EXHIBIT (g)(5)
SUB-CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of February 18, 1999 by and between PFPC
TRUST COMPANY, a limited purpose trust company organized under the laws of
Delaware ("Custodian"), PNC Bank, National Association, a national banking
association ("PNC Bank") and Xxxxxx Insight Funds Trust, a Massachusetts
business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
and
WHEREAS, PFPC Trust Company serves as custodian for the Fund
pursuant to a Custody Agreement with the Fund dated February 23, 1996
("Custody Agreement"); and
WHEREAS, Custodian and the Fund wish to retain PNC Bank to provide
sub-custodian services, and PNC Bank wishes to furnish sub-custodian services,
either directly or through an affiliate, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 ACT" means the Securities Act of 1933, as amended.
(b) "1934 ACT" means the Securities Exchange Act of 1934, as amended.
(c) "AUTHORIZED PERSON" means any officer of the Fund, the
Custodian and any other person duly authorized by the Fund's
Board of Trustees to give Oral Instructions and Written
Instructions on behalf of the Fund and listed on the
Authorized Persons Appendix attached hereto and made a part
hereof or any amendment thereto as may be received by PNC
Bank. An Authorized Person's scope of authority may be limited
by the Fund by setting forth such limitation in the Authorized
Persons Appendix.
(d) "BOOK-ENTRY SYSTEM" means Federal Reserve Treasury
book-entry system for United States and federal agency
securities, its successor or successors, and its nominee or
nominees and any book-entry system maintained by an exchange
registered with the SEC under the 1934 Act.
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "CHANGE OF CONTROL" means a change in ownership or control
(not including transactions between wholly-owned direct or
indirect subsidiaries of a common parent) of 25% or more of
the beneficial ownership of the shares of common stock or
shares of beneficial interest of an entity or its parent(s).
(g) "ORAL INSTRUCTIONS" mean oral instructions received by PNC
Bank from an Authorized Person or from a person reasonably
believed by PNC Bank to be an Authorized Person.
(h) "PNC BANK" means PNC Bank, National Association or a
subsidiary or affiliate of PNC Bank, National Association.
(i) "SEC" means the Securities and Exchange Commission.
(j) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940
Act and the CEA.
(k) "SHARES" mean the shares of beneficial interest of any series
or class of the Fund.
(l) "PROPERTY" means:
(i) any and all securities and other investment items
which the Custodian may from time to time deposit, or
cause to be deposited, with PNC Bank or which PNC
Bank may from time to time hold for the Fund;
(ii) all income in respect of any of such securities or
other investment items;
(iii) all proceeds of the sale of any of such securities or
investment items; and
(iv) all proceeds of the sale of securities issued by the
Fund, which are received by PNC Bank from time to
time, from or on behalf of the Fund.
(m) "WRITTEN INSTRUCTIONS" mean written instructions signed by two
Authorized Persons and received by PNC Bank. The instructions
may be delivered by hand, mail, tested telegram, cable, telex
or facsimile sending device.
2. APPOINTMENT. The Custodian and the Fund hereby appoint PNC Bank to
provide sub-custodian services to the Fund, on behalf of each of its
investment portfolios (each, a "Portfolio"), and PNC Bank accepts such
appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PNC Bank with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Directors, approving the appointment of PNC
Bank or its affiliates to provide sub-custodian services;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of each Portfolio's advisory agreements;
(d) a copy of the distribution agreement with respect to each
class of Shares;
(e) copies of any shareholder servicing agreements made in
respect of the Fund or a Portfolio; and
(f) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
PNC Bank undertakes to comply with all applicable requirements of the
Securities Laws and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by PNC Bank hereunder. Except as specifically set forth
herein, PNC Bank assumes no responsibility for such compliance by the
Fund or any Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PNC Bank shall
act only upon Oral Instructions and Written Instructions.
