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Exhibit (8)
CUSTODIAN AGREEMENT
BETWEEN
SELECT ADVISORS TRUST II
AND
INVESTORS BANK & TRUST COMPANY
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TABLE OF CONTENTS
Page
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1. Bank Appointed Custodian.......................................... 1
2. Definitions....................................................... 1
2.1 Authorized Person........................................... 1
2.2 Security.................................................... 1
2.3 Portfolio Security.......................................... 2
2.4 Officers' Certificate....................................... 2
2.5 Book Entry System........................................... 2
2.6 Depository.................................................. 2
2.7 Proper Instructions......................................... 2
3. Separate Accounts................................................. 3
4. Certification as to Authorized Persons............................ 3
5. Custody of Cash................................................... 3
5.1 Purchase of Securities...................................... 4
5.2 Redemptions................................................. 4
5.3 Distributions and Expenses of Each Portfolio................ 4
5.4 Payment in Respect of Securities............................ 5
5.5 Repayment of Loans.......................................... 5
5.6 Repayment of Cash........................................... 5
5.7 Foreign Exchange Transactions............................... 5
5.8 Other Authorized Payments................................... 5
5.9 Termination................................................. 6
6. Securities........................................................ 6
6.1 Segregation and Registration................................ 6
6.2 Voting and Proxies.......................................... 6
6.3 Book-Entry System........................................... 7
6.4 Use of a Depository......................................... 8
6.5 Use of a Book-Entry System for Commercial Paper.............10
6.6 Use of Immobilization Programs..............................11
6.7 Eurodollar CDs..............................................11
6.8 Options and Futures Transactions............................11
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(a) Puts and Calls Traded on Securities
Exchanges, NASDAQ or Over-the-Counter.................11
(b) Puts, Calls and Futures Traded on
Commodities Exchanges.................................12
6.9 Segregated Account..........................................13
6.10 Interest Bearing Call or Time Deposits......................14
6.11 Transfer of Securities......................................15
7. Redemptions.......................................................17
8. Merger, Dissolution, etc. of a Portfolio..........................17
9. Actions of Bank Without Prior Authorization.......................18
10. Collection; Defaults..............................................19
11. Maintenance of Records............................................19
12. Portfolio Evaluation..............................................20
13. Concerning the Bank...............................................20
13.1 Performance of Duties; Standard of Care.....................20
13.2 Agents and Subcustodians....................................22
13.3 Insurance...................................................22
13.4 Fees and Expenses of Bank...................................22
13.5 Advances by Bank............................................23
14. Termination.......................................................23
15. Confidentiality...................................................24
16. Notices...........................................................25
17. Amendments........................................................25
18. Parties...........................................................25
19. Governing Law.....................................................25
20. Limitations of Liability..........................................25
21. Counterparts......................................................25
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CUSTODIAN AGREEMENT
AGREEMENT made as of this 22nd day of August, 1994, between Select
Advisors Trust II, a Massachusetts business trust (the "Trust"), acting for and
on behalf of each of the separate series of the Trust currently existing or
existing in the future and the portfolio of cash, securities, and other assets
held by each such series (each a "Portfolio" or, together, the "Portfolios"),
and INVESTORS BANK & TRUST COMPANY, (the "Bank").
The Trust, each of whose Portfolios is an open-end management investment
company, desires to place and maintain the securities and cash of each of the
Portfolios in the custody of the Bank. The Bank has at least the minimum
qualifications required by Section 17(f)(1) of the Investment Company Act of
1940 (the "Act") to act as custodian of the securities and cash of the
Portfolios, and has indicated its willingness to so act, subject to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. BANK APPOINTED CUSTODIAN. The Trust hereby appoints the Bank as
custodian of its portfolio securities and cash delivered to the Bank as
hereinafter described and the Bank agrees to act as such upon the terms and
conditions hereinafter set forth.
2. DEFINITIONS. Whenever used herein, the terms listed below will
have the following meaning:
2.1 AUTHORIZED PERSON. Authorized Person will mean any of the
persons duly authorized to give Proper Instructions or otherwise act on
behalf of the Trust or any of its Portfolios by appropriate resolution of
its Board of Trustees (the "Board"), and set forth in a certificate as
required by Section 4 hereof, subject in any case to such limitations on
the authority of any such person as are set forth in the Officers'
Certificate.
2.2 SECURITY. The term security as used herein will have the same
meaning as when such term is used in the Securities Act of 1933 as amended,
including, without limitation, any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in any profit sharing agreement, collateral-trust
certificate, preorganization certificate of subscription, transferable
share, investment contract, voting-trust certificate, certificate of
deposit for a security, fractional undivided interest in oil, gas, or other
mineral rights, any put, call, straddle, option, or privilege on any
security, certificate of deposit, or group or index of securities
(including any interest therein or based on the value thereof), or any put,
call, straddle, option, or privilege entered into on a national securities
exchange relating to a foreign currency, or, in general, any interest or
instrument commonly known as a "security", or any certificate of interest
or participation in, temporary or interim certificate for, receipt for,
guarantee of,
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or warrant or right to subscribe to, or option contract to purchase or
sell any of the foregoing and futures, forward contracts and options
thereon.
2.3 PORTFOLIO SECURITY. Portfolio Security will mean any Security
owned by a Portfolio.
2.4 OFFICERS' CERTIFICATE. Officers' Certificate will mean,
unless otherwise indicated, any request, direction, instruction, or
certification in writing signed by any two Authorized Persons of the Trust.
2.5 BOOK-ENTRY SYSTEM. Book-Entry System shall mean the Federal
Reserve-Treasury Department Book Entry System for United States government,
instrumentality and agency securities operated by the Federal Reserve Bank,
its successor or successors and its nominee or nominees.
2.6 DEPOSITORY. Depository shall mean The Depository Trust
Company ("DTC"), a clearing agency registered with the Securities and
Exchange Commission under Section 17A of the Securities Exchange Act of
1934, its successor or successors and its nominee or nominees. The term
"Depository" shall further mean and include any other person authorized to
act as a depository under the Act, its successor or successors and its
nominee or nominees, specifically identified in a certified copy of a
resolution of the Board.
