CUSTODIAN CONTRACT
Between
HERITAGE SERIES TRUST
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
PAGE
1. Employment of Custodian and Property to be Held By It . . . . 1
2. Duties of the Custodian with Respect to Property of the Fund Held
by the Custodian . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Holding Securities . . . . . . . . . . . . . . . . . . 2
2.2 Delivery of Securities . . . . . . . . . . . . . . . . 2
2.3 Registration of Securities . . . . . . . . . . . . . . 4
2.4 Bank Accounts . . . . . . . . . . . . . . . . . . . . 5
2.5 Availability of Federal Funds . . . . . . . . . . . . 5
2.6 Collection of Income . . . . . . . . . . . . . . . . . 5
2.7 Payment of Fund Monies . . . . . . . . . . . . . . . . 6
2.8 Liability for Payment in Advance of
Receipt of Securities Purchased . . . . . . . . . . . 7
2.9 Appointment of Agents . . . . . . . . . . . . . . . . 7
2.10 Deposit of Fund Assets in Securities
System . . . . . . . . . . . . . . . . . . . . . . . . 8
2.10A Fund Assets Held in the Custodian's
Direct Paper System . . . . . . . . . . . . . . . . . 9
2.11 Segregated Account . . . . . . . . . . . . . . . . . . 10
2.12 Ownership Certificates for Tax Purposes . . . . . . . 11
2.13 Proxies . . . . . . . . . . . . . . . . . . . . . . . 11
2.14 Communications Relating to Fund
Portfolio Securities . . . . . . . . . . . . . . . . . 11
2.15 Proper Instructions . . . . . . . . . . . . . . . . . 11
2.16 Actions Permitted Without Express Authority . . . . . 12
2.17 Evidence of Authority . . . . . . . . . . . . . . . . 12
2.18 Mitigation by Custodian . . . . . . . . . . . . . . . 13
2.19 Notice of Litigation . . . . . . . . . . . . . . . . . 13
3. Powers and Duties of the Custodian with Respect to the
Appointment of Subcustodians . . . . . . . . . . . . . . . . . 14
4. Payments for Sales or Repurchases and Redemptions of Shares of
the Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5. Duties of Custodian With Respect to the Books of Account and
Calculation of Net Asset Value and Net Income . . . . . . . . 16
6. Records . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
7. Opinion of Fund's Independent Accountant . . . . . . . . . . . 17
8. Reports to Fund by Independent Public Accountants . . . . . . 17
9. Compensation of Custodian . . . . . . . . . . . . . . . . . . 17
10. Responsibility of Custodian . . . . . . . . . . . . . . . . . 17
11. Custodian Advances . . . . . . . . . . . . . . . . . . . . . . 18
12. Security for Obligations to Custodian . . . . . . . . . . . . 19
13. Effective Period, Termination and Amendment . . . . . . . . . 19
14. Successor Custodian . . . . . . . . . . . . . . . . . . . . . 20
15. Interpretive and Additional Provisions . . . . . . . . . . . . 21
16. Massachusetts Law to Apply . . . . . . . . . . . . . . . . . . 22
17. Prior Contracts . . . . . . . . . . . . . . . . . . . . . . . 22
18. Shareholder Communications Election . . . . . . . . . . . . . 22
19. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . 22
20. Severability . . . . . . . . . . . . . . . . . . . . . . . . . 23
21. Limitation of Liability . . . . . . . . . . . . . . . . . . . 23
22. Additional Funds . . . . . . . . . . . . . . . . . . . . . . . 23
CUSTODIAN CONTRACT
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This Contract between Heritage Series Trust, a business trust
organized and existing under the laws of the Commonwealth of
Massachusetts, having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ hereinafter called the "Fund", and
State Street Bank and Trust Company, a Massachusetts trust company, having
its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, hereinafter called the "Custodian",
WHEREAS, the Fund is authorized to issue shares in separate
series, with each such series representing interests in a separate
portfolio of securities and other assets; and
WHEREAS, the Fund intends to initially offer shares in one
series, the Small Capitalization Stock Fund (such series, together with
all other series subsequently established by the Fund and made subject to
this Contract in accordance with paragraph 22, being herein referred to as
the "Portfolio(s)");
NOW THEREFORE, in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as follows:
1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT
The Fund hereby employs the Custodian as the custodian of the
assets of the Portfolios of the Fund pursuant to the provisions
of the Declaration of Trust. The Fund agrees to deliver to the
Custodian all securities, cash and other property owned by the
Portfolios, and all payments of income, payments of principal or
capital distributions received by it with respect to all
securities owned by the Portfolios from time to time, and the
cash consideration received by the Portfolios for such new or
treasury shares of beneficial interest ("Shares") of the Fund
representing interests in the Portfolios 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 the Fund on behalf
of any Portfolio and not delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of
Section 2.15), the Custodian shall on behalf of the applicable
Portfolios from time to time employ one or more sub-custodians in
accordance with the provisions of Article 3 hereof.
