CUSTODIAN AGREEMENT between BANKERS TRUST COMPANY and THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
TRUST
TABLE OF CONTENTS
Page
1. Employment of Custodian 1
2. Maintenance of Securities and Cash at Custodian and Subcustodian Locations
2
3. Custody Account 2
4. Subcustodians and Securities Systems 4
(a) Domestic Custody 4
(b) Foreign Custody 4
(c) General 5
5. Use of Subcustodian 5
6. Use of Securities System 6
7. Records, Ownership of Property, Statements, Opinions of
Independent Certified Public Accountants 7
8. Holding of Securities, Nominees, etc. 8
9. Proxies, etc. 8
10. Segregated Account9
11. Settlement Procedures 9
12. Instructions 10
13. Standard of Care 11
14. Investment Limitations and Legal or Contractual Restrictions
or Regulations 13
15. Fees and Expenses13
16. Tax Reclaims 14
17. Amendment, Modifications, etc. 14
18. Termination 14
(a) Termination of Entire Agreement 14
(b) Termination as to One or More Portfolios 15
19. Notices 15
20. Representations and ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Governing Law and Successors and Assigns 16
22. Publicity17
23. Representative Capacity and Binding ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Submission to Jurisdiction 17
25. Counterparts17
26. Confidentiality 17
27. Severability18
28. Headings 18
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
CUSTODIAN AGREEMENT
AGREEMENT dated as of July 20, 1995 between BANKERS TRUST COMPANY
(the"Custodian") and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust, a Delaware business trust(the
"Trust").
WHEREAS, the Trust may be organized with one or more series of shares,each of
which shall represent an interest in a separate portfolio of Property as
defined in Section 1) (all such existing and additional series now or hereafter
listed on Exhibit A being hereafter referredto individually as a "Portfolio"
and collectively, as the"Portfolios"); and
WHEREAS, the Trust desires to appoint the Custodian as custodian on behalf of
the Portfolios under the terms and conditions set forth inthis Agreement, and
the Custodian has agreed to so act as custodian;
NOW, THEREFORE, in consideration of the mutual covenants andagreements herein
contained, the parties hereto agree as follows:
1. Employment of Custodian. (a) The Trust hereby employs theCustodian as
custodian of all assets of each Portfolio which aredelivered to and accepted
by the Custodian or any Subcustodian (asthat term is defined in Section 4)
(the "Property") pursuant to theterms and conditions set forth herein, and the
Custodian accepts suchemployment. Without limitation, such Property may
include stocks andother equity interests of every type, evidences of
indebtedness, otherinstruments representing same or rights or obligations to
receive,purchase, deliver or sell same and other non-cash investment
propertyof a Portfolio which is acceptable for deposit ("Securities") and
cashfrom any source and in any currency ("Cash"). The Custodian shall notbe
responsible for any property of a Portfolio held or received by theTrust or
others and not delivered to the Custodian or anySubcustodian.
(b) Custodian agrees that each Portfolio shall be regarded for allpurposes
hereunder as a separate party to this Agreement apart anddistinguished from
any other Portfolio and that with respect to everytransaction covered by this
Agreement every reference to the Trust shallbe deemed to relate solely to the
Portfolio or Portfolios. Under nocircumstances shall the rights, obligations
or remedies with respect to aparticular Portfolio constitute a right,
obligation or remedy applicableto any other Portfolio. The use of this
Agreement to set forth theseparate agreements between the Custodian and each
Portfolio in connectionwith the employment of the Custodian as set forth
hereunder is understoodby the Custodian to be for clerical convenience only
and shall not constitute any basis for joining several Portfolios for any
reason.
2. Maintenance of Securities and Cash at Custodian and
Subcustodian Locations. The Trust, on behalf of a Portfolio, by Instructions
(asthat term is defined in Section 12), shall direct the Custodian to
(a)settle Securities transactions and maintain cash in the country orother
jurisdiction in which the principal trading market for suchSecurities is
located, either where such Securities are to bepresented for payment or where
such Securities are acquired, and (b)maintain cash and cash equivalents in
such countries in amountsreasonably necessary to effect the Portfolio's
transactions in suchSecurities, provided that the limitation in (b) above
shall not applyto cash and cash equivalents maintained in the United
States.Instructions to settle Securities transactions in any country shall
bedeemed to authorize the holding of such Securities and Cash in thatcountry.
3. Custody Account. The Custodian agrees to establish and maintain one or
more custody accounts on its books for each Portfolio (all accountsrelating to
a single Portfolio hereinafter referred to as, an "Account")for any and all
Property from time to time received and accepted by theCustodian or any
Subcustodian (as defined in Section 4) on behalf of a Portfolio. The Custodian
shall allocate such Property to the Accounts inaccordance with such
Instructions (as defined in Section 12); providedthat the Custodian shall have
the right, in its sole discretion, to refuse to accept any Property that is not
in proper form for deposit for anyreason or with respect to which Instructions
have not been received.Subject to Section 1(b) above, the Trust, on behalf of
each Portfolio,acknowledges its responsibility as a principal for all of its
obligationsto the Custodian arising under or in connection with this
Agreement,warrants its authority to deposit in the appropriate Account any
Property received therefor by the Custodian or a Subcustodian and to give,
andauthorize others to give, instructions relative thereto. The Custodian may
deliver securities of the same class in place of those deposited in the
Account.