2.7 PROPER INSTRUCTIONS. Proper Instructions shall mean (i)
instructions (which may be continuing instructions) regarding the purchase
or sale of Portfolio Securities, and payments and deliveries in connection
therewith, given by an Authorized Person, such instructions to be given in
such form and manner as the Bank and the Trust shall agree upon from time
to time, (ii) instructions (which may be continuing instructions) regarding
other matters signed or initialed by such one or more Authorized Persons
and (iii) instructions contained in an Officers' Certificate. Oral
instructions will be considered Proper Instructions if the Bank reasonably
believes them to have been given by an Authorized Person who has been
granted authority with respect to the transaction involved. The Trust shall
cause all oral instructions to be promptly confirmed in writing. The Bank
shall act upon and comply with any subsequent Proper Instruction which
modifies a prior instruction, and the sole obligation of the Bank with
respect to any follow-up or confirmatory instruction shall be to make
reasonable efforts to detect any discrepancy between the original
instruction and such confirmation and to report such discrepancy to the
Trust. The Trust shall be responsible, at the Trust's expense, for taking
any action, including any reprocessing, necessary to correct any such
discrepancy or error, and to the extent such action requires the Bank to
act the Trust shall give the Bank specific Proper Instructions as to the
action required. Upon receipt of an Officers' Certificate as to the
authorization by the Board, accompanied by a detailed description of
procedures approved by the Trust, Proper Instructions may include
communication effected directly between electro-mechanical or electronic
devices provided that the
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Board and the Bank are satisfied that such procedures afford adequate
safeguards for the Trust's assets.
3. SEPARATE ACCOUNTS. Because the Trust has more than one Portfolio, the
Bank will segregate the assets of each Portfolio to which this Agreement relates
into a separate account for each such Portfolio containing the assets of such
Portfolio (and all investment earnings thereon).
4. CERTIFICATE AS TO AUTHORIZED PERSONS. The Secretary or Assistant
Secretary of the Trust will at all times maintain on file with the Bank his
certification to the Bank, in such form as may be acceptable to the Bank, of (i)
the names and signatures of the Authorized Persons and (ii) the names of the
members of the Board, it being understood that upon the occurrence of any change
in the information set forth in the most recent certification on file (including
without limitation any person named in the most recent certification who is no
longer an Authorized Person as designated therein), the Secretary or Assistant
Secretary of the Trust will sign a new or amended certification setting forth
the change and the new, additional or omitted names or signatures. The Bank will
be entitled to rely and act upon an Officers' Certificate given to it by the
Trust which has been signed by Authorized Persons named in the most recent
certification.
5. CUSTODY OF CASH. As custodian for the Trust, the Bank will open and
maintain a separate account or accounts in the name of the Trust or in the name
of the Bank, as Custodian of each of the Portfolios of the Trust, and will
deposit to the account of each Portfolio all of the cash of the Portfolio,
except for cash held by a subcustodian appointed pursuant to Section 13.2
hereof, including borrowed funds, delivered to the Bank, subject only to draft
or order by the Bank acting pursuant to the terms of this Agreement. Upon
receipt by the Bank of Proper Instructions (which may be continuing
instructions) or in the case of payments for redemptions and repurchases of
outstanding interests of each Portfolio of the Trust, notification from the
Trust's transfer agent as provided in Section 7, which in either case requests
such payment, designates the payee or the account or accounts to which the Bank
will release funds for deposit, and states that it is for a purpose permitted
under the terms of this Section 5, specifying the applicable subsection, or
describing such purpose with sufficient particularity to permit the Bank to
ascertain the applicable subsection, the Bank will make payments of cash held
for the accounts of the Trust, insofar as funds are available for that purpose,
in the following circumstances:
5.1 PURCHASE OF SECURITIES: upon the purchase of securities for any
Portfolio of the Trust, against contemporaneous receipt of such securities
by the Bank or against delivery of such securities to the Bank in
accordance with generally accepted settlement practices and customs in the
jurisdiction or market in which the transaction occurs, registered in the
name of the Portfolio or in the name of, or properly endorsed and in form
for transfer to, the Bank, or a nominee of the Bank, or receipt for the
account of the Bank pursuant to the provisions of Section 6 below, each
payment to be made at the purchase price shown on a broker's confirmation
(or transaction report in the case of Book Entry Paper) of
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purchase of the securities received by the Bank before such payment is
made, as confirmed in the Proper Instructions received by the Bank before
such payment is made;
5.2 REDEMPTIONS: in such amount as may be necessary for the repurchase
or redemption of interests of any Portfolio of the Trust offered for
repurchase or redemption in accordance with Section 7 of this Agreement;
5.3 DISTRIBUTIONS AND EXPENSES OF EACH PORTFOLIO: for the payment on the
account of any Portfolio of the Trust of dividends or other distributions
to shareholders as may from time to time be declared by the Board, of
interest, taxes, management or supervisory fees, distribution fees, fees of
the Bank for its services hereunder and reimbursement of the expenses and
liabilities of the Bank as provided hereunder, of fees of any transfer
agent, fees for legal, accounting, and auditing services, or other
operating expenses of any Portfolio of the Trust;
5.4 PAYMENT IN RESPECT OF SECURITIES: for payments in connection with
the conversion, exchange or surrender of Portfolio Securities or securities
subscribed to by any Portfolio of the Trust held by or to be delivered to
the Bank;
5.5 REPAYMENT OF LOANS: to repay loans of money made to any Portfolio of
the Trust, but, in the case of final payment, only upon redelivery to the
Bank of any Portfolio Securities pledged or hypothecated therefor and upon
surrender of documents evidencing the loan;
5.6 REPAYMENT OF CASH: to repay the cash delivered to any Portfolio of
the Trust for the purpose of collateralizing the obligation to return to
the Portfolio certificates borrowed from the Portfolio representing
Portfolio Securities, but only upon redelivery to the Bank of such borrowed
certificates;
5.7 FOREIGN EXCHANGE TRANSACTIONS: for payments in connection with
foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery which may be entered into by the
Bank on behalf of any Portfolio of the Trust upon the receipt of Proper
Instructions, such Proper Instructions to specify the currency broker or
banking institution (which may be the Bank, or any other subcustodian or
agent hereunder, acting as principal) with which the contract or option is
made, and the Bank shall have no duty with respect to the selection of such
currency brokers or banking institutions with which the Portfolio deals or
for their failure to comply with the terms of any contract or option;
5.8 OTHER AUTHORIZED PAYMENTS: for other authorized transactions of any
Portfolio of the Trust, or other obligations thereof, incurred for proper
Portfolio purposes; provided that before making any such payment the Bank
will also receive a certified copy of a resolution of the Board signed by
an Authorized Person (other than the Person certifying such resolution) and
certified by its Secretary or Assistant Secretary, naming the person or
persons to whom such payment is to be made, and either describing the
transaction for
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which payment is to be made and declaring it to be an authorized
transaction of the Portfolio, or specifying the amount of the obligation
for which payment is to be made, setting forth the purpose for which such
obligation was incurred and declaring such purpose to be a proper corporate
purpose; and
5.9 TERMINATION: upon the termination of this Agreement as hereinafter
set forth pursuant to Section 8 and Section 14 of this Agreement.
