1
EXHIBIT 99.B8-1
Custodian
Services Agreement
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of June 17, 1994 by and between PNC
BANK, NATIONAL ASSOCIATION, a national banking association ("PNC Bank"), and The
Haven Capital Management Trust, a Delaware business trust (the "Fund").
W I T N E S S E T H:
WHEREAS, the Fund is registered as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Fund wishes to retain PNC Bank to provide
custodian services to its investment portfolios listed on Exhibit A attached
hereto and made a part hereof and as such Exhibit A may be amended from time to
time (each a "Portfolio"), and PNC Bank 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:
2
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
Instructions and Written Instructions on behalf of the Fund and listed on the
Authorized Persons Appendix attached hereto and made a part hereof or any
amendment thereto as may be received by PNC Bank. An Authorized Person's scope
of authority may be limited by the Fund by setting forth such limitation in the
Authorized Persons Appendix.
(d) "Book-Entry System" means Federal Reserve Treasury
book-entry system for United States and federal agency securities, its successor
or successors, and its nominee or nominees and any book-entry system maintained
by an exchange registered with the SEC under the 1934 Act.
2
3
(e) "CEA" means the Commodities Exchange Act, as amended.
(f) "Oral Instructions" mean oral instructions received by PNC
Bank from an Authorized Person or from a person reasonably believed by PNC Bank
to be an Authorized Person.
(g) "PNC Bank" means PNC Bank, National Association or a
subsidiary or affiliate of PNC Bank, National Association.
(h) "SEC" means the Securities and Exchange Commission.
(i) "Securities Laws" mean the 1933 Act, the 1934 Act, the
1940 Act and the CEA.
(j) "Shares" mean the shares of beneficial interest of any
series or class of the Fund.
(k) "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 PNC Bank or which PNC
Bank may from time to time hold for the Fund on
behalf of the Portfolios;
3
4
(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 on behalf of the Portfolios, which are
received by PNC Bank from time to time, from or
on behalf of the Fund.
(l) "Written Instructions" mean written instructions
signed by two Authorized Persons and received by PNC Bank. The instructions may
be delivered by hand, mail, tested telegram, cable, telex or facsimile sending
device.
2. APPOINTMENT. The Fund hereby appoints PNC Bank to provide
custodian services to each of the Portfolios in accordance with the terms set
forth in this Agreement, PNC Bank accepts such appointment and agrees to furnish
such services.
3. DELIVERY OF DOCUMENTS. The Fund has provided or, where
applicable, will provide PNC Bank with the following:
(a) certified or authenticated copies of the
resolutions of the Fund's Board of Trustees,
4
5
approving the appointment of PNC Bank or its
affiliates to provide services;
(b) a copy of the Fund's most recent effective
registration statement on Form N-1A;
(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 PNC Bank 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 GOVERNMENT RULES AND REGULATIONS.
Subject to Section 13, PNC Bank will comply with all applicable
requirements of the Securities Laws and any laws, rules and regulations of
governmental authorities having jurisdiction with respect to the duties to be
performed by PNC Bank hereunder. Except as specifically set forth herein, PNC
Bank assumes no responsibility for such compliance by the Fund or any Portfolio.
5
6
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PNC Bank
shall act only upon Oral and Written Instructions.
(b) 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 of the Fund or of any vote, resolution or proceeding of the Fund's
Board of Trustees or of the Fund's shareholders, unless and until PNC Bank
receives Written Instructions to the contrary.
(c) The Fund agrees to forward to PNC Bank Written
Instructions confirming Oral Instructions (except where such Oral Instructions
are given by PNC Bank or its affiliates) so that PNC Bank receives the Written
Instructions by the close of business on the same day that such Oral
Instructions are received. The fact that such confirming Written Instructions
are not received by PNC Bank shall in no way invalidate the
6
7
transactions or enforceability of the transactions authorized by the Oral
Instructions. Where Oral or Written Instructions reasonably appear to have been
received from an Authorized Person, PNC Bank shall incur no liability to the
Fund in acting upon such Oral or Written Instructions provided that PNC Bank's
actions comply with the other provisions of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Fund. If PNC Bank is in doubt as to any
action it should or should not take, PNC Bank may request directions or advice,
including Oral or Written Instructions, from the Fund.
