AMENDMENT TO CUSTODIAN CONTRACT
Agreement made by and between State Street Bank and Trust Company (the
Custodian) and The Series Portfolio (the Fund).
WHEREAS, the Custodian and the Fund are parties to a custodian contract
dated July 8, 1994 (the "Custodian Contract") governing the terms and conditions
under which the Custodian maintains custody of the securities and other assets
of the Fund; and
WHEREAS, the Custodian and the Fund desire to amend the terms and
conditions under which the Custodian maintains the Fund's securities and other
non-cash property in the custody of certain foreign sub-custodians in conformity
with the requirements of Rule f-5 under the Investment Company Act of 1940, as
amended;
NOW THEREFORE, in consideration of the premises and covenants contained
herein, the Custodian and the Fund hereby amend the Custodian Contract by the
addition of the following terms and provisions:
1. Notwithstanding any provisions to the contrary set forth in the
Custodian Contract, the Custodian may hold securities and other non-cash
property for all of its customers, including the Fund, with a foreign
sub-custodian in a single account that is identified as belonging to the
Custodian for the benefit of its customers, provided however, that (i) the
records of the Custodian with respect to securities and other non-cash property
of the Fund which are maintained in such account shall identify by book-entry
those securities and other non-cash property belonging to the Fund and (ii) the
Custodian shall require that securities and other non-cash property so held by
the foreign sub-custodian be held separately from any assets of the foreign
sub-custodian or of others.
2. Except as specifically superseded or modified herein, the terms and
provisions of the Custodian Contract shall continue to apply with full force and
effect.
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed as a sealed instrument in its name and behalf by its duly authorized
representative this 28th day of February, 1996.
THE SERIES PORTFOLIO
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
STATE STREET BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
CUSTODIAN CONTRACT
Between
THE SERIES PORTFOLIO
and
STATE STREET BANK AND TRUST COMPANY
W:\...\solomon\agm\JPMport.cus
21E593
TABLE OF CONTENTS
Page
1. Employment of Custodian and Property to be
Held By It............................................................2
2. Duties of the Custodian with Respect to Property
of the Portfolio Held by the Custodian in the United States...........3
2.1 Holding Securities...........................................3
2.2 Delivery of Securities.......................................3
2.3 Registration of Securities...................................8
2.4 Bank Accounts................................................9
2.5 Availability of Federal Funds...............................10
2.6 Collection of Income........................................10
2.7 Payment of Portfolio Monies.................................11
2.8 Liability for Payment in Advance of Receipt of Securities
Purchased...................................................14
2.9 Appointment of Agents.......................................14
2.10 Deposit of Portfolio Assets in Securities System............15
2.10A Portfolio Assets Held in the Custodian's
Direct Paper System................................18
2.11 Segregated Account..........................................19
2.12 Ownership Certificates for Tax Purposes.....................21
2.13 Proxies.....................................................21
2.14 Communications Relating to Portfolio Securities.............21
3. Duties of the Custodian with Respect to Property of
the Portfolio Held Outside of the United States......................22
3.1 Appointment of Foreign Sub-Custodians.......................22
3.2 Assets to be Held...........................................23
3.3 Foreign Securities Depositories.............................23
3.4 Agreements with Foreign Banking Institutions................23
3.5 Access of Independent Accountants of the Portfolio..........24
3.6 Reports by Custodian........................................25
3.7 Transactions in Foreign Custody Account.....................25
3.8 Liability of Foreign Sub-Custodians.........................26
3.9 Liability of Custodian......................................27
3.10 Reimbursement for Advances..................................27
3.11 Monitoring Responsibilities.................................28
3.13 Branches of U.S. Banks......................................29
3.13 Tax Law.....................................................29
4. Payments for Sales or Repurchase or Withdrawals of
Portfolio Interests..................................................30
5. Proper Instructions..................................................31
TABLE OF CONTENTS continued
Page
6. Actions Permitted Without Express Authority..........................32
7. Evidence of Authority................................................33
8. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Asset Value and Net Income........................33
9. Records..............................................................34
10. Opinion of Trust's Independent Accountants...........................35
11. Reports to Trust by Independent Public Accountants...................35
12. Compensation of Custodian............................................36
13. Responsibility of Custodian..........................................36
14. Effective Period, Termination and Amendment..........................38
15. Successor Custodian..................................................39
16. Interpretive and Additional Provisions...............................41
17. Additional Portfolios................................................
18. Massachusetts Law to Apply...........................................42
19. Prior Contracts......................................................42
20. Shareholder Communications Election..................................42
21. Limitation of Liability..............................................43
CUSTODIAN CONTRACT
This Contract between The Series Portfolio, a master trust organized
and existing under the laws of the State of New York, having its principal place
of business at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ Town, Grand
Cayman, BWI, hereinafter called the "Trust", and State Street Bank and Trust
Company, a Massachusetts trust company, having its principal place of business
at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, hereinafter called the
"Custodian",
WITNESSETH:
WHEREAS, the Trust desires to retain the Custodian to render custody
and fund accounting services to The Asia Growth Portfolio, The Japan Equity
Portfolio and The European Equity Portfolio, the Trust's three initial separate
and distinct subtrusts or series (such subtrusts or series together with all
other subtrusts or series subsequently established by the Trust and made subject
to this Contract in accordance with Article 17 being herein referred to as the
"Portfolio(s)"),
WHEREAS, each Portfolio's assets are composed of money and property
contributed thereto by the holders of interests in the Portfolio ("Interest(s)")
entitled to ownership rights in the Portfolio ("Investors');
NOW THEREFORE in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1
1. Employment of Custodian and Property to be Held by It
The Trust hereby employs the Custodian as the custodian of the assets
each Portfolio, including securities which the Portfolio desires to be
held in places within the United States ("domestic securities") and
securities it desires to be held outside the United States ("foreign
securities") pursuant to the provisions of the Trust's Declaration of
Trust. The Trust agrees to deliver to the Custodian all securities and
cash of each Portfolio, and all payments of income, payments of
principal or capital distributions received by it with respect to all
securities owned by the Trust from time to time, and the cash
consideration received by it for such new Interests as may be issued or
sold from time to time. The Custodian shall not be responsible for any
property of the Portfolios held or received by it and not delivered to
the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of
Article 5), the Custodian shall on behalf of the applicable
Portfolio(s) from time to time employ one or more sub-custodians,
located in the United States but only in accordance with an applicable
vote by the Board of Trustees of the Trust and provided that the
Custodian shall have no more or less responsibility or liability to the
Trust or the Portfolios on account of any actions or omissions of any
sub-custodian so employed than any such sub-custodian has to the
Custodian. The Custodian may
2
employ as sub-custodian for the Portfolios' foreign securities foreign
banking institutions and foreign securities depositories designated in
Schedule A hereto but only in accordance with the provisions of Article
3.
2. Duties of the Custodian with Respect to Property of the Portfolios Held
By the Custodian in the United States
2.1 Holding Securities. The Custodian shall hold and physically
segregate for the account of each Portfolio all non-cash property, to
be held by it in the United States including all domestic securities
owned by the Portfolio, other than (a) securities which are maintained
pursuant to Section 2.10 in a clearing agency which acts as a
securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury, collectively referred to herein as
"Securities System" and (b) commercial paper of an issuer for which the
Custodian acts as issuing and paying agent ("Direct Paper") which is
deposited and/or maintained in the Direct Paper System of the Custodian
pursuant to Section 2.10A.
