<PAGE> 1
As filed with the Securities and Exchange Commission on July 22, 1998
File No. 811-8778
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM N-1A
REGISTRATION STATEMENT
UNDER
THE INVESTMENT COMPANY ACT OF 1940
AMENDMENT NO. 6
SELECT ADVISORS PORTFOLIOS
(Exact Name of Registrant as Specified in Charter)
311 Pike Street
Cincinnati, Ohio 45202
(Address of Principal Executive Offices)
Registrant's Telephone Number, including Area Code: 800-669-2793
Andrew S. Josef
Investors Bank & Trust Company
200 Clarendon Street
Boston, Massachusetts 02116
(Name and Address of Agent for Service)
<PAGE> 2
EXPLANATORY NOTE
This Amendment to the Registration Statement on Form N-1A of Select
Advisors Portfolios (the "Trust")(File No. 811-8778) is being filed in order to
electronically file certain exhibits to the Trust's Registration Statement
which have previously been filed with the Securities and Exchange Commission in
paper form. The prospectus and statement of additional information of the Trust
have not changed and are incorporated by reference herein.
<PAGE> 3
IFS0051D
SELECT ADVISORS PORTFOLIOS
PART C
Item 24. Financial Statements and Exhibits.
(a) Financial Statements
The financial statements called for by this Item are included in Part B and
listed in Item 23 hereof.
(b) Exhibits
1(A). Declaration of Trust of the Registrant.1
1(B). Amendment No. 1 to Declaration of Trust of the Registrant.3
1(C). Form of Amendment No. 2 to Declaration of Trust of the Registrant.3
2. By-Laws of the Registrant.1
5(A). Amended Investment Advisory Agreement between the Registrant and
Touchstone Advisors, Inc. ("Touchstone"), including Amendment No. 1,
Amendment No. 2, and Amendment No. 3.3
5(B). Portfolio Advisory Agreement between Touchstone and David L. Babson
<PAGE> 4
and Company, Inc.1
5(C). Portfolio Advisory Agreement between Touchstone and Westfield
Capital Management Company, Inc.3
5(D). Portfolio Advisory Agreement between Touchstone and BEA Associates.1
5(E). Portfolio Advisory Agreement between Touchstone and Scudder Kemper
Investments, Inc. (with respect to Growth & Income Portfolio and Growth
& Income II Portfolio).3
5(F). Portfolio Advisory Agreement between Touchstone and Fort Washington
Investment Advisors, Inc. (with respect to Bond Portfolio).1
5(G). Portfolio Advisory Agreement between Touchstone and Alliance Capital
Management, L.P.1
5(H). Portfolio Advisory Agreement between Touchstone and OpCap Advisors.3
5(I). Amended Investment Advisory Agreement between the Registrant and
Touchstone.2
8. Custodian Agreement between the Registrant and Investors Bank &
Trust Company ("Investors Bank").4
9(A). Administration and Services Agreement between Investors Bank and the
Registrant.2
9(B). Fund Accounting Agreement between Investors Bank and the Registrant.2
13. Investment representation letter of initial investors.4
27. Financial Data Schedules.3
1 Incorporated herein by reference from Amendment No. 3 to the Registration
Statement as originally filed with the Securities and Exchange Commission via
EDGAR on April 29, 1996.
<PAGE> 5
2 Incorporated herein by reference from Amendment No. 4 to the Registration
Statement as originally filed with the Securities and Exchange Commission on
April 24, 1997.
3 Incorporated herein by reference from Amendment No. 5 to the Registration
Statement as originally filed with the Securities and Exchange Commission on
April 28, 1998.
4 Filed herein.
Item 25. Persons Controlled by or under Common Control with Registrant.
Not applicable.
Item 26. Number of Holders of Securities.
<TABLE>
<CAPTION>
(1) (2)
Title of Class Number of Record Holders
Series of Beneficial Interests (as of June 30, 1998)
<S> <C>
Emerging Growth Portfolio 2
International Equity Portfolio 2
Growth & Income Portfolio 3
Growth & Income Portfolio II 5
Balanced Portfolio 2
Income Opportunity Portfolio 2
Bond Portfolio 3
Bond Portfolio II 5
Value Plus Portfolio 2
</TABLE>
Item 27. Indemnification.
Reference is hereby made to Article V of the Registrant's Declaration of Trust,
filed as an Exhibit herewith.
The Trustees and officers of the Registrant and the personnel of the
Registrant's administrator are insured under an errors and omissions liability
insurance policy. The Registrant and its officers are also insured under the
fidelity bond required by Rule 17g-1 under the Investment Company Act of 1940,
as amended (the "1940 Act").
Item 28. Business and Other Connections of Investment Advisor.
Touchstone Advisors, Inc. ("Touchstone Advisors") serves as investment
advisor to the Portfolio Trust.
Set forth below are the names, principal business addresses and positions of
each director and officer of Touchstone Advisors. Unless otherwise noted, the
principal business address of these individuals is Touchstone Advisors, Inc.,
311 Pike Street, Cincinnati, Ohio 45202. Unless otherwise specified, none of the
officers and directors of Touchstone Advisors serve as officers and Trustees of
the Portfolio Trust.
<TABLE>
<CAPTION>
POSITION AND OFFICES
WITH TOUCHSTONE POSITION AND OFFICES
NAME ADVISORS WITH THE REGISTRANT
<S> <C> <C>
James N. Clark* Director none
Edward G. Harness, Jr. Director, President Chairman of the
and Chief Executive Board, President and
Officer Chief Executive
Officer
William F. Ledwin* Director none
</TABLE>
<PAGE> 6
<TABLE>
<S> <C> <C>
Donald J. Wuebbling* Director, Secretary
and Chief Legal Officer none
James J. Vance Treasurer Treasurer
Edward S. Heenan* Vice President Controller
and Controller
Richard K. Taulbee* Vice President none
Patricia Wilson Chief Compliance Officer none
Robert F. Morand* Assistant Secretary none
Robert A. Dressman* Assistant Treasurer none
Timothy D. Speed* Assistant Treasurer none
</TABLE>
- -------------------
*Principal business address is 400 Broadway, Cincinnati, Ohio 45202
Item 29. Principal Underwriters.
Not applicable.
Item 30. Location of Accounts and Records.
The accounts and records of the Registrant are located, in whole or in part, at
the office of the Registrant and the following locations:
<TABLE>
<CAPTION>
Name Address
---- -------
<S> <C>
Touchstone Securities, Inc. 311 Pike Street
(placement agent) Cincinnati, Ohio 45202
Touchstone Advisors, Inc. 311 Pike Street
(investment advisor) Cincinnati, Ohio 45202
Investors Bank & Trust Company 200 Clarendon Street
(administrator, custodian, Boston, Massachusetts 02116
fund accounting agent and
transfer agent)
</TABLE>
Item 31. Management Services.
Not applicable.
Item 32. Undertakings.
(a) Not applicable.
(b) Not applicable.
(c) Registrant hereby undertakes to furnish to each person to whom a
prospectus is delivered, a copy of the Registrant's latest annual
report to shareholders, including the information called for in Item 5A
of this Part C, upon request and without charge.
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Investment Company Act of 1940, as amended,
the Registrant has duly caused this Registration Statement on Form N-1A to be
signed on its behalf by the undersigned, thereto duly authorized, in the City of
Boston and Commonwealth of Massachusetts on the 22nd day of July, 1998.
SELECT ADVISORS PORTFOLIOS
By /s/ ANDREW S. JOSEF
-------------------------
Andrew S. Josef
Secretary
<PAGE> 8
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
(8) Custodian Agreement between the Registrant and Investors Bank & Trust
Company ("Investors Bank").
(13) Investment representation letters of initial investors.