(b) PNC Bank shall be entitled to rely upon any Oral Instructions
and Written Instructions it receives from an Authorized
Person (or from a person reasonably believed by PNC Bank to be
an Authorized Person) pursuant to this Agreement. PNC Bank may
assume that any Oral Instructions or Written Instructions
received hereunder are not in any way inconsistent with the
provisions of organizational documents of the Fund or of any
vote, resolution or proceeding of the Fund's Board of Trustees
or of the Fund's shareholders, unless and until PNC Bank
receives Written Instructions to the contrary.
(c) The Custodian and the Fund, as applicable, agree to
forward to PNC Bank Written Instructions confirming Oral
Instructions (except where such Oral Instructions are
given by PNC Bank or its affiliates) so that PNC Bank
receives the Written Instructions by the close of business
on the same day that such Oral Instructions are received.
The fact that such confirming Written Instructions are
not received by PNC Bank shall in no way invalidate the
transactions or enforceability of the transactions
authorized by the Oral Instructions. Where Oral
Instructions or Written Instructions reasonably appear
to have been received from an Authorized Person, PNC Bank
shall incur no liability to the Fund in acting upon such
Oral Instructions or Written Instructions provided that
PNC Bank's actions comply with the other provisions of
this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE FUND. If PNC Bank is in doubt as to any action
it should or should not take, PNC Bank may request directions
or advice, including Oral Instructions or Written
Instructions, from the Custodian or the Fund as applicable.
(b) ADVICE OF COUNSEL. If PNC Bank shall be in doubt as to any
question of law pertaining to any action it should or should
not take, PNC Bank may request advice at its own cost from
such counsel of its own choosing (who may be counsel for the
Custodian, the Fund, the Fund's investment adviser or PNC
Bank, at the option of PNC Bank).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice or Oral Instructions or Written
Instructions PNC Bank receives, and the advice it receives
from counsel, PNC Bank shall be entitled to rely upon and,
after notice to Custodian and the Fund, follow the advice of
counsel. In the event PNC Bank so relies on the advice of
counsel, PNC Bank remains liable for any action or omission on
the part of PNC Bank which constitutes willful misfeasance,
bad faith, gross negligence or reckless disregard by PNC Bank
of any duties, obligations or responsibilities set forth in
this Agreement.
(d) PROTECTION OF PNC BANK. PNC Bank shall be protected in
any action it takes or does not take in reliance upon
directions, advice or Oral Instructions or Written
Instructions it receives from the Fund or from counsel and
which PNC Bank believes, in good faith, to be consistent
with those directions, advice or Oral Instructions or
Written Instructions. Nothing in this section shall be
construed so as to impose an obligation upon PNC Bank (i)
to seek such directions, advice or Oral Instructions or
Written Instructions, or (ii) to act in accordance with
such directions, advice or Oral Instructions or Written
Instructions unless, under the terms of other provisions
of this Agreement, the same is a condition of PNC Bank's
properly taking or not taking such action. Nothing in
this subsection shall excuse PNC Bank when an action
or omission on the part of PNC Bank constitutes willful
misfeasance, bad faith, gross negligence or reckless
disregard by PNC Bank of any duties, obligations or
responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to Custodian, the
Fund and any Portfolio, which are in the possession or under the
control of PNC Bank, shall be the property of the Fund. Such books and
records shall be prepared and maintained as required by the 1940 Act
and other applicable securities laws, rules and regulations. The
Custodian, the Fund and Authorized Persons shall have access to such
books and records at all times during PNC Bank's normal business hours.
Upon the reasonable request of the Custodian or the Fund, copies of any
such books and records shall be provided by PNC Bank to the Custodian,
the Fund or to an authorized representative of the Fund, at the Fund's
expense.
8. CONFIDENTIALITY. PNC Bank agrees to keep confidential all records of
the Custodian and the Fund and information relating to the Custodian,
the Fund and its shareholders, unless the release of such records or
information is otherwise consented to, in writing, by the Custodian or
the Fund, as the case may be. The Custodian and the Fund agree that
such consent shall not be unreasonably withheld and may not be withheld
where PNC Bank may be exposed to civil or criminal contempt proceedings
or when required to divulge such information or records to duly
constituted authorities.
