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FORM OF
CUSTODIAN SERVICES AGREEMENT
This Agreement is made as of ____________, 1996 by and between Xxxxx
Xxxxxx Concert Series Inc., a Maryland corporation (the "Fund") and PNC BANK,
NATIONAL ASSOCIATION, a national banking association ("PNC Bank").
The Fund is registered as an open-end investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"). The Fund wishes
to retain PNC Bank to provide custodian services and PNC Bank wishes to furnish
such services, either directly or through an affiliate or affiliates, as more
fully described herein. In consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. Definitions.
(a) "Authorized Person". The term "Authorized Person" shall
mean any officer of the Fund and any other person, who is duly authorized by
the Fund's Governing Board, to give Oral and Written Instructions on behalf of
the Fund. Such persons are listed in the Certificate attached hereto as
the Authorized Persons Appendix, as such Appendix may be amended in
writing by the Fund's Governing Board from time to time.
(b) "Book-Entry System". The term "Book-Entry System"
means Federal Reserve Treasury book-entry system for United States and federal
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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.
(c) "CFTC". The term "CFTC" shall mean the Commodities
Futures Trading Commission.
(d) "Governing Board". The term "Governing Board" shall mean
the Fund's Board of Directors if the Fund is a corporation or the Fund's
Board of Trustees if the Fund is a trust, or, where duly authorized, a
competent committee thereof.
(e) "Oral Instructions". The term "Oral Instructions"
shall 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.
(f) "SEC". The term "SEC" shall mean the Securities and
Exchange Commission.
(g) "Securities and Commodities Laws". The term "Securities
and Commodities Laws" shall mean the "1933 Act" which shall mean the Securities
Act of 1933, the "1934 Act" which shall mean the Securities Exchange Act of
1934, the 1940 Act, and the "CEA" which shall mean the Commodities Exchange
Act, each as amended.
(h) "Shares". The term "Shares" shall mean the shares of stock
of any series or class of the Fund, or, where appropriate, units of
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beneficial interest in a trust where the Fund is organized as a Trust.
(i) "Property". The term "Property" shall mean:
(i) any and all securities and other investment items
which the Fund 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.
(j) "Written Instructions". The term "Written Instructions"
shall mean written instructions signed by one Authorized Person and received
by PNC Bank. The instructions may be delivered by hand, mail, tested telegram,
cable, telex or facsimile sending device.
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2. Appointment. The Fund hereby appoints PNC Bank to provide
custodian services to the Fund, 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 Governing Board, approving the appointment of PNC Bank or its
affiliates to provide services;
(b) a copy of the Fund's most recent effective registration
statement;
(c) a copy of the Fund's advisory agreement or agreements;
(d) a copy of the Fund's distribution agreement or agreements;
(e) a copy of the Fund's administration agreements if PNC Bank
is not providing the Fund with such services;
(f) copies of any shareholder servicing agreements made in
respect of the Fund; and
(g) certified or authenticated copies of any and all
amendments or supplements to the foregoing.
4. Compliance with Government Rules and Regulations. PNC Bank
undertakes to comply with all applicable requirements of the Securities and
Commodities Laws and any laws, rules and regulations of governmental
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authorities having jurisdiction with respect to all 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.
5. Instructions. Unless otherwise provided in this Agreement, PNC Bank
shall act only upon Oral and Written Instructions. PNC Bank shall be entitled
to rely upon any Oral 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 or
Written Instructions received hereunder are not in any way inconsistent
with the provisions of organizational documents or this Agreement or of
any vote, resolution or proceeding of the Fund's Governing Board or of the
Fund's shareholders.
The Fund agrees to forward to PNC Bank Written Instructions
confirming Oral Instructions 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.
The Fund further agrees that PNC Bank shall incur no liability to
the Fund in acting upon Oral or Written Instructions provided such
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instructions reasonably appear to have been received from an Authorized
Person.
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 or Written Instructions, from the Fund.
(b) Advice of Counsel. If PNC Bank shall be in doubt as to any
questions 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 Fund, the Fund's advisor or PNC Bank, at the option
of PNC Bank).
(c) Conflicting Advice. In the event of a conflict between
directions, advice or Oral or Written Instructions PNC Bank receives from the
Fund, and the advice it receives from counsel, PNC Bank shall be entitled to
rely upon and follow the advice of counsel.
(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 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 or Written Instructions.
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Nothing in this paragraph shall be construed so as to impose an
obligation upon PNC Bank (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 PNC Bank's properly taking or not
taking such action.
7. Records. The books and records pertaining to the Fund which
are in the possession 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
Fund, or the Fund's Authorized Persons, shall have access to such books
and records at all time during PNC Bank's normal business hours. Upon the
reasonable request of the Fund, copies of any such books and records shall be
provided by PNC Bank to the Fund or to an Authorized Person of the Fund, at the
Fund's expense.