<PAGE> 1
Exhibit (8)
CUSTODIAN AGREEMENT
BETWEEN
SELECT ADVISORS PORTFOLIOS
AND
INVESTORS BANK & TRUST COMPANY
<PAGE> 2
TABLE OF CONTENTS
Page
----
1. Bank Appointed Custodian............................................. 1
2. Definitions.......................................................... 1
2.1 Authorized Person............................................. 1
2.2 Security...................................................... 1
2.3 Portfolio Security............................................ 2
2.4 Officers' Certificate......................................... 2
2.5 Book Entry System............................................. 2
2.6 Depository.................................................... 2
2.7 Proper Instructions........................................... 2
3. Separate Accounts.................................................... 3
4. Certification as to Authorized Persons............................... 3
5. Custody of Cash...................................................... 3
5.1 Purchase of Securities........................................ 4
5.2 Redemptions................................................... 4
5.3 Distributions and Expenses of Each Portfolio.................. 4
5.4 Payment in Respect of Securities.............................. 5
5.5 Repayment of Loans............................................ 5
5.6 Repayment of Cash............................................. 5
5.7 Foreign Exchange Transactions................................. 5
5.8 Other Authorized Payments..................................... 5
5.9 Termination................................................... 6
6. Securities........................................................... 6
6.1 Segregation and Registration.................................. 6
6.2 Voting and Proxies............................................ 6
6.3 Book-Entry System............................................. 7
6.4 Use of a Depository........................................... 8
6.5 Use of a Book-Entry System for Commercial Paper............... 10
6.6 Use of Immobilization Programs................................ 11
6.7 Eurodollar CDs................................................ 11
6.8 Options and Futures Transactions.............................. 11
<PAGE> 3
(a) Puts and Calls Traded on Securities
Exchanges, NASDAQ or Over-the-Counter.................. 11
(b) Puts, Calls and Futures Traded on
Commodities Exchanges.................................. 12
6.9 Segregated Account............................................ 13
6.10 Interest Bearing Call or Time Deposits........................ 14
6.11 Transfer of Securities........................................ 15
7. Redemptions.......................................................... 17
8. Merger, Dissolution, etc. of a Portfolio............................. 17
9. Actions of Bank Without Prior Authorization.......................... 18
10. Collection; Defaults................................................. 19
11. Maintenance of Records............................................... 19
12. Portfolio Evaluation................................................. 20
13. Concerning the Bank.................................................. 20
13.1 Performance of Duties; Standard of Care....................... 20
13.2 Agents and Subcustodians...................................... 22
13.3 Insurance..................................................... 22
13.4 Fees and Expenses of Bank..................................... 22
13.5 Advances by Bank.............................................. 23
14. Termination.......................................................... 23
15. Confidentiality...................................................... 24
16. Notices.............................................................. 25
17. Amendments........................................................... 25
18. Parties.............................................................. 25
19. Governing Law........................................................ 25
20. Limitations of Liability............................................. 25
21. Counterparts......................................................... 25
<PAGE> 4
CUSTODIAN AGREEMENT
AGREEMENT made as of this 22nd day of August, 1994, between Select
Advisors Portfolios, a New York master trust (the "Trust"), acting for and on
behalf of each of the separate series of the Trust currently existing or
existing in the future and the portfolio of cash, securities, and other assets
held by each such series (each a "Portfolio" or, together, the "Portfolios"),
and INVESTORS BANK & TRUST COMPANY, (the "Bank").
The Trust, each of whose Portfolios is an open-end management investment
company, desires to place and maintain the securities and cash of each of the
Portfolios in the custody of the Bank. The Bank has at least the minimum
qualifications required by Section 17(f)(1) of the Investment Company Act of
1940 (the "Act") to act as custodian of the securities and cash of the
Portfolios, and has indicated its willingness to so act, subject to the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto agree as follows:
1. BANK APPOINTED CUSTODIAN. The Trust hereby appoints the Bank as
custodian of its portfolio securities and cash delivered to the Bank as
hereinafter described and the Bank agrees to act as such upon the terms and
conditions hereinafter set forth.
2. DEFINITIONS. Whenever used herein, the terms listed below will
have the following meaning:
2.1 AUTHORIZED PERSON. Authorized Person will mean any of
the persons duly authorized to give Proper Instructions or otherwise act
on behalf of the Trust or any of its Portfolios by appropriate
resolution of its Board of Trustees (the "Board"), and set forth in a
certificate as required by Section 4 hereof, subject in any case to such
limitations on the authority of any such person as are set forth in the
Officers' Certificate.
2.2 SECURITY. The term security as used herein will have the
same meaning as when such term is used in the Securities Act of 1933 as
amended, including, without limitation, any note, stock, treasury stock,
bond, debenture, evidence of indebtedness, certificate of interest or
participation in any profit sharing agreement, collateral-trust
certificate, preorganization certificate of subscription, transferable
share, investment contract, voting-trust certificate, certificate of
deposit for a security, fractional undivided interest in oil, gas, or
other mineral rights, any put, call, straddle, option, or privilege on
any security, certificate of deposit, or group or index of securities
(including any interest therein or based on the value thereof), or any
put, call, straddle, option, or privilege entered into on a national
securities exchange relating to a foreign currency, or, in general, any
interest or instrument commonly known as a "security", or any
certificate of interest or participation in, temporary or interim
certificate for, receipt for, guarantee of,
<PAGE> 5
or warrant or right to subscribe to, or option contract to purchase or
sell any of the foregoing and futures, forward contracts and options
thereon.
2.3 PORTFOLIO SECURITY. Portfolio Security will mean any
Security owned by a Portfolio.
2.4 OFFICERS' CERTIFICATE. Officers' Certificate will mean,
unless otherwise indicated, any request, direction, instruction, or
certification in writing signed by any two Authorized Persons of the
Trust.
2.5 BOOK-ENTRY SYSTEM. Book-Entry System shall mean the
Federal Reserve-Treasury Department Book Entry System for United States
government, instrumentality and agency securities operated by the
Federal Reserve Bank, its successor or successors and its nominee or
nominees.
2.6 DEPOSITORY. Depository shall mean The Depository Trust
Company ("DTC"), a clearing agency registered with the Securities and
Exchange Commission under Section 17A of the Securities Exchange Act of
1934, its successor or successors and its nominee or nominees. The term
"Depository" shall further mean and include any other person authorized
to act as a depository under the Act, its successor or successors and
its nominee or nominees, specifically identified in a certified copy of
a resolution of the Board.
2.7 PROPER INSTRUCTIONS. Proper Instructions shall mean (i)
instructions (which may be continuing instructions) regarding the
purchase or sale of Portfolio Securities, and payments and deliveries in
connection therewith, given by an Authorized Person, such instructions
to be given in such form and manner as the Bank and the Trust shall
agree upon from time to time, (ii) instructions (which may be continuing
instructions) regarding other matters signed or initialed by such one or
more Authorized Persons and (iii) instructions contained in an Officers'
Certificate. Oral instructions will be considered Proper Instructions if
the Bank reasonably believes them to have been given by an Authorized
Person who has been granted authority with respect to the transaction
involved. The Trust shall cause all oral instructions to be promptly
confirmed in writing. The Bank shall act upon and comply with any
subsequent Proper Instruction which modifies a prior instruction, and
the sole obligation of the Bank with respect to any follow-up or
confirmatory instruction shall be to make reasonable efforts to detect
any discrepancy between the original instruction and such confirmation
and to report such discrepancy to the Trust. The Trust shall be
responsible, at the Trust's expense, for taking any action, including
any reprocessing, necessary to correct any such discrepancy or error,
and to the extent such action requires the Bank to act the Trust shall
give the Bank specific Proper Instructions as to the action required.
Upon receipt of an Officers' Certificate as to the authorization by the
Board, accompanied by a detailed description of procedures approved by
the Trust, Proper Instructions may include communication effected
directly between electro-mechanical or electronic devices provided that
the
2
<PAGE> 6
Board and the Bank are satisfied that such procedures afford adequate
safeguards for the Trust's assets.
3. SEPARATE ACCOUNTS. Because the Trust has more than one
Portfolio, the Bank will segregate the assets of each Portfolio to which this
Agreement relates into a separate account for each such Portfolio containing the
assets of such Portfolio (and all investment earnings thereon).
4. CERTIFICATE AS TO AUTHORIZED PERSONS. The Secretary or Assistant
Secretary of the Trust will at all times maintain on file with the Bank his
certification to the Bank, in such form as may be acceptable to the Bank, of (i)
the names and signatures of the Authorized Persons and (ii) the names of the
members of the Board, it being understood that upon the occurrence of any change
in the information set forth in the most recent certification on file (including
without limitation any person named in the most recent certification who is no
longer an Authorized Person as designated therein), the Secretary or Assistant
Secretary of the Trust will sign a new or amended certification setting forth
the change and the new, additional or omitted names or signatures. The Bank will
be entitled to rely and act upon an Officers' Certificate given to it by the
Trust which has been signed by Authorized Persons named in the most recent
certification.