The Custodian shall hold, keep safe and protect as custodian for
eachPortfolio, all Property in such Accounts. All transactions,including, but
not limited to, foreign exchange transactions,involving the Property shall be
executed or settled solely inaccordance with Instructions, except that, until
the Custodianreceives Instructions to the contrary, the Custodian will:
(a) collect all interest and dividends and all other income andpayments,
whether paid in cash or in kind, on the Property, as thesame become payable
and thereafter promptly credit the same to theappropriate Account;
(b) present for payment all Securities held in an Account which arecalled,
redeemed or retired or otherwise become payable and allcoupons and other
income items which call for payment uponpresentation to the extent that the
Custodian or Subcustodian isactually aware of such opportunities and hold the
cash received insuch Account pursuant to this Agreement;
(c) (i) exchange Securities where the exchange is purely
ministerial(including, without limitation, the exchange of temporary
securities forthose in definitive form and the exchange of warrants, or other
documentsof entitlement to securities, for the Securities themselves) and (ii)
whennotification of a tender or exchange offer (other than
ministerialexchanges described in (i) above) is received for an Account,
endeavor toreceive Instructions, provided that if such Instructions are not
receivedin time for the Custodian to take timely action, no action shall be
takenwith respect thereto;
(d) whenever notification of a rights entitlement or a fractionalinterest
resulting from a rights issue, stock dividend or stock splitis received for an
Account and such rights entitlement or fractionalinterest bears an expiration
date, if after endeavoring to obtainInstructions such Instructions are not
received in time for theCustodian to take timely action or if actual notice of
such actionswas received too late to seek Instructions, sell in the discretion
ofthe Custodian (which sale is hereby authorized) such rightsentitlement or
fractional interest and credit the Account with the netproceeds of such sale;
(e) execute, whenever the Custodian deems it appropriate, suchownership and
other certificates as may be required to obtain thepayment of income from the
Property in such Account;
(f) in connection with Property held outside the United States, pay foreach
Account any and all taxes and levies in the nature of taxes imposedon
interest, dividends or other similar income on the Property in suchAccount by
any governmental authority. In the event there is insufficientCash available
in such Account to pay such taxes and levies, the Custodianshall notify the
Trust of the amount of the shortfall and the Trust, atits option, may deposit
additional Cash in such Account or take steps tomake sufficient Cash available
to the Custodian for such payment. TheTrust agrees, when and if requested by
the Custodian and required inconnection with the payment of any such taxes and
levies, to cooperatewith the Custodian in furnishing information, executing
documents orotherwise; and
(g) appoint brokers and agents for any of the ministerial
transactionsinvolving the Securities described in (a) - (f) above, including,
withoutlimitation, affiliates of the Custodian or any Subcustodian.
4. Subcustodians and Securities Systems.
(a) Domestic Custody. The Custodian is authorized to hold theProperty in
custody accounts which have been established by theCustodian with (i) one or
more of the Custodian's U.S. branches oranother U.S. bank or trust company or
branch thereof located in theU.S., provided that each such bank, branch bank,
or trust company isitself qualified under the Investment Company Act of 1940,
as amended("1940 Act"), to act as custodian (individually, a "U.S.Subcustodian")
, or (ii) a U.S. securities depository or clearingagency or system in which
the Custodian or a U.S. Subcustodianparticipates (individually, a "U.S.
Securities System"). In each casein which a U.S. Subcustodian or U.S.
Securities System is employed,each such U.S. Subcustodian or U.S. Securities
System shall have beenapproved by Instructions.
(b) Foreign Custody. The Custodian is further authorized to holdProperty in
custody accounts which have been established by theCustodian with (i) one or
more of the Custodian's non-U.S. branches ormajority-owned non-U.S.
subsidiaries, a non-U.S. branch ormajority-owned subsidiary of a U.S. bank or
a non-U.S. bank or trustcompany, acting as custodian (individually, a
"non-U.S. Subcustodian";U.S. Subcustodians and non-U.S. Subcustodians,
collectively,"Subcustodians"), or a non-U.S. depository or clearing agency
orsystem in which the Custodian or any Subcustodian participates(individually,
a "non-U.S. Securities System"; U.S. Securities Systemand non-U.S. Securities
System, collectively, "Securities System").
In each case in which a non-U.S. Subcustodian or non-U.S. SecuritiesSystem is
employed (a) such non-U.S. Subcustodian or non-U.S.Securities System either is
(i) a "qualified U.S. bank" as defined byRule 17f-5 under the 1940 Act ("Rule
17f-5"); (ii) an "eligibleforeign custodian" within the meaning of Rule 17f-5
or (iii) thesubject of an order granted by the U.S. Securities and
ExchangeCommission ("SEC") exempting such non-U.S. Subcustodian or
non-U.S.Securities System or the subcustody arrangements thereto from all
orpart of the provisions of Rule 17f-5. In addition, Property shall notbe
held in any non-U.S. Subcustodian unless the agreement between theCustodian
and such non-U.S. Subcustodian has been approved byInstructions, nor shall
Property be held in any non-U.S. SecuritiesSystem unless the use of such
non-U.S. Securities System is approvedby Instructions.
Upon request of the Trust, the Custodian shall deliver to theTrust annually
(i) a certificate stating: (x) the identity ofeach non-U.S. Subcustodian and
non-U.S. Securities System thenacting on behalf of the Custodian and the name
and address of thegovernmental agency or other regulatory authority that
supervisesor regulates such non-U.S Subcustodian and non-U.S.
SecuritiesSystem, and (y) the countries in which each non-U.S. Subcustodianor
non-U.S. Securities System is located; and (ii) such otherinformation relating
to such non-U.S. Subcustodians and non-U.S.Securities Systems as may
reasonably be requested by the Trust toensure compliance with Rule 17f-5. So
long as Rule 17f-5 requiresthe Trust's Board of Trustees to directly approve
its foreigncustody arrangements, the Custodian shall furnish annually to
theTrust information concerning such non-U.S. Subcustodians andnon-U.S.
Securities Systems similar in kind and scope as thatfurnished to the Trust in
connection with the initial approval ofthis Agreement. Custodian agrees to
promptly notify the Trust if,in the normal course of its custodial activities,
the Custodianhas reason to believe that any non-U.S. Subcustodian or
non-U.S.Securities System has ceased to be a qualified U.S. bank or aneligible
foreign custodian each within the meaning of Rule 17f-5or has ceased to be
exempt from some or all of the requirements ofSection 17f-5 pursuant to an
order of the SEC.
(c) General. The Custodian shall have no liability or responsibility
fordetermining whether the approval of any Subcustodian or Securities
Systemhas been proper under the 1940 Act or any rule or regulation
thereunder.