8. Confidentiality. PNC Bank agrees to keep confidential all records of
the Fund and information relative to the Fund and its shareholders (past,
present and potential), unless the release of such records or information
is otherwise consented to, in writing, by the Fund. The Fund agrees 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. The Fund further agrees that, should PNC Bank be
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required to provide such information or records to duly constituted
authorities (who may institute civil or criminal contempt proceedings for
failure to comply), PNC Bank shall not be required to seek the Fund's consent
prior to disclosing such information.
9. Cooperation with Accountants. PNC Bank 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. PNC Bank shall enter into and shall maintain
in effect with appropriate parties one or more agreements making reasonable
provision 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 but shall have no liability with respect
thereto.
11. Compensation. As compensation for custody services rendered by
PNC Bank during the term of this Agreement, the Fund will pay to PNC Bank a fee
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or fees as may be agreed to from time to time in writing by the Fund and PNC
Bank.
12. Indemnification. The Fund agrees to indemnify and hold harmless PNC
Bank and its nominees from all taxes, charges, expenses, assessment,
claims and liabilities (including, without limitation, liabilities arising
under the Securities and Commodities 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 which PNC Bank takes or does not take (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. Neither PNC Bank, nor any
of its nominees, shall be indemnified against any liability to the Fund or
to its shareholders (or any expenses incident to such liability) arising
out of PNC Bank's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties and obligations under this Agreement.
13. Responsibility of PNC Bank. PNC Bank shall be under no duty to
take any action on behalf of the Fund 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 effort, within
reasonable limits, in performing services provided for under this
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Agreement. PNC Bank shall be responsible for its own negligent failure to
perform its duties under this Agreement. Notwithstanding the foregoing, PNC
Bank shall not be responsible for losses beyond its control, provided that PNC
Bank has acted in accordance with the standard of care set forth above; and
provided further that PNC Bank shall only be responsible for that portion of
losses or damages suffered by the Fund that are attributable to the negligence
of PNC Bank.
Without limiting the generality of the foregoing or of any other
provision of this Agreement, PNC Bank, in connection with its duties under
this Agreement, 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
PNC Bank reasonably believes to be genuine; or (b) 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, labor
difficulties, fire, flood or catastrophe, acts of God, insurrection, war,
riots or failure of the mails, transportation, communication or power supply.
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Notwithstanding anything in this Agreement to the contrary, PNC Bank
shall have no liability to the Fund 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 performance of the services provided hereunder,
whether or not the likelihood of such losses or damages was known by PNC Bank.
14. Description of Services.
(a) Delivery of the Property. The Fund will deliver or
arrange for delivery to PNC Bank, all the property owned by the Fund,
including cash received as a result of the distribution of its Shares, during
the period that is set forth in this Agreement. PNC Bank will not be
responsible for such property until actual receipt.
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(b) Receipt and Disbursement of Money. PNC Bank, acting
upon Written Instructions, shall open and maintain separate account(s) in
the Fund's name 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, class
or portfolio of the Fund and shall hold in such account(s) all cash received
from or for the accounts of the Fund specifically designated to each separate
series, class or portfolio. PNC Bank shall make cash payments from or for the
account of the Fund only for:
(i) purchases of securities in the name of the Fund or
PNC Bank or PNC Bank's nominee as provided in
sub-paragraph 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
delivered to PNC Bank;
(iii) payment of, subject to Written Instructions,
interest, taxes, administration, accounting,
distribution, advisory, management fees or similar
expenses which are to be borne by the Fund;
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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, 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 of 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; payments made
to a sub-custodian pursuant to provisions in
sub-paragraph c of this Paragraph; and
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(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 custodian for the account of the
Fund.
(c) Receipt of Securities.
(i) PNC Bank shall hold all securities received by it
for the account of the Fund in a separate account
that physically segregates such securities from
those of any other persons, firms or corporations,
except for securities held in a Book-Entry
System. All such securities shall be held or
disposed of only upon Written Instructions of the
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 Governing Board,
authorizing the transaction. In no case may any
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member of the Fund's Governing Board, 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 banks or
trust companies to perform duties described in
this sub-paragraph c. Such bank or trust company
shall have an aggregate capital, surplus and
undivided profits, according to its last
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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 agree to comply
with the relevant provisions of the 1940 Act and
other applicable rules and regulations. PNC Bank
shall remain responsible for the performance of
all of its duties as described in this Agreement
and shall hold the Fund harmless from PNC Bank's
own (or any sub-custodian chosen by PNC Bank under
the terms of this sub-paragraph c) acts or
omissions, under the standards of care provided
for herein.