2.2 Deliveries of Securities. The Custodian shall release and deliver
domestic securities owned by each Portfolio held by the Custodian or in
a Securities System account of the Custodian or in the Custodian's
Direct Paper book entry system account ("Direct Paper System Account")
only upon receipt of Proper Instructions from the Trust with respect to
the Portfolio, which may be continuing instructions when
3
deemed appropriate by the parties, and only in the
following cases:
1) Upon sale of such securities for the account of the
Portfolio and receipt of payment therefor;
2) Upon the receipt of payment in connection with any
repurchase agreement related to such securities
entered into by the Portfolio;
3) In the case of a sale effected through a Securities
System, in accordance with the provisions of Section
2.10 hereof;
4) To the depository agent in connection with tender or
other similar offers for securities of the Portfolio;
5) 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 the
Custodian;
6) To the issuer thereof, or its agent, for transfer into the
name of the Portfolio or into the name of any nominee or
nominees of the Custodian or into the name or nominee name of
any agent appointed pursuant to Section 2.9 or into the name
or nominee name of any sub-custodian appointed pursuant to
Article 1; or for exchange for a different number of bonds,
certificates or other evidence representing the same aggregate
face amount or number of units; provided that, in any such
4
case, the new securities are to be delivered to the
Custodian;
7) Upon the sale of such securities for the account of the
Portfolio, to the broker or its clearing agent, against a
receipt, for examination in accordance with "street delivery"
custom; provided that in any such case, the Custodian shall
have no responsibility or liability for any loss arising from
the delivery of such securities prior to receiving payment for
such securities except as may arise from the Custodian's own
negligence or willful misconduct;
8) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such securities, or pursuant to any deposit agreement;
provided that, in any such case, the new securities and cash,
if any, are to be delivered to the Custodian;
9) In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that,
in any such case, the new securities and cash, if any, are to
be delivered to the Custodian;
5
10) For delivery in connection with any loans of securities made
by the Portfolio, but only against receipt of adequate
collateral as agreed upon from time to time by the Custodian
and the Trust on behalf of the Portfolio, which may be in the
form of cash or obligations issued by the United States
government, its agencies or instrumentalities, except that in
connection with any loans for which collateral is to be
credited to the Custodian's account in the book-entry system
authorized by the U.S. Department of the Treasury, the
Custodian will not be held liable or responsible for the
delivery of securities owned by the Portfolio prior to the
receipt of such collateral;
11) For delivery as security in connection with any borrowings by
the Portfolio requiring a pledge of assets by the Portfolio,
but only against receipt of amounts borrowed;
12) For delivery in accordance with the provisions of any
agreement relating to the Portfolio among the Trust, the
Custodian and a broker-dealer registered under the Securities
Exchange Act of 1934 (the "Exchange Act") and a member of The
National Association of Securities Dealers, Inc. ("NASD"),
relating to compliance with the rules of The Options Clearing
Corporation and of any registered national securities
exchange, or of any similar organization or organizations,
regarding
6
escrow or other arrangements in connection with
transactions by the Portfolio;
13) For delivery in accordance with the provisions of any
agreement relating to the Portfolio among the Trust, the
Custodian, and a Futures Commission Merchant registered under
the Commodity Exchange Act, relating to compliance with the
rules of the Commodity Futures Trading Commission and/or any
Contract Market, or any similar organization or organizations,
regarding account deposits in connection with transactions by
the Portfolio;
14) Upon receipt of instructions from the transfer agent
("Transfer Agent") for the Portfolio, for delivery to such
Transfer Agent or to the Investors in connection with
distributions in kind, as may be described from time to time
in the registration statement on Form N-1A of the Trust with
respect to the Portfolio ("Registration Statement"), in
satisfaction of requests by Investors for repurchase or
withdrawal; and
15) For any other proper corporate purpose, but only upon receipt
of, in addition to Proper Instructions from the Trust, a
certified copy of a resolution of the Board of Trustees or of
the Executive Committee signed by an officer of the Trust and
certified by the Secretary or an Assistant Secretary,
specifying the securities of the Portfolio to be delivered,
setting
7
forth the purpose for which such delivery is to be made,
declaring such purpose to be a proper corporate purpose, and
naming the person or persons to whom delivery of such
securities shall be made.
2.3 Registration of Securities. Domestic securities held by the Custodian
(other than bearer securities) shall be registered in the name of the
Portfolio or in the name of any nominee of the Portfolio or of any
nominee of the Custodian which nominee shall be assigned exclusively to
the Portfolio, unless the Trust has authorized in writing the
appointment of a nominee to be used in common with other registered
investment companies having the same investment adviser as the
Portfolio, or in the name or nominee name of any agent appointed
pursuant to Section 2.9 or in the name or nominee name of any
sub-custodian appointed pursuant to Article 1. All securities accepted
by the Custodian under the terms of this Contract shall be in "street
name" or other good delivery form. If, however, the Trust directs the
Custodian to maintain securities in "street name", the Custodian shall
utilize its best efforts only to timely collect income due the
Portfolio on such securities and to notify the Trust on a best efforts
basis only of relevant corporate actions including, without limitation,
pendency of calls, maturities, tender or exchange offers.
2.4 Bank Accounts. The Custodian shall open and maintain a
8
separate bank account or accounts in the United States in the name of
the Portfolio, subject only to draft or order by the Custodian acting
pursuant to the terms of this Contract, and shall hold in such account
or accounts, subject to the provisions hereof, all cash received by it
from or for the account of the Portfolio, other than cash maintained by
the Portfolio in a bank account established and used in accordance with
Rule f-3 under the Investment Company Act of 1940. Funds held by the
Custodian for a Portfolio may be deposited by it to its credit as
Custodian in the Banking Department of the Custodian or in such other
banks or trust companies as it may in its discretion deem necessary or
desirable; provided, however, that every such bank or trust company
shall be qualified to act as a custodian under the Investment Company
Act of 1940 and that each such bank or trust company and the funds to
be deposited with each such bank or trust company shall be approved by
vote of a majority of the Board of Trustees of the Trust. Such funds
shall be deposited by the Custodian in its capacity as Custodian and
shall be withdrawable by the Custodian only in that capacity.
2.5 Availability of Federal Funds. Upon mutual agreement
between the Trust and the Custodian, the Custodian shall,
upon the receipt of Proper Instructions from the Trust,
make federal funds available to the Trust for the
Portfolio(s) as of specified times agreed upon from time to
9
time by the Trust and the Custodian in the amount of checks received in
payment for Interests in such Portfolio(s) which are deposited into the
account of the Portfolio(s).
2.6 Collection of Income. Subject to the provisions of Section 2.3, the
Custodian shall collect on a timely basis all income and other payments
with respect to registered domestic securities held hereunder to which
a Portfolio shall be entitled either by law or pursuant to custom in
the securities business, and shall collect on a timely basis all income
and other payments with respect to bearer domestic securities if, on
the date of payment by the issuer, such securities are held by the
Custodian or its agent thereof and shall credit such income, as
collected, to such Portfolio's custodian account. Without limiting the
generality of the foregoing, the Custodian shall detach and present for
payment all coupons and other income items requiring presentation as
and when they become due and shall collect interest when due on
securities held hereunder. Income due the Portfolio on securities
loaned pursuant to the provisions of Section 2.2 (10) shall be the
responsibility of the Trust. The Custodian will have no duty or
responsibility in connection therewith, other than to provide the Trust
with such information or data as may be necessary to assist the Trust
in arranging for the timely delivery to the Custodian of the income to
which each Portfolio is properly entitled.
10
2.7 Payment of Portfolio Monies. Upon receipt of Proper Instructions from
the Trust, which may be continuing instructions when deemed appropriate
by the parties, the Custodian shall pay out monies of a Portfolio in
the following cases only:
1) Upon the purchase of domestic securities, options, futures
contracts or options on futures contracts for the account of
the Portfolio but only (a) against the delivery of such
securities or evidence of title to such options, futures
contracts or options on futures contracts to the Custodian (or
any bank, banking firm or trust company doing business in the
United States or abroad which is qualified under the
Investment Company Act of 1940, as amended, to act as a
custodian and has been designated by the Custodian as its
agent for this purpose) registered in the name of the
Portfolio or in the name of a nominee of the Custodian
referred to in Section 2.3 hereof or in proper form for
transfer; (b) in the case of a purchase effected through a
Securities System, in accordance with the conditions set forth
in Section 2.10 hereof; (c) in the case of a purchase
involving the Direct Paper System, in accordance with the
conditions set forth in Section 2.10A; (d) in the case of
repurchase agreements entered into on behalf of the Portfolio
between the Trust and the Custodian, or another bank, or a
broker-dealer which is a member of
11
NASD, (i) against delivery of the securities either in
certificate form or through an entry crediting the Custodian's
account at the Federal Reserve Bank with such securities or
(ii) against delivery of the receipt evidencing purchase by
the Portfolio of securities owned by the Custodian along with
written evidence of the agreement by the Custodian to
repurchase such securities from the Portfolio or (e) for
transfer to a time deposit account of the Portfolio in any
bank, whether domestic or foreign; such transfer may be
effected prior to receipt of a confirmation from a broker
and/or the applicable bank pursuant to Proper Instructions
from the Trust as defined in Article 5;
2) In connection with conversion, exchange or surrender
of securities owned by the Portfolio as set forth in
Section 2.2 hereof;
3) For the withdrawal or repurchase of the Portfolio's
Interests issued by the Trust as set forth in Article
4 hereof;
4) From an account of the Portfolio located outside of the United
States, for the payment of any expense or liability incurred
by the Portfolio, including but not limited to the following
payments for the account of the Portfolio: interest, taxes,
management, accounting, transfer agent and legal fees, and
operating expenses of the Portfolio whether or not
12
such expenses are to be in whole or part capitalized
or treated as deferred expenses;
5) From an account of the Portfolio located outside of
the United States, for the payment of any
distributions pursuant to the governing documents of
the Trust;
6) For payment of the amount of dividends received in
respect of securities sold short;
7) For any other proper purpose, but only upon receipt of, in
addition to Proper Instructions from the Trust, a certified
copy of a resolution of the Board of Trustees or of the
Executive Committee of the Trust signed by an officer of the
Trust and certified by its Secretary or an Assistant
Secretary, specifying the amount of such payment, setting
forth the purpose for which such payment is to be made,
declaring such purpose to be a proper purpose, and naming the
person or persons to whom such payment is to be made.