5. CUSTODY OF CASH. As custodian for the Trust, the Bank will open
and maintain a separate account or accounts in the name of the Trust or in the
name of the Bank, as Custodian of each of the Portfolios of the Trust, and will
deposit to the account of each Portfolio all of the cash of the Portfolio,
except for cash held by a subcustodian appointed pursuant to Section 13.2
hereof, including borrowed funds, delivered to the Bank, subject only to draft
or order by the Bank acting pursuant to the terms of this Agreement. Upon
receipt by the Bank of Proper Instructions (which may be continuing
instructions) or in the case of payments for redemptions and repurchases of
outstanding interests of each Portfolio of the Trust, notification from the
Trust's transfer agent as provided in Section 7, which in either case requests
such payment, designates the payee or the account or accounts to which the Bank
will release funds for deposit, and states that it is for a purpose permitted
under the terms of this Section 5, specifying the applicable subsection, or
describing such purpose with sufficient particularity to permit the Bank to
ascertain the applicable subsection, the Bank will make payments of cash held
for the accounts of the Trust, insofar as funds are available for that purpose,
in the following circumstances:
5.1 PURCHASE OF SECURITIES: upon the purchase of securities
for any Portfolio of the Trust, against contemporaneous receipt of such
securities by the Bank or against delivery of such securities to the
Bank in accordance with generally accepted settlement practices and
customs in the jurisdiction or market in which the transaction occurs,
registered in the name of the Portfolio or in the name of, or properly
endorsed and in form for transfer to, the Bank, or a nominee of the
Bank, or receipt for the account of the Bank pursuant to the provisions
of Section 6 below, each payment to be made at the purchase price shown
on a broker's confirmation (or transaction report in the case of Book
Entry Paper) of
3
<PAGE> 7
purchase of the securities received by the Bank before such payment is
made, as confirmed in the Proper Instructions received by the Bank
before such payment is made;
5.2 REDEMPTIONS: in such amount as may be necessary for the
repurchase or redemption of interests of any Portfolio of the Trust
offered for repurchase or redemption in accordance with Section 7 of
this Agreement;
5.3 DISTRIBUTIONS AND EXPENSES OF EACH PORTFOLIO: for the
payment on the account of any Portfolio of the Trust of dividends or
other distributions to shareholders as may from time to time be declared
by the Board, of interest, taxes, management or supervisory fees,
distribution fees, fees of the Bank for its services hereunder and
reimbursement of the expenses and liabilities of the Bank as provided
hereunder, of fees of any transfer agent, fees for legal, accounting,
and auditing services, or other operating expenses of any Portfolio of
the Trust;
5.4 PAYMENT IN RESPECT OF SECURITIES: for payments in
connection with the conversion, exchange or surrender of Portfolio
Securities or securities subscribed to by any Portfolio of the Trust
held by or to be delivered to the Bank;
5.5 REPAYMENT OF LOANS: to repay loans of money made to any
Portfolio of the Trust, but, in the case of final payment, only upon
redelivery to the Bank of any Portfolio Securities pledged or
hypothecated therefor and upon surrender of documents evidencing the
loan;
5.6 REPAYMENT OF CASH: to repay the cash delivered to any
Portfolio of the Trust for the purpose of collateralizing the obligation
to return to the Portfolio certificates borrowed from the Portfolio
representing Portfolio Securities, but only upon redelivery to the Bank
of such borrowed certificates;
5.7 FOREIGN EXCHANGE TRANSACTIONS: for payments in
connection with foreign exchange contracts or options to purchase and
sell foreign currencies for spot and future delivery which may be
entered into by the Bank on behalf of any Portfolio of the Trust upon
the receipt of Proper Instructions, such Proper Instructions to specify
the currency broker or banking institution (which may be the Bank, or
any other subcustodian or agent hereunder, acting as principal) with
which the contract or option is made, and the Bank shall have no duty
with respect to the selection of such currency brokers or banking
institutions with which the Portfolio deals or for their failure to
comply with the terms of any contract or option;
5.8 OTHER AUTHORIZED PAYMENTS: for other authorized
transactions of any Portfolio of the Trust, or other obligations
thereof, incurred for proper Portfolio purposes; provided that before
making any such payment the Bank will also receive a certified copy of a
resolution of the Board signed by an Authorized Person (other than the
Person certifying such resolution) and certified by its Secretary or
Assistant Secretary, naming the person or persons to whom such payment
is to be made, and either describing the transaction for
4
<PAGE> 8
which payment is to be made and declaring it to be an authorized
transaction of the Portfolio, or specifying the amount of the obligation
for which payment is to be made, setting forth the purpose for which
such obligation was incurred and declaring such purpose to be a proper
corporate purpose; and
5.9 TERMINATION: upon the termination of this Agreement as
hereinafter set forth pursuant to Section 8 and Section 14 of this
Agreement.
6. SECURITIES
6.1 SEGREGATION AND REGISTRATION. Except as otherwise
provided herein, and except for securities to be delivered to any
subcustodian appointed pursuant to Section 13.2 hereof, the Bank as
custodian, will receive and hold pursuant to the provisions hereof, in a
separate account of accounts and physically segregated at all times from
those of other persons, any and all Portfolio Securities which may now
or hereafter be delivered to it by or for the account of any Portfolio
of the Trust. All such Portfolio Securities will be held of disposed of
by the Bank for, and subject at all times to, the instructions of the
Portfolio pursuant to the terms of this Agreement. Subject to the
specific provisions herein relating to Portfolio Securities that are not
physically held by the Bank, the Bank will register all Portfolio
Securities (unless otherwise directed by Proper Instructions or an
Officers' Certificate), in the name of a registered nominee of the Bank
as defined in the Internal Revenue Code and any Regulations of the
Treasury Department issued thereunder, and will execute and deliver all
such certificates in connection therewith as may be required by such
laws or regulations or under the laws of any State. The Bank will use
its best efforts to the end that the specific Portfolio Securities held
by it hereunder will be at all times identifiable.
The Trust will from time to time furnish to the Bank appropriate
instruments to enable it to hold or deliver in proper form for transfer,
or to register in the name of its registered nominee, any Portfolio
Securities which may from time to time be registered in the name of any
Portfolio of the Trust.
6.2 VOTING AND PROXIES. Neither the Bank nor any nominee of
the Bank will vote any of the Portfolio Securities held hereunder,
except in accordance with Proper Instructions. The Bank will promptly
execute and deliver, or cause to be executed and delivered, to the Trust
all notices, proxies and proxy soliciting materials with respect to such
Securities, such proxies to be executed by the registered holder of such
Securities, (if registered otherwise than in the name of a Portfolio of
the Trust), but without indicating the manner in which such proxies are
to be voted.
6.3 BOOK-ENTRY SYSTEM. Provided (i) the Bank has received a
certified copy of a resolution of the Board specifically approving
deposits of any Portfolio of the Trust's assets in the Book-Entry
System, and (ii) for each year following such approval, the Board has
reviewed and approved the arrangement and has not delivered an Officer's
Certificate to the Bank indicating that the Board has withdrawn its
approval.
5
<PAGE> 9
(a) The Bank may keep Portfolio Securities in the
Book-Entry System provided that such Portfolio Securities are
represented in an account ("Account") of the Bank (or its agent)
in such System which shall not include any assets of the Bank
(or such agent) other than assets held as a fiduciary,
custodian, or otherwise for customers.
(b) The records of the Bank (and any such agent)
with respect to any Portfolio of the Trust's participation in
the Book-Entry System through the Bank (or any such agent) will
identify by book entry Portfolio Securities which are included
with other securities deposited in the Account and shall at all
times during the regular business hours of the Bank (or such
agent) be open for inspection by duly authorized officers,
employees or agents of the Trust. Where securities are
transferred to any Portfolio of the Trust's account, the Bank
shall also, by book entry or otherwise, identify as belonging to
the Portfolio a quantity of securities in fungible bulk of
securities (i) registered in the name of the Bank or its
nominee, or (ii) shown on the Bank's account on the books of the
Federal Reserve Bank.