(b) Advice of Counsel. If PNC Bank shall be in doubt as to any
question of law pertaining to any action it should or should not take, PNC Bank
may request advice at its own cost from such counsel of its own choosing (who
may be counsel for the Fund, the Fund's investment adviser or PNC Bank, at the
option of PNC Bank).
(c) Conflicting Advice. In the event of a conflict
between directions, advice or Oral or Written Instructions PNC
7
8
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. In the event
PNC Bank so relies on the advice of counsel, PNC Bank remains liable for any
action or omission on the part of PNC Bank which constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard by PNC Bank of
any duties, obligations or responsibilities set forth in this Agreement.
(d) Protection of PNC Bank. PNC Bank shall be protected in any
action it takes or does not take in reliance upon directions, advice or Oral 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. Nothing in this section 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
8
9
taking such action. Nothing in this subsection shall excuse PNC Bank when an
action or omission on the part of PNC Bank constitutes willful misfeasance, bad
faith, gross negligence or reckless disregard by PNC Bank of any duties,
obligations or responsibilities set forth in this Agreement.
7. RECORDS; VISITS. The books and records pertaining to the
Fund and any Portfolio, which are in the possession or under the control of PNC
Bank, shall be the property of the Fund. Such books and records shall be
prepared and maintained as required by the 1940 Act and other applicable
securities laws, rules and regulations. The Fund and Authorized Persons shall
have access to such books and records at all times during PNC Bank's normal
business hours. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by PNC Bank to the Fund or to an authorized
representative of the Fund, at the Fund's expense.
8. CONFIDENTIALITY. PNC Bank agrees on its own behalf and that
of its employees to keep confidential all records of the Fund and information
relating to the Fund and
9
10
its shareholders (past, present and future), 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 such information or records to duly constituted
authorities.
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 provisions for emergency use of electronic data processing equipment
to the extent appropriate equipment is available. In the event of equipment
failures, PNC Bank shall, at no additional expense to the Fund, take reasonable
steps to minimize service interruptions.
10
11
PNC Bank shall have no liability with respect to the loss of data or service
interruptions caused by equipment failure provided such loss or interruption is
not covered by PNC Bank's own willful misfeasance, bad faith, gross negligence
or reckless disregard of its duties or obligations under this Agreement.
11. COMPENSATION. As compensation for custody services
rendered by PNC Bank during the term of this Agreement, the Fund, on behalf of
each of the Portfolios, will pay to PNC Bank a fee or fees as may be agreed to
in writing from time to time by the Fund and PNC Bank.
12. INDEMNIFICATION. The Fund, on behalf of each Portfolio,
agrees to indemnify and hold harmless PNC Bank and its affiliates from all
taxes, charges, expenses, assessments, claims and liabilities (including,
without limitation, liabilities arising under the Securities Laws and any state
and foreign securities and blue sky laws, and amendments thereto), and expenses,
including (without limitation) attorneys' fees and disbursements, arising
directly or indirectly from any action or omission to act which PNC Bank
11
12
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. Neither PNC Bank, nor any of
its affiliates, shall be indemnified against any liability (or any expenses
incident to such liability) arising out of PNC Bank's or its affiliates' own
willful misfeasance, bad faith, negligence or reckless disregard of its duties
under this Agreement.
13. RESPONSIBILITY OF PNC BANK.
(a) PNC Bank 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 PNC Bank in writing. PNC
Bank shall be obligated to exercise care and diligence in the performance
of its duties hereunder, to act in good faith and to use its best efforts,
within reasonable limits, in performing services provided for under this
Agreement. PNC Bank shall be liable for any damages arising out of PNC
Bank's failure to perform its duties under this agreement to the extent
such damages arise out of PNC Bank's willful misfeasance, bad faith,
negligence or reckless disregard of its duties under this Agreement.
12
13
(b) Without limiting the generality of the foregoing or of any
other provision of this Agreement, (i) PNC Bank shall not be under any duty or
obligation to inquire into and shall not be liable for (A) the validity or
invalidity or authority or lack thereof of any Oral or Written Instruction,
notice or other instrument which conforms to the applicable requirements of this
Agreement, and which PNC Bank reasonably believes to be genuine; or (B) subject
to section 10, delays or errors or loss of data occurring by reason of
circumstances beyond PNC Bank's control, including acts of civil or military
authority, national emergencies, fire, flood, catastrophe, acts of God,
insurrection, war, riots or failure of the mails, transportation, communication
or power supply.