9. COOPERATION WITH ACCOUNTANTS. PNC Bank shall cooperate with the
Custodian's and the Fund's independent public accountants and shall
take all reasonable action in the performance of its obligations under
this Agreement to ensure that the necessary information is made
available to such accountants for the expression of their opinion, as
required by the Fund.
10. DISASTER RECOVERY. PNC Bank shall enter into and shall maintain in
effect with appropriate parties one or more agreements making
reasonable provisions for emergency use of electronic data processing
equipment to the extent appropriate equipment is available. In the
event of equipment failures, PNC Bank shall, at no additional expense
to the Fund, take reasonable steps to minimize service interruptions.
PNC Bank shall have no liability with respect to the loss of data or
service interruptions caused by equipment failure provided such loss or
interruption is not covered by PNC Bank's own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties or
obligations under this Agreement.
11. YEAR 2000 READINESS DISCLOSURE. PNC Bank (a) has reviewed its
business and operations as they relate to the services provided
hereunder, (b) has developed or is developing a program to remediate
or replace computer applications and systems, and (c) has
developed a testing plan to test the remediation or replacement of
computer applications/systems, in each case, to address on a
timely basis the risk that certain computer applications/systems
used by PNC Bank may be unable to recognize and perform
properly date sensitive functions involving dates prior to,
including and after December 31, 1999, including dates such as
February 29, 2000 (the "Year 2000 Challenge"). To the best of PNC
Bank's knowledge and belief, the reasonably foreseeable
consequences of the Year 2000 Challenge will not adversely effect
PNC Bank's ability to perform its duties and obligations under
this Agreement.
12. COMPENSATION. As compensation for sub-custody services rendered by PNC
Bank during the term of this Agreement, the Custodian, will pay to PNC
Bank a fee or fees as may be agreed to in writing from time to time by
the Custodian and PNC Bank.
13. INDEMNIFICATION. The Fund, on behalf of each Portfolio, agrees to
indemnify and hold harmless PNC Bank and its affiliates from all
taxes, charges, expenses, assessments, claims and liabilities
(including, without limitation, liabilities arising under the
Securities Laws and any state and foreign securities and blue sky
laws, and amendments thereto) and expenses, including (without
limitation) attorneys' fees and disbursements, arising directly or
indirectly from any action or omission to act which PNC Bank
takes (i) at the request or on the direction of or in reliance
on the advice of the Fund or (ii) upon Oral Instructions or
Written Instructions given by any person authorized by the Fund's
Board of Trustees to give such Instructions. Neither PNC
Bank, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) arising
out of PNC Bank's or its affiliates' own willful misfeasance, bad
faith, gross negligence or reckless disregard of its duties under
this Agreement.
14. RESPONSIBILITY OF PNC BANK.
(a) PNC Bank shall be under no duty to take any action on behalf
of Custodian, or the Fund or any Portfolio except as
specifically set forth herein or as may be specifically agreed
to by PNC Bank in writing. PNC Bank shall be obligated to
exercise care and diligence in the performance of its duties
hereunder, to act in good faith and to use its best efforts,
within reasonable limits, in performing services provided for
under this Agreement. PNC Bank shall be liable for any damages
arising out of PNC Bank's failure to perform its duties under
this agreement to the extent such damages arise out of PNC
Bank's willful misfeasance, bad faith, gross negligence or
reckless disregard of its duties under this Agreement.
