bank any such amount or
property so credited upon oral or written notification that neither the
Bank nor its sub-custodian can collect such amount or property in the
ordinary course of business. The Bank or its sub-custodian, as the case may
be, shall have not duty or obligation to institute legal proceedings, file
a claim or proof of claim in any insolvency proceeding or take any other
action with respect to
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the collection or such amount or property beyond its ordinary collection
procedures.
6. CUSTODY ACCOUNT TRANSACTIONS. Subject to the provisions of Section 7,
Securities in a Custody Account will be transferred, exchanged or delivered
by the Bank or its sub-custodians only:
(a) upon sale of such Securities for the particular investment portfolio
of the Fund involved and receipt by the Bank or its sub-custodian of
payment thereof, each such payment to be in the amount confirmed by
Instructions from Authorized Persons;
(b) when such Securities are called, redeemed or retired, or otherwise
become payable;
(c) in exchange for or upon conversion into other Securities alone
or other Securities and cash pursuant to any plan of merger, consolidation,
reorganization, recapitalization or readjustment;
(d) upon conversion of such Securities pursuant to their terms into
other Securities;
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(e) upon exercise of subscription, purchase or other similar rights
represented by such Securities;
(f) for the purpose of exchanging interim receipts or temporary
Securities for definitive Securities;
(g) for the purpose of redeeming in kind shares of the capital stock of
the particular investment portfolio of the Fund involved against delivery
to the Bank or its sub-custodian of such shares to be redeemed;
(h) for other proper corporate purposes of the particular investment
portfolio of the Fund involved; or
(i) upon the termination of this Custody Agreement as hereinafter setforth.
All transfers, exchanges or deliveries of Securities in a Custody Account
for a purpose permitted by either subsection (a), (b), (c), (d), (e) or (f)
of this Section 6 will be made, except as provided in Section 8 hereof,
only upon receipt by the Bank of Instructions from Authorized Persons which
shall specify the purpose of the transfer, exchange or delivery to be made
and the applicable subsection of this Section 6. In the case of any
transfer or delivery to be made for the
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purpose permitted by subsection (g) of this Section 6, the Bank must first
receive Instructions from Authorized Persons specifying the shares held by
the Bank or its sub-custodian to be so transferred or delivered and naming
the person or persons to whom transfers or delivery of such shares shall be
made. In the case of any transfer, exchange or delivery to be made for the
purpose permitted by subsection (h) of this Section 6, the Bank must first
receive a certified copy of a resolution of the Trustees of the Fund
adequately describing such transfer, exchange or delivery, declaring such
purpose to be a proper corporate purpose, and naming the person or persons
to whom delivery of such Securities shall be made. Any transfer or delivery
pursuant to subsection (i) of this Section 6 will be made in accordance
with Section 17 hereof.
7. CUSTODY ACCOUNT PROCEDURES. With respect to any transaction
involving Securities held in or to be acquired for a Custody Account, the
Bank in its discretion may cause the Deposit Account for the particular
investment portfolio of the Fund involved to be credited on the contractual
settlement date with the proceeds of any sale or exchange of Securities
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from the particular Custody Account and to be debited on the contractual
settlement date for the cost of Securities purchased or acquired for the
particular Custody Account. The Bank may reverse any such credit or debit
if the transaction with respect to which such credit or debit was made
fails to settle within a reasonable period, determined by the Bank in its
discretion, after the contractual settlement date, except that if any
Securities delivered pursuant to this Section 7 are returned by the
recipient thereof, the Bank may cause any such credits and debits to be
reversed at any time. With respect to any transactions as to which the Bank
does not determine so to credit or debit the particular Deposit Account,
the proceeds from the sale or exchange of Securities will be credited and
the cost of such Securities purchased or acquired will be debited to the
particular Deposit Account on the date such proceeds or Securities are
received by the Bank.
Notwithstanding the preceding paragraph, settlement and payment for Securities
received for, and delivery of Securities out of, a Custody Account may be
effected in accordance with the customary or established securities
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trading or securities processing practices and procedures in the
jurisdiction or market in which the transaction occurs, including, without
limitation, delivering Securities to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer) against a receipt with
the expectation of receiving later payment for such Securities from such
purchaser or dealer.