Upon receipt of Instructions, the Custodian agrees to cease theemployment of
any Subcustodian or Securities System with respectto a Portfolio, and if
desirable and practicable, appoint areplacement subcustodian or securities
system in accordance withthe provisions of this Section. In addition, the
Custodian may,at any time in its discretion, upon written notification to
theTrust, terminate the employment of any Subcustodian or SecuritiesSystem.
5. Use of Subcustodian. With respect to Property maintained by theCustodian
in the custody of a Subcustodian employed pursuant toSection 4:
(a) The Custodian will identify on its books as belonging to theTrust, on
behalf of a Portfolio, any Property held by suchSubcustodian.
(b) Any Property in the Account held by a Subcustodian will be subjectonly to
the instructions of the Custodian or its agents.
(c) Property deposited with a Subcustodian will be maintained in anaccount
holding only assets for customers of the Custodian.
(d) Any agreement the Custodian shall enter into with a non-U.S.Subcustodian
with respect to the holding of Property shall require that(i) the Account will
be adequately indemnified or its losses adequatelyinsured; (ii) the Securities
will not be subject to any right, charge,security interest, lien or claim of
any kind in favor of such Subcustodianor its creditors except a claim for
payment in accordance with suchagreement for their safe custody or
administration and expenses relatedthereto, (iii) beneficial ownership of such
Securities will be freelytransferable without the payment of money or value
other than for safecustody or administration and expenses related thereto,
(iv) adequaterecords will be maintained identifying the Property held pursuant
to suchAgreement as belonging to the Custodian, on behalf of its customers
and(v) to the extent permitted by applicable law, officers of or
auditorsemployed by, or other representatives of or designated by, the
Custodian,including the independent public accountants of or designated by,
theTrust will be given access to the books and records of such
Subcustodianrelating to its actions under its agreement pertaining to any
Propertyheld by it thereunder or confirmation of or pertinent
informationcontained in such books and records be furnished to such
personsdesignated by the Custodian.
6. Use of Securities System. With respect to Property in theAccount(s) which
are maintained by the Custodian or any Subcustodianin the custody of a
Securities System employed pursuant to Section 4:
(a) The Custodian shall, and the Subcustodian will be required by itsagreement
with the Custodian to, identify on its books such Propertyas being held for
the account of the Custodian or Subcustodian for itscustomers.
(b) Any Property held in a Securities System for the account of theCustodian
or a Subcustodian will be subject only to the instructionsof the Custodian or
such Subcustodian, as the case may be.
(c) Property deposited with a Securities System will be maintained in
anaccount holding only assets for customers of the Custodian orSubcustodian,
as the case may be, unless precluded by applicable law,rule, or regulation.
(d) The Custodian shall provide the Trust with any report obtained bythe
Custodian on the Securities System's accounting system, internalaccounting
control and procedures for safeguarding securitiesdeposited in the Securities
System.
7. Records, Ownership of Property, Statements, Opinions ofIndependent
Certified Public Accountants.
(a) The ownership of the Property whether Securities, Cash and/orother
property, and whether held by the Custodian or a Subcustodian ▇▇▇▇ a
Securities System as authorized herein, shall be clearly recordedon the
Custodian's books as belonging to the appropriate Account andnot for the
Custodian's own interest. The Custodian shall keepaccurate and detailed
accounts of all investments, receipts,disbursements and other transactions for
each Account. All accounts,books and records of the Custodian relating
thereto shall be open toinspection and audit at all reasonable times during
normal businesshours by any person designated by the Trust. All such accounts
shallbe maintained and preserved in the form reasonably requested by
theTrust. The Custodian will supply to the Trust from time to time,
asmutually agreed upon, a statement in respect to any Property in anAccount
held by the Custodian or by a Subcustodian. In the absence ofthe filing in
writing with the Custodian by the Trust of exceptions orobjections to any such
statement within sixty (60) days of the mailingthereof, the Trust, on behalf
of the applicable Portfolio, shall bedeemed to have approved such statement
and in such case or uponwritten approval of the Trust of any such statement,
such statementshall be presumed to be for all purposes correct with respect to
allinformation set forth therein.
(b) The Custodian shall take all reasonable action as the Trust mayrequest to
obtain from year to year favorable opinions from the Trust'sindependent
certified public accountants with respect to the Custodian'sactivities
hereunder in connection with the preparation of the Trust'sForm N-1A and the
Trust's Form N-SAR or other periodic reports to the SECand with respect to any
other requirements of the SEC.
(c) At the request of the Trust, the Custodian shall deliver to theTrust a
written report prepared by the Custodian's independentcertified public
accountants with respect to the services provided bythe Custodian under this
Agreement, including, without limitation, theCustodian's accounting system,
internal accounting control andprocedures for safeguarding Cash and
Securities, including Cash andSecurities deposited and/or maintained in a
Securities System or witha Subcustodian. Such report shall be of sufficient
scope and insufficient detail as may reasonably be required by the Trust and
asmay reasonably be obtained by the Custodian.
(d) The Trust, on behalf of the Portfolios, may elect to participatein any of
the electronic on-line service and communications systemsoffered by the
Custodian which can provide the Trust, on a dailybasis, with the ability to
view on-line or to print on hard copyvarious reports of Account activity and
of Securities and/or Cashbeing held in any Account. To the extent that such
service shallinclude market values of Securities in an Account, the Trust,
onbehalf of the Portfolios, hereby acknowledges that the Custodian nowobtains
and may in the future obtain information on such values fromoutside sources
that the Custodian considers to be reliable and theTrust, on behalf of the
Portfolios, agrees that the Custodian (i) doesnot verify nor represent or
warrant either the reliability of suchservice nor the accuracy or completeness
of any such informationfurnished or obtained by or through such service and
(ii) shall bewithout liability in selecting and utilizing such service
orfurnishing any information derived therefrom.
8. Holding of Securities, Nominees, etc. Securities in an Account whichare
held by the Custodian or any Subcustodian may be held by such entityin the
name of the Trust, on behalf of a Portfolio, in the Custodian's
orSubcustodian's name, in the name of the Custodian's or
Subcustodian'snominee, or in bearer form. Securities that are held by a
Subcustodian orwhich are eligible for deposit in a Securities System as
provided abovemay be maintained with the Subcustodian or the Securities System
in anaccount for the Custodian's or Subcustodian's customers, unless
prohibitedby law, rule, or regulation. The Custodian or Subcustodian, as the
casemay be, may combine certificates representing Securities held in anAccount
with certificates of the same issue held by it as fiduciary or asa custodian.