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PNC Bank shall not be
under any duty or obligation to inquire into and shall not be
liable for (A) the validity or invalidity or authority or lack
thereof of any Oral Instruction or Written Instruction, notice
or other instrument which conforms to the applicable
requirements of this Agreement, and which PNC Bank reasonably
believes to be genuine; or (B) subject to section 10, delays
or errors or loss of data occurring by reason of circumstances
beyond PNC Bank's control, including acts of civil or military
authority, national emergencies, fire, flood, catastrophe,
acts of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PNC Bank nor its affiliates shall be liable to the
Custodian, the Fund or to any Portfolio for any consequential,
special or indirect losses or damages which the Fund may incur
or suffer by or as a consequence of PNC Bank's or its
affiliates' performance of the services provided hereunder,
whether or not the likelihood of such losses or damages was
known by PNC Bank or its affiliates.
15. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Custodian, for the account of
the Fund, will deliver or arrange for delivery to PNC Bank,
certain Property owned by the Portfolios, including cash
received as a result of the distribution of Shares, during the
period that is set forth in this Agreement. PNC Bank will not
be responsible for such Property until actual receipt.
(b) RECEIPT AND DISBURSEMENT OF MONEY. PNC Bank, acting upon
Written Instructions, shall open and maintain separate
accounts in Custodian's name for the benefit of the Fund using
all cash received from or for the account of the Fund, subject
to the terms of this Agreement. In addition, upon Written
Instructions, PNC Bank shall open separate custodial accounts
for each separate series or Portfolio of the Fund
(collectively, the "Accounts") and shall hold in the Accounts
all cash received from or for the Accounts of the Fund
specifically designated to each separate series or Portfolio.
PNC Bank shall make cash payments from or for the Accounts of
a Portfolio only for:
(i) purchases of securities in the name of a Portfolio or
PNC Bank or PNC Bank's nominee as provided in
sub-section (j) and for which PNC Bank has received a
copy of the broker's or dealer's confirmation or
payee's invoice, as appropriate;
(ii) purchase or redemption of Shares of the Fund;
(iii) payment of, subject to Written Instructions,
interest, taxes, administration, accounting,
distribution, advisory, management fees or similar
expenses which are to be borne by a Portfolio;
(iv) payment to, subject to receipt of Written
Instructions, the Fund's transfer agent, as agent for
the shareholders, an amount equal to the amount of
dividends and distributions stated in the Written
Instructions to be distributed in cash by the
transfer agent to shareholders, or, in lieu of paying
the Fund's transfer agent, PNC Bank may arrange for
the direct payment of cash dividends and
distributions to shareholders in accordance with
procedures mutually agreed upon from time to time by
and among the Fund, PNC Bank and the Fund's transfer
agent.
(v) payments, upon receipt Written Instructions, in
connection with the conversion, exchange or surrender
of securities owned or subscribed to by the Fund and
held by or delivered to PNC Bank;
(vi) payments of the amounts of dividends received with
respect to securities sold short;
(vii) payments made to a sub-custodian pursuant to
provisions in sub-section (c) of this Section; and
(viii) payments, upon Written Instructions, made for other
proper Fund purposes.
PNC Bank is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as sub-custodian for
the Accounts.
(c) RECEIPT OF SECURITIES; SUBCUSTODIANS.
(i) PNC Bank shall hold all securities received by it
for the Accounts in a separate account that
segregates such securities from those of any other
persons, firms or corporations, except for
securities held in a Book-Entry System. All such
securities shall be held or disposed of only upon
Written Instructions of the Custodian or Fund
pursuant to the terms of this Agreement. PNC
Bank shall have no power or authority to assign,
hypothecate, pledge or otherwise dispose of any
such securities or investment, except upon the
express terms of this Agreement and upon Written
Instructions, accompanied by a certified resolution
of the Fund's Board of Directors, authorizing the
transaction. In no case may any member of the
Fund's Board of Directors, or any officer,
employee or agent of the Fund withdraw any
securities.
At PNC Bank's own expense and for its own
convenience, PNC Bank may enter into sub-custodian
agreements with other United States banks or trust
companies to perform duties described in this
sub-section (c). Such bank or trust company shall
have an aggregate capital, surplus and undivided
profits, according to its last published report, of
at least one million dollars ($1,000,000), if it is a
subsidiary or affiliate of PNC Bank, or at least
twenty million dollars ($20,000,000) if such bank or
trust company is not a subsidiary or affiliate of PNC
Bank. In addition, such bank or trust company must be
qualified to act as custodian and agree to comply
with the relevant provisions of the 1940 Act and
other applicable rules and regulations. Any such
arrangement will not be entered into without prior
written notice to the Custodian or Fund.