6. SECURITIES
6.1 SEGREGATION AND REGISTRATION. Except as otherwise provided herein,
and except for securities to be delivered to any subcustodian appointed
pursuant to Section 13.2 hereof, the Bank as custodian, will receive and
hold pursuant to the provisions hereof, in a separate account of accounts
and physically segregated at all times from those of other persons, any and
all Portfolio Securities which may now or hereafter be delivered to it by
or for the account of any Portfolio of the Trust. All such Portfolio
Securities will be held of disposed of by the Bank for, and subject at all
times to, the instructions of the Portfolio pursuant to the terms of this
Agreement. Subject to the specific provisions herein relating to Portfolio
Securities that are not physically held by the Bank, the Bank will register
all Portfolio Securities (unless otherwise directed by Proper Instructions
or an Officers' Certificate), in the name of a registered nominee of the
Bank as defined in the Internal Revenue Code and any Regulations of the
Treasury Department issued thereunder, and will execute and deliver all
such certificates in connection therewith as may be required by such laws
or regulations or under the laws of any State. The Bank will use its best
efforts to the end that the specific Portfolio Securities held by it
hereunder will be at all times identifiable.
The Trust will from time to time furnish to the Bank appropriate
instruments to enable it to hold or deliver in proper form for transfer, or
to register in the name of its registered nominee, any Portfolio Securities
which may from time to time be registered in the name of any Portfolio of
the Trust.
6.2 VOTING AND PROXIES. Neither the Bank nor any nominee of the Bank
will vote any of the Portfolio Securities held hereunder, except in
accordance with Proper Instructions. The Bank will promptly execute and
deliver, or cause to be executed and delivered, to the Trust all notices,
proxies and proxy soliciting materials with respect to such Securities,
such proxies to be executed by the registered holder of such Securities,
(if registered otherwise than in the name of a Portfolio of the Trust), but
without indicating the manner in which such proxies are to be voted.
6.3 BOOK-ENTRY SYSTEM. Provided (i) the Bank has received a certified
copy of a resolution of the Board specifically approving deposits of any
Portfolio of the Trust's assets in the Book-Entry System, and (ii) for each
year following such approval, the Board has reviewed and approved the
arrangement and has not delivered an Officer's Certificate to the Bank
indicating that the Board has withdrawn its approval.
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(a) The Bank may keep Portfolio Securities in the Book-Entry
System provided that such Portfolio Securities are represented in an
account ("Account") of the Bank (or its agent) in such System which
shall not include any assets of the Bank (or such agent) other than
assets held as a fiduciary, custodian, or otherwise for customers.
(b) The records of the Bank (and any such agent) with respect to
any Portfolio of the Trust's participation in the Book-Entry System
through the Bank (or any such agent) will identify by book entry
Portfolio Securities which are included with other securities deposited
in the Account and shall at all times during the regular business hours
of the Bank (or such agent) be open for inspection by duly authorized
officers, employees or agents of the Trust. Where securities are
transferred to any Portfolio of the Trust's account, the Bank shall
also, by book entry or otherwise, identify as belonging to the
Portfolio a quantity of securities in fungible bulk of securities (i)
registered in the name of the Bank or its nominee, or (ii) shown on the
Bank's account on the books of the Federal Reserve Bank.
(c) The Bank (or its agent) shall pay for Portfolio Securities
purchased for the account of any Portfolio of the Trust or shall pay
cash collateral against the return of securities loaned by any
Portfolio of the Trust upon (i) receipt of advice from the Book-Entry
System that such Securities have been transferred to the Account, and
(ii) the making of an entry on the records of the Bank (or its agent)
to reflect such payment and transfer for the account of the Portfolio.
The Bank (or its agent) shall transfer securities sold or loaned for
the account of any Portfolio of the Trust upon
(i) receipt of advice from the Book-Entry System that payment
for securities sold or payment of the initial cash collateral
against the delivery of securities loaned by the Portfolio has
been transferred to the Account, and
(ii) the making of an entry on the records of the Bank (or its
agent) to reflect such transfer and payment for the account of the
Portfolio. Copies of all advices from the Book-Entry System of
transfers of Securities for the account of any Portfolio shall
identify the Portfolio, be maintained for the Portfolio by the
Bank and shall be provided to the Portfolio at its request. The
Bank shall send the Portfolio a confirmation, as defined by Rule
17f-4 under the Act, of any transfers to or from the account of
the Portfolio;
(d) The Bank will promptly provide the Portfolio with any report
obtained by the Bank or its agent on the Book-Entry system's accounting
system, internal accounting control and procedures for safeguarding
securities deposited in the Book-Entry System; and
(e) The Bank shall be liable to the Portfolio for any loss or
damage to the Portfolio resulting from use of the Book-Entry System by
reason of any gross
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negligence, willful misfeasance or bad faith of the Bank or any of its
agents or of any of its or their employees or from any reckless
disregard by the Bank or any such agent of its duty to use its best
efforts to enforce such rights as it may have against the Book-Entry
System; at the election of the Trust on behalf of the Portfolio, it
shall be entitled to be subrogated to the Bank in any claim against the
Book-Entry System or any other person which the Bank or its agent may
have as a consequence of any such loss or damage if and to the extent
that the Portfolio has not been made whole for any loss or damage.
6.4 USE OF A DEPOSITORY. Provided (i) the Bank has received a
certified copy of a resolution of the Board specifically approving deposits
in DTC or other such Depository and (ii) for each year following such
approval, the Board has reviewed and approved the arrangement and has not
delivered an Officer's Certificate to the Bank indicating that the Board
has withdrawn its approval:
(a) The Bank may use a Depository to hold, receive, exchange,
release, lend, deliver and otherwise deal with the Portfolio Securities
including stock dividends, rights and other items of like nature, and
to receive and remit to the Bank on behalf of any Portfolio of the
Trust all income and other payments thereon and to take all steps
necessary and proper in connection with the collection thereof;
(b) Registration of the Portfolio Securities may be made in the
name of any nominee or nominees used by such Depository;
(c) Payment for securities purchased and sold may be made through
the clearing medium employed by such Depository for transactions of
participants acting through it. Upon any purchase of Portfolio
Securities, payment will be made only upon delivery of the securities
to or for the account of the Portfolio and the Portfolio shall pay cash
collateral against the return of Securities loaned by the Portfolio
only upon delivery of the Portfolio Securities to or for the account of
the Portfolio; and upon any sale of Portfolio Securities, delivery of
the Portfolio Securities will be made only against payment therefor or,
in the event Securities are loaned, delivery of Securities will be made
only against receipt of the initial cash collateral to or for the
account of the Portfolio; and
(d) The Bank shall be liable to any Portfolio of the Trust for
any loss or damage to the Portfolio resulting from use of a Depository
by reason of any gross negligence, willful misfeasance or bad faith of
the Bank or its employees or from any reckless disregard by the Bank of
its duty to use its best efforts to enforce such rights as it may have
against a Depository. In this connection, the Bank shall use its best
efforts to ensure that:
(i) the Depository obtains replacement of any certificated
Portfolio Security deposited with it in the event such Security is
lost, destroyed,
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wrongfully taken or otherwise not available to be returned to the
Bank upon its request.