In the event that any Securities in the name of theCustodian or its nominee or
held by a Subcustodian and registered in thename of such Subcustodian or its
nominee are called for partial redemptionby the issuer of such Security, the
Custodian may, subject to the rules orregulations pertaining to allocation of
any securities depository in whichsuch Securities have been deposited, allot,
or cause to be allotted, thecalled portion of the respective beneficial
holders of such class ofsecurity in any manner the Custodian deems to be fair
and equitable.
9. Proxies, etc. With respect to any proxies, notices, reports orother
communications relative to any of the Securities in any Account,the Custodian
shall perform only such services relative thereto as are(i) set forth in
Section 3 of this Agreement, (ii) described inExhibit B attached hereto (as
such service therein described may be in
effect from time to time) (the "Proxy Service") and (iii) as mayotherwise be
agreed upon between the Custodian and the Trust, onbehalf of the Portfolios.
The liability and responsibility of theCustodian in connection with the Proxy
Service referred to in (ii) ofthe immediately preceding sentence and in
connection with anyadditional services which the Custodian and the Trust, on
behalf ofthe Portfolios, may agree upon as provided in (iii) of the
immediatelypreceding sentence shall be as set forth in the description of
theProxy Service and as may be agreed upon by the Custodian and theTrust, on
behalf of the Portfolios, in connection with the furnishingof any such
additional service and shall not be affected by any otherterm of this
Agreement. Neither the Custodian nor its nominees oragents shall vote upon or
in respect of any of the Securities in anAccount, execute any form of proxy to
vote thereon, or give anyconsent or take any action (except as provided in
Section 3) withrespect thereto except upon the receipt of Instructions
relativethereto.
10. Segregated Account. Upon receipt of Instructions, the Custodianshall
establish and maintain a segregated account or accounts for andon behalf of a
Portfolio, into which account or accounts may betransferred Cash and/or
Securities, including Securities maintained inan account by the Custodian in a
Securities System (i) in accordancewith the provisions of any agreement among
the Trust, on behalf of aPortfolio, the Custodian and a broker-dealer
registered under theSecurities Exchange Act of 1934 and a member of the
NationalAssociation of Securities Dealers, Inc. (or any futures
commissionmerchant registered under the Commodity Exchange Act), relating
tocompliance with the rules of The Options Clearing Corporation and ofany
registered national securities exchange (or the Commodity FuturesTrading
commission or any registered contract market), or of anysimilar organization
or organizations, regarding escrow or otherarrangements in connection with
transactions by the Trust, (ii) forthe purposes of segregating Cash or
Government Securities inconnection with options purchased, sold or written by
the Trust, on behalf of a Portfolio or commodity futures contracts or options
thereonpurchased or sold by the Trust, (iii) for the purposes of compliance by
aPortfolio with Investment Company Act Release No. 10666, or any
subsequentrelease or releases of the SEC relating to the maintenance of
segregatedaccounts by registered investment companies, and (iv) for other
propercorporate purposes.
11. Settlement Procedures. Securities will be transferred, exchangedor
delivered by the Custodian or a Subcustodian upon receipt by theCustodian of
Instructions which include all information required bythe Custodian.
Settlement and payment for Securities received for anAccount and delivery of
Securities out of such Account may be effectedin accordance with the customary
or established securities trading orsecurities processing practices and
procedures in the jurisdiction ormarket in which the transaction occurs,
including, without limitation,delivering Securities to the purchaser thereof
or to a dealer therefor(or an agent for such purchaser or dealer) against a
receipt with theexpectation of receiving later payment for such Securities
from suchpurchaser or dealer, as such practices and procedures may be
modifiedor supplemented in accordance with the standard operating proceduresof
the Custodian in effect from time to time for that jurisdiction ormarket. The
Custodian shall not be liable for any loss which resultsfrom effecting
transactions in accordance with the customary orestablished securities trading
or securities processing practices andprocedures in the applicable
jurisdiction or market.
Notwithstanding that the Custodian may settle purchases and salesagainst, or
credit income to, an Account, on a contractual basis, asoutlined in the
Investment Manager User Guide provided to the Trust bythe Custodian, the
Custodian may, at its sole option, reverse suchcredits or debits to the
appropriate Account in the event that thetransaction does not settle, or the
income is not received in a timelymanner, and the Trust agrees to hold the
Custodian harmless from anylosses which may result therefrom.
Except as otherwise may be agreed upon by the parties hereto, theCustodian
shall not be required to comply with Instructions to settle thepurchase of any
assets for an Account unless there is sufficient clearedand available funds in
such Account at the time or to settle thetransactions, provided further that
if the transaction is for the sale ofany Securities in such Account, unless
such Securities are in deliverableform. Notwithstanding the foregoing, if the
purchase price of suchSecurities exceeds the amount of Cash in an Account at
the time ofsettlement of such purchase, the Custodian may, in its sole
discretion,but in no way shall have any obligation to, permit an overdraft in
suchAccount in the amount of the difference solely for the purpose
offacilitating the settlement of such purchase of Securities for
promptdelivery for such Account. The Trust, on behalf of each Portfolio,
agreesto immediately repay the amount of any such overdraft in the
ordinarycourse of business and further agrees to indemnify and hold the
Custodianharmless from and against any and all losses, costs, including,
withoutlimitation the cost of funds, and expenses incurred in connection
withsuch overdraft. The Trust agrees that it will not use the Account
tofacilitate the purchase or sale of securities without sufficient funds inthe
Account (which funds shall not include the proceeds of the sale of
thepurchased securities).