PNC Bank shall remain responsible for the performance of all of its
duties as described in this Agreement and shall hold the Custodian, the
Fund and each Portfolio harmless from its own acts or omissions, under
the standards of care provided for herein, or the acts and omissions of
any sub-custodian retained by PNC Bank under the terms of this
sub-section (c).
(d) TRANSACTIONS REQUIRING INSTRUCTIONS. Upon receipt of Oral Instructions
or Written Instructions and not otherwise, PNC Bank, directly or
through the use of the Book-Entry System, shall:
(i) deliver any securities held for a Portfolio
against the receipt of payment for the sale
of such securities;
(ii) execute and deliver to such persons as may be
designated in such Oral Instructions or Written
Instructions, proxies, consents, authorizations, and
any other instruments whereby the authority of a
Portfolio as owner of any securities may be
exercised;
(iii) deliver any securities to the issuer thereof, or its
agent, when such securities are called, redeemed,
retired or otherwise become payable; provided that,
in any such case, the cash or other consideration is
to be delivered to PNC Bank;
(iv) deliver any securities held for a Portfolio against
receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization,
refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise
of any conversion privilege;
(v) deliver any securities held for a Portfolio to any
protective committee, reorganization committee or
other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization
or sale of assets of any corporation, and receive and
hold under the terms of this Agreement such
certificates of deposit, interim receipts or other
instruments or documents as may be issued to it to
evidence such delivery;
(vi) make such transfer or exchanges of the assets of the
Portfolios and take such other steps as shall be
stated in said Oral Instructions or Written
Instructions to be for the purpose of effectuating a
duly authorized plan of liquidation, reorganization,
merger, consolidation or recapitalization of the
Fund;
(vii) release securities belonging to a Portfolio to any
bank or trust company for the purpose of a pledge or
hypothecation to secure any loan incurred by the Fund
on behalf of that Portfolio; provided, however, that
securities shall be released only upon payment to PNC
Bank of the monies borrowed, except that in cases
where additional collateral is required to secure a
borrowing already made subject to proper prior
authorization, further securities may be released for
that purpose; and repay such loan upon redelivery to
it of the securities pledged or hypothecated therefor
and upon surrender of the note or notes evidencing
the loan;
(viii) release and deliver securities owned by a Portfolio
in connection with any repurchase agreement entered
into on behalf of the Fund, but only on receipt of
payment therefor; and pay out moneys of the Fund in
connection with such repurchase agreements, but only
upon the delivery of the securities;
(ix) release and deliver or exchange securities owned by
the Fund in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities owned by the Fund for
the purpose of redeeming in kind shares of the Fund
upon delivery thereof; and
(xi) release and deliver or exchange securities owned by
the Fund for other corporate purposes.
PNC Bank must also receive a certified resolution
describing the nature of the corporate purpose and
the name and address of the person(s) to whom
delivery shall be made when such action is pursuant
to sub-paragraph d.
(e) USE OF BOOK-ENTRY SYSTEM. The Fund shall deliver to PNC Bank
certified resolutions of the Fund's Board of Directors
approving, authorizing and instructing PNC Bank on a
continuous basis, to deposit in the Book-Entry System all
securities belonging to the Portfolios eligible for deposit
therein and to utilize the Book-Entry System to the extent
possible in connection with settlements of purchases and sales
of securities by the Portfolios, and deliveries and returns of
securities loaned, subject to repurchase agreements or used as
collateral in connection with borrowings. PNC Bank shall
continue to perform such duties until it receives Written
Instructions or Oral Instructions authorizing contrary
actions.
