Exhibit (g)(12)
AMENDED AND RESTATED CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of February 2, 2004 by and between PFPC Trust
Company, a Delaware limited purpose trust company ("PFPC Trust"), and Xxxxxx
Insight Funds Trust, a Massachusetts business trust (the "Fund").
WITNESSETH:
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, the Fund wishes to retain PFPC Trust to provide custodian
services, and PFPC Trust wishes to furnish custodian services, either directly
or through an affiliate or affiliates, as more fully described herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. AS USED IN THIS AGREEMENT:
(a) "1933 Act" means the Securities Act of 1933, as amended,
(b) "1934 Act" means the Securities Exchange Act of 1934, as
amended.
(c) "Authorized Person" means any officer of the Fund and any other
person duly authorized by the Fund's Board of Trustees to give Oral 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 PFPC Trust. 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) "Depository" means any depository, clearing agency or system,
book-entry system (including the Book-Entry System), settlement system or other
similar entity.
(g) "Oral Instructions" mean oral instructions received by PFPC
Trust from an
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Authorized Person or from a person reasonably believed by PFPC Trust to be an
Authorized Person.
(h) "PFPC Trust" means PFPC Trust Company or a subsidiary or
affiliate of PFPC Trust Company.
(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 Fund may from time to time deposit, or cause to be
deposited, with PFPC Trust or which PFPC Trust may from
time to time hold for 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 PFPC Trust 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 PFPC Trust. The instructions may be delivered
by hand, mail, tested telegram, cable, telex or facsimile sending device.
2. APPOINTMENT. The Fund hereby appoints PFPC Trust to provide custodian
services to the Fund, on behalf of each of its investment portfolios (each, a
"Portfolio"), and PFPC Trust accepts such appointment and agrees to furnish such
services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where applicable, will
provide PFPC Trust with the following:
(a) certified or authenticated copies of the resolutions of the
Fund's Board of Trustees, approving the appointment of PFPC
Trust or its affiliates to provide services;
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(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) a copy of each Portfolio's administration agreement if PFPC
Trust (or an affiliate thereof) is not providing the Portfolio
with such services;
(f) copies of any shareholder servicing agreements made in respect
of the Fund or a Portfolio; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
PFPC Trust 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
PFPC Trust hereunder. Except as specifically set forth herein, PFPC Trust
assumes no responsibility for such compliance by the Fund or any Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PFPC Trust shall
act only upon Oral or Written Instructions.
(b) PFPC Trust shall be entitled to rely upon any Oral or Written
Instructions it receives from an Authorized Person (or from a person reasonably
believed by PFPC Trust to be an Authorized Person) pursuant to this Agreement.
PFPC Trust may assume that any Oral 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 PFPC Trust receives
Written Instructions to the contrary.
(c) The Fund agrees to forward to PFPC Trust Written Instructions
confirming Oral Instructions (except where such Oral Instructions are given by
PFPC Trust or its affiliates) so that PFPC Trust receives the Written
Instructions by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written Instructions
are not received by PFPC Trust shall in no way invalidate the transactions or
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enforceability of the transactions authorized by the Oral Instructions. Where
Oral or Written Instructions reasonably appear to have been received from an
Authorized Person, PFPC Trust shall incur no liability to the Fund in acting
upon such Oral or Written Instructions provided that PFPC Trust's actions comply
with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PFPC Trust is in doubt as to any action
it should or should not take, PFPC Trust may request directions or advice,
including Oral or Written Instructions, from the Fund.
(b) Advice of Counsel. If PFPC Trust shall be in doubt as to any
question of law pertaining to any action it should or should not take, PFPC
Trust may request advice at its own cost from such counsel of its own choosing
(who may be counsel for the Fund, the Fund's investment adviser or PFPC Trust,
at the option of PFPC Trust).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral or Written Instructions PFPC Trust receives from the
Fund, and the advice it receives from counsel, PFPC Trust shall be entitled to
rely upon and follow the advice of counsel. In the event PFPC Trust so relies on
the advice of counsel, PFPC Trust remains liable for any action or omission on
the part of PFPC Trust which constitutes willful misfeasance, bad faith,
negligence or reckless disregard by PFPC Trust of any duties, obligations or
responsibilities set forth in this Agreement.