(ii) any proxy materials received by a Depository with respect
to Portfolio Securities deposited with such Depository are
forwarded immediately to the Bank for prompt transmittal to the
affected Portfolio;
(iii) such Depository immediately forwards to the Bank
confirmation of any purchase or sale of Portfolio Securities and
of the appropriate book entry made by such Depository to the
affected Portfolio's account;
(iv) such Depository prepares and delivers to performance of the
Bank's obligations and duties hereunder as may be necessary for
the Portfolio to comply with the record keeping requirements of
Section 31(a) of the Act and Rule 31a-1 thereunder; and
(v) such Depository delivers to the Bank and the Portfolio all
internal accounting control reports, whether or not audited by an
independent public accountant, as well as such other reports as
the Portfolio may reasonably request in order to verify the
Portfolio Securities held by such Depository.
6.5 USE OF BOOK-ENTRY SYSTEM FOR COMMERCIAL PAPER. Provided (i)
the Bank has received a certified copy of a resolution of the Board
specifically approving participation in a system maintained by the Bank for
the holding of commercial paper in book-entry form ("Book Entry Paper") and
(ii) for each year following such approval the Board has received and
approved the arrangements, upon receipt of Proper Instructions and upon
receipt of confirmation from an Issuer (as defined below) that any
Portfolio of the Trust has purchased such Issuer's Book Entry paper, the
Bank shall issue and hold in book-entry form, on behalf of the Portfolio,
commercial paper issued by issuers with whom the Bank has entered into a
book-entry agreement (the "Issuers"). In maintaining its Book Entry Paper
System, the Bank agrees that:
(a) the Bank will maintain all Book Entry Paper held by any
Portfolio of the Trust in an account of the Bank that includes only
assets held by it for customers;
(b) the records of the Bank with respect to any Portfolio of the
Trust's purchase of Book Entry Paper through the Bank will identify, by
book entry, Commercial Paper belonging to the Portfolio which is
included in the Book Entry Paper System and shall at all times during
the regular business hours of the Bank be open for inspection by duly
authorized officers, employees or agents of the Trust;
(c) the Bank shall pay for Book Entry Paper purchased for the
account of any Portfolio of the Trust upon contemporaneous (i) receipt
of advice from the Issuer that such sale of Book Entry Paper has been
effected, and (ii) the making of an entry
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on the records of the Bank to reflect such payment and transfer for the
account of such Portfolio;
(d) The Bank shall cancel such Book Entry Paper obligation upon
the maturity thereof upon contemporaneous (i) receipt of advice that
payment for such Book Entry Paper has been transferred to the
Portfolio, and (ii) the making of an entry on the records of the Bank
to reflect such payment for the account of the Portfolio;
(e) the Bank shall transmit to the Trust a transaction journal
confirming each transaction in Book Entry Paper for the account of any
Portfolio of the Trust on the next business day following the
transactions; and
(f) the Bank will send to the Trust such reports on its system of
internal accounting control with respect to the Book Entry Paper System
as the Trust may reasonably request from time to time.
6.6 USE OF IMMOBILIZATION PROGRAMS. Provided (i) the Bank has
received a certified copy of a resolution of the Board specifically
approving the maintenance of Portfolio Securities in an immobilization
program operated by a bank which meets the requirements of Section 26(a)(1)
of the Act, and (ii) for each year following such approval the Board has
reviewed and approved the arrangement and has not delivered an Officer's
Certificate to the Bank indicating that the Board has withdrawn its
approval, the Bank shall enter into such immobilization program with such
bank acting as a subcustodian hereunder.
6.7 EURODOLLAR CDS. Any Portfolio Securities which are Eurodollar
CDs may be physically held by the European branch of the U.S. banking
institution that is the issuer of such Eurodollar CD (a "European Branch"),
provided that such Securities are identified on the books of the Bank as
belonging to a Portfolio of the Trust and that the books of the Bank
identify the European Branch holding such securities. Notwithstanding any
other provision of this Agreement to the contrary, except as stated in the
first sentence of this subsection 6.7, the Bank shall be under no other
duty with respect to such Eurodollar CDs belonging to the Portfolio, and
shall have no liability to the Portfolio or its shareholders with respect
to the actions, inactions, whether negligent or otherwise of such European
Branch in connection with such Eurodollar CDs, except for any loss of
damage to the Portfolio resulting from the Bank's own gross negligence,
willful misfeasance or bad faith in the performance of its duties
hereunder.
6.8 OPTIONS AND FUTURES TRANSACTIONS.
(a) PUTS AND CALLS TRADED ON SECURITIES EXCHANGES, NASDAQ OR
OVER-THE-COUNTER.
1. The Bank shall take action as to put options ("puts") and call
options ("calls") purchased or sold (written) by any Portfolio of the
Trust regarding escrow
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or other arrangements (i) in accordance with the provisions of any
agreement entered into upon receipt of Proper Instructions between the
Bank, any broker-dealer registered under the Securities Exchange Act of
1934 and a member of the National Association of Securities Dealers,
Inc. (the "NASD"), and, if necessary, any Portfolio of the Trust
relating to the compliance with the rules of the Options Clearing
Corporation and of any registered national securities exchange, or of
any similar organization or organizations.
2. Unless another agreement requires it to do so, the Bank shall
be under no duty or obligation to see that any Portfolio of the Trust
has deposited or is maintaining adequate margin, if required, with any
broker in connection with any option, nor shall the Bank be under duty
or obligation to present such option to the broker for exercise unless
it receives Proper Instructions from the Portfolio. The Bank shall have
no responsibility for the legality of any put or call purchased or sold
on behalf of any Portfolio of the Trust, the propriety of any such
purchase or sale, or the adequacy of any collateral delivered to a
broker in connection with an option or deposited to or withdrawn from a
Segregated Account (as defined in subsection 6.9 below). The Bank
specifically, but not by way of limitation, shall not be under any duty
or obligation to: (i) periodically check or notify the Portfolio that
the amount of such collateral held by a broker or held in a Segregated
Account is sufficient to protect such broker of the Portfolio against
any loss; (ii) effect the return of any collateral delivered to a
broker; or (iii) advise the Portfolio that any option it holds, has or
is about to expire. Such duties or obligations shall be the sole
responsibility of the Portfolio.