12. Instructions. The Trust shall deliver to the Custodian a list ofpersons
authorized to give particular classes of Instructions,together with their
signatures and their office addresses. The term"Instructions" means
instructions in respect of any of the Custodian'sduties hereunder which have
been received by the Custodian (i) inwriting (including, without limitation,
facsimile transmission) or bytested telex, in each case from persons
reasonably believed by theCustodian to be authorized to give such
instructions, or (ii)transmitted electronically through an electronic on-line
service andcommunications system offered by the Custodian or other
electronicinstruction system acceptable to the Custodian, or (iii) by
atelephonic or oral communication in each case from persons reasonablybelieved
by the Custodian to be authorized to give such instructions;or (iv) upon
receipt of such other form of instructions as the Trustmay from time to time
authorize in writing and which the Custodian hasagreed in writing to accept.
Instructions in the form of oralcommunications shall be confirmed by the Trust
by tested telex orwriting in the manner set forth in clause (i) above, but the
lack of
such confirmation shall in no way affect any action taken by the Custodianin
reliance upon such oral instructions prior to the Custodian's receiptof such
confirmation. Instructions may relate to specific transactions orto types or
classes of transactions, and may be in the form of standinginstructions.
Instructions shall specifically identify the Account to which theInstructions
relate. Instructions shall be delivered to the Custodianat the address and in
the manner set forth in the User Guide providedto the Trust, as amended from
time to time.
The Custodian shall have the right to assume in the absence of noticeto the
contrary from the Trust that any person whose name is on filewith the
Custodian pursuant to this Section 12 has been authorized bythe Trust to give
the Instructions in question and that suchauthorization has not been revoked.
The Custodian may act upon andconclusively rely on, without any liability to
the Trust or any otherperson or entity for any losses resulting therefrom, any
Instructionsreasonably believed by it to be furnished by the proper person
orpersons as provided above.
13. Standard of Care. The Custodian shall be responsible for theperformance
of only such duties as are set forth herein or containedin Instructions given
to the Custodian which are not the contrary tothe provisions of this
Agreement. The Custodian will use reasonablecare with respect to the
safekeeping of Property in each Account and,except as otherwise expressly
provided herein, in carrying out itsobligations under this Agreement. So long
as and to the extent thatit has exercised reasonable care, the Custodian shall
not beresponsible for the title, validity or genuineness of any Property
orother property or evidence of title thereto received by it ordelivered by it
pursuant to this Agreement and shall be held harmlessin acting upon, and may
conclusively rely on, without liability forany loss resulting therefrom, any
notice, request, consent,certificate or other instrument reasonably believed
by it to begenuine and to be signed or furnished by the proper party or
parties,including, without limitation, Instructions, and shall be indemnified
by the applicable Portfolio of the Trust for any losses, damages, costsand
expenses (including, without limitation, the fees and expenses ofcounsel)
incurred by the Custodian and arising out of action taken oromitted with
reasonable care by the Custodian hereunder or under anyInstructions. The
Custodian shall be liable to the applicable Portfolioof the Trust for any act
or omission to act of any Subcustodian to thesame extent as if the Custodian
committed such act itself. With respectto a Securities System, the Custodian
shall only be responsible or liablefor losses arising from employment of such
Securities System caused by theCustodian's own failure to exercise reasonable
care. In the event of anyloss to a Portfolio of the Trust by reason of the
failure of the Custodianor a Subcustodian to utilize reasonable care, the
Custodian shall beliable to the applicable Portfolio to the extent of the
Portfolio's actualdamages at the time such loss was discovered without
reference to anyspecial conditions or circumstances. In no event shall the
Custodian beliable for any consequential or special damages. The Custodian
shall beentitled to rely, and may act, on advice of counsel (who may be
counselfor the Trust) on all matters and shall be without liability for
anyaction reasonably taken or omitted pursuant to such advice.
In the event the Trust, on behalf of the Portfolios, subscribes to
anelectronic on-line service and communications system offered by
theCustodian, the Trust shall be fully responsible for the security ofthe
Trust's connecting terminal, access thereto and the proper andauthorized use
thereof and the initiation and application ofcontinuing effective safeguards
with respect thereto and the Trust, onbehalf of each Portfolio, agrees to
defend and indemnify the Custodianand hold the Custodian harmless from and
against any and all losses,damages, costs and expenses (including the fees and
expenses ofcounsel) incurred by the Custodian as a result of any improper
orunauthorized use of such terminal by the Trust or by any others.
All collections of funds or other property paid or distributed in respectof
Securities in an Account, including funds involved in third-partyforeign
exchange transactions, shall be made at the risk of the applicablePortfolio of
the Trust.
Subject to the exercise of reasonable care, the Custodian shall haveno
liability for any loss occasioned by delay in the actual receipt ofnotice by
the Custodian or by a Subcustodian of any payment,redemption or other
transaction regarding Securities in each Accountin respect of which the
Custodian has agreed to take action asprovided in Section 3 hereof. The
Custodian shall not be liable forany loss resulting from, or caused by, or
resulting from acts ofgovernmental authorities (whether de jure or de facto),
including,without limitation, nationalization, expropriation, and the
impositionof currency restrictions; devaluations of or fluctuations in the
valueof currencies; changes in laws and regulations applicable to thebanking
or securities industry; market conditions that prevent theorderly execution of
securities transactions or affect the value ofProperty; acts of war,
terrorism, insurrection or revolution; strikesor work stoppages; the inability
of a local clearing and settlementsystem to settle transactions for reasons
beyond the control of theCustodian; hurricane, cyclone, earthquake, volcanic
eruption, nuclearfusion, fission or radioactivity, or other acts of God.
The Custodian shall have no liability in respect of any loss, damageor expense
suffered by the Trust or any Portfolio, insofar as suchloss, damage or expense
arises from the performance of the Custodian'sduties hereunder by reason of
the Custodian's reliance upon recordsthat were maintained for the Trust or any
Portfolio by entities otherthan the Custodian prior to the Custodian's
employment under thisAgreement.
Except as otherwise provided in this Agreement, the Custodian agreesto
indemnify and hold harmless each Portfolio against and from anyloss, damage
and expense suffered or incurred by such Portfolio andarising from (i) the bad
faith, reckless disregard of duties, willfulmisfeasance, or gross negligence
of the Custodian or any Subcustodian;and (ii) any breach of this Agreement by
the Custodian.