(d) Protection of PFPC Trust. PFPC Trust shall be protected in any
action it takes or does not take in reliance upon directions, advice or Oral or
Written Instructions it receives from the Fund or from counsel and which PFPC
Trust believes, in good faith, to be consistent with those directions, advice or
Oral or Written Instructions. Nothing in this section shall be construed so as
to impose an obligation upon PFPC Trust (i) to seek such directions, advice or
Oral or Written Instructions, or (ii) to act in accordance with such directions,
advice or Oral or Written Instructions unless, under the terms of other
provisions of this Agreement, the same is a condition of PFPC Trust's properly
taking or not taking such action. Nothing in this subsection shall excuse PFPC
Trust when an action or omission on the part of PFPC Trust constitutes willful
misfeasance, bad faith, negligence or reckless disregard by PFPC Trust of any
duties, obligations or responsibilities set forth in this Agreement.
7. RECORDS;VISITS. The books and records pertaining to the Fund and any
Portfolio,
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which are in the possession or under the control of PFPC Trust, 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 Fund and Authorized Persons shall have access to such books and
records at all times during PFPC Trust's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be
provided by PFPC Trust to the Fund or to an authorized representative of the
Fund, at the Fund's expense.
8. CONFIDENTIALITY. PFPC Trust agrees to keep confidential all records of
the Fund and information relating to the Fund and its shareholders, unless the
release of such records or information is applicable to the provision of
services under this Agreement or is otherwise consented to, in writing, by the
Fund. The Fund agrees that such consent shall not be required where PFPC Trust
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. PFPC Trust shall cooperate with 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. PFPC Trust shall enter into and shall maintain in
effect with appropriate parties one or more agreements making reasonable
provisions for emergency use of electronic data processing equipment to the
extent appropriate equipment is available. In the event of equipment failures,
PFPC Trust shall, at no additional expense to the Fund, take reasonable steps to
minimize service interruptions. PFPC Trust shall have no liability with respect
to the loss of data or service interruptions caused by equipment failure
provided such loss or interruption is not caused by PFPC Trust's own willful
misfeasance, bad faith, negligence or reckless disregard of its duties or
obligations under this Agreement.
11. COMPENSATION. As compensation for custody services rendered by PFPC
Trust during the term of this Agreement, the Fund, on behalf of each of the
Portfolios, will pay to PFPC Trust a fee or fees as may be agreed to in writing
from time to time by the Fund and PFPC Trust. Until modified or replaced by
agreement of the Fund and PFPC Trust, the Fund and PFPC Trust agree that the fee
letter currently in place between them (dated August 2, 2002 and originally
entered into with respect to the prior custodian services agreement between the
Fund and PFPC Trust dated February 23, 1996) shall be controlling with respect
to PFPC Trust's
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compensation under this Agreement.
12. INDEMNIFICATION. The Fund, on behalf of each Portfolio, agrees to
indemnify and hold harmless PFPC Trust 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 attorneys'
fees and disbursements), arising directly or indirectly (A) from any action or
omission to act which PFPC Trust takes (i) at the request or on the direction of
or in reliance on the advice of the Fund or (ii) upon Oral or Written
Instructions or (B) in connection with the provision of services to the Fund.
Neither PFPC Trust, nor any of its affiliates, shall be indemnified against any
liability (or any expenses incident to such liability) arising out of PFPC
Trust's or its affiliates' own willful misfeasance, bad faith, negligence or
reckless disregard of its duties under this Agreement. The provisions of this
Section 12 shall survive termination of this Agreement.
13. RESPONSIBILITY OF PFPC TRUST.
(a) PFPC Trust shall be under no duty to take any action on behalf
of the Fund or any Portfolio except as specifically set forth herein or as may
be specifically agreed to by PFPC Trust in writing. PFPC Trust shall be
obligated to exercise reasonable 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.
PFPC Trust shall be liable only for any damages arising out of PFPC Trust's
failure to perform its duties under this Agreement to the extent such damages
arise out of PFPC Trust's willful misfeasance, bad faith, 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, PFPC Trust 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 or Written Instruction,
notice or other instrument which conforms to the applicable requirements of this
Agreement, and which PFPC Trust reasonably believes to be genuine; or (B)
subject to section 10, damages, delays or errors or loss of data occurring by
reason of circumstances beyond PFPC Trust'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 PFPC
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Trust nor its affiliates shall be liable to the Fund or to any Portfolio for any
consequential, special or indirect losses or damages or lost profits or loss of
business which the Fund may incur or suffer, whether or not the likelihood of
such losses or damages was known by PFPC Trust or its affiliates.
(d) Notwithstanding anything in this Agreement to the contrary
(other than as specifically provided in Section 14(h)(ii)(B)(4) and Section
14(h)(iii)(A) of this Agreement), the Fund shall be responsible for all filings,
tax returns and reports on any transactions undertaken pursuant to this
Agreement, or in respect of the Property or any collections undertaken pursuant
to this Agreement, which may be requested by any relevant authority. In
addition, the Fund shall be responsible for the payment of all taxes,
assessments, duties, governmental charges and similar items (including without
limitation penalties and interest related thereto).