(c) The Bank (or its agent) shall pay for Portfolio
Securities purchased for the account of any Portfolio of the
Trust or shall pay cash collateral against the return of
securities loaned by any Portfolio of the Trust upon (i) receipt
of advice from the Book-Entry System that such Securities have
been transferred to the Account, and (ii) the making of an entry
on the records of the Bank (or its agent) to reflect such
payment and transfer for the account of the Portfolio. The Bank
(or its agent) shall transfer securities sold or loaned for the
account of any Portfolio of the Trust upon
(i) receipt of advice from the Book-Entry
System that payment for securities sold or payment of
the initial cash collateral against the delivery of
securities loaned by the Portfolio has been transferred
to the Account, and
(ii) the making of an entry on the records of
the Bank (or its agent) to reflect such transfer and
payment for the account of the Portfolio. Copies of all
advices from the Book-Entry System of transfers of
Securities for the account of any Portfolio shall
identify the Portfolio, be maintained for the Portfolio
by the Bank and shall be provided to the Portfolio at
its request. The Bank shall send the Portfolio a
confirmation, as defined by Rule 17f-4 under the Act, of
any transfers to or from the account of the Portfolio;
(d) The Bank will promptly provide the Portfolio
with any report obtained by the Bank or its agent on the
Book-Entry system's accounting system, internal accounting
control and procedures for safeguarding securities deposited in
the Book-Entry System; and
(e) The Bank shall be liable to the Portfolio for
any loss or damage to the Portfolio resulting from use of the
Book-Entry System by reason of any gross
6
<PAGE> 10
negligence, willful misfeasance or bad faith of the Bank or any
of its agents or of any of its or their employees or from any
reckless disregard by the Bank or any such agent of its duty to
use its best efforts to enforce such rights as it may have
against the Book-Entry System; at the election of the Trust on
behalf of the Portfolio, it shall be entitled to be subrogated
to the Bank in any claim against the Book-Entry System or any
other person which the Bank or its agent may have as a
consequence of any such loss or damage if and to the extent that
the Portfolio has not been made whole for any loss or damage.
6.4 USE OF A DEPOSITORY. Provided (i) the Bank has received
a certified copy of a resolution of the Board specifically approving
deposits in DTC or other such Depository and (ii) for each year
following such approval, the Board has reviewed and approved the
arrangement and has not delivered an Officer's Certificate to the Bank
indicating that the Board has withdrawn its approval:
(a) The Bank may use a Depository to hold, receive,
exchange, release, lend, deliver and otherwise deal with the
Portfolio Securities including stock dividends, rights and other
items of like nature, and to receive and remit to the Bank on
behalf of any Portfolio of the Trust all income and other
payments thereon and to take all steps necessary and proper in
connection with the collection thereof;
(b) Registration of the Portfolio Securities may be
made in the name of any nominee or nominees used by such
Depository;
(c) Payment for securities purchased and sold may be
made through the clearing medium employed by such Depository for
transactions of participants acting through it. Upon any
purchase of Portfolio Securities, payment will be made only upon
delivery of the securities to or for the account of the
Portfolio and the Portfolio shall pay cash collateral against
the return of Securities loaned by the Portfolio only upon
delivery of the Portfolio Securities to or for the account of
the Portfolio; and upon any sale of Portfolio Securities,
delivery of the Portfolio Securities will be made only against
payment therefor or, in the event Securities are loaned,
delivery of Securities will be made only against receipt of the
initial cash collateral to or for the account of the Portfolio;
and
(d) The Bank shall be liable to any Portfolio of the
Trust for any loss or damage to the Portfolio resulting from use
of a Depository by reason of any gross negligence, willful
misfeasance or bad faith of the Bank or its employees or from
any reckless disregard by the Bank of its duty to use its best
efforts to enforce such rights as it may have against a
Depository. In this connection, the Bank shall use its best
efforts to ensure that:
(i) the Depository obtains replacement of
any certificated Portfolio Security deposited with it in
the event such Security is lost, destroyed,
7
<PAGE> 11
wrongfully taken or otherwise not available to be
returned to the Bank upon its request.
(ii) any proxy materials received by a
Depository with respect to Portfolio Securities
deposited with such Depository are forwarded immediately
to the Bank for prompt transmittal to the affected
Portfolio;
(iii) such Depository immediately forwards to
the Bank confirmation of any purchase or sale of
Portfolio Securities and of the appropriate book entry
made by such Depository to the affected Portfolio's
account;
(iv) such Depository prepares and delivers to
performance of the Bank's obligations and duties
hereunder as may be necessary for the Portfolio to
comply with the record keeping requirements of Section
31(a) of the Act and Rule 31a-1 thereunder; and
(v) such Depository delivers to the Bank and
the Portfolio all internal accounting control reports,
whether or not audited by an independent public
accountant, as well as such other reports as the
Portfolio may reasonably request in order to verify the
Portfolio Securities held by such Depository.
6.5 USE OF BOOK-ENTRY SYSTEM FOR COMMERCIAL PAPER. Provided
(i) the Bank has received a certified copy of a resolution of the Board
specifically approving participation in a system maintained by the Bank
for the holding of commercial paper in book-entry form ("Book Entry
Paper") and (ii) for each year following such approval the Board has
received and approved the arrangements, upon receipt of Proper
Instructions and upon receipt of confirmation from an Issuer (as defined
below) that any Portfolio of the Trust has purchased such Issuer's Book
Entry paper, the Bank shall issue and hold in book-entry form, on behalf
of the Portfolio, commercial paper issued by issuers with whom the Bank
has entered into a book-entry agreement (the "Issuers"). In maintaining
its Book Entry Paper System, the Bank agrees that:
(a) the Bank will maintain all Book Entry Paper held
by any Portfolio of the Trust in an account of the Bank that
includes only assets held by it for customers;
(b) the records of the Bank with respect to any
Portfolio of the Trust's purchase of Book Entry Paper through
the Bank will identify, by book entry, Commercial Paper
belonging to the Portfolio which is included in the Book Entry
Paper System and shall at all times during the regular business
hours of the Bank be open for inspection by duly authorized
officers, employees or agents of the Trust;
(c) the Bank shall pay for Book Entry Paper
purchased for the account of any Portfolio of the Trust upon
contemporaneous (i) receipt of advice from the Issuer that such
sale of Book Entry Paper has been effected, and (ii) the making
of an entry
8
<PAGE> 12
on the records of the Bank to reflect such payment and transfer
for the account of such Portfolio;
(d) The Bank shall cancel such Book Entry Paper
obligation upon the maturity thereof upon contemporaneous (i)
receipt of advice that payment for such Book Entry Paper has
been transferred to the Portfolio, and (ii) the making of an
entry on the records of the Bank to reflect such payment for the
account of the Portfolio;
(e) the Bank shall transmit to the Trust a
transaction journal confirming each transaction in Book Entry
Paper for the account of any Portfolio of the Trust on the next
business day following the transactions; and
(f) the Bank will send to the Trust such reports on
its system of internal accounting control with respect to the
Book Entry Paper System as the Trust may reasonably request from
time to time.
6.6 USE OF IMMOBILIZATION PROGRAMS. Provided (i) the Bank
has received a certified copy of a resolution of the Board specifically
approving the maintenance of Portfolio Securities in an immobilization
program operated by a bank which meets the requirements of Section
26(a)(1) of the Act, and (ii) for each year following such approval the
Board has reviewed and approved the arrangement and has not delivered an
Officer's Certificate to the Bank indicating that the Board has
withdrawn its approval, the Bank shall enter into such immobilization
program with such bank acting as a subcustodian hereunder.
6.7 EURODOLLAR CDs. Any Portfolio Securities which are
Eurodollar CDs may be physically held by the European branch of the U.S.
banking institution that is the issuer of such Eurodollar CD (a
"European Branch"), provided that such Securities are identified on the
books of the Bank as belonging to a Portfolio of the Trust and that the
books of the Bank identify the European Branch holding such securities.
