EXHIBIT (J)
CUSTODIAN SERVICES AGREEMENT
THIS AGREEMENT is made as of July 16, 1998 by and between PNC BANK,
NATIONAL ASSOCIATION, a national banking association ("PNC Bank"), and CONGRESS
STREET ASSOCIATES, L.P., a Delaware limited partnership (the "Partnership").
W I T N E S S E T H:
WHEREAS, the Partnership is registered as a closed-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Partnership wishes to retain PNC Bank to provide
custodian services, 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:
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 person duly authorized by the
Partnership's General Partner or Directors to give Oral
Instructions and Written Instructions on behalf of the
Partnership 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 Partnership 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) "CODE" means the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
(g) "ORAL INSTRUCTIONS" mean oral instructions received by PNC Bank
from an Authorized Person or from a person reasonably believed by
PNC Bank to be an Authorized Person.
(h) "PNC BANK" means PNC Bank, National Association or a subsidiary
or affiliate of PNC Bank, National Association.
(i) "PROPERTY" means:
(i) any and all securities and other investment items which
the Partnership may deposit from time to time, or cause to
be deposited, with PNC Bank or which PNC Bank may hold
from time to time for the Partnership;
(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
Partnership, which are received by PNC Bank from time to
time, from or on behalf of the Partnership.
(j) "SEC" means the Securities and Exchange Commission.
(k) "SECURITIES LAWS" mean the 1933 Act, the 1934 Act, the 1940 Act
and the CEA.
(l) "SHARES" mean the limited partnership interests of the
Partnership.
(m) "SHAREHOLDERS" mean the holders of limited partnership interests
of the Partnership.
(n) "SOFTWARE" means all software and electronic data processing
systems used or that will be used by PNC Bank prior to, during or
after the calendar year 2000 in connection with the provision of
services hereunder.
(o) "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 Partnership hereby appoints PNC Bank to provide
custodian services to the Partnership, on behalf of each of its
investment portfolios (each, a "Portfolio"), and PNC Bank accepts such
appointment and agrees to furnish such services.
3. DELIVERY OF DOCUMENTS. The Partnership has provided or, where
applicable, will provide PNC Bank with the following:
(a) certified or authenticated copies of the resolutions of the
Partnership's General Partner or Directors, approving the
appointment of PNC Bank or its affiliates to provide services;
(b) a copy of the Partnership's most recent effective registration
statement;
(c) a copy of each Portfolio's advisory agreements;
(d) a copy of the placement agency agreement with respect to the
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 Partnership or a Portfolio; and
(g) certified or authenticated copies of any and all amendments or
supplements to the foregoing.
4. COMPLIANCE WITH LAWS.
PNC Bank undertakes to comply with all applicable requirements of the
Securities Laws and any laws, rules and regulations of governmental
authorities having jurisdiction with respect to the duties to be
performed by PNC Bank hereunder. Except as specifically set forth
herein, PNC Bank assumes no responsibility for such compliance by the
Partnership or any Portfolio.
5. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, PNC Bank shall
act only upon Oral Instructions and Written Instructions.
(b) PNC Bank shall be entitled to rely upon any Oral Instructions and
Written Instructions it receives from an Authorized Person (or
from a person reasonably believed by PNC Bank to be an Authorized
Person) pursuant to this Agreement. PNC Bank may assume that any
Oral Instructions or Written Instructions received hereunder are
not in any way inconsistent with the provisions of organizational
documents of the Partnership or of any vote, resolution or
proceeding of the Partnership's General Partner, Directors or
Shareholders, unless and until PNC Bank receives Written
Instructions to the contrary.
(c) The Partnership 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 in no way shall invalidate the transactions or
enforceability of the transactions authorized by the Oral
Instructions. Where Oral Instructions or Written Instructions
reasonably appear to have been received from an Authorized
Person, PNC Bank shall incur no liability to the Partnership in
acting upon such Oral Instructions or Written Instructions,
provided that PNC Bank's actions comply with the other provisions
of this Agreement.