14. DESCRIPTION OF SERVICES.
(a) Delivery of the Property. The Fund will deliver to PFPC Trust,
or arrange for delivery to PFPC Trust of, all the 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. PFPC Trust will not be
responsible for such Property until actual receipt.
(b) Receipt and Disbursement of Money. PFPC Trust, acting upon
Written Instructions, shall open and maintain a separate account for each
separate Portfolio of the Fund (each an "Account") and shall maintain in the
Account of a particular Portfolio all cash and other assets received from or for
the Fund specifically designated to such Account, subject to the terms of this
Agreement.
PFPC Trust shall make cash payments from or for the Account of a Portfolio
only for:
(i) purchases of securities in the name of the Portfolio or PFPC Trust
or PFPC Trust's nominee or a sub-custodian or a nominee thereof as
provided in sub-section (j) and for which PFPC Trust has received a
copy of the broker's or dealer's confirmation or payee's invoice, as
appropriate;
(ii) purchase or redemption of Shares of the Portfolio delivered to PFPC
Trust;
(iii) payment of, subject to Written Instructions, interest, taxes
(provided that tax which PFPC Trust considers is required to be
deducted or withheld "at source" will be governed by Section
14(h)(iii)(B) of this Agreement), administration, accounting,
distribution, advisory, management fees or similar expenses which
are to be borne by the Portfolio;
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(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, PFPC
Trust may arrange for the direct payment of cash dividends and
distributions to shareholders in accordance with procedures mutually
agreed upon from time to time by and among the Fund, PFPC Trust 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 Portfolio and held by or delivered to PFPC Trust;
(vi) payments of the amounts of dividends received with respect to
securities sold short by the Portfolio; and
(vii) other payments from the Portfolio, upon Written Instructions.
PFPC Trust is hereby authorized to endorse and collect all checks, drafts
or other orders for the payment of money received as custodian for the Accounts.
(c) Receipt of Securities: Subcustodians.
(i) PFPC Trust shall hold all securities received by it for
each Account in a separate account that physically
segregates such securities from those of any other
persons, firms or corporations, except for securities
held in a Depository or through a sub-custodian. All
such securities shall be held or disposed of only upon
Written Instructions of the Fund or otherwise pursuant
to the terms of this Agreement. PFPC Trust shall have no
power or authority to assign, hypothecate, pledge or
otherwise dispose of any such securities or investment,
except upon the express terms of this Agreement or upon
Written Instructions authorizing the transaction. In no
case may any member of the Fund's Board of Trustees, or
any officer, employee or agent of the Fund, withdraw any
securities.
(ii) At PFPC Trust's own expense and for its own convenience,
PFPC Trust may enter into subcustodian agreements with
other United States banks or trust companies to perform
duties described in this sub-section (c) with respect to
domestic assets. Such bank or trust company shall have
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 PFPC Trust, or at least twenty million
dollars ($20,000,000) if such bank or trust company is
not a subsidiary or affiliate of PFPC Trust. In
addition, such bank or trust company must be qualified
to act as
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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 Fund.
(iii) In addition, PFPC Trust may enter into arrangements with
sub-custodians with respect to services regarding
foreign assets; any such arrangement will not be entered
into without prior notice to the Fund (or as otherwise
provided in the 1940 Act). The sub-custodians with which
PFPC Trust has entered into arrangements with respect to
services regarding foreign assets are solely those set
forth on Schedule I hereto (as the same may be amended
as set forth in Section 17). The Fund agrees that it
cannot hold foreign assets through any sub-custodian or
in any jurisdiction other than as set forth in Schedule
I hereto (as the same may be amended as set forth in
Section 17).
(iv) PFPC Trust shall be responsible for the acts or
omissions of any bank or trust company chosen by PFPC
Trust as a sub-custodian pursuant to Section 14(c)(ii)
and any sub-custodian chosen by PFPC Trust pursuant to
Section 14(c)(iii) which is listed on Schedule I hereto
(as the same may be amended as set forth in Section 17)
to the same extent that PFPC Trust is responsible for
its own acts or omissions under this Agreement; provided
that so long as PFPC Trust has chosen such a
sub-custodian (both initially and on an ongoing basis)
in the exercise of reasonable care, prudence and
diligence, PFPC Trust shall have no responsibility
relating to the insolvency of any such sub-custodian.