(d) Transactions Requiring Instructions. Upon receipt of Oral
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 the Fund 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 or Written Instructions,
proxies, consents, authorizations, and any
other instruments whereby the authority of the
Fund as owner of any securities may be exercised;
(iii) deliver any securities to the issuer thereof, or
its agent, when such securities are called,
redeemed, retired or otherwise become payable;
provided that, in any such case, the cash or other
consideration is to be delivered to PNC Bank;
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(iv) deliver any securities held for the Fund
against receipt of other securities or cash
issued or paid in connection with the
liquidation, reorganization, refinancing, tender
offer, merger, consolidation or
recapitalization of any corporation, or the
exercise of any conversion privilege;
(v) deliver any securities held for the Fund to any
protective committee, reorganization committee or
other person in connection with the reorganization,
refinancing, merger, consolidation,
recapitalization or sale of assets of any
corporation, and receive and hold under the
terms of this Agreement such certificates of
deposit, interim receipts or other instruments or
documents as may be issued to it to evidence such
delivery;
(vi) make such transfer or exchanges of the assets of
the Fund and take such other steps as shall be
stated in said Oral or Written Instructions to be
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for the purpose of effectuating a duly
authorized plan of liquidation,
reorganization, merger, consolidation or
recapitalization of the Fund;
(vii) release securities belonging to the Fund to any
bank or trust company for the purpose of a pledge
or hypothecation to secure any loan incurred by the
Fund; provided, however, that securities shall be
released only upon payment to PNC Bank of the
monies borrowed, except that in cases where
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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 the Fund 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 to PNC Bank; 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 above.
(e) Use of Book-Entry System. The Fund shall deliver PNC
Bank certified resolutions of the Fund's Governing Board approving,
authorizing and instructing PNC Bank on a continuous and on-going basis, to
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deposit in the Book-Entry System all securities belonging to the Fund 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 Fund, 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 or Oral
Instructions authorizing contrary actions(s).
To administer the Book-Entry System properly, the following
provisions shall apply:
(i) With respect to securities of the Fund which
are maintained in the Book-Entry system,
established pursuant to this sub-paragraph e
hereof, the records of PNC Bank shall identify by
Book-Entry or otherwise those securities belonging
to the Fund. PNC Bank shall furnish the Fund a
detailed statement of the Property held for the
Fund under this Agreement at least monthly and from
time to time and upon written request.
(ii) Securities and any cash of the Fund deposited in
the Book-Entry System will at all times be
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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 the Fund's duly authorized employees
or agents, and the Fund will be furnished with
all information in respect of the services
rendered to it as it may require.
(iv) PNC Bank will provide the Fund with copies of any
report obtained by PNC Bank on the system of
internal accounting control of the Book-Entry
System promptly after receipt of such a report by
PNC Bank. PNC Bank 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.
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(f) Registration of Securities. All Securities held for
the Fund 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 the Fund may be registered in
the name of the Fund; PNC Bank; the Book-Entry System; a sub-custodian; or
any duly appointed nominee(s) of the Fund, PNC Bank, Book-Entry system or
sub-custodian. 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 its registered
nominee or in the name of the Book-Entry System, any securities which it may
hold for the account of the Fund and which may from time to time be registered
in the name of the Fund. PNC Bank shall hold all such securities which are not
held in the Book-Entry System in a separate account for the Fund in the name of
the Fund physically segregated at all times from those of any other person or
persons.
(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 the Fund, 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 notice, proxies, and proxy
soliciting materials to the registered holder of such securities. If the
registered holder is not the Fund then Written or Oral Instructions must
designate the person(s) who owns such securities.
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(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
the Fund, all income, dividends,
distributions, coupons, option
premiums, other payments and similar
items, included or to be included in
the Property, and, in addition,
promptly advise the Fund of such
receipt and credit such income, as
collected, to the Fund's custodian
account;
(B) endorse and deposit for collection,
in the name of the Fund, checks,
drafts, or other orders for the payment
of money;
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(C) receive and hold for the account of the
Fund all securities received as a
distribution on the Fund's portfolio
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 portfolio securities belonging
to the Fund 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.
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(ii) Miscellaneous Transactions.
(A) PNC Bank 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 the
Fund 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 or PNC Bank or
nominee of either, or for
exchange of securities for
a different number of
bonds,certificates, or
other evidence,
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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
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 the
Fund;
(2) collect interest and cash
dividends received, with
notice to the Fund, to the
Fund's account;
(3) hold for the account of
the Fund 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
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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 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 or Oral
Instructions establish and maintain segregated
account(s) on its records for and on behalf of
the Fund. Such account(s) 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
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(B) Upon receipt of Written Instructions, for
other proper corporate purposes.