6. RIGHT TO RECEIVE ADVICE.
(a) ADVICE OF THE PARTNERSHIP. If PNC Bank is in doubt as to any
action it should or should not take, PNC Bank may request
directions or advice, including Oral Instructions or Written
Instructions, from the Partnership.
(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
Partnership, the Partnership's investment adviser or PNC Bank, at
the option of PNC Bank).
(c) CONFLICTING ADVICE. In the event of a conflict between
directions, advice or Oral Instructions or Written Instructions
PNC Bank receives from the Partnership and the advice it receives
from counsel, PNC Bank shall be entitled to rely upon and follow
the advice of counsel, provided that such counsel is selected
with reasonable care. 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, negligence or reckless disregard by PNC
Bank of any duties, obligations or responsibilities set forth in
this Agreement.
(d) PROTECTION OF PNC BANK. PNC Bank shall be protected in any action
it takes or does not take in reliance upon directions, advice or
Oral Instructions or Written Instructions it receives from the
Partnership or from counsel selected with reasonable care and
which PNC Bank believes, in good faith, to be consistent with
those directions, advice or Oral Instructions or Written
Instructions. Nothing in this section shall be construed so as to
impose an obligation upon PNC Bank (i) to seek such directions,
advice or Oral Instructions or Written Instructions, or (ii) to
act in accordance with such directions, advice or Oral
Instructions or Written Instructions unless, under the terms of
other provisions of this Agreement, the same is a condition of
PNC Bank's properly taking or not taking such action. Nothing in
this subsection shall excuse PNC Bank when an action or omission
on the part of PNC Bank constitutes willful misfeasance, bad
faith, 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 Partnership
and any Portfolio, which are in the possession or under the control of
PNC Bank, shall be the property of the Partnership, and PNC Bank
agrees to surrender promptly such books and records to the Partnership
on and in accordance with the Partnership's request. Such books and
records shall be prepared, preserved and maintained as required by the
1940 Act and other applicable securities laws, rules and regulations.
The Partnership 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 Partnership, copies of any such books
and records shall be provided by PNC Bank to the Partnership or to an
authorized representative of the Partnership at the Partnership's
expense.
8. CONFIDENTIALITY. PNC Bank agrees to keep confidential all records of
the Partnership and information relating to the Partnership, the
Partnership's General Partner and the Shareholders, unless the release
of such records or information is otherwise consented to in writing by
the Partnership. The Partnership 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
Partnership'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 Partnership.
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, at no additional expense to the
Partnership, shall take reasonable steps to minimize service
interruptions. PNC Bank shall have no liability with respect to the
loss of data or service interruptions caused by equipment failure
beyond its control, provided such loss or interruption is not caused
by PNC Bank's own willful misfeasance, bad faith, negligence or
reckless disregard of its duties or obligations under this Agreement.
11. YEAR 2000 COMPATIBILITY. PNC Bank represents and warrants as follows:
(a) All Software is designed to be used prior to, during, and after
calendar year 2000 and such Software will operate during each
such time period without error relating to date data,
specifically including any error relating to, or the conduct of,
date data which represents or references different centuries or
more than one century. Without limiting the generality of the
foregoing, (i) the Software will not abnormally end or provide
invalid or incorrect results as a result of date data, and (ii)
the Software will be capable upon installation of accurately
processing, providing and/or receiving date data from, into, and
between the twentieth and twenty-first centuries, including the
years 1999 and 2000, and leap year calculations.
(b) The Software will lose no functionality with respect to the
introduction of records containing dates falling before, on or
after January 1, 2000, and that the Software will be
interoperable with other software and systems that may deliver
records to, receive records from or otherwise interact with the
Software, including but not limited to, back-up and archived
data, date data, century recognition calculations that
accommodate same century and multi-century formulas and date
values and date data interface values that reflect the century.
