EXHIBIT (g)(12)
AMENDED AND RESTATED CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of __________, 2003 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
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
14
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
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(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.
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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:_________________________
Title:_______________________
XXXXXX INSIGHT FUNDS TRUST
By: ____________________
Title: ___________________
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AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
-------------------- -------------------
-------------------- -------------------
-------------------- -------------------
-------------------- -------------------
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22
SCHEDULE I
23
