CUSTODIAN CONTRACT
Between
HERITAGE CAPITAL APPRECIATION TRUST
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
Page
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1. Employment of Custodian and Property to be Held by It . . . 1
2. Duties of the Custodian with Respect to Property of the
Fund Held By the Custodian . . . . . . . . . . . . . . . . . 2
2.1 Holding Securities . . . . . . . . . . . . . . . . . 2
2.2 Delivery of Securities . . . . . . . . . . . . . . . 2
2.3 Registration of Securities . . . . . . . . . . . . . 7
2.4 Bank Accounts . . . . . . . . . . . . . . . . . . . 8
2.5 Payments for Shares . . . . . . . . . . . . . . . . 9
2.6 Investment and Availability of Federal Funds . . . . 9
2.7 Collection of Income . . . . . . . . . . . . . . . . 10
2.8 Payment of Fund Moneys . . . . . . . . . . . . . . . 11
2.9 Liability for Payment in Advance of Receipt of
Securities Purchased . . . . . . . . . . . . . . . . 13
2.10 Payments for Repurchases or Redemptions of Shares
of the Fund . . . . . . . . . . . . . . . . . . . . 14
2.11 Appointment of Agents . . . . . . . . . . . . . . . 15
2.12 Deposit of Trust Assets in Securities Systems . . . 15
2.13 Segregated Account . . . . . . . . . . . . . . . . . 18
2.14 Ownership Certificates for Tax Purposes . . . . . . 20
2.15 Proxies . . . . . . . . . . . . . . . . . . . . . . 20
2.16 Communications Relating to Fund Portfolio
Securities . . . . . . . . . . . . . . . . . . . . . 20
2.17 Proper Instructions . . . . . . . . . . . . . . . . 21
2.18 Actions Permitted without Express Authority . . . . 22
2.19 Evidence of Authority . . . . . . . . . . . . . . . 23
3. Duties of Custodian with Respect to the Books of Account
and Calculation of Net Asset Value and Net Income . . . . . 23
4. Records . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5. Opinion of Fund's Independent Certified Public
Accountants . . . . . . . . . . . . . . . . . . . . . . . . 25
6. Reports to Fund by Independent Certified Public
Accountants . . . . . . . . . . . . . . . . . . . . . . . . 25
7. Compensation of Custodian . . . . . . . . . . . . . . . . . 25
8. Responsibility of Custodian . . . . . . . . . . . . . . . . 26
9. Effective Period, Termination and Amendment . . . . . . . . 27
10. Successor Custodian . . . . . . . . . . . . . . . . . . . . 29
11. Interpretive and Additional Provisions . . . . . . . . . . . 30
12. Additional Funds . . . . . . . . . . . . . . . . . . . . . . 31
13. Massachusetts Law to Apply . . . . . . . . . . . . . . . . . 31
14. Prior Contracts . . . . . . . . . . . . . . . . . . . . . . 31
15. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 31
16. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 32
CUSTODIAN CONTRACT
This Contract between Heritage Capital Appreciation Trust, a
business trust organized and existing under the laws of Massachusetts,
having its principal place of business at 0000-00xx Xxxxxx Xxxxx, Xx.
Xxxxxxxxxx, Xxxxxxx 00000 hereinafter called the "Fund", and State Street
Bank and Trust Company, a Massachusetts corporation, having its principal
place of business at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
hereinafter called the "Custodian",
WITNESSETH: That in consideration of the mutual covenants and
agreements hereinafter contained, the parties hereto agree as follows:
1. EMPLOYMENT OF CUSTODIAN AND PROPERTY TO BE HELD BY IT
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The Fund hereby employs the Custodian as the custodian of its
assets pursuant to the provisions of the Fund's Declaration of Trust and
the terms and conditions hereof. The Fund agrees to deliver to the
Custodian all securities and cash owned by the Fund, and all payments of
income, principal and capital distributions received by the Fund with
respect to all securities its owns from time to time, and the cash
consideration received by the Fund for such new or treasury shares of
beneficial interest, without par value ("Shares") of the Fund as may be
issued or sold from time to time. The Custodian shall not be responsible
for any property of the Fund held or received by the Fund and not
delivered to the Custodian.
Upon receipt of "Proper Instructions" (within the meaning of
Section 2.17), the Custodian may from time to time employ one or more
sub-custodians, but only after the prior express written consent of the
Fund in accordance with an applicable vote by its Board of Trustees, and
provided that the Custodian shall have no more or less responsibility or
liability to the Fund on account of any actions or omissions of any
sub-custodian 50 employed than any such sub-custodian has to the
Custodian.
2. DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY OF THE FUND HELD
BY THE CUSTODIAN
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2.1 HOLDING SECURITIES. The Custodian shall hold and
physically segregate for the account of the Fund all
non-cash property, including all securities owned by the
Fund, other than securities which are maintained pursuant
to Section 2.11 in a clearing agency which acts as a
securities depository or in a book-entry system
authorized by the U.S. Department of the Treasury,
collectively referred to herein as "Securities System".
2.2 DELIVERY OF SECURITIES. The Custodian shall release and
deliver securities owned by the Fund held by the
Custodian or in a Securities System account of the
Custodian only upon receipt of Proper Instructions, which
may be continuing instructions when deemed appropriate by
the parties, and only in the following cases:\
1) Upon sale of such securities for the account of
the Fund and receipt by the Custodian of payment
therefor;
2) Upon the receipt of payment in connection with
any repurchase agreement related to such
securities entered into by the Fund;
3) In the case of a sale effected through a
Securities System, in accordance with the
provisions of Section 2.12 hereof;
4) To the depository agent in connection with tender
or other similar offers for portfolio securities
of the Fund;
5) To the issuer thereof or its agent when such
securities are called, redeemed, retired or
otherwise become payable; provided that, in any
such case, the cash or other consideration is to
be delivered to the Custodian;
6) To the issuer thereof, or its agent, for transfer
into the name of the Fund or into the name of any
nominee or nominees of the Custodian or into the
name or nominee name of any agent appointed
pursuant to Section 2.11 or into the name or
nominee name of any sub-custodian appointed
pursuant to Article 1 hereof; or for exchange for
a different number of bonds, certificates or
other evidence representing the same aggregate
face amount or number of units; PROVIDED that, in
any such case, the new securities are to be
delivered to the Custodian;
7) To the broker selling the same for examination in
accordance with the "street delivery" custom;
8) For exchange or conversion pursuant to any plan
of merger, consolidation, recapitalization,
reorganization or readjustment of the securities
of the issuer of such securities, or pursuant to
provisions for conversion contained in such
securities, or pursuant to any deposit agreement;
provided that, in any such case the new
securities and cash, if any, are to be delivered
to the Custodian;
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9) In the case of warrants options, rights or
similar securities, the surrender thereof in the
exercise of such warrants, options, rights or
similar securities or the surrender of interim
receipts or temporary securities for definitive
securities; provided that, in any such case, the
new securities and cash, if any, are to be
delivered to the Custodian;
10) For delivery in connection with any loans of
securities made by the Fund, BUT ONLY against
receipt of adequate collateral as agreed upon
from time to time by the Custodian and the Fund,
which may be in the form of cash or other
securities including obligations issued by the
United States government, its agencies or
instrumentalities, except that in connection with
any loans for which collateral is to be credited
to the Custodian's account in the book-entry
system authorized by the U.S. Department of the
Treasury, the Custodian will not be held liable
or responsible for the delivery of securities
owned by the Fund prior to the receipt of such
collateral;
11) For delivery as security in connection with any
borrowings by the Fund requiring a pledge of
assets by the Fund, BUT ONLY against receipt of
amounts borrowed;
12) For delivery in accordance with the provisions of
any agreement among the Fund, the Custodian and a
broker-dealer registered under the Securities
Exchange Act of 1934 (the "Exchange Act") and a
member of The National Association of Securities
Dealers, Inc. ("NASD"), relating to compliance
with the rules of The Options Clearing
Corporation and of any registered national
securities exchange, or of any similar
organization or organizations, regarding escrow
or other arrangements in connection with
transactions by the Fund;
13) Upon receipt of instructions from the Fund's
transfer agent ("Transfer Agent"), for delivery
to the Transfer Agent or to the holders of Shares
in connection with distributions in kind, as may
be described from time to time in the Fund's
currently effective Prospectus and Statement of
Additional Information, in satisfaction of
requests by holders of Shares for repurchase or
redemption; and
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14) 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 from brokers the securities previously
deposited. The Custodian will act strictly in
accordance with Proper 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;
15) For any other proper corporate purpose, BUT ONLY
upon receipt of, in addition to Proper
Instructions, a certified copy of a resolution of
the Board of Trustees or of the Executive
Committee signed by an officer of the Fund and
certified by its Secretary or an Assistant
Secretary, specifying the securities to be
delivered, setting forth the purpose for which
such delivery is to be made, declaring such
purposes to be proper corporate purposes, and
naming the person or persons to whom delivery of
such securities shall be made.