12. COMPENSATION. As compensation for custody services rendered by PNC
Bank during the term of this Agreement, the Partnership, 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 Partnership and PNC
Bank.
13. INDEMNIFICATION.
(a) The Partnership, 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) reasonable attorneys' fees and disbursements
(collectively, "Losses") 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
Partnership or (ii) upon Oral Instructions 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.
(b) Notwithstanding anything in this Agreement to the contrary,
neither the Partnership nor any Portfolio shall be liable to PNC
Bank or its affiliates for any consequential, special or indirect
losses or damages which PNC Bank or its affiliates may incur or
suffer, whether or not the likelihood of such losses or damages
was known by the Partnership.
14. RESPONSIBILITY OF PNC BANK.
(a) PNC Bank shall be under no duty to take any action on behalf of
the Partnership 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 agrees to indemnify and hold harmless the Partnership, the
Partnership's General Partner and the Shareholders from Losses
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.
(b) Without limiting the generality of the foregoing or of any other
provision of this Agreement, (i) PNC Bank shall not be under any
duty or obligation to inquire into and shall not be liable for
(A) the validity or invalidity or authority or lack thereof of
any Oral Instruction or Written Instruction, notice or other
instrument which conforms to the applicable requirements of this
Agreement, and which PNC Bank reasonably believes to be genuine;
or (B) subject to Sections 10 and 11 of this Agreement, delays or
errors or loss of data occurring by reason of circumstances
beyond PNC Bank's control, including acts of civil or military
authority, national emergencies, fire, flood, catastrophe, acts
of God, insurrection, war, riots or failure of the mails,
transportation, communication or power supply.
(c) Notwithstanding anything in this Agreement to the contrary,
neither PNC Bank nor its affiliates shall be liable to the
Partnership or to any Portfolio for any consequential, special or
indirect losses or damages which the Partnership may incur or
suffer by or as a consequence of PNC Bank's or its affiliates'
performance of the services provided hereunder, whether or not
the likelihood of such losses or damages was known by PNC Bank or
its affiliates.
15. DESCRIPTION OF SERVICES.
(a) DELIVERY OF THE PROPERTY. The Partnership will deliver or arrange
for delivery to PNC Bank of all of 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
Partnership's name using all cash received from or for the
account of the Partnership, subject to the terms of this
Agreement. In addition, upon Written Instructions, PNC Bank shall
open separate custodial accounts for each separate Portfolio of
the Partnership (collectively, the "Accounts") and shall hold in
the Accounts all cash received from or for the Accounts of the
Partnership specifically designated to each separate Portfolio.
PNC Bank shall make cash payments from or for the Accounts of a
Portfolio only for:
(i) purchases of securities in the name of a Portfolio or PNC
Bank or PNC Bank's nominee as provided in sub-section (j)
of this Section 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 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 Written Instructions, the
Shareholders of an amount equal to the amount of dividends
and distributions stated in the Written Instructions to be
distributed in cash.
(v) payments, upon Written Instructions, in connection with
the conversion, exchange or surrender of securities owned
or subscribed to by the Partnership and held by or
delivered to PNC Bank;
(vi) payments of the amounts of dividends received with respect
to securities sold short;
(vii) payments made to a sub-custodian pursuant to provisions in
sub-section (c) of this Section; and
(viii) payments, upon Written Instructions, made for other proper
Partnership purposes.
PNC Bank hereby is 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 Partnership 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 Partnership's General Partner or
Directors, authorizing the transaction. In no case may any
member of the Partnership's General Partner, or any
officer, employee or agent of the Partnership withdraw any
securities.
At PNC Bank's own expense and for its own convenience, PNC
Bank may enter into sub-custodian agreements with other
United States banks or trust companies to perform duties
described in this sub-section (c). Such bank or trust
company shall have an aggregate capital, surplus and
undivided profits, according to its last published report,
of at least one million dollars ($1,000,000) if it is a
subsidiary or affiliate of PNC Bank, or at least twenty
million dollars ($20,000,000) if such bank or trust
company is not a subsidiary or affiliate of PNC Bank. In
addition, such bank or trust company must be qualified to
act as custodian and agree to comply with the relevant
provisions of the 1940 Act and other applicable rules and
regulations. Any such arrangement will not be entered into
without prior written notice to the Partnership.