(ii) PNC Bank may enter into separate custodial
agreements with various futures commission
merchants ("FCMs") that the Fund uses ("FCM
Agreement"). Pursuant to an FCM Agreement, the
Fund's margin deposits in any transactions
involving futures contracts and options on futures
contracts will be held by PNC Bank in accounts
("FCM Account") subject to the disposition by the
FCM involved in such contracts and in accordance
with the customer contract between FCM and the Fund
("FCM Contract"), SEC rules and the rules of the
applicable commodities exchange. Such FCM
Agreements shall only be entered into upon receipt
of Written Instructions from the Fund which state
that:
(A) a customer agreement between the FCM and the
Fund has been entered into; and
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(B) the Fund is in compliance with all the rules
and regulations of the CFTC. Transfers of
initial margin shall be made into a FCM
Account only upon Written Instructions;
transfers of premium and variation margin
may be made into a FCM Account pursuant to
Oral Instructions.
Transfers of funds from a FCM Account to
the FCM for which PNC Bank holds such an
account may only occur upon certification
by the FCM to PNC Bank that pursuant to the
FCM Agreement and the FCM Contract, all
conditions precedent to its right to give
PNC Bank such instructions have been
satisfied.
(iii) PNC Bank shall arrange for the establishment of
XXX custodian accounts for such share- holders
holding Shares through XXX accounts, in accordance
with the Fund's prospectuses, the Internal Revenue
Code (including regulations), and with such other
procedures as are mutually agreed upon from time to
time by and among the Fund, PNC Bank and the Fund's
transfer agent.
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(j) Purchases of Securities. PNC Bank shall settle purchased
securities upon receipt of Oral or Written Instructions from the Fund
or its investment advisor(s) that specify:
(i) the name of the issuer and the title of the
securities, including CUSIP number if applicable;
(ii) the number of shares or the principal amount
purchased and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such purchase; and
(vi) 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 the
Fund pay out of the moneys held for the account of
the Fund the total amount payable to the person
from whom or the broker through whom the purchase
was made, provided that the same conforms to the
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total amount payable as set forth in such Oral or
Written Instructions.
(k) Sales of Securities. PNC Bank shall settle sold
securities upon receipt of Oral 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, settlement and sale;
(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. PNC Bank
shall deliver the securities upon receipt of the
total amount payable to the Fund upon such sale,
provided that the total amount payable is the same
as was set forth in the Oral or Written
32
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.
(i) PNC Bank shall furnish the Fund the following
reports:
(A) such periodic and special reports as the Fund
may reasonably request;
(B) a monthly statement summarizing all
transactions and entries for the account of
the Fund, listing the portfolio securities
belonging to the Fund with the adjusted
average cost of each issue and the market
value at the end of such month, and stating
the cash account of the Fund including
disbursement;
(C) the reports 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 PNC
Bank.
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(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 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 telephonic demands thereto,
and 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 Fund as soon as reasonably
practicable whenever income due on securities is not collected in due course.
15. Duration and Termination. This Agreement shall continue until
terminated by the Fund or by PNC Bank on sixty (60) days' prior written
notice to the other party. In the event this Agreement is terminated
(pending appointment of a successor to PNC Bank or vote of the shareholders
34
of the Fund to dissolve or to function without a custodian of its cash,
securities or other property), PNC Bank shall not deliver cash, securities
or other property of the Fund to the Fund. It may deliver them to a bank or
trust company of PNC Bank'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. PNC Bank shall not
be required to make any such delivery or payment until full payment shall
have been made to PNC Bank of all of its fees, compensation, costs and
expenses. PNC Bank shall have a security interest in and shall have a right of
setoff against Property in the Fund's possession as security for the
payment of such fees, compensation, costs and expenses.
16. 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 PNC Bank's address: Airport Business Center, International Court
2, 000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000, marked for the attention
35
of the Custodian Services Department (or its successor) (b) if to the Fund, at
the address of the Fund; or (c) if to neither of the foregoing, at such other
address as shall have been notified to the sender of any such notice or other
communication. 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.
18. Delegation. PNC Bank may assign its rights and delegate its duties
hereunder to any wholly-owned direct or indirect subsidiary of PNC
Bank, National Association or PNC Bank Corp., provided that (i) PNC Bank
gives the Fund thirty (30) days prior written notice; (ii) the delegate agrees
with PNC Bank to comply with all relevant provisions of the 1940 Act; and
(iii) PNC Bank and such delegate 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
delegate.
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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. 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/or Oral
Instructions. 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.
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. 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. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
37
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:
Title:
XXXXX XXXXXX CONCERT SERIES INC.
By:
Title:
38
AUTHORIZED PERSONS APPENDIX
NAME (Type) SIGNATURE