Notwithstanding any other provision of this Agreement to the contrary,
except as stated in the first sentence of this subsection 6.7, the Bank
shall be under no other duty with respect to such Eurodollar CDs
belonging to the Portfolio, and shall have no liability to the Portfolio
or its shareholders with respect to the actions, inactions, whether
negligent or otherwise of such European Branch in connection with such
Eurodollar CDs, except for any loss of damage to the Portfolio resulting
from the Bank's own gross negligence, willful misfeasance or bad faith
in the performance of its duties hereunder.
6.8 OPTIONS AND FUTURES TRANSACTIONS.
(a) PUTS AND CALLS TRADED ON SECURITIES EXCHANGES,
NASDAQ OR OVER-THE-COUNTER.
1. The Bank shall take action as to put options
("puts") and call options ("calls") purchased or sold (written)
by any Portfolio of the Trust regarding escrow
9
<PAGE> 13
or other arrangements (i) in accordance with the provisions of
any agreement entered into upon receipt of Proper Instructions
between the Bank, any broker-dealer registered under the
Securities Exchange Act of 1934 and a member of the National
Association of Securities Dealers, Inc. (the "NASD"), and, if
necessary, any Portfolio of the Trust relating to the compliance
with the rules of the Options Clearing Corporation and of any
registered national securities exchange, or of any similar
organization or organizations.
2. Unless another agreement requires it to do so,
the Bank shall be under no duty or obligation to see that any
Portfolio of the Trust has deposited or is maintaining adequate
margin, if required, with any broker in connection with any
option, nor shall the Bank be under duty or obligation to
present such option to the broker for exercise unless it
receives Proper Instructions from the Portfolio. The Bank shall
have no responsibility for the legality of any put or call
purchased or sold on behalf of any Portfolio of the Trust, the
propriety of any such purchase or sale, or the adequacy of any
collateral delivered to a broker in connection with an option or
deposited to or withdrawn from a Segregated Account (as defined
in subsection 6.9 below). The Bank specifically, but not by way
of limitation, shall not be under any duty or obligation to: (i)
periodically check or notify the Portfolio that the amount of
such collateral held by a broker or held in a Segregated Account
is sufficient to protect such broker of the Portfolio against
any loss; (ii) effect the return of any collateral delivered to
a broker; or (iii) advise the Portfolio that any option it
holds, has or is about to expire. Such duties or obligations
shall be the sole responsibility of the Portfolio.
(b) PUTS, CALLS AND FUTURES TRADED ON COMMODITIES
EXCHANGES.
1. The Bank shall take action as to puts, calls and
futures contracts ("Futures") purchased or sold by any Portfolio
of the Trust in accordance with the provisions of any agreement
among the Portfolio, the Bank and a Futures Commission Merchant
registered under the Commodity Exchange Act, relating to
compliance with the rules of the Commodity Futures Trading
Commission and/or any Contract Market, or any similar
organization or organizations, regarding account deposits in
connection with transactions by the Portfolio.
2. The responsibilities and liabilities of the Bank
as to Futures, puts and calls traded on commodities exchanges,
any Futures Commission Merchant account and the Segregated
Account shall be limited as set forth in subparagraph (a)(2) of
this Section 6.8 as if such subparagraph referred to Futures
Commission Merchants rather than brokers, and Futures and puts
and calls thereon instead of options.
6.9 SEGREGATED ACCOUNT. The Bank shall upon receipt of
Proper Instructions establish and maintain a segregated account or
accounts for and on behalf of any Portfolio of the Trust, into which
account(s) (a "Segregated Account" or, collectively,
10
<PAGE> 14
"Segregated Accounts"), upon receipt of Proper Instructions, cash and/or
Portfolio Securities may be transferred:
(a) in accordance with the provisions of any
agreement among any Portfolio of the Trust, the Bank and a
broker-dealer registered under the Exchange Act and a member of
the NASD or any Futures Commission Merchant registered under the
Commodity Exchange Act, relating to compliance with the rules of
the Options Clearing Corporation and of any registered national
securities exchange or the Commodity Futures Trading Commission
or any registered Contract Market, or of any similar
organization or organizations regarding escrow or other
arrangements in connection with transactions by a Portfolio;
(b) for the purpose of segregating cash or
securities in connection with options purchased, or written by
any Portfolio of the Trust or commodity futures purchased or
written by any Portfolio of the Trust;
(c) for the deposit of liquid assets, such as cash,
U.S. Government securities or other high grade debt obligations,
having a market value (marked to the market on a daily basis) at
all times equal to not less than the aggregate purchase price
due on the settlement dates of all of any Portfolio of the
Trust's then outstanding forward commitment or "when-issued"
agreements relating to the purchase of Portfolio Securities and
all the Portfolio's then outstanding commitments under reverse
repurchase agreements entered into with broker-dealer firms;
(d) for the deposit of any Portfolio Securities
which any Portfolio of the Trust has agreed to sell on a forward
commitment basis, all in accordance with Investment Company Act
Release No. 10666;
(e) for the purposes of compliance by the Trust and
each Portfolio with the procedures required by Investment
Company Act Release No. 10666, or any subsequent release or
releases of the Securities and Exchange Commission relating to
the maintenance of Segregated Accounts by registered investment
companies; or
(f) for other proper corporate purposes, BUT ONLY,
in the case of this clause (f), upon receipt of, in addition to
Proper Instructions, a certified copy of a resolution of the
Board, or of the Executive Committee signed by an officer of the
Trust and certified by the Secretary of an Assistant Secretary,
setting forth the purpose or purposes of such Segregated Account
and declaring such purposes to be proper corporate purposes.
Assets may be withdrawn from the Segregated Account
pursuant to Proper Instructions only:
(i) in accordance with the provisions of any
agreements referenced in (a) or (b) above;
11
<PAGE> 15
(ii) for sale or delivery to meet any
Portfolio of the Trust's obligations under outstanding
firm commitment or when-issued agreements for the
purchase of Portfolio Securities and under reverse
repurchase agreements;
(iii) for exchange for other liquid assets of
equal or greater value deposited in the Segregated
Account;
(iv) to the extent that any Portfolio of the
Trust's outstanding forward commitment or when-issued
agreements for the purchase of portfolio securities or
reverse repurchase agreements are sold to other parties
or the Portfolio's obligations thereunder are met from
assets of the Portfolio other than those in the
Segregated Account; or
(v) for delivery upon settlement of a
forward commitment agreement for the sale of Portfolio
Securities.
6.10 INTEREST BEARING CALL OR TIME DEPOSITS. The Bank shall,
upon receipt of Proper Instructions relating to the purchase by any
Portfolio of the Trust of interest bearing fixed term and call deposits,
transfer cash, by wire or otherwise, in such amounts and to such bank or
banks as shall be indicated in such Proper Instructions. The Bank shall
include in its records with respect to the assets of the affected
Portfolio appropriate notation as to the amount of each such deposit,
the banking institution with which such deposit is made (the "Deposit
Bank"), and shall retain such forms of advice or receipt evidencing the
deposit, if any, as may be forwarded to the Bank by the Deposit bank.
Such deposits shall be deemed Portfolio Securities of the Portfolio and
the responsibility of the Bank therefore shall be the same as and no
greater than the Bank's responsibility in respect of other Portfolio
Securities of the Portfolio.