PNC Bank shall remain responsible for the performance of all of
its duties as described in this Agreement and shall hold the
Partnership 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
Instructions or Written Instructions and not otherwise, PNC Bank,
directly or through the use of the Book-Entry System, shall:
(i) deliver any securities held for a Portfolio against the
receipt of payment for the sale of such securities;
(ii) execute and deliver to such persons as may be designated
in such Oral Instructions or Written Instructions,
proxies, consents, authorizations, and any other
instruments whereby the authority of a Portfolio as owner
of any securities may be exercised;
(iii) deliver any securities to the issuer thereof, or its
agent, when such securities are called, redeemed, retired
or otherwise become payable; provided that, in any such
case, the cash or other consideration is to be delivered
to PNC Bank;
(iv) deliver any securities held for a Portfolio against
receipt of other securities or cash issued or paid in
connection with the liquidation, reorganization,
refinancing, tender offer, merger, consolidation or
recapitalization of any corporation, or the exercise of
any conversion privilege;
(v) deliver any securities held for a Portfolio to any
protective committee, reorganization committee or other
person in connection with the reorganization, refinancing,
merger, consolidation, recapitalization or sale of assets
of any corporation, and receive and hold under the terms
of this Agreement such certificates of deposit, interim
receipts or other instruments or documents as may be
issued to it to evidence such delivery;
(vi) make such transfer or exchanges of the assets of the
Portfolios and take such other steps as shall be stated in
said Oral Instructions or Written Instructions to be for
the purpose of effectuating a duly authorized plan of
liquidation, reorganization, merger, consolidation or
recapitalization of the Partnership;
(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 Partnership 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 Partnership, but only on receipt of payment
therefor; and pay out moneys of the Partnership in
connection with such repurchase agreements, but only upon
the delivery of the securities;
(ix) release and deliver or exchange securities owned by the
Partnership in connection with any conversion of such
securities, pursuant to their terms, into other
securities;
(x) release and deliver securities owned by the Partnership
for the purpose of redeeming in kind shares of the
Partnership upon delivery thereof to PNC Bank; and
(xi) release and deliver or exchange securities owned by the
Partnership 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 this sub-section (d).
(e) USE OF BOOK-ENTRY SYSTEM.
The Partnership shall deliver to PNC Bank certified resolutions
of the Partnership's General Partner or Directors approving,
authorizing and instructing PNC Bank on a continuous basis, to
deposit in the Book-Entry System all securities belonging to the
Portfolios eligible for deposit therein and to utilize the
Book-Entry System to the extent possible in connection with
settlements of purchases and sales of securities by the
Portfolios, and deliveries and returns of securities loaned,
subject to repurchase agreements or used as collateral in
connection with borrowings. PNC Bank shall continue to perform
such duties until it receives Written Instructions or Oral
Instructions authorizing contrary actions.
PNC Bank shall administer the Book-Entry System as follows:
(i) With respect to securities of each Portfolio which are
maintained in the Book-Entry System, the records of PNC
Bank shall identify by book-entry or otherwise those
securities belonging to each Portfolio. PNC Bank shall
furnish to the Partnership a detailed statement of the
Property held for each Portfolio under this Agreement at
least monthly and from time to time and upon written
request.
(ii) Securities and any cash of each Portfolio deposited in the
Book-Entry System will at all times be segregated from any
assets and cash controlled by PNC Bank in other than a
fiduciary or custodian capacity but may be commingled with
other assets held in such capacities. PNC Bank and its
sub-custodian, if any, will pay out money only upon
receipt of securities and will deliver securities only
upon the receipt of money.