2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE FUND HELD
BY THE CUSTODIAN
2.1 Holding Securities. The Custodian shall hold and physically
segregate for the account of each Portfolio all non-cash
property, including all 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 State Street Bank
and Trust Company 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 Delivery of Securities. The Custodian shall promptly release and
deliver securities owned by a 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, which
may be continuing instructions when 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 Fund on behalf of 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 portfolio 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 3; 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 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;
10) For delivery in connection with any loans of securities
made by the Portfolio, but only against receipt of
adequate collateral as agreed upon in writing from time
to time by the Custodian and the Fund 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 among the Fund on behalf of the Portfolio, 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 escrow
or other arrangements in connection with transactions by
the Fund on behalf of the Portfolio;
13) For delivery in accordance with the provisions of any
agreement among the Fund on behalf of the Portfolio, 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 Fund on behalf of
the Portfolio; and
14) For any other proper corporate purpose, but only upon
receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board of Trustees
or of the Executive Committee signed by an officer of the
Fund and certified by the Secretary or an Assistant
Secretary, specifying the securities to be delivered,
setting 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. Securities held by the Custodian on
behalf of a Portfolio (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 Fund 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 3. All securities accepted by the Custodian
on behalf of a Portfolio under the terms of this Contract shall
be in "street name" or other good delivery form. If, however, the
Fund on behalf of a Portfolio 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 Portfolio 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 separate
bank account or accounts in the name of each Portfolio or a
nominee of the Custodian for the account of a Portfolio which
shall contain only property held by Custodian as Custodian for
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 the Custodian 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 17f-3 under
the Investment Company Act of 1940. Funds held by the Custodian
for a Portfolio may be deposited by the Custodian to the
Custodian's credit as Custodian in the Banking Department of the
Custodian or in such other banks or trust companies as the
Custodian 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
Fund. Such funds shall be deposited by the Custodian in its
capacity as Custodian and shall be withdrawable by the Custodian
only in that capacity. The accounts established with the
Custodian for the Portfolios shall be demand deposit accounts and
the Custodian's responsibilities with respect to such accounts
shall be the same as for any other demand deposit accounts
maintained at the Custodian. The authorization by the Fund under
Article 3 hereof to appoint a subcustodian as such shall
constitute a Proper Instruction to open a bank account subject to
the provisions of this paragraph with such subcustodian.
2.5 Availability of Federal Funds. Upon mutual agreement between the
Fund on behalf of a Portfolio and the Custodian, the Custodian
shall, upon the receipt of Proper Instructions, make federal
funds available to the Portfolio as of specified times agreed
upon from time to time by the Fund and the Custodian in the
amount of checks received in payment for Shares of the Portfolio
which are deposited into the Portfolio's account.
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 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 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 the Portfolio's
custodian account. Without limiting the generality of the
foregoing, the Custodian shall promptly 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 a Portfolio on
securities loaned pursuant to the provisions of Section 2.2 (10)
shall be the responsibility of the Portfolio. The Custodian will
have no duty or responsibility in connection therewith, other
than promptly to provide the Portfolio with such information or
data as may be necessary to assist the Portfolio in arranging for
the timely delivery to the Custodian of the income to which the
Portfolio is properly entitled.