2.3 REGISTRATION OF SECURITIES. Securities held by the
Custodian (other than bearer securities) shall be
registered in the name of the Fund or in the name of any
nominee of the Fund or of any nominee of the Custodian
(which nominee shall be assigned exclusively to the
Fund), UNLESS the Fund has authorized in writing the
appointment of a nominee to be used in common with other
registered investment companies having the same
investment adviser as the Fund, or in the name or nominee
name of any agent appointed pursuant to Section 2.11 or
in the name or nominee name of any sub-custodian
appointed pursuant to Article 1 hereof. All securities
accepted by the Custodian on behalf of the Fund under the
terms of this Contract shall be in "street name" or other
good delivery form.
2.4 BANK ACCOUNTS. The Custodian shall open and maintain a
separate bank account or accounts in the name of the
Fund, subject only to draft or order by the Custodian
acting pursuant to the terms of this Contract, and shall
hold in such account or accounts, subject to the
provisions hereof, all cash received by it from or for
the account of the Fund, other than cash maintained by
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the Fund in a bank account established and used in
accordance with Rule 17f-3 under the Investment Company
Act of 1940 ("1940 Act"). Funds held by the Custodian for
the Fund may be deposited by it to its credit as
Custodian in the Banking Department of the Custodian or
in such other banks or trust companies as it may in its
discretion deem necessary or desirable; PROVIDED,
however, that every such bank or trust company shall be
qualified to act as a custodian under the 1940 Act and
that each such bank or trust company and the funds to be
deposited with each such bank or trust company shall be
approved by vote of a majority of the Board of Trustees
of the Fund. Such funds shall be deposited by the
Custodian in its capacity as Custodian and shall be
withdrawable by the Custodian only in that capacity.
2.5 PAYMENTS FOR SHARES. The Custodian shall receive from the
distributor for the Fund's Shares or from the Transfer
Agent of the Fund and deposit into the Fund's account
such payments as are received for Shares of the Fund
issued or sold from time to time by the Fund. The
Custodian will provide timely notification to the Fund
and the Transfer Agent of any receipt by it of payments
for Shares of the Fund.
2.6 INVESTMENT AND AVAILABILITY OF FEDERAL FUNDS. Upon
mutual agreement between the Fund and the Custodian, the
Custodian shall, upon the receipt of Proper Instructions,
1) invest in such instruments as may be set forth in
such instructions on the same day as received all
federal funds received after a time agreed upon
between the Custodian and the Fund; and
2) make federal funds available to the Fund as of
specified times agreed upon from time to time by
the Fund and the Custodian in the amount of
checks received in payment for Shares of the Fund
which are deposited into the Fund's account.
2.7 COLLECTION OF INCOME. The Custodian shall collect on a
timely basis all income dividends and other payments with
respect to registered securities held hereunder to which
the Fund shall be entitled either by law or pursuant to
custom in the securities business, and shall collect on a
timely basis all income dividends and other payments with
respect to bearer securities if, on the date of payment
by the issuer, such securities are held by the Custodian
or agent thereof and shall credit such income dividends
and other payments, as collected, to the Fund's custodian
account. Without limiting the generality of the
foregoing, the Custodian shall detach and present for
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payment all coupons and other income items requiring
presentation as and when they become due and shall
collect interest when due on securities held hereunder.
Income due the Fund on securities loaned pursuant to the
provisions of Section 2.2 (10) shall be the
responsibility of the Fund. The Custodian will have no
duty or responsibility in connection therewith, other
than to provide the Fund with such information or data as
may be necessary to assist the Fund in arranging for the
timely delivery to the Custodian of the income to which
the Fund is properly entitled.
2.8 PAYMENT OF FUND MONEYS. Upon receipt of Proper
Instructions, which may be continuing instructions when
deemed appropriate by the parties, the Custodian shall
pay out moneys of the Fund in the following cases only:
1) Upon the purchase of securities, for the account
of the Fund but only (a) against the delivery of
such securities, to the Custodian (or any bank,
banking firm or trust company doing business in
the United States or abroad which is qualified
under the 1940 Act, as amended, to act as a
custodian and which has been designated by the
Custodian as its agent for this purpose)
registered in the name of the Fund or in the name
of a nominee of the Custodian referred to in
Section 2.3 hereof or in proper form for
transfer; (b) in the case of a purchase effected
through a Securities System, in accordance with
the conditions set forth in Section 2.11 hereof
or (c) in the case of repurchase agreements
entered into between the Fund and the Custodian,
or another bank, or a broker-dealer which is a
member of NASD, (i) against delivery of the
securities either in certificate form or through
an entry crediting the Custodian's account at the
Federal Reserve Bank with such securities
(notwithstanding that the written agreement to
repurchase will be received subsequently) or (ii)
if the agreement is with the Custodian against
delivery of the receipt evidencing purchase by
the Fund of securities owned by the Custodian
along with written evidence of the agreement by
the Custodian to repurchase such securities from
the Fund;
2) In connection with conversion, exchange or
surrender of securities owned by the Fund as set
forth in Section 2.2 hereof;
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3) For the redemption or repurchase of Shares issued
by the Fund as set forth in Section 2.10 hereof;
4) For the payment of any expense or liability
incurred by the Fund, including but not limited
to the following payments for the account of the
Fund: interest, taxes, management, distribution,
advisory, accounting, transfer agent and legal
fees, and operating expenses of the Fund whether
or not such expenses are to be in whole or part
capitalized or treated as deferred expenses;
5) For the payment of any dividends declared
pursuant to the governing documents of the Fund;
6) For payment of the amount of dividends received
in respect of securities sold short;
7) For any other proper purpose, BUT ONLY upon
receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board of
Trustees or of the Executive Committee of the
Fund signed by an officer of the Fund and
certified by its Secretary or an Assistant
Secretary, specifying the amount of such payment,
setting forth the purpose for which such payment
is to be made, declaring such purpose to be a
proper purpose, and naming the person or persons
to whom such payment is to be made.