6.11 TRANSFER OF SECURITIES. The Bank will transfer,
exchange, deliver or release Portfolio Securities held by it hereunder,
insofar as such Securities are available for such purpose, provided that
before making any transfer, exchange, delivery or release under this
Section the Bank will receive Proper Instructions requesting such
transfer, exchange or delivery stating that it is for a purpose
permitted under the terms of this Section 6.11, specifying the
applicable subsection, or describing the purpose of the transaction with
sufficient particularity to permit the Bank to ascertain the applicable
subsection, only:
(a) upon sales of Portfolio Securities for the
account of the any Portfolio of the Trust, against
contemporaneous receipt by the Bank of payment therefor in full
or against payment to the Bank in accordance with generally
accepted settlement practices and customs in the jurisdiction or
market in which the transaction occurs, each such payment to be
in the amount of the sale price shown in a broker's confirmation
of sale of the Portfolio Securities received by the Bank before
such transfer is made, as confirmed in the Proper Instructions
received by the Bank before such transfer is made;
12
<PAGE> 16
(b) in exchange for or upon conversion into other
securities alone or other securities and cash pursuant to any
plan or merger, consolidation, reorganization, share split-up,
change in par value, recapitalization or readjustment or
otherwise, upon exercise of subscription, purchase or sale or
other similar rights represented by such Portfolio Securities,
or for the purpose of tendering shares in the event of a tender
offer therefor, provided however that in the event of an offer
of exchange, tender offer, or other exercise of rights requiring
the physical tender or delivery of Portfolio Securities, the
Bank shall have no liability for failure to so tender in a
timely manner unless such Proper Instructions are received by
the Bank at least two business days prior to the date required
for tender, and unless the Bank (or its agent or subcustodian
hereunder) has actual possession of such Security at least two
business days prior to the date of tender;
(c) upon conversion of Portfolio Securities pursuant
to their terms into other securities;
(d) for the purpose of redeeming in kind interests
in any Portfolio of the Trust upon authorization from the
Portfolio;
(e) in the case of option contracts owned by any
Portfolio of the Trust, for presentation to the endorsing
broker,
(f) when such Portfolio Securities are called,
redeemed or retired or otherwise become payable;
(g) for the purpose of effectuating the pledge of
Portfolio Securities held by the Bank in order to collateralize
loans made to any Portfolio of the Trust by any bank, including
the Bank; provided, however, that such Portfolio Securities will
be released only upon payment to the Bank for the account of the
Portfolio of the moneys borrowed, except that in cases where
additional collateral is required to secure a borrowing already
made, and such fact is made to appear in the Proper
Instructions, further Portfolio Securities may be released for
that purpose without any such payment. If any such pledged
Portfolio Securities are held by the Bank, they will be so held
for the account of the lender, and after notice to the Portfolio
from the lender in accordance with the normal procedures of the
lender, that an event of deficiency or default on the loan has
occurred, the Bank may deliver such pledged Portfolio Securities
to or for the account of the lender;
(h) for the purpose of releasing certificates
representing Portfolio Securities, against contemporaneous
receipt by the Bank of the fair market value of such security,
as set forth in Proper Instructions received by the Bank before
such payment is made;
13
<PAGE> 17
(i) for the purpose of delivering securities lent by
any Portfolio of the Trust to a bank or broker dealer, but only
against receipt in accordance with street delivery custom except
as otherwise provided herein, of adequate collateral as agreed
upon from time to time by the Portfolio and the Bank, and upon
receipt of payment in connection with any repurchase agreement
relating to such securities entered into by the Portfolio;
(j) for other authorized transactions of any
Portfolio of the Trust or for other proper corporate purposes;
provided that before making such transfer, the Bank will also
receive a certified copy of resolutions of the Board, signed by
an authorized officer of the Portfolio (other than the officer
certifying such resolution) and certified by its Secretary or
Assistant Secretary, specifying the Portfolio Securities to be
delivered, setting forth the transaction in or purpose for which
such delivery is to be made, declaring such transaction to be an
authorized transaction of the Portfolio or such purpose to be a
proper corporate purpose, and naming the person or persons to
whom delivery of such securities shall be made; and
(k) upon termination of this Agreement as
hereinafter set forth pursuant to Section 8 and Section 14 of
this Agreement.
As to any deliveries made by the Bank pursuant to subsections (a), (b),
(c), (e), (f), (g), (h) and (i) securities or cash receivable in exchange
therefor shall be delivered to the Bank.
7. REDEMPTIONS. In the case of payment of assets of any Portfolio
of the Trust held by the Bank in connection with redemptions and repurchases by
the Portfolio of outstanding common shares, the Bank will rely on notification
by the Portfolio's transfer agent of receipt of a request for redemption and
certificates if issued, in proper form for redemption before such payment is
made. Payment shall be made in accordance with the Articles and Bylaws of the
Trust, from assets available for said purpose.
8. MERGER, DISSOLUTION, ETC. OF A PORTFOLIO. In the case of the
following transactions, not in the ordinary course of business, namely, the
merger of any Portfolio of the Trust into or the consolidation of any Portfolio
of the Trust with another investment company, the sale by any Portfolio of the
Trust of all, or substantially all, of its assets to another investment company,
or the liquidation or dissolution of any Portfolio of the Trust and distribution
of its assets, the Bank will deliver the Portfolio Securities held by it under
this Agreement and disburse cash only upon the order of the Portfolio set forth
in an Officers' Certificate, accompanied by a certified copy of a resolution of
the Board authorizing any of the foregoing transactions. Upon completion of such
delivery and disbursement and the payment of the fees, disbursements and
expenses of the Bank, this Agreement will terminate.
9. ACTIONS OF BANK WITHOUT PRIOR AUTHORIZATION. Notwithstanding
anything herein to the contrary, unless and until the Bank receives an Officers'
Certificate to the contrary, it will without prior authorization or instruction
of any Portfolio or the Trust or the transfer agent:
14
<PAGE> 18
9.1 endorse for collection and collect on behalf of and in
the name of any Portfolio of the Trust all checks, drafts, or other
negotiable or transferable instruments or other orders for the payment
of money received by it for the account of the Portfolio and hold for
the account of the Portfolio all income, dividends, interest and other
payments or distribution of cash with respect to the Portfolio
Securities held thereunder;
9.2 present for payment all coupons and other income items
held by it for the account of any Portfolio of the Trust which call for
payment upon presentation and hold the cash received by it upon such
payment for the account of the Portfolio;
9.3 receive and hold for the account of any Portfolio of the
Trust all securities received as a distribution on Portfolio Securities
as a result of a stock dividend, share split-up, reorganization,
recapitalization, merger, consolidation, readjustment, distribution of
rights and similar securities issued with respect to any Portfolio
Securities held by it hereunder;
9.4 execute as agent on behalf of any Portfolio of the Trust
all necessary ownership and other certificates and affidavits required
by the Internal Revenue Code or the regulations of the Treasury
Department issued thereunder, or by the laws of any state, now or
hereafter in effect, inserting the Trust's name on such certificates as
the owner of the securities covered thereby, to the extent it may
lawfully do so and as may be required to obtain payment in respect
thereof. The Bank will execute and deliver such certificates in
connection with Portfolio Securities delivered to it or by it under this
Agreement as may be required under the provisions of the Internal
Revenue Code and any Regulations of the Treasury Department issued
thereunder, or under the laws of any State;
9.5 present for payment all Portfolio Securities which are
called, redeemed, retired or otherwise become payable, and hold cash
received by it upon payment for the account of any Portfolio of the
Trust; and
9.6 exchange interim receipts or temporary securities for
definitive securities.
10. COLLECTION; DEFAULTS. The Bank will use all reasonable effort to
collect any funds which may to its knowledge become collectible arising from
Portfolio Securities, including dividends, interest and other income, and to
transmit promptly to the Trust notice actually received by it of any call for
redemption, offer of exchange, right of subscription, reorganization or other
proceedings affecting such Securities.
If Portfolio Securities upon which such income is payable are in default
or payment is refused after due demand or presentation, the Bank will notify the
Trust in writing of any default or refusal to pay within two business days from
the day on which it receives knowledge of such default or refusal. In addition,
the Bank will send the Trust a written report once each month showing any income
on any Portfolio Security held by it which is
15
<PAGE> 19
more than ten days overdue on the date of such report and which has not
previously been reported.
11. MAINTENANCE OF RECORDS. The Bank will maintain records with
respect to transactions for which the Bank is responsible pursuant to the terms
and conditions of this Agreement, and in compliance with the applicable rules
and regulations of the Act and applicable federal and state tax laws, and will
furnish the Trust daily with a statement of condition of each Portfolio of the
Trust. The Bank will furnish to the Trust at the end of every month, and at the
close of each quarter of the Trust's fiscal year, a list of the Portfolio
Securities and the aggregate amount of cash held by it for each portfolio of the
Trust. The books and records of the Bank pertaining to its actions under this
Agreement and reports by the Bank or its independent accountants concerning its
accounting system, procedures for safeguarding securities and internal
accounting controls will be open to inspection and audit at reasonable times by
officers of or auditors employed by the Trust and will be preserved by the Bank
in the manner and in accordance with the applicable rules and regulations under
the Act.
The Bank shall keep the books of account and render statements or copies
from time to time as reasonably requested by the Treasurer or any executive
officer of the Trust.