8. ACTIONS OF THE BANK. Until the Bank receives Instructions from
Authorized Persons to the contrary, the Bank will, or will instruct its
sub-custodian, to:
(a) present for payment any Securities in a Custody Account which are
called, redeemed or retired or otherwise become payable and all coupons and
other income items which call for payment upon presentation to the extent
that the Bank or sub-custodian is aware of such opportunities for payment,
and hold cash received upon presentation of such Securities in accordance
with the provisions of Sections 2, 3 and 4 hereof;
(b) in respect of Securities in a Custody Account, execute in the
name of the Fund on behalf of the particular investment portfolio involved
such ownership and other
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certificates as may be required to obtain payments in respect thereof;
(c) exchange interim receipts or temporary Securities in a Custody Account
for definitive Securities;
(d) (if applicable) convert monies received with respect to Securities
of foreign issue into United States dollars or any other currency necessary
to effect any transaction involving the Securities whenever it is
practicable to do so through customary banking channels, using any method
or agency available, including, but not limited to, the facilities of the
Bank, its subsidiaries, affiliates or sub-custodians;
(e) (if applicable) appoint brokers and agents for any transaction
involving the Securities in a Custody Account, including, without
limitation, affiliates of the Bank or any sub-custodian; and
(f) reclaim taxes withheld by foreign issuers where reclaim is possible,
provided that Bank has been provided with all documentation it may require.
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9. INSTRUCTIONS. As used in this Agreement, the term "Instructions" means
instructions of the Fund or the Company received by the Bank via telephone,
telex, TWX, facsimile transmission, bank wire or other teleprocess or
electronic instruction system acceptable to the Bank which the Bank
believes in good faith to have been given by Authorized Persons or which
are transmitted with proper testing or authentication pursuant to terms and
conditions which the Bank may specify.
Any Instructions delivered to the Bank by telephone shall promptly
thereafter be confirmed in writing by an Authorized Person (which
confirmation may bear the facsimile signature of such Authorized Person),
but the particular investment portfolio of the Fund involved and the
Company will hold the Bank harmless for the Company's or the Fund's (i)
failure to send such confirmation in writing, or (ii) the failure of such
confirmation to conform to the telephone Instructions received, to the
extent such investment portfolio of the Fund or the Company is responsible
for such failure. Unless otherwise expressly provided, all Instructions
shall
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continue in full force and effect until canceled or superseded. If the Bank
required test arrangements, authentication methods or other security
devices to be used with respect to Instructions, any Instructions given by
the Fund or the Company thereafter shall be given and processed in
accordance with such terms and conditions for the use of such arrangements,
methods or devices as the Bank may put into effect and modify from time to
time. The Fund and the Company shall safeguard any testkeys, identification
codes or other security devices which the Bank shall make available to
them. The Bank may electronically record any Instructions given by
telephone, and any other telephone discussions, with respect to a Custody
Account.
10. AUTHORIZED PERSONS. As used in this Agreement, the term
"Authorized Persons" means such officers for such agents of the Fund or the
Company as have been designated by a resolution of the Board of Trustees of
the Fund, a certified copy of which has been provided to the Bank, to act
on behalf of the Fund in the performance of any acts which Authorized
Persons may do under this Agreement. Such persons shall
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continue to be Authorized Persons until such time as the Bank receives
instructions from Authorized Persons that any such officer or agent is no
longer an Authorized Person.
11. NOMINEES. Securities in a Custody Account which are ordinarily
held in registered form may be registered in the name of the Bank's nominee
or, as to any Securities in the possession of an entity other than the
Bank, in the name of such entity's nominee. The particular investment
portfolio of the Fund involved agrees to hold any such nominee harmless
from any liability as a holder of record of such Securities, but not if
such liability is a result of such nominee's negligence. The Bank may
without notice to the Company or the Fund cause any such Securities to
cease to be registered in the name of any such nominee and to be registered
in the name of the Fund. In the event that any Securities registered in the
name of the Bank's nominee or held by one of its sub-custodians and
registered in the name of such sub-custodian's nominee are called for
partial redemption by the issuer of such Security, the Bank may allot, or
cause to be allotted, the called portion to the respective beneficial
holders of
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such class of security in any manner the Bank deems to be fair and
equitable.