2.9 LIABILITY FOR PAYMENT IN ADVANCE OF RECEIPT OF SECURITIES
PURCHASED. In any and every case where payment for
purchase of securities for the account of the Fund is
made by the Custodian in advance of receipt of the
securities purchased, in the absence of specific written
instructions from the Fund to so pay in advance, the
Custodian shall be absolutely liable to the Fund for such
securities to the same extent as if the securities had
been received by the Custodian, EXCEPT that in the case
of repurchase agreements entered into by the Fund with a
bank which is a member of the Federal Reserve System, the
Custodian may transfer funds to the account of such
bank prior to the receipt of written evidence that the
securities subject to such repurchase agreement have been
transferred by book-entry into a segregated
non-proprietary account of the Custodian maintained with
the Federal Reserve Bank of Boston or of the safe-keeping
receipt, provided that such securities have in fact been
so transferred by book-entry.
2.10 PAYMENTS FOR REPURCHASES OR REDEMPTIONS OF SHARES OF THE
FUND. From such funds as may be available for the purpose
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but subject to the limitations of the Declaration of
Trust and By-Laws and any applicable resolution of the
Fund's Board of Trustees pursuant thereto, the Custodian
shall, upon receipt of instructions from the Transfer
Agent, make funds available for payment to holders of
Shares of their authorized agents who have delivered to
the Transfer Agent a request for redemption or repurchase
of their Shares and for payment to the distributor of the
Fund's Shares for its repurchase of Shares as agent for
the Fund. In connection with the redemption or repurchase
of Shares of the Fund, the Custodian is authorized upon
receipt of instructions from the Transfer Agent to wire
funds to or through a commercial bank designated by the
redeeming shareholders or the distributor of the Fund's
shares. In connection with the redemption or repurchase
of Shares of the Fund, the Custodian shall honor checks
drawn on the Custodian by a holder of Shares, which
checks have been furnished by the Fund to the holder of
Shares, when presented to the Custodian in accordance
with such procedures and controls as are mutually agreed
upon from time to time between the Fund and the
Custodian.
2.11 APPOINTMENT OF AGENTS. The Custodian may at any time or
times in its discretion appoint (and may at any time
remove) any other bank or trust company which is itself
qualified under the 1940 Act, as amended, to act as a
custodian, as its agent to carry out such of the
provisions of this Article 2 as the Custodian may from
time to time direct; PROVIDED, however, that the
appointment of an agent shall not relieve the Custodian
of its responsibilities or liabilities hereunder.
2.12 DEPOSIT OF TRUST ASSETS IN SECURITIES SYSTEMS. The
Custodian may deposit and/or maintain securities owned by
the Fund in a clearing agency registered with the
Securities and Exchange Commission under Section 17A of
the Securities Exchange Act of 1934, which acts as a
securities depository, or in the book-entry system
authorized by the U.S. Department of the Treasury and
certain federal agencies, (collectively referred to
herein as "Securities System") in accordance with
applicable Federal Reserve Board and Securities and
Exchange Commission rules and regulations, if any, and
subject to the following provisions:
1) The Custodian may keep securities of the Fund in
a Securities System provided that such securities
are represented in an account ("Account") of the
Custodian in the Securities System which shall
not include any assets of the Custodian other
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than assets held as a fiduciary, custodian or
otherwise for customers;
2) The records of the Custodian with respect to
securities of the Fund which are maintained in a
Securities System shall identify by book-entry
those securities belonging to the Fund;
3) The Custodian shall pay for securities purchased
for the account of the Fund upon (i) receipt of
advice from the Securities System that such
securities have been transferred to the Account,
and (ii) the making of an entry on the records of
the Custodian to reflect such payment and
transfer for the account of the Fund. The
Custodian shall transfer securities sold for the
account of the Fund upon (i) receipt of advice
from the Securities System that payment for such
securities has been transferred to the Account,
and (ii) the making of an entry on the records of
the Custodian to reflect such transfer and
payment for the account of the Fund. Copies of
all advices from the Securities System of
transfers of securities for the account of the
Fund shall identify the Fund, be maintained for
the Fund by the Custodian and be provided to the
Fund at its request. Upon request, the Custodian
shall furnish the Fund confirmation of each
transfer to or from the account of the Fund in
the form of a written advice or notice and shall
furnish to the Fund copies of daily transaction
sheets reflecting each day's transactions in the
Securities System for the account of the Fund, on
the next business day.