(b) PUTS, CALLS AND FUTURES TRADED ON COMMODITIES EXCHANGES.
1. The Bank shall take action as to puts, calls and futures
contracts ("Futures") purchased or sold by any Portfolio of the Trust
in accordance with the provisions of any agreement among the Portfolio,
the Bank and a Futures Commission Merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of the
Commodity Futures Trading Commission and/or any Contract Market, or any
similar organization or organizations, regarding account deposits in
connection with transactions by the Portfolio.
2. The responsibilities and liabilities of the Bank as to
Futures, puts and calls traded on commodities exchanges, any Futures
Commission Merchant account and the Segregated Account shall be limited
as set forth in subparagraph (a)(2) of this Section 6.8 as if such
subparagraph referred to Futures Commission Merchants rather than
brokers, and Futures and puts and calls thereon instead of options.
6.9 SEGREGATED ACCOUNT. The Bank shall upon receipt of Proper
Instructions establish and maintain a segregated account or accounts for
and on behalf of any Portfolio of the Trust, into which account(s) (a
"Segregated Account" or, collectively,
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"Segregated Accounts"), upon receipt of Proper Instructions, cash and/or
Portfolio Securities may be transferred:
(a) in accordance with the provisions of any agreement among any
Portfolio of the Trust, the Bank 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 a Portfolio;
(b) for the purpose of segregating cash or securities in
connection with options purchased, or written by any Portfolio of the
Trust or commodity futures purchased or written by any Portfolio of the
Trust;
(c) for the deposit of liquid assets, such as cash, U.S.
Government securities or other high grade debt obligations, having a
market value (marked to the market on a daily basis) at all times equal
to not less than the aggregate purchase price due on the settlement
dates of all of any Portfolio of the Trust's then outstanding forward
commitment or "when-issued" agreements relating to the purchase of
Portfolio Securities and all the Portfolio's then outstanding
commitments under reverse repurchase agreements entered into with
broker-dealer firms;
(d) for the deposit of any Portfolio Securities which any
Portfolio of the Trust has agreed to sell on a forward commitment
basis, all in accordance with Investment Company Act Release No. 10666;
(e) for the purposes of compliance by the Trust and each
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
(f) for other proper corporate purposes, BUT ONLY, in the case of
this clause (f), upon receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board, or of the Executive
Committee signed by an officer of the Trust and certified by the
Secretary of an Assistant Secretary, setting forth the purpose or
purposes of such Segregated Account and declaring such purposes to be
proper corporate purposes.
Assets may be withdrawn from the Segregated Account pursuant to
Proper Instructions only:
(i) in accordance with the provisions of any agreements
referenced in (a) or (b) above;
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(ii) for sale or delivery to meet any Portfolio of the
Trust's obligations under outstanding firm commitment or
when-issued agreements for the purchase of Portfolio Securities
and under reverse repurchase agreements;
(iii) for exchange for other liquid assets of equal or
greater value deposited in the Segregated Account;
(iv) to the extent that any Portfolio of the Trust's
outstanding forward commitment or when-issued agreements for the
purchase of portfolio securities or reverse repurchase agreements
are sold to other parties or the Portfolio's obligations
thereunder are met from assets of the Portfolio other than those
in the Segregated Account; or
(v) for delivery upon settlement of a forward commitment
agreement for the sale of Portfolio Securities.
6.10 INTEREST BEARING CALL OR TIME DEPOSITS. The Bank shall, upon
receipt of Proper Instructions relating to the purchase by any Portfolio of
the Trust of interest bearing fixed term and call deposits, transfer cash,
by wire or otherwise, in such amounts and to such bank or banks as shall be
indicated in such Proper Instructions. The Bank shall include in its
records with respect to the assets of the affected Portfolio appropriate
notation as to the amount of each such deposit, the banking institution
with which such deposit is made (the "Deposit Bank"), and shall retain such
forms of advice or receipt evidencing the deposit, if any, as may be
forwarded to the Bank by the Deposit bank. Such deposits shall be deemed
Portfolio Securities of the Portfolio and the responsibility of the Bank
therefore shall be the same as and no greater than the Bank's
responsibility in respect of other Portfolio Securities of the Portfolio.
6.11 TRANSFER OF SECURITIES. The Bank will transfer, exchange,
deliver or release Portfolio Securities held by it hereunder, insofar as
such Securities are available for such purpose, provided that before making
any transfer, exchange, delivery or release under this Section the Bank
will receive Proper Instructions requesting such transfer, exchange or
delivery stating that it is for a purpose permitted under the terms of this
Section 6.11, specifying the applicable subsection, or describing the
purpose of the transaction with sufficient particularity to permit the Bank
to ascertain the applicable subsection, only:
(a) upon sales of Portfolio Securities for the account of the any
Portfolio of the Trust, against contemporaneous receipt by the Bank of
payment therefor in full or against payment to the Bank in accordance
with generally accepted settlement practices and customs in the
jurisdiction or market in which the transaction occurs, each such
payment to be in the amount of the sale price shown in a broker's
confirmation of sale of the Portfolio Securities received by the Bank
before such transfer is made, as confirmed in the Proper Instructions
received by the Bank before such transfer is made;
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(b) in exchange for or upon conversion into other securities
alone or other securities and cash pursuant to any plan or merger,
consolidation, reorganization, share split-up, change in par value,
recapitalization or readjustment or otherwise, upon exercise of
subscription, purchase or sale or other similar rights represented by
such Portfolio Securities, or for the purpose of tendering shares in
the event of a tender offer therefor, provided however that in the
event of an offer of exchange, tender offer, or other exercise of
rights requiring the physical tender or delivery of Portfolio
Securities, the Bank shall have no liability for failure to so tender
in a timely manner unless such Proper Instructions are received by the
Bank at least two business days prior to the date required for tender,
and unless the Bank (or its agent or subcustodian hereunder) has actual
possession of such Security at least two business days prior to the
date of tender;
(c) upon conversion of Portfolio Securities pursuant to their
terms into other securities;
(d) for the purpose of redeeming in kind interests in any
Portfolio of the Trust upon authorization from the Portfolio;
(e) in the case of option contracts owned by any Portfolio of the
Trust, for presentation to the endorsing broker,
(f) when such Portfolio Securities are called, redeemed or
retired or otherwise become payable;
