Exhibit 8 under Form N-1A
Exhibit 10 uner Item 601/Reg. S-K
BANKERS TRUST COMPANY
Xxx Xxxxxxx Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Mailing Address:
X.X. Xxx 000, Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Mutual Fund/Business Trust/Non-Series
CUSTODIAN AGREEMENT
AGREEMENT dated as of July 1, 1996 between BANKERS TRUST
COMPANY (the "Custodian") and CAPITAL APPRECIATION PORTFOLIO (the
"Customer").
WHEREAS, the Customer desires to appoint the Custodian as
custodian on behalf of the Customer under the terms and conditions set
forth in this Agreement, and the Custodian has agreed to so act as
custodian.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Employment of Custodian. The Customer hereby employs the
Custodian as custodian of all assets of the Customer which are
delivered to and accepted by the Custodian or any Subcustodian (as
that term is defined in Section 4) (the "Property") pursuant to the
terms and conditions set forth herein. Without limitation, such
Property shall include stocks and other equity interests of every
type, evidences of indebtedness, other instruments representing same
or rights or obligations to receive, purchase, deliver or sell same
and other non-cash investment property of the Customer which is
acceptable for deposit ("Securities") and cash from any source and in
any currency ("Cash"). The Custodian shall not be responsible for any
property of the Customer held or received by the Customer or others
and not delivered to the Custodian or any Subcustodian.
2. Maintenance of Securities and Cash at Custodian and
Subcustodian Locations. Pursuant to Instructions, the Customer shall
direct the Custodian to (a) settle Securities transactions and
maintain cash in the country or other jurisdiction in which the
principal trading market for such Securities is located, where such
Securities are to be presented for payment or where such Securities
are acquired and (b) maintain cash and cash equivalents in such
countries in amounts reasonably necessary to effect the Customer's
transactions in such Securities. Instructions to settle Securities
transactions in any country shall be deemed to authorize the holding
of such Securities and Cash in that country.
3. Custody Account. The Custodian agrees to establish and
maintain custody account or accounts on its books in the name of the
Customer (the "Account") for any and all Property from time to time
received and accepted by the Custodian or any Subcustodian for the
Account of the Customer. The Custodian shall have the right, in its
sole discretion, to refuse to accept any Property that is not in
proper form for deposit for any reason. The Customer acknowledges its
responsibility as a principal for all of its obligations to the
Custodian arising under or in connection with this Agreement, warrants
its authority to deposit in the Account any Property received therefor
by the Custodian or a Subcustodian and to give, and authorize others
to give, instructions relative thereto. The Custodian may deliver
securities of the same class in place of those deposited in the
Account.
The Custodian shall hold, keep safe and protect as custodian
for the Account, on behalf of the Customer, all Property in such
Account. All transactions, including, but not limited to, foreign
exchange transactions, involving the Property shall be executed or
settled solely in accordance with Instructions, except that until the
Custodian receives Instructions to the contrary, the Custodian will:
(a) collect all interest and dividends and all other
income and payments, whether paid in cash or in
kind, on the Property, as the same become payable
and credit the same to the Account;
(b) present for payment all Securities held in the
Account which are called, redeemed or retired or
otherwise become payable and all coupons and other
income items which call for payment upon
presentation to the extent that the Custodian or
Subcustodian is actually aware of such opportunities
and hold the cash received in the Account pursuant
to this Agreement;
(c) (i) exchange Securities where the exchange is purely
ministerial (including, without limitation, the
exchange of temporary securities for those in
definitive form and the exchange of warrants, or
other documents of entitlement to securities, for
the Securities themselves) and (ii) when
notification of a tender or exchange offer (other
than ministerial exchanges described in (i) above is
received for the Account, endeavor to receive
Instructions, provided that if such Instructions are
not received in time for the Custodian to take
timely action, no action shall be taken with respect
thereto;
(d) whenever notification of a rights entitlement or a
fractional interest resulting from a rights issue,
stock dividend or stock split is received for the
Account and such rights entitlement or fractional
interest bears an expiration date, if after
endeavoring to obtain Instructions such Instructions
are not received in time for the Custodian to take
timely action or if actual notice of such actions
was received too late to seek Instructions, sell in
the discretion of the Custodian (which sale the
Customer hereby authorizes the Custodian to make)
such rights entitlement or fractional interest and
credit the Account with the net proceeds of such
sale;
(e) execute in the Customer's name for the Account,
whenever the Custodian deems it appropriate, such
ownership and other certificates as may be required
to obtain the payment of income from the Property in
the Account;
(f) pay for the Account, any and all taxes and levies in
the nature of taxes imposed on interest, dividends
or other similar income on the Property in the
Account by any governmental authority. In the event
there is insufficient Cash available in the Account
to pay such taxes and levies, the Custodian shall
notify the Customer of the amount of the shortfall
and the Customer, at its option, may deposit
additional Cash in the Account or take steps to have
sufficient Cash available. The Customer agrees, when
and if requested by the Custodian and required in
connection with the payment of any such taxes to
cooperate with the Custodian in furnishing
information, executing documents or otherwise; and
(g) appoint brokers and agents for any of the
ministerial transactions involving the Securities
described in (a) - (f), including, without
limitation, affiliates of the Custodian or any
Subcustodian.
4. Subcustodians and Securities Systems. The Customer
authorizes and instructs the Custodian to hold the Property in the
Account in custody accounts which have been established by the
Custodian with (a) one of its U.S. branches or another U.S. bank or
trust company or branch thereof located in the U.S. which is itself
qualified under the Investment Company Act of 1940, as amended ("1940
Act"), to act as custodian (individually, a "U.S. Subcustodian"), or a
U.S. securities depository or clearing agent or system in which the
Custodian or a U.S. Subcustodian participates (individually, a "U.S.