(iii) All books and records maintained by PNC Bank which relate
to the Partnership's participation in the Book-Entry
System will be open to the inspection of Authorized
Persons at all times during PNC Bank's regular business
hours, and PNC Bank will furnish to the Partnership
information in respect of the services rendered as it may
require.
PNC Bank also will provide the Partnership with such reports on
its own system of internal control as the Partnership may
reasonably request from time to time.
(f) REGISTRATION OF SECURITIES. All Securities held for a Portfolio
which are issued or issuable only in bearer form, except such
securities held in the Book-Entry System, shall be held by PNC
Bank in bearer form; all other securities held for a Portfolio
may be registered in the name of the Partnership on behalf of
that Portfolio, PNC Bank, the Book-Entry System, a sub-custodian,
or any duly appointed nominees of the Partnership, PNC Bank,
Book-Entry System or sub-custodian. The Partnership reserves the
right to instruct PNC Bank as to the method of registration and
safekeeping of the securities of the Partnership. The Partnership
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 be registered from time to time in the
name of the Partnership on behalf of a Portfolio.
(g) VOTING AND OTHER ACTION. Neither PNC Bank nor its nominee shall
vote any of the securities held pursuant to this Agreement by or
for the account of a Portfolio, except in accordance with Written
Instructions. PNC Bank, directly or through the use of the
Book-Entry System, shall execute in blank and promptly deliver
all notices, proxies and proxy soliciting materials to the
registered holder of such securities. If the registered holder is
not the Partnership on behalf of a Portfolio, then Written
Instructions or Oral Instructions must designate the person who
owns such securities.
(h) TRANSACTIONS NOT REQUIRING INSTRUCTIONS. In the absence of
contrary Written Instructions, PNC Bank is authorized to take the
following actions:
(i) COLLECTION OF INCOME AND OTHER PAYMENTS.
(A) collect and receive for the account of each Portfolio,
all income, dividends, distributions, coupons, option
premiums, other payments and similar items, included or
to be included in the Property, and 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
Partnership, checks, drafts or other orders for the
payment of money;
(C) receive and hold for the account of each Portfolio all
securities received as a distribution on the
Portfolio's securities as a result of a stock dividend,
share split-up or reorganization, recapitalization,
readjustment or other rearrangement or distribution of
rights or similar securities issued with respect to any
securities belonging to a Portfolio and held by PNC
Bank hereunder;
(D) present for payment and collect the amount payable upon
all securities which may mature or be called, redeemed
or retired, or otherwise become payable on the date
such securities become payable; and
(E) take any action which may be necessary and proper in
connection with the collection and receipt of such
income and other payments and the endorsement for
collection of checks, drafts and other negotiable
instruments.
(ii) MISCELLANEOUS TRANSACTIONS.
(A) deliver or cause to be delivered Property against
payment or other consideration or written receipt
therefor in the following cases:
(1) for examination by a broker or dealer selling for
the account of a Portfolio in accordance with
street delivery custom;
(2) for the exchange of interim receipts or temporary
securities for definitive securities; and
(3) for transfer of securities into the name of the
Partnership on behalf of a Portfolio or PNC Bank
or nominee of either, or for exchange of
securities for a different number of bonds,
certificates or other evidence, representing the
same aggregate face amount or number of units
bearing the same interest rate, maturity date and
call provisions, if any; provided that, in any
such case, the new securities are to be delivered
to PNC Bank.
(B) Unless and until PNC Bank receives Oral Instructions or
Written Instructions to the contrary, PNC Bank shall:
(1) pay all income items held by it which call for
payment upon presentation and hold the cash
received by it upon such payment for the account
of each Portfolio;
(2) collect interest and cash dividends received, with
notice to the Partnership, 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 Partnership all
necessary ownership certificates required by the
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 Partnership's name, on behalf of a Portfolio,
on such certificate as the owner of the securities
covered thereby, to the extent it may lawfully do
so.
(i) SEGREGATED ACCOUNTS.