(g) for the purpose of effectuating the pledge of Portfolio
Securities held by the Bank in order to collateralize loans made to any
Portfolio of the Trust by any bank, including the Bank; provided,
however, that such Portfolio Securities will be released only upon
payment to the Bank for the account of the Portfolio of the moneys
borrowed, except that in cases where additional collateral is required
to secure a borrowing already made, and such fact is made to appear in
the Proper Instructions, further Portfolio Securities may be released
for that purpose without any such payment. If any such pledged
Portfolio Securities are held by the Bank, they will be so held for the
account of the lender, and after notice to the Portfolio from the
lender in accordance with the normal procedures of the lender, that an
event of deficiency or default on the loan has occurred, the Bank may
deliver such pledged Portfolio Securities to or for the account of the
lender;
(h) for the purpose of releasing certificates representing
Portfolio Securities, against contemporaneous receipt by the Bank of
the fair market value of such security, as set forth in Proper
Instructions received by the Bank before such payment is made;
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(i) for the purpose of delivering securities lent by any
Portfolio of the Trust to a bank or broker dealer, but only against
receipt in accordance with street delivery custom except as otherwise
provided herein, of adequate collateral as agreed upon from time to
time by the Portfolio and the Bank, and upon receipt of payment in
connection with any repurchase agreement relating to such securities
entered into by the Portfolio;
(j) for other authorized transactions of any Portfolio of the
Trust or for other proper corporate purposes; provided that before
making such transfer, the Bank will also receive a certified copy of
resolutions of the Board, signed by an authorized officer of the
Portfolio (other than the officer certifying such resolution) and
certified by its Secretary or Assistant Secretary, specifying the
Portfolio Securities to be delivered, setting forth the transaction in
or purpose for which such delivery is to be made, declaring such
transaction to be an authorized transaction of the Portfolio or such
purpose to be a proper corporate purpose, and naming the person or
persons to whom delivery of such securities shall be made; and
(k) upon termination of this Agreement as hereinafter set forth
pursuant to Section 8 and Section 14 of this Agreement.
As to any deliveries made by the Bank pursuant to subsections (a), (b),
(c), (e), (f), (g), (h) and (i) securities or cash receivable in exchange
therefor shall be delivered to the Bank.
7. REDEMPTIONS. In the case of payment of assets of any Portfolio of
the Trust held by the Bank in connection with redemptions and repurchases by the
Portfolio of outstanding common shares, the Bank will rely on notification by
the Portfolio's transfer agent of receipt of a request for redemption and
certificates if issued, in proper form for redemption before such payment is
made. Payment shall be made in accordance with the Articles and Bylaws of the
Trust, from assets available for said purpose.
8. MERGER, DISSOLUTION, ETC. OF A PORTFOLIO. In the case of the
following transactions, not in the ordinary course of business, namely, the
merger of any Portfolio of the Trust into or the consolidation of any Portfolio
of the Trust with another investment company, the sale by any Portfolio of the
Trust of all, or substantially all, of its assets to another investment company,
or the liquidation or dissolution of any Portfolio of the Trust and distribution
of its assets, the Bank will deliver the Portfolio Securities held by it under
this Agreement and disburse cash only upon the order of the Portfolio set forth
in an Officers' Certificate, accompanied by a certified copy of a resolution of
the Board authorizing any of the foregoing transactions. Upon completion of such
delivery and disbursement and the payment of the fees, disbursements and
expenses of the Bank, this Agreement will terminate.
9. ACTIONS OF BANK WITHOUT PRIOR AUTHORIZATION. Notwithstanding
anything herein to the contrary, unless and until the Bank receives an Officers'
Certificate to the contrary, it will without prior authorization or instruction
of any Portfolio or the Trust or the transfer agent:
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9.1 endorse for collection and collect on behalf of and in the
name of any Portfolio of the Trust all checks, drafts, or other negotiable
or transferable instruments or other orders for the payment of money
received by it for the account of the Portfolio and hold for the account of
the Portfolio all income, dividends, interest and other payments or
distribution of cash with respect to the Portfolio Securities held
thereunder;
9.2 present for payment all coupons and other income items held
by it for the account of any Portfolio of the Trust which call for payment
upon presentation and hold the cash received by it upon such payment for
the account of the Portfolio;
9.3 receive and hold for the account of any Portfolio of the
Trust all securities received as a distribution on Portfolio Securities as
a result of a stock dividend, share split-up, reorganization,
recapitalization, merger, consolidation, readjustment, distribution of
rights and similar securities issued with respect to any Portfolio
Securities held by it hereunder;
9.4 execute as agent on behalf of any Portfolio of the Trust all
necessary ownership and other certificates and affidavits required by the
Internal Revenue Code or the regulations of the Treasury Department issued
thereunder, or by the laws of any state, now or hereafter in effect,
inserting the Trust's name on such certificates as the owner of the
securities covered thereby, to the extent it may lawfully do so and as may
be required to obtain payment in respect thereof. The Bank will execute and
deliver such certificates in connection with Portfolio Securities delivered
to it or by it under this Agreement as may be required under the provisions
of the Internal Revenue Code and any Regulations of the Treasury Department
issued thereunder, or under the laws of any State;
9.5 present for payment all Portfolio Securities which are
called, redeemed, retired or otherwise become payable, and hold cash
received by it upon payment for the account of any Portfolio of the Trust;
and
9.6 exchange interim receipts or temporary securities for
definitive securities.
10. COLLECTION; DEFAULTS. The Bank will use all reasonable effort to
collect any funds which may to its knowledge become collectible arising from
Portfolio Securities, including dividends, interest and other income, and to
transmit promptly to the Trust notice actually received by it of any call for
redemption, offer of exchange, right of subscription, reorganization or other
proceedings affecting such Securities.
If Portfolio Securities upon which such income is payable are in default
or payment is refused after due demand or presentation, the Bank will notify the
Trust in writing of any default or refusal to pay within two business days from
the day on which it receives knowledge of such default or refusal. In addition,
the Bank will send the Trust a written report once each month showing any income
on any Portfolio Security held by it which is
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more than ten days overdue on the date of such report and which has not
previously been reported.