The Bank shall assist generally in the preparation of reports to
shareholders and others, audits of accounts, and other ministerial matters of
like nature.
12. PORTFOLIO EVALUATION. The Bank shall compute and, unless
otherwise directed by the Board, determine as of the close of business on the
New York Stock Exchange on each day on which said Exchange is open for
unrestricted trading and as of such other hours, if any, as may be authorized by
the Board the net asset value and the public offering price of a share of
capital stock of each Portfolio of the Trust, such determination to be made in
accordance with the provisions of the Articles and By-laws of the Trust and
Prospectus and Statement of Additional Information relating to each Portfolio
and the Trust, as they may from time to time be amended, and any applicable
resolutions of the Board at the time in force and applicable; and promptly to
notify the Trust and the National Association of Securities Dealers ("NASD") or
such other persons as the Trust may request of the results of such computation
and determination. In computing the net asset value hereunder, the Bank may rely
in good faith upon information furnished to it by any Authorized Person in
respect of (i) the manner of accrual of the liabilities of each Portfolio of the
Trust and in respect of liabilities of any Portfolio of the Trust not appearing
on its books of account kept by the Bank, (ii) reserves, if any, authorized by
the Board or that no such reserves have been authorized, (iii) the source of the
quotations to be used in computing the net asset value, (iv) the value to be
assigned to any security for which no price quotations are available, and (v)
the method of computation of the public offering price on the basis of the net
asset value of the shares, and the Bank shall not be responsible for any loss
occasioned by such reliance on any quotations received from a source pursuant to
(iii) above.
13. CONCERNING THE BANK.
16
<PAGE> 20
13.1 PERFORMANCE OF DUTIES; STANDARD OF CARE. In performing
its duties hereunder and any other duties listed on any Schedule hereto,
if any, the Bank will be entitled to receive and act upon the advice of
independent counsel of its own selection and reasonably acceptable to
the Trust, which may be counsel for the Trust, and will be without
liability for any action taken or thing done or omitted to be done in
accordance with this Agreement in good faith in conformity with such
advice. In the performance of its duties hereunder, the Bank will be
protected and not be liable, and will be indemnified and saved harmless
for any action taken or omitted to be taken by it in good faith reliance
upon the terms of this Agreement, any Officers' Certificate, Proper
Instructions, resolution of the Board, telegram, notice, request,
certificate or other instrument reasonably believed by the Bank to be
genuine and for any other loss to any Portfolio of the Trust except in
the case of its gross negligence, willful misfeasance or bad faith in
the performance of its duties or reckless disregard of its obligations
and duties hereunder.
The Bank will be under no duty or obligation to inquire into and
will not be liable for:
(a) the validity of the issue of any Portfolio
Securities purchased by or for any Portfolio of the Trust, the
legality of the purchases thereof or the propriety of the price
incurred therefor;
(b) the legality of any sale of any Portfolio
Securities by or for any Portfolio of the Trust or the propriety
of the amount for which the same are sold;
(c) the legality of an issue or sale of any common
shares of any Portfolio of the Trust or the sufficiency of the
amount to be received therefor;
(d) the legality of the repurchase of any common
shares of any Portfolio of the Trust or the propriety of the
amount to be paid therefor;
(e) the legality of the declaration of any dividend
by any Portfolio of the Trust or the legality of the
distribution of any Portfolio Securities as payment in kind of
such dividend; or
(f) any property or moneys of any Portfolio of the
Trust unless and until received by it, and any such property or
moneys delivered or paid by it pursuant to the terms hereof.
Moreover, the Bank will not be under any duty or
obligation to ascertain whether any Portfolio Securities at any
time delivered to or held by it for the account of any Portfolio
of the Trust are such as may properly be held by such Portfolio
under the provisions of the Articles and By-laws of the Trust,
any federal or state statutes or any rule or regulation of any
governmental agency.
17
<PAGE> 21
Notwithstanding anything in this Agreement to the
contrary, in no event shall the Bank be liable hereunder or to
any third party:
(a) for any losses or damages of any kind resulting
from acts of God, earthquakes, fires, floods, storms or other
disturbances of nature, epidemics, strikes, riots,
nationalization, expropriation, currency restrictions, acts of
war, civil war or terrorism, insurrection, nuclear fusion,
fission or radiation, the interruption, loss or malfunction of
utilities, transportation, or computers (hardware or software)
and computer facilities, the unavailability of energy sources
and other similar happenings or events except as result from the
Bank's own gross negligence; or
(b) for special, punitive or consequential damages
arising from the provision of services hereunder, even if the
Bank has been advised of the possibility of such damages.
13.2 AGENTS AND SUBCUSTODIANS. The Bank may employ agents in
the performance of its duties hereunder and shall be responsible for the
acts and omissions of such agents as if performed by the Bank hereunder.
Upon receipt of Proper Instructions, the Bank may employ
subcustodians in accordance with such instructions, provided that any
such subcustodian meets at least the minimum qualifications required by
Section 17(f) of the Act to act as a custodian of any Portfolio of the
Trust's assets, and provided further that the Bank shall have no more or
less responsibility to any Portfolio of the Trust on account of any
actions or omissions of any subcustodian so employed than any such
subcustodian has to the Bank, provided that the liability limitations
have been disclosed to the Trust. At the election of the Trust, it shall
be entitled to be subrogated to the rights of the Bank with respect to
any claims against a subcustodian as a consequence of any such loss,
damage, cost, expense, liability or claim if and to the extent that any
Portfolio or the Trust has not been made whole for any such loss,
damage, cost, expense, liability or claim.
The affected Portfolio(s) of the Trust shall pay all
appropriately apportioned fees and expenses of any subcustodian.
13.3 INSURANCE. the Bank shall use the same care with respect
to the safekeeping of Portfolio Securities and cash of any Portfolio of
the Trust held by it as it uses in respect of its own similar property,
but it need not maintain any special insurance for the benefit of any
Portfolio or the Trust.
13.4 FEES AND EXPENSES OF BANK. The affected Portfolio of the
Trust will pay or reimburse the Bank from time to time for any transfer
taxes payable upon transfer of Portfolio Securities made hereunder, and
for all necessary proper disbursements, expenses and charges made or
incurred by the Bank in the performance of this Agreement (including any
duties listed on any Schedule hereto, if any) including any indemnities
for any loss, liabilities or expense to the Bank as provided above. For
the
18
<PAGE> 22
services rendered by the Bank hereunder, the affected Portfolio will pay
to the Bank such compensation or fees at such rate and at such times as
shall be agreed upon in writing by the parties from time to time. The
Bank will also be entitled to reimbursement by any Portfolio or the
Trust for all reasonable expenses incurred in conjunction with
termination of this Agreement by the any Portfolio or the Trust.
13.5 ADVANCES BY BANK. The Bank may, in its sole discretion,
advance funds on behalf of any Portfolio of the Trust to make any
payment permitted by this Agreement upon receipt of any Proper
Instructions from the Portfolio authorizing such payments. Should such a
payment or payments, with advanced funds, result in an overdraft (due to
insufficiencies of the Portfolio's account with the Bank, or for any
other reason) any such overdraft or related indebtedness shall be deemed
a loan made by the Bank to the Portfolio payable on demand and bearing
interest at the current rate charged by the Bank for such loans unless
the Portfolio shall provide the Bank with agreed upon compensating
balances. The Portfolio agrees that the Bank shall have a continuing
lien and security interest to the extent of any overdraft or
indebtedness, in and to any property at any time held by it for the
Portfolio's benefit or in which the Portfolio has an interest and which
is then in the Bank's possession or control (or in the possession or
control of any third party acting on the Bank's behalf). The Portfolio
authorizes the Bank, in its sole discretion, at any time to charge any
overdraft of indebtedness, together with interest due thereon against
any balance of account standing to the credit of the Portfolio on the
Bank's books.
14. TERMINATION.
14.1 This Agreement may be terminated at any time without
penalty upon sixty days written notice delivered by either party to the
other by means of registered mail, and upon the expiration of such sixty
days this Agreement will terminate; provided, however, that the
effective date of such termination may be postponed to a date not more
than ninety days from the date of delivery of such notice (i) by the
Bank in order to prepare for the transfer by the Bank of all of the
assets of any Portfolio or the Trust held hereunder, and (ii) by any
Portfolio or the trust in order to give the Portfolio or the Trust an
opportunity to make suitable arrangements for a successor custodian. At
any time after the termination of this Agreement, any Portfolio or the
Trust will, at its request, have access to the records of the Bank
relating to the performance of its duties as custodian.