12. STANDARD OF CARE.
(a) The Bank shall be obligated to perform only such duties as are set
forth in this Agreement or expressly contained in Instructions given to Bank
which are consistent with the provisions of this Agreement.
(i) The Bank will use reasonable care with respect to its
obligations under this Agreement and the safekeeping of Property.
The Bank shall be liable to the Fund and the Company for any loss
which shall occur as the result of the failure of a sub-custodian
or an eligible foreign securities depository to exercise
reasonable care with respect to the safekeeping of such Property
to the same extent that the Bank would be liable to the Fund and
the Company if the Bank were holding such Property in New York.
In the event of any loss to the Fund or the Company by reason of
the failure of the Bank or its sub-custodian or an eligible
foreign securities depository to exercise reasonable care, the
Bank shall be liable to the Fund or the Company only to the
extent of the Fund's or Company's direct damages and expenses to
be determined based on, but not limited to, the market value of
the Property which is the subject of the loss at the date of
discovery of such loss and without
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reference to any special conditions or circumstances.
(ii) The Bank will not be responsible for any act, omission,
default or for the solvency of any broker or agent (other than as
provided herein) which it or a sub-custodian appoints and uses
unless such appointment and use were made or done negligently or
in bad faith.
(iii) The Bank shall be indemnified by, and without liability to,
the particular investment portfolio of the Fund involved and the
Company for any action taken or omitted by the Bank whether
pursuant to Instructions or otherwise within the scope of this
Agreement if such act or omission was in good faith and without
negligence. In performing its obligations under this Agreement,
the Bank may rely on the genuineness of any document which it
believes in good faith and without negligence to have been
validly executed. The Fund and the Company shall indemnify the
Bank only to the extent of the Bank's direct damages and
expenses, without reference to any special conditions or
circumstances.
(iv) The Fund, on behalf of the particular investment portfolio of
the Fund involved, agrees to cause such investment portfolio to
pay for and hold the Bank harmless from any liability or loss
resulting from the imposition or assessment of any taxes or other
governmental charges, and any related expenses with respect to
income from or
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Property in such investment portfolio's Custody Account and
Deposit Account.
(v) The Bank shall be entitled to rely, and may act upon the
advice of counsel (who may be counsel for the Fund or the
Company) on all matters and shall be without liability for any
action reasonably taken or omitted in good faith and without
negligence pursuant to such advice.
(vi) The Bank need not maintain any insurance for the exclusive
benefit of the Fund or Company.
(vii) Without limiting the foregoing, the Bank shall not be liable for
any loss which results from:
1) the general risk of investing, or
2) subject to Section 12(a)(i) hereof, investing or holding
Property in a particular country including, but not limited
to, losses resulting from nationalization, expropriation or
other governmental actions; regulation of the banking or
securities industry; currency restrictions, devaluations or
fluctuations; and market conditions which prevent the
orderly execution of securities transactions or affect the
value of Property.
(viii) No party shall be liable to the other for any loss due to
forces beyond its control including but not limited to strikes or
work stoppages, acts of war or terrorism, insurrection,
revolution, nuclear fusion, fission or radiation, or acts of God.
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(b) Consistent with and without limiting the first paragraph of this
Section 12, it is specifically acknowledged that the Bank shall have no duty
or responsibility to:
(i) Question Instructions or make any suggestions to the Fund,
Company or an Authorized Person regarding such Instructions;
(ii) Supervise or make recommendations with respect to
investments or the retention of Securities;
(iii) Subject to Section 3 and Section 12(a)(ii) hereof, evaluate
or report to the Fund, Company or an Authorized Person regarding
the financial condition of any broker, agent or other party to
which Securities are delivered or payments are made pursuant to
this Agreement; or
(iv) Review or reconcile trade confirmations received from
brokers.