2.8 Liability for PaYment in Advance of Receipt of Securities Purchased.
Except as specifically stated otherwise in this Contract, in any and
every case where payment for purchase of domestic securities for the
account of a Portfolio is made by the Custodian in advance of receipt
of the securities purchased in the absence of specific written
instructions from the Trust with respect to the Portfolio to pay in
advance, the Custodian shall be absolutely liable to the Portfolio for
such securities to the same extent as
13
if the securities had been received by the Custodian.
2.9 Appointment of Agents. The Custodian may at any time or times in its
discretion appoint (and may at any time remove) any other bank or trust
company which is itself qualified under the Investment Company Act of
1940, as amended, to act as a custodian, as its agent to carry out such
of the provisions of this Article 2 as the Custodian may from time to
time direct; provided, however, that the appointment of any agent shall
not relieve the Custodian of its responsibilities or liabilities
hereunder. In addition, the Custodian may appoint an affiliate of the
Custodian located outside of the United States to perform such of its
duties hereunder as are required to be performed outside of the United
States.
2.10 Deposit of Portfolio Assets in Securities Systems. The Custodian may
deposit and/or maintain securities owned by a Portfolio in a clearing
agency registered with the Securities and Exchange Commission under
Section 17A of the Securities Exchange Act of 1934, which acts as a
securities depository, or in the book-entry system authorized by the
U.S. Department of the Treasury and certain federal agencies,
collectively referred to herein as "Securities System" in accordance
with applicable Federal Reserve Board and Securities and Exchange
Commission rules and regulations, if any, and subject to the following
provisions:
14
1) The Custodian may keep securities of the Portfolio in a
Securities System provided that such securities are
represented in an account ("Account") of the Custodian in the
Securities System which shall not include any assets of the
Custodian other than assets held as a fiduciary, custodian or
otherwise for customers;
2) The records of the Custodian with respect to
securities of the Portfolio which are maintained in a
Securities System shall identify by book-entry those
securities belonging to the Portfolio;
3) The Custodian shall pay for securities purchased for the
account of the Portfolio upon (i) receipt of advice from the
Securities System that such securities have been transferred
to the Account, and (ii) the making of an entry on the records
of the Custodian to reflect such payment and transfer for the
account of the Portfolio. The Custodian shall transfer
securities sold for the account of the Portfolio upon (i)
receipt of advice from the Securities System that payment for
such securities has been transferred to the Account, and (ii)
the making of an entry on the records of the Custodian to
reflect such transfer and payment for the account of the
Portfolio. Copies of all advices from the Securities System of
transfers of securities for the account of the Portfolio shall
identify the Portfolio, be maintained for the Portfolio by the
15
Custodian and be provided to the Trust at the Trust's request.
Upon request, the Custodian shall furnish the Trust on behalf
of the Portfolio confirmation of each transfer to or from the
account of the Portfolio in the form of a written advice or
notice and shall furnish to the Trust on behalf of the
Portfolio copies of daily transaction sheets reflecting each
day's transactions in the Securities System for the account of
the Portfolio;
4) The Custodian shall provide the Trust with any report
obtained by the Custodian on the Securities System's
accounting system, internal accounting control and
procedures for safeguarding securities deposited in
the Securities System;
5) The Custodian shall have received from the Trust
initial or annual certificate, as the case may be,
required by Article 14 hereof;
6) Anything to the contrary in this Contract notwithstanding, the
Custodian shall be liable to the Trust for any loss or damage
to the Trust or the Portfolio(s) resulting from use of the
Securities System by reason of any negligence, misfeasance or
misconduct of the Custodian or any of its agents or of any of
its or their employees or from failure of the Custodian or any
such agent to enforce effectively such rights as it may have
against the Securities
16
System; at the election of the Trust, it shall be entitled to be
subrogated to the rights of the Custodian with respect to any claim
against the Securities System or any other person which the Custodian
may have as a consequence of any such loss or damage if and to the
extent that the Trust has not been made whole for any such loss or
damage.
2.10A Portfolio Assets Held in the Custodian's Direct Paper System
The Custodian may deposit and/or maintain securities owned by a
Portfolio in the Direct Paper System of the Custodian subject to the
following provisions:
1) No transaction relating to securities in the Direct
Paper System will be effected in the absence of Proper
Instructions from the Portfolio;
2) The Custodian may keep securities of the Portfolio in the
Direct Paper System only if such securities are represented in
an account ("Account") of the Custodian in the Direct Paper
System which shall not include any assets of the Custodian
other than assets held as a fiduciary, custodian or otherwise
for customers;
3) The records of the Custodian with respect to
securities of the Portfolio which are maintained in
the Direct Paper System shall identify by book-entry
those securities belonging to the Portfolio;
4) The Custodian shall pay for securities purchased
17
for the account of the Portfolio upon the making of an entry
on the records of the Custodian to reflect such payment and
transfer of securities to the account of the Portfolio. The
Custodian shall transfer securities sold for the account of
the Portfolio upon the making of an entry on the records of
the Custodian to reflect such transfer and receipt of payment
for the account of the Portfolio;
5) The Custodian shall furnish the Trust confirmation of each
transfer to or from the account of each Portfolio, in the form
of a written advice or notice, of Direct Paper on the next
business day following such transfer and shall furnish to the
Trust copies of daily transaction sheets reflecting each day's
transaction in the Securities System for the account of the
Portfolio;
6) The Custodian shall provide the Trust on behalf of the
Portfolio with any report on its system of internal accounting
control as the Trust may reasonably request from time to time.
2.11 Segregated Account. The Custodian shall upon receipt of Proper
Instructions from the Trust establish and maintain a segregated account
or accounts for and on behalf of each Portfolio, into which account or
accounts may be transferred cash and/or securities, including
securities maintained in an account by the Custodian pursuant to
Section 2.10 hereof, (i) in accordance with the provisions
18
of any agreement relating to the Portfolio among the Trust, the
Custodian and a broker-dealer registered under the Exchange Act and a
member of the NASD (or any futures commission merchant registered under
the Commodity Exchange Act), relating to compliance with the rules of
The Options Clearing Corporation and of any registered national
securities exchange (or the Commodity Futures Trading Commission or any
registered contract market), or of any similar organization or
organizations, regarding escrow or other arrangements in connection
with transactions by the Portfolio, (ii) for purposes of segregating
cash or government securities in connection with options purchased,
sold or written by the Portfolio or commodity futures contracts or
options thereon purchased or sold by the Portfolio, (iii) for the
purposes of compliance by the Trust and/or the Portfolio with the
procedures required by Investment Company Act Release No. 10666, or any
subsequent release or releases of the Securities and Exchange
Commission relating to the maintenance of segregated accounts by
registered investment companies and (iv) for other proper corporate
purposes, but only, in the case of clause (iv), upon receipt of, in
addition to Proper Instructions from the Trust, a certified copy of a
resolution of the Board of Trustees or of the Executive Committee
signed by an officer of the Trust and certified by the Secretary or an
Assistant Secretary, setting forth
19
the purpose or purposes of such segregated account and declaring such
purposes to be proper corporate purposes.
2.12 Ownership Certificates for Tax Purposes. The Custodian shall execute
ownership and other certificates and affidavits for all federal and
state tax purposes in connection with receipt of income or other
payments with respect to domestic securities of the Portfolio(s) held
by it and in connection with transfers of securities.
2.13 Proxies. The Custodian shall, with respect to the domestic securities
held hereunder, cause to be promptly executed by the registered holder
of such securities, if the securities are registered otherwise than in
the names of the Portfolio(s) or a nominee of the Portfolio(s), all
proxies, without indication of the manner in which such proxies are to
be voted, and shall promptly deliver to the Trust such proxies, all
proxy soliciting materials and all notices relating to such securities.