14.2 In the event of the termination of this Agreement, the
Bank will immediately upon receipt or transmittal, as the case may be,
of notice of termination, commence and prosecute diligently to
completion the transfer of all cash and the delivery of all Portfolio
Securities held by it hereunder, duly endorsed, together with all
records maintained under Section 11, to the successor custodian when
appointed by any Portfolio or the Trust. The obligation of the Bank to
deliver and transfer over the assets of any Portfolio or the Trust held
by it directly to such successor custodian will commence as soon as such
successor is appointed and will continue until completed as
19
<PAGE> 23
aforesaid. If any Portfolio or the Trust does not select a successor
custodian within ninety (90) days from the date of delivery of notice of
termination the Bank may, subject to the provisions of subsection
(13.4), deliver the Portfolio Securities and cash of any Portfolio or
the Trust held by the Bank to a bank or trust company of its own
selection which meets the requirements of Section 17(f)(1) of the Act
and has a reported capital, surplus and undivided profits aggregating
not less than $2,000,000, to be held by such bank or trust company as
the property of any Portfolio or the Trust under terms similar to those
on which they were held by the Bank, whereupon such bank or trust
company so selected by the Bank will become the successor custodian of
such assets of any Portfolio or the Trust with the same effect as though
selected by the Board.
14.3 Prior to the expiration of ninety (90) days after notice
of termination has been given, the Portfolio or the Trust may furnish
the Bank with an order of the Portfolio or the Trust advising that a
successor custodian cannot be found willing and able to act upon
reasonable and customary terms and that there has been submitted to the
shareholders of the Portfolio or the Trust the question or whether the
Portfolio or the Trust will be liquidated or will function without a
custodian for the assets of the Portfolio or the Trust held by the Bank.
In that event the Bank will deliver the Portfolio Securities and cash of
the Portfolio or the Trust held by it, in accordance with such
alternatives as is approved by the requisite vote of shareholders, upon
receipt by the Bank of a copy of the minutes of the meeting of
shareholders at which action was taken, certified by the Trust's
Secretary and an opinion of counsel to the Trust in form and content
satisfactory to the Bank.
15. CONFIDENTIALITY. Both parties hereto agree that any non-public
information obtained hereunder concerning the other party is confidential and
may not be disclosed to any other person without the consent of the other party,
except as may be required by applicable law or at the request of a governmental
agency. The parties further agree that a breach of this provision would
irreparably damage the other party and accordingly agree that each of them is
entitled, without bond or other security, to an injunction or injunctions to
prevent breaches of this provision.
16. NOTICES. Any notice or other instrument in writing authorized or
required by this Agreement to be given to either party hereto will be
sufficiently given if addressed to such party and mailed or delivered to it at
its office at the address set forth below; namely:
(a) In the case of notices sent to any Portfolio or the Trust to:
Select Advisors Portfolios
318 Broadway
Cincinnati, Ohio 45202
(b) In the case of notices sent to the Bank to:
Investors Bank & Trust Company
20
<PAGE> 24
P.O. Box 1537
Boston, Massachusetts 02205-1537
or at such other place as such party may from time to time designate in
writing.
17. AMENDMENTS. This Agreement may not be altered or amended, except
by an instrument in writing, executed by both parties, and in the case of the
Trust, such alteration or amendment will be authorized and approve by its Board.
18. PARTIES. This Agreement will be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement will not be assignable by the Trust
without the written consent of the Bank or by the Bank without the written
consent of the Trust, authorized and approved by its Board; and provided further
that termination proceedings pursuant to Section 14 hereof will not be deemed to
be an assignment within the meaning of this provision.
19. GOVERNING LAW. This Agreement and all performance hereunder will
be governed by the laws of the Commonwealth of Massachusetts.
20. LIMITATIONS OF LIABILITY. A copy of the Declaration of Trust of
the Trust is on file with the Secretary of the State, and notice is hereby given
that this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of this instrument are
not binding upon any of the Trustees of Officers of the Trust individually.
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
21
<PAGE> 25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
and year first written above.
SELECT ADVISORS PORTFOLIOS
BY: /s/ Edward G. Harness, Jr.
---------------------------------
ATTEST:
/s/ Jill T. McGruder
- -------------------------------
INVESTORS BANK AND TRUST COMPANY
BY: /s/ Kevin J. Sheehan
---------------------------------
ATTEST:
/s/ John Lippett
- -------------------------------
DATE: 8/22/94
22
<PAGE> 1
Exhibit (13)
Touchstone Advisors, Inc.
318 Broadway
Cincinnati, Ohio 45202
(800) 669-2796
September 15, 1994
Select Advisors Trust A
318 Broadway
Cincinnati, Ohio 45202
Ladies and Gentlemen:
With respect to our purchase from you of shares of beneficial interest
(the "Initial Shares") of each of the following series (each a "Fund") of
Select Advisors Trust A (the "Trust"):
Touchstone Emerging Growth Fund A
Touchstone International Equity Fund A
Touchstone Growth & Income Fund A
Touchstone Balanced Fund A
Touchstone Income Opportunity Fund A
Touchstone Bond Fund A
Touchstone Standby Income Fund
Touchstone Municipal Bond Fund A
We hereby advise you that we are purchasing the Initial Shares of each Fund
with no intention to dispose of them either through resale to others or
redemption by the Trust. The Trust will invest all of the investable assets of
each Fund in the corresponding series (the "Corresponding Portfolio") of Select
Advisors Portfolios, an investment company registered under the Investment
Company Act of 1940, as amended.
The amount paid by a Fund on any redemption by us, or any other
then-current holder of that Fund's Initial Shares, will be reduced by a portion
of any unamortized organization expenses of the Fund and the Corresponding
Portfolio, such portion to be determined by the proportion of the number of
Initial Shares of the Fund redeemed to the number of Initial Shares of the Fund
then outstanding after taking into account any prior redemptions of the Initial
Shares of the Fund. The amount of such reduction in excess of the unamortized
organization expenses of the Fund shall be contributed by the Fund to the
Corresponding Porfolio.
Very truly yours,
TOUCHSTONE ADVISORS, INC.
By: /s/ Edward G. Harness, Jr.
-------------------------------
Name: Edward G. Harness, Jr.
Title: President
<PAGE> 2
Exhibit (13)
Touchstone Advisors, Inc.
318 Broadway
Cincinnati, Ohio 45202
(800) 669-2796
September 15, 1994
Select Advisors Trust C
318 Broadway
Cincinnati, Ohio 45202
Ladies and Gentlemen:
With respect to our purchase from you of shares of beneficial interest
(the "Initial Shares") of each of the following series (each a "Fund") of
Select Advisors Trust C (the "Trust"):
Touchstone Emerging Growth Fund C
Touchstone International Equity Fund C
Touchstone Growth & Income Fund C
Touchstone Balanced Fund C
Touchstone Income Opportunity Fund C
Touchstone Bond Fund C
Touchstone Municipal Bond Fund C
We hereby advise you that we are purchasing the Initial Shares of each Fund
with no intention to dispose of them either through resale to others or
redemption by the Trust. The Trust will invest all of the investable assets of
each Fund in the corresponding series (the "Corresponding Portfolio") of Select
Advisors Portfolios, an investment company registered under the Investment
Company Act of 1940, as amended.
The amount paid by a Fund on any redemption by us, or any other
then-current holder of that Fund's Initial Shares, will be reduced by a portion
of any unamortized organization expenses of the Fund and the Corresponding
Portfolio, such portion to be determined by the proportion of the number of
Initial Shares of the Fund redeemed to the number of Initial Shares of the Fund
then outstanding after taking into account any prior redemptions of the Initial
Shares of the Fund. The amount of such reduction in excess of the unamortized
organization expenses of the Fund shall be contributed by the Fund to the
Corresponding Porfolio.
Very truly yours,
TOUCHSTONE ADVISORS, INC.
By: /s/ Edward G. Harness, Jr.
-------------------------------
Name: Edward G. Harness, Jr.
Title: President