The provisions of this Section 13 shall survive termination of thisAgreement.
14. Investment Limitations and Legal or Contractual Restrictions
orRegulations. Provided that the Custodian acts in accordance
withInstructions, the Custodian shall not be liable to the Trust or
anyPortfolio and the Trust, on behalf of each Portfolio, agrees toindemnify
the Custodian and its nominees, for any loss, damage orexpense suffered or
incurred by the Custodian or its nominees arisingout of any violation of any
investment restriction or otherrestriction or limitation applicable to the
Trust or any Portfoliopursuant to any contract or any law or regulation. The
provisions ofthis Section 14 shall survive termination of this Agreement.
15. Fees and Expenses. The Trust, on behalf of each Portfolio, agreesto pay
to the Custodian such compensation for its services pursuant tothis Agreement,
including if elected by the Trust fees for anelectronic on-line service and
communications system offered by theCustodian, as may be mutually agreed upon
in writing from time to timeand the Custodian's reasonable out-of-pocket or
incidental expenses inconnection with the performance of this Agreement,
including (butwithout limitation) legal fees as described herein and/or
deemednecessary in the judgment of the Custodian to keep safe or protect
theProperty in the Account. The initial fee schedule is attached heretoas
Exhibit C.
The Trust, on behalf of each Portfolio, hereby agrees to hold theCustodian
harmless from any liability or loss resulting from any taxesor other
governmental charges, and any expense related thereto, whichmay be imposed, or
assessed with respect to any Property in an Accountand also agrees to hold the
Custodian, its Subcustodians, and theirrespective nominees harmless from any
liability as a record holder ofProperty in such Account. The Custodian is
authorized to charge theapplicable Account for such items and the Custodian
shall have a ▇▇▇▇▇▇ the Property in the applicable Account for any amount
payable tothe Custodian under this Section 15, Section 1, and the last
paragraphof Section 11. The provisions of this Section shall survive
thetermination of this Agreement.
16. Tax Reclaims. With respect to withholding taxes deducted and whichmay be
deducted from any income received from any Property in an Account,the
Custodian shall perform such services with respect thereto as aredescribed in
Exhibit D attached hereto and shall in connection therewithbe subject to the
standard of care set forth in such Exhibit D. Suchstandard of care shall not
be affected by any other term of thisAgreement.
17. Amendment, Modifications, etc. No provision of this Agreement maybe
amended, modified or waived except in a writing signed by theparties hereto.
No waiver of any provision hereto shall be deemed acontinuing waiver unless it
is so designated. No failure or delay onthe part of either party in
exercising any power or right under thisAgreement operates as a waiver, nor
does any single or partialexercise of any power or right preclude any other or
further exercisethereof or the exercise of any other power or right.
18. Termination.
(a) Termination of Entire Agreement. This Agreement may beterminated by the
Trust or the Custodian by ninety (90) days' writtennotice to the other;
provided that notice by the Trust shall specifythe names of the persons to
whom the Custodian shall deliver theSecurities in each Account and to whom the
Cash in such Account shallbe paid. If notice of termination is given by the
Custodian, theTrust shall, within ninety (90) days following the giving of
suchnotice, deliver to the Custodian a written notice specifying the namesof
the persons to whom the Custodian shall deliver the Property ineach Account.
The Custodian will deliver such Property to the personsso specified, after
deducting therefrom any amounts which theCustodian determines to be owed to it
under Sections 1, the lastparagraph of Section 11, and 15. In addition, upon
written notice tothe Trust, the Custodian may in its discretion withhold from
deliverysuch Property as may be necessary to settle transactions pending atthe
time of such delivery. If within ninety (90) days following thegiving of a
notice of termination by the Custodian, the Custodian doesnot receive from the
Trust a written notice specifying the names of
the persons to whom the Custodian shall deliver the Property in eachAccount,
the Custodian, at its election, may deliver such Property and paysuch Cash to
a bank or trust company doing business in the State of NewYork to be held and
disposed of pursuant to the provisions of thisAgreement, or may continue to
hold such Property until a written notice asaforesaid is delivered to the
Custodian, provided that the Custodian'sobligations shall be limited to
safekeeping.
(b) Termination as to One or More Portfolios. This Agreement may beterminated
by the Trust or the Custodian as to one or more Portfolios(but less than all
of the Portfolios) by delivery of an amendedExhibit A deleting such
Portfolios, in which case termination as tosuch deleted Portfolios shall take
effect ninety (90) days after thedate of the delivery of applicable Property,
or such earlier time asmutually agreed. The execution and delivery of an
amended Exhibit Awhich deletes one or more Portfolios shall constitute a
termination ofthis Agreement only with respect to such deleted Portfolios(s),
shallbe governed by the preceding provisions of Section 18 as to
theidentification of a successor custodian and the delivery of Propertyof the
Portfolios(s) so deleted to such successor custodian, and shallnot affect the
obligations of the Custodian and the Trust hereunderwith respect to the other
Portfolios set forth in Exhibit A, asamended from time to time.
19. Notices. Except as otherwise provided in this Agreement, allrequests,
demands or other communications between the parties ornotices in connection
herewith (a) shall be in writing, hand deliveredor sent by telex, telegram,
cable, facsimile or other means ofelectronic communication agreed upon by the
parties hereto addressed,if to the Trust, to:
The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trustc/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Co., Inc.575 E. Swedesford
RoadWayne, PA. 19087
with a copy to:
The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust
c/o ▇▇▇▇▇▇ ▇▇▇▇ Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
if to the Custodian, to:
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Bankers Trust Company
One Bankers Trust Plaza
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
or in either case to such other address as shall have been furnished tothe
receiving party pursuant to the provisions hereof and (b) shall bedeemed
effective when received, or, in the case of a telex, when sent tothe proper
number and acknowledged by a proper answerback.