2.14 Communications Relating to Portfolio Securities. Subject to the
provisions of Section 2.3, the Custodian shall transmit promptly to the
Trust all written information (including, without limitation, pendency
of calls and maturities of domestic securities and expirations of
rights in connection therewith and notices of exercise of call and put
options written by the Portfolio and the maturity of futures contracts
purchased or sold by the Portfolio) received by the Custodian from
issuers of the securities
20
being held for the Portfolio. With respect to tender or exchange
offers, the Custodian shall transmit promptly to the Trust all written
information received by the Custodian from issuers of the securities
whose tender or exchange is sought and from the party (or his agents)
making the tender or exchange offer. If the Trust desires to take
action with respect to any tender offer, exchange offer or any other
similar transaction, the Trust shall notify the Custodian at least
three business days prior to the date on which the Custodian is to take
such action.
3. Duties of the Custodian with Respect to Property of the Portfolios Held
Outside of the United States
3.1 Appointment of Foreign Sub-Custodians. The Trust hereby authorizes and
instructs the Custodian to employ as sub-custodians for each
Portfolio's securities and other assets maintained outside the United
States the foreign banking institutions and foreign securities
depositories designated on Schedule A hereto ("foreign
sub-custodians"). Upon receipt of "Proper Instructions", as defined in
Section 5 of this Contract, together with a certified resolution of the
Trust's Board of Trustees, the Custodian and the Trust may agree to
amend Schedule A hereto from time to time to designate additional
foreign banking institutions and foreign securities depositories to act
as sub-custodian. Upon receipt of Proper Instructions, the Trust may
instruct the Custodian to cease the employment of
21
any one or more such sub-custodians for maintaining custody
of the Portfolio's assets.
3.2 Assets to be Held. The Custodian shall limit the securities and other
assets maintained in the custody of the foreign sub-custodians to: (a)
"foreign securities", as defined in paragraph (c)(1) of Rule f-5 under
the Investment Company Act of 1940, and (b) cash and cash equivalents
in such amounts as the Custodian or the Trust may determine to be
reasonably necessary to effect a Portfolio's foreign securities
transactions. The Custodian shall identify on its books as belonging to
the Portfolio, the foreign securities of the Portfolio held by each
foreign sub-custodian.
3.3 Foreign Securities Depositories. Except as may otherwise be agreed upon
in writing by the Custodian and the Trust, assets of the Portfolio(s)
shall be maintained in foreign securities depositories only through
arrangements implemented by the foreign banking institutions serving as
sub-custodians pursuant to the terms hereof. Where possible, such
arrangements shall include entry into agreements containing the
provisions set forth in Section 3.4 hereof.
3.4 Agreements with Foreign Banking Institutions. Each
agreement with a foreign banking institution shall be
substantially in the form set forth in Exhibit 1 hereto and
shall provide that: (a) the assets of each Portfolio will
22
not be subject to any right, charge, security interest, lien or claim
of any kind in favor of the foreign banking institution or its
creditors or agent, except a claim of payment for their safe custody or
administration; (b) beneficial ownership for the assets of the
Portfolio will be freely transferable without the payment of money or
value other than for custody or administration; (c) adequate records
will be maintained identifying the assets as belonging to the
Portfolio; (d) officers of or auditors employed by, or other
representatives of the Custodian, including to the extent permitted
under applicable law the independent public accountants for the
Portfolio, will be given access to the books and records of the foreign
banking institution relating to its actions under its agreement with
the Custodian; and (e) assets of the Portfolio held by the foreign
sub-custodian will be subject only to the instructions of the Custodian
or its agents.
3.5 Access of Independent Accountants of the Portfolio(s). Upon request of
the Trust, the Custodian will use its bent efforts to arrange for the
independent accountants of the Portfolio(s) to be afforded access to
the books and records of any foreign banking institution employed as a
foreign sub-custodian insofar as such books and records relate to the
performance of such foreign banking institution under its agreement
with the Custodian.
3.6 Reports by Custodian. The Custodian will supply to the
23
Trust from time to time, as mutually agreed upon, statements in respect
of the securities and other assets of the Portfolio(s) held by foreign
sub-custodians, including but not limited to an identification of
entities having possession of the Portfolio's securities and other
assets and advices or notifications of any transfers of securities to
or from each custodial account maintained by a foreign banking
institution for the Custodian on behalf of the Portfolio indicating, as
to securities acquired for the Portfolio, the identity of the entity
having physical possession of such securities.
3.7 Transactions in Foreign Custody Account
(a) Except as otherwise provided in paragraph (b) of this Section 3.7,
the provision of Sections 2.2 and 2.7 of this Contract shall apply,
mutatis mutandis to the foreign securities of the Portfolio(s) held
outside the United States by foreign sub-custodians.
(b) Notwithstanding any provision of this Contract to the contrary,
settlement and payment for securities received for the account of the
Portfolio and delivery of securities maintained for the account of the
Portfolio may be effected in accordance with the customary established
securities trading or securities processing practices and procedures in
the jurisdiction or market in which the transaction occurs, including,
without limitation, delivering securities to the purchaser thereof or
to a dealer therefor
24
(or an agent for such purchaser or dealer) against a receipt with the
expectation of receiving later payment for such securities from such
purchaser or dealer.
(c) Securities maintained in the custody of a foreign sub-custodian may
be maintained in the name of such entity's nominee to the same extent
as set forth in Section 2.3 of this Contract, and the Trust agrees to
hold any such nominee harmless from any liability as a holder of record
of such securities.
3.8 Liability of Foreign Sub-Custodians. Each agreement pursuant to which
the Custodian employs a foreign banking institution as a foreign
sub-custodian shall require the institution to exercise reasonable care
in the performance of its duties and to indemnify, and hold harmless,
the Custodian and the Trust and/or the Portfolio(s) from and against
any loss, damage, cost, expense, liability or claim arising out of or
in connection with the institution's performance of such obligations.
At the election of the Trust, it shall be entitled to be subrogated to
the rights of the Custodian with respect to any claims against a
foreign banking institution as a consequence of any such loss, damage,
cost, expense, liability or claim if and to the extent that the Trust
and/or the Portfolio(s) have not been made whole for any such loss,
damage, cost, expense, liability or claim.
3.9 Liability of Custodian. The Custodian shall be liable for
25
the acts or omissions of a foreign banking institution to the same
extent as set forth with respect to sub-custodians generally in this
Contract and, regardless of whether assets are maintained in the
custody of a foreign banking institution, a foreign securities
depository or a branch of a U.S. bank as contemplated by paragraph 3.12
hereof, the Custodian shall not be liable for any loss, damage, cost,
expense, liability or claim resulting from nationalization,
expropriation, currency restrictions, or acts of war or terrorism or
any loss where the sub-custodian has otherwise exercised reasonable
care. Notwithstanding the foregoing provisions of this paragraph 3.9,
in delegating custody duties to State Street London Ltd., the Custodian
shall not be relieved of any responsibility to the Trust and/or the
Portfolio(s) for any loss due to such delegation, except such loss as
may result from (a) political risk (including, but not limited to,
exchange control restrictions,
confiscation,expropriation,nationalization,insurrection, civil strife
or armed hostilities) or (b) other losses (excluding a bankruptcy or
insolvency of State Street London Ltd. not caused by political risk)
due to Acts of God, nuclear incident or other losses under
circumstances where the Custodian and State Street London Ltd. have
exercised reasonable care.
3.10 Reimbursement for Advances. If the Trust requires the
Custodian to advance cash or securities on behalf of a
26
Portfolio for any purpose including the purchase or sale of foreign
exchange or of contracts for foreign exchange, or in the event that the
Custodian or its nominee shall incur or be assessed any taxes, charges,
expenses, assessments, claims or liabilities in connection with the
performance of this Contract, except such as may arise from its or its
nominee's own negligent action, negligent failure to act or willful
misconduct, any property at any time held for the account of the
Portfolio shall be security therefor and should the Portfolio fail to
repay the Custodian promptly, the Custodian shall be entitled to
utilize available cash and to dispose of the Portfolio's assets to the
extent necessary to obtain reimbursement.
3.11 Monitoring Responsibilities. The Custodian shall furnish annually to
the Trust, during the month of June, information concerning the foreign
sub-custodians employed by the Custodian. Such information shall be
similar in kind and scope to that furnished to the Trust in connection
with the initial approval of this Contract. In addition, the Custodian
will promptly inform the Trust in the event that the Custodian learns
of a material adverse change in the financial condition of a foreign
sub-custodian or any material loss of the assets of a Portfolio or in
the case of any foreign sub-custodian not the subject of an exemptive
order from the Securities and Exchange Commission is notified by such
foreign sub-custodian that there
27
appears to be a substantial likelihood that its shareholders' equity
will decline below $200 million (U.S. dollars or the equivalent
thereof) or that its shareholders' equity has declined below $200
million (in each case computed in accordance with generally accepted
U.S. accounting principles).