Securities System") or (b) one of its non-U.S. branches or
majority-owned non-U.S. subsidiaries, a non-U.S. branch or
majority-owned subsidiary of a U.S. bank or a non-U.S. bank or trust
company, acting as custodian (individually, a "non-U.S. Subcustodian";
U.S. Subcustodians and non-U.S. Subcustodians, collectively,
"Subcustodians"), or a non-U.S. depository or clearing agency or
system in which the Custodian or any Subcustodian participates
(individually, a "non-U.S. Securities System"; U.S. Securities System
and non-U.S. Securities System, collectively, "Securities System"),
provided that in each case in which a U.S. Subcustodian or U.S.
Securities System is employed, each such Sub-Custodian or Securities
System shall have been approved by Instructions; provided further that
in each case in which a non-U.S. Subcustodian or non-U.S. Securities
System is employed, (a) such Subcustodian or Securities System either
(i) a "qualified U.S. bank" as defined by Rule 17f-5 under the 1940
Act ("Rule 17f-5") or (ii) an "eligible foreign custodian" within the
meaning of rule 17f-5 or such Subcustodian or Securities System is the
subject of an order granted by the U.S. Securities and Exchange
Commission ("SEC") exempting such agent or the subcustody arrangements
thereto from all or part of the provisions of Rule 17f-5 and (b) the
agreement between the Custodian and such non-U.S. Subcustodian has
been approved by Instructions; it being understood that the Custodian
shall have no liability or responsibility for determining whether the
approval by the Customer of any Subcustodian or Securities System has
been proper under the 1940 Act or any rule or regulations thereunder.
Upon receipt of Instructions, the Custodian agrees to cease
the employment of any Subcustodian or Securities System with respect
to the Customer, and if desirable and practicable, appoint a
replacement subcustodian or securities system in accordance with the
provisions of this Section. In addition, the Custodian may, at any
time in its discretion, upon written notification to the Customer,
terminate the employment of any Subcustodian or Securities System.
Upon request of the Customer, the Custodian shall deliver to
the Customer annually a certificate stating: (a) the identity of each
non-U.S. Subcustodian and non-U.S. Securities System then acting on
behalf of the Custodian and the name and address of the governmental
agency or other regulatory authority that supervises or regulates such
non-U.S. Subcustodian and non-U.S. Securities System; (b) the
countries in which each non-U.S. Subcustodian or non-U.S. Securities
System is located; and (c) so long as Rule 17f-5 requires the
Customer's Board of Trustees to directly approve its foreign custody
arrangements, such other information relating to such non-U.S.
Subcustodians and non-U.S. Securities Systems as may reasonably be
requested by the Customer to ensure compliance with Rule 17f-5. So
long as Rule 17f-5 requires the Customer's Board of Trustees to
directly approve its foreign custody arrangements, the Custodian also
shall furnish annually to the Customer information concerning such
non-U.S. Subcustodians and non-U.S. Securities Systems similar in kind
and scope as that furnished to the Customer in connection with the
initial approval of this Agreement. Custodian agrees to promptly
notify the Customer, if in the normal course of its custodian
activities, the Custodian has reason to believe that any non-U.S.
Subcustodian or non-U.S. Securities System has ceased to be a
qualified U.S. bank or an eligible foreign custodian each within the
meaning of Rule 17f-5 or has ceased to be subject to an exemptive
order from the SEC.
5. Use of Subcustodian. With respect to Property in the Account
which is maintained by the Custodian in the custody of a Subcustodian employed
pursuant to Section 4:
(a) The Custodian will identify on its books as belonging to the
Customer any Property held by such Subcustodian.
(b) Any Property in the Account held by a Subcustodian will be
subject only to the instructions of the Custodian or its agents.
(c) Property deposited with a Subcustodian will be maintained in
an account holding only assets for customers of the Custodian.
(d) Any agreement the Custodian shall enter into with a non-U.S.
Subcustodian with respect to the holding of Property shall require
that (i) the Account will be adequately indemnified or its losses
adequately insured; (ii) the Securities are not subject to any right,
charge, security interest, lien or claim of any kind in favor of such
Subcustodian or its creditors except a claim for payment in accordance
with such agreement for their safe custody or administration and
expenses related thereto, (iii) beneficial ownership of such
Securities be freely transferable without the payment of money or
value other than for safe custody or administration and expenses
related thereto, (iv) adequate records will be maintained identifying
the Property held pursuant to such Agreement as belonging to the
Custodian, on behalf of its customers and (v) to the extent permitted
by applicable law, officers of or auditors employed by, or other
representatives of or designated by, the Custodian, including the
independent public accountants of or designated by, the Customer be
given access to the books and records of such Subcustodian relating to
its actions under its agreement pertaining to any Property by it
thereunder or confirmation of or pertinent information contained in
such books and records be furnished to such persons designated by the
Custodian.
6. Use of Securities System. With respect to Property in the
Account which are maintained by the Custodian or any Subcustodian in
the custody of a Securities System employed pursuant to Section 4:
(a) The Custodian shall, and the Subcustodian will be
required by its agreement with the Custodian to,
identify on its books such Property as being held
for the account of the Custodian or Subcustodian for
its customers.
(b) Any Property held in a Securities System for the
account of the Custodian or a Subcustodian will be
subject only to the instructions of the Custodian or
such Subcustodian, as the case may be.
(c) Property deposited with a Securities System will be
maintained in an account holding only assets for
customers of the Custodian or Subcustodian, as the
case may be, unless precluded by applicable law,
rule, or regulation.
(d) The Custodian shall provide the Customer with any
report obtained by the Custodian on the Securities
System's accounting system, internal accounting
control and procedures for safeguarding securities
deposited in the Securities System.