Notwithstanding anything in this Agreement to the
contrary, PFPC Trust shall not have responsibility with
respect to any entity other than itself, a bank or trust
company chosen by PFPC Trust as a sub-custodian pursuant
to Section 14(c)(ii) or a sub-custodian chosen by PFPC
Trust pursuant to Section 14(c)(iii) which is listed on
Schedule I hereto (as the same may be amended as set
forth in Section 17), including without limitation PFPC
Trust shall not have responsibility with respect to any
other agent (including an agent of a sub-custodian
referenced in the immediately preceding sentence) or any
Depository.
(d) Transactions Requiring Instructions. Upon receipt of Oral, or
Written Instructions and not otherwise, PFPC Trust shall (provided PFPC Trust
has received such Oral or Written Instructions within such timeframes as PFPC
Trust may designate from time to time):
(i) deliver any securities held for a Portfolio against the
receipt of payment for the sale of such securities or
otherwise in accordance with standard market practice;
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(ii) execute and deliver to such persons as may be designated
in such Oral 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 held for a Portfolio to the
issuer thereof, or its agent, when such securities are
called, redeemed, retired or otherwise become payable at
the option of the holder; provided that, in any such
case, the cash or other consideration is to be delivered
to PFPC Trust;
(iv) deliver any securities held for a 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 a
Portfolio and take such other steps as shall be stated
in said Oral or Written Instructions to be for the
purpose of effectuating a duly authorized plan of
liquidation, reorganization, merger, consolidation or
recapitalization of a Portfolio or 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 the
Account of the Portfolio 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 therefore, 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
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Portfolio, but only on receipt of payment therefor and
pay out moneys of the Portfolio in connection with such
repurchase agreements, but only upon the delivery of the
securities;
(ix) release and deliver or exchange securities owned by a
Portfolio in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities owned by a Portfolio for
the purpose of redeeming in kind shares of the Portfolio
upon delivery thereof to PFPC Trust; and
(xi) release and deliver or exchange securities owned by a
Portfolio for other purposes (provided that action
pursuant to this Section 14(d)(xi) shall be taken only
upon receipt of Written Instructions).
(e) Use of Depositories. PFPC Trust will deposit in a Depository all
securities belonging to the Portfolios eligible for deposit therein and will
utilize Depositories 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. PFPC Trust shall continue to perform such duties
until it receives Written or Oral Instructions authorizing contrary actions.
Assets maintained in a Depository shall be subject to the rules, terms,
conditions and procedures of that Depository, and PFPC Trust shall not have
liability relative to such rules, terms, conditions or procedures.
Notwithstanding anything in this Agreement to the contrary, PFPC Trust's use of
a Book-Entry System shall comply with the requirement of Rule 17f-4 under the
1940 Act.
PFPC Trust shall administer a Depository as follows:
(i) With respect to securities of a Portfolio which are
maintained in the Depository, the records of PFPC Trust
shall identify by book-entry or otherwise those
securities belonging to the Portfolio. PFPC Trust shall
furnish to the 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 a Portfolio deposited in the
Depository will (to the extent consistent with
applicable law and standard practice) at all times be
segregated from any assets and cash controlled by PFPC
Trust in other than a fiduciary or custodian capacity
but may be commingled with other assets held in such
capacities.
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(iii) All books and records maintained by PFPC Trust which
relate to the Fund's participation in the Depository
will at all times during PFPC Trust's regular business
hours be open to the inspection of Authorized Persons,
and PFPC Trust will furnish to the Fund all information
in respect of the services rendered as it may require.
PFPC Trust will also provide the Fund with such reports on its own system
of internal control as 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
a Depository, shall be held by PFPC Trust in bearer form; all other securities
held for a Portfolio may be registered in the name of the Fund on behalf of that
Portfolio, PFPC Trust, a Depository, a subcustodian, or any duly appointed
nominees of the Fund, PFPC Trust, a Depository or subcustodian. The Fund
reserves the right to instruct PFPC Trust as to the method of registration and
safekeeping of the securities of the Fund. The Fund agrees to furnish to PFPC
Trust appropriate instruments to enable PFPC Trust to hold or deliver in proper
form for transfer, or to register in the name of its nominee or in the name of a
Depository or another appropriate entity, 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.