2.7 Payment of Portfolio Monies. Upon receipt of Proper Instructions,
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 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 between the Fund on behalf of the Portfolio and the
Custodian, or another bank, or a broker-dealer which is a
member of 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 Portfolio
as defined in Section 2.15;
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 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 such expenses are to be in whole or part capitalized
or treated as deferred expenses;
4) For the payment of any dividends declared pursuant to the
governing documents of the Fund;
5) For payment of the amount of dividends received in
respect of securities sold short;
6) For any other proper purpose, but only upon receipt of,
in addition to Proper Instructions, a certified copy of a
resolution of the Board of Trustees or of the Executive
Committee of the Fund signed by an officer of the Fund
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 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 Portfolio to so pay in advance, the
Custodian shall be absolutely liable to the Portfolio for such
securities to the same extent as 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 pursuant to the
Investment Company Act of 1940, as amended, and its rules or
regulations, 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 by the Custodian (as distinguished from a
subcustodian appointed pursuant to Section 3) shall not relieve
the Custodian of its responsibilities or liabilities hereunder.
In the event of any loss, damage or expense suffered or incurred
by a Portfolio caused by or resulting from the negligence or
willful misconduct of any agent appointed by the Custodian
pursuant to this paragraph 2.9, the Custodian shall promptly
reimburse the Portfolio in the amount of such loss, damage or
expense.
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:
1) The Custodian may deposit and/or maintain 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 Custodian and be provided to the
Portfolio at its request. The Custodian shall furnish 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 Portfolio copies of
daily transaction sheets reflecting each day's
transactions in the Securities System for the account of
the Portfolio on the next business day;
4) The Custodian shall provide the Portfolio with any report
obtained by the Custodian (or by any agent appointed by
the Custodian pursuant to Section 2.9 and furnished to
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 the initial or annual
certificate, as the case may be, required by Article 9
hereof;
6) At the request of the Fund on behalf of the Portfolio,
the Custodian will terminate the use of any such
Securities System on behalf of the Portfolio as promptly
as practicable; and
7) Anything to the contrary in this Contract
notwithstanding, the Custodian shall be liable to the
Portfolio for any loss, damage or expense to the
Portfolio 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 System; at the election of
the Fund on behalf of the Portfolio, 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, damage or expense if and to
the extent that the Portfolio has not been made whole for
any such loss, damage or expense. The Custodian agrees to
cooperate with the Fund in connection with the
enforcement of the Fund's subrogation rights.
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;
2) The Custodian may deposit and or maintain 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 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 Portfolio confirmation of
each transfer to or from the account of the 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 Portfolio copies of daily
transaction sheets reflecting each day's transaction in
the Securities System for the account of the Portfolio;
6) The Custodian and any agent appointed pursuant to
paragraph 2.9 shall provide the Portfolio with reports on
their respective systems of internal accounting control
as the Portfolio may reasonably request from time to
time.
2.11 Segregated Account. The Custodian shall upon receipt of Proper
Instructions establish and maintain a segregated account or
accounts for and on behalf of a 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 of any
agreement among the Fund on behalf of the Portfolio, 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 Fund on behalf of the Portfolio or commodity futures
contracts or options thereon purchased or sold by the Fund on
behalf of the Portfolio, (iii) for the purposes of compliance by
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 or (iv) as mutually agreed upon from time to time in
writing by the Custodian and the Fund on behalf of the Portfolio.
2.12 Ownership Certificates for Tax Purposes. The Custodian shall
promptly 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 securities of each
Portfolio held by it and in connection with transfers of
securities.
2.13 Proxies. The Custodian shall, with respect to the securities held
hereunder, cause to be promptly executed by the registered holder
of such securities, if the securities are registered otherwise
than in the name of a Portfolio or a nominee of a Portfolio, all
proxies, without indication of the manner in which such proxies
are to be voted, and shall promptly deliver to the Portfolios
such proxies, all proxy soliciting materials and all notices
relating to such securities. Neither the Custodian nor any
nominee shall vote any such securities or execute any proxy
thereon or give any consent to take any other action with respect
thereto (except as otherwise provided herein) unless ordered to
do so by Proper Instructions.
