EXHIBIT 8 UNDER FORM N-1A
EXHIBIT 10 UNDER 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 UTILITY 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 to hold 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:
Utility 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.
UTILITY 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 Utility 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 UTILITY 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 Utility 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 Utility 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, 1996UTILITY 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 Utility Portfolio.
APPROVED REFERENCE TO CUSTODIAN
`Bankers Trust acts as Custodian of the assets of the Trust and the
Portfolio...'