(c) The Bank shall provide to the Fund, on an annual basis, a report
confirming that the arrangements hereunder remain in compliance with the rules
of the Securities and Exchange Commission governing such arrangements.
13. COMPLIANCE WITH SECURITIES AND EXCHANGE COMMISSION RULES AND ORDERS.
Except to the extent the Bank
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has specifically agreed pursuant to this Agreement or in an exemptive order to
comply with a condition of Rule 17f-5 or any interpretation or exemptive order
promulgated thereunder by or under the authority of the Securities and Exchange
Commission, the Fund shall be solely responsible to assure that the maintenance
of Securities and cash under this Agreement complies with such Rule 17f-5.
14. CORPORATE ACTION. Whenever the Bank or its sub-custodian receives
information concerning the Securities which requires discretionary action by the
beneficial owner of the Securities (other than a proxy), such subscription
rights, bonus issues, stock repurchase plans and rights offerings, or legal
notices or other material intended to be transmitted to securities holders
("Corporate Actions"), the Bank will give the Company notice of such Corporate
Actions to the extent that the Bank's central corporate actions department has
actual knowledge of a Corporate Action in time to notify its customers.
When a rights entitlement or a fractional interest resulting from a rights
issue, stock dividend, stock split or
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similar Corporate Action is received which bears an expiration date, the Bank or
its sub-custodians will endeavor to obtain Instructions from the Fund, Company
to its Authorized Person, but if Instructions are not received in time for the
Bank to take timely action, or actual notice of such Corporate Action was
received too late to seek Instructions, the Bank is authorized to sell such
rights entitlement or fractional interest and to credit the applicable Deposit
Account with the proceeds and to take any other action it deems, in good faith,
to be appropriate in which case, provided it has met the standard of care in
Section 12 hereof, it shall be held harmless by the particular investment
portfolio of the Fund involved for any such action.
The Bank will deliver proxies to the Company or its designated agent
pursuant to special arrangements which may have been agreed to in writing
between the parties hereto. Such proxies shall be executed in the appropriate
nominee name relating to Securities in a Custody Account registered in the name
of such nominee but without indicating the manner in which such proxies are to
be voted; and where bearer
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Securities are involved, proxies will be delivered in accordance with
instructions from Authorized Persons.
15. FEES AND EXPENSES. The Company agrees to pay to the Bank from time to
time such compensation for its services pursuant to this Agreement as may be
mutually agreed upon in writing from time to time and the Bank's out-of-pocket
or incidental expenses, including (but without limitation) reasonable legal
fees. The Fund shall reimburse the Company for the entirety of such amount. The
Fund hereby agrees on behalf of its respective investment portfolios to cause
the particular investment portfolio of the Fund involved to hold the Bank
harmless from any liability or loss resulting from any taxes or other
governmental charges, and any expenses related thereto, which may be imposed, or
assessed with respect to such investment portfolio's Custody Account and also
agrees on behalf of its respective investment portfolios to cause the particular
investment portfolio of the Fund involved to hold the Bank, its sub-custodians,
and their respective nominees harmless from any liability as a record holder of
Securities in such investment portfolio's Custody
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Account. The Bank is authorized to charge any account of the particular
investment portfolio of the Fund involved for such items and the Bank shall have
a lien on Securities in such investment portfolio's Custody Account and on cash
in such investment portfolio's Deposit Account for any amount owing to the Bank
in connection with such investment portfolio from time to time under this
Agreement.
16. EFFECTIVENESS. This Agreement shall be effective on the date first
noted above.
17. TERMINATION. This Agreement may be terminated by the Fund, the
Company or the Bank by 60 days' written notice to the other parties, sent by
registered mail, provided that any termination by the Company shall be
authorized by a resolution of the Trustees of the Fund, a certified copy of
which shall accompany such notice of termination, and provided further, that
such resolution shall specify the names of persons to whom the Bank shall
deliver the Securities in each Custody Account and to whom the cash in each
Deposit Account shall be paid. If notice of termination is given by the Bank,
the Fund or the Company shall, within 60 days following the
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giving of such notices, deliver to the Bank a certified copy of a resolution of
the Trustees of the Fund specifying the names of the persons to whom the Bank
shall deliver such Securities and cash, after deducting therefrom any amounts
which the Bank reasonably determines to be owed to it under Section 15 hereof.