2.14 Communications Relating to Portfolio Securities. Subject to the
provisions of Section 2.3, the Custodian shall transmit promptly
to each Portfolio all written information (including, without
limitation, pendency of calls and maturities of 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 being
held for the Portfolio. With respect to tender or exchange
offers, the Custodian shall transmit promptly to each Portfolio
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 a
Portfolio desires to take action with respect to any tender
offer, exchange offer or any other similar transaction, the
Portfolio shall notify the Custodian at least three business days
prior to the date on which the Custodian is to take such action.
2.15 Proper Instructions. Proper Instructions as used throughout this
Article 2 means a tested telex or a writing signed or initialled
by two or more persons as the Board of Trustees shall have from
time to time authorized; provided, however, that no such
instructions directing the delivery of securities or the payment
of funds to an authorized signatory of a Portfolio shall be
signed by such authorized signatory. Those persons authorized to
give Proper Instructions may be identified by the Fund's Board of
Trustees by name, title or position and will include at least one
officer empowered by the Board to name other individuals who are
authorized to give Proper Instructions on behalf of the
Portfolios. 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, and
may be in the form of standing instructions. 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 Portfolios shall cause all oral
instructions to be confirmed in writing. Upon receipt of a
certificate of the Secretary or an Assistant Secretary as to the
authorization by the Board of Trustees of the Fund 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
Portfolios 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.
2.16 Actions Permitted without Express Authority. The Custodian may in
its discretion, without express authority from a Portfolio:
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 such
payments shall be accounted for to the Portfolios;
2) surrender securities in temporary form for securities in
definitive form;
3) endorse for collection, in the name of a 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 Portfolio except as otherwise
directed by the Board of Trustees of the Fund.
2.17 Evidence of Authority. The Custodian shall be protected in acting
upon any instructions, notice, request, consent, certificate or
other instrument or paper reasonably believed by it to be genuine
and to have been properly executed by or on behalf of the
Portfolio. The Custodian may receive and accept a certified copy
of a vote of the Board of Trustees of the Fund 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.
2.18 Mitigation by Custodian. Upon the occurrence of any event
connected with the duties of the Custodian under this Contract
which causes or may cause any loss, damage or expense to a
Portfolio, (i) the Custodian shall, and (ii) shall exercise
reasonable efforts to cause any subcustodian to, use reasonable
efforts and take all reasonable steps under the circumstances to
mitigate the effects of such event and to avoid continuing harm
to the Portfolio.
2.19 Notification of Litigation; Right to Proceed. The Fund shall not
be liable for indemnification under this Contract to the extent
that the Fund's ability to defend against any litigation or
proceeding brought against the Custodian in respect of which
indemnity may be sought under this Contract is prejudiced by the
Custodian's failure to give prompt notice of the commencement of
any such litigation or proceeding. With respect to claims in such
litigation or proceedings for which indemnity by the Fund may be
sought and subject to applicable law and the ruling of any court
of competent jurisdiction, the Fund shall be entitled to
participate in any such litigation or proceeding and, after
written notice from the Fund to the Custodian, the Fund may
assume the defense of such litigation or proceeding with counsel
of its choice at its own expense in respect of that portion of
the litigation for which the Fund may be subject to an
indemnification obligation; provided, however, that the Custodian
shall be entitled to participate in the defense of any such
litigation or proceeding. If the Fund has acknowledged in writing
its obligation to indemnify the Custodian with respect to such
litigation or proceeding, the Custodian's participation shall be
at its own expense and the Fund shall control the defense of the
litigation or proceeding. If the Fund is not permitted to
participate in or control such litigation or proceeding under
applicable law or by a ruling of a court of competent
jurisdiction, the Custodian shall reasonably prosecute such
litigation or proceeding. The Custodian shall not consent to the
entry of any judgment or enter into any settlement in any such
litigation or proceeding without providing the Fund with adequate
notice of any such settlement or judgment, and without the Fund's
prior written consent. The Custodian shall submit written
evidence to the Fund with respect to any cost or expense for
which it is seeking indemnification in such form and detail as
the Fund may reasonably request.