PNC Bank shall administer the Book-Entry System as follows:
(i) With respect to securities of each Portfolio which
are maintained in the Book-Entry System, the records
of PNC Bank shall identify by Book-Entry or otherwise
those securities belonging to each Portfolio. PNC
Bank shall furnish to the Custodian and Fund a
detailed statement of the Property held for each
Portfolio under this Agreement at least monthly and
from time to time and upon written request.
(ii) Securities and any cash of each Portfolio deposited
in the Book-Entry System will at all times be
segregated from any assets and cash controlled by PNC
Bank in other than a fiduciary or custodian capacity
but may be commingled with other assets held in such
capacities. PNC Bank and its sub-custodian, if any,
will pay out money only upon receipt of securities
and will deliver securities only upon the receipt of
money.
(iii) All books and records maintained by PNC Bank which
relate to the Fund's participation in the Book-Entry
System will at all times during PNC Bank's regular
business hours be open to the inspection of
Authorized Persons, and PNC Bank will furnish to the
Custodian and the Fund all information in respect of
the services rendered as it may require.
PNC Bank will also provide the Custodian and the Fund with
such reports on its own system of internal control as the
Custodian and the Fund may reasonably request from time to
time.
(f) REGISTRATION OF SECURITIES. All Securities held for a
Portfolio which are issued or issuable only in bearer form,
except such securities held in the Book-Entry System,
shall be held by PNC Bank in bearer form; all other
securities held for a Portfolio may be registered in the
name of the Custodian on behalf of the Fund and the
respective Portfolio, PNC Bank, the Book-Entry System, a
sub-custodian, or any duly appointed nominees of the
Custodian, Fund, PNC Bank, Book-Entry System or
sub-custodian. The Custodian and the Fund reserves the
right to instruct PNC Bank as to the method of registration
and safekeeping of the securities of the Fund. The Fund
agrees to furnish to PNC Bank appropriate instruments to
enable PNC Bank to hold or deliver in proper form for
transfer, or to register in the name of its nominee or in
the name of the Book-Entry System, any securities which
it may hold for the Accounts and which may from time to time
be registered in the name of the Fund on behalf of a
Portfolio.
(g) VOTING AND OTHER ACTION. Neither PNC Bank nor its nominee
shall vote any of the securities held pursuant to this
Agreement by or for the account of a Portfolio, except in
accordance with Written Instructions. PNC Bank, directly or
through the use of the Book-Entry System, shall execute in
blank and promptly deliver all notices, proxies and proxy
soliciting materials to the registered holder of such
securities. If the registered holder is not the Fund on behalf
of a Portfolio, then Written Instructions or Oral Instructions
must designate the person who owns such securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of
contrary Written Instructions, PNC Bank is authorized to take
the following actions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of each
Portfolio, all income, dividends,
distributions, coupons, option premiums,
other payments and similar items, included
or to be included in the Property, and, in
addition, promptly advise each Portfolio of
such receipt and credit such income, as
collected, to each Portfolio's account;
(B) endorse and deposit for collection, in the
name of the Fund, checks, drafts, or other
orders for the payment of money;
(C) receive and hold for the account of each
Portfolio all securities received as a
distribution on the Portfolio's securities
as a result of a stock dividend, share
split-up or reorganization,
recapitalization, readjustment or other
rearrangement or distribution of rights or
similar securities issued with respect to
any securities belonging to a Portfolio and
held by PNC Bank hereunder;
(D) present for payment and collect the amount
payable upon all securities which may mature
or be called, redeemed, or retired, or
otherwise become payable on the date such
securities become payable; and
(E) take any action which may be necessary and
proper in connection with the collection and
receipt of such income and other payments
and the endorsement for collection of
checks, drafts, and other negotiable
instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) deliver or cause to be delivered Property
against payment or other consideration or
written receipt therefor in the following
cases:
(1) for examination by a broker or
dealer selling for the account of
a Portfolio in accordance with
street delivery custom;
(2) for the exchange of interim
receipts or temporary securities
for definitive securities; and
(3) for transfer of securities into the
name of the Fund on behalf of a
Portfolio or PNC Bank or nominee of
either, or for exchange of
securities for a different number of
bonds, certificates, or other
evidence, representing the same
aggregate face amount or number of
units bearing the same interest
rate, maturity date and call
provisions, if any; provided that,
in any such case, the new securities
are to be delivered to PNC Bank.