(h) Voting and Other Action. Neither PFPC Trust nor its nominee
shall vote any of the securities held pursuant to this Agreement by or for the
account of a Portfolio, except in accordance with Written Instructions (provided
PFPC Trust has received such Written Instructions within such timeframes as PFPC
Trust may designate from time to time). PFPC Trust, directly or through the use
of another entity, shall execute in blank and promptly deliver all notices,
proxies and proxy soliciting materials received by PFPC Trust as custodian of
the Property to the registered holder of such securities. If the registered
holder is not the Fund on behalf of a Portfolio, then Written or Oral
Instructions must designate the person who owns such securities.
(i) Transactions Not Requiring Instructions. In the absence of
contrary Written Instructions, PFPC Trust is authorized to take the following
actions:
(j) Collection of Income and Other Payments.
(A) collect and receive for the account of each Portfolio,
all income, dividends, distributions, coupons, option
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premiums, other payments and similar items, included or
to be included in the Property of the Portfolio, and, in
addition, promptly advise the Portfolio of such receipt
and credit such income to the Portfolio's custodian
account;
(B) endorse and deposit for collection, in the name of the
applicable Portfolio, 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 the Portfolio and held by PFPC
Trust hereunder;
(D) present for payment and collect for the Account of each
Portfolio the amount payable upon all securities held
for the Portfolio which may mature or may on a mandatory
basis 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) PFPC Trust is authorized to deliver or cause to be
delivered Property against payment or other
consideration or written receipt therefor in the
following cases:
(1) for examination by a broker or dealer selling for
the account of a 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 PFPC Trust or a
sub-custodian or nominee of one of the foregoing,
or for exchange of securities for a different
number of bonds, certificates, or other evidence,
representing
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the same aggregate face amount or number of units
bearing the same interest rate, maturity date and
call provisions, if any; provided that, in any
such case, the new securities are to be delivered
to PFPC Trust.
(B) Unless and until PFPC Trust receives Oral or Written
Instructions to the contrary, PFPC Trust shall:
(1) pay all income items held by it for a Portfolio
which call for payment upon presentation and hold
the cash received by it upon such payment for the
account of the Portfolio;
(2) collect interest and cash dividends received on
behalf of a Portfolio, with notice to the Fund, to
the account of the Portfolio;
(3) hold for the account of each Portfolio all stock
dividends, rights and similar securities issued
with respect to any securities held by PFPC Trust
for the Portfolio; and
(4) subject to receipt of such documentation and
information as PFPC Trust may request, execute as
agent on behalf of the Fund all necessary
ownership certificates required by a national
governmental taxing authority or under the laws of
any U.S. state now or hereafter in effect,
inserting 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.
(iii) Other Matters.
(A) Subject to receipt of such documentation and information
as PFPC Trust may request, PFPC Trust will, in such
jurisdictions as PFPC Trust may agree from time to time,
seek to reclaim or obtain a reduction with respect to
any withholdings or other taxes relating to assets
maintained hereunder (provided that PFPC Trust will not
be liable for failure to obtain any particular relief in
a particular jurisdiction); and
(B) PFPC Trust is authorized to deduct or withhold any sum
in
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respect of tax which PFPC Trust considers is required to
be deducted or withheld "at source" by any relevant law
or practice.
(i) Segregated Accounts.
(i) PFPC Trust shall upon receipt of Written or Oral
Instructions establish and maintain one or more
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 a
Depository:
(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
purposes.
(ii) PFPC Trust shall arrange for the establishment of XXX
custodian accounts for such shareholders holding Shares
through XXX accounts, in accordance with the Fund's
prospectuses, the Internal Revenue Code of 1986, as
amended (including regulations promulgated thereunder),
and such other procedures as are mutually agreed upon
from time to time by and among the Fund, PFPC Trust and
the Fund's transfer agent.
(j) Purchases of Securities. PFPC Trust shall settle purchased
securities upon receipt of Oral 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
15
(vii) the name of the person from whom or the broker through
whom the purchase was made. PFPC Trust shall upon
receipt of securities purchased by or for a Portfolio
(or otherwise in accordance with standard market
practice) 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 or Written
Instructions.
(k) Sales of Securities. PFPC Trust shall settle sold securities
upon receipt of Oral or Written Instructions from the Fund or its investment
advisers 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;
(vii) the location to which the security must be delivered and
delivery deadline, if any; and
(viii) the Portfolio involved.
PFPC Trust 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 or Written Instructions.
Notwithstanding any other provisions of this Agreement to the contrary, PFPC
Trust may accept payment in such form as is consistent with standard industry
practice, and may deliver securities and arrange for payment in accordance with
the customs prevailing among dealers in securities.
(1) Reports; Proxy Materials.