(c) Notwithstanding anything in this Agreement to the
contrary, PNC Bank shall have no liability to the Fund or to any Portfolio for
any consequential, special or indirect losses or damages which the Fund may
incur or suffer by or as a consequence of PNC Bank's performance of the services
provided hereunder, whether or not the likelihood of such losses or damages was
known by PNC Bank.
13
14
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
Portfolios, including cash received as a result of the distribution of Shares,
during the period that is set forth in this Agreement. PNC Bank will not be
responsible for such property until actual receipt.
(b) Receipt and Disbursement of Money. PNC Bank, acting upon
Written Instructions, shall open and maintain separate accounts in 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 or Portfolio of the
Fund (collectively, the "Accounts") and shall hold in the Accounts all cash
received from or for the Accounts of the Fund specifically designated to each
Portfolio.
PNC Bank shall make cash payments from or for the Accounts of
a Portfolio only for:
14
15
(i) purchases of securities in the name of a
Portfolio or PNC Bank or PNC Bank's nominee as
provided in sub-section (j);
(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 a Portfolio;
(iv) payment to, subject to receipt of Written
Instructions, the Fund's transfer agent, as
agent for the shareholders, an amount equal to
the amount of dividends and distributions
stated in the Written Instructions to be
distributed in cash by the transfer agent to
shareholders, or, in lieu of paying the Fund's
transfer agent, PNC Bank may arrange for the
direct payment of cash dividends and
distributions to shareholders in accordance
with procedures mutually agreed upon from time
to time by and among the Fund, PNC Bank and
the Fund's transfer agent.
(v) payments, upon receipt of Written Instructions, in
connection with the conversion, exchange or surrender
of securities owned or subscribed to by the Fund on
behalf of a Portfolio and held by or delivered to PNC
Bank;
(vi) payments of the amounts of dividends received
with respect to securities sold short;
(vii) payments made to a sub-custodian pursuant to
provisions in sub-section (c) of this Section; and
15
16
(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 Accounts.
(c) Receipt of Securities; Subcustodians.
(i) PNC Bank shall hold all securities received
by it for the Accounts 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 Board of
Trustees, 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.
At PNC Bank's own expense and for its own
convenience, PNC Bank may enter into
sub-custodian agreements with other United
States banks or trust companies to perform
duties described in this subsection (c). Such
bank or trust company shall have an aggregate
capital, surplus
16
17
and undivided profits, according to its last
published report, of at least one million
dollars ($1,000,000), if it is a subsidiary or
affiliate of PNC Bank, or at least twenty
million dollars ($20,000,000) if such bank or
trust company is not a subsidiary or affiliate
of PNC Bank. In addition, such bank or trust
company must be qualified to act as custodian
and agree to comply with the relevant provisions
of the 1940 Act and other applicable rules and
regulations. Any such arrangement will not be
entered into without prior written notice to the
Fund.
PNC Bank shall remain responsible for the
performance of all of its duties as described in
this Agreement and shall hold the Fund and each
Portfolio harmless from its own acts or
omissions, under the standards of care provided
for herein, or the acts and omissions of any
sub-custodian chosen by PNC Bank under the terms
of this sub-section (c).