3. POWERS AND DUTIES OF THE CUSTODIAN WITH RESPECT TO THE
APPOINTMENT OF SUBCUSTODIANS.
The Custodian may, at any time and from time to time, appoint,
subject to approval of the Fund on behalf of a Portfolio, any
bank as defined in Section 2(a)(5) of the Investment Company Act
of 1940 meeting the requirements of a custodian under Section
17(f) of the Investment Company Act of 1940 and the rules and
regulations thereunder, to act on behalf of the Portfolio as a
subcustodian for purposes of holding securities, cash and other
assets of the Portfolio and performing other functions of the
Custodian within the United States. The Fund on behalf of the
Portfolio shall approve in writing the appointment of such
Subcustodian and the subcustodian agreement to be entered into
between such Subcustodian and the Custodian. Upon such approval
by the Fund, the Custodian is authorized on behalf of the
Portfolio to notify the Subcustodian of its appointment as such.
The Custodian shall monitor the performance and financial
condition of the Subcustodian to the extent practicable and shall
promptly report to the Portfolio any material adverse facts of
which it becomes aware. Upon request of the Fund on behalf of a
Portfolio, the Custodian shall deliver to the Fund a certificate
stating: (i) the identity of each Subcustodian then acting on
behalf of the Custodian with respect to such Portfolio; and (ii)
the securities depositories and clearing agents through which
each such Custodian or Subcustodian is then holding cash,
securities and other property of the Portfolio.
With respect to securities and funds held by a subcustodian,
either directly or indirectly, notwithstanding any provision of
this Contract to the contrary, payment for securities purchased
and delivery of securities sold may be made prior to receipt of
the securities or payment, respectively, and securities or
payment may be received in a form in accordance with governmental
regulations.
In the event that any subcustodian appointed pursuant to the
provisions of this Section 3 fails to perform any of its
obligations under the terms and conditions of the applicable
subcustodian agreement, the Custodian shall use its best efforts
to cause such subcustodian to perform such obligations. In the
event that the Custodian is unable to cause such subcustodian to
perform fully its obligations thereunder, the Custodian shall
forthwith upon the Fund's request on behalf of a Portfolio
terminate such subcustodian as a subcustodian for the Portfolio
in accordance with the termination provisions under the
applicable subcustodian agreement and, if necessary or desirable,
appoint another subcustodian in accordance with the provisions of
this Section 3. At the election of the Fund, it shall have the
right to enforce, to the extent permitted by the subcustodian
agreement and applicable law, the Custodian's rights against any
such subcustodian for loss, damage or expense caused a Portfolio
by such subcustodian. The Custodian agrees to cooperate with the
Fund and take all actions reasonably requested by the Fund, at
the Fund's expense, in connection with the enforcement of any
rights of the Fund or the Custodian.
The Custodian will not amend any subcustodian agreement or agree
to change or permit any changes thereunder in respect of a
Portfolio except upon the prior written approval of the Fund.
The Custodian shall be liable for its own negligence in
transmitting to a subcustodian any instructions received by the
Custodian from a Portfolio and for its own negligence in
connection with the delivery of any securities, funds or other
property held by the Custodian on behalf of a Portfolio to a
subcustodian. The Custodian shall be liable for the actions or
omissions of a subcustodian appointed pursuant to this Article 3
only to the extent that the subcustodian is liable to the
Custodian.
4. PAYMENTS FOR SALES OR REPURCHASES OR REDEMPTIONS OF SHARES OF THE
PORTFOLIOS.
The Custodian shall receive from the distributor for the Shares
or from the Transfer Agent of the Fund and deposit into the
account of the appropriate Portfolio such payments as are
received for Shares of that Portfolio issued or sold from time to
time by the Fund. The Custodian will provide timely notification
to the Fund on behalf of each Portfolio and the Transfer Agent of
any receipt by it of payments for Shares of such Portfolio.