(i) PFPC Trust shall furnish to the Fund the following
reports:
(A) such periodic and special reports as the Fund may
reasonably request;
16
(B) a monthly statement summarizing all transactions
and entries for the account of each Portfolio,
listing the portfolio securities belonging to each
Portfolio 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 Fund and PFPC Trust.
(ii) PFPC Trust shall transmit promptly to the Fund any proxy
statement, proxy material, notice of a call or
conversion or similar communication received by it as
custodian of the Property. PFPC Trust shall be under no
other obligation to inform the Fund as to such actions
or events.
(m) Crediting of Accounts. PFPC Trust may in its sole discretion
credit an Account with respect to income, dividends, distributions, coupons,
option premiums, other payments or similar items prior to PFPC Trust's actual
receipt thereof, and in addition PFPC Trust may in its sole discretion credit or
debit the assets in an Account on a contractual settlement date with respect to
any sale, exchange or purchase applicable to the Account. If PFPC Trust credits
an Account with respect to (a) income, dividends, distributions, coupons, option
premiums, other payments or similar items on a contractual payment date or
otherwise in advance of PFPC Trust's actual receipt of the amount due, (b) the
proceeds of any sale or other disposition of assets on the contractual
settlement date or otherwise in advance of PFPC Trust's actual receipt of the
amount due or (c) provisional crediting of any amounts due, and (i) PFPC Trust
is subsequently unable to collect full, final and irreversible payment in
immediately available funds for the amounts so credited within a reasonable time
period using reasonable efforts or (ii) pursuant to standard industry practice,
law or regulation the amounts so credited are subject to a security interest,
levy or other encumbrance or PFPC Trust is required to repay to a third party
such amounts so credited, PFPC Trust shall have the absolute right in its sole
discretion without demand to reverse any such credit or payment, to debit or
deduct the amount of such credit or payment from the Account, and to otherwise
pursue recovery of any such amounts so credited from the Fund. Nothing in this
Agreement or otherwise shall require PFPC
17
Trust to make any advances or to credit any amounts until PFPC Trust's actual
receipt thereof. Advances shall be payable on demand. The Fund hereby grants a
first priority contractual possessory security interest in and a right of setoff
against the assets maintained in an Account hereunder in the amount necessary to
secure the return and payment to PFPC Trust of any advance or credit made by
PFPC Trust (including charges related thereto) to such Account; such first
priority contractual possessory security interest in and right of setoff against
the assets maintained in an Account hereunder shall be free of any right of
redemption or prior claim of the Fund or any other entity and shall be subject
to no setoffs, counterclaims or other liens or grants by the Fund or any other
entity prior to or on a parity therewith, and the Fund shall take such
reasonable additional steps as PFPC Trust may require to assure such priority.
Without limiting any other rights of PFPC Trust under this Agreement, PFPC Trust
may assign any rights it has under this Section 14(m) to a sub-custodian.
(n) Collections. All collections of monies or other property in
respect, or which are to become part, of the Property (but not the safekeeping
thereof upon receipt by PFPC Trust) shall be at the sole risk of the Fund. If
payment is not received by PFPC Trust within a reasonable time after proper
demands have been made, PFPC Trust shall notify the Fund in writing, including
copies of all demand letters, any written responses and memoranda of all oral
responses and shall await instructions from the Fund. PFPC Trust shall not be
obliged to take action for collection unless and until reasonably indemnified to
its satisfaction. PFPC Trust shall also notify the Fund as soon as reasonably
practicable whenever income due on securities is not collected in due course and
shall provide the Fund with periodic status reports of such income collected
after a reasonable time.
(o) Foreign Exchange. PFPC Trust and/or sub-custodians may enter
into or arrange foreign exchange transactions (at such rates as they may
consider appropriate) in order to facilitate transactions under this Agreement,
and such entities and/or their affiliates may receive compensation in connection
with such foreign exchange transactions. Provided PFPC Trust is not a principal
to the foreign exchange transaction, PFPC Trust will not be responsible for any
principal to the foreign exchange transaction, regardless of whether such
principal serves as a sub-custodian under this Agreement.
15. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Fund or by PFPC Trust on sixty (60) days' prior written notice
to the other party. In the event
18
this Agreement is terminated (pending appointment of a successor to PFPC Trust
or vote of the shareholders of the Fund to dissolve or to function without a
custodian of its cash, securities or other property), PFPC Trust shall not
deliver cash, securities or other property of the Portfolios to the Fund. It may
deliver them to a bank or trust company of PFPC Trust's choice, having an
aggregate capital, surplus and undivided profits, as shown by its last published
report, of not less than twenty million dollars ($20,000,000), as a custodian
for the Fund to be held under terms similar to those of this Agreement. PFPC
Trust shall not be required to make any delivery or payment of assets upon
termination until full payment shall have been made to PFPC Trust of all fees,
compensation, costs, expenses and other amounts owing with respect to this
Agreement (including without limitation costs relating to deconversion or
conversion to another service provider). PFPC Trust shall have a security
interest in and shall have a right of setoff against the Property as security
for the payment of such fees, compensation, costs, expenses and other amounts.
16. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable, telex or
facsimile sending device or such other method as the Fund and PFPC Trust may
agree. Notice shall be addressed (a) if to PFPC Trust at 0000 Xxxxxxx Xxxxxxxxx,
0xx Xxxxx, Xxxxxxxxxxxx XX 00000, marked for the attention of the Mutual Fund
Custody Department (or its successor), (b) if to the Fund, at Xxxxxx Trust &
Savings Bank, 000 Xxxx Xxxxxx Xxxxxx - 0X, Xxxxxxx, XX 00000, Attn: Xxxxx X.
Xxxxxxxx or (c) if to neither of the foregoing, at such other address as shall
have been given by like notice to the sender of any such notice or other
communication by the other party. If notice is sent by confirming 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.
17. AMENDMENTS. This Agreement, or any term hereof, may be changed or
waived only by a written amendment, signed by the party against whom enforcement
of such change or waiver is sought; provided that notwithstanding the foregoing,
PFPC Trust may add entities and/or jurisdictions to Schedule I hereto from time
to time upon written notice to the Fund and PFPC Trust may remove entities
and/or jurisdictions from Schedule I hereto from time to time upon thirty (30)
days prior written notice to the Fund.
19
18. ASSIGNMENT. PFPC Trust may assign this Agreement to any wholly-owned
direct or indirect subsidiary of PFPC Trust or of The PNC Financial Services
Group, Inc., provided that (i) PFPC Trust gives the Fund thirty (30) days prior
written notice; (ii) the assignee agrees with PFPC Trust and the Fund to comply
with all relevant provisions of the 1940 Act; (iii) PFPC Trust and such assignee
promptly provide such information as the Fund may request, and respond to such
questions as the Fund may ask, relative to the assignment, including (without
limitation) the capabilities of the assignee; and (iv) the Fund consents to such
assignment (which consent cannot be unreasonably withheld).
19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
20. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the purposes
hereof.
21. MISCELLANEOUS.
(a) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties and supersedes all prior agreements and
understandings relating to the subject matter hereof, provided that the parties
may embody in one or more separate documents their agreement, if any, with
respect to delegated duties and 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.
20
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/ Xxx Xxxxxxxx
------------------------------------
Xxx Xxxxxxxx
President
XXXXXX INSIGHT FUNDS TRUST
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx
President
21
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
Xxxxx X. Xxxxxxxx /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxxxx X. Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Xxxxxx Xxxxxxxxxx /s/ Xxxxxx Xxxxxxxxxx
---------------------
Xxxxxxxx X. Xxxxx /s/ Xxxxxxxx X. Xxxxx
---------------------
Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxx /s/ Xxxxxx X. Xxxx
------------------
Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx
----------------------
L. Xxxx Xxxxxx /s/ L. Xxxx Xxxxxx
------------------
Xxxxxx X. Xxx Xxxx /s/ Xxxxxx X. Xxx Xxxx
----------------------
Xxxx X. Xxxxx /s/ Xxxx X. Xxxxx
-----------------
SCHEDULE I
Argentina Citibank N.A. - Argentina
Australia National Australia Bank
Austria Bank Austria AG
Bahrain HSBC Bank Middle East Limited
Bangladesh The Hong Kong & Shanghai Banking Corp Ltd.
Belgium ING Belgium SA/NV
Benin Societe Generale de Banques an Cote d'Ivoire
Bermuda Bank of Bermuda Limited
Bolivia Citibank, N.A.
Botswana Barclays Bank of Botswana Ltd.
Brazil BankBoston, N.A.
Bulgaria ING Bank N.V.
Burkina Faso Societe Generale de Banques an Cote d'Ivoire
Canada Royal Bank of Canada
Chile BankBoston, N.A.
China The Hong Kong & Shanghai Banking Corp Ltd.
Colombia Cititrust Colombia X.X.
Xxxxx Rica Banco BCT
Croatia Privredna banka Zagreb d.d.
Cyprus Bank of Cyprus Ltd.
Czech Republic Ceskoslovenska Obchodni Banka A.S.
Denmark Danske Bank
Ecuador Citibank, N.A.