7. Agents. The Custodian may at any time or times in its sole
discretion appoint (or remove) any other U. S. bank or trust company
which is itself qualified under the 1940 Act to act as custodian, as
its agent to carry out such of the provisions of this Agreement as the
Custodian may from time to time direct; provided, however, that the
appointment of any agent shall not relieve the Custodian of its
responsibilities or liabilities hereunder.
8. Records, Ownership of Property, Statements, Opinions of
Independent Certified Public Accountants.
(a) The ownership of the Property whether Securities, Cash
and/or other property, and whether held by the Custodian or a
Subcustodian or in a Securities System as authorized herein, shall be
clearly recorded on the Custodian's books as belonging to the Account
and not for the Custodian's own interest. The Custodian shall keep
accurate and detailed accounts of all investments, receipts,
disbursements and other transactions for the Account. All accounts,
books and records of the Custodian relating thereto shall be open to
inspection and audit at all reasonable times during normal business
hours by any person designated by the Customer. All such accounts
shall be maintained and preserved in the form reasonably requested by
the Customer. The Custodian will supply to the Customer from time to
time, as mutually agreed upon, a statement in respect to any Property
in the Account held by the Custodian or by a Subcustodian. In the
absence of the filing in writing with the Custodian by the Customer of
exceptions or objections to any such statement within sixty (60) days
of the mailing thereof, the Customer shall be deemed to have approved
such statement within sixty (60) days of the mailing thereof, the
Customer shall be deemed to have approved such statement and in such
case or upon written approval of the Customer of any such statement,
such statement shall be presumed to be for all purposes correct with
respect to all information set forth therein.
(b) The Custodian shall take all reasonable action as the
Customer may request to obtain from year to year favorable opinions
from the Customer's independent certified public accountants with
respect to the Custodian's activities hereunder in connection with the
preparation of the Customer's Form N-1A and the Customer's Form N-SAR
or other periodic reports to the SEC and with respect to any other
requirements of the SEC.
(c) At the request of the Customer, the Custodian shall
deliver to the Customer a written report prepared by the Custodian's
independent certified public accountants with respect to the services
provided by the Custodian under this Agreement, including, without
limitation, the Custodian's accounting system, internal accounting
control and procedures for safeguarding Cash and Securities, including
Cash and Securities deposited and/or maintained in a securities system
or with a Subcustodian. Such report shall be of sufficient scope and
in sufficient detail as may reasonably be required by the Customer and
as may reasonably be obtained by the Custodian.
(d) The Customer may elect to participate in any of the
electronic on-line service and communications systems offered by the
Custodian which can provide the Customer, on a daily basis, with the
ability to view on-line or to print on hard copy various reports of
Account activity and of Securities and/or Cash being held in the
Account. To the extent that such service shall include market values
in Securities in the Account, the Customer hereby acknowledges that
the Custodian now obtains and may in the future obtain information on
such values from outside sources that the Custodian considers to be
reliable and the Customer agrees that the Custodian (i) does not
verify or represent or warrant either the reliability of such service
nor the accuracy or completeness of any such information furnished or
obtained by or through such service and (ii) shall be without
liability in selecting and utilizing such service or furnishing any
information derived therefrom.
9. Holding of Securities, Nominees, etc. Securities in the
Account which are held by the Custodian or any Subcustodian may be
held by such entity in the name of the Customer in the Custodian's or
Subcustodian's name, in the name of the Custodian's or Subcustodian's
nominee, or in bearer form. Securities that are held by a Subcustodian
or which are eligible for deposit in a Securities System as provided
above may be maintained in the Subcustodian or the Securities System
in an account for the Customer's or Subcustodian's customers, unless
prohibited by law, rule, or regulation. The Custodian or Subcustodian,
as the case may be, may combine certificates representing Securities
held in the Account with certificates of the same issue held by it as
fiduciary or as a custodian. In the event that any Securities in the
name of the Custodian or its nominee or held by a Subcustodian and
registered in the name of such Subcustodian or its nominee are called
for partial redemption by the issuer of such Security, the Custodian
may, subject to the rules or regulations pertaining to allocation of
any Securities System in which such Securities have been deposited,
allot, or cause to be allotted, the called portion of the respective
beneficial holders of such class of security in any manner the
Custodian deems to be fair and equitable.
10. Proxies, etc. With respect to any proxies, notices,
reports or other communications relative to any of the Securities in
the Account, the Custodian shall perform such services and only such
services relative thereto as are (i) set forth in Section 3 of this
Agreement, (ii) described in Exhibit A attached hereto (as such
service therein described may be in effect from time to time) (the
"Proxy Service") and (iii) as may otherwise be agreed upon between the
Custodian and the Customer. The liability and responsibility of the
Custodian in connection with the Proxy Service referred to in (ii) of
the immediately preceding sentence and in connection with any
additional services which the Custodian and the Customer may agree
upon as provided in (iii) of the immediately preceding sentence shall
be as set forth in the description of the Proxy Service and as may be
agreed upon by the Custodian and the Customer in connection with the
furnishing of any such additional service and shall not be affected by
any other term of this Agreement. Neither the Custodian nor its
nominees or agents shall vote upon or in respect of any of the
Securities in the Account, execute any form of proxy to vote thereon,
or give any consent or take any action (except as provided in Section
3) with respect thereto except upon the receipt of Instructions
relative thereto.
11. Segregated Account. To assist the Customer in complying with
the requirements of the 1940 Act and the rules and regulations
thereunder, the Custodian shall, upon receipt of Instructions,
establish and maintain a segregated account or accounts on its books
for and on behalf of the Customer.