(B) Unless and until PNC Bank receives Oral
Instructions or Written Instructions to the
contrary, PNC Bank shall:
(1) pay all income items held by it
which call for payment upon
presentation and hold the cash
received by it upon such payment for
the account of each Portfolio;
(2) collect interest and cash dividends
received, with notice to the Fund,
to the account of each Portfolio;
(3) hold for the account of each
Portfolio all stock dividends,
rights and similar securities issued
with respect to any securities held
by PNC Bank; and
(4) execute as agent on behalf of the
Fund all necessary ownership
certificates required by the
Internal Revenue Code or the Income
Tax Regulations of the United States
Treasury Department or under the
laws of any state now or hereafter
in effect, inserting the Fund's
name, on behalf of a Portfolio, on
such certificate as the owner of the
securities covered thereby, to the
extent it may lawfully do so.
(i) SEGREGATED ACCOUNTS.
(i) PNC Bank shall upon receipt of Written Instructions
or Oral Instructions establish and maintain a
segregated accounts on its records for and on behalf
of each Portfolio. Such accounts may be used to
transfer cash and securities, including securities in
the Book-Entry System:
(A) for the purposes of compliance by the Fund
with the procedures required by a securities
or option exchange, providing such
procedures comply with the 1940 Act and any
releases of the SEC relating to the
maintenance of segregated accounts by
registered investment companies; and
(B) Upon receipt of Written Instructions, for
other proper corporate purposes.
(j) PURCHASES OF SECURITIES. PNC Bank shall settle purchased
securities upon receipt of Oral Instructions or Written
Instructions from the Fund or its investment advisers that
specify:
(i) the name of the issuer and the title of the
securities, including CUSIP number if applicable;
(ii) the number of shares or the principal amount
purchased and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the broker
through whom the purchase was made. PNC Bank shall
upon receipt of securities purchased by or for a
Portfolio pay out of the moneys held for the account
of the Portfolio the total amount payable to the
person from whom or the broker through whom the
purchase was made, provided that the same conforms to
the total amount payable as set forth in such Oral
Instructions or Written Instructions.
(k) SALES OF SECURITIES. PNC Bank shall settle sold securities
upon receipt of Oral Instructions or Written Instructions from
the Fund that specify:
(i) the name of the issuer and the title of the security,
including CUSIP number if applicable;
(ii) the number of shares or principal amount sold, and
accrued interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon such sale;
(vi) the name of the broker through whom or the person to
whom the sale was made; and
(vii) the location to which the security must be delivered
and delivery deadline, if any; and
(viii) the Portfolio involved.
PNC Bank shall deliver the securities upon receipt of the total amount
payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set forth in the Oral Instructions or
Written Instructions. Subject to the foregoing, PNC Bank may accept
payment in such form as shall be satisfactory to it, and may deliver
securities and arrange for payment in accordance with the customs
prevailing among dealers in securities.
(l) REPORTS; PROXY MATERIALS.
(i) PNC Bank shall furnish to the Custodian and the
Fund the following reports:
(A) such periodic and special reports as the
Custodian and/or the Fund may reasonably
request;
(B) a monthly statement summarizing all
transactions and entries for the account of
each Portfolio, listing each Portfolio
securities belonging to each Portfolio with
the adjusted average cost of each issue and
the market value at the end of such month
and stating the cash account of each
Portfolio including disbursements;
(C) the reports required to be furnished to the
Fund pursuant to Rule 17f-4; and
(D) such other information as may be agreed upon
from time to time between the Custodian or
the Fund and PNC Bank.