(i) PNC Bank, upon receipt of Written Instructions or Oral
Instructions, shall 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 Partnership 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 ▇▇▇
custodian accounts for such shareholders holding Shares
through ▇▇▇ accounts, in accordance with the Partnership's
confidential memorandum, the Code and such other
procedures as are mutually agreed upon from time to time
by and between the Partnership and PNC Bank.
(j) PURCHASES OF SECURITIES. PNC Bank shall settle purchased securities
upon receipt of Oral Instructions or Written Instructions from the
Partnership 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, upon receipt of
securities purchased by or for a Portfolio, shall pay out
of the moneys held for the account of the Portfolio the
total amount payable to the person from whom or the broker
through whom the purchase was made, provided that the same
conforms to the total amount payable as set forth in such
Oral Instructions or Written Instructions.
(k) SALES OF SECURITIES. PNC Bank shall settle sold securities upon
receipt of Oral Instructions or Written Instructions from the
Partnership 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 Partnership 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.
PNC Bank shall deliver the securities upon receipt of the total amount
payable to the Portfolio upon such sale, provided that the total amount
payable is the same as was set forth in the Oral Instructions or
Written Instructions. Subject to the foregoing, PNC Bank may accept
payment in such form as shall be satisfactory to it, and may deliver
securities and arrange for payment in accordance with the customs
prevailing among dealers in securities.
(l) REPORTS; PROXY MATERIALS.
(i) PNC Bank shall furnish to the Partnership the following
reports:
(A) such periodic and special reports as the
Partnership 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
Partnership pursuant to Rule 17f-4 under the
1940 Act; and
(D) such other information as may be agreed upon
from time to time between the Partnership
and PNC Bank.
(ii) PNC Bank shall transmit promptly to the Partnership 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 Partnership 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
Partnership. If payment is not received by PNC Bank within a
reasonable time after proper demands have been made, PNC Bank shall
notify the Partnership in writing, including copies of all demand
letters, any written responses, memoranda of all oral responses and
shall await instructions from the Partnership. PNC Bank shall not be
obliged to take legal action for collection unless and until
reasonably indemnified to its satisfaction. PNC Bank also shall notify
the Partnership as soon as reasonably practicable whenever income due
on securities is not collected in due course and shall provide the
Partnership with periodic status reports of such income collected
after a reasonable time.
16. DURATION AND TERMINATION. This Agreement shall continue until
terminated by the Partnership or by PNC Bank on ninety (90) 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 Partnership 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 Partnership. 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
Partnership 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 attributable to the relevant
Portfolio(s). PNC Bank shall have a security interest in and shall
have a right of setoff against the Property of such Portfolios(s) as
security for the payment of such fees, compensation, costs and
expenses.
17. NOTICES. All notices and other communications, including Written
Instructions, shall be in writing or by confirming telegram, cable,
telex or facsimile sending device. Notice shall be addressed (a) if to
PNC Bank at Airport Business Center, International Court 2, ▇▇▇
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the Custodian Services Department (or its successor) (b) if to the
Partnership, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attn:__________ 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.
18. 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.
19. 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 Partnership thirty (30) days' prior written notice;
(ii) the delegate (or assignee) agrees with PNC Bank and the
Partnership to comply with all relevant provisions of the Securities
Laws, and any laws, rules and regulations of governmental authorities
having jurisdiction with respect to the duties to be performed by the
delegate (or assignee) hereunder; and (iii) PNC Bank and such delegate
(or assignee) promptly provide such information as the Partnership may
request, and respond to such questions as the Partnership may ask,
relative to the delegation (or assignment), including (without
limitation) the capabilities of the delegate (or assignee).
20. 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.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and
execute such further documents as are necessary to effectuate the
purposes hereof.
22. 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 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.
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: _____________________________
Name:
Title:
CONGRESS STREET ASSOCIATES, L.P.
By: _____________________________
Name:
Title:
AUTHORIZED PERSONS APPENDIX
NAME (TYPE) SIGNATURE
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