12. Settlement Procedures. Securities will be transferred,
exchanged or delivered by the Custodian or a Subcustodian upon receipt
by the Custodian of Instructions which include all information
required by the Custodian. Settlement and payment for Securities
received for the Account and delivery of Securities out of the Account
may be effected in accordance with the customary or established
securities trading or securities processing practices and procedures
in the jurisdiction or market in which the transaction occurs,
including, without limitation, delivering Securities to the purchaser
thereof or to a dealer therefor (or an agent for such purchaser or
dealer) against a receipt with the expectation of receiving later
payment for such Securities from such purchaser or dealer, as such
practices and procedures may be modified or supplemented in accordance
with the standard operating procedures of the Custodian in effect from
time to time for that jurisdiction or market. Provided that the
Custodian effects transactions in accordance with the customary or
established securities trading or securities processing practice or
procedures in the applicable jurisdiction or market, it shall not be
responsible for any loss arising therefrom. Subject to the exercise of
reasonable care, the Custodian may elect to effect transactions
otherwise in a jurisdiction or market.
Notwithstanding that the Custodian may settle purchases and
sales against, or credit income to, the Account, on a contractual
basis, as outlined in the Investment Manager User Guide provided to
the Customer by the Custodian, the Custodian may, at its sole option,
reverse such credits or debits to the Account in the event that the
transaction does not settle, or the income is not received in a timely
manner, and the Customer agrees to hold the Custodian harmless from
any losses which may result therefrom.
Except as otherwise may be agreed upon by the parties hereto,
the Custodian shall not be required to comply with Instructions to
settle the purchase of any Securities for the Account unless there is
sufficient Cash in the Account at the time or to settle the sale of
any Securities in the Account unless such Securities are in
deliverable form. Notwithstanding the foregoing, if the purchase price
of such securities exceeds the amount of Cash in the Account at the
time of settlement of such purchase, the Custodian may, in its sole
discretion, but in no way shall have any obligation to, permit an
overdraft in the Account in the amount of the difference solely for
the purpose of facilitating the settlement of such purchase of
securities for prompt delivery to the Account. The Customer agrees to
immediately repay the amount of any such overdraft in the ordinary
course of business and further agrees to indemnify and hold the
Custodian harmless from and against any and all losses, costs,
including, without limitation the cost of funds, and expenses incurred
in connection with such overdraft. The Customer agrees that it will
not use the Account to facilitate the purchase of securities without
sufficient funds in the Account (which funds shall not include the
proceeds of the sale of the purchased securities).
13. Permitted Transactions. The Customer agrees that it will
cause transactions to be made pursuant to this Agreement only upon
Instructions in accordance Section 14 and only for the purposes listed
below.
(a) In connection with the purchase or sale of Securities at
prices as confirmed by Instructions.
(b) When Securities are called, redeemed or retired, or otherwise
become payable.
(c) In exchange for or upon conversion into other securities
alone or other securities and cash pursuant to any plan or merger,
consolidation, reorganization, recapitalization or readjustment.
(d) Upon conversion of Securities pursuant to their terms into
other securities.
(e) Upon exercise of subscription, purchase or other similar
rights represented by Securities.
(f) For the payment of interest, taxes, management or supervisory
fees, distributions or operating expenses.
(g) In connection with any borrowings by the Customer requiring a
pledge of Securities, but only against receipt of amounts borrowed.
(h) In connection with any loans, but only against receipt of
collateral as specified in Instructions which shall reflect any
restrictions applicable to the Customer.
(i) For the purpose of redeeming shares of the capital stock of
the Customer against delivery of the shares to be redeemed to the
Custodian, a Subcustodian or the Customer's transfer agent.
(j) For the purpose of redeeming in kind shares of the Customer
against delivery of the shares to be redeemed to the Custodian, a
Subcustodian or the Customer's transfer agent.
(k) For delivery in accordance with the provisions of any
agreement among the Customer, the Custodian and a broker-dealer
registered under the Securities Exchange Act of 1934 and a member of
the National Association of Securities Dealers, Inc., relating to
compliance with the rules of The Options Clearing Corporation, the
Commodities Futures Trading Commission 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 Customer.
(l) For release of Securities to designated brokers under covered
call options, provided, however, that such Securities shall be
released only upon payment to the Custodian of monies for the premium
due and a receipt for the Securities which are to be held in escrow.
Upon exercise of the option, or at expiration, the Custodian will
receive the Securities previously deposited from broker. The Custodian
will act strictly in accordance with Instructions in the delivery of
Securities to be held in escrow and will have no responsibility or
liability for any such Securities which are not returned promptly when
due other than to make proper request for such return.
(m) For spot or forward foreign exchange transactions to
facilitate security trading or receipt of income from Securities
related transactions.
(n) Upon the termination of this Agreement as set forth in
Section 20.
(o) For other proper purposes.
The Customer agrees that the Custodian shall have no
obligation to verify the purpose for which a transaction is being
effected.
14. Instructions. The term "Instructions" means instructions
from the Customer in respect of any of the Custodian's duties
hereunder which have been received by the Custodian at its address set
forth in Section 21 below (i) in writing (including, without
limitation, facsimile transmission) or by tested telex signed or given
by such one or more person or persons as the Customer shall have from
time to time authorized in writing to give the particular class of
Instructions in question and whose name and (if applicable) signature
and office address have been filed with the Custodian, or (ii) which
have been transmitted electronically through an electronic on-line
service and communications system offered by the Custodian or other
electronic instruction system acceptable to the Custodian, or (iii) a
telephonic or oral communication by one or more persons as the
Customer shall have from time to time authorized to give the
particular class of Instructions in question and whose name has been
filed with the Custodian; or (iv) upon receipt of such other form of
instructions as the Customer may from time to time authorize in
writing and which the Custodian has agreed in writing to accept.