3.12 Branches of U.S. Banks. (a) Except as otherwise set forth in this
Contract, the provisions hereof shall not apply where the custody of a
Portfolio's assets are maintained in a foreign branch of a banking
institution which is a "bank" as defined by Section 2(a)(5) of the
Investment Company Act of 1940 meeting the qualification set forth in
Section 26(a) of said Act. The appointment of any such branch as a
sub-custodian shall be governed by paragraph 1 of this Contract.
(b)Cash held for a Portfolio in the United Kingdom shall be maintained
in an interest bearing account established for the Portfolio with the
Custodian's London branch, which account shall be subject to the
direction of the Custodian, State Street London Ltd. or both.
3.13 Tax Law.
(a) United States Taxes
The Custodian shall have no responsibility or liability for any
obligations now or hereafter imposed on a Portfolio or the Custodian as
custodian of the Portfolio by the tax law of the United States of
America or any state or political
28
subdivision thereof. The Custodian will be responsible for informing
the Trust of the income received by the Portfolio which is United
States source income and which is not United States source income.
(b) Claiming for Exemption or Refunds under the Tax Laws of
Non-United States Jurisdictions
The sole responsibility of the Custodian with regard to the tax laws of
non-United States jurisdictions shall be to identify the income of each
Portfolio which has been subject to withholding and other tax
assessments or other governmental charges by such jurisdictions and the
amount thereof and, on the basis of information furnished to it by the
Trust as to the allocated amount of such income that is attributable to
each Portfolio's Investors, to use reasonable efforts to assist the
Portfolio or its Investors with respect to any claim for exemption or
refund of such charges that can be made on behalf of the Portfolio or
its Investors.
4. Payments for Sales or Repurchases or Withdrawals of Portfolio
Interests. The Custodian shall receive and deposit into the account of
each Portfolio such payments as are received for Interests in the
Portfolio issued or sold from time to time by the Portfolio. The
Custodian will provide notification to the Trust of any receipt by it
of payments for Portfolio Interests.
From such funds as may be available for the purpose but
29
subject to the limitations of the Declaration of Trust and any
applicable votes of the Board of Trustees of the Trust pursuant
thereto, the Custodian shall, upon receipt of instructions from the
Trust, make funds available to an account for each Portfolio maintained
outside of the United States for payment to Investors in the Portfolio
who have delivered to the Trust and/or the Portfolio a request for
withdrawal or repurchase of their Interests.
5. Proper Instructions. Proper Instructions as used throughout
this Contract means a writing signed or initialled by one
or more person or persons as the Board of Trustees shall
have from time to time authorized. Each such writing shall
set forth the specific transaction or type of transaction
involved, including a specific statement of the purpose for
which such action is requested. Oral instructions will be
considered Proper Instructions if the Custodian reasonably
believes them to have been given by a person authorized to
give such instructions with respect to the transaction
involved. The Trust shall cause all oral instructions to be
confirmed in writing. It is understood and agreed that the
Board of Directors has authorized ▇▇▇▇▇▇ Guaranty Trust
Company of New York ( "▇▇▇▇▇▇ Guaranty"), as Advisor of the
Portfolios pursuant to an Investment Advisory Agreement,
dated as of [ ], 1994 between ▇▇▇▇▇▇ Guaranty and the
Trust, to deliver Proper Instructions with respect to all
30
matters for which Proper Instructions are required by paragraphs 2.2(1)
through 2.2(14), 2.S, 2.7(1) and 2.7(2), 2.7(6), 2.11(i) through
2.11(iii) and 3.7(a). The Custodian may rely upon the certificate of an
officer of ▇▇▇▇▇▇ Guaranty with respect to the person or persons
authorized on behalf of ▇▇▇▇▇▇ Guaranty to sign, initial or give Proper
Instructions for the purposes of such paragraphs. Upon receipt of a
certificate of the Secretary or an Assistant Secretary as to the
authorization by the Board of Trustees of the Trust accompanied by a
detailed description of procedures approved by the Board of Trustees,
Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices provided that the
Board of Trustees and the Custodian are satisfied that such procedures
afford adequate safeguards for the Portfolio's assets. For purposes of
this Section, Proper Instructions shall include instructions received
by the Custodian pursuant to any three-party agreement which requires a
segregated asset account in accordance with Section 2.11.
6. Actions Permitted without Express Authority. The Custodian
may in its discretion, without express authority from the
Trust:
1) make payments to itself or others for minor expenses
of handling securities or other similar items relating
to its duties under this Contract, provided that all
31
such payments shall be accounted for to the Trust;
2) surrender securities in temporary form for securities
in definitive form;
3) endorse for collection, in the name of the Trust/
Portfolio, checks, drafts and other negotiable
instruments; and
4) in general, attend to all non-discretionary details in
connection with the sale, exchange, substitution, purchase,
transfer and other dealings with the securities and property
of the Portfolios except as otherwise directed by the Board of
Trustees of the Trust.
7. Evidence of Authority. The Custodian shall be protected in
acting upon any instructions, notice, request, consent,
certificate or other instrument or paper believed by it to
be genuine and to have been properly executed by or on
behalf of the Trust. The Custodian may receive and accept
a certified copy of a vote of the Board of Trustees of the
Trust as conclusive evidence (a) of the authority of any
person to act in accordance with such vote or (b) of any
determination or of any action by the Board of Trustees
pursuant to the Declaration of Trust as described in such
vote, and such vote may be considered as in full force and
effect until receipt by the Custodian of written notice to
the contrary.
8. Duties of Custodian with Respect to the Books of Account
32
and Calculation of Net Income. The Custodian shall keep the books of
account of each Portfolio. Until otherwise directed by Proper
Instructions, the Custodian shall calculate daily the net income of the
Portfolio as described in Part A of the Registration Statement and
shall advise the Trust daily of the total amounts of such net income,
including the categorization of such net income by source. The
calculation of the Portfolio's net income and its components shall
include, but may not be limited to, accounting for purchases and sales
of portfolio securities, calculation of realized and unrealized gains
and losses, accruals of income on portfolio investments, expense
accruals and calculations of market value of portfolio securities. The
Custodian will transmit accounting information produced by the
Custodian to the Trust or an agent designated by the Trust in such
format and by such means as the Trust and the Custodian shall agree in
order that the Trust or such agent may calculate a Portfolio's net
asset value and SEC yield and the allocation of its various components
to the Portfolio's Investors. The Custodian shall in no event be
responsible for the calculation or publication of the net asset value
or yields of any Portfolio. All accounting functions to be performed by
the Custodian hereunder shall be performed outside of the United
States.
9. Records. The Custodian shall with respect to each Portfolio
33
create and maintain all records relating to its activities and
obligations under this Contract in such manner as the Trust and the
Custodian may agree from time to time. All such records shall be the
property of the Trust and shall at all times during the regular
business hours of the Custodian be open for inspection by duly
authorized officers, employees or agents of the Trust and employees and
agents of the Securities and Exchange Commission. The Custodian shall,
at the Trust's request, supply the Trust with a tabulation(s) of
securities owned by the Portfolio(s) and held by the Custodian and
shall, when requested to do so by the Trust and for such compensation
as shall be agreed upon between the Trust and the Custodian, include
certificate numbers in such tabulations.
10. Opinion of Trust's Independent Accountant. The Custodian
shall take all reasonable action, as the Trust may from
time to time request, to assist the Trust in obtaining from
year to year favorable opinions for the Portfolio from the
Trust's independent accountants with respect to its
activities hereunder in connection with the preparation of
the Registration Statement and each Portfolio's Form N-SAR
or other periodic reports to the Securities and Exchange
Commission and with respect to any other requirements of
such Commission; provided, that the books and records of
the Portfolios shall be audited outside of the United
States.
34
11. Reports to Trust by Independent Public Accountants. The
Custodian shall provide the Trust, at such times as the
Trust may reasonably require, with reports by independent
public accountants on the accounting system, internal
accounting control and procedures for safeguarding each
Portfolio's securities, futures contracts and options on
futures contracts, including securities deposited and/or
maintained in a Securities System, relating to the services
provided by the Custodian under this Contract; such
reports, shall be of sufficient scope and in sufficient
detail, as may reasonably be required by the Trust to
provide reasonable assurance that any material inadequacies
would be disclosed by such examination, and, if there are
no such inadequacies, the reports shall so state.