From such funds as may be available for the purpose but subject
to the limitations of the Declaration of Trust and any applicable
votes of the Board of Trustees of the Fund pursuant thereto, the
Custodian shall, upon receipt of instructions from the Transfer
Agent, make funds available for payment to holders of Shares who
have delivered to the Transfer Agent a request for redemption or
repurchase of their Shares. In connection with the redemption or
repurchase of Shares of a Portfolio, the Custodian is authorized
upon receipt of instructions from the Transfer Agent to wire
funds to or through a commercial bank designated by the redeeming
shareholders. In connection with the redemption or repurchase of
Shares of the Fund, the Custodian shall honor checks drawn on the
Custodian by a holder of Shares, which checks have been furnished
by the Fund to the holder of Shares, when presented to the
Custodian in accordance with such procedures and controls as are
mutually agreed upon from time to time between the Fund and the
Custodian.
5. DUTIES OF CUSTODIAN WITH RESPECT TO THE BOOKS OF ACCOUNT AND
CALCULATION OF NET ASSET VALUE AND NET INCOME
The Custodian shall cooperate with and supply necessary
information to the entity or entities appointed by the Board of
Trustees of the Fund to keep the books of account of the
Portfolios and/or compute the net asset value per share of the
outstanding shares of the Portfolios or, if directed in writing
to do so by the Fund pursuant to Proper Instructions, shall
itself keep such books of account and/or compute such net asset
value per share. The net asset value per share will be computed
by dividing the value of the securities held by the Portfolio
plus any cash or other assets (including interest and dividends
accrued but not yet received and earned discount) minus all
liabilities (including accrued expenses) by the total number of
shares outstanding at such time. If so directed, the Custodian
shall also calculate daily the net income of the Portfolio as
described in the Portfolio's currently effective prospectus and
shall advise the Portfolio and the Transfer Agent daily of the
total amounts of such net income and, if instructed in writing by
an officer of the Fund on behalf of a Portfolio to do so, shall
advise the Transfer Agent periodically of the division of such
net income among its various components. The calculations of the
net asset value per share and the daily income of each Portfolio
shall be made at the time or times described from time to time in
the Portfolio's currently effective prospectus.
6. RECORDS
The Custodian shall create, maintain and retain all records
relating to its activities and obligations under this Contract in
such manner as will meet the obligations of each Portfolio under
the Investment Company Act of 1940 and the rules and regulations
thereunder, including Section 31 thereof and Rules 31a-1 and
31a-2 thereunder. All such records shall be the property of the
Fund and in the event of termination of this Contract shall be
delivered to the Fund or a successor custodian as instructed by
the Fund. All such records shall at all times during the regular
business hours of the Custodian be open for inspection and audit
by duly authorized officers, employees or agents of, attorneys
for and auditors employed by, the Fund and employees and agents
of the Securities and Exchange Commission. The Custodian shall,
at the Fund's request, supply the Fund with a tabulation of
securities owned by each Portfolio and held by the Custodian and
shall, when requested to do so by the Fund and for such
compensation as shall be agreed upon between the Fund and the
Custodian, include certificate numbers in such tabulations.
7. OPINION OF FUND'S INDEPENDENT ACCOUNTANT
The Custodian shall take all reasonable action, as the Fund may
from time to time request, to obtain from year to year favorable
opinions from the Fund's independent accountants with respect to
its activities hereunder in connection with the preparation of
the Fund's Form N-2, and Form N-SAR or other annual reports to
the Securities and Exchange Commission and with respect to any
other requirements of such Commission.
8. REPORTS TO FUND BY INDEPENDENT PUBLIC ACCOUNTANTS
The Custodian shall provide the Fund, at such times as the Fund
may reasonably require, with reports by independent public
accountants on the accounting system, internal accounting control
and procedures for safeguarding 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 Fund 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.
9. COMPENSATION OF CUSTODIAN
The Custodian shall be entitled to reasonable compensation for
its services and expenses as Custodian, as agreed upon in writing
from time to time between the Fund on behalf of the Portfolios
and the Custodian.