4) The Custodian shall provide the Fund 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;
5) The Custodian shall have received the initial or
annual certificate, as the case may be, required
by Article 9 hereof;
6) Anything to the contrary in this Contract
notwithstanding, the Custodian shall be liable to
the Fund for any loss or damage to the Fund
resulting from use of the Securities System by
reason of any negligence, misfeasance or
misconduct of the Custodian or any of its agents
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or of any of its or their employees or from
failure of the Custodian or any such agent to
enforce effectively such rights as it may have
against the Securities System; at the election of
the Fund, it shall be entitled to be subrogated
to the rights of the Custodian with respect to
any claim against the Securities System or any
other person which the Custodian may have as a
consequence of any such loss or damage if and to
the extent that the Fund has not been made whole
for any such loss or damage.
2.13 SEGREGATED ACCOUNT. The Custodian shall upon receipt of
Proper Instructions establish and maintain a segregated
account for and on behalf of the Fund, into which account
or accounts may be transferred cash and/or securities,
including securities maintained in an account by the
Custodian pursuant to Section 2.12 hereof, (i) in
accordance with the provisions of any agreement among the
Fund, the Custodian and a broker-dealer registered under
the Exchange Act and a member of the NASD, relating to
compliance with the rules of The Options Clearing
Corporation and of any registered national securities
exchange, or of any similar organization or
organizations, regarding escrow or other arrangements in
connection with transactions by the Fund, (ii) for
purposes of segregating cash or government securities in
connection with options purchased, sold or written by the
Fund, (iii) for the purposes of compliance by the Fund
with the procedures required by Investment Company Act
Release No. 10666, or any subsequent release or releases
of the Securities and Exchange Commission relating to the
maintenance of segregated accounts by registered
investment companies and (iv) for other proper corporate
purposes, BUT ONLY, in the case of clause (iv), upon
receipt of, in addition to Proper Instructions, a
certified copy of a resolution of the Board of Trustees
or of the Executive Committee signed by an officer of the
Fund and certified by the Secretary or an Assistant
Secretary, setting forth the purpose or purposes of such
segregated account and declaring such purposes to be
proper corporate purposes.
2.14 OWNERSHIP CERTIFICATES FOR TAX PURPOSES. The Custodian
shall execute ownership and other certificates and
affidavits for all federal and state tax purposes in
connection with receipt of income or other payments with
respect to securities of the Fund held by it and in
connection with transfers of securities.
2.15 PROXIES. The Custodian shall, with respect to the
securities held hereunder, cause to be promptly executed
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by the registered holder of such securities, if the
securities are registered otherwise than in the name of
the Fund or a nominee of the Fund, all proxies, without
indication of the manner in which such proxies are to be
voted, and shall promptly deliver to the Fund such
proxies, all proxy soliciting materials and all notices
relating to such securities.
2.16 COMMUNICATIONS RELATING TO FUND PORTFOLIO SECURITIES. The
Custodian shall transmit promptly to the Fund all written
information (including, without limitation, pendency of
calls and maturities of securities and expirations of
rights in connection therewith and notices of exercise of
call and put options written by the Fund) received by the
Custodian from issuers of the securities being held for
the Fund. With respect to tender or exchange offers, the
Custodian shall transmit promptly to the Fund all written
information received by the Custodian from issuers of the
securities whose tender or exchange is sought and from
the party (or his agents) making the tender or exchange
offer. If the Fund desires to take action with respect to
any tender offer, exchange offer or any other similar
transaction, the Fund shall notify the Custodian at least
three business days prior to the date on which the
Custodian is to take such action.