(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 a Portfolio
against the receipt of payment for the sale of
such securities;
(ii) execute and deliver to such persons as may be
designated in such Oral or Written
17
18
Instructions, proxies, consents, authorizations, and
any other instruments whereby the authority of a
Portfolio as owner of any securities may be
exercised;
(iii) deliver any securities to the issuer thereof, or its
agent, when such securities are called, redeemed,
retired or otherwise become payable; provided that,
in any such case, the cash or other consideration is
to be delivered to PNC Bank;
(iv) deliver any securities held for a Portfolio
against receipt of other securities or cash
issued or paid in connection with the
liquidation, reorganization, refinancing,
tender offer, merger, consolidation or
recapitalization of any corporation, or the
exercise of any conversion privilege;
(v) deliver any securities held for a Portfolio to
any protective committee, reorganization
committee or other person in connection with
the reorganization, refinancing, merger,
consolidation, recapitalization or sale of
assets of any corporation, and receive and
hold under the terms of this Agreement such
certificates of deposit, interim receipts or
other instruments or documents as may be
issued to it to evidence such delivery;
(vi) make such transfer or exchanges of the assets
of the Portfolios and take such other steps as
shall be stated in said Oral or Written
Instructions to be for the purpose of
effectuating a duly authorized plan of
liquidation, reorganization, merger,
consolidation or recapitalization of the Fund;
18
19
(vii) release securities belonging to a Portfolio to
any bank or trust company for the purpose of a
pledge or hypothecation to secure any loan
incurred by the Fund on behalf of that
Portfolio; provided, however, that securities
shall be released only upon payment to PNC
Bank of the monies borrowed, except that in
cases where additional collateral is required
to secure a borrowing already made subject to
proper prior authorization, further securities
may be released for that purpose; and repay
such loan upon redelivery to it of the
securities pledged or hypothecated therefor
and upon surrender of the note or notes
evidencing the loan;
(viii) release and deliver securities owned by a
Portfolio in connection with any repurchase
agreement entered into on behalf of the Fund,
but only on receipt of payment therefor; and
pay out moneys of the Fund in connection with
such repurchase agreements, but only upon the
delivery of the securities;
(ix) release and deliver or exchange securities owned by
the Fund in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities owned by the Fund on
behalf of a Portfolio 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 on behalf of a Portfolio for other corporate
purposes.
PNC Bank must also receive a certified
resolution describing the nature of the
19
20
corporate purpose and the name and address of the
person(s) to whom delivery shall be made when such
action is pursuant to sub-paragraph d.
(e) Use of Book-Entry System. The Fund shall deliver to PNC
Bank certified resolutions of the Fund's Board of Trustees approving,
authorizing and instructing PNC Bank on a continuous basis, to deposit in the
Book-Entry System all securities belonging to the Portfolios eligible for
deposit therein and to utilize the Book-Entry System to the extent possible in
connection with settlements of purchases and sales of securities by the
Portfolios, and deliveries and returns of securities loaned, subject to
repurchase agreements or used as collateral in connection with borrowings. PNC
Bank shall continue to perform such duties until it receives Written or Oral
Instructions authorizing contrary actions.
PNC Bank shall administer the Book-Entry System as follows:
(i) With respect to securities of each Portfolio which
are maintained in the Book-Entry System, the records
of PNC Bank shall identify by Book-Entry or otherwise
those securities belonging to each Portfolio. PNC
Bank shall furnish to the Fund a detailed statement
of the Property held for each Portfolio under
20
21
this Agreement at least monthly and from time to time
and upon written request.
(ii) Securities and any cash of each Portfolio
deposited in the Book-Entry System will at all
times be segregated from any assets and cash
controlled by PNC Bank in other than a
fiduciary or custodian capacity but may be
commingled with other assets held in such
capacities. PNC Bank and its sub-custodian,
if any, will pay out money only upon receipt
of securities and will deliver securities only
upon the receipt of money.
(iii) All books and records maintained by PNC Bank
which relate to the Fund's participation in
the Book-Entry System will at all times during
PNC Bank's regular business hours be open to
the inspection of Authorized Persons, and PNC
Bank will furnish to the Fund all information
in respect of the services rendered 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 PNC Bank received such report.
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.
(f) Registration of Securities. All Securities held for a
Portfolio which are issued or issuable only in bearer form, except such
securities held in the Book-Entry
21
22
System, shall be held by PNC Bank in bearer form; all other securities held for
a Portfolio may be registered in the name of the Fund on behalf of that
Portfolio, PNC Bank, the Book-Entry System, a sub-custodian, or any duly
appointed nominees 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 in the name of its nominee
or in the name of the Book-Entry System, any securities which it may hold for
the Accounts and which may from time to time be registered in the name of the
Fund on behalf of a Portfolio.
(g) Voting and Other Action. Neither PNC Bank nor its nominee
shall vote any of the securities held pursuant to this Agreement by or for the
account of a Portfolio, except in accordance with Written Instructions. PNC
Bank, directly or through the use of the Book-Entry System, shall execute in
blank and promptly deliver all notices, proxies and proxy
22
23
soliciting materials 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.