12. Compensation of Custodian. The Custodian shall be entitled
to reasonable compensation for its services and expenses as
Custodian, as agreed upon from time to time between the
Trust and the Custodian.
13. Responsibility of Custodian. So long as and to the extent that it is in
the exercise of reasonable care, the Custodian shall not be responsible
for the title, validity or genuineness of any property or evidence of
title thereto received by it or delivered by it pursuant to this
Contract and shall be held harmless in acting upon any notice, request,
consent, certificate or other instrument
35
reasonably believed by it to be genuine and to be signed by the proper
party or parties, including any futures commission merchant acting
pursuant to the terms of a three-party futures or options agreement.
The Custodian shall be held to the exercise of reasonable care in
carrying out the provisions of this Contract, but shall be kept
indemnified by and shall be without liability to the Trust and/or the
Portfolio(s) for any action taken or omitted by it in good faith
without negligence. It shall be entitled to rely on and may act upon
advice of counsel (who may be counsel for the Trust) on all matters,
and shall be without liability for any action reasonably taken or
omitted pursuant to such advice.
The Custodian shall be liable for the acts or omissions of a foreign
banking institution appointed pursuant to the provisions of Article 3
to the same extent as set forth in Article 1 hereof with respect to
sub-custodians located in the United States (except as specifically
provided in Article 3.9) and, regardless of whether assets are
maintained in the custody of a foreign banking institution, a foreign
securities depository or a branch of a U.S. bank as contemplated by
paragraph 3.12 hereof, the Custodian shall not be liable for any loss,
damage, cost, expense, liability or claim resulting from, or caused by,
the direction of or authorization by the Trust to maintain custody or
any securities or cash of the Portfolio(s) in a
36
foreign country including, but not limited to, losses resulting from
nationalization, expropriation, currency restrictions, or acts of war
or terrorism.
If the Trust requires the Custodian to take any action with respect to
a Portfolio's securities, which action involves the payment of money or
which action may, in the opinion of the Custodian, result in the
Custodian or its nominee assigned to the Portfolio or the Portfolio
being liable for the payment of money or incurring liability of some
other form, the Trust, as a prerequisite to requiring the Custodian to
take such action, shall provide indemnity to the Custodian in an amount
and form satisfactory to it.
If the Trust requires the Custodian, its affiliates, subsidiaries or
agents, to advance cash or securities for any purpose (including but
not limited to securities settlements, foreign exchange contracts and
assumed settlement) for the benefit of a Portfolio including the
purchase or sale of foreign exchange or of contracts for foreign
exchange or in the event that the Custodian or its nominee shall incur
or be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Contract, except
such as may arise from its or its nominee's own negligent action,
negligent failure to act or willful misconduct, any property at any
time held for the account of the Portfolio shall be security therefor
and should the Portfolio fail to
37
repay the Custodian promptly, the Custodian shall be entitled to
utilize available cash and to dispose of the Portfolio's assets to the
extent necessary to obtain reimbursement.
14. Effective Period. Termination and Amendment. This Contract
shall become effective as of its execution, shall continue
in full force and effect until terminated as hereinafter
provided, may be amended at any time by mutual agreement of
the parties hereto and may be terminated by either party by
an instrument in writing delivered or mailed, postage
prepaid to the other party, such termination to take effect
not sooner than thirty (30) days after the date of such
delivery or mailing; provided, however that the Custodian
shall not with respect to the Trust act under Section 2.10
hereof in the absence of receipt of an initial certificate
of the Secretary or an Assistant Secretary that the Board
of Trustees of the Trust has approved the initial use by
each Portfolio of a particular Securities System as
required by Rule f-4 under the Investment Company Act of
1940, as amended and that the Custodian shall not with
respect to a Portfolio act under Section 2.10A hereof in
the absence of receipt of an initial certificate of the
Secretary or an Assistant Secretary that the Board of
Trustees has approved the initial use by each Portfolio of
the Direct Paper System by such Portfolio; provided
further, however, that the Trust shall not amend or
38
terminate this Contract in contravention of any applicable federal or
state regulations, or any provision of the Declaration of Trust, and
further provided, that the Trust may at any time by action of its Board
of Trustees (i) with respect to any Portfolio substitute another bank
or trust company for the Custodian by giving notice as described above
to the Custodian, or (ii) immediately terminate this Contract in the
event of the appointment of a conservator or receiver for the Custodian
by the Comptroller of the Currency or upon the happening of a like
event at the direction of an appropriate regulatory agency or court of
competent jurisdiction.
Upon termination of the Contract, the Trust shall pay to the Custodian
such compensation as may be due as of the date of such termination and
shall likewise reimburse the Custodian for its costs, expenses and
disbursements.
15. Successor Custodian. If a successor custodian for a
Portfolio shall be appointed by the Board of Trustees of
the Trust, the Custodian shall, upon termination, deliver
to such successor custodian at the office of the Custodian,
duly endorsed and in the form for transfer, all securities
of such Portfolio then held by it hereunder and shall
transfer to an account of the successor custodian all of
the securities of the Portfolio held in a Securities
System.
If no such successor custodian shall be appointed, the
39
Custodian shall, in like manner, upon receipt of a certified copy of a
vote of the Board of Trustees of the Trust, deliver at the office of
the Custodian and transfer such securities, funds and other properties
in accordance with such vote.
In the event that no written order designating a successor custodian or
certified copy of a vote of the Board of Trustees shall have been
delivered to the Custodian on or before the date when such termination
shall become effective, then the Custodian shall have the right to
deliver to a bank or trust company, which is a "bank" as defined in the
Investment Company Act of 1940, doing business in Boston,
Massachusetts, of its own selection, having an aggregate capital,
surplus, and undivided profits, as shown by its last published report,
of not less than $50,000,000, all securities, funds and other
properties held by the Custodian on behalf of a Portfolio and all
instruments held by the Custodian relative thereto and all other
property held by it under this Contract on behalf of the Portfolio and
to transfer to an account of such successor custodian all of the
securities of the Portfolio held in any Securities System. Thereafter,
such bank or trust company shall be the successor of the Custodian
under this Contract.
In the event that securities, funds and other properties
remain in the possession of the Custodian after
40
the date of termination hereof owing to failure of the Trust to procure
the certified copy of the vote referred to or of the Board of Trustees
to appoint a successor custodian, the Custodian shall be entitled to
fair compensation for its services during such period as the Custodian
retains possession of such securities, funds and other properties and
the provisions of this Contract relating to the duties and obligations
of the Custodian shall remain in full force and effect.
16. Interpretive and Additional Provisions. In connection with
the operation of this Contract, the Custodian and the
Trust, may from time to time agree on such provisions
interpretive of or in addition to the provisions of this
Contract as may in their joint opinion be consistent with
the general tenor of this Contract. Any such interpretive
or additional provisions shall be in a writing signed by
both parties and shall be annexed hereto, provided that no
such interpretive or additional provisions shall contravene
any applicable federal or state regulations or any
provision of the Declaration of Trust of the Trust. No
interpretive or additional provisions made as provided in
the preceding sentence shall be deemed to be an amendment
of this Contract.
17. Additional Portfolios. In the event that the Trust
establishes one or more subtrusts or series in addition to
The Asia Growth Portfolio, The Japan Equity Portfolio and
41
The European Equity Portfolio, with respect to which it desires to have
the Custodian render services as custodian under the terms hereof, it
shall so notify the Custodian in writing, and if the Custodian agrees
in writing to provide such services, such subtrust or series shall
become a Portfolio hereunder.
18. Massachusetts Law to Apply. This Contract shall be
construed and the provisions thereof interpreted under and
in accordance with laws of The Commonwealth of
Massachusetts.
19. Prior Contracts. This Contract supersedes and terminates,
as of the date hereof, all prior contracts between the
Trust and the Custodian relating to the custody of the
Fund's assets of the Portfolio(s).