2.17 PROPER INSTRUCTIONS. Proper Instructions as used
throughout this Article 2 means a writing signed or
initialled by one or more person or persons as the Fund's
Board of Trustees shall have from time to time
authorized. Each such writing shall set forth the
specific transaction or type of transaction involved,
including a specific statement of the purpose for which
such action is requested. Oral instructions will be
considered Proper Instructions if the Custodian
reasonably believes them to have been given by a person
authorized in writing to give oral instructions with
respect to the transaction involved. The Fund shall cause
all oral instructions to be confirmed in writing. Upon
receipt of a certificate of the Secretary or an Assistant
Secretary of the Fund as to the authorization by the
Board of Trustees of the Fund accompanied by a detailed
description of procedures approved by the Board of
Trustees, Proper Instructions may include communications
effected directly between electro-mechanical or
electronic devices provided that the Board of Trustees
and the Custodian are satisfied that such procedures
afford adequate safeguards for the Fund's assets.
2.18 ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY. The
Custodian may in its discretion, without express
authority from the Fund:
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1) make payments to itself or others for minor
expenses of handling securities or other similar
items relating to its duties under this Contract,
PROVIDED that all such payments shall be
accounted for to the Fund;
2) surrender securities in temporary form for
securities in definitive form;
3) endorse for collection, in the name of the Fund,
checks, drafts and other negotiable instruments;
and
4) in general, attend to all non-discretionary
details in connection with the sale, exchange,
substitution, purchase, transfer and other
dealings with the securities and property of the
Fund except as otherwise directed by the Board of
Trustees of the Fund.
2.19 EVIDENCE OF AUTHORITY. The Custodian shall be protected
in acting upon any instructions, notice, request,
consent, certificate or other instrument or paper
believed by it to be genuine and to have been properly
executed by or on behalf of the Fund. The Custodian may
receive and accept a certified copy of a vote or
resolution of the Board of Trustees of the Fund as
conclusive evidence (a) of the authority of any person to
act in accordance with such vote or resolution or (b) of
any determination or of any action by the Fund's Board of
Trustees pursuant to the Declaration of Trust as
described in such vote or resolution, and such vote or
resolution may be considered as in full force and effect
until receipt by the Custodian of written notice to the
contrary.
3. DUTIES OF CUSTODIAN WITH RESPECT TO THE BOOKS OF ACCOUNT AND
CALCULATION OF NET ASSET VALUE AND NET INCOME.
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The Custodian shall cooperate with and supply necessary
information to the entity or entities appointed by the Board of Trustees
of the Fund to keep the books of account of the Fund and/or compute the
net asset value per share of the outstanding shares of the Fund or, if
directed in writing to do so by the Fund, shall itself keep such books of
account and/or compute such net asset value per share. If so directed, the
Custodian shall also calculate daily the net income of the Fund including
the calculation of distribution and advisory fees, all as described in the
Fund's currently effective Prospectus and Statement of Additional
Information and shall advise the Fund and the Transfer Agent daily of the
total amounts of such fees and net income and, if instructed in writing by
an officer of the Fund to do so, shall advise the Transfer Agent
periodically of the division of such net income among its various
- 12 -
components. The calculations of the net asset value per share and the
daily income of the Fund shall be made at the time or times described from
time to time in the Fund's currently effective Prospectus and Statement of
Additional Information and in accordance with the requirements of the 1940
Act and the rules thereunder.
4. RECORDS
-------
The Custodian shall create and maintain all records relating to
its activities and obligations under this Contract in such manner as will
meet the obligations of the Fund under the 1940 Act, with particular
attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder,
applicable federal and state tax laws and any other law or administrative
rules or procedures which may be applicable to the Fund. All such records
shall be the property of the Fund and shall at all times during the
regular business hours of the Custodian be open for inspection by duly
authorized officers, employees or agents of the Fund and employees and
agents of the Securities and Exchange Commission. The Custodian shall, at
the Fund's request, supply the Fund with a tabulation of securities owned
by the Fund and held by the Custodian and shall, when requested to do so
by the Fund and for such compensation as shall be agreed upon between the
Fund and the Custodian, include certificate numbers in such tabulations.
5. OPINION OF FUND'S INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
----------------------------------------------------------
The Custodian shall take all reasonable action, as the Fund may
from time to time request, to obtain from year to year favorable opinions
from the Fund's independent certified public accountants with respect to
its activities hereunder in connection with the preparation of the Fund's
Form N-1A, and Form N-SAR or other reports to the Securities and Exchange
Commission and with respect to any other requirements of such Commission.
6. REPORTS TO FUND BY INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
-----------------------------------------------------------
The Custodian shall provide the Fund, at such times as the Fund
may reasonably require, with reports by independent certified public
accountants on the accounting system, internal accounting control and
procedures for safeguarding securities, including securities deposited
and/or maintained in a Securities System, relating to the services
provided by the Custodian under this Contract; such reports, shall be of
sufficient scope and in sufficient detail, as may reasonably be required
by the Fund, and shall provide reasonable assurance that any material
inadequacies would be disclosed by such examination, and, if there are no
such inadequacies, shall so state.