Instructions in the form of oral communications shall be confirmed by
the Customer by tested telex or writing in the manner set forth in
clause (i) above, but the lack of such confirmation shall in no way
affect any action taken by the Custodian in reasonable reliance upon
such oral instructions prior to the Custodian's receipt of such
confirmation. Instructions may relate to specific transactions or to
types or classes of transactions, and may be in the form of standing
instructions.
The Custodian shall have the right to assume in the absence
of notice to the contrary from the Customer that any person whose name
is on file with the Custodian pursuant to this Section has been
authorized by the Customer to give the Instructions in question and
that such authorization has not been revoked. The Custodian may act
upon and conclusively rely on, without any liability to the Customer
or any other person or entity for any losses resulting therefrom, any
Instructions reasonably believed by it to be furnished by the proper
person or persons as provided above.
15. Standard of Care. The Custodian shall be responsible for
the performance of only such duties as are set forth herein or
contained in Instructions given to the Custodian which are not
contrary to the provisions of this Agreement. The Custodian will use
reasonable care with respect to the safekeeping of Property in the
Account and, except as otherwise expressly provided herein, in
carrying out its obligations under this Agreement. So long as and to
the extent that it has exercised reasonable care, the Custodian shall
not be responsible for the title, validity or genuineness of any
Property or other property or evidence of title thereto received by it
or delivered by it pursuant to this Agreement and shall be held
harmless in acting upon, and may conclusively rely on, without
liability for any loss resulting therefrom, any notice, request,
consent, certificate or other instrument reasonably believed by it to
be genuine and to be signed or furnished by the proper party or
parties, including, without limitation, Instructions, and shall be
indemnified by the Customer for any losses, damages, costs and
expenses (including, without limitation, the fees and expenses of
counsel) incurred by the Custodian and arising out of action taken or
omitted with reasonable care by the Custodian hereunder or under any
Instructions. The Custodian shall be liable to the Customer for any
act or omission to act of any Subcustodian to the same extent as if
the Custodian committed such act itself. Where, under applicable law,
regulation, or practice (in order to facilitate the settlement of
transactions related thereto), or where the Customer otherwise elects,
Securities are held in a Securities System in a particular market, the
Custodian shall only be responsible or liable for losses arising from
employment of such Securities System caused by the Custodian's own
failure to exercise reasonable care. Where the Custodian otherwise
elects to employ a Securities System for holding Securities in a
particular market, the Custodian shall be liable to the Customer for
any act or omission of any Securities System to the same extent as if
the Custodian committed such act itself. In the event of any loss to
the Customer by reason of the failure of the Custodian or a
Subcustodian to utilize reasonable care, the Custodian shall be liable
to the Customer to the extent of the Customer's actual damages at the
time such loss was discovered without reference to any special
conditions or circumstances. In no event shall the Custodian be liable
for any consequential or special damages. The Custodian shall be
entitled to rely, and may act, on advice of counsel (who may be
counsel for the Customer) on all matters and shall be without
liability for any action reasonably taken or omitted pursuant to such
advice.
In the event the Customer subscribes to an electronic on-line
service and communications system offered by the Custodian, the
Customer shall be fully responsible for the security of the Customer's
connecting terminal, access thereto and the proper and authorized use
thereof and the initiation and application of continuing effective
safeguards with respect thereto and agree to defend and indemnify the
Custodian and hold the Custodian harmless from and against any and all
losses, damages, costs and expenses (including the fees and expenses
of counsel) incurred by the Custodian as a result of any improper or
unauthorized use of such terminal by the Customer or by any others.
All collections of funds or other property paid or
distributed in respect of Securities in the Account including funds
involved in third-party foreign exchange transactions, shall be made
at the risk of the Customer.
Subject to the exercise of reasonable care, the Custodian
shall have no liability for any loss occasioned by delay in the actual
receipt of notice by the Custodian or by a Subcustodian of any
payment, redemption or other transaction regarding Securities in the
Account in respect of which the Custodian has agreed to take action as
provided in Section 3 hereof. The Custodian shall not be liable for
any loss resulting from, or caused by, or resulting from acts of
governmental authorities (whether de jure or de facto), including,
without limitation, nationalization, expropriation, and the imposition
of currency restrictions; devaluations of or fluctuations in the value
of currencies; changes in laws and regulations applicable to the
banking or securities industry; market conditions that prevent the
orderly execution of securities transactions or affect the value of
Property; acts of war, terrorism, insurrection or revolution; strikes
or work stoppages; the inability of a local clearing and settlement
system to settle transactions for reasons beyond the control of the
Custodian; hurricane, cyclone, earthquake, volcanic eruption, nuclear
fusion, fission or radioactivity, or other acts of God.
The Custodian shall have no liability in respect of any loss,
damage or expense suffered by the Customer, insofar as such loss,
damage or expense arises from the performance of the Custodian's
duties hereunder by reason of the Custodian's reliance upon records
that were maintained for the Customer by entities other than the
Custodian prior to the Custodian's employment under this Agreement.
The provisions of this Section shall survive termination of
this Agreement.
16. Investment Limitations and Legal or Contractual
Restrictions or Regulations. The Custodian shall not be liable to the
Customer and the Customer agrees to indemnify the Custodian and its
nominees, for any loss, damage or expense suffered or incurred by the
Custodian or its nominees arising out of any violation of any
investment restriction or other restriction or limitation applicable
to the Customer pursuant to any contract or any law or regulation. The
provisions of this Section shall survive termination of this
Agreement.