11. MAINTENANCE OF RECORDS. The Bank will maintain records with respect to
transactions for which the Bank is responsible pursuant to the terms and
conditions of this Agreement, and in compliance with the applicable rules and
regulations of the Act and applicable federal and state tax laws, and will
furnish the Trust daily with a statement of condition of each Portfolio of the
Trust. The Bank will furnish to the Trust at the end of every month, and at the
close of each quarter of the Trust's fiscal year, a list of the Portfolio
Securities and the aggregate amount of cash held by it for each portfolio of the
Trust. The books and records of the Bank pertaining to its actions under this
Agreement and reports by the Bank or its independent accountants concerning its
accounting system, procedures for safeguarding securities and internal
accounting controls will be open to inspection and audit at reasonable times by
officers of or auditors employed by the Trust and will be preserved by the Bank
in the manner and in accordance with the applicable rules and regulations under
the Act.
The Bank shall keep the books of account and render statements or copies
from time to time as reasonably requested by the Treasurer or any executive
officer of the Trust.
The Bank shall assist generally in the preparation of reports to
shareholders and others, audits of accounts, and other ministerial matters of
like nature.
12. PORTFOLIO EVALUATION. The Bank shall compute and, unless otherwise
directed by the Board, determine as of the close of business on the New York
Stock Exchange on each day on which said Exchange is open for unrestricted
trading and as of such other hours, if any, as may be authorized by the Board
the net asset value and the public offering price of a share of capital stock of
each Portfolio of the Trust, such determination to be made in accordance with
the provisions of the Articles and By-laws of the Trust and Prospectus and
Statement of Additional Information relating to each Portfolio and the Trust, as
they may from time to time be amended, and any applicable resolutions of the
Board at the time in force and applicable; and promptly to notify the Trust and
the National Association of Securities Dealers ("NASD") or such other persons as
the Trust may request of the results of such computation and determination. In
computing the net asset value hereunder, the Bank may rely in good faith upon
information furnished to it by any Authorized Person in respect of (i) the
manner of accrual of the liabilities of each Portfolio of the Trust and in
respect of liabilities of any Portfolio of the Trust not appearing on its books
of account kept by the Bank, (ii) reserves, if any, authorized by the Board or
that no such reserves have been authorized, (iii) the source of the quotations
to be used in computing the net asset value, (iv) the value to be assigned to
any security for which no price quotations are available, and (v) the method of
computation of the public offering price on the basis of the net asset value of
the shares, and the Bank shall not be responsible for any loss occasioned by
such reliance on any quotations received from a source pursuant to (iii) above.
13. CONCERNING THE BANK.
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13.1 PERFORMANCE OF DUTIES; STANDARD OF CARE. In performing its duties
hereunder and any other duties listed on any Schedule hereto, if any, the
Bank will be entitled to receive and act upon the advice of independent
counsel of its own selection and reasonably acceptable to the Trust, which
may be counsel for the Trust, and will be without liability for any action
taken or thing done or omitted to be done in accordance with this Agreement
in good faith in conformity with such advice. In the performance of its
duties hereunder, the Bank will be protected and not be liable, and will be
indemnified and saved harmless for any action taken or omitted to be taken
by it in good faith reliance upon the terms of this Agreement, any
Officers' Certificate, Proper Instructions, resolution of the Board,
telegram, notice, request, certificate or other instrument reasonably
believed by the Bank to be genuine and for any other loss to any Portfolio
of the Trust except in the case of its gross negligence, willful
misfeasance or bad faith in the performance of its duties or reckless
disregard of its obligations and duties hereunder.
The Bank will be under no duty or obligation to inquire into and will
not be liable for:
(a) the validity of the issue of any Portfolio Securities
purchased by or for any Portfolio of the Trust, the legality of the
purchases thereof or the propriety of the price incurred therefor;
(b) the legality of any sale of any Portfolio Securities
by or for any Portfolio of the Trust or the propriety of the amount for
which the same are sold;
(c) the legality of an issue or sale of any common shares
of any Portfolio of the Trust or the sufficiency of the amount to be
received therefor;
(d) the legality of the repurchase of any common shares
of any Portfolio of the Trust or the propriety of the amount to be paid
therefor;
(e) the legality of the declaration of any dividend by
any Portfolio of the Trust or the legality of the distribution of any
Portfolio Securities as payment in kind of such dividend; or
(f) any property or moneys of any Portfolio of the Trust
unless and until received by it, and any such property or moneys
delivered or paid by it pursuant to the terms hereof.
Moreover, the Bank will not be under any duty or
obligation to ascertain whether any Portfolio Securities at any time
delivered to or held by it for the account of any Portfolio of the
Trust are such as may properly be held by such Portfolio under the
provisions of the Articles and By-laws of the Trust, any federal or
state statutes or any rule or regulation of any governmental agency.
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Notwithstanding anything in this Agreement to the
contrary, in no event shall the Bank be liable hereunder or to any
third party:
(a) for any losses or damages of any kind resulting from
acts of God, earthquakes, fires, floods, storms or other disturbances
of nature, epidemics, strikes, riots, nationalization, expropriation,
currency restrictions, acts of war, civil war or terrorism,
insurrection, nuclear fusion, fission or radiation, the interruption,
loss or malfunction of utilities, transportation, or computers
(hardware or software) and computer facilities, the unavailability of
energy sources and other similar happenings or events except as result
from the Bank's own gross negligence; or
(b) for special, punitive or consequential damages
arising from the provision of services hereunder, even if the Bank has
been advised of the possibility of such damages.
13.2 AGENTS AND SUBCUSTODIANS. The Bank may employ agents in
the performance of its duties hereunder and shall be responsible for the
acts and omissions of such agents as if performed by the Bank hereunder.
Upon receipt of Proper Instructions, the Bank may employ
subcustodians in accordance with such instructions, provided that any such
subcustodian meets at least the minimum qualifications required by Section
17(f) of the Act to act as a custodian of any Portfolio of the Trust's
assets, and provided further that the Bank shall have no more or less
responsibility to any Portfolio of the Trust on account of any actions or
omissions of any subcustodian so employed than any such subcustodian has to
the Bank, provided that the liability limitations have been disclosed to
the Trust. At the election of the Trust, it shall be entitled to be
subrogated to the rights of the Bank with respect to any claims against a
subcustodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that any Portfolio or the Trust has
not been made whole for any such loss, damage, cost, expense, liability or
claim.
The affected Portfolio(s) of the Trust shall pay all
appropriately apportioned fees and expenses of any subcustodian.
13.3 INSURANCE. the Bank shall use the same care with respect
to the safekeeping of Portfolio Securities and cash of any Portfolio of the
Trust held by it as it uses in respect of its own similar property, but it
need not maintain any special insurance for the benefit of any Portfolio or
the Trust.