7. COMPENSATION OF CUSTODIAN
-------------------------
The Custodian shall be entitled to reasonable compensation for
its services and expenses as Custodian, as agreed upon from time to time
between the Fund and the Custodian.
- 13 -
8. RESPONSIBILITY OF CUSTODIAN
---------------------------
So long as and to the extent that it is in the exercise of
reasonable care, the Custodian shall not be responsible for the title,
validity or genuineness of any property or evidence of title thereto
received by it or delivered by it pursuant to this Contract and shall be
held harmless in acting upon any notice, request, consent, certificate or
other instrument reasonably believed by it to be genuine and to be signed
by the proper party or parties. The Custodian shall be held to the
exercise of reasonable care in carrying out the provisions of this
Contract, but shall be kept indemnified by and shall be without liability
to the Fund for any action taken or omitted by it in good faith without
negligence. It shall be entitled to rely on and may act upon the
reasonable advice of counsel (who may be counsel for the Fund) on all
matters, and shall be without liability for any action reasonably taken or
omitted pursuant to such advice. Notwithstanding the foregoing, the
responsibility of the Custodian with respect to redemptions effected by
check shall be in accordance with a separate Agreement entered into
between the Custodian and the Fund.
If the Fund requires the Custodian to take any action with
respect to securities, which action involves the payment of money or which
action may, in the opinion of the Custodian, result in the Custodian or
its nominee assigned to the Fund being liable for the payment of money or
incurring liability of some other form, the Fund, as a prerequisite to
requiring the Custodian to take such action, shall provide indemnity to
the Custodian in an amount and form satisfactory to it.
If the Fund requires the Custodian to advance cash or securities
for any purpose or in the event that the Custodian or its nominee shall
incur or be assessed any taxes, charges, expenses, assessments, claims or
liabilities in connection with the performance of this Contract, except
such as may arise or involve its or its nominee's own negligent action,
negligent failure to act or willful misconduct, it shall be reimbursed by
the Fund for such advances or other costs within a reasonable time after
the receipt of written notice requesting reimbursement and any property at
any time held for the account of the Fund shall be security therefor and
should the Fund fail to repay the Custodian within a reasonable time after
receipt of written notice, the Custodian shall be entitled to utilize
available cash and to dispose of Fund assets to the extent necessary to
obtain reimbursement.
9. EFFECTIVE PERIOD, TERMINATION AND AMENDMENT
-------------------------------------------
This Contract shall become effective as of its execution, shall
continue in full force and effect until terminated as hereinafter
provided, may be amended at any time by mutual agreement of the parties
hereto and may be terminated by either party by an instrument in writing
delivered or mailed, postage prepaid to the other party, such termination
to take effect not sooner than sixty (60) days after the date of such
delivery or mailing; PROVIDED, however that the Custodian shall not act
under Section 2.12 hereof in the absence of receipt of an initial
- 14 -
certificate of the Secretary or an Assistant Secretary of the Fund that
the Board of Trustees of the Fund has approved the initial use of a
particular Securities System and the receipt of an annual certificate of
such Secretary or an Assistant Secretary that the Fund's Board of Trustees
has reviewed the use by the Fund of such Securities System, as required in
each case by Rule 17f-4 under the 1940 Act, as amended; PROVIDED FURTHER,
however, that the Fund shall not amend or terminate this Contract in
contravention of any applicable federal or state regulations, or any
provision of its Declaration of Trust or By-Laws, and further provided,
that the Fund may at any time by action of its Board of Trustees (i)
substitute another bank or trust company for the Custodian by giving
notice as described above to the Custodian, or (ii) immediately terminate
this Contract in the event of the appointment of a conservator or receiver
for the Custodian by the Comptroller of the Currency or upon the happening
of a like event at the direction of an appropriate regulatory agency or
court of competent jurisdiction. Upon termination of the Contract, the
Fund shall pay to the Custodian such compensation as may be due hereunder
as of the date of such termination and shall also reimburse the Custodian
for its costs, expenses and disbursements as contemplated by this
Contract.
10. SUCCESSOR CUSTODIAN
-------------------
If a successor custodian shall be appointed by the Board of
Trustees of the Fund, the Custodian shall, upon termination, deliver to
such successor custodian at the office of the Custodian, all securities
duly endorsed and in the form for transfer, and all other property of the
Fund then held by it hereunder and shall transfer to an account of the
successor custodian all of the Fund's securities held in a Securities
System.