17. Fees and Expenses. The Customer agrees to pay to the
Custodian such compensation for its services pursuant to this
Agreement as may be mutually agreed upon in writing from time to time
and the Custodian's reasonable out-of-pocket or incidental expenses in
connection with the performance of this Agreement, including (but
without limitation) legal fees as described herein and/or deemed
necessary in the judgment of the Custodian to keep safe or protect the
Property in the Account. The initial fee schedule is attached hereto
as Exhibit B. The Customer hereby agrees to hold the Custodian
harmless from any liability or loss resulting from any taxes or other
governmental charges, and any expense related thereto, which may be
imposed, or assessed with respect to any Property in the Account and
also agrees to hold the Custodian, its Subcustodians, and their
respective nominees harmless from any liability as a record holder of
Property in the Account. The Custodian is authorized to charge the
Account for such items and the Custodian shall have a lien on the
Property in the Account for any amount payable to the Custodian under
this Agreement, including but not limited to amounts payable pursuant
to the last paragraph of Section 12 and pursuant to indemnities
granted by the Customer under this Agreement. The provisions of this
Section shall survive the termination of this Agreement.
18. Tax Reclaims. With respect to withholding taxes deducted and
which may be deducted from any income received from any Property in
the Account, the Custodian shall perform such services with respect
thereto as are described in Exhibit C attached hereto and shall in
connection therewith be subject to the standard of care set forth in
such Exhibit C. Such standard of care shall not be affected by any
other term of this Agreement.
19. Amendment, Modifications, etc. No provision of this
Agreement may be amended, modified or waived except in a writing
signed by the parties hereto. No waiver of any provision hereto shall
be deemed a continuing waiver unless it is so designated. No failure
or delay on the part of either party in exercising any power or right
under this Agreement operates as a waiver, nor does any single or
partial exercise of any power or right preclude any other or further
exercise thereof or the exercise of any other power or right.
20. Termination. This Agreement may be terminated by the
Customer or the Custodian by ninety (90) days' written notice to the
other; provided that notice by the Customer shall specify the names of
the persons to whom the Customer shall deliver the Securities in the
Account and to whom the Cash in the Account shall be paid. If notice
of termination is given by the Custodian, the Customer shall, within
ninety (90) days following the giving of such notice, deliver to the
Custodian a written notice specifying the names of the persons to whom
the Custodian shall deliver the Securities in the Account and to whom
the Cash in the Account shall be paid. In either case, the Custodian
shall deliver such Securities and Cash to the persons so specified,
after deducting therefrom any amounts which the Custodian determines
to be owed to it under Sections 12, 17, and 22. In addition, the
Custodian may in its discretion withhold from such delivery such Cash
and Securities as may be necessary to settle transactions pending at
the time of such delivery. The Customer grants to the Custodian a lien
and right of setoff against the Account and all Property held therein
from time to time in the full amount of the foregoing obligations. If
within ninety (90) days following the giving of a notice of
termination by the Custodian, the Custodian does not receive from the
Customer a written notice specifying the names of the persons to whom
the Custodian shall deliver the Securities in the Account and to whom
the Cash in the Account shall be paid, the Custodian, at its election,
may deliver such Securities and pay such Cash to a bank or trust
company doing business in the State of New York to be held and
disposed of pursuant to the provisions of this Agreement, or may
continue to hold such Securities and Cash until a written notice as
aforesaid is delivered to the Custodian, provided that the Custodian's
obligations shall be limited to safekeeping.
21. Notices. Except as otherwise provided in this Agreement,
all requests, demands or other communications between the parties or
notices in connection herewith (a) shall be in writing, hand delivered
to sent by telex, cable, facsimile or other means of electronic
communication agreed upon by the parties hereto addressed, if to the
Customer, to:
Capital Appreciation Portfolio
Signature Financial
0 Xx. Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Bankers Trust Company
0 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx O'Dell
Phone: (000) 000-0000
Fax: (000) 000-0000
if to the Custodian, to:
Bankers Trust Company
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
or in either case to such other address as shall have been furnished
to the receiving party pursuant to the provisions hereof and (b) shall
be deemed effective when received, or, in the case of a telex, when
sent to the proper number and acknowledged by a proper answerback.
22. Security for Payment. To secure payment of all
obligations due hereunder, the Customer hereby grants to Custodian a
continuing security interest in and right of setoff against the
Account and all Property held therein from time to time in the full
amount of such obligations. Should the Customer fail to pay promptly
any amounts owed hereunder, Custodian shall be entitled to use
available Cash in the Account and to dispose of Securities in the
Account as is necessary. In any such case and without limiting the
foregoing, Custodian shall be entitled to take such other action(s) or
exercise such other options, powers and rights as Custodian now or
hereafter has a secured creditor under the New York Uniform Commercial
Code or any other applicable law.
23. Representations and Warranties.
(a) The Customer hereby represents and warrants to the Custodian that:
(i) the employment of the Custodian and the terms of this
Agreement do not violate any obligation by which the Customer is
bound, whether arising by contract, operation of law or otherwise;
(ii) this Agreement has been duly authorized by
appropriate action and when executed and delivered will be binding
upon the Customer in accordance with its terms; and
(iii) the Customer will deliver to the Custodian
such evidence of such authorization as the Custodian may reasonably
require, whether by way of a certified resolution or otherwise.
(b) The Custodian hereby represents and warrants to the Customer that:
(i) its employment as Custodian and the terms of this Agreement
do not violate any obligation by which the Custodian is bound, whether
arising by contract, operation of law or otherwise;
(ii) this Agreement has been duly authorized by
appropriate action and when executed and delivered will be binding
upon the Custodian in accordance with its terms;
(iii) the Custodian will deliver to the Customer
such evidence of such authorization as the Customer may reasonably
require, whether by way of a certified resolution or otherwise; and
(iv) Custodian is qualified as a custodian under
Section 26(a) of the 1940 Act and warrants that it will remain so
qualified or upon ceasing to be so qualified shall promptly notify the
Customer in writing.