20. Representations and Warranties.
(a) The Trust, on behalf of each Portfolio, hereby represents andwarrants to
the Custodian that:
(i) the employment of the Custodian and the allocation of fees,expenses and
other charges to any Account as herein provided, isnot prohibited by law or
any governing documents or contracts towhich the Trust is subject;
(ii) the terms of this Agreement do not violate any obligation bywhich the
Trust is bound, whether arising by contract, operationof law or otherwise;
(iii) this Agreement has been duly authorized by appropriateaction and when
executed and delivered will be binding upon theTrust and each Portfolio in
accordance with its terms; and
(iv) the Trust will deliver to the Custodian such evidence ofsuch
authorization as the Custodian may reasonably require,whether by way of a
certified resolution or otherwise.
(b) The Custodian hereby represents and warrants to the Trust that:
(i) the terms of this Agreement do not violate any obligation bywhich the
Custodian is bound, whether arising by contract,operation of law or otherwise;
(ii) this Agreement has been duly authorized by appropriateaction and when
executed and delivered will be binding upon theCustodian in accordance with
its terms;
(iii) the Custodian will deliver to the Trust such evidence ofsuch
authorization as the Trust may reasonably require, whether byway of a
certified resolution or otherwise; and
(iv) Custodian is qualified as a custodian under Section 26(a) ofthe 1940 Act
and warrants that it will remain so qualified or uponceasing to be so
qualified shall promptly notify the Trust inwriting.
21. Governing Law and Successors and Assigns. This Agreement shall begoverned
by the law of the State of New York and shall not beassignable by either
party, but shall bind the successors in interestof the Trust and the
Custodian.
22. Publicity. Trust, on behalf of each Portfolio, shall furnish toCustodian
at its office referred to in Section 19 above, prior to anydistribution
thereof, copies of any material prepared by any personother than the Custodian
for distribution to any persons who are notparties hereto that refer in any
way to the Custodian. Trust shallnot distribute or permit the distribution of
such materials ifCustodian reasonably objects in writing within ten (10)
business daysof receipt thereof (or such other time as may be mutually
agreed)after receipt thereof. Notwithstanding the foregoing,
priornotification shall not be required with respect to references to
theCustodian in the Trust's prospectus(es) or to account statementsrelating to
individual custody accounts maintained by Custodian, whichstatements are
forwarded by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Co. to its advisoryclients provided that the
form of any such reference was presented toCustodian in accordance with this
section and is used in subsequentprospectuses and/or account statements in a
substantially identicalform as that presented. The provisions of this Section
22 shallsurvive the termination of this Agreement.
23. Representative Capacity and Binding Obligation. Notice is herebygiven
that this Agreement is not executed on behalf of the Trustees ofthe Trust as
individuals, and the obligations of this Agreement arenot binding upon any of
the Trustees, officers or shareholders of theTrust individually but are
binding only upon the assets and propertyof the Portfolios.
The Custodian agrees that no shareholder, trustee or officer of theTrust may
be held personally liable or responsible for any obligationsof the Trust
arising out of this Agreement.
24. Submission to Jurisdiction. Any suit, action or proceedingarising out of
this Agreement may be instituted in any State orFederal court sitting in the
City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, and the Trust
irrevocably submits to thenon-exclusive jurisdiction of any such court in any
such suit, actionor proceeding and waives, to the fullest extent permitted by
law, anyobjection which it may now or hereafter have to the laying of venue
ofany such suit, action or proceeding brought in such a court and anyclaim
that such suit, action or proceeding was brought in aninconvenient forum.
25. Counterparts. This Agreement may be executed in any number
ofcounterparts, each of which shall be deemed an original. ThisAgreement
shall become effective when one or more counterparts havebeen signed and
delivered by each of the parties hereto.
26. Confidentiality. The parties hereto agree that each shall
treatconfidentially the terms and conditions of this Agreement and
allinformation provided by each party to the other regarding its businessand
operations. All confidential information provided by a partyhereto shall be
used by any other party hereto solely for the purposeof rendering services
pursuant to this Agreement and, except as may berequired in carrying out this
Agreement, shall not be disclosed to anythird party without the prior consent
of such providing party, whichconsent shall not be withheld unreasonably. The
foregoing shall notbe applicable to any information that is publicly available
whenprovided or thereafter becomes publicly available other than through
abreach of this Agreement, or that is required or requested to bedisclosed by
any bank or other regulatory examiner of the Custodian,Trust, or any
Subcustodian, any auditor of the parties hereto, byjudicial or administrative
process or otherwise by applicable law orregulation.
27. Severability. If any provision of this Agreement is determinedto be
invalid or unenforceable, such determination shall not affectthe validity or
enforceability of any other provision of thisAgreement.
28. Headings. The headings of the paragraphs hereof are included
forconvenience of reference only and do not form a part of thisAgreement.
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
By: _/s/_________________________Title: _______________________
BANKERS TRUST COMPANY
By: ___/s/_______________________Title: _______________________
EXHIBIT A
To Custodian Agreement dated as of July 20, 1995 between Bankers TrustCompany
and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust.
LIST OF PORTFOLIOS
The following is a list of Portfolios referred to in the first WHEREASclause
of the above-referred to Custodian Agreement. Terms usedherein as defined
terms unless otherwise defined shall have themeanings ascribed to them in the
above-referred to CustodianAgreement.
The Value Equity PortfolioThe Growth Equity Portfolio The Small Capitalization
PortfolioThe Internationalization Equity Portfolio The Limited Duration
Municipal Bond Portfolio
Dated as of: July 20, 1995 THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
By: _____/s/_____________________Title: _______________________
BANKERS TRUST COMPANY
By: ______/s/____________________Title: _______________________
EXHIBIT B
To Custodian Agreement dated as of July 20, 1995 between Bankers TrustCompany
and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust.
PROXY SERVICE
The following is a description of the Proxy Service referred to inSection 9 of
the above referred to Custodian Agreement. Terms usedherein as defined terms
unless otherwise defined shall have themeanings ascribed to them therein
unless otherwise defined below.
The Custodian provides a service, described below, for thetransmission of
corporate communications in connection withshareholder meetings relating to
Securities held in Argentina,Australia, Austria, Canada, Denmark, Finland,
France, Germany, Greece,Hong Kong, Indonesia, Ireland, Italy, Japan, Korea,
Malaysia, Mexico,Netherlands, New Zealand, Pakistan, Poland, Singapore, South
Africa,Spain, Sri Lanka, Sweden, United Kingdom, United States, andVenezuela.