If this Contract is terminated and no such successor custodian
shall be appointed, the Custodian shall, in like manner, as directed by
vote of the holders of a majority of the outstanding shares of the stock
of the Fund or upon receipt of a certified copy of a vote or resolution of
the Board of Trustees of the Fund, deliver at the office of the Custodian
and transfer such securities, funds and other properties of the Fund then
held by it hereunder as specified and in accordance with such vote or
resolution.
In the event that no written order designating a successor
custodian or certified copy of a vote or resolution of the Fund's Board of
Trustees shall have been delivered to the Custodian on or before the date
when the termination of this Contract shall become effective, then the
Custodian shall have the right to deliver to a bank or trust company,
which is a "bank" as defined in the 1940 Act, doing business in Boston,
Massachusetts, of its own selection, having an aggregate capital surplus,
and undivided profits, as shown by its last published report, of not less
than $25,000,000, all securities, funds and other properties then held by
the Custodian hereunder and all instruments held by the Custodian relative
hereto and all other property held by it under this Contract and to
transfer to an account of such successor custodian all of the Fund's
- 15 -
securities held in any Securities System. Thereafter, such bank or trust
company shall be the successor of the Custodian under this Contract.
In the event that securities, funds and other properties of the
Fund remain in the possession of the Custodian after the date of
termination hereof owing to failure of the Fund to deliver to the
Custodian the written order or certified copy referred to above, or of the
Fund's Board of Trustees to appoint a successor custodian, the Custodian
shall be entitled to fair compensation for its services during such period
as the Custodian retains possession of such securities, funds and other
properties and the provisions of this Contract relating to the duties and
obligations of the Custodian shall remain in full force and effect.
11. INTERPRETIVE AND ADDITIONAL PROVISIONS
--------------------------------------
In connection with the operation of this Contract, the Custodian
and the Fund may from time to time agree on such provisions interpretive
of or in addition to the provisions of this Contract as may in their joint
opinion be consistent with the general tenor of this Contract. Any such
interpretive or additional provisions shall be in a writing signed by both
parties and shall be annexed hereto, PROVIDED that no such interpretive or
additional provisions shall contravene any applicable federal or state
regulations or any provision of the Declaration of Trust of the Fund. No
interpretive or additional provisions made as provided in the preceding
sentence shall be deemed to be an amendment of this Contract.
12. ADDITIONAL FUNDS
----------------
In the event that the Fund establishes an additional series of
capital stock other than the Shares with respect to which it desires to
have the Custodian render services as custodian under the terms hereof, it
shall so notify the Custodian in writing, and if the Custodian agrees in
writing to provide such services, such additional series of shares shall
become a Fund hereunder.
13. MASSACHUSETTS LAW TO APPLY
--------------------------
This Contract shall be construed and the provisions thereof
interpreted under and in accordance with laws of The Commonwealth of
Massachusetts.
14. PRIOR CONTRACTS
---------------
This Contract supersedes and terminates, as of the date hereof,
all prior contracts between the Fund and the Custodian relating to the
custody of the Fund's assets. This Contract may not be assigned by the
Custodian, except as expressly provided in Section 10, hereof without the
prior written consent of the Fund.
- 16 -
15. HEADINGS
--------
The headings of the sections of this Contract are inserted for
reference and convenience only, and shall not affect the construction of
this Contract.
16. NOTICES
-------
Any notice shall be sufficiently given when sent by overnight,
registered or certified mail to the other party at the address of such
party set forth above or at such other address as such party may from time
to time specify in writing to the other party.
IN WITNESS WHEREOF, each of the parties has caused this
instrument to be executed in its name and behalf by its duly authorized
representative and its seal to be hereunder affixed as of the 31st day of
December, 1985.
ATTEST HERITAGE CAPITAL APPRECIATION TRUST
By: /s/ Xxxxxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------ -----------------------------
ATTEST STATE STREET BANK AND TRUST COMPANY
By: /s/ Officer By: /s/ X.X. Xxxxxx,Xx.
------------------------ -------------------------------
Assistant Secretary Vice President
- 17 -
HERITAGE CAPITAL APPRECIATION TRUST
CUSTODIAN CONTRACT
APPENDIX A
The Custodian agrees that any claims by it against the Fund under
this Contract may be satisfied only from the assets of the Fund; that the
person executing this Contract has executed it on behalf of the Fund and
not individually, and that the obligations of the Fund arising out of this
Contract are not binding upon such person or the Fund's shareholders
individually but are binding only upon the assets and property of the
Fund; and that no shareholders, trustees or officers of the Fund may be
held personally liable or responsible for any obligations of the Fund
arising out of this Contract.
ATTEST HERITAGE CAPITAL APPRECIATION TRUST
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------- -------------------------
ATTEST STATE STREET BANK AND TRUST COMPANY
By: /s/ Officer By: /s/ Officer
------------------------ -------------------------