24. Governing Law and Successors and Assigns. This Agreement
shall be governed by the law of the State of New York and shall not be
assignable by either party, but shall bind the successors in interest
of the Customer and the Custodian.
25. Publicity. Customer shall furnish to Custodian at its
office referred to in Section 21 above, prior to any distribution
thereof, copies of any material prepared for distribution to any
persons who are not parties hereto that refer in any way to the
Custodian, provided that the Customer may refer in its prospectus and
other documents to the Custodian in the manner set forth in Exhibit D
attached to this contract. Customer shall not distribute or permit the
distribution of such materials if Custodian reasonably objects in
writing within ten (10) business days of receipt thereof (or such
other time as may be mutually agreed) after receipt thereof. The
provisions of this Section shall survive the termination of this
Agreement.
26. Representative Capacity and Binding Obligation. Notice is
hereby given that this Agreement is not executed on behalf of the
Trustees of the Customer as individuals, and the obligations of this
Agreement are not binding upon any of the Trustees, officers or
shareholders of the Customer individually but are biding only upon the
assets and property of the Customer.
The Custodian agrees that no shareholder, trustee or officer
of the Customer may be held personally liable or responsible for any
obligations of the Customer arising out of this Agreement.
27. Affiliation Between Custodian and Adviser and Customer.
It is understood that the trustees, officers, employees, agents and
shareholders of the Customer, and the officers, directors, employees,
agents and shareholders of the Customer's Investment Adviser, Bankers
Trust Company ("Adviser"), are or may be interested in Custodian as
directors, officers, employees, agents, stockholders, or otherwise,
and that the directors, officers, employees, agents or stockholders of
Custodian may be interested in the Customer as trustees, officers,
employees, agents, shareholders, or otherwise, or in Adviser as
officers, directors, employees, agents, shareholders or otherwise.
(i) No trustee, officer, employee or agent of the Customer,
and no officer, director, employee or agent of the Adviser
acting pursuant to any provision of the Investment Advisory
Agreement (the "Advisory Agreement") between the Customer and
Adviser, shall have physical access to the assets of the
Customer held by Custodian or be authorized or permitted to
withdraw any investments of the Customer, nor shall Custodian
deliver any assets of the Customer to any such person. No
officer, director, employee or agent of Custodian who holds
any similar position with the Customer or who performs duties
under the Advisory Agreement shall have access to the assets
of the Trust.
(ii) Subject to Section 14 hereof, nothing in this Section 27
shall prohibit any officer, employee or agent of the
Customer, or any officer, employee or agent of the Adviser,
from giving Instructions to Custodian as long as no such
Instruction results in delivery or of access to assets of the
Customer prohibited by subclause (i) of this Section 27.
28. Submission to Jurisdiction. Any suit, action or
proceeding arising out of this Agreement may be instituted in any
State or Federal court sitting in the City of Xxx Xxxx, Xxxxx xx Xxx
Xxxx, Xxxxxx Xxxxxx of America, and the Customer irrevocably submits
to the non-exclusive jurisdiction of any such court in any such suit,
action or proceeding and waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding brought in such a court
and any claim that such suit, action or proceeding was brought in an
inconvenient forum.
29. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original. This
Agreement shall become effective when one or more counterparts have
been signed and delivered by each of the parties hereto.
30. Confidentiality. The parties hereto agree that each shall
treat confidentially the terms and conditions of this Agreement and
all information provided by each party to the other regarding its
business and operations. All confidential information provided by a
party hereto shall be used by any other party hereto solely for the
purpose of rendering services pursuant to this Agreement and, except
as may be required in carrying out this Agreement, shall not be
disclosed to any third party without the prior consent of such
providing party. The foregoing shall not be applicable to any
information that is publicly available when provided or thereafter
becomes publicly available other than through a breach of this
Agreement, or that is required or requested to be disclosed by any
bank or other regulatory examiner of the Custodian, Customer, or any
Subcustodian, any auditor of the parties hereto, by judicial or
administrative process or otherwise by applicable law or regulation.
31. Severability. If any provision of this Agreement is
determined to be invalid or unenforceable, such determination shall
not affect the validity or enforceability of any other provision of
this Agreement.
32. Headings. The heading of the paragraphs hereof are included
for convenience of reference only and do not form a part of this
Agreement.
CAPITAL APPRECIATION PORTFOLIO
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Secretary
BANKERS TRUST COMPANY
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
EXHIBIT A
To Custodian Agreement dated as of July 1, 1996 between Bankers
Trust Company and Capital Appreciation Portfolio
PROXY SERVICE
The following is a description of the Proxy Service referred
to in Section 10 of the above referred to Custodian Agreement. Terms
used herein as defined terms shall have the meanings ascribed to them
therein unless otherwise defined below.
The Custodian provides a service, described below, for the
transmission of corporate communications in connection with
shareholder meetings relating to Securities held in Argentina,
Australia, Austria, Canada, Denmark, Finland, France, Germany, Greece,
Hong Kong, Indonesia, Ireland, Italy, Japan, Korea, Malaysia, Mexico,
Netherlands, New Zealand, Pakistan, Poland, Singapore, South Africa,
Spain, Sri Lanka, Sweden, United Kingdom, United States, and
Venezuela. For the United States and Canada, the term "corporate
communications" means the proxy statements or meeting agenda, proxy
cards, annual reports and any other meeting materials received by the
Custodian. For countries other than the United States and Canada, the
term "corporate communications" means the meeting agenda only and does
not include any meeting circulars, proxy statements or any other
corporate communications furnished by the issuer in connection with
such meeting. Non-meeting related corporate communications are not
included in the transmission service to be provided by the Custodian
except upon request as provided below.