If within 60 days following that giving of a notice of termination by the Bank,
the Bank does not receive from the Fund or the Company a certified copy of a
resolution of the Trustees of the Fund specifying the names of the persons to
whom the cash in each Deposit Account shall be paid and to whom the Securities
in each Custody Account shall be delivered, the Bank, at its election, may
deliver such Securities and pay such cash to a bank or trust company doing
business in the State of New York and qualified as a custodian under the
Investment Company Act of 1940 (and having aggregate capital, surplus and
undivided profits of at least U.S. $20,000,000) to be held and disposed of
pursuant to the provisions of this Agreement, or may continue to hold such
Securities and cash until certified copy of one or more resolutions as aforesaid
is delivered to the Bank. The
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obligations of the parties hereto regarding the use of reasonable care,
indemnities and payment of fees and expenses shall survive the termination of
this Agreement, and the obligations of each investment portfolio of the Fund to
indemnify and/or hold harmless other persons or entities under this Agreement
shall be the several (and not the joint or joint and several) obligation of each
investment portfolio of the Fund.
18. NOTICES. Any notice or other communication from the Fund or the
Company to the Bank is to be sent to the office of the Bank at 0 Xxxxx XxxxxXxxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxx, XX 00000, or such other address as may hereafter
be given to the Fund or the Company in accordance with the notice provisions
hereunder, and any notice from the Bank to the Fund or the Company is to be
mailed postage prepaid, addressed to the Fund and to the Company at the
addresses appearing below, or as the same may hereafter be changed on the Bank's
records in accordance with notice hereunder from the Fund or the Company.
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19. GOVERNING LAW AND SUCCESSORS AND ASSIGNS. This Agreement shall be
governed by the law of the State of New York and shall not be assignable by
any party, but shall bind the successors and assigns of the Fund, the Company
and the Bank.
20. HEADINGS. The headings of the paragraphs hereof are included for
convenience of reference only and do not form a part of this Agreement.
21. COUNTERPART EXECUTION. This Agreement may be executed in any
number of counterparts with the same effect as if all parties hereto had signed
the same document. All counterparts shall be construed together and shall
constitute one agreement.
22. CONFIDENTIALITY. Bank agrees on behalf of itself and its employees
to treat confidentially all records and other information relative to the Fund
and its prior, present, or potential shareholders, and relative to the Company
and its prior, present, or potential customers, except, after prior notification
to and approval in writing by the Fund or the Company, which approval shall not
be
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unreasonably withheld and may not be withheld where Bank may be exposed to
civil or criminal contempt proceedings for failure to comply, when requested to
divulge such information by duly constituted authorities, or when so requested
by the Fund or the Company.
23. RECORDS. The books and records pertaining to the Fund, which are in
the possession or under the control of the Bank, shall be the property of the
Fund. Such books and records shall be prepared maintained as required by the
Investment Company Act of 1940 and other applicable securities laws, rules and
regulations. The Fund and Authorized Persons shall have access to such books and
records at all time during the Bank's normal business hours. Upon the reasonable
request of the Fund, copies of any such books and records shall be provided by
the Bank to the Fund or to an authorized representative of the Fund, at the
Fund's own expense.
24. LIMITATIONS ON THE OBLIGATIONS OF THE FUND. The obligations of the
Fund are not binding upon any of the Trustees, shareholders, officers, employees
or agents of the Fund individually but are binding only upon the assets and
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property of the Fund or one or more of its investment portfolios.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their officers designated below on the day and year first above
written.
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------
Address for record:
Airport Business Center
000 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
THE CHASE MANHATTAN BANK, N.A.
By:
---------------------------
Address for record:
THE HAVEN CAPITAL MANAGEMENT TRUST
By:
---------------------------
Address for record:
c/o Haven Capital Management, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
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