For the United States and Canada, the term "corporatecommunications" means the
proxy statements or meeting agenda, proxycards, annual reports and any other
meeting materials received by theCustodian. For countries other than the
United States and Canada, the
term "corporate communications" means the meeting agenda only and doesnot
include any meeting circulars, proxy statements or any othercorporate
communications furnished by the issuer in connection withsuch meeting.
Non-meeting related corporate communications are notincluded in the
transmission service to be provided by the Custodianexcept upon request as
provided below.
The Custodian's process for transmitting and translating meetingagendas will
be as follows:
1) If the meeting agenda is not provided by the issuer in the
Englishlanguage, and if the language of such agenda is in the officiallanguage
of the country in which the related security is held, theCustodian will as
soon as practicable after receipt of the originalmeeting agenda by a
Subcustodian provide an English translationprepared by that Subcustodian.
2) If an English translation of the meeting agenda is furnished, thelocal
language agenda will not be furnished unless requested.
Translations will be free translations and neither the Custodian norany
Subcustodian will be liable or held responsible for the accuracythereof or any
direct or indirect consequences arising therefrom,including without limitation
arising out of any action taken oromitted to be taken based thereon.
If requested, the Custodian will, on a reasonable efforts basis,endeavor to
obtain any additional corporate communication such asannual or interim
reports, proxy statements, meeting circulars, orlocal language agendas, and
provide them in the form obtained.
Timing in the voting process is important and, in that regard, uponreceipt by
the Custodian of notice from a Subcustodian, the Custodianwill provide a
notice to the Trust indicating the deadline for receiptof its instructions to
enable the voting process to take placeeffectively and efficiently. As voting
procedures will vary frommarket to market, attention to any required
procedures will be veryimportant. Upon timely receipt of voting instructions,
the Custodianwill promptly forward such instructions to the
applicableSubcustodian. If voting instructions are not timely received,
theCustodian shall have no liability or obligation to take any action.
For Securities held in markets other than those set forth in the
firstparagraph, the Custodian will not furnish the material described aboveor
seek voting instructions. However, if requested to exercise votingrights at a
specific meeting, the Custodian will endeavor to do so ona reasonable efforts
basis without any assurance that such rights willbe so exercised at such
meeting.
If the Custodian or any Subcustodian incurs extraordinary expenses
inexercising voting rights related to any Securities pursuant toappropriate
instructions or direction (e.g., by way of illustrationonly and not by way of
limitation, physical presence is required at ameeting and/or travel expenses
are incurred), such expenses will bereimbursed out of the Account containing
such Securities unless otherarrangements have been made for such
reimbursement.
It is the intent of the Custodian to expand the Proxy Service toinclude
jurisdictions which are not currently included as set forth inthe second
paragraph hereof. The Custodian will notify the Trust asto the inclusion of
additional countries or deletion of existingcountries after their inclusion or
deletion and this Exhibit B will bedeemed to be automatically amended to
include or delete such countriesas the case may be.
Dated as of: July 20, 1995
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
By: ____/s/______________________Title: _______________________
BANKERS TRUST COMPANY
By: ____/s/______________________Title: _______________________
EXHIBIT C
To Custodian Agreement dated as of ______________, 1995 between Bankers Trust
Company and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust.
CUSTODY FEE SCHEDULE
This Exhibit C shall be amended upon delivery by the Custodian of a newExhibit
C to the Trust and acceptance thereof by the Trust and shall beeffective as of
the date of acceptance by the Trust or a date agreed uponbetween the Custodian
and the Trust.
EXHIBIT D
To Custodian Agreement dated as of July 20, 1995 between Bankers TrustCompany
and The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Trust.
TAX RECLAIMS
Pursuant to Section 16 of the above referred to Custodian Agreement,the
Custodian shall perform the following services with respect towithholding
taxes imposed or which may be imposed on income fromProperty in any Account.
Terms used herein as defined terms shallunless otherwise defined have the
meanings ascribed to them in theabove referred to Custodian Agreement.
When withholding tax has been deducted with respect to income from anyProperty
in an Account, the Custodian will actively pursue on areasonable efforts basis
the reclaim process and will provide fullydetailed advices/vouchers to support
reclaims submitted to the localauthorities by the Custodian or its designee.
In all cases ofwithholding, the Custodian will provide full details to the
Trust. Ifexemption from withholding at the source can be obtained in
thefuture, the Custodian will notify the Trust and advise whatdocumentation,
if any, is required to obtain the exemption. Uponreceipt of such
documentation from the Trust, the Custodian will filefor exemption on the
Trust's behalf and notify the Trust when it hasbeen obtained.
In connection with providing the foregoing service, the Custodianshall be
entitled to apply categorical treatment of the Trustaccording to the Trust's
nationality, the particulars of itsorganization and other relevant details
that shall be supplied by theTrust. It shall be the duty of the Trust to
inform the Custodian ofany change in the organization, domicile or other
relevant factconcerning tax treatment of the Trust and further to inform
theCustodian if the Trust is or becomes the beneficiary of any specialruling
or treatment not applicable to the general nationality andcategory or entity
of which the Trust is a part under general laws andtreaty provisions. The
Custodian may rely on any such informationprovided by the Trust.
In connection with providing the foregoing service, the Custodian mayalso rely
on professional tax services published by a majorinternational accounting firm
and/or advice received from aSubcustodian in the jurisdictions in question.
In addition, theCustodian may seek the advice of counsel or other professional
taxadvisers in such jurisdictions. The Custodian is entitled to rely,and may
act, on information set forth in such services and on advicereceived from a
Subcustodian, counsel or other professional taxadvisers and shall be without
liability to the Trust for any actionreasonably taken or omitted pursuant to
information contained in suchservices or such advice.
Dated as of: July 20, 1995 THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ TRUST
______________________________
By: ___/s/_______________________
Title: _______________________
BANKERS TRUST COMPANY
By: ___/s/_______________________
Title: _______________________