The Custodian's process for transmitting and translating
meeting agendas will be as follows:
1) If the meeting agenda is not provided by the issuer
in the English language, and if the language of such
agenda is in the official language of the country in
which the related security is held, the Custodian
will as soon as practicable after receipt of the
original meeting agenda by a Subcustodian provide an
English translation prepared by that Subcustodian.
2) If an English translation of the meeting agenda is furnished,
the local language agenda will not be furnished
unless requested.
Translations will be free translations and neither the
Custodian nor any Subcustodian will be liable or held responsible for
the accuracy thereof or any direct or indirect consequences arising
therefrom, including without limitation arising out of any action
taken or omitted to be taken based thereon.
If requested, the Custodian will, on a reasonable efforts
basis, endeavor to obtain any additional corporate communication such
as annual or interim reports, proxy statements, meeting circulars, or
local language agenda, and provide them in the form obtained.
Timing in the voting process is important and, in that
regard, upon receipt by the Custodian of notice from a Subcustodian,
the Custodian will provide a notice to the Customer indicating the
deadline for receipt of its instructions to enable the voting process
to take place effectively and efficiently. As voting procedures will
vary from market to market, attention to any required procedures will
be very important. Upon timely receipt of voting instructions, the
Custodian will promptly forward such instructions to the applicable
Subcustodian. If voting instructions are not timely received, the
Custodian shall have no liability or obligation to take any action.
For Securities held in markets other than those set forth in
the first paragraph, the Custodian will not furnish the material
described above or seek voting instructions. However, if requested to
exercise voting rights at a specific meeting, the Custodian will
endeavor to do so on a reasonable efforts basis without any assurance
that such rights will be so exercised at such meeting.
If the Custodian or any Subcustodian incurs extraordinary
expenses in exercising voting rights related to any Securities
pursuant to appropriate instructions or directions (e.g., by way of
illustration only and not by way of limitation, physical presence is
required at a meeting and/or travel expenses are incurred), such
expenses will be reimbursed out of the Account unless other
arrangements have been made for such reimbursement.
It is the intent of the Custodian to expand the Proxy Service
to include jurisdictions which are not currently included as set forth
in the second paragraph hereof. The Custodian will notify the Customer
as to the inclusion of additional countries or deletion of existing
countries after their inclusion or deletion and this Exhibit A will be
deemed to be automatically amended to include or delete such countries
as the case may be.
Dated as of: July 1, 1996 CAPITAL APPRECIATION PORTFOLIO
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Secretary
BANKERS TRUST COMPANY
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
EXHIBIT B
To Custodian Agreement dated as of July 1, 1996 between
Bankers Trust Company and Capital Appreciation Portfolio.
CUSTODY FEE SCHEDULE
This Exhibit B shall be amended upon delivery by the Custodian of a
new Exhibit B to the Customer and acceptance thereof by the Customer
and shall be effective as of the date of acceptance by the Customer or
a date agreed upon between the Custodian and the Customer.
EXHIBIT C
To Custodian Agreement dated as of July 1, 1996 between
Bankers Trust Company and Capital Appreciation Portfolio.
TAX RECLAIMS
Pursuant to Section 18 of the above referred to Custodian
Agreement, the Custodian shall perform the following services with
respect to withholding taxes imposed or which may be imposed on income
from Property in the Account. Terms used herein as defined terms shall
unless otherwise defined have the meanings ascribed to them in the
above referred to Custodian Agreement.
When withholding tax has been deducted with respect to income
from any Property in an Account, the Customer will actively pursue on
a reasonable efforts basis the reclaim process, provided that the
Custodian shall not be required to institute any legal or
administrative proceeding against any Subcustodian or other person.
The Custodian will provide fully detailed advices/vouchers to support
reclaims submitted to the local authorities by the Custodian or its
designee. In all cases of withholding, the Custodian will provide full
details to the Customer. If exemption from withholding at the source
can be obtained in the future, the Custodian will notify the Customer
and advise what documentation, if any, is required to obtain the
exemption. Upon receipt of such documentation from the Customer, the
Custodian will file for exemption on the Customer's behalf and notify
the Customer when it has been obtained.
In connection with providing the foregoing service, the
Custodian shall be entitled to apply categorical treatment of the
Customer according to the Customer's nationality, the particulars of
its organization and other relevant details that shall be supplied by
the Customer. It shall be the duty of the Customer to inform the
Customer of any change in the organization, domicile or other relevant
fact concerning tax treatment of the Customer and further to inform
the Custodian if the customer is or becomes the beneficiary of any
special ruling or treatment not applicable to the general nationality
and category or entity of which the Customer is a part under general
laws and treaty provisions. The Custodian may rely on any such
information provided by the Customer.
In connection with providing the foregoing service, the
Custodian may also rely on professional tax services published by a
major international accounting firm and/or advice received from a
Subcustodian in the jurisdictions in question. In addition, the
Custodian may seek the advice of counsel or other professional tax
advisers in such jurisdictions. The Custodian is entitled to rely, and
may act, on information set forth in such services and on advice
received from a Subcustodian, counsel or other professional tax
advisers and shall be without liability to the Customer for any action
reasonably taken or omitted pursuant to information contained in such
services or such advice.
Dated as of: July 1, 1996 CAPITAL APPRECIATION PORTFOLIO
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Secretary
BANKERS TRUST COMPANY
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
EXHIBIT D
To Custodian Agreement dated as of July 1, 1996 between
Bankers Trust Company and Capital Appreciation Portfolio.
APPROVED REFERENCE TO CUSTODIAN
"Bankers Trust acts as Custodian of the assets of the Trust and the PortfolioO"