Egypt Citibank, N.A.
Estonia Hansabank Limited
Euromarket Clearstream Banking Luxembourg
Euromarket Euroclear Bank
Finland Nordea Bank Finland plc
France BNP Parlbas Securities Services/Credit Agricole
Indosuez
Germany Dresdner Bank AG
Ghana Barclays Bank of Ghana Ltd.
Greece BNP Parlbas Securities Services
Guinea Bissau Societe Generale de Banques an Cote d'Ivoire
Hong Kong The Hong Kong & Shanghai Banking Corp Ltd.
Hungary HVB Bank Hungary
Iceland Landsbank Islands
Qatar HSBC Bank Middle East Limited
Romania ING Bank Bucharest
Russia Vneshtorgbank (Min Fin Bonds only)/ING Bank (Eurasia)
Senegal Societe Generale de Banques an Cote d'Ivoire
Singapore United Overseas Bank Ltd./DBS Bank Ltd.
Slovak Republic Ceskoslovenska Obchodni Banka, a.s.
Slovenia Bank Austria Creditanstalt d.d. Ljubljana
South Africa Standard Corporate & Merchant Bank (SCMB)
South Korea The Hong Kong & Shanghai Banking Corp Ltd.
Spain Banco Bilbao Vizcaya Argentaria S.A. (BBVA)/Santander
Central Hispano Investment
Sri Lanka The Hong Kong & Shanghai Banking Corp Ltd.
Swaziland Standard Bank Swaziland Ltd.
Sweden Skandinaviska Enskilda Banken
Switzerland Credit Suisse First Boston
Taiwan The Hong Kong & Shanghai Banking Corp Ltd.
India The Hong Kong & Shanghai Banking Corp Ltd.
Indonesia The Hong Kong & Shanghai Banking Corp Ltd.
Ireland AIB/BNY Trust Company Limited
Israel Bank Leumi LE - Israel B.M.
Italy Banca Intesa
Ivory Coast Societe Generale de Banques an Cote d'Ivoire
Jamaica FirstCaribbean International Securities Limited
Japan The Bank of Tokyo-Mitsubishi Limited/Mizuho Corporate
Bank, Limited
Jordan HSBC Bank Middle East Limited
Kazakhstan The Hong Kong & Shanghai Banking Corp Ltd.
Kenya Barclays Bank of Kenya Ltd.
Latvia Hansabanka Limited
Lebanon HSBC Bank Middle East Limited
Lithuania Vilniaus Bankas
Luxembourg Banque et Caisse d'Epargne de l'Etat
Malaysia HSBC Bank Malaysia Berhad
Mali Societe Generale de Banques an Cote d'Ivoire
Malta HSBC Bank Malta p.l.c.
Mauritius The Hong Kong & Shanghai Banking Corp Ltd.
Mexico Banco Nacional de Mexico
Morocco Banque Commerciale de Maroc
Namibia Standard Bank Namibia Ltd.
NASDAQ Europe ING Belgium SA/NV
Netherlands Fortis Bank (Nederland) N.V.
New Zealand National Australia Bank
Niger Societe Generale de Banques an Cote d'Ivoire
Nigeria Stanbic Bank Nigeria Ltd.
Norway Den norske Bank ASA
Oman HSBC Bank Middle East Limited
Pakistan Standard Chartered Bank
Palestinian HSBC Bank Middle East Limited Autonomous Area
Panama BankBoston, N.A.
Peru Citibank, N.A.
Philippines The Hong Kong & Shanghai Banking Corp Ltd.
Poland ING Bank Xxxxxx
Portugal Banco Comercial Portugues
Thailand The Hong Kong & Shanghai Banking Corp Ltd./Bangkok
Bank Public Company Ltd.
Togo Societe Generale de Banques an Cote d'Ivoire
Trinidad & Tobago Republic Bank Limited
Tunisia Banque Internationale Arabe de Tunisie
Turkey Turkye Garanti Bankasi A.S. (Garanti Bank)
U.A.E. HSBC Bank Middle East Limited, Dubai
Ukraine ING Bank Ukraine
United Kingdom The Bank of New York/The Depository & Clearing
Centre (DCC)
United States The Bank of New York
Uruguay BankBoston, N.A.
Venezuela Citibank, N.A.
Vietnam The Hong Kong & Shanghai Banking Corp Ltd.
Zambia Barclays Bank of Zambia Ltd.
Zimbabwe Barclays Bank of Zimbabwe Ltd.
* Assets maintained in a particular Country/Market may be maintained only at
the Subcustodian(s) listed for that Country/Market*
23