10. 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 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 and diligence in carrying out the provisions of
this Contract and shall be liable to the Portfolios for all
losses, damages and expenses suffered or incurred by the
Portfolios resulting from the failure of the Custodian to
exercise such reasonable care and diligence. The Fund agrees to
indemnify and hold harmless the Custodian from all claims and
liabilities incurred by or assessed against the Custodian for any
action taken or omitted by it in good faith without negligence.
The Custodian shall be entitled to rely on and may act upon
advice of counsel (who may be counsel for the Fund) on all
matters, and shall be without liability for any action reasonably
taken or omitted pursuant to such advice.
If a Portfolio requires the Custodian to take any action with
respect to 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 being
liable for the payment of money or incurring liability of some
other form, the Fund, as a prerequisite to requiring the
Custodian to take such action, shall provide indemnity to the
Custodian in an amount equal to the Custodian's reasonable
estimate of the amount to be paid or for which the Custodian may
potentially be liable and in a form satisfactory to the
Custodian.
11. CUSTODIAN ADVANCES
In the event that the Custodian is directed by Proper
Instructions to make any payment or transfer of funds on behalf
of a Portfolio for which there would be, at the close of business
on the date of such payment or transfer, insufficient funds held
by the Custodian on behalf of the Portfolio, the Custodian may,
in its discretion without further Proper Instructions, provide an
advance ("Advance") to the Portfolio in an amount sufficient to
allow the completion of the transaction by reason of which such
payment or transfer of funds is to be made. In addition, in the
event the Custodian is directed by Proper Instructions to make
any payment or transfer of funds on behalf of a Portfolio as to
which it is subsequently determined that the Portfolio has
overdrawn its cash account with the Custodian as of the close of
business on the date of such payment or transfer, said overdraft
shall constitute an Advance. Any Advance shall be payable by the
Portfolio on demand by Custodian, unless otherwise agreed by the
Portfolio and the Custodian, and shall accrue interest from the
date of the Advance to the date of payment by the Portfolio or
the Custodian at a rate agreed upon in writing from time to time
by the Custodian and the Fund on behalf of the Portfolio. It is
understood that any transaction in respect of which the Custodian
shall have made an Advance, including but not limited to a
foreign exchange contract or transaction in respect of which the
Custodian is not acting as a principal, is for the account of and
at the risk of the Portfolio, and not, by reason of such Advance,
deemed to be a transaction undertaken by the Custodian for its
own account and risk. The Custodian and the Fund on behalf of the
Portfolios acknowledge that the purpose of Advances is to finance
temporarily the purchase or sale of securities for prompt
delivery in accordance with the settlement terms of such
transactions or to meet emergency expenses not reasonably
foreseeable by the Fund. The Custodian shall promptly notify the
Fund of any Advance. Such notification shall be sent by facsimile
transmission or in such other manner as the Fund and the
Custodian may agree.
12. Security for Obligations to Custodian. If the Custodian or any
nominee thereof shall incur or be assessed any taxes, charges,
expenses, assessments, claims or liabilities in connection with
the performance of this Contract (collectively "Liability"),
except such as may arise from its or such nominee's breach of the
relevant standard of care set forth in this Contract, or if the
Custodian shall make any Advance to a Portfolio, then in such
event property equal in value to not more than 100% of such
Advance and accrued interest thereon or the anticipated amount of
such liability shall be held as security for such Liability or
for such Advance and the interest thereon.
The Portfolios shall reimburse the Custodian promptly for any
Liability and shall pay any Advances on demand after notice from
the Custodian to the applicable Portfolio of the existence of the
Advance. If, after notification, the Portfolio shall fail to
promptly pay such Advance or interest when due or shall fail to
reimburse the Custodian promptly in respect of a Liability, the
Custodian shall be entitled to utilize available cash or dispose
of the Portfolio's property to the extent, and only to the
extent, necessary to obtain repayment or reimbursement.