13.4 FEES AND EXPENSES OF BANK. The affected Portfolio of the
Trust will pay or reimburse the Bank from time to time for any transfer
taxes payable upon transfer of Portfolio Securities made hereunder, and for
all necessary proper disbursements, expenses and charges made or incurred
by the Bank in the performance of this Agreement (including any duties
listed on any Schedule hereto, if any) including any indemnities for any
loss, liabilities or expense to the Bank as provided above. For the
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services rendered by the Bank hereunder, the affected Portfolio will pay to
the Bank such compensation or fees at such rate and at such times as shall
be agreed upon in writing by the parties from time to time. The Bank will
also be entitled to reimbursement by any Portfolio or the Trust for all
reasonable expenses incurred in conjunction with termination of this
Agreement by the any Portfolio or the Trust.
13.5 ADVANCES BY BANK. The Bank may, in its sole discretion,
advance funds on behalf of any Portfolio of the Trust to make any payment
permitted by this Agreement upon receipt of any Proper Instructions from
the Portfolio authorizing such payments. Should such a payment or payments,
with advanced funds, result in an overdraft (due to insufficiencies of the
Portfolio's account with the Bank, or for any other reason) any such
overdraft or related indebtedness shall be deemed a loan made by the Bank
to the Portfolio payable on demand and bearing interest at the current rate
charged by the Bank for such loans unless the Portfolio shall provide the
Bank with agreed upon compensating balances. The Portfolio agrees that the
Bank shall have a continuing lien and security interest to the extent of
any overdraft or indebtedness, in and to any property at any time held by
it for the Portfolio's benefit or in which the Portfolio has an interest
and which is then in the Bank's possession or control (or in the possession
or control of any third party acting on the Bank's behalf). The Portfolio
authorizes the Bank, in its sole discretion, at any time to charge any
overdraft of indebtedness, together with interest due thereon against any
balance of account standing to the credit of the Portfolio on the Bank's
books.
14. TERMINATION.
14.1 This Agreement may be terminated at any time without penalty
upon sixty days written notice delivered by either party to the other by
means of registered mail, and upon the expiration of such sixty days this
Agreement will terminate; provided, however, that the effective date of
such termination may be postponed to a date not more than ninety days from
the date of delivery of such notice (i) by the Bank in order to prepare for
the transfer by the Bank of all of the assets of any Portfolio or the Trust
held hereunder, and (ii) by any Portfolio or the trust in order to give the
Portfolio or the Trust an opportunity to make suitable arrangements for a
successor custodian. At any time after the termination of this Agreement,
any Portfolio or the Trust will, at its request, have access to the records
of the Bank relating to the performance of its duties as custodian.
14.2 In the event of the termination of this Agreement, the Bank
will immediately upon receipt or transmittal, as the case may be, of notice
of termination, commence and prosecute diligently to completion the
transfer of all cash and the delivery of all Portfolio Securities held by
it hereunder, duly endorsed, together with all records maintained under
Section 11, to the successor custodian when appointed by any Portfolio or
the Trust. The obligation of the Bank to deliver and transfer over the
assets of any Portfolio or the Trust held by it directly to such successor
custodian will commence as soon as such successor is appointed and will
continue until completed as
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aforesaid. If any Portfolio or the Trust does not select a successor
custodian within ninety (90) days from the date of delivery of notice of
termination the Bank may, subject to the provisions of subsection (13.4),
deliver the Portfolio Securities and cash of any Portfolio or the Trust
held by the Bank to a bank or trust company of its own selection which
meets the requirements of Section 17(f)(1) of the Act and has a reported
capital, surplus and undivided profits aggregating not less than
$2,000,000, to be held by such bank or trust company as the property of any
Portfolio or the Trust under terms similar to those on which they were held
by the Bank, whereupon such bank or trust company so selected by the Bank
will become the successor custodian of such assets of any Portfolio or the
Trust with the same effect as though selected by the Board.
14.3 Prior to the expiration of ninety (90) days after notice of
termination has been given, the Portfolio or the Trust may furnish the Bank
with an order of the Portfolio or the Trust advising that a successor
custodian cannot be found willing and able to act upon reasonable and
customary terms and that there has been submitted to the shareholders of
the Portfolio or the Trust the question or whether the Portfolio or the
Trust will be liquidated or will function without a custodian for the
assets of the Portfolio or the Trust held by the Bank. In that event the
Bank will deliver the Portfolio Securities and cash of the Portfolio or the
Trust held by it, in accordance with such alternatives as is approved by
the requisite vote of shareholders, upon receipt by the Bank of a copy of
the minutes of the meeting of shareholders at which action was taken,
certified by the Trust's Secretary and an opinion of counsel to the Trust
in form and content satisfactory to the Bank.
15. CONFIDENTIALITY. Both parties hereto agree that any non-public
information obtained hereunder concerning the other party is confidential and
may not be disclosed to any other person without the consent of the other party,
except as may be required by applicable law or at the request of a governmental
agency. The parties further agree that a breach of this provision would
irreparably damage the other party and accordingly agree that each of them is
entitled, without bond or other security, to an injunction or injunctions to
prevent breaches of this provision.
16. NOTICES. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below; namely:
(a) In the case of notices sent to any Portfolio or the Trust to:
Select Advisors Trust II
000 Xxxxxxxx
Xxxxxxxxxx, Xxxx 00000
(b) In the case of notices sent to the Bank to:
Investors Bank & Trust Company
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X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
or at such other place as such party may from time to time designate in
writing.
17. AMENDMENTS. This Agreement may not be altered or amended, except by an
instrument in writing, executed by both parties, and in the case of the Trust,
such alteration or amendment will be authorized and approve by its Board.
18. PARTIES. This Agreement will be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement will not be assignable by the Trust
without the written consent of the Bank or by the Bank without the written
consent of the Trust, authorized and approved by its Board; and provided further
that termination proceedings pursuant to Section 14 hereof will not be deemed to
be an assignment within the meaning of this provision.
19. GOVERNING LAW. This Agreement and all performance hereunder will be
governed by the laws of the Commonwealth of Massachusetts.
20. LIMITATIONS OF LIABILITY. A copy of the Declaration of Trust of the
Trust is on file with the Secretary of the State, and notice is hereby given
that this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of this instrument are
not binding upon any of the Trustees of Officers of the Trust individually.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first written above.
SELECT ADVISORS TRUST II
BY: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------
ATTEST:
/s/ Xxxx X. Xxxxxxxx
-----------------------------
INVESTORS BANK AND TRUST
COMPANY
BY: /s/ Xxxxx X. Xxxxxxx
----------------------------
ATTEST:
/s/ Xxxx Xxxxxxx
-----------------------------
DATE: 8/22/94
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