(h) Transactions Not Requiring Instructions. In the absence of
contrary Written Instructions, PNC Bank is authorized to take the following
actions:
(i) Collection of Income and Other Payments.
(A) collect and receive for the account of
each Portfolio, all income, dividends,
distributions, coupons, option premiums,
other payments and similar items, included
or to be included in the Property, and, in
addition, promptly advise each Portfolio of
such receipt and credit such income, as
collected, to each Portfolio's custodian
account;
(B) endorse and deposit for collection, in the
name of the Fund, checks, drafts, or other
orders for the payment of money;
(C) receive and hold for the account of each
Portfolio all securities received as a
distribution on the Portfolio's
securities as a result of a stock
dividend, share split-up or
reorganization, recapitalization,
readjustment or other rearrangement or
distribution of rights or similar
securities issued with respect to any
23
24
securities belonging to a Portfolio and
held by PNC Bank hereunder;
(D) present for payment and collect the amount
payable upon all securities which may mature
or be called, redeemed, or retired, or
otherwise become payable on the date such
securities become payable; and
(E) take any action which may be necessary and
proper in connection with the collection and
receipt of such income and other payments
and the endorsement for collection of
checks, drafts, and other negotiable
instruments.
(ii) Miscellaneous Transactions.
(A) deliver or cause to be delivered Property
against payment or other consideration or
written receipt therefor in the following
cases:
(1) for examination by a broker or
dealer selling for the account of a
Portfolio in accordance with street
delivery custom;
(2) for the exchange of interim receipts
or temporary securities for
definitive securities; and
(3) for transfer of securities into the
name of the Fund on behalf of a
Portfolio or PNC Bank or nominee of
either, or for exchange of
securities for a different number of
bonds, certificates, or other
evidence, representing the same
24
25
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 each Portfolio;
(2) collect interest and cash dividends
received, with notice to the Fund,
to the account of each Portfolio;
(3) hold for the account of each
Portfolio all stock dividends,
rights and similar securities issued
with respect to any securities held
by PNC Bank; and
(4) execute as agent on behalf of the
Fund all necessary ownership
certificates required by the
Internal Revenue Code or the Income
Tax Regulations of the United States
Treasury Department or under the
laws of any state now or hereafter
in effect, inserting the Fund's
name, on behalf of a Portfolio, on
such certificate as the owner of the
securities covered thereby, to the
extent it may lawfully do so.
25
26
(i) Segregated Accounts.
(i) PNC Bank shall upon receipt of Written or
Oral Instructions establish and maintain
segregated accounts on its records for and
on behalf of each Portfolio. Such accounts
may be used to transfer cash and securities,
including securities in the Book-Entry
System:
(A) for the purposes of compliance by
the Fund with the procedures
required by a securities or option
exchange, providing such procedures
comply with the 1940 Act and any
releases of the SEC relating to the
maintenance of segregated accounts
by registered investment companies;
and
(B) Upon receipt of Written
Instructions, for other proper
corporate purposes.
(ii) PNC Bank shall arrange for the
establishment of XXX custodian accounts
for such shareholders holding Shares
through XXX accounts, in accordance with
the Portfolios' prospectuses, the
Internal Revenue Code of 1986, as amended
(including regulations promulgated
thereunder), 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.
(j) Purchases of Securities. PNC Bank shall settle purchased
securities upon receipt of Oral or Written
26
27
Instructions from the Fund or its investment advisers that specify:
(i) the name of the issuer and the title of
the securities, including CUSIP number if
applicable;
(ii) the number of shares or the principal amount
purchased and accrued interest, if any;
(iii) the date of purchase and settlement;
(iv) the purchase price per unit;
(v) the total amount payable upon such
purchase;
(vi) the Portfolio involved; and
(vii) the name of the person from whom or the
broker through whom the purchase was
made. PNC Bank shall upon receipt of
securities purchased by or for a
Portfolio pay out of the moneys held for
the account of the Portfolio the total
amount payable to the person from whom or
the broker through whom the purchase was
made, provided that the same conforms to
the total amount payable as set forth in
such Oral or Written Instructions.