20. Investor Communications Election. Securities and Exchange
Commission Rule 14b-2 requires banks which hold securities
for the account of customers to respond to requests by
issuers of securities for the names, addresses and holdings
of beneficial owners of securities of that issuer held by
the bank unless the beneficial owner has expressly objected
to disclosure of this information. In order to comply with
the rule, the Custodian needs the Trust to indicate whether
it authorizes the Custodian to provide name, address, and
share positions of the Portfolio(s) to requesting companies
whose securities are owned by the Portfolio. If the Trust
tells the Custodian "no", the Custodian will not provide
42
this information to requesting companies. If the Trust tells the
Custodian "yes" or does not check either "yes" or "no" below, the
Custodian is required by the rule to treat the Trust as consenting to
disclosure of this information for all securities owned by the
Portfolio or any funds or accounts established by the Trust. For the
Trust's protection, the Rule prohibits the requesting company from
using the Trust's / Portfolio's name and address for any purpose other
than corporate communications. Please indicate below whether the Trust
consents or objects by checking one of the alternatives below.
YES [ ] The Custodian is authorized to release such names, address, and
share (s).
NO [X] The Custodian is not authorized to release such names, address,
and position(s).
21. Limitation of Liability
The references herein to the Trustees of the Trust are to the Trustees
of the Trust as trustees and not individually or personally. The
obligations of the Trust entered into in the name of or on behalf of
each Portfolio by any of the Trustees are not made individually but in
their capacity as trustees and are not binding on any of the trustees
personally. All persons dealing with a Portfolio must look solely to
the assets of that Portfolio for the enforcement of any claims against
the Portfolio.
43
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the 8th day of July, 1994 .
THE SERIES PORTFOLIO
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Assistant Treasurer
STATE STREET BANK AND TRUST COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
44
AMENDMENT TO CUSTODIAN CONTRACT
Agreement made by and between State Street Bank and Trust Company (the
"Custodian") and the funds listed on Exhibit A hereto (each, a "Fund")
WHEREAS, the Custodian and the Fund are parties to a custodian contract
dated and, as applicable amended, as of the date set forth on Exhibit A (each,
the "Custodian Contract");
WHEREAS, the Custodian and the Fund desire to amend the terms and
conditions Custodian Contract pursuant to which the custodian provides
services to the Fund;
NOW, THEREFORE, in consideration of the promises and covenants contained
herein, the Custodian and the Fund hereby agree as follows:
1. The existing Section 3.13 of the Custodian Contract shall be amended and
restated in its entirety to read as follows:
3.13 Tax Law.
(a) United States Taxes. The Custodian shall have no responsibility or
liability for any obligations now or hereafter imposed. On the
Fund or the Custodian as custodian of the Fund by the tax law of
the United States of America or any state or political subdivision
[t]hereof. The Custodian will be responsible for informing the
Fund of the income received by the Fund which is United States
source income and which is not United States source income.
(b) Claiming for Exemption or Refund under the Tax Laws of Non-United
States Jurisdictions. The sole responsibility of the Custodian
with regard to the tax laws of non-United States jurisdictions
shall be to identify the income of the Fund which has been subject
to withholding and other tax assessments or other governmental
charges by such jurisdictions and the amount thereof and to use
reasonable efforts to assist the Fund or its investors with
respect to any claim for exemption or refund of such charges that
can be made on behalf of the Fund or its investors.
2. The existing Article 8 of the Custodian Contract shall be amended and
restated in its entirety to read as follows:
8. Duties of Custodian with Respect to the Books of Account and
Calculation of Net Income. The Custodian shall keep the books of
account of the Fund and shall perform the following duties as
described
in Part A of its Registration Statement under the 1940 Act and in
accordance with written procedures as may be agreed upon by the
Fund and the Custodian from time to time:
(a) record general ledger entries;
(b) calculate daily net income;
(c) reconcile activity to the trial balance;
(d) calculate book capital account balances;
(e) calculate and provide to the Fund the daily net asset
value of the Fund and the SEC yield of the Fund and
the allocation of its various components to investors
of the Fund;
(f) prepare capital allocation reports in accordance with
Regulation 1.704-3(e)(3) (special aggregation rule for
securities partnerships) under the U.S. Internal
Revenue Code, based upon tax adjustments supplied by
the Fund; and
(g) prepare account balances.
The Custodian shall advise the Fund daily of the total amounts of
such net income, including the categorization of such net income
by source. The calculation of the Fund's net income and its
components shall include, but may not be limited to, accounting
for purchases and sales of portfolio securities, calculation of
realized and unrealized gains and losses, accruals of income on
portfolio investments, Portfolio level expense accruals and
calculations of market value of portfolio securities. All
accounting functions to be performed by the Custodian hereunder
shall be performed outside the United States.
3. Except as specifically superseded or modified herein, the terms and
provisions of the Custodian contract shall continue to apply with full force
and effect.
IN WITNESS WHEREOF, each of the parties has caused this amendment to be
executed as a sealed instrument in its name and behalf by its duly authorized
representative as of this first day of July, 1996.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EACH OF THE PORTFOLIOS OF THE
FUNDS LISTED ON EXHIBIT A
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
W:\▇▇▇▇▇\offshore.96\jpm-am2.mto
Exhibit A
Master Funds
advised by ▇.▇. ▇▇▇▇▇▇
The Money Market Portfolio
The Short Term Bond Portfolio
The U.S. Fixed Income Portfolio
The Selected U.S. Equity Portfolio
The U.S. Small Company Portfolio
The Non-U.S. Equity Portfolio
The Diversified Portfolio
The Non-U.S. Fixed Income Portfolio
The Emerging Markets Equity Portfolio
The Asia Growth Portfolio, a series of The Series Portfolio
The Japan Equity Portfolio, a series of The Series Portfolio
The European Equity Portfolio, a series of The Series Portfolio
INTERPRETATIVE PROVISIONS REGARDING CUSTODIAN CONTRACT
Agreement made by and between State Street Bank and Trust Company (the
"Custodian") and the funds listed on Exhibit A hereto (each, a "Fund" and
collectively, the "Funds")[.]
The Custodian and the Funds are parties to custodian contracts dated
and, as applicable amended, as of the dates set forth on Exhibit A (each, the
"Custodian Contract"). As contemplated by Article 16 of the Custodian
Contract, the Custodian and each Fund desire to agree upon provisions
interpretative of the provisions of the Custodian Contract. ACCORDINGLY, the
Custodian and the Fund agree to the following provisions interpretative of the
provisions of the Custodian Contract:
1. Section 2.9 of the Custodian Contract provides that the Custodian may
appoint an affiliate of the Custodian located outside the United States to
perform such of its duties hereunder as are required to be performed outside
the United States. The Custodian and the Fund acknowledge that the Custodian
has appointed its indirect wholly owned subsidiary State Street Cayman Trust
Company, Limited to perform certain of its duties under Article 8 of the
Custodian Contract and that State Street Cayman Trust Company, Limited may
further appoint one or more other affiliates of the Custodian located outside
the United States to perform certain of such duties.
2. The Custodian and the Fund shall adopt written procedures as shall be
agreed upon from time to time regarding the books of account, allocations for
book and tax purposes and calculation of net income in accordance with
Article 8 of the Custodian Contract.
This Agreement shall not supersede or amend the terms of the Custodian
Contract which shall continue to apply with full force and effect.
Each of the parties has caused this agreement to be executed in its name
and behalf by its duly authorized representative as of this first day of July,
1996.
STATE STREET BANK AND TRUST
COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
EACH OF THE FUNDS LISTED ON
EXHIBIT A
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Exhibit A
Master Funds
advised by ▇.▇. ▇▇▇▇▇▇
The Money Market Portfolio
The Short Term Bond Portfolio
The U.S. Fixed Income Portfolio
The Selected U.S. Equity Portfolio
The U.S. Small Company Portfolio
The Non-U.S. Equity Portfolio
The Diversified Portfolio
The Non-U.S. Fixed Income Portfolio
The Emerging Markets Equity Portfolio
The Asia Growth Portfolio, a series of The Series Portfolio
The Japan Equity Portfolio, a series of The Series Portfolio
The European Equity Portfolio, a series of The Series Portfolio
The Series Portfolio
P.O. Box 2508 GT
Elizabethan Square, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Islands, BWI
(▇▇▇) ▇▇▇-▇▇▇▇
December 18, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ and Trust Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Re: Custodian Contract and Transfer Agency and Service Agreement
This is to advise you that the Board of Trustees of The Series Portfolio (the
"Trust") has established and organized two additional subtrusts (series): The
Disciplined Equity Portfolio and The International Opportunities Portfolio
(collectively, the "Portfolios"). State Street Bank and Trust Company ("State
Street") currently provides (i) custody and portfolio and fund accounting
services for the Trust's three other subtrusts pursuant to a Custodian Contract
dated July 8, 1994, as amended, between the Trust and State Street (the
"Custodian Contract") and (ii) transfer agency services for the Trust's three
other subtrusts pursuant to a Transfer Agency and Service Agreement dated
December 23, 1992, as amended, with State Street to which the Trust is also a
party (the "Transfer Agency Agreement").