(ii) PNC Bank shall transmit promptly to the Fund any
proxy statement, proxy material, notice of a call or
conversion or similar communication received by it as
sub-custodian of the Property. PNC Bank shall be
under no other obligation to inform the Fund as to
such actions or events.
(m) COLLECTIONS. All collections of monies or other property in
respect, or which are to become part, of the Property (but
not the safekeeping thereof upon receipt by PNC Bank)
shall be at the sole risk of the Fund. If payment is not
received by PNC Bank within a reasonable time after proper
demands have been made, PNC Bank shall notify the Fund in
writing, including copies of all demand letters, any written
responses, memoranda of all oral responses and shall await
instructions from the Fund. PNC Bank shall not be obliged
to take legal action for collection unless and until
reasonably indemnified to its satisfaction. PNC Bank
shall also notify the Custodian and the Fund as soon as
reasonably practicable whenever income due on securities is
not collected in due course and shall provide the Custodian
and the Fund with periodic status reports of such income
collected after a reasonable time.
16. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Custodian, the Fund or PNC Bank on sixty (60)
days' prior written notice to the other parties.
17. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram,
cable, telex or facsimile sending device. Notice shall be addressed
(a) if to PNC Bank at Airport Business Center, 000 Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxx (b) if to the
Custodian, at Airport Business Center, 000 Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxx 00000, Attn: Xxx Xxxxxxxx (c) if to the Fund at its
address or (d) at such other address as shall have been given by like
notice to the sender of any such notice or other communication by
the other party. If notice is sent by confirming telegram, cable,
telex or facsimile sending device, it shall be deemed to have been
given immediately. If notice is sent by first-class mail, it
shall be deemed to have been given five days after it has been
mailed. If notice is sent by messenger, it shall be deemed to have
been given on the day it is delivered.
19. AMENDMENTS. This Agreement, or any term hereof, may be changed or
waived only by a written amendment, signed by the party against whom
enforcement of such change or waiver is sought.
20. DELEGATION; ASSIGNMENT. PNC Bank may assign its rights and delegate its
duties hereunder to any affiliate (as defined in the 0000 Xxx) of or
any majority-owned direct or indirect subsidiary of PNC Bank, or PNC
Bank Corp., provided that (i) PNC Bank gives the Fund 30 days' prior
written notice of such assignment or delegation; (ii) the assignee or
delegate agrees to comply with the relevant provision of the 1940 Act;
and (iii) PNC Bank and such assignee or delegate promptly provide such
information as the Fund may reasonably request, and respond to such
questions as the Fund may reasonably ask, relative to the assignment or
delegation, (including, without limitation, the capabilities of the
assignee or delegate). In the event of such delegation, PNC Bank shall
remain liable under this Agreement.
21. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
22. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
23. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior
agreements and understandings relating to the subject matter
hereof, provided that the parties may embody in one or more
separate documents their agreement, if any, with respect to
delegated duties and Oral Instructions.
(b) CAPTIONS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit
any of the provisions hereof or otherwise affect their
construction or effect.
(c) GOVERNING LAW. This Agreement shall be deemed to be a contract
made in Pennsylvania and governed by Pennsylvania law, without
regard to principles of conflicts of law.
(d) PARTIAL INVALIDITY. If any provision of this Agreement shall
be held or made invalid by a court decision, statute, rule or
otherwise, the remainder of this Agreement shall not be
affected thereby.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
(f) FACSIMILE SIGNATURES. The facsimile signature of any party to
this Agreement shall constitute the valid and binding
execution hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PFPC TRUST COMPANY
By: /S/ XXXXXX XXXXXXXX
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Title: SENIOR VICE PRESIDENT
PNC BANK, NATIONAL ASSOCIATION
By: /S/ XXXXXX XXXXXXXX
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Title: VICE PRESIDENT
XXXXXX INSIGHT FUNDS TRUST
By: /S/ XXXXXX X. RIO
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Title: PRESIDENT
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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