(k) Sales of Securities. PNC Bank shall sell securities
upon receipt of Oral Instructions from the Fund that
specify:
27
28
(i) the name of the issuer and the title of
the security, including CUSIP number if
applicable;
(ii) the number of shares or principal amount
sold, and accrued interest, if any;
(iii) the date of trade and settlement;
(iv) the sale price per unit;
(v) the total amount payable to the Fund upon
such sale;
(vi) the name of the broker through whom or the
person to whom the sale was made; and
(vii) the location to which the security must
be delivered and delivery deadline, if
any; and
(viii) the Portfolio involved.
PNC Bank shall deliver the securities upon receipt of the
total amount payable to the Portfolio upon such sale, provided that the total
amount payable is the same as was set forth in the Oral or Written Instructions.
Subject to the foregoing, PNC Bank may accept payment in such form as shall be
satisfactory to it, and may deliver securities and arrange for payment in
accordance with the customs prevailing among dealers in securities.
28
29
(l) Reports; Proxy Materials.
(i) PNC Bank shall furnish to 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 each Portfolio, listing
each Portfolio securities belonging
to each Portfolio with the adjusted
average cost of each issue and the
market value at the end of such
month and stating the cash account
of each Portfolio including
disbursements;
(C) the reports required to be furnished
to the Fund pursuant to Rule 17f-4;
and
(D) such other information as may be
agreed upon from time to time
between the Fund and PNC Bank.
(ii) PNC Bank shall transmit promptly to the
Fund any proxy statement, proxy material,
notice of a call or conversion or similar
communication received by it as 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
29
30
Bank) shall be at the sole risk of the Fund. If payment is not received by PNC
Bank within a reasonable time after proper demands have been made, PNC Bank
shall notify the Fund in writing, including copies of all demand letters, any
written responses, memoranda of all oral responses and shall await instructions
from the Fund. PNC Bank shall not be obliged to take legal action for collection
unless and until reasonably indemnified to its satisfaction. PNC Bank shall also
notify the 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.
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 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
Portfolios to the
30
31
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 the Property 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 Airport Business Center, International Court 2, 000 Xxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxx 00000, marked for the attention of the Custodian Services
Department (or its successor) (b) if to the Fund, c/o Haven Capital Management,
000 Xxxxx Xxxxxx, Xxx
00
00
Xxxx, XX 00000, Attn: Xxxxx X. Xxxxxxxxx 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.
18. DELEGATION; ASSIGNMENT. 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 (or
assignee) agrees with PNC Bank and the
32
33
Fund to comply with all relevant provisions of the 1940 Act; and (iii) PNC Bank
and such delegate (or assignee) promptly provide such information as the Fund
may request, and respond to such questions as the Fund may ask, relative to the
delegation (or assignment), including (without limitation) the capabilities of
the delegate (or assignee).
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.
33
34
(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 Delaware and governed by Delaware 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.
(g) Limitations on the Obligations of the Fund. The obligation
of the Funds are not binding upon any of the Trustees, shareholders, officers,
employees or agents of the
34
35
Fund or its Portfolios individually but are binding only upon the assets and
property of the Fund and Portfolios, provided that no obligations hereunder
shall be binding upon the assets and property of any portfolio of the Fund not
listed on Exhibit A.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Title:
-----------------------------
THE HAVEN CAPITAL MANAGEMENT TRUST
By:
--------------------------------
Title:
-----------------------------
35
36
EXHIBIT A
PORTFOLIOS
THIS EXHIBIT A, dated as of June 17, 1994, is Exhibit A to
that certain Custodian Services Agreement dated as of June 17, 1994 between PNC
Bank, National Association and The Haven Capital Management Trust. This Exhibit
A shall supersede all previous form of Exhibit A.
The Haven Fund
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------------
Title:
-----------------------------
THE HAVEN CAPITAL MANAGEMENT TRUST
By:
--------------------------------
Title:
-----------------------------
36
37
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
Xxxxxxx Xxx
---------------------------------- -------------------------------
Xxxxx X. Xxxxxxxxx
---------------------------------- -------------------------------
Xxxxxx X. Xxxxx
---------------------------------- -------------------------------
Xxxxxxxx X. Xxxxxx
---------------------------------- -------------------------------
Xxxxx X. Xxxxx
---------------------------------- -------------------------------
37