13. 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 in
writing of the parties hereto and may be terminated by either
party by an instrument in writing signed by the party seeking
termination 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 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 Fund has approved the initial use of a particular Securities
System by a Portfolio and the receipt of an annual certificate of
the Secretary or an Assistant Secretary that the Board of
Trustees has reviewed the use by the Portfolio of such Securities
System, as required in each case by Rule 17f-4 under the
Investment Company Act of 1940, as amended and that the Custodian
shall not 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 of the Direct Paper System by a Portfolio and the
receipt of an annual certificate of the Secretary or an Assistant
Secretary that the Board of Trustees has reviewed the use by the
Portfolio of the Direct Paper System; provided further, however,
that the Fund shall not amend or 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 Fund may at any time by action of its Board of Trustees
(i) 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 Fund 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.
14. Successor Custodian. If a successor custodian for a Portfolio
shall be appointed by the Board of Trustees of the Fund, the
Custodian shall, upon termination, promptly deliver to such
successor custodian at the office of the Custodian, duly endorsed
and in the form for transfer, all securities then held by it
hereunder for such Portfolio and shall promptly transfer to an
account of the successor custodian all of the Portfolio's
securities held in a Securities System unless otherwise
instructed by the Fund. In the event that no written order
designating a successor custodian 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 $25,000,000, all securities, funds and
other properties held by the Custodian for the applicable
Portfolio and all instruments held by the Custodian relative
thereto and all other property held by it for such Portfolio
under this Contract and to transfer to an account of such
successor custodian all of the Portfolio's securities 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 of a
Portfolio remain in the possession of the Custodian after the
date of termination hereof owing to failure of the Fund 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. The Custodian agrees to
cooperate with the successor custodian and the Fund in execution
of documents and performance of other actions necessary or
desirable in order to substitute the successor custodian for the
Custodian.
15. INTERPRETIVE AND ADDITIONAL PROVISIONS
In connection with the operation of this Contract, the Custodian
and the Fund 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 Fund. No interpretive or additional provisions made as
provided in the preceding sentence shall be deemed to be an
amendment of this Contract.
16. 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.
17. PRIOR CONTRACTS
This Contract supersedes and terminates, as of the date hereof,
all prior contracts between the Fund and the Custodian relating
to the custody of the Portfolio's assets.
18. SHAREHOLDER 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 Fund on behalf of the Portfolios to
indicate whether it authorizes the Custodian to provide the
Portfolios name, address, and share position to requesting
companies whose securities the Portfolios own. If the Fund tells
the Custodian "no", the Custodian will not provide this
information to requesting companies. If the Fund tells the
Custodian "yes" or does not check either "yes" or "no" below, the
Custodian is required by the rule to treat the Fund as consenting
to disclosure of this information for all securities owned by the
Portfolios or any funds or accounts established by the Fund. For
the Portfolios' protection, the Rule prohibits the requesting
company from using the Portfolio's name and address for any
purpose other than corporate communications. Please indicate
below whether the Fund on behalf of the Portfolios consents or
objects by checking one of the alternatives below.
YES [ ] The Custodian is authorized to release the Portfolios'
names, addresses, and share positions.
NO [ ] The Custodian is not authorized to release the Portfolios'
names, addresses, and share positions.
19. ASSIGNMENT.
Neither the Fund nor the Custodian shall have the right to assign
any of its rights or obligations under this Contract without the
prior written consent of the other party.
20. SEVERABILITY.
If any provision of this Contract is held to be unenforceable as
a matter of law, the other terms and provisions hereof shall not
be affected thereby and shall remain in full force and effect.
21. LIMITATION OF LIABILITY.
A copy of the Declaration of Trust of the Fund is on file with
the Secretary of State of the Commonwealth of Massachusetts. The
Custodian acknowledges that such instrument is executed on behalf
of the Fund by the Trustees as trustees and not individually and
that the obligations of or arising out of this Contract are not
binding on any of the trustees, officers or shareholders of the
Fund or the Portfolios individually, but are binding only on the
assets and property of the Portfolios.
22. ADDITIONAL FUNDS
In the event that the Fund establishes one or more series of
Shares in addition to the Small Capitalization Stock Fund 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 series of Shares shall become a
Portfolio hereunder.
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 ____ day of
March, 1993.
ATTEST HERITAGE SERIES TRUST
______________________ By _________________________
ATTEST STATE STREET BANK AND TRUST COMPANY
_____________________ By _________________________
Executive Vice President