In accordance with Article 17 (Additional Portfolios) of the Custodian Contract
and Article 10 (Additional Parties to Agreement) of the Transfer Agency
Agreement, the Trust hereby requests that State Street act as custodian and
transfer agent for each of the Portfolios under the terms of the Custodian
Contract and Transfer Agency Agreement, respectively.
Please indicate your acceptance of the foregoing by executing the eight
originals of this letter agreement, returning four the Trust and retaining four
for your records.
Very truly yours,
THE SERIES PORTFOLIO
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary and Assistant Treasurer
Agreed to this 18th day of December,
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ BANK AND TRUST COMPANY
By _________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
JPM259A1
Schedule A
17f-5 Approval
The Board of Trustees of The Series Portfolio has approved certain foreign
banking institutions and foreign securities depositories within State Street's
Global Custody Network for use as subcustodians for the Fund's securities, cash
and cash equivalents held outside of the United States. Board approval is as
indicated by the Fund's Authorized Officer:
Fund
Officer
Initials Country Subcustodian Central Depository
/s/ LJM State Street's entire Global Custody Network listed below
________ Argentina Citibank, N.A. Caja de Valores S.A.
________ Australia Westpac Banking Austraclear Limited;
Corporation
Reserve Bank Information
and Transfer System (RITS)
________ Austria GiroCredit Bank Oesterreichische
Aktiengesellschaft Kontrollbank AG
der Sparkassen (Wertpapiersammelbank
Division)
________ Bangladesh Standard Chartered Bank None
________ Belgium Generale Bank Caisse Interprofessionnelle
de Depots et de Virements
de Titres S.A. (CIK);
Banque Nationale de
Belgique
________ Botswana Barclays Bank of Botswana None
Limited
________ Brazil Citibank, N. A. Bolsa de Valores de Sao
Paulo (Bovespa);
Banco Central do Brasil,
Systema Especial de
Liquidacao e Custodia
(SELIC)
________ Canada Canada Trustco Mortgage The Canadian Depository
Company for Securities Limited
(CDS)
________ Chile Citibank, N.A. None
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ People's The Hongkong and Shanghai Securities Central
Republic Shanghai Banking Clearing and Registration
of China Corporation Limited, Corporation (SSCCRC);
Shanghai and
Shenzhen branches Shenzhen Securities Central
Clearing Co., Ltd. (SSCC)
________ Colombia Cititrust Colombia S.A. None
Sociedad
Fiduciaria
________ Cyprus Barclays Bank PLC None
Cyprus Offshore Banking
Unit
________ Czech Ceskoslovenska Obchodni Stredisko cennych
Republic Banka A.S. papiru(SCP);
Czech National Bank (CNB)
________ Denmark Den Danske Bank Vaerdipapircentralen - The
Danish Securities Center
(VP)
________ Ecuador Citibank, N.A. None
________ Egypt National Bank of Egypt None
________ Finland ▇▇▇▇▇▇ Bank Limited The Central Share Register
of Finland
________ France Banque Paribas Societe
Interprofessionnelle
pour la Compensation des
Valeurs Mobilieres
(SICOVAM);
Banque de France,
Saturne System
________ Germany Dresdner Bank AG The Deutscher Kassenverein
AG
________ Ghana Barclays Bank of Ghana None
Limited
________ Greece National Bank of Greece The Central Securities
S.A. Depository (Apothetirion
Titlon A.E.)
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ Hong Kong Standard Chartered Bank The Central Clearing and
Settlement System (CCASS)
________ Hungary Citibank Budapest Rt. The Central Depository and
Clearing House (Budapest)
Ltd. (KELER Ltd.)
________ India Deutsche Bank AG None
The Hongkong and None
Shanghai Banking
Corporation Limited
________ Indonesia Standard Chartered Bank None
________ Ireland Bank of Ireland None;
The Central Bank of
Ireland, The Gilt
Settlement Office (GSO)
________ Israel Bank Hapoalim B.M. The Clearing House of the
Tel Aviv Stock Exchange
________ Italy ▇▇▇▇▇▇ Guaranty Trust Monte Titoli S.p.A.;
Company
(Present Subcustodian) Banca d'Italia
________ Banque Paribas Monte Titoli S.p.A.;
(Future Subcustodian)
Banca d'Italia
________ Ivory Societe Generale de None
Coast Banques en Cote d'Ivoire
________ Japan The Daiwa Bank, Limited Japan Securities Depository
Center (JASDEC);
Bank of Japan Net System
________ The Fuji Bank, Limited Japan Securities Depository
Center (JASDEC);
Bank of Japan Net System
________ The Sumitomo Trust & Japan Securities Depository
Banking Co., Ltd. Center (JASDEC);
Bank of Japan Net System
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ Jordan The British Bank of the None
Middle East
________ Kenya Barclays Bank of Kenya None
Limited
________ Republic SEOULBANK Korea Securities Depository
of Korea (KSD)
________ Malaysia Standard Chartered Bank Malaysian Central
Malaysia Berhad Depository Sdn.
Bhd. (MCD)
________ Mauritius The Hongkong and None
Shanghai Banking
Corporation Limited
________ Mexico Citibank Mexico, S.A. S.D. INDEVAL, S.A. de C.V.
(Instituto para el Deposito
de Valores);
Banco de Mexico
________ Morocco Banque Commerciale du None
Maroc
________ Netherlands MeesPierson N.V. Nederlands Centraal
Instituut voor
Giraal Effectenverkeer B.V.
(NECIGEF;)
________ New Zealand ANZ Banking Group New Zealand Central
(New Zealand) Limited Securities Depository
Limited (NZCSD)
________ Norway Christiania Bank og Verdipapirsentralen - The
Kreditkasse Norwegian Registry of
Securities (VPS)
________ Pakistan Deutsche Bank AG None
________ Peru Citibank, N.A. Caja de Valores (CAVAL)
________ Philippines Standard Chartered Bank None
________ Poland Citibank Poland S.A. The National Depository of
Securities (Krajowy Depozyt
Papierow Wartosciowych);
National Bank of Poland
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ Portugal Banco Comercial Central de Valores
Portugues Mobiliarios (Central)
________ Russia Credit Suisse, Zurich None
via Credit Suisse
(Moscow) Limited
________ Singapore The Development Bank The Central Depository
of Singapore Ltd. (Pte) Limited (CDP)
________ Slovak Ceskoslovenska Obchodna Stredisko Cennych Papierov
Republic Banka A.S. (SCP);
National Bank of Slovakia
________ South Standard Bank of South The Central Depository
Africa Africa Limited Limited
________ Spain Banco Santander, S. A. Servicio de Compensacion y
Liquidacion de Valores,
S.A. (SCLV);
Banco de Espana,
Anotaciones en Cuenta
________ Sri Lanka The Hongkong and Central Depository System
Shanghai Banking (Pvt) Limited
Corporation Limited
________ Swaziland Barclays Bank of None
Swaziland Limited
________ Sweden Skandinaviska Enskilda Vardepapperscentralen VPC
▇▇▇▇▇▇ ▇▇ - The Swedish Central
Securities Depository
________ Switzerland Union Bank of Schweizerische Effekten -
Switzerland Giro AG (SEGA)
________ Taiwan - Central Trust of China The Taiwan Securities
R.O.C. Central Depository
or Company, Ltd. (TSCD)
_______________________
(Client Designated
Subcustodian)
________ Thailand Standard Chartered Bank Thailand Securities
Depository Company Limited
(TSD)
[logo] State Street [registered trademark]
Fund
Officer
Initials Country Subcustodian Central Depository
________ Turkey Citibank, ▇.▇. ▇▇▇▇▇ ve Saklama Bankasi
A.S.(TAKASBANK);
Central Bank of Turkey
________ United State Street Bank None;
Kingdom and Trust Company
The Bank of England,
The Central Gilts Office
CGO);
The Central Moneymarkets
Office (CMO)
________ Uruguay Citibank, N.A. None
________ Venezuela Citibank, N.A. None
________ Zambia Barclays Bank of Zambia Lusaka Central Depository
Limited (LCD)
________ Zimbabwe Barclays Bank of None
Zimbabwe Limited
________ Euroclear (The Euroclear System)/State Street London Limited[)]
________ Cedel (Cedel Bank, societe anonyme)/State Street London Limited[)]
Certified by:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ NOV - 4 1996
Fund's Authorized Officer Date
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
Assistant Treasurer
[logo] State Street [registered trademark]
